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AGENDA
ASPEN PLANNING & ZONING COMMISSION
June 1, 2021
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II.ROLL CALL
III.COMMENTS
IV.MINUTES
IV.A.DRAFT Meeting Minutes for April 20, 2021
minutes.apz.20210420.docx
V.DECLARATION OF CONFLICT OF INTEREST
VI.PUBLIC HEARINGS
VI.A.1050 Waters Ave #13, Special Review - Stream Margin Review Standard Variance
1050 Waters Ave #13_Special Review Memo.pdf
Resolution No. _, Series 2021_1050 Waters Avenue Unit 13.pdf
Exhibit A_Stream Margin Review Criteria.pdf
Exhibit B_Stream Margin Special Review Criteria.pdf
Exhibit C_Application.pdf
Exhibit D_Public Comment.pdf
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VI.B.1050 Waters Ave #15, Special Review - Stream Margin Review Standard Variance
1050 Waters Avenue Unit 15_Memo_Stream Margin Review.pdf
P&Z Resolution No. _, Series 2021_1050 Waters Avenue Unit 15.pdf
Exhibit A - Stream Margin Review Criteria.pdf
Exhibit B - Stream Margin Special Review Criteria.pdf
Exhibit C_Application.pdf
Exhibit D_Public Comment.pdf
VII.OTHER BUSINESS
None
VIII.ADJOURN
Typical Proceeding Format for All Public Hearings
1)Conflicts of Interest (handled at beginning of agenda)
2) Provide proof of legal notice (affidavit of notice for PH)
3) Staff presentation
4) Board questions and clarifications of staff
5) Applicant presentation
6) Board questions and clarifications of applicant
7) Public comments
8)Board questions and clarifications relating to public comments
9) Close public comment portion of bearing
10) Staff rebuttal/clarification of evidence presented by applicant and public comment
11) Applicant rebuttal/clarification
End of fact finding.
Deliberation by the commission commences.
No further interaction between commission and staff, applicant or public
12) Chairperson identified the issues to be discussed among commissioners.
13) Discussion between commissioners*
14) Motion*
*Make sure the discussion and motion includes what criteria are met or not met.
Revised January 8, 2021
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Minutes Aspen Planning and Zoning Commission April 20, 2021
Page 1 of 18
Chairperson McKnight called the regularmeeting to order at 4:31 PM.
Commissioners in attendance: James Marcus, Rally Dupps, Scott Marcoux, Teraissa McGovern, Ruth
Carver, and Spencer McKnight
Commissioners not in attendance: Brittanie Rockhill and Kimbo Brown-Schirato
Staff in Attendance:
Philip Supino, Community Development Director
Ben Anderson, Principal Long-Range Planner
Kate Johnson, Assistant City Attorney
Cindy Klob, Records Manager
COMMISSIONER COMMENTS
None
STAFF COMMENTS
Mr. Supino stated the meetings scheduled for May should be held.
Mr. Supino stated Ms. Brown-Schirato will be moving out of the City and will resign from the
commission.
PUBLIC COMMENTS
None
APPROVAL OF MINUTES
Ms. Carver motioned to approve the January 19, 2021 minutes and was seconded by Ms. McGovern. All
in favor, motion carried.
Mr. Marcoux motioned to approve the February 2, 2021 minutes and was seconded by Ms. McGovern.
All in favor, motion carried.
Mr. Marcoux motioned to approve the March 2, 2021 minutes and was seconded by Ms. McGovern. All
in favor, motion carried.
Ms. McGovern motioned to approve the March 3, 2021 minutes and was seconded by Mr. Marcoux. All
in favor, motion carried.
DECLARATION OF CONFLICT OF INTEREST
None
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Minutes Aspen Planning and Zoning Commission April 20, 2021
Page 2 of 18
PUBLIC HEARINGS
Mr. McKnight asked if proper notice was provided. Ms. Johnson stated the published notice was found
sufficient for both hearings. The notices were entered as Exhibit I and exhibits II and saved with the
agenda packet.
Planning and Zoning Commission Recommendation
Land Use Code Amendment – Growth Management and Affordable Housing Credits
Mr. McKnight opened the hearing and turned the floor over to Staff for the high-level review.
Mr. Anderson introduced himself and stated the hearing is related to proposed code amendments for
growth management (GM) and affordable housing (AH) credits. He then reviewed the code amendment
process which begins with a policy resolution from City Council requiring community outreach and
stakeholder discussion. Mr. Anderson noted both hearings tonight involve the discussion for the
proposed amendments and P&Z can provide a resolution of recommendation to Council. Mr. Anderson
noted the discussion or comments are not binding and City Council will be making the final
determination on the proposed code amendments.
Mr. Anderson displayed and discussed the proposed schedule for the review of the code amendments in
April and May. He also discussed how the proposed amendments originated with the coordination of
the land use code with Council’s AH goals. There was a Fee-in-Lieu (FIL) study conducted in 2019 which
identified potential actions for improvement to make it more proportionate and defensible. City Council
then approved a policy Resolution No. 79-2020 to provide direction to the proposed code amendments
including the following.
Fee-In-Lieu Calculation and Update Methodology - Staff worked with consultants TischlerBise
and White and Smith
Improvements to the AH Credits program
Improvement to Multi-Family Home (MFH) replacement – Staff worked with consultant Design
Workshop
Study of existing incentives and credits with AH mitigation requirements
Mr. Anderson stated staff wants to review the following proposed amendments with P&Z.
Fee-in-Lieu update
Improvements to AH Credits
Elimination of Lodge Incentives and Credits – AH mitigation
Clean-up to MFH Replacement – no policy or regulation changes
Mr. Anderson reviewed the criteria City Council will consider in their review of the proposed
amendments. He added P&Z does not necessarily need to use them. Ms. Johnson noted this hearing is
more in the policy making realm.
Mr. Anderson discussed the history of Fee-in-Lieu and the proposed methodology. He stated the fee-in-
lieu is a codified amount that represents the dollar value assigned to the value of AH mitigation. It is
assigned per FTE (Full Time Equivalent) within categories.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. Anderson then reviewed the properties utilized to determine the construction and land costs. The
properties included public, private and public/private projects. For the land costs, the mix included six
projects under an acre and the Lumberyard project which is ten times the size at 10.5 acres. Because the
final density hasn’t been determined yet for the Lumberyard project, staff took the densities (FTEs per
land area) for the other 6 completed projects and translated the average onto the Lumberyard project.
He then displayed a table of proposed construction costs. The average soft cost per SF of net livable is
$187 and the average hard cost per SF of net livable is $501 for a total average cost per SF net livable of
$688. Next, he displayed a table of land costs showing a cost range of $135 - $540 per SF net livable and
an average cost of $417 per SF net livable. Then he displayed a table showing the totals adding the land
and construction costs for a total of $1,105 per SF net livable and $442,000 per FTE. He acknowledged
this is a very large number compared to developing AH in other communities.
Mr. Anderson displayed a table showing revenues per FTE for sale, rental and average of sales and rental
per revenue category based on Aspen Pitkin County Housing Authority (APCHA) guidelines. The sales
and rental figures from APCHA were taken down to a per FTE basis and then the figures were averaged.
APCHA provides clear sales figures by category based on the number of bedrooms in a unit. For the
rental figures, some assumptions had to be made. Staff took APCHA’s rental rates out 15 years with an
increase of 2% per year and then subtracted an assumed 50% of the maintenance and operation (M&O)
expenses to calculate and rental FTE amount.
From the calculations, staff was able to determine proposed FIL amounts by category. He displayed a
table of the proposed FIL amounts along with a chart showing the percent increase from 2018 for each
category. He explained the Category 2 rows of figures is highlighted because it represents the AH
mitigation required when someone builds a single family or a duplex. And the Category 4 rows were
highlighted because it represents the AH mitigation required for a commercial, lodging and MFH
developments. The other categories are used in AH category conversions and for the AH certificate
program. He noted the percent increases are different across the categories due to different
methodologies used to calculate revenues for each category. He believes the proposed new
methodology is more defensible and rooted in the APCHA guidelines.
Mr. Anderson asked the commissioners if they had any questions at this time.
Mr. Marcus asked to confirm if the $1,100 per SF is the cost to develop AH in Aspen. Mr. Anderson
confirmed this was an average cost calculated. He stated the cost was based on net livable to identify
the unit size instead of gross floor area.
Mr. Marcus asked if other incentives were available to reduce the cost, would this be considered. Mr.
Anderson replied in terms of costs, the consultant team considered private, public, and public/private
projects. In regard to revenues, the team wanted to make sure the cost/revenue analysis was similar to
the City of Aspen building a unit. If the private sector builds a project, they may have additional revenue
streams available to them. Mr. Anderson provided examples such as a recent private development that
was sold to an employer for housing and developers being able to take advantage of the low-income tax
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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housing credits. These were kept out of the equation because the City is trying to identify what it would
cost the City to build a unit. He added the City has other programs than the FIL system such as the AH
credit program.
Mr. Marcus commented if the goal is to be defensible and equitable, there should be a view on what is
the most efficient way and not the most expensive. Mr. Anderson replied the City is trying to build and
codify a methodology to include all those options and have it easily updated. It would require
knowledge of the internal rate of return for developers and other sales information that is not available.
Mr. Marcus asked if the included the revenue from the public/private partnerships to allow for a
broader range. Mr. Anderson replied those projects are all rental and are subject to APCHA rental
guidelines.
Mr. Anderson stated there is also a proposed annual valuation using the Engineering News-Record’s
National Construction Index (NCI) to update the FIL. Also, the cost calculation would be evaluated every
five years using actual projects and land acquisitions.
Mr. Anderson reviewed comments from the public outreach with the development community on April
6th and 7th. Comments from the meetings included concerns the percent increase was not consistent
across categories the assumptions regarding the M&O costs and the rental revenue, the outcomes of
the study may have impacts on other housing policy including categories, and using the NCI for annual
updates.
Mr. Anderson then discussed AH credit improvements. He stated they’ve heard the program is
successful, but there are some aspects making it difficult for people to take full advantage of the
program. Staff is proposing four changes:
1) AH development projects can pursue AH credits in conjunction with other state and federal
incentives,
2) Allow for phased issuance of AH certificates to correspond with the construction phases at 30%
at foundation, 30% at framing and 40% at Certificate of Occupancy,
3) Multiplier of FTEs of 20% generated within a designated historic structure due to the extra costs
associated with such structures,
4) Provide flexibility for credit insurance in the deed-restricting of existing free-market MFH
development. The floor area is not as clearly defined in some of the older buildings.
Mr. Anderson noted there are two major issues with the AH Credits program staff is not proposing
changes for at this time. Staff will continue to analyze to seek solutions to the following.
1) Banks and other lenders do not, or have difficulty evaluating the value of credits with a project’s
pro forma.
2) The uncertainty on the demand side of credits. This is the risk in a credits project asking if there
will be buyers for my credits and how long will it take to sell them.
Mr. Anderson next discussed the work to date for MFH replacements. He stated they are still studying
this, and they are not yet ready to propose any amendments.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. Anderson stated the community focus has shifted to providing affordable housing and staff is
proposing eliminations to the lodge incentives and credits. He noted the incentives were put in place in
2007 to reduce the mitigation rate for new developments and the employee generation credit for
mitigating existing lodge rooms in redevelopment scenarios.
Mr. Anderson reviewed the proposed timeline, noted the draft resolution in the packet and stated he
would be happy to take comments to Council.
Mr. McKnight asked the commissioners if there were any questions of staff.
Mr. Marcoux asked if the phased construction credits could be changed to when the mechanical,
electrical, plumbing (MEP) starts. Mr. Anderson replied the recommendation from the City’s building
inspectors was the MEP was already in place with the framing and roofing.
Mr. Dupps noted he keeps seeing parking as a subject in public comments regarding the increased
density in the RMF zone district. He asked for more information. Mr. Anderson stated this information
would be covered in the second agenda item.
Mr. Marcus asked what ideas have been reviewed to resolve the financing issues and why did staff
decide not to pursue any changes at this time. Mr. Anderson noted when the credits program was
conceived, the idea was to create a mechanism keeping the City out of deal regarding the sale of them.
He added for the issue to be resolved, the City would have to intervene dramatically in the market of the
credits. Mr. Marcus stated the City would need to buy them to guarantee a price. Mr. Anderson agreed
and noted this would be a fundamental change from the original intent of the program.
Ms. McGovern asked if changing the FIL calculation would not have any impact on accepting cash-in-lieu
(CIL) when a building permit is obtained. Mr. Anderson confirmed her statement was accurate.
Mr. McKnight then opened for public comment. Ms. Johnson then asked each attendee for their
comment.
Mr. Buck Carlton believes originally people were supposed to have a certain percentage of their units go
to AH so everybody gets integrated normally. Now, he believes a lot of money has been paid and you
have to look for places for AH. He believes this is not going to change but wanted to point it out. He sees
the biggie as the 20% benefit for places that have already been set up for HPC. He thinks HPC is a very
important part of Aspen and to then have another incentive that breaks up what’s been going on to
create a lot of multi-units in places probably should not have them is probably not a good idea.
Ms. Caroline McDonald, 1000 E Cooper Ave, stated it has been proposed they’re going to give a $6,000
CIL for construction at 1020 E Cooper Ave. Her property is actually where it would probably be because
it’s off the main street and it has access to the alley. She does not believe CIL helps her neighborhood.
She has two units and the parking is totally unacceptable and CIL if just feeding the government more
money to supersede the public needs. She thanked the commission for the opportunity to comment.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. Jim VeShancey stated he makes his living in construction and development management. He
wondered if the AH credit is somehow tied to the value of a deed-in-lieu (DIL) payment so if somebody
has an AH credit, they could sell it on the open market. And that person could use it instead of paying
the DIL. He asked if a market understanding that those two are tied together in terms of value could be
established.
Mr. Michael Smith believes it should just all go to a cash program and then when someone creates
housing, they get paid the cash amount for the FIL. He feels this will create a more transparent market
and probably drive down the cost of AH. He was astonished at the costs. He has built units in Carbondale
at approximately one third the cost. He believes the costs should be studied further.
Ms. Christie Gilliam is a real estate agent and she agrees with Mr. Michael Smith they are develop units
down valley at a lot lower cost.
Mr. McKnight closed public comment and asked staff if they wanted to respond.
Mr. Anderson wanted to clarify when he was speaking of FIL, he was speaking specifically about AH
mitigation as opposed to the parking fee-in-lieu. The money coming in from that process has a different
purpose. He is strictly referring to AH mitigation.
Mr. Anderson stated the purpose of the credits is to serve as a proxy for the FIL and no dollars are
exchanged with the City. He added they have found the value of the credits on the market serve as a
holder value of the credits so there is some connection. He added the program has generated a number
of units that would otherwise not have been built. It’s been a success, but it does require the connection
of the credits with the FIL.
Mr. Anderson stated they tried to make an effort to identify the costs noting the public partnership
project was relatively in line with the private sector project.
Mr. McKnight opened commissioner discussion. He stated he would ask the commissioners on the four
items discussed starting with the FIL calculation methodology.
Ms. McGovern provided a thumbs up.
Mr. Marcus stated there are potentially other sources of revenue through public private partnerships to
bring down the costs. He believes it’s a mistake on one hand to say it’s okay to increase the FIL to pass
on to the developers, but the City will have no accountability for improving the credits program by
backing it up. He added it seems uneven there’s an expectation that private developers should bear the
full cost and the lack of competitiveness of how to bring down the costs and on the other side the
having the City be accountable to make the credits program more efficient. He stated if developers build
them and the FIL is higher, it could potentially be a good thing, but there is no benefit if developers can’t
sell them. He believes the proposed increases are huge and is reluctant to support the changes.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. Anderson notedMr. Marcus makes good points but reiterated the changes he is suggesting are big
and will change the nature of the program. He added the City will continue to work on these issues. He
stated the costs are the same across the categories and it’s the calculations of the revenue streams
between 2015 and 2020 that’s making the difference.
Mr. Marcus asked if they looked at the actual revenue for the private developer. Mr. Anderson stated
they looked at the rent revenue for 15 years for the Aspen Housing Partnership projects. He added they
had to make a choice because the M&O costs and financing considering the nature and size of a project.
They found a range of 25% to 80% so they picked something in the middle they felt was justifiable.
Mr. McKnight agreed with Mr. Marcus.
Mr. McKnight then asked for comments regarding the AH certificate credits.
Mr. Marcus asked what the point is if the two primary issues are being punted. He agrees it will be hard,
but he proposes the commission state they are generally in agreement with the proposed FIL changes
with the condition the City actually prioritizes and takes up what has been identified as the two primary
shortcomings of the credits program. Ms. McGovern responded she does not have enough information
to back Mr. Marcus on his suggestion. She agrees it needs to be addressed but doesn’t feel this is the
current forum to do it. Mr. Dupps asked Mr. Marcus to review his potential solution. Mr. Marcus stated
the City would guarantee to purchase the credits at some price and then make them available to create
a level of certainty for the developer building the units. He also wants the developer to have the ability
to sell the credits on the free market. He added this would solve the financing issue because a bank
could see the units are basically guaranteed and backed by the City. Mr. Dupps asked what happens if
the City sells out of them like what has happened in the private sector.
Ms. Johnson reiterated staff is asking for a recommendation on the amendments discussed and Mr.
Marcus is proposing an entirely different amendment. She added P&Z can propose amendments to
Council, but it would need to be an entirely different action.
Mr. Supino felt it is important to consider the dollar amount that would be needed to purchase credits
could only come from the General Fund which requires Council’s approval to use money from this fund.
Other funds such as the 150 Fund would not be available to use to purchase the credits because of the
strict limitations of the fund. There would be some hurdles for the City to create a budget authority to
purchase the credits.
Mr. Dupps feels the comments from Mr. Marcus and Ms. McGovern are valid. He feels the market for
the credits is currently handicapped.
Ms. Carver asked if a suggestion could be added for the City to guarantee a percentage of the credit or
the full value after a specified timeframe if the credits were not sold.
Mr. McKnight noted the commissioners agree the problems exist and the City knows it as well.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. Anderson stated staff has discussed it with City Council and there is support to identify solutions,
but nothing has been determined at this point.
Mr. Supino suggested including a recommendation in the motion in support.
Mr. McKnight then asked for comments regarding the existing credits and incentives item. No one
commented so he took that as support as it was presented by staff.
Mr. McKnight next asked for comments regarding the MFH replacement item. Again, no one
commented so he took that as support as it was presented by staff.
Mr. Marcoux motioned to approve the resolution with the added language. Ms. Johnson suggested
making a formal recommendation in support of the amendments proposed in the resolution and include
a recommendation that City Council direct staff to engage in an analysis on the topic.
Mr. Marcus then motioned to approve the resolution with the understanding the P&Z commissioners
strongly encourage City Council to direct staff to analyze and identify solutions to solve the two primary
shortcomings of the credit programs. Mr. Dupps seconded the motion.
Mr. McKnight requested a roll call for Resolution 3, Series 2021: Roll Call: Mr. Marcoux, yes; Ms.
McGovern, yes; Ms. Carver, yes; Mr. Dupps, yes; Mr. Marcus, yes; Mr. McKnight, yes; for a total of six (6)
in favor – zero (0) not in favor. The motion passed.
Mr. McKnight then closed the hearing.
Planning and Zoning Commission Recommendation
Land Use Code Amendment – Residential Multi-Family (RMF and RMFA) Zone Districts
Mr. McKnight opened the hearing for code amendments for residential multi-family zoned districts.
Mr. Anderson stated this was a public hearing asking for P&Z recommendations to City Council. He
noted the amendments are proposed by a third party and the only difference in the process is that the
party first goes to City Council to ask permission to submit the application.
Mr. Anderson introduced the application for both the RMF and RMF-A Zone Districts. He reviewed the
process progress to date and the proposed schedule going forward. The applicant requested permission
to apply which was approved and documented in Resolution 16, Series 2021. Next, the applicant
conducted outreach including the public and P&Z. On May 11, 2021 a policy resolution and first reading
are scheduled with City Council. And on May 25, 2021, a second reading of the ordinance and public
hearing is scheduled with the City Council.
He reviewed the types of outreach conducted by the applicant noting there were 120+ participants in
the survey conducted. Any comments received via email were forwarded on to the commissioners.
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Mr. Anderson displayed the review criteria the City Council will consider. He stated P&Z can be informed
by these criteria, but the commission also has discretion on how they approach the topic.
Finally, he displayed a map of the lots that would be impacted by the code amendment. He asked for
any questions of staff.
Mr. McKnight found there were no questions and then turned the floor over to the applicant.
Mr. Bendon, Bendon Adams, introduced himself as the applicant’s representative. He stated the
applicant is requesting a code amendment to allow for MFH on small lots in the RMF and RMF-A Zone
Districts. The applicant is interested in developing MFH but currently lots below 6,000 SF cannot be
developed. Currently a single-family home (SFH) is on the applicant’s lot. The applicant would like to
develop a MFH that is a mix of affordable housing and free market. The application proposes to amend
the code to change the minimum lot size to 3,000 SF.
He then showed a map indicating most of the lots are east of downtown. He pointed out other lots west
of downtown, down by the S-curves, Hunter Creek and Centennial areas, and at the base of Smuggler.
Mr. Bendon then discussed the type of residences currently allowed in the RMF Zone District. He noted
for historic lots the current minimum lot size is 3,000 SF in the RMF and RMF-A Zone Districts. Of the 24
lots the proposed code amendment would impact, nine of them are historic and therefore already
allowed to have a MFH development.
Mr. Bendon then displayed the actual proposed amendment content under the Minimum Gross Lot
Area (square feet) section as ‘For Multi-Family Dwellings: Three thousand (3,000)’ to be appended to
the end of the existing content.
He then displayed a listing of the 24 lots that would be affected by the code change. He noted most are
single family homes, a couple are duplexes and a couple are MFHs and a couple are lodge.
Mr. Bendon stated the proposed code amendment is well supported by the Aspen Area Community
Plan.
Mr. Bendon next discussed potential impacts regarding to mass and scale. He stated clearly the
development of MFH is going to be bigger than a SFH. He provided a matrix comparing the floor area
(FA) and height of existing and new SFHs against multi-family for low, medium and high densities of
3,000 SF, 4,500 SF and 6,000 SF lots. He also provided 3-D rendering of the examples in the matrix. He
noted the side setbacks would be the same but the front setbacks for multi-family structures is five FT
and for SFHs it is 10 FT.
Mr. Bendon next provided a matrix comparing the Employee mitigation for a SFH and MFH on 3,000 SF,
4,500 SF and 6,000 SF lots.
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He then provided a matrix comparing parking requirements for a SFH and MFH.
Mr. Bendon reviewed the outreach actions and a sample of responses. He noted about 120 people
answered the survey and of those responding, about 60% were in Pitkin County about 36% were outside
Pitkin County. Almost 70% of the respondents live in free-market housing. About 55% of the
respondents felt they were familiar with the City’s Zoning Code. An average of 19 out of 100 responded
they would support for increased residential density. In regard to the types of supported residential
density, the highest was no support at 60%, SFH at 50% and the remainder was 20% or lower for other
options. Most of the comments provided were against supporting the proposed code amendment. He
read a few examples of the comments.
Mr. Bendon stated the applicant has the ability to develop a SFH by right. He displayed a map of the City
with the RMF Zone Districts identified and stated from a planning perspective, these are the areas
where MFH is zoned because they are accessible by multiple types of transportation. He concluded
stating based on the size of the lot, he believes a SFH built would become a second home and not house
someone in the local workforce.
Mr. McKnight asked the commissioners for questions of the applicant.
Mr. Dupps noted some comments asked for the applicant to be identified and asked Ms. Johnson if this
was appropriate. Ms. Johnson does not believe there is any legal authority requiring the applicant to
identify themselves other than what is required on the application. Mr. Bendon stated the applicant is
Tri Dal Real Estate Ltd which owns other property in town.
Mr. Marcoux stated he keeps hearing not turning Aspen into Vail. He asked what Vail did with their
parking issue and when will Aspen start to treat the parking issue as a safety concern. He feels parking
has been forgotten. Mr. McKnight stated the current stage of the hearing is asking questions of the
applicant. Mr. Marcoux asked the if Mr. Bendon discussed the parking issues with the applicant for the
property. Mr. Bendon stated they have had discussions, but not in great detail. He stated the City has
parking regulations which encourage transportation other than cars and the system is the second largest
in the state and has a long history of de-emphasizing the auto and emphasizing other forms of
transportation. Mr. Bendon stated the applicant would be required to provide parking as any applicant
is required.
Ms. McGovern noted the proposed code amendments state multi-family and not affordable housing, or
deed restricted multi-family. She asked if it had been discussed with the applicant to define the multi-
family as some type of affordable. In her opinion if it is a free market MFH, then it only puts more empty
beds instead a SFH. Mr. Bendon replied they modeled the proposed changes for MFH on what it
currently is for MFH in the RMF Zone Districts. He added the requirements for adding affordable housing
are pretty steep. He stated it’s not cheap to develop anything in Aspen. For an applicant to develop
purely affordable housing, they would probably have to have more incentive than what exists now.
Ms. Carver asked if the historic lots would be included in the 24 lots. Mr. Bendon stated the historic
properties are already allowed to develop MFH. The list he displayed earlier included the historic lots.
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He added there would be 15 lots affected by the proposed code amendment. Ms. Carver asked if the
height for the MFH was 32 FT and Mr. Bendon confirmed it as correct.
At 7 pm, Ms. Carver motioned to continue the meeting for an hour. Mr. Marcoux seconded the motion.
Mr. McKnight requested a roll call vote: Mr. Marcus, yes; Ms. McGovern, yes; Mr. Dupps, yes; Mr.
Marcoux, yes; Ms. Rockhill, yes; Mr. McKnight, yes; for a total of six (6) in favor – zero (0) not in favor.
The motion passed.
Mr. McKnight then turned the floor over to staff.
Mr. Anderson stated Mr. Bendon’s presentation represents Staff’s understanding of the application
except on-site parking is required on SF duplex developments.
Mr. Anderson provided history of the RMF / RMF-A Residential Multi-Family zone district. The zone
district has been in effect since 1964 with the permitted use of multi-family development. And since
2004 MFH has been encouraged through height and floor area incentives and SFH redevelopment has
been discouraged through a floor area penalty.
Mr. Anderson summarized the permitted maximum height and floor area ratio (FAR) for MFH. He stated
there is a clear incentive in the zone district for high density MFH development.
Mr. Anderson summarized the permitted uses of SFH development.
Mr. Anderson next discussed the definition of a non-conforming lot of record (lot size less than 3,000
SF). He reviewed Section 26.312.050 of the Non-Conformities chapter. He noted subitem A identifies
there is a basic right for development. He stated subitem C may be confusing as to what is allowed. He
then discussed from Section 26.710.090.D RMF / RMF-A Dimensional Requirements in subitem 2 for
Minimum Net Lot Area per dwelling unit (SF) subitem c. shows there are no requirements for multi-
family dwellings. He feels the City has applied the language conservatively over time, but the intent of
the relationship of the items is a bit unclear.
Mr. Anderson then reviewed staff’s recommendation including staff’s beliefs the proposal is consistent
with the intent of the Zone District(s); consistent with statements in the AACP; uncertain intent
regarding the relationship between minimum gross lot area, nonconformities, and minimum net lot area
per dwelling unit; certain intent in the encouragement of dense, MFH development and discouragement
of new SFH and duplexes; GMQS review with P&Z will be required along with conformance with all
development requirements if the proposed code is amended; and consistent with recent conversations
with City Council regarding aligning the land use code and Council’s affordable housing goals. Staff’s only
reservation is that Council has directed staff to look at all the zone districts for opportunities for AH.
Staff is supportive of the proposed code amendments.
Mr. McKnight asked the commissioners if they had any questions for staff.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
Page 12 of 18
Ms. Carver asked for the timeline for staff to review the zoning districts. Mr. Anderson responded this is
probably why Mr. Bendon is pursuing this request because staff’s review is at least a year out for having
tangible proposals to identify opportunities in the zoned districts to facilitate AH.
Mr. Dupps asked Mr. Anderson to go over the affordable housing requirement if someone wanted to
develop a 4,500 lot for three MFH units as an example. Mr. Anderson responded if someone is demoing
existing units to build new MFH, the are directed to build them on the same location. With new MFH
development, they could do off-site or on-site to meet the FTE requirement or they could do credits. He
stated as an example, for a project requiring six FTEs at a category four under the new rates, this would
be around two million dollars versus affordable housing mitigation.
Mr. Bendon requested time for a clarification. Mr. McKnight allowed for the clarification.
Mr. Bendon stated he wanted to respond to a question regarding the applicant. He stated the
applicant’s interest is for P&Z, staff and City Council focus on the merits of the proposed zoning change
and not be distracted by the people behind it. He stated he has heard members on P&Z, HPC and
Council sort of complain they got sucked into making a decision based on the people and the
personalities and not really the codes and the standards, which can happen and the second reason is not
to pre-judge an applicant or application before it comes in. He stated if this was something that makes
sense in a direction for the community, then an application would be submitted that would be clear
about how it meets the standards, is what’s going on, and renderings of what it looks like. He continued
stating they wouldn’t want councilors, commissioners or staff to get in a position where there is a
distraction by the people and personalities behind it or be accused of pre-judging an application.
Mr. McKnight then opened public comment.
Ms. McDonald, 1000 E Cooper Ave, said the application smacks of greed, Aspen is finite and One A
barely passed by 26 votes. She commented on the employee mitigation for the 1020 E Cooper project.
She is really discerned about the fact whether what comes first, HPC overlay or zoning. She believes
where they want to build five more units will not be enjoyable living units for employees. She said her
son’s friends are moving down valley because they don’t want to live in an abject unit. She feels the City
needs to get families and unfortunately, second homeowners have always been a big part even though
they have no vote or no representation. She cannot believe the City will try to increase the density to
make money for X employees from the City government. The City hired a Park City employee to come in
and work. She feels the City is destroying the goose for the golden egg that is Aspen.
Ms. Merilee Bucy stated she is directly impacted by the 202 Cleveland Ave project. She objects to the
request and feels her current remodeling project is held under a higher level of requirement. She is
concerned the structure will be monolithic on a small lot, have 5 FT setbacks from her structure and 32
FT in height and how it will impact the complexion of the community including views. She doesn’t feel
the neighbors that are extremely affected have been notified by the developers or the City. She stated
she had to put together the pieces of the puzzle to be able to respond at this meeting.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
Page 13 of 18
Mr. Buck Carlton, developer, does not believe an entity that does not own any property in Aspen and
does not identify itself should be able to propose changes to a parcel. He has never seen a city legislate
to create a ghetto which he defines as too many people for the land. He doesn’t believe there is talk
about a lot of square foot relates to the land. He believes we are talking about a ghetto and it’s an attack
on HPC, an attack on the eastern side of Aspen and a cover for affordable housing. He believes they are
avoiding the rules just like are doing at 1020 Cooper. He stated applicants need to pay for a consultant
to identify the impacts including police needs, transportation, schooling, traffic and crime, which always
increases with density. He then discussed the 1020 Cooper project. He concluded if the guidelines are
ignored, the community will get a ghetto.
Ms. Diane Wuslich, wanted to point out the survey quoted earlier in the conference call when it was
stated 2,000 postcards were sent out which is about 27% of 7,300 residents of Aspen and 120 responses
were received which 1.6% of the 7,300 residents. She feels it would be an outrage if any of this
information that was used to consider the proposed development. She stated the developers were
asking for adjustments to zoning guidelines during the time Pitkin County was in a red COVID status
limiting the ability for people to educate themselves and talk with City officials. She added putting
through code changes during COVID is not responsible or ethical. She believes City Council must
research this code change to make an educated decision that would allow 24 lots with approximately
five units on each would add another 1,000 residents or an increase of 14% to this town. She doesn’t
believe the appropriate research has taken place to understand the impacts to the community with the
increase capacity. She doesn’t want big developers allowed to change the footprint of Aspen, change
guidelines and zoning laws. She is opposed to the proposed application.
Mr. Jim VeShancey, Aspen resident and construction manager, stated he is not representing any
particular client, but he has represented clients in this neighborhood with renovations. He stated there
are already considerable density problems in this neighborhood including parking. He feels adding to the
density will make the problems substantially worse. He agrees with Ms. Wuslich’s comments. He
pointed out 61% of the survey responses were opposed. He added only 19% of the responses supported
an increase in the density. He does not feel this proposal is supported. He believes historically, Aspen
has opposed any proposals the increase density by a significant amount.
Ms. Kristy Gilliam, lives next to 1020 E Cooper, stated she experienced the impacts of higher density in
Houston. She stated she cares about Su Lum’s little house and its history. She believes the high-density
projects, like hers, are too big and lack the charm Aspen desperately needs to hold on to. She opposes
the high-density code change along with the majority of the survey respondents which should speak
volumes to the City. She believes the City should look for a way to work on the employee housing issue
without further destroying the character and history of the City. She is appalled by the application and
believes the City has a parking crisis.
Ms. Lou Stover, 1006 E Cooper, wonders why only one property is being discussed when the code
change will affect 20 other properties and feels there is something more to the application that doesn’t
feel right to her. She feels the historic parts of town are no longer in vogue and is concerned about
losing the charm of the town.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
Page 14 of 18
Ms. Mary Elizabeth Geiger, Garfield and Hecht representing the Cooper Avenue Victorian Association
and Riverside Condos, noted a couple of things have been brought up in both the staff report and the
meeting is the City wants to look holistically at all the zone districts and potential changes that may be
necessary to eliminate some confusion and streamline things. She feels this is an excellent point. She
agrees with Ms. Stover’s thoughts as well. She echo’s staff’s concerns and it is probably better to go
through this process and consider amendments. She pointed out for historic properties, even though it
can be built out if the lot is smaller than 6,000 SF, the historic resource must be preserved, and historic
design guidelines must be followed. A structure may be built up to 32 FT if found appropriate. She feels
the historic smaller lot sized developments encourages the protection of those resources, but if non-
historic lot size is reduced to 3,000 SF it may encourage dropping historic designations to eliminate the
conditions and guidelines put in place to protect the historic properties. She thinks the parking problems
will be exacerbated if multi-family structures cover their parking with CIL.
Mr. Michael Smith stated he disagrees with Mr. Anderson’s statements there is a lack of clarity in the
code. Mr. Smith disagrees, and believes the intent from section 26.312.10 is very clear. He stated what
appears as a little change is actually a drastic change.He stated the 1020 E Cooper project is an example
of how a proposal of a five-unit project was turned down because it didn’t meet the guidelines. He
stated the smaller 3,000 SF lots are clearly designed to remain single family because it preserves open
space and ensure housing diversity in the district. He feels if the code was changed, every 24 single-
family lot would be wiped out and it would encourage the delisting of historic lots. He encourages more
study on the topic.
Ms. Monique Agnew stated she is a design professional and has done work in the east end. She feels the
east end is incredibly congested and doesn’t see how the proposal mitigates parking. She is against the
proposed code change and agrees with the other commenters.
Mr. Raymond Stover feels the impacts of the code change are unknown and more study is needed.
Mr. Stephen Abelman is opposed to the zoning change and agrees with his colleagues on all their points.
He feels the proposed change will be too dense.
Mr. Thatcher Spring, 1001 E Cooper Ave, understands the AH challenges and believes the City should
continue to look for opportunities, but he is opposed to this proposal. In regard to the mass and scale
renderings provided by Mr. Bendon, he feels they dramatically understate what could actually be done if
built to fullest extent proposed. He also feels the preservation of the historic resources is very
important. He also believes the proposed code change will affect some neighborhoods
disproportionately more than others. He also believes the community needs to be more educated on
the potential impacts.
Ms. Tiffany Smith does not support the code change. She does not believe it is a good idea to squeeze
multi-unit complexes beyond a duplex on lots smaller than 6,00 SF. She added the smaller lots are a way
to control density and unwieldy development on undersized lots. She feels some of the large lot lined
complexes that exist now were clearly mistakes. It is her experience there are many full-time residents
and workers, both homeowners and renters, already live in her neighborhood as well as second
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Minutes Aspen Planning and Zoning Commission April 20, 2021
Page 15 of 18
homeowners who spend a lot of time in Aspen and don’t rent out their homes. She believes the survey
responses show there is no support for increased density or the code change. She does not believe this
is a wise way to try to resolve the AH issues. She stated residents and visitors of Aspen don’t want to live
in a crowded, congested city where there’s constant traffic, long lines, no parking and crowded soulless
apartment complexes where illnesses spread quickly, and the streets are dark.
Ms. Julie Peters lives in AH across from Su Lum’s house and she agrees with her neighbor’s comments
but wanted to reiterate the parking is difficult. She is opposed to the code change.
Mr. Marcoux motioned to extend the meeting for a half hour. Ms. McGovern seconded the motion.
Mr. McKnight requested a roll call for extending the meeting: Roll Call: Mr. Marcus, yes; Ms. McGovern,
yes; Ms. Carver, yes; Mr. Dupps, yes; Mr. Marcoux, yes; Mr. McKnight, yes; for a total of six (6) in favor –
zero (0) not in favor. The motion passed.
Mr. McKnight closed public comment.
Mr. Bendon requested time to respond to the public comments. Mr. McKnight allowed for his response.
Mr. Bendon wanted to make sure everyone knows the hearing tonight is not the 1020 E Cooper project.
He noted the timing is awkward, but it is not the same person. He added it is attractive to look at doing
everything holistically, but the applicant will build a SFH or a MFH and doesn’t feel the applicant can
wait for the code to change holistically. He added he benefitted by living in AH for 10 years and noted it
wasn’t a ghetto. He appreciated folks who spoke on his behalf before he lived here.
Mr. Supino stated there were a couple of comments he felt compelled to respond to as well. He stated
there was a suggestion that somehow the city was supportive or complicit in allowing the applicant to
use an LLC to not engage in the community conversation around this topic and he pointed out LLC laws
are state and federal laws which the city complies with in respect to allowing LLC’s to own and manage
property and conduct business in the City. He stated the suggestion the City is supportive allowing
property owners to hide from the public process does not commensurate with any of our expectations
for community members participating in a community process.
Mr. Supino stated he and the City roundly reject the comment suggesting that AH and MFH
development are ghettos or that the City’s development and zoning regulations would allow for a ghetto
as defined in the dictionary.
Mr. Supino responded to a comment there is a double standard being applied to MFH versus SFH, that
there are clear regulations in the zoning code in growth management in every aspect of the City’s land
use regulations that are applied in a uniform basis toevery type of development the City considers
anywhere in the community. He added those regulations are all approved by the boards and Council
members who are community residents.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. Supino reiterated this application is not the 1020 E Cooper Ave application and it has a separate
property owner and there is no direct relationship whatsoever between the two applications. And in
regard to a possible conspiracy, he doesn’t pass the test of the integrity by which City Planning and
Community Development Staff and the citizen board members conduct themselves.
Mr. McKnight then opened for commissioner comments.
Mr. Dupps feels the outreach for the project was fair and thorough. He stated parking is always an issue
P&Z is dealing with at hearings and there is no silver bullet to fix parking and other issues that come up
with high density development. He believes there is adequate infrastructure to support people to live in
these units without cars which he does. He sympathizes with the public member’s parking concerns but
feel it is server very well and capably. He feels this is a code clean-up to allow for lots smaller than 6,00
SF that should have been probably allowed from the beginning because of the 3,000 SF lots in Aspen. He
stated the 32 FT height and densities are allowed by code and people bought into the neighborhood
where the districts have been established for a very long time.
Ms. Carver feels this needs a lot of clarity with the community and it will be a mistake to suggest P&Z
agrees with this at this point in time. She feels the City needs more AH and stated the 1020 E Cooper
Ave property is a bit of fresh air between two really big apartment buildings. She also feels every unit in
town should have a parking space. She feels it should wait for the zoning to be done entirely and would
like to see it prioritized to be done within the next year. She doesn’t want to see a wall of buildings as
you go up to Independence. She will not support it at this time.
Ms. McGovern stated at this point she is not ready to support the code change. She doesn’t feel it is
about a specific lot and needs more research. If the propose change was to specify affordable multi-
family or deed restricted, she would support it.
Mr. Marcus feels conflicted but believes this is a neighborhood where he supports the City’s general
position to needing cars. He understands this is a big ask for people. In regard to density, he is pro
density. He doesn’t feel Aspen is becoming Vail, but it is important to provide opportunities for young
people to have housing in town. He believes this neighborhood is ripe for rethinking of how the space
can be used more efficiently. In his opinion, building a $15 million spec home provides zero benefit to
the town. His biggest issue is that employee housing would not be required to be built onsite. He would
not want to see more density created for more second homeowners to sit empty or become rental
units. He would be interested if the other commissioners would want to add something as a condition in
the recommendation. He agrees that 32 FT height and 5 FT setbacks on a 30 FT by 100 FT lot could be
overwhelming.
Mr. McKnight stated he agrees with the remarks made by Ms. McGovern and Mr. Marcus and feels
more study is required. He appreciates the applicant making the effort but doesn’t feel the proposed
change helps with AH in town. Currently, he does not support the code change.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. Marcoux stated he is also against the proposed code change for the same reasons identified by
other commissioners. He went back and forth on it but appreciates the information provided at the
hearing and discussion with the other commissioners.
Ms. Carver feels density should be less on the smaller lots and require AH onsite. She doesn’t want to
see more empty houses. She would like to see smaller sizes allowed on the smaller lot.
Mr. Anderson stated it seems clear there is not support for the resolution as written. He stated although
the commission could specify additional conditions on the resolution to change densities and require
onsite AH, he doesn’t know if this is something the applicant wants to pursue.
Mr. McKnight stated that having these other items in the application would have given him pause but he
still feels it would not change his position that more study is needed.
Mr. Bendon suggested any thought of a MFH project without AH would not happen. He stated if the AH
does need to be on the property, the applicant would be fine with it.
Mr. McKnight asked the commissioners if there was anything else that would change their minds.
Mr. Dupps feels AH is something that needs to be cleaned up. He believes the program needs to become
more attractive to encourage developers to want to do AH and these types of projects to increase
density. He feels this is an opportunity to do something for AH as it is one of Council’s important
directives.
Mr. Marcus seconds what Mr. Dupps stated. He thinks we need to look at opportunities to get densities
in areas that make sense for additional AH and incentivizing developers to provide density in
appropriate areas. He feels Aspen is changing over time and have different needs. He feels Aspen has
plenty of large SFH. He would support the application if the AH was required to be on site.
Ms. McGovern asked Mr. Anderson how this would be written in the code because it is very specific that
we're changing the minimum gross lot area allowed in the zone district. She likes what has been
suggested but is concerned about the path they are going down. Mr. Anderson stated creative one-off
code changes have been historically difficult to administer over time. He would hesitate to put language
around the proposed change other than a general concept for Council’s consideration. He suggested
framing it as the onsite AH is a desired outcome of P&Z if the code change was to be considered. Ms.
McGovern still feels this small change could have ripple affects to the code. Mr. Anderson feels this
could lead to a more complex code change that what is currently being proposed. He added a general
support statement would be appropriate.
Ms. Carver still feels there should be less density, less height and fewer units on the smaller lots. She
also feels AH should be onsite.
Mr. McKnight still feels it is not appropriate at this time.
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Minutes Aspen Planning and Zoning Commission April 20, 2021
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Mr. McKnight asked if anyone wanted to make a motion.
Mr. Bendon asked if there needs to be a consolidated statement or if the individual comments are
sufficient to share with Council. Mr. Anderson stated in lieu of having a clear recommendation either in
support or against this proposal, he feels it is also an option to provide the individual comments to
Council.
Ms. Carver moved to not approve the resolution and to provide the comments to Council.
Ms. McGovern motioned to extend the meeting for 15 minutes and was seconded by Ms. Carver.
Mr. McKnight requested a roll call for extending the meeting: Roll Call: Mr. Dupps, yes; Mr. Marcoux,
yes; Mr. Marcus, yes; Ms. Carver, yes; Ms. McGovern, yes; Mr. McKnight, yes; for a total of six (6) in
favor – zero (0) not in favor. The motion passed.
Mr. Marcus moved to have the commissioner’s comments provided to Council for consideration without
a resolution. Mr. Marcoux seconded Mr. Marcus’s motion.
Mr. McKnight requested a roll call for extending the meeting: Roll Call: Ms. Carver, yes; McGovern, no;
Mr. Dupps, yes; Mr. Marcoux, yes; Mr. Marcus, yes; Ms. Mr. McKnight, yes; for a total of five (5) in favor
– one (1) not in favor. The motion passed.
Mr. Dupps motioned to adjourn and was seconded by Ms. McGovern. All in favor. The meeting was
adjourned at 8:46 PM.
Mr. Supino thanked the commissioners for their service.
OTHER BUSINESS
None
Cindy Klob, Records Manager
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Page 1 of 5
MEMORANDUM
TO: City of Aspen Planning and Zoning Commission
FROM: Michelle Bonfils Thibeault, Planner II
THRU: Amy Simon, Planning Director
MEMO DATE: April 20, 2021
MEETING DATE: June 1, 2021
RE: 1050 Waters Ave #13, Special Review - Stream Margin Review Standard Variance
APPLICANT:
Andrew & Ivette
Rothschild
REPRESENTATIVE:
Chris Bendon,
BendonAdams
LOCATION:
1050 Waters Ave. #13
CURRENT ZONING &
USE
This property is located in
the Residential Multi-
Family (R/MF) zone
district and is developed
with an existing 16-unit
multi-family residential
building.
PROPOSED LAND USE:
The Applicant is
requesting a Stream
Margin Variance to allow
for alterations to an
existing deck. The
proposed deck
improvements increase a
non-conforming structure
that is within the restricted
Top of Slope 15’ Setback.
STAFF RECOMMENDATION:
Staff recommends the Planning and Zoning Commission deny the request
for a Stream Margin Exemption and require the applicant to restore the
deck to the original condition documented by the plat recorded in 1971 .
Figure 1. 1050 Waters Ave. Aerial Image:
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Page 2 of 5
LAND USE REQUEST AND REVIEW PROCEDURES:
The Applicant is requesting the following land use approval from the Planning and Zoning Commission:
• Special Review (Pursuant to Land Use Code Section 26.435.040.E): An application requesting a
Stream Margin Review variance to continue the encroachment of the deck in the Top of Slope
Setback, including recent modifications, which requires Special Review by the Planning and Zoning
Commission. The Planning and Zoning Commission is the final review body.
SUMMARY OF PROJECT:
EXISTING CONDITIONS: The subject property is located within the 16-unit multi-family housing complex
known as the Aspen Townhouses By the River Subdivision, located at 1050 Waters Ave, Unit #13. The
property is zoned Residential Multi-Family (R/MF). The building was approved in 1970, prior to the adoption
of Stream Margin Review Standards. The entirety of the development resides within the flood plain. The
majority of the subject building is within the 100’ Stream Margin Review area and projects into the 45-
degree progressive height limit and is considered a legal non-conforming structure due to the presence of
the structure on the top of the slope.
The subject property received a correction notice for work beyond an approved building permit for
replacement windows. Of the violations beyond the building permit approval were improvements to the
deck including replacement of structural supports, exterior stairway, pergola style architectural details over
the deck and privacy walls. Staff review of the building permit violations revealed no approval is recorded
for the current size or configuration of the oversized deck at unit #13 or its neighbor unit #15. Application
of the land use code requires a stream margin review for consideration of the deck at unit #13 in its current
configuration to be approved.
The property is entirely within the flood plain and the Top of Slope intersects the property. The land use
code prohibits development within 15’ setback from the Top of Slope, with the exception of native
vegetation planting. Figure 2 shows the Top of slope and the existing building footprint (excluding decks)
that are in conflict with the Stream Margin review standards are shown in yellow. The property was
developed prior to the adoption of these Stream Margin Review standards and is considered non-
conforming. The land use code prohibits enlargement or expansion that increases a nonconformity.
Figure 2. 1050 Waters Ave. #13 Top of Slope Map:
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Page 3 of 5
PROPOSAL:
The applicant proposes to maintain a deck and associated improvements including a pergola, divider
screening, resurfacing and structural support. The applicant has provided a survey of existing conditions
in 2019 prior to the current improvements being constructed.
The area identified in red in Figure 3, below, identifies the increased deck size, documented in the 2019
survey of existing conditions and proposed to be maintained. The area in blue identifies the last approved
deck size for the subject property according to the 1970 Amended Plat recorded December 2, 1971 in
Book 4 Page 227.
Figure 3. 1050 Waters Ave. #13 Existing versus Approved deck sizes:
In 2019, Unit 13 received a building permit from the City of Aspen to replace windows. On July 6, 2020,
City staff discovered that the scope of the permit was exceeded by replacement of an existing slider
door/window combination with a floor to ceiling slider door. Additionally, extensive unpermitted work was
observed including work on a deck, adding walls, a pergola style roof, and a set of stairs down to the river
with a small concrete landing.
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Page 4 of 5
As was established with the Stop Work Order, the property owner had until July 20, 2020 to either initiate
the removal of the unapproved work by applying for a permit to remove the unpermitted work, or to indicate
to the Chief Building Official that the owner will be pursuing the Stream Margin Review land use process
described in a Pre-application Summary.
Expansion or redevelopment of the deck beyond the approved dimensions in recorded Plat Book 4 Page
227-229, Reception No. 143178 requires land use approval. It is acknowledged that the Stream Margin
Review criteria did not exist at the time of original approval of this project. No approval, building permit or
otherwise is documented for the expansion of the deck from the original approvals of allowing for a 15ft x
4.33ft patio/deck.
STAFF COMMENTS:
Special Review:
The application is subject to Stream Margin Review and does not qualify for a Stream Margin Exemption
because the proposed alterations result in development closer to the Roaring Fork River. Stream Margin
Review Standard 26.435.040.C.8 prohibits all development within a 15’ Top of Slope Setback, except for
native vegetation planting. The proposed alterations to the deck do not meet the Stream Margin Review
criteria since additional development is proposed that increases the non-conforming development in the
Top of Slope Setback. In addition, Nonconforming Uses Standard 23.312.030.(c), prohibits enlargement
or expansion that increases the nonconformity.
Section 26.435.040.E, Special Review, requires the Planning and Zoning Commission (P&Z) review
applications that do not comply with the Stream Margin Review Standards. There are two review criteria
for Special Review. The first standard addresses alternative a new Top of Slope determination, which is
not included in this request. The second addresses applications that do not comply with the Stream Margin
Review Criteria.
2. The proposed development meets the stream margin review standard(s) upon which the Community
Development Director had based the finding of denial.
Staff has found the application does not meet the review standards for Stream Margin Review since the
application proposes to increase the elements within the Top of Slope Setback. Detailed responses to the
review criteria can be found in Exhibit A.
Staff acknowledges the wood decks require maintenance; however, the proposed increased deck area,
pergola detail and barrier walls increases the encroachments into the Top of Slope and is not required for
building code compliance but is requested as a matter of preference. Even at the time of construction,
there was increasing concern, as expressed in meeting minutes of the Planning and Zoning Commission
from 1971 provided in the application, about development encroaching on the river. Restricting or outright
prohibiting the environmental and visual impacts from building and occupying spaces in this proximity to
the Roaring Fork River have been a long-standing community priority. Although residents in the area recall
the subject deck size being in place for some time and do not object to it, the existing deck is not what is
on record as approved and staff finds no basis for accepting it as so. Other properties subject to Stream
Margin review are consistently not permitted to construct any improvements below the Top of Slope, as
requested in this application.
REFERRALS:
The application was referred to the Building and Engineering Departments for review.
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Page 5 of 5
The Building Department provided the following comments:
• The scope for the 2019 building permit issued was “replacing 3 windows like for like, style for style
and color for color and 1 sliding door. We will be removing current 3 panel slider and fixed window
above. We will be building in the opening by approx. 7” per side and installing 95“ Narrow line and
95” picture window above”.
• Red Tag was issued for the rebuilding of the deck, added pergola feature over the back door onto
the deck, added wing walls on the deck between this unit and the adjacent units, and built stairs
and a landing into the stream margin off of the deck down to the river. The illegal work has not been
legally established at this time.
• A building permit is required to remove illegally constructed items below edge of deck (wood
landing, steps, and concrete).
Engineering provided the following comments:
• The deck is not an approved remodel/expansion. The deck extended the structure farther towards
the high-water line than the original building footprint. There is no evidence that this was approved
and now a non-conformity.
• This is direct violation of municipal code (Sec. 26.435.040 Part B.3.C).
• The Engineering Dept defines Top of slope where there is a break in the grade. On this property
the top of slope is on the western half of building footprint.
• Most of the building is beyond the top of slope line.
• Everything must be removed from floodplain (wood landing, steps, and concrete).
• Provide a restoration plan for revegetation
RECOMMENDATION: The Community Development Department Staff recommends the Planning and
Zoning Commission deny the proposed request for Special Review requesting a variance from the Stream
Margin Review Standards to allow for a nonconformity to be enlarged within the Top of Slope Setback.
Staff recommends that P&Z require the applicant to submit a plan to restore the deck to the original 1971
approved dimension and character, matching the design of other decks on the building.
RECOMMENDED MOTION:
The draft resolution is written in the affirmative. If the P&Z disagrees with Staff’s recommendation and
wishes to approve the current request for Special Review for a Stream Margin Review Exemption,
including the larger deck, the following motion should be used.
“I move to approve Resolution #__, Series of 2021 granting approval for Special Review for a variance
to the Stream Margin Review Standards.
ATTACHMENTS:
Resolution #__, Series of 2021
Exhibit A – Stream Margin Review Criteria
Exhibit B – Stream Margin Special Review - Review Criteria
Exhibit C – Application
Exhibit D – Public Comment
25
P&Z Resolution #__, Series of 2021
Page 1 of 2
RESOLUTION #__
(SERIES OF 2021)
A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION
DENYING SPECIAL REVIEW/STREAM MARGIN APPROVAL FOR THE
PROPERTY LOCATED AT 1050 WATERS AVENUE, UNIT 13, ASPEN
TOWNHOUSES BY THE RIVER CONDOMINIUMS, CITY OF ASPEN, COLORADO
PARCEL ID: 2737-182-40-015
WHEREAS, the Community Development department received an application from
BendonAdams, representing Andrew & Ivette Rothschild, requesting Special Review/Stream
Margin approval to legalize work that was completed without necessary land use and building
permits; and,
WHEREAS, upon review of the application and the Land Use Code standards, and referral of
the application to other City Departments for comments, the Community Development Director
recommended denial; and,
WHEREAS, the City of Aspen Planning and Zoning Commission reviewed and considered
the development proposal under the applicable provisions of the Land Use Code, in particular
Section 26.435.040, reviewed and considered the recommendation of the Community
Development Director and took and considered public comment at a duly noticed public hearing
on June 1, 2021; and,
WHEREAS, the City of Aspen Planning and Zoning Commission finds by a ___ to ___ (x-x)
vote that the development proposal does not meet the applicable review criteria and that denial of
the request is consistent with the goals and objectives of the Land Use Code; and,
WHEREAS, the City of Aspen Planning and Zoning Commission finds that this Resolution
furthers and is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED by the Aspen Planning and Zoning Commission
that:
Section 1:
The City of Aspen Planning and Zoning Commission hereby denies the request for Special
Review/Stream Margin Review approval and require the applicant to submit a permit to restore
the deck to the original 1971 approved dimension and character, matching the design of other
decks on the building. The permit must be submitted within 30 days of this action and must be
pursued in a timely fashion to a Letter of Completion issued by the Building Department.
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P&Z Resolution #__, Series of 2021
Page 2 of 2
Section 2:
All material representations and commitments made by the Applicant pursuant to the development
proposal approvals as herein awarded, whether in public hearing or documentation presented
before the Planning and Zoning Commission, are hereby incorporated in such site development
approvals and the same shall be complied with as if fully set forth herein, unless amended by an
authorized entity.
Section 3:
This resolution shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein
provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held
invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining portions
thereof.
APPROVED by the Commission at its meeting on June 1, 2021.
APPROVED AS TO FORM: PLANNING AND ZONING
COMMISSION:
___________________________________ ________________________
Katharine Johnson, Assistant City Attorney Spencer McKnight, Chair
ATTEST:
____________________________
Cindy Klob, Records Manager
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Exhibit A
Stream Margin Review Criteria
C. Stream margin review standards. No development shall be permitted within the stream
margin of the Roaring Fork River unless the Community Development Director makes a
determination that the proposed development complies with all requirements set forth below:
1. It can be demonstrated that any proposed development which is in the Special Flood
Hazard Area will not increase the base flood elevation on the parcel proposed for
development. This shall be demonstrated by an engineering study prepared by a
professional engineer registered to practice in the State which shows that the base flood
elevation will not be raised, including, but not limited to, proposing mitigation techniques
on or off-site which compensate for any base flood elevation increase caused by the
development; and
Staff Response: The subject property is located within the 16 unit multi-family housing
complex known as the Aspen Townhouses by the River Subdivision. The entirety of the
development resides within the 100’ Stream Margin Review area and is considered a
legal non-conforming structure due to the presence of the structure on the top of the
slope.). Aspen Townhouse by the River Condominiums were constructed in 1970, prior
to the adoption of Stream Margin Review Standards. The improvements under
consideration in this review have already been constructed. Staff does not support
approval of the project, finding that review criteria are not met. An engineering study
of the base flood elevation can be completed as a condition of approval if the project
proceeds.
2. The recommendations of the Aspen Area Community Plan: Parks/Recreation/Open
Space/Trails Plan and the Roaring Fork River Greenway Plan are implemented in the
proposed plan for development, to the greatest extent practicable. Areas of historic public
use or access shall be dedicated via a recorded easement for public use. A fisherman's
easement granting public fishing access within the high water boundaries of the river
course shall be granted via a recorded "Fisherman's Easement;" and
Staff Response: No public use, access, or easements exist on the property. Staff finds this
criterion not applicable.
3. There is no vegetation removed or damaged or slope grade changes (cut or fill) made
outside of a specifically defined building envelope. A building envelope shall be
designated by this review and said envelope shall be designated by this review and said
envelope shall be recorded on a plat pursuant to Subsection 26.435.040.F.1; and
Staff Response: The applicant received approval for a Stream Margin Exemption,
Remodel of an existing legal non-conforming structure, and a Residential Design
Standards Exemption to replace three (3) existing windows and one (1) existing patio
door with new windows and a new door. The Applicant had represented that only
replacement of fenestration would occur and that there would be no change, addition,
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or expansion of framing or fenestration as a whole. The Notice of Approval was
recorded with the Pitkin County Clerk and Recorded as Reception No. 657652 on August
2, 2019.
In 2019, Unit 13 received a building permit from the City of Aspen to replace windows.
On July 6, 2020, City staff discovered that the scope of the permit was exceeded by
replacement of an existing slider door/window combination with a floor to ceiling slider
door. Additionally, extensive unpermitted work was observed including work on the deck,
adding walls, a pergola style roof, and a set of stairs down to the river with a small
concrete landing. Staff does not know the extent of any vegetation removed by the
project.
As was established with the Stop Work Order, the property owner had until July 20, 2020
to either initiate the removal of the unapproved work by applying for a permit to remove
the unpermitted work, or to indicate to the Chief Building Official that the owner will be
pursuing the Stream Margin Review land use process described in a Pre-application
Summary issued to the property owner.
Staff finds this criterion is not met due to lack of information on the full scope of work.
4. The proposed development does not pollute or interfere with the natural changes of the
river, stream or other tributary, including erosion and/or sedimentation during construction.
Increased on-site drainage shall be accommodated within the parcel to prevent entry into
the river or onto its banks. Pools or hot tubs cannot be drained outside of the designated
building envelope; and
Staff Response: The applicant has noted “bank line marking routine erosion” below the
subject deck.
It has been discovered during this review that the existing deck footprint does not match
the records from the 1970 approval for the building. Past expansion of the deck from
the approved 65 square feet to 189 square feet may have created more on-site drainage
into the river or onto its banks.
Staff finds this criterion is not met. If the work is legalized by an approval by P&Z,
Drainage from the development shall be treated and detained in accordance with the
City of Aspen URMP.
5. Written notice is given to the Colorado Water Conservation Board prior to any alteration
or relocation of a water course and a copy of said notice is submitted to the Federal
Emergency Management Agency; and
Staff Response: No new alteration of the watercourse is proposed. Written notice to the
Colorado Water Conservation Board and the Federal Emergency Management Agency
is not required. Staff finds this criterion is not applicable.
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5. A guarantee is provided in the event a water course is altered or relocated, that applies to
the developer and his heirs, successors and assigns that ensures that the flood carrying
capacity on the parcel is not diminished; and
Staff Response: The proposed development will not newly alter or relocate the existing
water course.
Staff finds the guarantee could be a condition of approval if granted by P&Z.
7. Copies are provided of all necessary federal and state permits relating to work within the
100-year flood plain; and
Staff Response: The subject property is located within the 16 unit multi-family housing
complex known as the Aspen Townhouses by the River Subdivision constructed in the
early 1970’s. The entirety of the development resides within the 100’ Stream Margin
Review area and is considered a legal non-conforming structure due to the presence of
the structure on the top of the slope.
After the building’s approval and construction, no documentation of approval for
increasing the nonconformities of the building, particularly the size of the subject deck,
are documented.
Staff finds this criterion not met.
8. There is no development other than approved native vegetation planting taking place below
the top of slope or within fifteen (15) feet of the top of slope or the high waterline,
whichever is most restrictive. This is an effort to protect the existing riparian vegetation
and bank stability. New plantings (including trees, shrubs, flowers and grasses) outside of
the designated building envelope on the river side shall be native riparian vegetation as
approved by the City. A landscape plan will be submitted with all development
applications. The top of slope and 100-year flood plain elevation of the Roaring Fork River
shall be determined by the Stream Margin Map located in the Community Development
Department and filed at the City Engineering Department; and
Staff Response: The proposed deck represents an expansion from the recorded approval
of 65 square feet to 189 square feet. This increases the extent of the development below
the top of slope line, which is not permitted for new work.
Staff finds this criterion not met.
9. All development outside the fifteen (15) foot setback from the top of slope does not exceed
a height delineated by a line drawn at a forty-five (45) degree angle from ground level at
the top of slope. Height shall be measured and determined by the Community Development
Director using the definition for height set forth at Section 26.04.100 and method of
calculating height set forth at Section 26.575.020 as shown in Figure "A"; and
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Staff Response: The existing structure projects into the restricted height area as defined
by this standard. The proposed deck increases the projection of the deck structure into
the area of progressive height limit. Staff finds this criterion not met.
10. All exterior lighting is low and downcast with no light(s) directed toward the river or
located down the slope and shall be in compliance with Section 26.575.150. A lighting
plan will be submitted with all development applications; and
Staff Response: A lighting plan has not been submitted. Compliance with the Outdoor
lighting regulations would be confirmed at building permit.
11. There has been accurate identification of wetlands and riparian zones.
Staff Response: The applicant has indicated that there are no wetlands or riparian zones
located within the property, and staff has no information to the contrary.
Staff finds this criterion met.
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Exhibit B
Special Review Criteria
Sec. 26.435.040. Stream margin review.
E. Special review. An application requesting a variance from the stream margin review standards
or an appeal of the Stream Margin Map's top of slope determination, shall be processed as a special
review in accordance with common development review procedure set forth in Chapter 26.304.
The special review shall be considered at a public hearing for which notice has been published,
posted and mailed, pursuant to Subsection 26.304.060.E.3 Paragraphs a, b and c. Review is by the
Planning and Zoning Commission.
A special review from the stream margin review determination may be approved, approved with
conditions or denied based on conformance with the following review criteria:
1. An authorized survey from a Colorado professionally licensed surveyor shows a different
determination in regard to the top of slope and 100-year flood plain than the Stream Margin
Map located in the Community Development Department and filed in the City Engineering
Department; and
Staff Response: The Top of Slope is not in question and no change is proposed. The
subject property is located within the 16-unit multi-family housing complex known as
the Aspen Townhouses by the River Subdivision constructed in the early 1970’s. The
entirety of the development resides within the 100’ Stream Margin Review area and is
considered a legal non-conforming structure due to the presence of the structure on the
top of the slope. Staff finds this criterion is not met.
2. The proposed development meets the stream margin review standard(s) upon which the
Community Development Director had based the finding of denial.
Staff Response: In 2019, Unit 13 received a building permit from the City of Aspen to
replace windows. On July 6, 2020, City staff discovered that the scope of the permit was
exceeded by replacement of an existing slider door/window combination with a floor to
ceiling slider door. Additionally, extensive unpermitted work was observed including
work on a deck, adding walls, a pergola style roof, and a set of stairs down to the river
with a small concrete landing.
As was established with the Stop Work Order, the property owner had until July 20, 2020
to either initiate the removal of the unapproved work by applying for a permit to remove
the unpermitted work, or to indicate to the Chief Building Official that the owner will be
pursuing the Stream Margin Review land use process described in a Pre-application
Summary issued to the applicant.
Subsequently, it was determined by staff that the subject deck which was altered in
2019/2020 had been previously enlarged without a permit at some time in the past. As a
result, it was not a legally established non-conformity and the proposed development
does not meet the review criteria of Section 26.435.040.C., Stream Margin Review. The
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proposed alterations increase the deck within the Top of Slope Setback and 45-degree
top of slope progressive height limit, which is not permitted. Staff finds this criterion is
not met.
3. The expansion, remodeling or reconstruction of an existing development provided the
following standards are met:
a. The development does not add more than ten percent (10%) to the floor area of the
existing structure or increase the amount of building area exempt from floor area
calculations by more than twenty-five percent (25%). All stream margin
exemptions are cumulative. Once a development reaches these totals, a stream
margin review by the Planning and Zoning Commission is required; and
Staff Response: Documentation in the form of certified surveys of conditions prior to the
unauthorized deck replacement, privacy walls, and pergola feature are non-existent. The
last documentation of official record for unit 13 is an amended plat recorded November
18, 1970 with the Pitkin County Clerk and Recorded as Reception 148827 Book 4 Page
227. This most recent plat describes the decks as Limited Common Elements, sized 15’ by
4.33’ for a total of 64.95 square feet. The current deck is 189.1 sq.ft. or 66% increase in
size. The current deck is approximately seven (7) feet closer to the stream margin than
the recorded approvals allowed for. Staff finds this criterion is not met.
b. The development does not require the removal of any tree for which a permit would
be required pursuant to Chapter 13.20 of this Code.
Staff Response: Tree removal is not in question and no change is proposed. Staff finds
this criterion is not applicable.
c. The development is located such that no portion of the expansion, remodeling or
reconstruction will be any closer to the high-water line than is the existing
development;
Staff Response: The entirety of the development resides within the 100’ Stream Margin
Review area and is considered a legal non-conforming structure due to the presence of
the structure on the top of the slope. Per Section 23.312.030.(c), a nonconforming
structure shall not be extended by an enlargement or expansion that increases the
nonconformity. There is no documentation of when the deck footprint changed from the
recorded approval. The significant change in the length of the deck adds more
development along the stream margin than the recorded approval provides for. Staff
finds this criterion is not met.
d. The development does not fall outside of an approved building envelope if one has
been designated through a prior review; and
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Staff Response: There is not an approved building envelope for this property. Staff finds
this criterion is not applicable.
e. The expansion, remodeling or reconstruction will cause no increase to the amount
of ground coverage of structures within the 100-year flood plan.
Staff Response: The entirety of the development resides within the 100’ Stream Margin
Review area and is considered a legal non-conforming structure due to the presence of
the structure on the top of the slope. Per Section 23.312.030.(c), a nonconforming
structure shall not be extended by an enlargement or expansion that increases the
nonconformity.
The proposed deck represents an expansion from the recorded approval and is an
enlargement or expansion that increases the nonconformity.
Staff finds this criterion is not met.
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October 5, 2020
Updated April 14, 2021
Michelle Bonfils Thibeault
Community Development
City of Aspen
130 So. Galena St.
Aspen, CO 81611
RE: 1050 Waters Avenue #13 – Stream Margin Special Review
Ms. Bonfils Thibeault:
Please accept this amended application for a
Stream Margin Special Review for the deck and
associated improvements at 1050 E. Waters
Avenue, Unit 13. This request follows issuance
of correction notice issued by the City of Aspen
for work being accomplished without a permit.
The work was performed in the Spring/Early
Summer of 2020. Pictures and survey
documentation prior to this work establish the
previous conditions. A current survey and
pictures of the installed improvements are also
provided.
In an effort to remedy the correction notice and memorialize the existing decks staff
directed the owners of Unit 13 to apply for a Stream Margin Exemption. However, early
review of the application materials and the lack of documented history of the building
raised questions around the floor area and deck allowances for the whole property and
the review was adjusted to a Stream Margin Special Review.
Due to the fact that the decks for Unit 13 and Unit 15 are adjacent and in the same
proximity to the Roaring Fork River, the City has asked the owner of Unit 15 to also apply
for Special Review so that the decks can be assessed simultaneously before the Planning
and Zoning Commission.
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Property History
The 1050 Waters Avenue property was constructed in the late 1960s/early 1970s, by Harry
Uhlfelder, prior to many of the land use code measures that are in place today – including
the requirement for property surveys, the Universal Building Code and Stream Margin
regulations.1
An excerpt from the minutes of a July 1971 Planning and Zoning Commission meeting
reference that the building permit for the property was obtained March 9th 1970, and the
regulations went into effect on April 20th. The UBC and property survey requirements were
adopted after the permit for the 1050 Waters project was already issued.
While the building and land use files are sparce from this time period – the project team
has found Planning and Zoning minutes from 1968 and 1971 that reference the project’s
construction, and a pre-1990 permit file that has the final inspection listed as January 21st
1972 and Certificate of Occupancy signed January 26th 1972. The condo plat (Book 4
Page 227) for the building containing Units 9-16 was filed with Pitkin County on November
26, 1971.
Historical Documentation
The expansion of the decks on Unit 15 and Unit 13 appear to be a very early modification
to the building. In fact, we suspect the decks could have been built as a site adjustment
during the initial construction. Supports for both decks and the decking on Unit 15’s deck
appear to be vintage 1970’s construction. (Unit 13’s deck has been resurfaced).
2006 – Present
The Rothschilds, owners of Unit
13, purchased Unit 16, which
sits above Mr. Tye’s Unit 15 in
2006 and initiated renovation.
The renovation plans in the
building permit file, designed by
Rowland and Broughton, clearly
illustrate the Unit 15 deck in its
current configuration with the
staircase heading down
alongside the south elevation of
the property. The Rothschilds
have also submitted an affidavit
attesting to the presence of the
decks in their current
configuration.
1 Building permit for 1050 issued March 1970 – UBC and survey regulations relative to Stream Margin Review
went into effect in April 1970
Unit 15 deck in current configuration from 2007 drawing set
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1050 Waters Ave #13
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1996 – Present
Mark Tye, owner of Unit 15, provided an affidavit attesting to his
knowledge of the property – stating that there have not been any
changes to the dimensions of the decks under his ownership. Mr. Tye
purchased the property in 1999 from his then girlfriend, who had lived
in the unit since late 1996/early 1997. An appraisal of the property was
conducted at the time of purchase which confirms the decks at their
current configuration and dimensions. The assumption of value
recognized the deck as part of the overall property, although a discrete
value of the deck was not cited.
1990 – Present
Owner of Unit 10 since 1990, Edward Sullivan, attests that to his
knowledge and recollection, the decks in question have always been
in their present size. Owner of Unit 9 since 1991, Annilese Chumley,
also attests to the best of her recollection that these decks were
“were always big.”
To date, there have been 6 unique owners of the Unit 13
property, and 3 unique owners of the Unit 15 property.
The project team has attempted to track down contact
information for each of the owners including the two
original owners of the units to gain further information –
contact was attempted by telephone and mail.
At time of submission of the application we were
unsuccessful in reaching either of the original unit
owners, however, given the dimension of the decks is
nearly identical we believe that they would have been
installed at/or around the same time. The dimensions of
the decks are roughly the same – approximately 12 by 15
feet each or about 180+/-square feet each.
1967 – present
While not an owner at the Aspen Townhomes by the River, William “Scott” Geary and
Wendy Geary (owners of the small A-frame house at 1102 Waters Avenue) have provided
a statement stating that their “house was built in 1967, and as a younger man, Scott
remembers the Townhomes by the River being built with decks –that they had a great view
from their back deck looking North on the Roaring Fork River and the Townhomes. Over
Unit 15 Deck Configuration from
1999 Appraisal
Current picture of Unit 13 Deck (stairs to
be removed)
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1050 Waters Ave #13
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the last 38 years they have
spent a major part of their time
in Aspen and recall the two
larger decks that are towards
the south side of the building.”
According to Scott and Wendy
Geary, “these two decks were
always larger than the other
decks since they are built over
ground and not the river.”
Floor Area
On behalf of the applicants, BendonAdams commissioned Red Room Design, local
Architects with expertise in measuring floor area of properties and existing conditions.
While accessing the interior all of the units was not possible, the calculations measure
exterior wall to exterior wall and include the existing deck areas on site.
The gross lot size is 21,929 SF based upon the survey dated September 3rd, 2020, which
allows for a FAR of 1.25:1 based upon 16 units on site – per code Section
26.710.090D.10.d. The property is allowed 27,411.25 square feet of development,
significantly above the gross and estimated Floor Area measured on the property.
Table 1: Floor Area Calculations
Building Units Gross FA (sf) Estimated FA (sf)
1 8 11,738.2 9,258.5
2 8 8,312.8 7,209.35
Totals 20,051sf 16,467.85sf
Table 2: Gross Deck Calculations
Building Deck Tally Across all
Units (sf)
1 896
2 843.3
Total Existing 1739.3
15% Allowable
Exemption
Based on Allowed FA
4,111
Google Earth view of 1050 and
1102 Waters Ave
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1050 Waters Ave #13
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This information clearly shows that even at gross estimates of the floor area, assuming
little to no exemptions, the property is significantly under zoning allowances for the RMF
Zone District. The decks are well within the 15% exemption threshold allowed and do not
present any challenges to the dimensional provisions for the RMF Zone District. No
expansion in floor area was created by the recladding of the deck on Unit 13.
Stream Margin Review
This application is subject to the Special Review Criteria in Code Section 26.435.040(e)
where an application requesting a variance from the stream margin review standards or
an appeal of the Stream Margin top-of-slope determination, shall be processed as a
special review in accordance with common development review procedures and may be
approved, approved with conditions, or denied based on conformance on the review
criteria.
Unique to these properties is their construction prior to these regulations coming into effect
– the byproduct of which can be seen throughout town along the Roaring Fork River. In
our research of available public files there is only one other property of similar
circumstance that the applicant believes would serve as a precedent for both staff and the
Planning and Zoning Commission in their review of this property.
Land Use Precedent
In early 1992, Unit 25 of 1028 E Hopkins (Riverview
Association), was cited for replacing an existing deck without
applying for a permit. A permit was submitted and rejected by
the Zoning officer and the project was deemed subject to
Stream Margin Exemption Review for ‘replacing a
deteriorated deck and installing a stairway’ due to the unit’s
location being within 100 feet of the Roaring Fork River.
The aerial to the right illustrates the proximity of the building
to the Roaring Fork River, and the location of Unit 25 within
the building. This is very comparable to the placement of
Units 13 and 15 of 1050 Waters.
Planning and Engineering staff found that the property had
replaced the deck in the same exact location and in the same
dimensions as the previous deck. Furthermore, their review
found that there were no property setback violations, that the
Floor Area and site coverage were not affected, and that the
deck was not in a trail easement nor would it retain more flood
debris than the previous deck. Although without a previous
Stream Margin approval, the reconstructed decks was
recognized as an existing condition and approved to remain.
1028 East Hopkins Unit 25 Location of
Deck and Staircase to River
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The full set of Stream Margin Exemption Review criteria applicable to the 1028 project are
listed below:
Exemptions. The Community Development Director may exempt the following
types of development within the stream margin
review area:
a) The development does not add more than
ten percent (10%) to the floor area of the
existing structure or increase the amount of
building area exempt from floor area
calculations by more than twenty-five
percent (25%). All stream margin
exemptions are cumulative. Once a
development reaches these totals, a stream
margin review by the Planning and Zoning
Commission is required; and
b) The development does not require the
removal of any tree for which a permit
would be required pursuant to Chapter 13.20 of this Code.
c) The development is located such that no portion of the expansion, remodeling
or reconstruction will be any closer to the high-water line than is the existing
development;
d) The development does not fall outside of an approved building envelope if one
has been designated through a prior review; and
e) The expansion, remodeling or reconstruction will cause no increase to the
amount of ground coverage of structures within the 100-year flood plan.
The project at 1028 E Hopkins was approved as built with the staircase – and granted a
permit to memorialize the replacement of the deck and creation of the stairs. The project
team believes that this land use case – with all of its similarities – provides a strong basis
for approval and memorialization of the existing decks at 1050 Waters Avenue.
1050 Waters Avenue
As mentioned above, the application for Unit 13 at 1050 Waters Avenue was initially
accepted by the City as a Stream Margin Exemption Review. The staff and applicant had
discussed removal of the stairs (as they are new construction) and processing the
remaining elements as a Stream Margin Exemption. Staff later staff pivoted the review to
a Stream Margin Special Review.
Where Stream Margins Exemptions are typically utilized for updates to previously
completed work – Special Reviews are used for authorizing a new ‘top of slope’ and an
appeal to a finding of Denial by the Community Development Director. Responses to the
full Stream Margin Review and Special Review are outlined in Exhibit 1.
Roaring
Fork River
Deck + Stair
Figure 6: Proximity of Unit and deck at 1028 E Hopkins to
Roaring Fork River.
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1050 Waters Ave #13
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Please note that while this application responds to the City’s request for additional
information, many of the review standards do not apply to this circumstance. There is no
new top of slope being proposed nor is the applicant appealing a finding of denial of
compliance with the Stream Margin Review standards. This application requests
acknowledgement of an existing condition and allowance for improvements within the
existing footprint.
Our team has spoken with City Engineering,
a referral Department, and we understand
that while top of slope can present challenges
based upon where it falls on a property, it is
not looked at as stringently as the FEMA
Floodway which is a secondary measure
utilized to assess properties within the
Stream Margin area.
Using the information available through Map
Aspen, the Floodway crosses both the 1028
E Hopkins and the 1050 Waters Avenue
properties, however, it only intrudes upon a
portion of these properties, and units with
decks in question are outside of the Floodway
areas – another commonality between the
precedent land use case and 1050 Waters
Avenue.
The orange line in the Figures to the right
represent the mapped Floodway along 1050
Waters Avenue and along 1028 E. Hopkins
Avenue. Both properties have similar
orientations to the Floodway and the Roaring
Fork River.
The 1028 and 1050 properties have similar
proximity to the Roaring Fork River. Both
were initially stopped during deck resurfacing
work without a permit and called into question
regarding Stream Margin Review. Both
properties are of the late 60s early 70s
vintage construction and neither was able to
show definitive proof of an original building
permit – at least not with the precision that
today’s permit files offer. Upon review, the
1028 deck was considered to be an existing
Unit 25, 1028 E Hopkins Avenue
Units 13 and 15, 1050 Waters
Avenue
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1050 Waters Ave #13
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condition by the City and allowed to proceed with the deck resurfacing effort.
Given that Aspen continues to evolve, with properties being developed according to the
rules and regulations is effect at the time of their permitting, accommodation of existing
conditions is a necessary component of administering an ever-changing Land Use Code.
This appears to have been the case with the 1028 property – after an initial reaction from
the City there was appreciation and acceptance of the existing condition and
accommodation of the deck resurfacing effort. The deck 1028 deck was acknowledged,
documented, but not allowed to expand.
Unit #13 Deck Resurfacing & Supports. The deck surface and selected supports were
replaced in Spring/Early Summer 2020 in the same dimension and location as the
previous elements. The deck surface and structural members remained within the
footprint of the existing deck.
A survey of the property was performed July 2, 2019, prior to the resurfacing effort. This
survey is attached and a close-up of the deck area is shown below on the left. On
September 2, 2020, the property was again surveyed and the deck area is shown with
the same dimension. This Sept. 2, 2020, survey is attached and a close-up of the deck
area is shown below on the right. Please note that the surveys show the deck areas of
both Unit 13 and the adjacent Unit 15.
July 2, 2019 property survey -
close-up of the deck area Sept. 2, 2020 property survey -
close-up of the deck area
42
1050 Waters Ave #13
Page 9
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Wooden support beams underneath
the decking were selectively replaced
as needed as some were rotten and
considered in need of replacement.
The stairs leading down to the
riverbank are not part of this request
and will be removed.
The picture to the
right highlights new
and old support
structure.
Unit #13 Divider Screening. Existing vertical screening elements on either side of the
deck were augmented in Spring/Early Summer 2020. The enhanced screening is placed
entirely within Unit 13’s existing deck area. The materials and design were updated to
a more-modern style and to enhance privacy. These elements are well within the
footprint of the existing improvements and are non-structural.
Picture showing divider screen
on north side of Unit 13 deck,
circa 2018.
Picture showing divider
screen on north side of Unit
13 deck, Summer 2020.
43
1050 Waters Ave #13
Page 10
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Unit #13 Pergola Detailing. Wooden
detailing was added to the underside of the
deck located above the Unit 13 deck. The
picture to the right shows this wooden
detailing. This detailing is an aesthetic
improvement and has no structural or
functional necessity. This element is well
within the footprint of the existing
improvements.
The continued existence of the Unit 13 deck, with a new surface has no material effect on
river health. The repairs provide long-term function and stylistic improvements to enhance
the appearance of the deck area. Responses to each review criterion are attached to this
application as Exhibit 1. Subsequent to this land use review, the owner will obtain all
appropriate building permits and will perform all requested improvements to obtain needed
life/safety approvals from the City of Aspen.
Summary
The deck appended to Unit 13 has been in its current configuration for a very, very long
time. While the exactitude of a distinct permit for this deck is not in the City’s records,
every point of reference speaks to this deck being developed either with the initial
construction of the 1050 property or very shortly thereafter. The project team has
responded to staff’s three main areas of concern:
1) The owners of Units 13 and 15 have obtained approval from the HOA for deck
configuration and placement extending into the G.C.E of the property. This
approval from the HOA does require the stairs on Unit 13 to be removed – as has
been previously committed by the applicant. A permit will be obtained for this
removal.
2) The floor area exhibits demonstrate property-wide compliance with the RMF Zone
District requirements for both Floor Area and deck area. This application does not
seek additional deck area or seek to expand the property in any way.
3) Finally, the affidavits provided illustrate that these decks have been in place since
inception of the project, or shortly thereafter, and have been relied upon as
essential features of the property in value assessments and various transactions
to subsequent owners of the properties.
Requiring removal of these longstanding decks would be inconsistent with the City’s
handling of the one previous precedent – 1028 E. Hopkins. This inequitable outcome
would create a hardship and financial infringement upon the current owners who
44
1050 Waters Ave #13
Page 11
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
purchased the properties in an ‘as is’ condition and who likely paid a premium for the
square footage associated with these features.
This application requests the memorialization of the longstanding existing condition of the
Unit 13 deck. The resurfacing did not expand the deck area and the aesthetic
improvements arw well within the existing footprint. No new construction is proposed.
Allowing the deck to exist in its current configuration, not expand, is compliant with the
applicable criteria and would be consistent with prior actions of the City.
The property is legally described as Condominium Unit 13; Aspen Townhouse by the River
Condominiums. The property is owned by Ivette and Andrew Rothschild. BendonAdams
has been authorized by the Rothschilds to submit this land use application. Approval from
the Homeowners association has been obtained for the deck and aesthetic features
described in this application.
We believe this application contains the necessary information for a complete and
competent review. Please let us know if additional information is needed. We look forward
to your review and will make ourselves available for any questions or concerns you have.
We can also arrange a site visit at your request.
Kind Regards,
Chris Bendon, AICP
BendonAdams LLC
Attachments:
1. Response to Review Criteria
2. Application Form
3. Authorization to Represent
4. Proof of Ownership
5. Agreement to Pay
6. HOA Form, with deck approval
7. Pre-Application Summary
8. Vicinity Map
9. Site Improvement Survey (2019, 2020 &
2021)
10. Historical Documents – 1050 Waters
11. Historical Documents – 1028 E. Hopkins
12. 2007 Unit 16 plans showing Unit 15 deck
13. Rothchild Affidavit
14. Tye Affidavit
15. Geary Email
16. 1999 Unit 15 Property Appraisal
17. Floor Area Measurements
45
Exhibit 1
Review Criteria
page 1
Sec. 26.435.040. – Stream Margin Review.
(a) Applicability. The provisions of the stream margin review shall apply to all development
within one hundred (100) feet, measured horizontally, from the high water line of the
Roaring Fork River and its tributary streams and to all development within the Flood
Hazard Area, also known as the 100-year flood plain.
(b) Exemptions. The Community Development Director may exempt the following types of
development within the stream margin review area:
(1) Construction of pedestrian or automobile bridges, public trails or structures for
irrigation, drainage, flood control or water diversion, bank stabilization, provided plans and
specifications are submitted to the City engineer demonstrating that the structure is
engineered to prevent blockage of drainage channels during peak flows and the
Community Development Director determines the proposed structure complies, to the
extent practical, with the stream margin review standards.
Response – Not applicable. The documentation of existing improvements
discussed in this application are not civic improvements or flood control
devices.
(2) Construction of improvements essential for public health and safety which cannot be
reasonably accommodated outside of the "no development area" prescribed by this
Section including, but not limited to, potable water systems, sanitary sewer, utilities and
fire suppression systems provided the Community Development Director determines the
development complies, to the extent practical, with the stream margin review standards.
Response – Not applicable. The documentation of existing improvements
discussed in this application are not essential for health and safety reasons.
(3) The expansion, remodeling or reconstruction of an existing development provided
the following standards are met:
a. The development does not add more than ten percent (10%) to the floor area of
the existing structure or increase the amount of building area exempt from floor
area calculations by more than twenty-five percent (25%). All stream margin
exemptions are cumulative. Once a development reaches these totals, a stream
margin review by the Planning and Zoning Commission is required; and
Response – The structure is not proposed for expansion and no increase
in floor area will occur. No expansion of deck area (exempt from floor area)
is proposed. A calculation of floor area and deck area is attached to the
application. Acknowledgement and documenting the existing condition will
not change this measurement.
46
Exhibit 1
Review Criteria
page 2
b. The development does not require the removal of any tree for which a permit would
be required pursuant to Chapter 13.20 of this Code.
Response – The proposal does not require the removal of any trees.
c. The development is located such that no portion of the expansion, remodeling or
reconstruction will be any closer to the high water line than is the existing
development;
d.
Response – No portion of the proposed development is any closer to the
highwater line of the Roaring Fork River than is existing development. The
property was developed in 1970, prior to Stream Margin Review. The point
of the riverbank at which routine water exposure has eroded the soil can
be seen in the two pictures below.
Picture looking north at Unit 13 deck with
Roaring Fork River to right
Picture looking down from Unit 13
deck at the riverbank.
47
Exhibit 1
Review Criteria
page 3
The deck resurfacing effort utilized the same exact footprint as the previous
decking. Some structural supports underneath the deck were replaced.
Shown below, the 2019 survey (left) and 2020 survey (right) demonstrate
how the footprint of the decking has not been expanded. The deck extends
from the face of the building approximately 10’-10”. Together with the
handrail, the improvements extend approximately 11 feet from the face of
the nominal building.
July 2, 2019 property survey -
close-up of the deck area Sept. 2, 2020 property survey -
close-up of the deck area
The privacy screening is likewise
within the footprint established by
the pre-existing deck. The
screening is of a new, more modern
style to provide enhanced
aesthetics and to improve privacy.
The screening is no closer to the
highwater line than existing
development.
48
Exhibit 1
Review Criteria
page 4
Lastly, the pergola-type wooden
accent elements attached to the
underside of the deck above the
Unit 13 deck are no closer to the
highwater line than existing
development. The footprint of the
pre-existing deck is shown on the
2019 survey extending from the
face of the building approximately
11 feet and the wooden accent
elements extend from the face of
the nominal building approximately
5’-4”.
No element of the proposal is any closer to the highwater line than existing
development. The stairs extending from the deck to the riverbank will be
removed.
e. The development does not fall outside of an approved building envelope if one has
been designated through a prior review; and
Response – Not applicable. The property does not have a building
envelope designated through a prior review.
f. The expansion, remodeling or reconstruction will cause not increase to the amount
of ground coverage of structures within the 100-year flood plain.
Response – No increase to the ground coverage will occur. The existing
condition is not proposed to be changed. The finished level of Units 13 and
15 is noted on the survey as being at elevation 7,961ft (MSL) while the
highwater mark is noted on the survey as being at elevation 7,945ft (MSL).
(c) Stream margin review standards. No development shall be permitted within the stream
margin of the Roaring Fork River unless the Community Development Director makes a
determination that the proposed development complies with all requirements set forth
below:
1. It can be demonstrated that any proposed development which is in the Special Flood
Hazard Area will not increase the base flood elevation on the parcel proposed for
development. This shall be demonstrated by an engineering study prepared by a
professional engineer registered to practice in the State which shows that the base
flood elevation will not be raised, including, but not limited to, proposing mitigation
techniques on or off-site which compensate for any base flood elevation increase
caused by the development; and
49
Exhibit 1
Review Criteria
page 5
Response – Not applicable. No development is proposed within the Special Flood
Hazard Area.
2. The adopted regulatory plans of the Open Space and Trails Board and the Roaring
Fork River Greenway Plan are implemented in the proposed plan for development,
to the greatest extent practicable. Areas of historic public use or access shall be
dedicated via a recorded easement for public use. A fisherman's easement granting
public fishing access within the highwater boundaries of the river course shall be
granted via a recorded "Fisherman's Easement;" and
Response – The Open Space and Trails Board does not have any adopted regulatory
plans that affect this parcel. The Roaring Fork Greenway Plan does not appear to be
effective of applicable. This plan is not referenced in the City of Aspen Municipal Code
or the 2012 Aspen Area Community Plan. A search of City ordinances reflects that
this plan was not adopted as a regulatory document and the plan does not appear on
the City’s website. City staff have not been able to locate a copy of this plan. If a copy
of the plan is located, the applicant will review regulatory aspects for applicability to
this property.
3. There is no vegetation removed or damaged or slope grade changes (cut or fill) made
outside of a specifically defined building envelope. A building envelope shall be
designated by this review and said envelope shall be designated by this review and
said envelope shall be recorded on a plat pursuant to Subsection 26.435.040(f)(1);
and
Response – No changes to any vegetation are proposed. This application is limited
to documenting an existing condition.
4. The proposed development does not pollute or interfere with the natural changes of
the river, stream or other tributary, including erosion and/or sedimentation during
construction. Increased on-site drainage shall be accommodated within the parcel to
prevent entry into the river or onto its banks. Pools or hot tubs cannot be drained
outside of the designated building envelope; and
Response – Not applicable. This proposal is limited to documenting existing
conditions and no construction is proposed.
5. Written notice is given to the Colorado Water Conservation Board prior to any
alteration or relocation of a water course and a copy of said notice is submitted to
the Federal Emergency Management Agency; and
Response – No alteration of the water course is proposed. If, in the future, the water
course is altered or relocated the Colorado Water Conservation Board will be provided
written notice with a copy to the Federal Emergency Management Agency.
6. A guarantee is provided in the event a water course is altered or relocated, that
applies to the developer and his heirs, successors and assigns that ensures that the
flood carrying capacity on the parcel is not diminished; and
50
Exhibit 1
Review Criteria
page 6
Response – No alteration of the water course is proposed. If, in the future, the water
course is altered or relocated an appropriate guarantee will be supplied.
7. Copies are provided of all necessary federal and state permits relating to work within
the 100-year flood plain; and
Response – Not applicable. No construction activities are proposed with this
application or planned.
8. There is no development other than approved native vegetation planting taking place
below the top of slope or within fifteen (15) feet of the top of slope or the high
waterline, whichever is most restrictive. This is an effort to protect the existing
riparian vegetation and bank stability. New plantings (including trees, shrubs, flowers
and grasses) outside of the designated building envelope on the river side shall be
native riparian vegetation as approved by the City. A landscape plan will be
submitted with all development applications. The top of slope and 100-year flood
plain elevation of the Roaring Fork River shall be determined by the Stream Margin
Map located in the Community Development Department and filed at the City
Engineering Department; and
Response – No development is proposed. This application is limited to
acknowledging existing conditions for a deck that was built decades earlier.
9. All development outside the fifteen (15) foot
setback from the top of slope does not exceed a
height delineated by a line drawn at a forty-five (45)
degree angle from ground level at the top of slope.
Height shall be measured and determined by the
Community Development Director using the
definition for height set forth at Section 26.04.100
and method of calculating height set forth
at Section 26.575.020 as shown in Figure "A"; and
Response – No new development is proposed. The application is limited to
documenting existing conditions.
10. All exterior lighting is low and downcast with no light(s) directed toward the river or
located down the slope and shall be in compliance with Section 26.575.150. A
lighting plan will be submitted with all development applications; and
Response – No additional exterior lighting is proposed. Any new lighting associated
with a development application will be downcast and not directed towards the river.
11. There has been accurate identification of wetlands and riparian zones.
Response – The property survey identifies wetlands and riparian zones.
51
Exhibit 1
Review Criteria
page 7
(d) Appeal of Director's determination. An appeal of a determination in regards to a
stream margin application or in regards to the top of slope determination made by the
Community Development Director, shall be reviewed as a special review pursuant to
Subsection (e), below. In this case, the Community Development Director's finding shall
be forwarded as a recommendation and a new application need not be filed.
Response – A determination has not been made at the time of this application.
(e) Special review. An application requesting a variance from the stream margin review
standards or an appeal of the Stream Margin Map's top of slope determination, shall be
processed as a special review in accordance with common development review
procedure set forth in Chapter 26.304. The special review shall be considered at a public
hearing for which notice has been published, posted and mailed, pursuant to
Subsection 26.304.060(e)(3) Paragraphs a, b and c. Review is by the Planning and
Zoning Commission.
A special review from the stream margin review determination may be approved,
approved with conditions or denied based on conformance with the following review
criteria:
1. An authorized survey from a Colorado professionally licensed surveyor shows a
different determination in regards to the top of slope and 100-year flood plain
than the Stream Margin Map located in the Community Development Department
and filed in the City Engineering Department; and
Response – This application is not requesting a different determination for top-of-
slope. The application is limited to documenting existing conditions. A survey has
been provided.
2. The proposed development meets the stream margin review standard(s) upon
which the Community Development Director had based the finding of denial.
Response – Responses to the Stream Margin Review standards are provided
above. A determination or denial has not been rendered at the time of this
application.
52
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
City of Aspen|130 S. Galena St.|(970) 920 5090 April 2020
LAND USE APPLICATION
APPLICANT:
REPRESENTIVATIVE:
Description: Existing and Proposed Conditions
Review: Administrative or Board Review
Required Land Use Review(s):
Growth Management Quota System (GMQS) required fields:
Net Leasable square footage Lodge Pillows Free Market dwelling units
Affordable Housing dwelling units Essential Public Facility square footage
Have you included the following? FEES DUE: $
Pre-Application Conference Summary
Signed Fee Agreement
HOA Compliance form
All items listed in checklist on PreApplication Conference Summary
Name:
Address:
Phone#: email:
Address:
Phone #: email:
Name:
Project Name and Address:
Parcel ID # (REQUIRED)
1050 Waters Avenue Unit #13
2737-182-40-015
Andrew & Ivette Rothschild
8500 Maryland Ave. #505; St. Louis, MO 63124
314.517.4122 arothschild@lewisrice.com
BendonAdams
300So. Spring St. #202; Aspen, CO 81611
970.925.2855 Chris@BendonAdams.com
Repair, replacement, improvements to Unit #13 deck on river-side of property
na na 1 (existing)
0 na
Stream Margin Review
x
x
x
x
4,550
Exhibit 2
53
Exhibit 3
54
INVOICE
Land Title Guarantee Company
5975 Greenwood Plaza Blvd Suite 125
Greenwood Village, CO 80111
970-925-1678
BENDON ADAMS
CHRIS BENDON
300 S SPRING ST
S-202
Aspen, CO 81611
Invoice Number:ASP-4410 Date: September 03, 2020
Order Number:62011718
Property Address:1050 WATERS AVE # 13 ASPEN 81611
Parties:A Buyer To Be Determined
Invoice Charges
Service: TBD Commitment
Ref: 62011718
Addr: 1050 WATERS AVE # 13
Party: IVETTE SCHNEIDER ROTHSCHILD TRUST AND ANDREW
ROTHSCHILD TRUST
Total Amount Invoiced:
Less Payment(s):
Balance Due:
$217.00
$217.00
$0.00
$217.00
Due and Payable upon receipt
Please make check payable to Land Title Guarantee Company and send to the address at the top of Page 1.
Please reference Invoice Number ASP-4410 on your Payment
Page 1
invoice.odt 14420 07/2015 07/30/13 11:06:43 AM
Reference
Your Reference Number:TBD Commitment - 62011718
Our Order Number:ASP-4410
Our Customer Number:81735.1
Invoice Requested by:CHRIS BENDON
Invoice (Process) Date:September 03, 2020
Transaction Invoiced By:Web Services
Email Address:system@ltgc.com
Exhibit 4
55
Land Title Guarantee Company
Customer Distribution
PREVENT FRAUD - Please remember to call a member of our closing team when
initiating a wire transfer or providing wiring instructions.
Order Number:Q62011718 Date: 09/03/2020
Property Address:1050 WATERS AVE # 13, ASPEN, CO 81611
PLEASE CONTACT YOUR CLOSER OR CLOSER'S ASSISTANT FOR WIRE TRANSFER INSTRUCTIONS
For Closing Assistance For Title Assistance
Land Title Roaring Fork Valley Title
Team
533 E HOPKINS #102
ASPEN, CO 81611
(970) 927-0405 (Work)
(970) 925-0610 (Work Fax)
valleyresponse@ltgc.com
Seller/Owner
IVETTE SCHNEIDER ROTHSCHILD TRUST AND
ANDREW ROTHSCHILD TRUST
Attention: AROTHSCHILD@LEWISRICE.COM
Delivered via: Electronic Mail
CHRIS BENDON
Attention: CHRIS BENDON
(970) 925-2855 (Work)
chris@bendonadams.com
Delivered via: Electronic Mail
56
Land Title Guarantee Company
Estimate of Title Fees
Order Number:Q62011718 Date: 09/03/2020
Property Address:1050 WATERS AVE # 13, ASPEN, CO 81611
Parties:A BUYER TO BE DETERMINED
IVETTE SCHNEIDER ROTHSCHILD TRUST AND ANDREW ROTHSCHILD
TRUST
Visit Land Title's Website at www.ltgc.com for directions to any of our offices.
Estimate of Title insurance Fees
"TBD" Commitment $217.00
Total $217.00
If Land Title Guarantee Company will be closing this transaction, the fees listed above will be collected at
closing.
Thank you for your order!
Note: The documents linked in this commitment should be reviewed carefully. These documents, such as covenants
conditions and restrictions, may affect the title, ownership and use of the property. You may wish to engage legal
assistance in order to fully understand and be aware of the implications of the effect of these documents on your
property.
Chain of Title Documents:
Pitkin county recorded 11/07/2018 under reception no.
651766
Plat Map(s):
Pitkin county recorded 11/18/1970 at book 4 page 133
Pitkin county recorded 12/02/1971 at book 4 page 227
Pitkin county recorded 09/19/1977 at book 335 page 192
57
Copyright 2006-2020 American Land Title Association. All rights reserved.
The use of this Form is restricted to ALTA licensees and ALTA members in good standing
as of the date of use. All other uses are prohibited. Reprinted under license from the
American Land Title Association.
Property Address:
1050 WATERS AVE # 13, ASPEN, CO 81611
1.Effective Date:
08/21/2020 at 5:00 P.M.
2.Policy to be Issued and Proposed Insured:
"TBD" Commitment
Proposed Insured:
A BUYER TO BE DETERMINED
$0.00
3.The estate or interest in the land described or referred to in this Commitment and covered herein is:
A FEE SIMPLE
4.Title to the estate or interest covered herein is at the effective date hereof vested in:
IVETTE SCHNEIDER ROTHSCHILD TRUST AND ANDREW ROTHSCHILD TRUST
5.The Land referred to in this Commitment is described as follows:
CONDOMINIUM UNIT 13,
ASPEN TOWNHOUSE "BY THE RIVER" CONDOMINIUMS,
ACCORDING TO THE CONDOMINIUM MAP THEREOF RECORDED NOVEMBER 18, 1970 IN PLAT BOOK 4
AT PAGE 133 AND RECORDED DECEMBER 2, 1971 IN PLAT BOOK 4 AT PAGE 227, AND AS DEFINED AND
DESCRIBED IN THE CONDOMINIUM DECLARATION RECORDED NOVEMBER 18, 1970 IN BOOK 251 AT
PAGE 928, AND AMENDMENT THERETO RECORDED DECEMBER 2, 1971 IN BOOK 259 AT PAGE 735,
SECOND AMENDMENT RECORDED SEPTEMBER 19, 1977 IN BOOK 335 AT PAGE 192, AND THIRD
AMENDMENT RECORDED SEPTEMBER 25, 1981 IN BOOK 415 AT PAGE 59.
COUNTY OF PITKIN
STATE OF COLORADO.
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule A
Order Number:Q62011718
58
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule B, Part I
(Requirements)
Order Number: Q62011718
All of the following Requirements must be met:
This proposed Insured must notify the Company in writing of the name of any party not referred to in this
Commitment who will obtain an interest in the Land or who will make a loan on the Land. The Company
may then make additional Requirements or Exceptions.
Pay the agreed amount for the estate or interest to be insured.
Pay the premiums, fees, and charges for the Policy to the Company.
Documents satisfactory to the Company that convey the Title or create the Mortgage to be insured, or
both, must be properly authorized, executed, delivered, and recorded in the Public Records.
The following will be required should the Company be requested to issue a future commitment to insure:
1.EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF
THE CITY OF ASPEN TRANSFER TAX HAVE BEEN SATISFIED.
2.THE FULLY EXECUTED TRUST AGREEMENT OF IVETTE SCHNEIDER ROTHSCHILD TRUST, A TRUST,
MUST BE FURNISHED TO LAND TITLE GUARANTEE COMPANY PRIOR TO CLOSING SO THAT THE
COMPANY CAN CONFIRM THE ACCURACY OF THE STATEMENTS APPEARING IN THE STATEMENT OF
AUTHORITY OR TRUST AFFIDAVIT OF PUBLIC RECORD.
3.WRITTEN CONFIRMATION THAT THE INFORMATION CONTAINED IN STATEMENT OF AUTHORITY FOR
IVETTE SCHNEIDER ROTHSCHILD TRUST RECORDED NOVEMBER 07, 2018 AT RECEPTION NO. 651768
IS CURRENT.
NOTE: SAID INSTRUMENT DISCLOSES IVETTE SCHNEIDER ROTHSCHILD AS THE TRUSTEE
AUTHORIZED TO EXECUTE INSTRUMENTS CONVEYING, ENCUMBERING OR OTHERWISE AFFECTING
TITLE TO REAL PROPERTY ON BEHALF OF SAID ENTITY. IF THIS INFORMATION IS NOT ACCURATE, A
CURRENT STATEMENT OF AUTHORITY MUST BE RECORDED.
4.THE FULLY EXECUTED TRUST AGREEMENT OF ANDREW ROTHSCHILD TRUST, A TRUST, MUST BE
FURNISHED TO LAND TITLE GUARANTEE COMPANY PRIOR TO CLOSING SO THAT THE COMPANY CAN
CONFIRM THE ACCURACY OF THE STATEMENTS APPEARING IN THE STATEMENT OF AUTHORITY OR
TRUST AFFIDAVIT OF PUBLIC RECORD.
5.WRITTEN CONFIRMATION THAT THE INFORMATION CONTAINED IN STATEMENT OF AUTHORITY FOR
ANDREW ROTHSCHILD TRUST RECORDED NOVEMBER 07, 2018 AT RECEPTION NO. 651767 IS
CURRENT.
NOTE: SAID INSTRUMENT DISCLOSES ANDREW ROTHSCHILD AS THE TRUSTEE AUTHORIZED TO
EXECUTE INSTRUMENTS CONVEYING, ENCUMBERING OR OTHERWISE AFFECTING TITLE TO REAL
PROPERTY ON BEHALF OF SAID ENTITY. IF THIS INFORMATION IS NOT ACCURATE, A CURRENT
STATEMENT OF AUTHORITY MUST BE RECORDED.
6.GOOD AND SUFFICIENT DEED FROM IVETTE SCHNEIDER ROTHSCHILD TRUST AND ANDREW
ROTHSCHILD TRUST TO TO BE DETERMINED CONVEYING SUBJECT PROPERTY.
NOTE: ADDITIONAL REQUIREMENTS OR EXCEPTIONS MAY BE NECESSARY WHEN THE BUYERS
NAMES ARE ADDED TO THIS COMMITMENT. COVERAGES AND/OR CHARGES REFLECTED HEREIN, IF
ANY, ARE SUBJECT TO CHANGE UPON RECEIPT OF THE CONTRACT TO BUY AND SELL REAL ESTATE
AND ANY AMENDMENTS THERETO.
THIS COMMITMENT IS FOR INFORMATION ONLY, AND NO POLICY WILL BE ISSUED PURSUANT HERETO.
59
This commitment does not republish any covenants, condition, restriction, or limitation contained in any
document referred to in this commitment to the extent that the specific covenant, conditions, restriction,
or limitation violates state or federal law based on race, color, religion, sex, sexual orientation, gender
identity, handicap, familial status, or national origin.
1.Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be
ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.
2.Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
3.Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that
would be disclosed by an accurate and complete land survey of the Land and not shown by the Public
Records.
4.Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by
law and not shown by the Public Records.
5.Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the
public records or attaching subsequent to the effective date hereof but prior to the date of the proposed
insured acquires of record for value the estate or interest or mortgage thereon covered by this
Commitment.
6.(a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that
levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public
agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown
by the records of such agency or by the Public Records.
7.(a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the
issuance thereof; (c) water rights, claims or title to water.
8.RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM
SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN
UNITED STATES PATENT RECORDED AUGUST 29, 1958, IN BOOK 185 AT PAGE 69.
9.THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS, AND RESTRICTIONS, WHICH ARE
A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A, BUT OMITTING ANY
COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL
ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN,
ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS,
EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE
LAW, AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER 18, 1970, IN BOOK 251 AT PAGE 928
AND AS AMENDED IN INSTRUMENT RECORDED DECEMBER 02, 1971, IN BOOK 259 AT PAGE 735 AND
AS AMENDED IN INSTRUMENT RECORDED SEPTEMBER 19, 1977, IN BOOK 335 AT PAGE 192 AND AS
AMENDED IN INSTRUMENT RECORDED SEPTEMBER 25, 1981, IN BOOK 415 AT PAGE 59.
10.TERMS, CONDITIONS AND PROVISIONS OF BY-LAWS OF ASPEN TOWNHOUSES "BY THE RIVER"
CONDOMINIUM RECORDED NOVEMBER 18, 1970 IN BOOK 251 AT PAGE 940.
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule B, Part II
(Exceptions)
Order Number: Q62011718
60
11.EASEMENTS, RIGHTS OF WAY AND OTHER MATTERS AS SET FORTH ON THE PLAT RECORDED
NOVEMBER 18, 1970 IN PLAT BOOK 4 AT PAGE 133, AS SET FORTH ON THE PLAT RECORDED
DECEMBER 2, 1971 IN PLAT BOOK 4 AT PAGE 227, AND AS CONTAINED IN FIRST AMENDMENT TO
CONDOMINIUM MAP RECORDED SEPTEMBER 19, 1977 IN BOOK 335 AT PAGE 192.
12.EASEMENT AND RIGHT OF WAY FOR ELECTRICAL LINE PURPOSES AS GRANTED TO HOLY CROSS
ELECTRIC ASSOCIATION, INC. IN INSTRUMENT RECORDED APRIL 11, 1994 IN BOOK 747 AT PAGE 180.
13.TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS AS SET FORTH IN EASEMENT AND RIGHT OF
WAY AS GRANTED TO US COMMUNICATIONS RECORDED JUNE 3, 1994 IN BOOK 752 AT PAGE 537 AND
RE-RECORDED JUNE 7, 1994 IN BOOK 752 AT PAGE 699.
14.TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS AS SET FORTH IN NOTICE OF APPROVAL
RECORDED AUGUST 2, 2019 AS RECEPTION NO. 657652.
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule B, Part II
(Exceptions)
Order Number: Q62011718
61
LAND TITLE GUARANTEE COMPANY
DISCLOSURE STATEMENTS
Note: Pursuant to CRS 10-11-122, notice is hereby given that:
Note: Effective September 1, 1997, CRS 30-10-406 requires that all documents received for recording or filing in the
clerk and recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least
one half of an inch. The clerk and recorder may refuse to record or file any document that does not conform, except that,
the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or
filing information at the top margin of the document.
Note: Colorado Division of Insurance Regulations 8-1-2 requires that "Every title entity shall be responsible for all matters
which appear of record prior to the time of recording whenever the title entity conducts the closing and is responsible for
recording or filing of legal documents resulting from the transaction which was closed". Provided that Land Title
Guarantee Company conducts the closing of the insured transaction and is responsible for recording the legal
documents from the transaction, exception number 5 will not appear on the Owner's Title Policy and the Lenders Policy
when issued.
Note: Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of
Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following
conditions:
No coverage will be given under any circumstances for labor or material for which the insured has contracted for or
agreed to pay.
The Subject real property may be located in a special taxing district.(A)
A certificate of taxes due listing each taxing jurisdiction will be obtained from the county treasurer of the county in
which the real property is located or that county treasurer's authorized agent unless the proposed insured provides
written instructions to the contrary. (for an Owner's Policy of Title Insurance pertaining to a sale of residential real
property).
(B)
The information regarding special districts and the boundaries of such districts may be obtained from the Board of
County Commissioners, the County Clerk and Recorder, or the County Assessor.
(C)
The land described in Schedule A of this commitment must be a single family residence which includes a
condominium or townhouse unit.
(A)
No labor or materials have been furnished by mechanics or material-men for purposes of construction on the land
described in Schedule A of this Commitment within the past 6 months.
(B)
The Company must receive an appropriate affidavit indemnifying the Company against un-filed mechanic's and
material-men's liens.
(C)
The Company must receive payment of the appropriate premium.(D)
If there has been construction, improvements or major repairs undertaken on the property to be purchased within
six months prior to the Date of Commitment, the requirements to obtain coverage for unrecorded liens will include:
disclosure of certain construction information; financial information as to the seller, the builder and or the
contractor; payment of the appropriate premium fully executed Indemnity Agreements satisfactory to the company,
and, any additional requirements as may be necessary after an examination of the aforesaid information by the
Company.
(E)
62
Note: Pursuant to CRS 10-11-123, notice is hereby given:
This notice applies to owner's policy commitments disclosing that a mineral estate has been severed from the surface
estate, in Schedule B-2.
Note: Pursuant to CRS 10-1-128(6)(a), It is unlawful to knowingly provide false, incomplete, or misleading facts or
information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may
include imprisonment, fines, denial of insurance, and civil damages. Any insurance company or agent of an insurance
company who knowingly provides false, incomplete, or misleading facts or information to a policyholder or claimant for
the purpose of defrauding or attempting to defraud the policyholder or claimant with regard to a settlement or award
payable from insurance proceeds shall be reported to the Colorado Division of Insurance within the Department of
Regulatory Agencies.
Note: Pursuant to Colorado Division of Insurance Regulations 8-1-3, notice is hereby given of the availability of a closing
protection letter for the lender, purchaser, lessee or seller in connection with this transaction.
That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the
surface estate and that there is substantial likelihood that a third party holds some or all interest in oil, gas, other
minerals, or geothermal energy in the property; and
(A)
That such mineral estate may include the right to enter and use the property without the surface owner's
permission.
(B)
63
JOINT NOTICE OF PRIVACY POLICY OF
LAND TITLE GUARANTEE COMPANY,
LAND TITLE GUARANTEE COMPANY OF SUMMIT COUNTY
LAND TITLE INSURANCE CORPORATION AND
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
This Statement is provided to you as a customer of Land Title Guarantee Company as agent for Land Title Insurance
Corporation and Old Republic National Title Insurance Company.
We want you to know that we recognize and respect your privacy expectations and the requirements of federal and state
privacy laws. Information security is one of our highest priorities. We recognize that maintaining your trust and confidence
is the bedrock of our business. We maintain and regularly review internal and external safeguards against unauthorized
access to your non-public personal information ("Personal Information").
In the course of our business, we may collect Personal Information about you from:
applications or other forms we receive from you, including communications sent through TMX, our web-based
transaction management system;
your transactions with, or from the services being performed by us, our affiliates, or others;
a consumer reporting agency, if such information is provided to us in connection with your transaction;
and
The public records maintained by governmental entities that we obtain either directly from those entities, or from
our affiliates and non-affiliates.
Our policies regarding the protection of the confidentiality and security of your Personal Information are as follows:
We restrict access to all Personal Information about you to those employees who need to know that information in
order to provide products and services to you.
We may share your Personal Information with affiliated contractors or service providers who provide services in the
course of our business, but only to the extent necessary for these providers to perform their services and to
provide these services to you as may be required by your transaction.
We maintain physical, electronic and procedural safeguards that comply with federal standards to protect your
Personal Information from unauthorized access or intrusion.
Employees who violate our strict policies and procedures regarding privacy are subject to disciplinary action.
We regularly assess security standards and procedures to protect against unauthorized access to Personal
Information.
WE DO NOT DISCLOSE ANY PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT
IS NOT STATED ABOVE OR PERMITTED BY LAW.
Consistent with applicable privacy laws, there are some situations in which Personal Information may be disclosed. We
may disclose your Personal Information when you direct or give us permission; when we are required by law to do so, for
example, if we are served a subpoena; or when we suspect fraudulent or criminal activities. We also may disclose your
Personal Information when otherwise permitted by applicable privacy laws such as, for example, when disclosure is
needed to enforce our rights arising out of any agreement, transaction or relationship with you.
Our policy regarding dispute resolution is as follows: Any controversy or claim arising out of or relating to our privacy
policy, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
64
Commitment For Title Insurance
Issued by Old Republic National Title Insurance Corporation
NOTICE
IMPORTANT—READ CAREFULLY: THIS COMMITMENT IS AN OFFER TO ISSUE ONE OR MORE TITLE INSURANCE
POLICIES. ALL CLAIMS OR REMEDIES SOUGHT AGAINST THE COMPANY INVOLVING THE CONTENT OF THIS
COMMITMENT OR THE POLICY MUST BE BASED SOLELY IN CONTRACT.
THIS COMMITMENT IS NOT AN ABSTRACT OF TITLE, REPORT OF THE CONDITION OF TITLE, LEGAL OPINION, OPINION OF TITLE, OR OTHER
REPRESENTATION OF THE STATUS OF TITLE. THE PROCEDURES USED BY THE COMPANY TO DETERMINE INSURABILITY OF THE TITLE, INCLUDING
ANY SEARCH AND EXAMINATION, ARE PROPRIETARY TO THE COMPANY, WERE PERFORMED SOLELY FOR THE BENEFIT OF THE COMPANY, AND
CREATE NO EXTRACONTRACTUAL LIABILITY TO ANY PERSON, INCLUDING A PROPOSED INSURED.
THE COMPANY’S OBLIGATION UNDER THIS COMMITMENT IS TO ISSUE A POLICY TO A PROPOSED INSURED IDENTIFIED IN SCHEDULE A IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS COMMITMENT. THE COMPANY HAS NO LIABILITY OR OBLIGATION INVOLVING THE
CONTENT OF THIS COMMITMENT TO ANY OTHER PERSON. .
COMMITMENT TO ISSUE POLICY
Subject to the Notice; Schedule B, Part I—Requirements; Schedule B, Part II—Exceptions; and the Commitment Conditions, Old Republic National Title Insurance
Company, a Minnesota corporation (the “Company”), commits to issue the Policy according to the terms and provisions of this Commitment. This Commitment is
effective as of the Commitment Date shown in Schedule A for each Policy described in Schedule A, only when the Company has entered in Schedule A both the
specified dollar amount as the Proposed Policy Amount and the name of the Proposed Insured. If all of the Schedule B, Part I—Requirements have not been met
within 6 months after the Commitment Date, this Commitment terminates and the Company’s liability and obligation end.
COMMITMENT CONDITIONS
1. DEFINITIONS
2. If all of the Schedule B, Part I—Requirements have not been met within the time period specified in the Commitment to Issue Policy, Commitment terminates
and the Company’s liability and obligation end.
3. The Company’s liability and obligation is limited by and this Commitment is not valid without:
4. COMPANY’S RIGHT TO AMEND
The Company may amend this Commitment at any time. If the Company amends this Commitment to add a defect, lien, encumbrance, adverse claim, or
other matter recorded in the Public Records prior to the Commitment Date, any liability of the Company is limited by Commitment Condition 5. The
Company shall not be liable for any other amendment to this Commitment.
5. LIMITATIONS OF LIABILITY
i. comply with the Schedule B, Part I—Requirements;
ii. eliminate, with the Company’s written consent, any Schedule B, Part II—Exceptions; or
iii. acquire the Title or create the Mortgage covered by this Commitment.
“Knowledge” or “Known”: Actual or imputed knowledge, but not constructive notice imparted by the Public Records.(a)
“Land”: The land described in Schedule A and affixed improvements that by law constitute real property. The term “Land” does not include any
property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate, or easement in abutting streets, roads, avenues,
alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is to be insured by the Policy.
(b)
“Mortgage”: A mortgage, deed of trust, or other security instrument, including one evidenced by electronic means authorized by law.(c)
“Policy”: Each contract of title insurance, in a form adopted by the American Land Title Association, issued or to be issued by the Company
pursuant to this Commitment.
(d)
“Proposed Insured”: Each person identified in Schedule A as the Proposed Insured of each Policy to be issued pursuant to this Commitment.(e)
“Proposed Policy Amount”: Each dollar amount specified in Schedule A as the Proposed Policy Amount of each Policy to be issued pursuant to this
Commitment.
(f)
“Public Records”: Records established under state statutes at the Commitment Date for the purpose of imparting constructive notice of matters
relating to real property to purchasers for value and without Knowledge.
(g)
“Title”: The estate or interest described in Schedule A.(h)
the Notice;(a)
the Commitment to Issue Policy;(b)
the Commitment Conditions;(c)
Schedule A;(d)
Schedule B, Part I—Requirements; and(e)
Schedule B, Part II—Exceptions; and(f)
a counter-signature by the Company or its issuing agent that may be in electronic form.(g)
The Company’s liability under Commitment Condition 4 is limited to the Proposed Insured’s actual expense incurred in the interval between the
Company’s delivery to the Proposed Insured of the Commitment and the delivery of the amended Commitment, resulting from the Proposed
Insured’s good faith reliance to:
(a)
The Company shall not be liable under Commitment Condition 5(a) if the Proposed Insured requested the amendment or had Knowledge of the
matter and did not notify the Company about it in writing.
(b)
The Company will only have liability under Commitment Condition 4 if the Proposed Insured would not have incurred the expense had the
Commitment included the added matter when the Commitment was first delivered to the Proposed Insured.
(c)
The Company’s liability shall not exceed the lesser of the Proposed Insured’s actual expense incurred in good faith and described in Commitment
Conditions 5(a)(i) through 5(a)(iii) or the Proposed Policy Amount.
(d)
The Company shall not be liable for the content of the Transaction Identification Data, if any.(e)
65
6. LIABILITY OF THE COMPANY MUST BE BASED ON THIS COMMITMENT
7. IF THIS COMMITMENT HAS BEEN ISSUED BY AN ISSUING AGENT
The issuing agent is the Company’s agent only for the limited purpose of issuing title insurance commitments and policies. The issuing agent is not the
Company’s agent for the purpose of providing closing or settlement services.
8. PRO-FORMA POLICY
The Company may provide, at the request of a Proposed Insured, a pro-forma policy illustrating the coverage that the Company may provide. A pro-forma
policy neither reflects the status of Title at the time that the pro-forma policy is delivered to a Proposed Insured, nor is it a commitment to insure.
9. ARBITRATION
The Policy contains an arbitration clause. All arbitrable matters when the Proposed Policy Amount is $2,000,000 or less shall be arbitrated at the option of
either the Company or the Proposed Insured as the exclusive remedy of the parties. A Proposed Insured may review a copy of the arbitration rules at
http://www.alta.org/arbitration.
IN WITNESS WHEREOF, Land Title Insurance Corporation has caused its corporate name and seal to be affixed by its duly authorized officers on the date shown
in Schedule A to be valid when countersigned by a validating officer or other authorized signatory.
Issued by:
Land Title Guarantee Company
3033 East First Avenue Suite 600
Denver, Colorado 80206
303-321-1880
Senior Vice President
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Land Title Insurance Corporation. This Commitment is not valid without the
Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and
a counter-signature by the Company or its issuing agent that may be in electronic form.
Copyright 2006-2016 American Land Title Association. All rights reserved.
The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are
prohibited. Reprinted under license from the American Land Title Association.
In no event shall the Company be obligated to issue the Policy referred to in this Commitment unless all of the Schedule B, Part I—Requirements
have been met to the satisfaction of the Company.
(f)
In any event, the Company’s liability is limited by the terms and provisions of the Policy.(g)
Only a Proposed Insured identified in Schedule A, and no other person, may make a claim under this Commitment.(a)
Any claim must be based in contract and must be restricted solely to the terms and provisions of this Commitment.(b)
Until the Policy is issued, this Commitment, as last revised, is the exclusive and entire agreement between the parties with respect to the subject
matter of this Commitment and supersedes all prior commitment negotiations, representations, and proposals of any kind, whether written or oral,
express or implied, relating to the subject matter of this Commitment.
(c)
The deletion or modification of any Schedule B, Part II—Exception does not constitute an agreement or obligation to provide coverage beyond the
terms and provisions of this Commitment or the Policy.
(d)
Any amendment or endorsement to this Commitment must be in writing and authenticated by a person authorized by the Company.(e)
When the Policy is issued, all liability and obligation under this Commitment will end and the Company’s only liability will be under the Policy.(f)
66
67
Exhibit 6see attached68
69
70
71
72
1
Exhibit 7
73
2
74
3
delineates the bank of the river.
75
4
76
Exhibit 8
1050 Waters Avenue #13 – Vicinity Map
77
Exhibit 978
Exhibit 9.179
Exhibit 10
80
81
82
83
84
85
86
87
RECORD OF PROCEEDINGS 100 Leaves
FORM '0 C.F.HOECKELB.6.&L.CO.
Public Hearing, P & z, 2/4/69, continued.
unit. Lets say develop the other 7S0 sq.ft. to green area. So you are
devoting 7S0 sq.ft. to living unit but you have to give up 7S0 sq.ft.
for green area.
Robin Molny - Thats pie in the sky. When you stop and think, in affect
you are reducing the density. I would think that that would be the result
of what you are saying. You are talking SO/SO aren't you.
Lennie Lookner - Maybe you could work up something to reduce the density and
give us more green areas to look at.
Robin Molny - That is what we are striving to do in slightly different
terms.
Harry Uhfelder - I have been developing the Aspen Townhouses. I have never
utilitized the full allowed density. For instance, this last year I
developed 11 units on S lots. I am leaving area for green space and off
street parking. And I think it works very well. It is popular and
acceptable. I think you have to find a compromise solution in between what
has been suggested and what is allowed. It can be done. It is popular
and keeping in the character of the place. Some kind of compromise.
Tom Benton - When we requested the density we did not only request the
density but also scale control, to go along with that. Our feeling in
this was the density is as recommended in the Master Plan were based ona
study almost a year of study whereas the densities that were adopted
finally were based on nothing more than a little Harassment by a few people.
Now what Mr. Uhfelder said there are a great many things that have been
built in Aspen that have densities of much less, actually those are
densities which are recommended in the Master Plan. There is no problem
here. I think thats the type of thing Aspen needs and is beneficial
to Aspen. But just these few thathave caused the big problem and so
unfortunately you have to regulate for those few. Now I think you are
right that the major problem is not completely densities in itself. It
is the use of space. Personnally I feel there is nothing wrong with a
compromise as long as the town achieves benefitas well as the people
who are building also. But our request was for two things, so that this
wouldn't happen, that we wouldn't be involved in cutting the densities
in half and find thatpeople are building the same size building with units
just twice as large. I think that the direction would be beneficial
and some sort of bonus system. But it has to be tied, we feel, absolute
requirement that certain amount of land be left open because if you don't
make it a requirement, it will never be.
Nancy Ward - I have never hadthis question answered to me. I have property,
I came out with a design conforming to multiple family dwelling. I was
told why not call yourself a lodge, then you can get more on that
property. Now I didn't intend to build a lodge, I want apartments. I
don't intend to run a lodge. Now what loophole is in the zoning code
that will allow me to pur more units on my land simply by calling myself
a lodge.
Chairman Heneghan - That was a loophole, and that has been changed. There
is no reference in the present zoning ordinance to a lodge, motel unit,
condominium none of these references are now made. There are only two -
limited and unlimited unit. What you call it or do with it is your own
N? 82
88
FOIlM!O C.F.HOECI(ELB.B.B:L.CQ.
RECORD OF PROCEEDINGS 100 Leaves
Regular Meeting, Aspen Planning &. Zoning, 7/20/71
Goals Task Force
Objectives
PUD
Uhfelder Const.
a Minimal expense. Other plan calls for outlying parking
areas and mini buses with 2 hour parking in this general
area. Mini buses would shuffle people between the two
parking areas. Another plan is for parking under Wagner
Park and shuffle people up to the lift and also a transit
system.
Adams moved to recommend to the City Council that Plan #1
be adopted for the 1971 and 1972 season and feasibility on
financing be done by the Finance Department on Plans #2
and #3 and Plans #2 and #3 be reviewed by Voorhees.
Seconded by Goodhard. All in favor, motion carried.
Goals Task Force Objectives - Mr. Bartel explained at the
last study session he had submitted the program on quality
skiing. Objective #4 was discussed and the Commission re-
quest a more definitive interpretation be inserted as re-
lates to economy. Also request the word maximum be modified.
Collins moved that the Commission accept the tentative
objectives as submitted by resolution and recommend that
the Planner and Goals Task Force proceed with development
of the programs for the balance of the objectives.
Seconded by Goodhard.
Collins moved to amend the motion to allow Herb Bartel to
change the woraing in Paragraph 4. Seconded by Goodhard.
All in favor, motion carried.
Main Motion - All in favor, motion carried.
Commission agreed to hold a study session next Tuesday to
discuss quality skiing, growth policy and Zoline preliminary
pms.
PUD - Commission request the Secretary schedule a public
hearing for August 17th.
Uhfelder Construction - Chairman Molny reported this con-
struction has been brought to his attention by citizens.
The stream margin regulation was effective on April 20th.
Mr. Uhfelder obtained his building permit on March 9th
and fulfilled his building permit on June 7th. City Attorney
Kern is checking into which date should be considered, the
March date of June date as relates to the regulations. The
plot plan shows the Roaring Fork River being about 10' away
from the building at the closest point. In checking the
site the stakes appear like the river will touch the build=
ing. Also following the March date, the City adopted the
Uniform Building Code and requires a certified survey. This
application appears to be an obvious attempt to circumvent
the City ordinance. Property located at the end of Waters
Avenue. The City Attorney is also checking to see if there
are any violations in this case. Also, one of the adjoin-
ing property owners feel the building is being built on dis-
puted land. Private citizens are checking into a perhaps
federal violation of streams.
2-
89
RECORD OF PROCEEDINGS 100 Leaves
FOIlM!O C.F.HOECI(ELB.B.Il:L.CO.
Regular Meeting, Aspen Planning &. Zoning, 7/20/71
It was pointed out the citizens in seeing this building
built practically in the stream by feel this is the result
of the stream margin regulations which is not the case.
Jordan moved the Planning and Zoning Commission strongly
express their concern and would appreciate the City
Attorney looking at this in depth. Seconded by Collins.
All in favor, motion carried.
Adams moved to adjourn at 6:45 P. M., Seconded by Breasted.
All in favor, motion carried.
Lorraine Graves, Secretary
90
Exhibit 11
91
92
93
94
95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
Exhibit 12
113
114
115
116
117
118
119
120
121
122
Exhibit 13123
124
Exhibit 14125
From:Reilly Thimons
To:Rothschild, Andrew; Chris Bendon
Subject:RE: [EXTERNAL] Townhomes by the River
Date:Wednesday, April 7, 2021 3:19:10 PM
Thank you Andrew! I will add this into the application letter narrative and PDF it to add to the
exhibits.
From: Rothschild, Andrew <arothschild@lewisrice.com>
Sent: Wednesday, April 7, 2021 1:19 PM
To: Chris Bendon <chris@bendonadams.com>; Reilly Thimons <reilly@bendonadams.com>
Subject: FW: [EXTERNAL] Townhomes by the River
Chris and Reilly- this just received from Scott and Wendy Geary. Should be helpful. Let me know if
you want me to forward without my comments. Thanks.
From: Scott and Wendy Geary [mailto:wwgeary@gmail.com]
Sent: Wednesday, April 07, 2021 2:15 PM
To: Rothschild, Andrew <arothschild@lewisrice.com>
Subject: [EXTERNAL] Townhomes by the River
RE: Decks at the Townhomes By The River
We are William "Scott" Geary and Wendy Geary, representing the Geary Family, LLC, the
owners of the small A-frame house at 1102 Waters Avenue in Aspen. Our house was built in
1967, and as a younger man, Scott remembers the Townhomes by the River being built with
decks. We have a great view from our back deck looking north down the Roaringfork River
and at the Townhomes. The past 38 years we have spent a major part of our time in Aspen and
recall the two larger decks that are towards the south side of the building. Those two decks
were always larger than the other decks since they are built over the ground and not the river.
They are not only accessible from the individual condominium but also from a walkway along
the building.
This message, including attachments, is from the law firm of Lewis Rice LLC. This message contains
information that may be confidential and protected by the attorney-client or attorney work product
privileges. If you are not the intended recipient, promptly delete this message and notify the sender
of the delivery error by return e-mail or call us at 314-444-7600. You may not forward, print, copy,
distribute, or use the information in this message if you are not the intended recipient.
Exhibit 15
126
11/13/2020
Mark M. Tye
P.O. Box 8992
Aspen, CO 81611
RE: Consulting for litigation purposes regarding a deck improvement
1050 Waters Ave, Aspen Townhouses by the River Unit 15
Aspen, Colorado
Dear Mr. Tye,
This letter is being written to communicate my observations of your deck improvement on Unit 15. I previ-
ously appraised this unit at the time of your purchase in 1999 (my appraisal report date of value was June 29,
1999), at which time I performed a full property viewing and measurement of the residential unit as well as the
deck. Refer to the exhibits attached for the floor plan and deck photos.
This 1999 appraisal report shows the deck to be 12 feet in depth and 14 feet in width. The photo was also taken
in 1999 but my database has a February date on this picture. This shows the northeast corner of the deck, in-
cluding the north deck wall and the east knee wall with a bench top.
On November 10, 2020 I went back to the property and measured the deck and took pictures. I found the deck
to be the same size (12’ x 14’) and of the same finish that it was in 1999. My current photos are attached. As
such, it is my observation that no changes or extensions have been made to the deck since June 1999.
I was asked if I had a recollection or comment on the side path and staircase that leads down to the subject’s
deck. I do not specifically recall whether this path existed in 1999 and I have no pictures of the path in my sub-
ject 1999 file. However, I did find two other photos in my database – one undated and the other from 2007 –
which show the south side of the building and this common area path from a bit of a distance. I have included
these for your reference.
This summarizes my findings as to the state of the deck improvement. If you have any questions or need addi-
tional assistance with this case, feel free to contact me.
Respectfully Submitted,
Susan Ebert - Stone, SRA
CO. Cert. Res. 1767
Exhibit 16
127
2 | Page
EXHIBIT 1: FLOOR PLAN FROM 1999 FILE
128
3 | Page
EXHIBIT 2: VARIOUS PHOTOS
Photos taken November 2020
129
4 | Page
130
5 | Page
February 1999 photo August 2006 photo (just the top of the subject deck)
South side common area photos:
April 2007 Undated
131
A201
BUILDING 1
SHEET NUMBER
SHEET TITLE 1050 WATERS AVE.ASPEN, CO 81611Red Room Design
1001 Grand Avenue, Ste 211
Glenwood Springs, CO 81601
970.413.3144
DRAWING ISSUE
1/8/2021 10:31 AMCALCULATIONS
NOT FOR
CONSTRUCTION
E 1 E 248.7 sq ft
E 3 E 449.2 sq ft
E 6 E 566.7 sq ft
E 7 E 849.0 sq ft
COMMONCOMMONSHED40.0 sq ft
UNIT 1489.3 sq ft
UNIT 2489.3 sq ft
UNIT 3489.3 sq ft
UNIT4489.3 sq ft
UNIT 5474.3 sq ft
UNIT 6489.3 sq ft
UNIT 7489.3 sq ft
UNIT 8489.3 sq ft 128'32'-9"8'-9"8'-8"3'-6"8'-10"14'-113/4"15'-51/16"8'-9"B 185.3 sq ft
UNIT 1489.3 sq ft
UNIT 2489.3 sq ft
UNIT 3489.3 sq ft
UNIT4489.3 sq ft
UNIT 5474.3 sq ft
UNIT 6489.3 sq ft
UNIT 7489.3 sq ft
UNIT 8489.3 sq ft 128'32'-9"5'-6"
B 285.3 sq ft
B 385.3 sq ft
B 485.3 sq ft
B 585.3 sq ft
B 685.3 sq ft
B 785.3 sq ft
B 885.3 sq ft
UNIT 1489.3 sq ft
UNIT 2489.3 sq ft
UNIT 3489.3 sq ft
UNIT4489.3 sq ft
UNIT 5474.3 sq ft
UNIT 6489.3 sq ft
UNIT 7489.3 sq ft
UNIT 8489.3 sq ft
32'-9"128'64'16'48'SCALE: 1/8" = 1'-0"
Middle Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Upper Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Lower Level Plan
0 4'8'16'
GROSS AREA CALCULATIONS
LOWER LEVEL
UNIT 1 489.3 SF
UNIT 2 489.3 SF
UNIT 3 489.3SF
UNIT 4 489.3 SF
UNIT 5 474.3 SF
UNIT 6 489.3 SF
UNIT 7 489.3 SF
UNIT 8 489.3 SF
TOTAL 3,899.4 SF
MIDDLE LEVEL
UNIT 1 489.3 SF
UNIT 2 489.3 SF
UNIT 3 489.3SF
UNIT 4 489.3 SF
UNIT 5 474.3 SF
UNIT 6 489.3 SF
UNIT 7 489.3 SF
UNIT 8 489.3 SF
SHED 40.0 SF
TOTAL 3,939.4 SF
UPPER LEVEL
UNIT 1 489.3 SF
UNIT 2 489.3 SF
UNIT 3 489.3SF
UNIT 4 489.3 SF
UNIT 5 474.3 SF
UNIT 6 489.3 SF
UNIT 7 489.3 SF
UNIT 8 489.3 SF
TOTAL 3,899.4 SF
TOTAL SF 11,738.2 SF
GROSS DECK CALCULATIONS
LOWER LEVEL
TOTAL 0 SF
MIDDLE LEVEL
E1, E2 DECK 48.7 SF
E3, E4 DECK 49.2 SF
E5, E6 DECK 66.7 SF
E7, E8 DECK 49.0 SF
TOTAL 213.6 SF
UPPER LEVEL
B1 DECK 85.3 SF
B2 DECK 85.3 SF
B3 DECK 85.3 SF
B4 DECK 85.3 SF
B5 DECK 85.3 SF
B6 DECK 85.3 SF
B7 DECK 85.3 SF
B8 DECK 85.3 SF
TOTAL 682.4 SF
TOTAL SF 896 SF
UNIT DIVISIONS ARE ESTIMATED
ESTIMATED FAR
LOWER LEVEL 1,949.7 SF (@50%)
MIDDLE LEVEL 3,899.4 SF
UPPER LEVEL 3,409.4 SF (61.25 X 8)
TOTAL 9,258.5 SF
BUILDING 1
Exhibit 17
132
A202
BUILDING 2
SHEET NUMBER
SHEET TITLE 1050 WATERS AVE.ASPEN, CO 81611Red Room Design
1001 Grand Avenue, Ste 211
Glenwood Springs, CO 81601
970.413.3144
DRAWING ISSUE
1/8/2021 10:31 AMCALCULATIONS
NOT FOR
CONSTRUCTION
COMMON 11, 1276.0 sq ft
COMMON 9, 1076.0 sq ft
B 10 65.0 sq ft
B 1265.0 sq ft
B 1465.0 sq ft
COMMON
42.2 sq ft
UNIT 14435.3 sq ft
UNIT 16501.6 sq ft
UNIT 13386.3 sq ft
UNIT 12846.3 sq ft
UNIT10442.7 sq ft
B 11.516.7 sq ft
36'-9"
B 16 65.0 sq ft
B 1665.0 sq ft UNIT 16455.9 sq ft
UNIT 14868.3 sq ft
UNIT 12461.3 sq ft
UNIT 10962.2 sq ft
32'-5"
B 1165.0 sq ft
B 965.0 sq ft
UNIT 11947.8 sq ft
UNIT 9893.5 sq ft
UNIT 13435.3 sq ft
UNIT 15439.8 sq ft
COMMON13, 1442.2 sq ft
B 13189.1 sq ft
B 15182.5 sq ft
32'-5"
SCALE: 1/8" = 1'-0"
Middle Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Upper Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Lower Level Plan
0 4'8'16'
GROSS AREA CALCULATIONS
LOWER LEVEL
UNIT 15 439.8 SF
UNIT 13 435.3 SF
UNIT 11 947.8 SF
UNIT 9 893.5 SF
E 13, 15 42.2 SF
TOTAL 2,758.6 SF
MIDDLE LEVEL
UNIT 16 501.6 SF
UNIT 14 435.3 SF
UNIT 13 386.3 SF
UNIT 12 823.8 SF
UNIT 10 420.1 SF
COMMON 13, 14, 15, 16 42.2 SF
COMMON 11, 12 98.6 SF
COMMON 9, 10 98.6 SF
TOTAL 2,806.5 SF
UPPER LEVEL
UNIT 16 455.9 SF
UNIT 14 868.3 SF
UNIT 12 461.3 SF
UNIT 10 962.2 SF
TOTAL 2,747.7 SF
TOTAL SF 8,312.8 SF
GROSS DECK CALCULATIONS
LOWER LEVEL
B 15 DECK 182.5 SF
B 13 DECK 189.1 SF
B 11 DECK 65 SF
B 9 DECK 65 SF
TOTAL 501.6 SF
MIDDLE LEVEL
B 10 DECK 65 SF
B 11.5 DECK 16.7 SF
B 12 DECK 65 SF
B 14 DECK 65SF
TOTAL 211.7 SF
UPPER LEVEL
B 16 DECK 65 SF
B 16 DECK 65 SF
TOTAL 130 SF
TOTAL SF 843.3 SF
UNIT DIVISIONS ARE ESTIMATED
BUILDING 2
ESTIMATED FAR
LOWER LEVEL 1,655.15 SF (@60%)
MIDDLE LEVEL 2,806.5 SF
UPPER LEVEL 2,747.7 SF
TOTAL 7,209.35 SF
133
From:Michelle Bonfils
To:Amy Simon
Subject:FW: 1050 Waters Ave., #13; Hearing date: June 1, 2021
Date:Thursday, May 27, 2021 3:33:18 PM
Amy – Cindy asked that the following emails for 1050 Waters Ave be uploaded with the packet.
There are several…
From: Clare Bronowski <clareb1050@gmail.com>
Sent: Monday, May 24, 2021 10:01 AM
To: Michelle Bonfils <michelle.bonfils@cityofaspen.com>
Subject: 1050 Waters Ave., #13; Hearing date: June 1, 2021
Aspen Planning & Zoning Commission
Attn: Michelle Bonfils Thibeault
City of Aspen Community Development Dept.
130 S. Galena St.
Aspen, CO 81611
michelle.bonfils@cityofaspen.com
Dear Commissioners:
We are writing in support of the application for variation from the Stream Margin standard
submitted by Andy and Ivette Rothchild for their unit at 1050 Waters Ave., Unit 13. We are the
owners and residents at 1050 Waters Ave., Unit 12. Our second story balcony looks directly down
on the Rothchild's deck. We have no objection to maintaining the non-conforming deck, which has
been there as long as we have owned our unit and for many years before according to other
owners. The location of the deck does not interfere with the river and appears to leave ample room
for access and high water.
Please approve the application and allow the improvements to remain in place.
Thank you.
Clare Bronowski and Jeffrey Lee
1050 Waters Ave., #12
Aspen, CO 81611
mailing address: 625 E. Main St., Suite 102B-240, Aspen, CO 81611
134
From:Michelle Bonfils
To:Amy Simon
Subject:FW: 1050 Waters Avenue - Andrew & Yvette Rothschild Application to be heard June 1st
Date:Thursday, May 27, 2021 3:33:41 PM
From: John Beatty <beatty@intotheusa.com>
Sent: Wednesday, May 26, 2021 5:52 PM
To: Michelle Bonfils <michelle.bonfils@cityofaspen.com>
Subject: 1050 Waters Avenue - Andrew & Yvette Rothschild Application to be heard June 1st
Dear Michelle:
We have lived in Unit 11, which is the unit immediately adjacent to Andrew & Yvette's unit that is the
subject of the special review, for approximately the past 6 years.
We are sending this email in support of their application for Special Review. The improvements made to
the deck were made within the footprint of those that existed when we moved in, and have been a
significant benefit to the privacy of our unit without any negative impact to ourselves or the area. We
would urge the City to grant their application and allow the improvements to be maintained.
John Beatty & Victoria Haveman
Unit 11, 1050 Waters Avenue
tel: 970.920.1522
135
From:Michelle Bonfils
To:Amy Simon
Subject:FW: Aspen Townhouses by the River, East Building Stream Review
Date:Thursday, May 27, 2021 3:33:33 PM
From: Mark <mark@uhlfelder.com>
Sent: Monday, May 24, 2021 7:44 PM
To: Michelle Bonfils <michelle.bonfils@cityofaspen.com>
Subject: Aspen Townhouses by the River, East Building Stream Review
Michelle Bonfils Thibeault
City of Aspen Community Development Dept.
Planning & Zoning Commission
130 S. Galena St.
Aspen, CO 81611
By Email Only
Dear P&Z Commissioners:
This is written in response to numerous post cards received regarding a Stream
Margin review submitted by Andy and Ivette Rothchild for their Unit #13 at 1050
E. Waters Ave. I am the owner (through Aspen Prime R.E. 2 LLC) of two units, #11
and #14, both of which overlook the Rothchild's unit. I have no objection to the
Rothchild's non-conforming deck.
Thank you.
Mark Uhlfelder
Aspen Prime R.E. 2 LLC
136
From:Michelle Bonfils
To:Amy Simon
Subject:FW: Public Hearing - 13 & #15, 1050 E Waters Ave.
Date:Thursday, May 27, 2021 3:33:24 PM
From: Ned Sullivan <novillus@earthlink.net>
Sent: Monday, May 24, 2021 2:01 PM
To: Michelle Bonfils <michelle.bonfils@cityofaspen.com>
Subject: Public Hearing - 13 & #15, 1050 E Waters Ave.
Ms. Thibeault;
I am writing in response to the postcards which I recently received, regarding the hearings on June 1 for
Land Use Reviews on 1050 E. Waters Ave., Units 13 and 15. These reviews concern possible
unapproved expansions of decks for these two units. As the owner of Unit 10, I am in a position to see
both of these decks. I have occupied this unit for 25 years full-time, and can attest that with the exception
of a small staircase up to the deck of Unit 13, there has been no expansion of the square footage of either
deck during this time period. I lived on the adjacent property downstream during the construction of these
units, but obviously was not taking notes, and soon moved a few blocks away. Apparently neither deck
conforms to the original approved plans for the building, but no one can remember if they were originally
built that way 50 years ago, or were expanded at some later date. At this point it would seem that the
easiest solution to this hearing would be to grandfather in both decks in their current configurations and
close the cases for both of the current owners. The developer/builder of the complex, Harry Uhlfelder, is
long dead, and I doubt if there is anyone, former owner or tenant, still in Aspen who could shed any more
light on the subject. Since the construction of this complex, and several others downstream, the
laws/codes have changed regarding setbacks from the river (stream margins), etc. I suggest that the City
of Aspen not waste any more time or money on this particular subject and move on to more important
matters.
As it is unlikely that this Hearing will be conducted in person with comments from the public, I am asking
you to forward this email on to the Planning and Zoning Commission to be included in the Hearing as
public input.
Thank you in advance,
Edward M. Sullivan
#10, 1050 E. Waters Ave.
Box 1324, Aspen, CO 81612
925-1021
137
Page 1 of 5
MEMORANDUM
TO: City of Aspen Planning and Zoning Commission
FROM: Michelle Bonfils Thibeault, Planner II
THRU: Amy Simon, Planning Director
MEMO DATE: April 20, 2021
MEETING DATE: June 1, 2021
RE: 1050 Waters Ave #15, Special Review - Stream Margin Review Standard Variance
APPLICANT:
Mark Tye
REPRESENTATIVE:
Chris Bendon,
BendonAdams
LOCATION:
1050 Waters Ave. #15
CURRENT ZONING &
USE
This property is located in
the Residential Multi-
Family (R/MF) zone
district and is developed
with an existing 16-unit
multi-family residential
building.
PROPOSED LAND USE:
The Applicant is
requesting a Stream
Margin Variance to allow
for a deck existing in
within the restricted Top of
Slope 15’ Setback and in
the common area of the
condominium association.
STAFF RECOMMENDATION:
Staff recommends the Planning and Zoning Commission deny the request
for a Stream Margin Exemption and require the applicant to restore the
deck to the original condition documented by the plat recorded in 1971.
Figure 1. 1050 Waters Ave. Aerial Image:
138
Page 2 of 5
LAND USE REQUEST AND REVIEW PROCEDURES:
The Applicant is requesting the following land use approval from the Planning and Zoning Commission:
• Special Review (Pursuant to Lane Use Code Section 26.435.040.E): An application requesting a
Stream Margin Review variance to legalize the encroachment of the deck in the Top of Slope
Setback, which requires Special Review by the Planning and Zoning Commission. The Planning
and Zoning Commission is the final review body.
SUMMARY OF PROJECT:
EXISTING CONDITIONS: The subject property is unit #15. The subject property is adjacent to unit #13 who
recently received a correction notice for work beyond an approved building permit for replacement
windows. Staff review of the building permit violations at Unit #13 revealed no approval is recorded for the
current size or configuration of either oversized deck at units #13 or #15. Application of the land use code
requires a stream margin review for consideration of the deck at unit #15 in its current configuration.
The subject property is located within the 16-unit multi-family housing complex known as the Aspen
Townhouses By the River Subdivision, located at 1050 Waters Ave. The property is zoned Residential
Multi-Family (RMF). The building was constructed in 1970, prior to the adoption of Stream Margin Review
Standards. The entirety of the development resides within the 100’ Stream Margin Review area, sits on
and below the Top of Slope, projects into the 45-degree progressive height limit, but is considered to be a
legally established non-conforming structure. The proposed deck represents an expansion from the
recorded approval of 15ft x 4.33ft to the current condition of approximately 15ft x 12ft. The current condition
is defined by the land use code as an enlargement or expansion that increases the nonconformity.
The property is located entirely within the flood plain and the Top of Slope intersects the property. The land
use code prohibits development within 15’ setback from the Top of Slope, with the exception of native
vegetation planting. Figure 2 shows the Top of slope and the existing building footprint (excluding decks)
that are in conflict with the Stream Margin review standards are shown in yellow. The property was
developed prior to the adoption of these Stream Margin Review standards and is considered non-
conforming. Enlargement or expansion that increases a nonconformity is prohibited.
.
Figure 2. 1050 Waters Ave. #15 Top of Slope Map:
PROPOSAL:
139
Page 3 of 5
The applicant proposes to maintain a deck existing in the floodway and in the required15’ setback from the
top of slope. The applicant has provided historical documents showing that the deck has existed in its
current configuration for multiple decades. No changes are proposed to this deck from the existing
configuration, however recent repairs to the deck may have occurred.
The area identified in red in Exhibit 1 identifies the increased deck size, documented in the 2019 survey of
existing conditions and proposed to be maintained. The area in blue identifies the last approved deck size
for the subject property when the property was platted in 1971.
Figure 3. 1050 Waters Ave. #15 Existing Conditions Survey from 2020:
Expansion or redevelopment of the deck beyond the approved dimensions in recorded December 2, 1971
Plat Book 4 Page 227-229, Reception No. 143178 requires land use approval. It is acknowledged that the
Stream Margin Review criteria did not exist at the time of original approval of this project. No approval,
building permit or otherwise is documented for the expansion of the deck from the original approvals of
allowing for a 15ft x 4.33ft patio/deck.
140
Page 4 of 5
STAFF COMMENTS:
Special Review:
The application is subject to Stream Margin Review and does not qualify for a Stream Margin Exemption
because, to the extent that the deck is larger than shown in the 1971 approval documentation, it is
development closer to the Roaring Fork River than has been approved. Stream Margin Review Standard
26.435.040.C.8 prohibits all development within a 15’ Top of Slope Setback, except for native vegetation
planting. The existing deck does not meet the Stream Margin Review criteria since additional development
is proposed that increases the non-conforming development in the Top of Slope Setback. Also,
Nonconforming Uses Standard 23.312.030.(c), prohibits enlargement or expansion that increases the
nonconformity.
To determine eligibility for application of Stream Margin Review, the applicant was required to provide:
1. Proof that construction of the deck intruding on the Limited Common Element was acceptable by
the Aspen Townhouses By The River Condominium Association. The applicant has provided this
proof in the application, Exhibit 6.
2. Floor area calculations for the subdivision showing that the property has sufficient available floor
area for the unapproved deck to be considered for land use approval. The applicant has provided
this proof in the application, Exhibit 17. Staff agrees that floor area is available for the existing
deck.
Section 26.435.040.E, Special Review, requires the Planning and Zoning Commission (P&Z) review
applications that do not comply with the Stream Margin Review Standards. There are two review criteria
for Special Review. The first standard addresses alternative a new Top of Slope determination, which is
not included in this request. The second addresses applications that do not comply with the Stream Margin
Review Criteria.
2. The proposed development meets the stream margin review standard(s) upon which the Community
Development Director had based the finding of denial.
Staff acknowledges that the building was platted prior to the City of Aspen adopting Stream Margin Review
standards. The existing condition of the deck requires land use approval to be maintained. Staff finds the
application does not meet the review standards for Stream Margin Review since the application proposes
to maintain an increase of a nonconforming element within the Top of Slope Setback. Detailed responses
to the review criteria can be found in Exhibit A.
The applicant has provided exhibits indicating the unapproved deck has existed for several decades,
possibly unaltered since it was initially constructed. Staff acknowledges the wood decks require
maintenance; however, the proposed increased deck area encroaches into the Top of Slope and is not
required for building code compliance but is requested as a matter of preference. Even at the time of
construction, there was increasing concern, as expressed in meeting minutes of the Planning and Zoning
Commission from 1971 provided in the application, about development encroaching on the river.
Restricting or outright prohibiting the environmental and visual impacts from building and occupying spaces
in this proximity to the Roaring Fork River have been a long-standing community priority. Although
residents in the area recall the subject deck size being in place for some time and do not object to it, the
existing deck is not what is on record as approved and staff finds no basis for accepting it as so. Other
properties subject to Stream Margin review are consistently not permitted to construct any improvements
below the Top of Slope, as requested in this application.
REFERRALS:
The application was referred to the Engineering Departments for review. Engineering had the following
comments:
141
Page 5 of 5
• The deck is not an approved remodel/expansion. The deck extended the structure farther
towards the high-water line than the original building footprint. There is no evidence that this
was approved and now a non-conformity.
• This is direct violation of municipal code (Sec. 26.435.040 Part B.3.C).
• The Engineering Dept defines Top of slope where there is a break in the grade. On this property
the top of slope is on the western half of building footprint.
• Most of the building is beyond the top of slope line.
RECOMMENDATION: The Community Development Department Staff recommends the Planning and
Zoning Commission deny the proposed request for Special Review requesting a variance from the Stream
Margin Review Standards to allow for a nonconformity to be enlarged within the Top of Slope Setback.
Staff recommends that P&Z require the applicant to submit a plan to restore the deck to the original 1971
approved dimension and character, matching the design of other decks on the building.
RECOMMENDED MOTION:
The draft resolution is written in the affirmative. If the P&Z disagrees with Staff’s recommendation and
wishes to approve the current request for Special Review for a Stream Margin Review Exemption,
including the larger deck, the following motion should be used.
“I move to approve Resolution #__, Series of 2021 granting approval for Special Review for a variance
to the Stream Margin Review Standards.
ATTACHMENTS:
Resolution #__, Series of 2021
Exhibit A – Stream Margin Review Criteria
Exhibit B – Stream Margin Special Review - Review Criteria
Exhibit C – Application
Exhibit D – Public Comment
142
P&Z Resolution #__, Series of 2021
Page 1 of 2
RESOLUTION #__
(SERIES OF 2021)
A RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION
DENYING SPECIAL REVIEW/STREAM MARGIN APPROVAL FOR THE
PROPERTY LOCATED AT 1050 WATERS AVENUE, UNIT 15, ASPEN
TOWNHOUSES BY THE RIVER CONDOMINIUMS, CITY OF ASPEN, COLORADO
PARCEL ID: 2737-182-40-017
WHEREAS, the Community Development department received an application from
BendonAdams, representing Mark Tye Trust, requesting Special Review/Stream Margin approval
to legalize work that was completed without necessary land use and building permits; and,
WHEREAS, upon review of the application and the Land Use Code standards, and referral of
the application to other City Departments for comments, the Community Development Director
recommended denial; and,
WHEREAS, the City of Aspen Planning and Zoning Commission reviewed and considered
the development proposal under the applicable provisions of the Land Use Code, in particular
Section 26.435.040, reviewed and considered the recommendation of the Community
Development Director and took and considered public comment at a duly noticed public hearing
on June 1, 2021; and,
WHEREAS, the City of Aspen Planning and Zoning Commission finds by a ___ to ___ (x-x)
vote that the development proposal does not meet the applicable review criteria and that denial of
the request is consistent with the goals and objectives of the Land Use Code; and,
WHEREAS, the City of Aspen Planning and Zoning Commission finds that this Resolution
furthers and is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED by the Aspen Planning and Zoning Commission
that:
Section 1:
The City of Aspen Planning and Zoning Commission hereby denies the request for Special
Review/Stream Margin Review approval and require the applicant to submit a permit to restore
the deck to the 1971 approved dimension and character, matching the design of other decks on the
building. The permit must be submitted within 30 days of this action and must be pursued in a
timely fashion to a Letter of Completion issued by the Building Department.
Section 2:
All material representations and commitments made by the Applicant pursuant to the development
proposal approvals as herein awarded, whether in public hearing or documentation presented
143
P&Z Resolution #__, Series of 2021
Page 2 of 2
before the Planning and Zoning Commission, are hereby incorporated in such site development
approvals and the same shall be complied with as if fully set forth herein, unless amended by an
authorized entity.
Section 3:
This resolution shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein
provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4:
If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held
invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining portions
thereof.
APPROVED by the Commission at its meeting on June 1, 2021.
APPROVED AS TO FORM: PLANNING AND ZONING
COMMISSION:
___________________________________ ________________________
Katharine Johnson, Assistant City Attorney Spencer McKnight, Chair
ATTEST:
____________________________
Cindy Klob, Records Manager
144
1 | Page
Exhibit A
Stream Margin Review Criteria
C. Stream margin review standards. No development shall be permitted within the stream
margin of the Roaring Fork River unless the Community Development Director makes a
determination that the proposed development complies with all requirements set forth below:
1. It can be demonstrated that any proposed development which is in the Special Flood
Hazard Area will not increase the base flood elevation on the parcel proposed for
development. This shall be demonstrated by an engineering study prepared by a
professional engineer registered to practice in the State which shows that the base flood
elevation will not be raised, including, but not limited to, proposing mitigation techniques
on or off-site which compensate for any base flood elevation increase caused by the
development; and
Staff Response: The subject property is located within the 16-unit multi-family housing
complex known as the Aspen Townhouses By the River Subdivision constructed in the
early 1970’s. The entirety of the development resides within the 100’ Stream Margin
Review area and is considered to be a legal non-conforming structure due to the presence
of the structure on the Top of Slope. Aspen Townhouses By the River Condominiums
were constructed prior to the adoption of Stream Margin Review Standards.
The improvements under consideration in this review have already been constructed.
Staff does not support approval of the project, finding that review criteria are not met.
An engineering study of the base flood elevation can be completed as a condition of
approval if the project proceeds.
2. The recommendations of the Aspen Area Community Plan: Parks/Recreation/Open
Space/Trails Plan and the Roaring Fork River Greenway Plan are implemented in the
proposed plan for development, to the greatest extent practicable. Areas of historic public
use or access shall be dedicated via a recorded easement for public use. A fisherman's
easement granting public fishing access within the high-water boundaries of the river
course shall be granted via a recorded "Fisherman's Easement;" and
Staff Response: No public use, access, or easements exist on the property.
Staff finds this criterion not applicable.
3. There is no vegetation removed or damaged or slope grade changes (cut or fill) made
outside of a specifically defined building envelope. A building envelope shall be
designated by this review and said envelope shall be designated by this review and said
envelope shall be recorded on a plat pursuant to Subsection 26.435.040.F.1; and
Staff Response: No vegetation is proposed to be removed now, however it may have been
removed at the time that the deck was enlarged. It is acknowledged that the Stream
145
2 | Page
Margin Review criteria and Building Envelopes standards did not exist at the time of
original approval of this project.
Staff finds this criterion cannot be evaluated with the information available.
4. The proposed development does not pollute or interfere with the natural changes of the
river, stream or other tributary, including erosion and/or sedimentation during construction.
Increased on-site drainage shall be accommodated within the parcel to prevent entry into
the river or onto its banks. Pools or hot tubs cannot be drained outside of the designated
building envelope; and
Staff Response: The applicant’s proposal includes historical documents suggesting the
deck has existed in its current configuration for several decades, although without
formal land use approval. If the current size and configuration have existed as the
applicant suggests, impacts of the deck have been realized for several decades and no
change in impact is caused by continuing the existence of the deck in its current
configuration and size. That does not suggest that the criteria should be found to be met,
but rather that the impact of the expansion can’t be assessed.
Staff finds this criterion cannot be evaluated with the information available.
5. Written notice is given to the Colorado Water Conservation Board prior to any alteration
or relocation of a water course and a copy of said notice is submitted to the Federal
Emergency Management Agency; and
Staff Response: No new alteration of the watercourse is proposed. Written notice to the
Colorado Water Conservation Board and the Federal Emergency Management Agency
is not required.
Staff finds this criterion not applicable.
5. A guarantee is provided in the event a water course is altered or relocated, that applies to
the developer and his heirs, successors and assigns that ensures that the flood carrying
capacity on the parcel is not diminished; and
Staff Response: The proposed development will not alter or relocate the existing water
course from the current condition.
Staff finds the guarantee could be a condition of approval if granted.
7. Copies are provided of all necessary federal and state permits relating to work within the
100-year flood plain; and
Staff Response: The subject property is located within the 16-unit multi-family housing
complex known as the Aspen Townhouses By the River Subdivision constructed in the
early 1970’s. The entirety of the development resides within the 100’ Stream Margin
146
3 | Page
Review area and is considered a legal non-conforming structure due to the presence of
the structure on the Top of Slope. Similarly, the subject building is located within the
100-year flood plain. After the building’s approval and construction in the 1970’s, no
documentation of approval for increasing the nonconformities of the building has been
found.
Staff finds this criterion not met.
8. There is no development other than approved native vegetation planting taking place below
the top of slope or within fifteen (15) feet of the top of slope or the high waterline,
whichever is most restrictive. This is an effort to protect the existing riparian vegetation
and bank stability. New plantings (including trees, shrubs, flowers and grasses) outside of
the designated building envelope on the river side shall be native riparian vegetation as
approved by the City. A landscape plan will be submitted with all development
applications. The top of slope and 100-year flood plain elevation of the Roaring Fork River
shall be determined by the Stream Margin Map located in the Community Development
Department and filed at the City Engineering Department; and
Staff Response: The proposed deck represents an expansion from the recorded approval
of 15ft x 4.33ft to the current condition of 15ft x 12ft. This increases the extent of the
development below the top of slope line, which is not permitted for new work.
Staff finds this criterion not met.
9. All development outside the fifteen (15) foot setback from the top of slope does not exceed
a height delineated by a line drawn at a forty-five (45) degree angle from ground level at
the top of slope. Height shall be measured and determined by the Community Development
Director using the definition for height set forth at Section 26.04.100 and method of
calculating height set forth at Section 26.575.020 as shown in Figure "A"; and
Staff Response: The existing structure was built prior to the adoption of Stream Margin
Review Standards and is therefore considered an existing non-conformity.
The proposed deck represents an expansion from the recorded approval of 15ft x 4.33ft
to the current condition of 15ft x 12ft. This is an enlargement or expansion that increases
the nonconformity.
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Staff finds this criterion not met.
10. All exterior lighting is low and downcast with no light(s) directed toward the river or
located down the slope and shall be in compliance with Section 26.575.150. A lighting
plan will be submitted with all development applications; and
Staff Response: A lighting plan has not been submitted. Compliance with the Outdoor
lighting regulations would be confirmed at building permit.
11. There has been accurate identification of wetlands and riparian zones.
Staff Response: The applicant has indicated that there are any wetlands or riparian
zones located within the property and no documentation to the contrary has been found
by staff.
Staff finds this criterion to be met.
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Exhibit B
Special Review Criteria
Sec. 26.435.040. Stream margin review.
E. Special review. An application requesting a variance from the stream margin review standards
or an appeal of the Stream Margin Map's top of slope determination, shall be processed as a special
review in accordance with common development review procedure set forth in Chapter 26.304.
The special review shall be considered at a public hearing for which notice has been published,
posted and mailed, pursuant to Subsection 26.304.060.E.3 Paragraphs a, b and c. Review is by the
Planning and Zoning Commission.
A special review from the stream margin review determination may be approved, approved with
conditions or denied based on conformance with the following review criteria:
1. An authorized survey from a Colorado professionally licensed surveyor shows a different
determination in regard to the top of slope and 100-year flood plain than the Stream Margin
Map located in the Community Development Department and filed in the City Engineering
Department; and
Staff Response: The Top of Slope is not in question and no change is proposed. The
subject property is located within the 16-unit multi-family housing complex known as
the Aspen Townhouses by the River Subdivision constructed in the early 1970’s, prior to
the adoption of Stream Margin Review standards. The entirety of the development
resides within the floodplain and the majority of the building resides within the 100’
Stream Margin Review area and is considered a legal non-conforming structure due to
the presence of the structure on the top of the slope.
Staff finds this criterion is not applicable.
2. The proposed development meets the stream margin review standard(s) upon which the
Community Development Director had based the finding of denial.
Staff Response: The proposed development does not meet the review criteria of Section
26.435.040.C., Stream Margin Review. The applicant has suggested the deck has existed
unaltered in its current size and configuration for several decades. Staff cannot rely on
the documents provided to confirm when the deck was altered (i.e. the deck plan provided
in the 1999 appraisal shows a generalized deck of 12ft x 14ft compared to the detailed
deck shown in the 2020 existing conditions survey). Land use approvals are required to
maintain the existing deck. The existing alterations represent an increase of the non-
conforming elements of the deck within the flood plain, Top of Slope Setback and 45-
degree top of slope progressive height limit.
Staff finds this criterion is not met.
3. The expansion, remodeling or reconstruction of an existing development provided the
following standards are met:
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a. The development does not add more than ten percent (10%) to the floor area of the
existing structure or increase the amount of building area exempt from floor area
calculations by more than twenty-five percent (25%). All stream margin
exemptions are cumulative. Once a development reaches these totals, a stream
margin review by the Planning and Zoning Commission is required; and
Staff Response: The application does not add more than 10% to the floor area of the
existing structure. In fact, the current conditions (with deck encroachment) are under the
15% floor area exemption allowed by the R/MF zone district standards.
The current calculation for the entirety of the Aspen Townhouses by the River Subdivision
for exempt floor area total approximately 1,739 sq.ft. (including the subject deck as it
exists today). The R/MF zone district allows for a 15% exemption of floor area available
for decks, balconies, loggias, gazebos, trellis, exterior stairways, and non-street-facing
porches. The allowable R/MF zone 15% floor area exemption for deck, balcony, etc. floor
area is approximately 2,470 sq.ft. as estimated below:
Estimated existing floor area
Building 1 9,258
Building 2 7,209
TOTAL 16,467 sq.ft.
15% of 16,467 = 2,470 sq.ft.
Estimated Existing Deck Area
Building 1 896
Building 2 843
TOTAL 1,739 sq.ft.
The recorded approvals for the property allow for a 15ft x 4.33ft deck, or 65 sq.ft. The
existing deck is 182 sq.ft., an increase of 117 sq.ft. When considered against the total
allowable floor area for the property, this is only a 0.7% increase in floor area from the
approved recorded amended plat.
Staff finds this criterion is met.
b. The development does not require the removal of any tree for which a permit would
be required pursuant to Chapter 13.20 of this Code.
Staff Response: Tree removal is not in question and no change is proposed, however it
cannot be determined if any trees were removed to expand the deck in the past.
Staff finds this criterion cannot be assessed with the information that is available.
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c. The development is located such that no portion of the expansion, remodeling or
reconstruction will be any closer to the high-water line than is the existing
development;
Staff Response: The entirety of the development resides within the flood plain and a
majority of the subject building is within the 100’ Stream Margin Review area and is
considered a legal non-conforming structure due to the presence of the structure on the
top of the slope. Per Section 23.312.030.(c), a nonconforming structure shall not be
extended by an enlargement or expansion that increases the nonconformity.
There is no official documentation of when the deck footprint changed from the recorded
approval of 15’ x 4.33’ (or 65 sq.ft.) to the current size of +/-182.5 sq.ft. (a 45% increase
in size). The current deck is approximately eight feet closer to the stream margin than
the recorded approvals allowed for. While the applicant has provided neighborhood
testimony as a part of the application that the deck has existed as-is for several decades,
there is not a standard in the land use code for staff to consider such findings against
the review criteria.
Staff finds this criterion not met.
d. The development does not fall outside of an approved building envelope if one has
been designated through a prior review; and
Staff Response: There is not an approved building envelope for this property.
Staff finds this criterion is not applicable.
e. The expansion, remodeling or reconstruction will cause no increase to the amount
of ground coverage of structures within the 100-year flood plan.
Staff Response: The entirety of the development resides within the 100’ Stream Margin
Review area and is considered a legal non-conforming structure due to the presence of
the structure on the top of the slope. Per Section 23.312.030.(c), a nonconforming
structure shall not be extended by an enlargement or expansion that increases the
nonconformity.
The proposed deck represents an expansion from the recorded approval, which is an
enlargement or expansion that increases the nonconformity. While the applicant has
provided neighborhood testimony as a part of the application that the deck has existed
as-is for several decades, there is not a standard in the land use code for staff to consider
such findings against the review criteria.
Staff finds this criterion not met.
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April 14, 2021
Michelle Bonfils Thibeault
Community Development
City of Aspen
130 So. Galena St.
Aspen, CO 81611
RE: 1050 Waters Avenue #15 – Stream Margin Special Review
Ms. Bonfils Thibeault:
Please accept this application for a Stream
Margin Special Review for the deck located at
1050 E. Waters Avenue, Unit 15. This request
follows issuance of a correction notice issued
to Unit 13 by the City of Aspen for work being
accomplished without a permit in the spring of
2020 and a subsequent land use application in
October of 2020.
In an effort to remedy the correction notice and
memorialize the existing decks staff directed
the owners of Unit 13 to apply for a Stream
Margin Exemption. However, early review of
the application materials and the lack of documented history of the building raised
questions around the floor area and deck allowances for the whole property and the review
was adjusted to a Stream Margin Special Review.
Due to the fact that the decks for Unit 13 and Unit 15 are adjacent and in the same
proximity to the Roaring Fork River, the City has asked the owner of Unit 15 to also apply
for Special Review so that the decks can be assessed simultaneously before the Planning
and Zoning Commission.
BendonAdams is representing both the owners of Units 13 and 15. Historical information
demonstrates the longstanding (5 decades) presence of these decks in their current size
and location. We are requesting these decks be granted approval as an existing condition.
Property location
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1050 Waters Ave #15
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Property History
The 1050 Waters Avenue property was constructed in the late 1960s/early 1970s, by Harry
Uhlfelder, prior to many of the land use code measures that are in place today – including
the requirement for property surveys, the Universal Building Code and Stream Margin
regulations.1
An excerpt from the minutes of a July 1971 Planning and Zoning Commission meeting
reference that the building permit for the property was obtained March 9th 1970, and the
regulations went into effect on April 20th. The UBC and property survey requirements were
adopted after the permit for the 1050 Waters project was already issued.
While the building and land use files are sparce from this time period – the project team
has found Planning and Zoning minutes from 1968 and 1971 that reference the project’s
construction, and a pre-1990 permit file that has the final inspection listed as January 21st
1972 and Certificate of Occupancy signed January 26th 1972. The condo plat (Book 4
Page 227) for the building containing Units 9-16 was filed with Pitkin County on November
26, 1971.
Historical Documentation
The expansion of the decks on Unit 15 and Unit 13 appear to be a very early modification
to the building. In fact, we suspect the decks could have been built as a site adjustment
during the initial construction. Supports for both decks and the decking on Unit 15’s deck
appear to be vintage 1970’s construction. (Unit 13’s deck has been resurfaced).
2006 – Present
The Rothschilds, owners of Unit
13, purchased Unit 16, which
sits above Mr. Tye’s Unit 15 in
2006 and initiated renovation.
The renovation plans in the
building permit file, designed by
Rowland and Broughton, clearly
illustrate the Unit 15 deck in its
current configuration with the
staircase heading down
alongside the south elevation of
the property. The Rothschilds
have also submitted an affidavit
attesting to the presence of the
decks in their current
configuration.
1 Building permit for 1050 issued March 1970 – UBC and survey regulations relative to Stream Margin Review
went into effect in April 1970
Unit 15 deck in current configuration from 2007 drawing set
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1996 – Present
Mark Tye, owner of Unit 15, provided an affidavit attesting to his
knowledge of the property – stating that there have not been any
changes to the dimensions of the decks under his ownership. Mr. Tye
purchased the property in 1999 from his then girlfriend, who had lived
in the unit since late 1996/early 1997. An appraisal of the property was
conducted at the time of purchase which confirms the decks at their
current configuration and dimensions. The assumption of value
recognized the deck as part of the overall property, although a discrete
value of the deck was not cited.
1990 – Present
Owner of Unit 10 since 1990, Edward Sullivan, attests that to his
knowledge and recollection, the decks in question have always been
in their present size. Owner of Unit 9 since 1991, Annilese Chumley,
also attests to the best of her recollection that these decks were
“were always big.”
To date, there have been 6 unique owners of the Unit 13
property, and 3 unique owners of the Unit 15 property. The
project team has attempted to track down contact
information for each of the owners including the two
original owners of the units to gain further information –
contact was attempted by telephone and mail.
At time of submission of the application we were
unsuccessful in reaching either of the original unit owners,
however, given the dimension of the decks is nearly
identical we believe that they would have been installed
at/or around the same time. The dimensions of the decks
are roughly the same – approximately 12 by 15 feet each
or about 180+/-square feet each.
1967 – present
While not an owner at the Aspen Townhomes by the River, William “Scott” Geary and
Wendy Geary (owners of the small A-frame house at 1102 Waters Avenue) have provided
a statement stating that their “house was built in 1967, and as a younger man, Scott
remembers the Townhomes by the River being built with decks –that they had a great view
from their back deck looking North on the Roaring Fork River and the Townhomes. Over
Unit 15 Deck Configuration from
1999 Appraisal
Current picture of
Unit 15 Deck
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1050 Waters Ave #15
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the last 38 years they have
spent a major part of their time
in Aspen and recall the two
larger decks that are towards
the south side of the building.”
According to Scott and Wendy
Geary, “these two decks were
always larger than the other
decks since they are built over
ground and not the river.”
Floor Area
On behalf of the applicants, BendonAdams commissioned Red Room Design, local
Architects with expertise in measuring floor area of properties and existing conditions.
While accessing the interior all of the units was not possible, the calculations measure
exterior wall to exterior wall and include the existing deck areas on site.
The gross lot size is 21,929 SF based upon the survey dated September 3rd, 2020, which
allows for a FAR of 1.25:1 based upon 16 units on site – per code Section
26.710.090D.10.d. The property is allowed 27,411.25 square feet of development,
significantly above the gross and estimated Floor Area measured on the property.
Table 1: Floor Area Calculations
Building Units Gross FA (sf) Estimated FA (sf)
1 8 11,738.2 9,258.5
2 8 8,312.8 7,209.35
Totals 20,051sf 16,467.85sf
Table 2: Gross Deck Calculations
Building Deck Tally Across all
Units (sf)
1 896
2 843.3
Total Existing 1739.3
15% Allowable
Exemption
Based on Allowed FA
4,111
Google Earth view of 1050 and
1102 Waters Ave
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This information clearly shows that even at gross estimates of the floor area, assuming
little to no exemptions, the property is significantly under zoning allowances for the RMF
Zone District. The decks are well within the 15% exemption threshold allowed and do not
present any challenges to the dimensional provisions for the RMF Zone District. No
expansion in floor area was created by the recladding of the deck on Unit 13.
Stream Margin Review
This application is subject to the Special Review Criteria in Code Section 26.435.040(e)
where an application requesting a variance from the stream margin review standards or
an appeal of the Stream Margin top-of-slope determination, shall be processed as a
special review in accordance with common development review procedures and may be
approved, approved with conditions, or denied based on conformance on the review
criteria.
Unique to these properties is their construction prior to these regulations coming into effect
– the byproduct of which can be seen throughout town along the Roaring Fork River. In
our research of available public files there is only one other property of similar
circumstance that the applicant believes would serve as a precedent for both staff and the
Planning and Zoning Commission in their review of this property.
Land Use Precedent
In early 1992, Unit 25 of 1028 E Hopkins (Riverview
Association), was cited for replacing an existing deck without
applying for a permit. A permit was submitted and rejected by
the Zoning officer and the project was deemed subject to
Stream Margin Exemption Review for ‘replacing a
deteriorated deck and installing a stairway’ due to the unit’s
location being within 100 feet of the Roaring Fork River.
The aerial to the right illustrates the proximity of the building
to the Roaring Fork River, and the location of Unit 25 within
the building. This is very comparable to the placement of
Units 13 and 15 of 1050 Waters.
Planning and Engineering staff found that the property had
replaced the deck in the same exact location and in the same
dimensions as the previous deck. Furthermore, their review
found that there were no property setback violations, that the
Floor Area and site coverage were not affected, and that the
deck was not in a trail easement nor would it retain more flood
debris than the previous deck. Although without a previous
Stream Margin approval, the reconstructed decks was
recognized as an existing condition and approved to remain.
1028 East Hopkins Unit 25 Location of
Deck and Staircase to River
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The full set of Stream Margin Exemption Review criteria applicable to the 1028 project are
listed below:
Exemptions. The Community Development Director may exempt the following
types of development within the stream margin
review area:
a) The development does not add more than
ten percent (10%) to the floor area of the
existing structure or increase the amount of
building area exempt from floor area
calculations by more than twenty-five
percent (25%). All stream margin
exemptions are cumulative. Once a
development reaches these totals, a stream
margin review by the Planning and Zoning
Commission is required; and
b) The development does not require the
removal of any tree for which a permit
would be required pursuant to Chapter 13.20 of this Code.
c) The development is located such that no portion of the expansion, remodeling
or reconstruction will be any closer to the high-water line than is the existing
development;
d) The development does not fall outside of an approved building envelope if one
has been designated through a prior review; and
e) The expansion, remodeling or reconstruction will cause no increase to the
amount of ground coverage of structures within the 100-year flood plan.
The project at 1028 E Hopkins was approved as built with the staircase – and granted a
permit to memorialize the replacement of the deck and creation of the stairs. The project
team believes that this land use case – with all of its similarities – provides a strong basis
for approval and memorialization of the existing decks at 1050 Waters Avenue.
1050 Waters Avenue
As mentioned above, the application for Unit 13 at 1050 Waters Avenue was initially
accepted by the City as a Stream Margin Exemption Review. The staff and applicant had
discussed removal of the stairs (as they are new construction) and processing the
remaining elements as a Stream Margin Exemption. Staff later staff pivoted the review to
a Stream Margin Special Review.
Where Stream Margins Exemptions are typically utilized for updates to previously
completed work – Special Reviews are used for authorizing a new ‘top of slope’ and an
appeal to a finding of Denial by the Community Development Director. Responses to the
full Stream Margin Review and Special Review are outlined in Exhibit 1.
Roaring
Fork River
Deck + Stair
Figure 6: Proximity of Unit and deck at 1028 E Hopkins to
Roaring Fork River.
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1050 Waters Ave #15
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Please note that while this application responds to the City’s request for additional
information, many of the review standards do not apply to this circumstance. There is no
new top of slope being proposed nor is the applicant appealing a finding of denial of
compliance with the Stream Margin Review standards. This application requests
acknowledgement of an existing condition.
Our team has spoken with City Engineering,
a referral Department, and we understand
that while top of slope can present challenges
based upon where it falls on a property, it is
not looked at as stringently as the FEMA
Floodway which is a secondary measure
utilized to assess properties within the
Stream Margin area.
Using the information available through Map
Aspen, the Floodway crosses both the 1028
E Hopkins and the 1050 Waters Avenue
properties, however, it only intrudes upon a
portion of these properties, and units with
decks in question are outside of the Floodway
areas – another commonality between the
precedent land use case and 1050 Waters
Avenue.
The orange line in the Figures to the right
represent the mapped Floodway along 1050
Waters Avenue and along 1028 E. Hopkins
Avenue. Both properties have similar
orientations to the Floodway and the Roaring
Fork River.
The 1028 and 1050 properties have similar
proximity to the Roaring Fork River. Both
were initially stopped during deck resurfacing
work without a permit and called into question
regarding Stream Margin Review. Both
properties are of the late 60s early 70s
vintage construction and neither was able to
show definitive proof of an original building
permit – at least not with the precision that
today’s permit files offer. Upon review, the
1028 deck was considered to be an existing
condition by the City and allowed to proceed
with the deck resurfacing effort.
Unit 25, 1028 E Hopkins Avenue
Units 13 and 15, 1050 Waters
Avenue
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1050 Waters Ave #15
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Given that Aspen continues to evolve, with properties being developed according to the
rules and regulations is effect at the time of their permitting, accommodation of existing
conditions is a necessary component of administering an ever-changing Land Use Code.
This appears to have been the case with the 1028 property – after an initial reaction from
the City there was appreciation and acceptance of the existing condition and
accommodation of the deck resurfacing effort. The deck 1028 deck was acknowledged,
documented, but not allowed to expand.
Summary
The deck appended to Unit 15 has been in its current configuration for a very, very long
time. While the exactitude of a distinct permit for this deck is not in the City’s records,
every point of reference speaks to this deck being developed either with the initial
construction of the 1050 property or very shortly thereafter. The project team has
responded to staff’s three main areas of concern:
1) The owners of Units 13 and 15 have obtained approval from the HOA for deck
configuration and placement extending into the G.C.E of the property. This
approval from the HOA does require the stairs on Unit 13 to be removed – as has
been previously committed by the applicant. A permit will be obtained for this
removal.
2) The floor area exhibits demonstrate property-wide compliance with the RMF Zone
District requirements for both Floor Area and deck area. This application does not
seek additional deck area or seek to expand the property in any way.
3) Finally, the affidavits provided illustrate that these decks have been in place since
inception of the project, or shortly thereafter, and have been relied upon as
essential features of the property in value assessments and various transactions
to subsequent owners of the properties.
Requiring removal of these longstanding decks would be inconsistent with the City’s
handling of the one previous precedent – 1028 E. Hopkins. This inequitable outcome
would create a hardship and financial infringement upon the current owners who
purchased the properties in an ‘as is’ condition and who likely paid a premium for the
square footage associated with these features.
This application requests the memorialization of the longstanding existing condition of the
Unit 15 deck. No new construction is proposed. Allowing the deck to exist in its current
configuration, not expand, is compliant with the applicable criteria and would be consistent
with prior actions of the City.
The property is legally described as Condominium Unit 15; Aspen Townhouse by the River
Condominiums. The property is owned by Mark M. Tye Trust . BendonAdams has been
authorized by Mr. Tye to submit this land use application. Approval from the Homeowners
association has been obtained for the deck described in this application.
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We believe this application contains the necessary information for a complete and
competent review. Please let us know if additional information is needed. We look forward
to your review and will make ourselves available for any questions or concerns you have.
We can also arrange a site visit at your request.
Kind Regards,
Chris Bendon, AICP
BendonAdams LLC
Attachments:
1. Response to Review Criteria
2. Application Form
3. Authorization to Represent
4. Proof of Ownership
5. Agreement to Pay
6. HOA Form, with deck approval
7. Pre-Application Summary
8. Vicinity Map
9. Site Improvement Survey (2020 & 2021)
10. Historical Documents – 1050 Waters
11. Historical Documents – 1028 E. Hopkins
12. 2007 Unit 16 plans showing Unit 15 deck
13. Rothchild Affidavit
14. Tye Affidavit
15. Geary Email
16. 1999 Unit 15 Property Appraisal
17. Floor Area Measurements
160
Exhibit 1
Review Criteria
page 1
Sec. 26.435.040. – Stream Margin Review.
(a) Applicability. The provisions of the stream margin review shall apply to all development
within one hundred (100) feet, measured horizontally, from the high water line of the
Roaring Fork River and its tributary streams and to all development within the Flood
Hazard Area, also known as the 100-year flood plain.
(b) Exemptions. The Community Development Director may exempt the following types of
development within the stream margin review area:
(1) Construction of pedestrian or automobile bridges, public trails or structures for
irrigation, drainage, flood control or water diversion, bank stabilization, provided plans and
specifications are submitted to the City engineer demonstrating that the structure is
engineered to prevent blockage of drainage channels during peak flows and the
Community Development Director determines the proposed structure complies, to the
extent practical, with the stream margin review standards.
Response – Not applicable. The documentation of existing improvements
discussed in this application are not civic improvements or flood control
devices.
(2) Construction of improvements essential for public health and safety which cannot be
reasonably accommodated outside of the "no development area" prescribed by this
Section including, but not limited to, potable water systems, sanitary sewer, utilities and
fire suppression systems provided the Community Development Director determines the
development complies, to the extent practical, with the stream margin review standards.
Response – Not applicable. The documentation of existing improvements
discussed in this application are not essential for health and safety reasons.
(3) The expansion, remodeling or reconstruction of an existing development provided
the following standards are met:
a. The development does not add more than ten percent (10%) to the floor area of
the existing structure or increase the amount of building area exempt from floor
area calculations by more than twenty-five percent (25%). All stream margin
exemptions are cumulative. Once a development reaches these totals, a stream
margin review by the Planning and Zoning Commission is required; and
Response – The structure is not proposed for expansion and no increase
in floor area will occur. No expansion of deck area (exempt from floor area)
is proposed. A calculation of floor area and deck area is attached to the
application. Acknowledgement and documenting the existing condition will
not change this measurement.
161
Exhibit 1
Review Criteria
page 2
b. The development does not require the removal of any tree for which a permit would
be required pursuant to Chapter 13.20 of this Code.
Response – The proposal does not require the removal of any trees.
c. The development is located such that no portion of the expansion, remodeling or
reconstruction will be any closer to the high water line than is the existing
development;
Response – No changes to the existing development are proposed and no
portion of the development will be any closer to the highwater line of the
Roaring Fork River than existing development.
Picture looking north at Unit 15 deck with
Roaring Fork River in background
Picture looking from river back to
deck of Unit 15 (on left)
Sept. 2, 2020 property survey -
close-up of the deck area
162
Exhibit 1
Review Criteria
page 3
d. The development does not fall outside of an approved building envelope if one has
been designated through a prior review; and
Response – Not applicable. The property does not have a building
envelope designated through a prior review.
e. The expansion, remodeling or reconstruction will cause not increase to the amount
of ground coverage of structures within the 100-year flood plain.
Response – No increase to the ground coverage will occur. The existing
condition is not proposed to be changed. The finished level of Units 13 and
15 is noted on the survey as being at elevation 7,961ft (MSL) while the
highwater mark is noted on the survey as being at elevation 7,945ft (MSL).
(c) Stream margin review standards. No development shall be permitted within the stream
margin of the Roaring Fork River unless the Community Development Director makes a
determination that the proposed development complies with all requirements set forth
below:
1. It can be demonstrated that any proposed development which is in the Special Flood
Hazard Area will not increase the base flood elevation on the parcel proposed for
development. This shall be demonstrated by an engineering study prepared by a
professional engineer registered to practice in the State which shows that the base
flood elevation will not be raised, including, but not limited to, proposing mitigation
techniques on or off-site which compensate for any base flood elevation increase
caused by the development; and
Response – Not applicable. No development is proposed and no development is
proposed within the Special Flood Hazard Area.
2. The adopted regulatory plans of the Open Space and Trails Board and the Roaring
Fork River Greenway Plan are implemented in the proposed plan for development,
to the greatest extent practicable. Areas of historic public use or access shall be
dedicated via a recorded easement for public use. A fisherman's easement granting
public fishing access within the highwater boundaries of the river course shall be
granted via a recorded "Fisherman's Easement;" and
Response – The Open Space and Trails Board does not have any adopted regulatory
plans that affect this parcel. The Roaring Fork Greenway Plan does not appear to be
effective of applicable. This plan is not referenced in the City of Aspen Municipal Code
or the 2012 Aspen Area Community Plan. A search of City ordinances reflects that
this plan was not adopted as a regulatory document and the plan does not appear on
the City’s website. City staff have not been able to locate a copy of this plan. If a copy
of the plan is located, the applicant will review regulatory aspects for applicability to
this property.
163
Exhibit 1
Review Criteria
page 4
3. There is no vegetation removed or damaged or slope grade changes (cut or fill) made
outside of a specifically defined building envelope. A building envelope shall be
designated by this review and said envelope shall be designated by this review and
said envelope shall be recorded on a plat pursuant to Subsection 26.435.040(f)(1);
and
Response – No changes to any vegetation are proposed. This application is limited
to documenting an existing condition.
4. The proposed development does not pollute or interfere with the natural changes of
the river, stream or other tributary, including erosion and/or sedimentation during
construction. Increased on-site drainage shall be accommodated within the parcel to
prevent entry into the river or onto its banks. Pools or hot tubs cannot be drained
outside of the designated building envelope; and
Response – Not applicable. This proposal is limited to documenting existing
conditions and no construction is proposed.
5. Written notice is given to the Colorado Water Conservation Board prior to any
alteration or relocation of a water course and a copy of said notice is submitted to
the Federal Emergency Management Agency; and
Response – No alteration of the water course is proposed. If, in the future, the water
course is altered or relocated the Colorado Water Conservation Board will be provided
written notice with a copy to the Federal Emergency Management Agency.
6. A guarantee is provided in the event a water course is altered or relocated, that
applies to the developer and his heirs, successors and assigns that ensures that the
flood carrying capacity on the parcel is not diminished; and
Response – No alteration of the water course is proposed. If, in the future, the water
course is altered or relocated an appropriate guarantee will be supplied.
7. Copies are provided of all necessary federal and state permits relating to work within
the 100-year flood plain; and
Response – Not applicable. No construction activities are proposed with this
application or planned.
8. There is no development other than approved native vegetation planting taking place
below the top of slope or within fifteen (15) feet of the top of slope or the high
waterline, whichever is most restrictive. This is an effort to protect the existing
riparian vegetation and bank stability. New plantings (including trees, shrubs, flowers
and grasses) outside of the designated building envelope on the river side shall be
native riparian vegetation as approved by the City. A landscape plan will be
submitted with all development applications. The top of slope and 100-year flood
plain elevation of the Roaring Fork River shall be determined by the Stream Margin
Map located in the Community Development Department and filed at the City
Engineering Department; and
164
Exhibit 1
Review Criteria
page 5
Response – No development is proposed. This application is limited to
acknowledging existing conditions for a deck that was built decades earlier.
9. All development outside the fifteen (15) foot
setback from the top of slope does not exceed a
height delineated by a line drawn at a forty-five (45)
degree angle from ground level at the top of slope.
Height shall be measured and determined by the
Community Development Director using the
definition for height set forth at Section 26.04.100
and method of calculating height set forth
at Section 26.575.020 as shown in Figure "A"; and
Response – No new development is proposed. The application is limited to
documenting existing conditions.
10. All exterior lighting is low and downcast with no light(s) directed toward the river or
located down the slope and shall be in compliance with Section 26.575.150. A
lighting plan will be submitted with all development applications; and
Response – No additional exterior lighting is proposed. Any new lighting associated
with a development application will be downcast and not directed towards the river.
11. There has been accurate identification of wetlands and riparian zones.
Response – The property survey identifies wetlands and riparian zones.
(d) Appeal of Director's determination. An appeal of a determination in regards to a
stream margin application or in regards to the top of slope determination made by the
Community Development Director, shall be reviewed as a special review pursuant to
Subsection (e), below. In this case, the Community Development Director's finding shall
be forwarded as a recommendation and a new application need not be filed.
Response – A determination has not been made at the time of this application.
(e) Special review. An application requesting a variance from the stream margin review
standards or an appeal of the Stream Margin Map's top of slope determination, shall be
processed as a special review in accordance with common development review
procedure set forth in Chapter 26.304. The special review shall be considered at a public
hearing for which notice has been published, posted and mailed, pursuant to
Subsection 26.304.060(e)(3) Paragraphs a, b and c. Review is by the Planning and
Zoning Commission.
A special review from the stream margin review determination may be approved,
approved with conditions or denied based on conformance with the following review
criteria:
165
Exhibit 1
Review Criteria
page 6
1. An authorized survey from a Colorado professionally licensed surveyor shows a
different determination in regards to the top of slope and 100-year flood plain
than the Stream Margin Map located in the Community Development Department
and filed in the City Engineering Department; and
Response – This application is not requesting a different determination for top-of-
slope. The application is limited to documenting existing conditions. A survey has
been provided.
2. The proposed development meets the stream margin review standard(s) upon
which the Community Development Director had based the finding of denial.
Response – Responses to the Stream Margin Review standards are provided
above. A determination or denial has not been rendered at the time of this
application.
166
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
City of Aspen|130 S. Galena St.|(970) 920 5090 April 2020
LAND USE APPLICATION
APPLICANT:
REPRESENTIVATIVE:
Description: Existing and Proposed Conditions
Review: Board Review
Required Land Use Review(s):
Growth Management Quota System (GMQS) required fields:
Net Leasable square footage Lodge Pillows Free Market dwelling units
Affordable Housing dwelling units Essential Public Facility square footage
Have you included the following? FEES DUE: $
Pre-Application Conference Summary
Signed Fee Agreement
HOA Compliance form
All items listed in checklist on PreApplication Conference Summary
Name:
Address:
Phone#: email:
Address:
Phone #: email:
Name:
Project Name and Address:
Parcel ID # (REQUIRED)
1050 Waters Avenue Unit #15
273718240017
Tye Mark M Trust
PO Box 8992, Aspen CO 81621
fun22@comcast.net
BendonAdams
300So. Spring St. #202; Aspen, CO 81611
970.925.2855 Chris@BendonAdams.com
Memorialize existing conditions of deck to Unit #15 deck on river-side of property
na na 1 (existing)
0 na
Stream Margin Special Review
x
x
x
x
4,225
Exhibit 2
167
Exhibit 3168
INVOICE
Land Title Guarantee Company
5975 Greenwood Plaza Blvd Suite 125
Greenwood Village, CO 80111
970-927-0405
CHRIS BENDON
CHRIS BENDON
300 S SPRING ST. #202
Aspen, CO 81611
Invoice Number:BA-350 Date: April 12, 2021
Order Number:64004139
Property Address:1050 WATERS AVE # 15 ASPEN 81611
Parties:To Be Determined
Invoice Charges
Service: TBD Commitment
Ref: 64004139
Addr: 1050 WATERS AVE # 15
Party: MARK M. TYE TRUST DATED SEPTEMBER 5, 2007
Total Amount Invoiced:
Less Payment(s):
Balance Due:
$217.00
$217.00
$0.00
$217.00
Due and Payable upon receipt
Please make check payable to Land Title Guarantee Company and send to the address at the top of Page 1.
Please reference Invoice Number BA-350 on your Payment
Page 1
invoice.odt 14420 07/2015 07/30/13 11:06:43 AM
Reference
Your Reference Number:TBD Commitment - 64004139
Our Order Number:BA-350
Our Customer Number:85189.1
Invoice Requested by:CHRIS BENDON
Invoice (Process) Date:April 12, 2021
Transaction Invoiced By:Web Services
Email Address:system@ltgc.com
Exhibit 4
169
Land Title Guarantee Company
Customer Distribution
PREVENT FRAUD - Please remember to call a member of our closing team when
initiating a wire transfer or providing wiring instructions.
Order Number:BAR64004139 Date: 04/12/2021
Property Address:1050 WATERS AVE # 15, ASPEN, CO 81611
PLEASE CONTACT YOUR CLOSER OR CLOSER'S ASSISTANT FOR WIRE TRANSFER INSTRUCTIONS
For Closing Assistance Closing Processor For Title Assistance
Tanya Germany
200 BASALT CENTER CIRCLE
BASALT, CO 81621
PO BOX 3440
(970) 927-0405 (Work)
(877) 346-4115 (Work Fax)
tgermany@ltgc.com
Contact License: CO523905
Company License: CO44565
Alyson Zuber
200 BASALT CENTER CIRCLE
BASALT, CO 81621
PO BOX 3440
(970) 927-0405 (Work)
(877) 346-4115 (Work Fax)
azuber@ltgc.com
Company License: CO44565
Land Title Roaring Fork Valley Title
Team
200 BASALT CENTER CIRCLE
BASALT, CO 81621
PO BOX 3440
(970) 927-0405 (Work)
(970) 925-0610 (Work Fax)
valleyresponse@ltgc.com
Seller/Owner
TYE MARK M TRUST
Delivered via: No Commitment Delivery
BENDONADAMS
Attention: CHRIS BENDON
300 SOUTH SPRING ST
#202
ASPEN, CO 81611
(203) 666-9370 (Cell)
(970) 925-2855 (Work)
chris@bendonadams.com
Delivered via: Electronic Mail
170
Land Title Guarantee Company
Estimate of Title Fees
Order Number:BAR64004139 Date: 04/12/2021
Property Address:1050 WATERS AVE # 15, ASPEN, CO 81611
Parties:TO BE DETERMINED
MARK M. TYE TRUST DATED SEPTEMBER 5,
2007
Visit Land Title's Website at www.ltgc.com for directions to any of our offices.
Estimate of Title insurance Fees
"TBD" Commitment $217.00
Total $217.00
If Land Title Guarantee Company will be closing this transaction, the fees listed above will be collected at
closing.
Thank you for your order!
Note: The documents linked in this commitment should be reviewed carefully. These documents, such as covenants
conditions and restrictions, may affect the title, ownership and use of the property. You may wish to engage legal
assistance in order to fully understand and be aware of the implications of the effect of these documents on your
property.
Chain of Title Documents:
Pitkin county recorded 08/11/1998 under reception no.
420585
Pitkin county recorded 04/21/1999 under reception no.
430100
Pitkin county recorded 07/20/1999 under reception no.
433568
Pitkin county recorded 12/06/2007 under reception no.
544700
Plat Map(s):
Pitkin county recorded 11/18/1970 at book 4 page 133
Pitkin county recorded 12/02/1971 at book 4 page 227
Pitkin county recorded 09/19/1977 at book 335 page 192
171
Copyright 2006-2021 American Land Title Association. All rights reserved.
The use of this Form is restricted to ALTA licensees and ALTA members in good standing
as of the date of use. All other uses are prohibited. Reprinted under license from the
American Land Title Association.
Property Address:
1050 WATERS AVE # 15, ASPEN, CO 81611
1.Effective Date:
04/02/2021 at 5:00 P.M.
2.Policy to be Issued and Proposed Insured:
"TBD" Commitment
Proposed Insured:
TO BE DETERMINED
$0.00
3.The estate or interest in the land described or referred to in this Commitment and covered herein is:
A FEE SIMPLE
4.Title to the estate or interest covered herein is at the effective date hereof vested in:
MARK M. TYE TRUST DATED SEPTEMBER 5, 2007
5.The Land referred to in this Commitment is described as follows:
CONDOMINIUM UNIT 15,
ASPEN TOWNHOUSE "BY THE RIVER" CONDOMINIUMS,
ACCORDING TO THE CONDOMINIUM MAP THEREOF RECORDED NOVEMBER 18, 1970 IN PLAT BOOK 4
AT PAGE 133 AND RECORDED DECEMBER 2, 1971 IN PLAT BOOK 4 AT PAGE 227, AND AS DEFINED AND
DESCRIBED IN THE CONDOMINIUM DECLARATION RECORDED NOVEMBER 18, 1970 IN BOOK 251 AT
PAGE 928, AND AMENDMENT THERETO RECORDED DECEMBER 2, 1971 IN BOOK 259 AT PAGE 735,
SECOND AMENDMENT RECORDED SEPTEMBER 19, 1977 IN BOOK 335 AT PAGE 192, AND THIRD
AMENDMENT RECORDED SEPTEMBER 25, 1981 IN BOOK 415 AT PAGE 59.
COUNTY OF PITKIN
STATE OF COLORADO.
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule A
Order Number:BAR64004139
172
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule B, Part I
(Requirements)
Order Number: BAR64004139
All of the following Requirements must be met:
This proposed Insured must notify the Company in writing of the name of any party not referred to in this
Commitment who will obtain an interest in the Land or who will make a loan on the Land. The Company
may then make additional Requirements or Exceptions.
Pay the agreed amount for the estate or interest to be insured.
Pay the premiums, fees, and charges for the Policy to the Company.
Documents satisfactory to the Company that convey the Title or create the Mortgage to be insured, or
both, must be properly authorized, executed, delivered, and recorded in the Public Records.
The following will be required should the Company be requested to issue a future commitment to insure:
1.EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF
THE CITY OF ASPEN TRANSFER TAX HAVE BEEN SATISFIED.
2.THE FULLY EXECUTED TRUST AGREEMENT OF MARK M. TYE TRUST DATED SEPTEMBER 5, 2007, A
TRUST, MUST BE FURNISHED TO LAND TITLE GUARANTEE COMPANY PRIOR TO CLOSING SO THAT
THE COMPANY CAN CONFIRM THE ACCURACY OF THE STATEMENTS APPEARING IN THE STATEMENT
OF AUTHORITY OR TRUST AFFIDAVIT OF PUBLIC RECORD.
3.DULY EXECUTED AND ACKNOWLEDGED STATEMENT OF AUTHORITY SETTING FORTH THE NAME OF
MARK M. TYE TRUST DATED SEPTEMBER 5, 2007 AS A TRUST. THE STATEMENT OF AUTHORITY MUST
STATE UNDER WHICH LAWS THE ENTITY WAS CREATED, THE MAILING ADDRESS OF THE ENTITY, AND
THE NAME AND POSITION OF THE PERSON(S) AUTHORIZED TO EXECUTE INSTRUMENTS CONVEYING,
ENCUMBERING, OR OTHERWISE AFFECTING TITLE TO REAL PROPERTY ON BEHALF OF THE ENTITY
AND OTHERWISE COMPLYING WITH THE PROVISIONS OF SECTION 38-30-172, CRS.
NOTE: THE STATEMENT OF AUTHORITY MUST BE RECORDED WITH THE CLERK AND RECORDER.
4.GOOD AND SUFFICIENT DEED FROM MARK M. TYE TRUST DATED SEPTEMBER 5, 2007 TO TO BE
DETERMINED CONVEYING SUBJECT PROPERTY.
NOTE: ADDITIONAL REQUIREMENTS OR EXCEPTIONS MAY BE NECESSARY WHEN THE BUYERS
NAMES ARE ADDED TO THIS COMMITMENT. COVERAGES AND/OR CHARGES REFLECTED HEREIN, IF
ANY, ARE SUBJECT TO CHANGE UPON RECEIPT OF THE CONTRACT TO BUY AND SELL REAL ESTATE
AND ANY AMENDMENTS THERETO.
THIS COMMITMENT IS FOR INFORMATION ONLY, AND NO POLICY WILL BE ISSUED PURSUANT HERETO.
173
This commitment does not republish any covenants, condition, restriction, or limitation contained in any
document referred to in this commitment to the extent that the specific covenant, conditions, restriction,
or limitation violates state or federal law based on race, color, religion, sex, sexual orientation, gender
identity, handicap, familial status, or national origin.
1.Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be
ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land.
2.Easements, liens or encumbrances, or claims thereof, not shown by the Public Records.
3.Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that
would be disclosed by an accurate and complete land survey of the Land and not shown by the Public
Records.
4.Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by
law and not shown by the Public Records.
5.Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the
public records or attaching subsequent to the effective date hereof but prior to the date of the proposed
insured acquires of record for value the estate or interest or mortgage thereon covered by this
Commitment.
6.(a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that
levies taxes or assessments on real property or by the Public Records; (b) proceedings by a public
agency that may result in taxes or assessments, or notices of such proceedings, whether or not shown
by the records of such agency or by the Public Records.
7.(a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the
issuance thereof; (c) water rights, claims or title to water.
8.RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM
SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN
UNITED STATES PATENT RECORDED AUGUST 29, 1958, IN BOOK 185 AT PAGE 69.
9.THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS, AND RESTRICTIONS, WHICH ARE
A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A, BUT OMITTING ANY
COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL
ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN,
ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS,
EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE
LAW, AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER 18, 1970, IN BOOK 251 AT PAGE 928
AND AS AMENDED IN INSTRUMENT RECORDED DECEMBER 02, 1971, IN BOOK 259 AT PAGE 735 AND
AS AMENDED IN INSTRUMENT RECORDED SEPTEMBER 19, 1977, IN BOOK 335 AT PAGE 192 AND AS
AMENDED IN INSTRUMENT RECORDED SEPTEMBER 25, 1981, IN BOOK 415 AT PAGE 59.
10.TERMS, CONDITIONS AND PROVISIONS OF BY-LAWS OF ASPEN TOWNHOUSES "BY THE RIVER"
CONDOMINIUM RECORDED NOVEMBER 18, 1970 IN BOOK 251 AT PAGE 940.
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule B, Part II
(Exceptions)
Order Number: BAR64004139
174
11.EASEMENTS, RIGHTS OF WAY AND OTHER MATTERS AS SET FORTH ON THE PLAT RECORDED
NOVEMBER 18, 1970 IN PLAT BOOK 4 AT PAGE 133, AS SET FORTH ON THE PLAT RECORDED
DECEMBER 2, 1971 IN PLAT BOOK 4 AT PAGE 227, AND AS CONTAINED IN FIRST AMENDMENT TO
CONDOMINIUM MAP RECORDED SEPTEMBER 19, 1977 IN BOOK 335 AT PAGE 192.
12.EASEMENT AND RIGHT OF WAY FOR ELECTRICAL LINE PURPOSES AS GRANTED TO HOLY CROSS
ELECTRIC ASSOCIATION, INC. IN INSTRUMENT RECORDED APRIL 11, 1994 IN BOOK 747 AT PAGE 180.
13.TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS AS SET FORTH IN EASEMENT AND RIGHT OF
WAY AS GRANTED TO US COMMUNICATIONS RECORDED JUNE 3, 1994 IN BOOK 752 AT PAGE 537 AND
RE-RECORDED JUNE 7, 1994 IN BOOK 752 AT PAGE 699.
14.TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS OF MAINTENANCE AGREEMENT RECORDED
MARCH 11, 2021 AS RECEPTION NO. 674423.
ALTA COMMITMENT
Old Republic National Title Insurance Company
Schedule B, Part II
(Exceptions)
Order Number: BAR64004139
175
LAND TITLE GUARANTEE COMPANY
DISCLOSURE STATEMENTS
Note: Pursuant to CRS 10-11-122, notice is hereby given that:
Note: Effective September 1, 1997, CRS 30-10-406 requires that all documents received for recording or filing in the
clerk and recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least
one half of an inch. The clerk and recorder may refuse to record or file any document that does not conform, except that,
the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or
filing information at the top margin of the document.
Note: Colorado Division of Insurance Regulations 8-1-2 requires that "Every title entity shall be responsible for all matters
which appear of record prior to the time of recording whenever the title entity conducts the closing and is responsible for
recording or filing of legal documents resulting from the transaction which was closed". Provided that Land Title
Guarantee Company conducts the closing of the insured transaction and is responsible for recording the legal
documents from the transaction, exception number 5 will not appear on the Owner's Title Policy and the Lenders Policy
when issued.
Note: Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of
Schedule B, Section 2 of the Commitment from the Owner's Policy to be issued) upon compliance with the following
conditions:
No coverage will be given under any circumstances for labor or material for which the insured has contracted for or
agreed to pay.
The Subject real property may be located in a special taxing district.(A)
A certificate of taxes due listing each taxing jurisdiction will be obtained from the county treasurer of the county in
which the real property is located or that county treasurer's authorized agent unless the proposed insured provides
written instructions to the contrary. (for an Owner's Policy of Title Insurance pertaining to a sale of residential real
property).
(B)
The information regarding special districts and the boundaries of such districts may be obtained from the Board of
County Commissioners, the County Clerk and Recorder, or the County Assessor.
(C)
The land described in Schedule A of this commitment must be a single family residence which includes a
condominium or townhouse unit.
(A)
No labor or materials have been furnished by mechanics or material-men for purposes of construction on the land
described in Schedule A of this Commitment within the past 6 months.
(B)
The Company must receive an appropriate affidavit indemnifying the Company against un-filed mechanic's and
material-men's liens.
(C)
The Company must receive payment of the appropriate premium.(D)
If there has been construction, improvements or major repairs undertaken on the property to be purchased within
six months prior to the Date of Commitment, the requirements to obtain coverage for unrecorded liens will include:
disclosure of certain construction information; financial information as to the seller, the builder and or the
contractor; payment of the appropriate premium fully executed Indemnity Agreements satisfactory to the company,
and, any additional requirements as may be necessary after an examination of the aforesaid information by the
Company.
(E)
176
Note: Pursuant to CRS 10-11-123, notice is hereby given:
This notice applies to owner's policy commitments disclosing that a mineral estate has been severed from the surface
estate, in Schedule B-2.
Note: Pursuant to CRS 10-1-128(6)(a), It is unlawful to knowingly provide false, incomplete, or misleading facts or
information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may
include imprisonment, fines, denial of insurance, and civil damages. Any insurance company or agent of an insurance
company who knowingly provides false, incomplete, or misleading facts or information to a policyholder or claimant for
the purpose of defrauding or attempting to defraud the policyholder or claimant with regard to a settlement or award
payable from insurance proceeds shall be reported to the Colorado Division of Insurance within the Department of
Regulatory Agencies.
Note: Pursuant to Colorado Division of Insurance Regulations 8-1-3, notice is hereby given of the availability of a closing
protection letter for the lender, purchaser, lessee or seller in connection with this transaction.
Note: Pursuant to CRS 10-1-11(4)(a)(1), Colorado notaries may remotely notarize real estate deeds and other
documents using real-time audio-video communication technology. You may choose not to use remote notarization for
any document.
That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the
surface estate and that there is substantial likelihood that a third party holds some or all interest in oil, gas, other
minerals, or geothermal energy in the property; and
(A)
That such mineral estate may include the right to enter and use the property without the surface owner's
permission.
(B)
177
JOINT NOTICE OF PRIVACY POLICY OF
LAND TITLE GUARANTEE COMPANY,
LAND TITLE GUARANTEE COMPANY OF SUMMIT COUNTY
LAND TITLE INSURANCE CORPORATION AND
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY
This Statement is provided to you as a customer of Land Title Guarantee Company as agent for Land Title Insurance
Corporation and Old Republic National Title Insurance Company.
We want you to know that we recognize and respect your privacy expectations and the requirements of federal and state
privacy laws. Information security is one of our highest priorities. We recognize that maintaining your trust and confidence
is the bedrock of our business. We maintain and regularly review internal and external safeguards against unauthorized
access to your non-public personal information ("Personal Information").
In the course of our business, we may collect Personal Information about you from:
applications or other forms we receive from you, including communications sent through TMX, our web-based
transaction management system;
your transactions with, or from the services being performed by us, our affiliates, or others;
a consumer reporting agency, if such information is provided to us in connection with your transaction;
and
The public records maintained by governmental entities that we obtain either directly from those entities, or from
our affiliates and non-affiliates.
Our policies regarding the protection of the confidentiality and security of your Personal Information are as follows:
We restrict access to all Personal Information about you to those employees who need to know that information in
order to provide products and services to you.
We may share your Personal Information with affiliated contractors or service providers who provide services in the
course of our business, but only to the extent necessary for these providers to perform their services and to
provide these services to you as may be required by your transaction.
We maintain physical, electronic and procedural safeguards that comply with federal standards to protect your
Personal Information from unauthorized access or intrusion.
Employees who violate our strict policies and procedures regarding privacy are subject to disciplinary action.
We regularly assess security standards and procedures to protect against unauthorized access to Personal
Information.
WE DO NOT DISCLOSE ANY PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT
IS NOT STATED ABOVE OR PERMITTED BY LAW.
Consistent with applicable privacy laws, there are some situations in which Personal Information may be disclosed. We
may disclose your Personal Information when you direct or give us permission; when we are required by law to do so, for
example, if we are served a subpoena; or when we suspect fraudulent or criminal activities. We also may disclose your
Personal Information when otherwise permitted by applicable privacy laws such as, for example, when disclosure is
needed to enforce our rights arising out of any agreement, transaction or relationship with you.
Our policy regarding dispute resolution is as follows: Any controversy or claim arising out of or relating to our privacy
policy, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
178
Commitment For Title Insurance
Issued by Old Republic National Title Insurance Corporation
NOTICE
IMPORTANT—READ CAREFULLY: THIS COMMITMENT IS AN OFFER TO ISSUE ONE OR MORE TITLE INSURANCE
POLICIES. ALL CLAIMS OR REMEDIES SOUGHT AGAINST THE COMPANY INVOLVING THE CONTENT OF THIS
COMMITMENT OR THE POLICY MUST BE BASED SOLELY IN CONTRACT.
THIS COMMITMENT IS NOT AN ABSTRACT OF TITLE, REPORT OF THE CONDITION OF TITLE, LEGAL OPINION, OPINION OF TITLE, OR OTHER
REPRESENTATION OF THE STATUS OF TITLE. THE PROCEDURES USED BY THE COMPANY TO DETERMINE INSURABILITY OF THE TITLE, INCLUDING
ANY SEARCH AND EXAMINATION, ARE PROPRIETARY TO THE COMPANY, WERE PERFORMED SOLELY FOR THE BENEFIT OF THE COMPANY, AND
CREATE NO EXTRACONTRACTUAL LIABILITY TO ANY PERSON, INCLUDING A PROPOSED INSURED.
THE COMPANY’S OBLIGATION UNDER THIS COMMITMENT IS TO ISSUE A POLICY TO A PROPOSED INSURED IDENTIFIED IN SCHEDULE A IN
ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS COMMITMENT. THE COMPANY HAS NO LIABILITY OR OBLIGATION INVOLVING THE
CONTENT OF THIS COMMITMENT TO ANY OTHER PERSON. .
COMMITMENT TO ISSUE POLICY
Subject to the Notice; Schedule B, Part I—Requirements; Schedule B, Part II—Exceptions; and the Commitment Conditions, Old Republic National Title Insurance
Company, a Minnesota corporation (the “Company”), commits to issue the Policy according to the terms and provisions of this Commitment. This Commitment is
effective as of the Commitment Date shown in Schedule A for each Policy described in Schedule A, only when the Company has entered in Schedule A both the
specified dollar amount as the Proposed Policy Amount and the name of the Proposed Insured. If all of the Schedule B, Part I—Requirements have not been met
within 6 months after the Commitment Date, this Commitment terminates and the Company’s liability and obligation end.
COMMITMENT CONDITIONS
1. DEFINITIONS
2. If all of the Schedule B, Part I—Requirements have not been met within the time period specified in the Commitment to Issue Policy, Commitment terminates
and the Company’s liability and obligation end.
3. The Company’s liability and obligation is limited by and this Commitment is not valid without:
4. COMPANY’S RIGHT TO AMEND
The Company may amend this Commitment at any time. If the Company amends this Commitment to add a defect, lien, encumbrance, adverse claim, or
other matter recorded in the Public Records prior to the Commitment Date, any liability of the Company is limited by Commitment Condition 5. The
Company shall not be liable for any other amendment to this Commitment.
5. LIMITATIONS OF LIABILITY
i. comply with the Schedule B, Part I—Requirements;
ii. eliminate, with the Company’s written consent, any Schedule B, Part II—Exceptions; or
iii. acquire the Title or create the Mortgage covered by this Commitment.
“Knowledge” or “Known”: Actual or imputed knowledge, but not constructive notice imparted by the Public Records.(a)
“Land”: The land described in Schedule A and affixed improvements that by law constitute real property. The term “Land” does not include any
property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate, or easement in abutting streets, roads, avenues,
alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is to be insured by the Policy.
(b)
“Mortgage”: A mortgage, deed of trust, or other security instrument, including one evidenced by electronic means authorized by law.(c)
“Policy”: Each contract of title insurance, in a form adopted by the American Land Title Association, issued or to be issued by the Company
pursuant to this Commitment.
(d)
“Proposed Insured”: Each person identified in Schedule A as the Proposed Insured of each Policy to be issued pursuant to this Commitment.(e)
“Proposed Policy Amount”: Each dollar amount specified in Schedule A as the Proposed Policy Amount of each Policy to be issued pursuant to this
Commitment.
(f)
“Public Records”: Records established under state statutes at the Commitment Date for the purpose of imparting constructive notice of matters
relating to real property to purchasers for value and without Knowledge.
(g)
“Title”: The estate or interest described in Schedule A.(h)
the Notice;(a)
the Commitment to Issue Policy;(b)
the Commitment Conditions;(c)
Schedule A;(d)
Schedule B, Part I—Requirements; and(e)
Schedule B, Part II—Exceptions; and(f)
a counter-signature by the Company or its issuing agent that may be in electronic form.(g)
The Company’s liability under Commitment Condition 4 is limited to the Proposed Insured’s actual expense incurred in the interval between the
Company’s delivery to the Proposed Insured of the Commitment and the delivery of the amended Commitment, resulting from the Proposed
Insured’s good faith reliance to:
(a)
The Company shall not be liable under Commitment Condition 5(a) if the Proposed Insured requested the amendment or had Knowledge of the
matter and did not notify the Company about it in writing.
(b)
The Company will only have liability under Commitment Condition 4 if the Proposed Insured would not have incurred the expense had the
Commitment included the added matter when the Commitment was first delivered to the Proposed Insured.
(c)
The Company’s liability shall not exceed the lesser of the Proposed Insured’s actual expense incurred in good faith and described in Commitment
Conditions 5(a)(i) through 5(a)(iii) or the Proposed Policy Amount.
(d)
The Company shall not be liable for the content of the Transaction Identification Data, if any.(e)
179
6. LIABILITY OF THE COMPANY MUST BE BASED ON THIS COMMITMENT
7. IF THIS COMMITMENT HAS BEEN ISSUED BY AN ISSUING AGENT
The issuing agent is the Company’s agent only for the limited purpose of issuing title insurance commitments and policies. The issuing agent is not the
Company’s agent for the purpose of providing closing or settlement services.
8. PRO-FORMA POLICY
The Company may provide, at the request of a Proposed Insured, a pro-forma policy illustrating the coverage that the Company may provide. A pro-forma
policy neither reflects the status of Title at the time that the pro-forma policy is delivered to a Proposed Insured, nor is it a commitment to insure.
9. ARBITRATION
The Policy contains an arbitration clause. All arbitrable matters when the Proposed Policy Amount is $2,000,000 or less shall be arbitrated at the option of
either the Company or the Proposed Insured as the exclusive remedy of the parties. A Proposed Insured may review a copy of the arbitration rules at
http://www.alta.org/arbitration.
IN WITNESS WHEREOF, Land Title Insurance Corporation has caused its corporate name and seal to be affixed by its duly authorized officers on the date shown
in Schedule A to be valid when countersigned by a validating officer or other authorized signatory.
Issued by:
Land Title Guarantee Company
3033 East First Avenue Suite 600
Denver, Colorado 80206
303-321-1880
Senior Vice President
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Land Title Insurance Corporation. This Commitment is not valid without the
Notice; the Commitment to Issue Policy; the Commitment Conditions; Schedule A; Schedule B, Part I—Requirements; and Schedule B, Part II—Exceptions; and
a counter-signature by the Company or its issuing agent that may be in electronic form.
Copyright 2006-2016 American Land Title Association. All rights reserved.
The use of this Form (or any derivative thereof) is restricted to ALTA licensees and ALTA members in good standing as of the date of use. All other uses are
prohibited. Reprinted under license from the American Land Title Association.
In no event shall the Company be obligated to issue the Policy referred to in this Commitment unless all of the Schedule B, Part I—Requirements
have been met to the satisfaction of the Company.
(f)
In any event, the Company’s liability is limited by the terms and provisions of the Policy.(g)
Only a Proposed Insured identified in Schedule A, and no other person, may make a claim under this Commitment.(a)
Any claim must be based in contract and must be restricted solely to the terms and provisions of this Commitment.(b)
Until the Policy is issued, this Commitment, as last revised, is the exclusive and entire agreement between the parties with respect to the subject
matter of this Commitment and supersedes all prior commitment negotiations, representations, and proposals of any kind, whether written or oral,
express or implied, relating to the subject matter of this Commitment.
(c)
The deletion or modification of any Schedule B, Part II—Exception does not constitute an agreement or obligation to provide coverage beyond the
terms and provisions of this Commitment or the Policy.
(d)
Any amendment or endorsement to this Commitment must be in writing and authenticated by a person authorized by the Company.(e)
When the Policy is issued, all liability and obligation under this Commitment will end and the Company’s only liability will be under the Policy.(f)
180
Exhibit 5181
Exhibit 6See attached approval182
183
184
185
186
1
CITY OF ASPEN
PRE-APPLICATION CONFERENCE SUMMARY
PLANNER: Michelle Bonfils Thibeault (970) 429-2741, Michelle.Bonfils@cityofaspen.com
DATE: March 18, 2021
PROJECT: 1050 Waters Avenue, Unit 15
LEGAL: Aspen Townhouses by the River
UNIT 15 OWNER: Mark Tye
COMMON AREA OWNER: Aspen Townhouses by the River Condo Association
REPRESENTATIVE: Owner
REQUEST: Stream Margin, Special Review
DESCRIPTION:
The subject property is zoned Residential Multi-Family and contains 24 multi-family residential units in two
separate buildings located near the southwest bank of the Roaring Fork River.
The existing deck at unit 15 is considerably larger and varied shape than the approved and recorded plat
indicates the size of the deck to be (15ft x 4.33ft). The existing deck for unit 15 is located in the Common Area
owned by the Aspen Townhouses by the River Condo Association. No action to legalize this project on land
owned by the HOA can proceed without the submittal of an HOA compliance form indicating that the applicant
has HOA permission to expand in this area. If the deck and associated work is ultimately approved through the
processes described below, an updated Condominium Plat showing the improvements will be required prior to
issuance of a Letter of Completion. The HOA will need to be the applicant for that process and must
understand the time and costs involved.
A request to legalize the current deck will require calculations of all of the existing development on the site,
and authorization from the HOA for Unit 15 to consume any remaining area for this project. Please reference
Land Use Code Section 26.575.020.D, Floor Area Measurements. If there is not enough floor area or deck area
available, then it will not be feasible to acquire a land use approval or building permit for the unpermitted work
that has been done.
Finally, the deck is entirely within the protected 100’ stream margin review area of the Roaring Fork River.
Pursuant to Section 26.435.040, Stream Margin Review, “The provisions of the stream margin review shall
apply to all development within one-hundred (100) feet, measured horizontally, from the high water line of the
Roaring Fork River and its tributary streams and to all development within the Flood Hazard Area, also known
as the 100-year flood plain”.
From the scope of work observed, the project is not eligible for administrative Stream Margin Review approval
as it appears to be some 125’ below the designated Top of Slope that sits approximately in the middle of this
site. Among the required criteria that would not be met for a staff level approval is the following requirement
stated at Municipal Code Section 26.435.040.C.8:
Exhibit 7
187
2
The property owner may apply for a variance from this or other Stream Margin requirements through a Special
Review before the Planning and Zoning Commission per section 26.435.040.E of the Land Use Code.
To receive P&Z approval, the applicant shall respond to the review criteria found in Section 26.435.040.C -
Stream Margin Review Standards, Section 26.435.040.D (if an appeal of the location of the Top of Slope line is
requested) and Section 26.435.040.E – Special Review. Please be aware that there is no guarantee that the
application will ultimately be approved by the Planning and Zoning Commission.
If the Stream Margin application is successfully approved by the Planning and Zoning Commission, the property
owner and the HOA shall pursue the Condominium Plat amendment noted earlier in this description.
Below are links to the Land Use Application form and Land Use Code for your convenience:
Land Use Code
Land Use Application
Relevant Land Use Code Section(s):
26.304 Common Development Review Procedures
26.435.040(C): Environmentally Sensitive Areas – Stream Margin Review
26.435.040(D): Appeal of Director’s Determination
26.435.040(E): Special Review
Review by: Staff for complete application and recommendation. Planning and Zoning
Commission for determination.
Public Hearing: Yes, at the Planning and Zoning Commission
Planning Fees: $3,250 deposit for 10 hours of staff time for Stream Margin Review. Any unbilled
portion of the deposit will be refunded at the conclusion of the case. Additional
staff hours, if needed, will be billed at $325 per hour.
Referrals: $975 for Parks Department (flat fee)
$325/hour for Engineering Review. All additional hours are billed at $325 per
hour).
Total Deposit: $4,450
188
3
To apply, email 1 PDF copy of the following information directly to the Planner identified above:
Completed Land Use Application and signed fee agreement.
Pre-application Conference Summary (this document).
Street address and legal description of the parcel on which development is proposed to occur,
consisting of a current (no older than 6 months) certificate from a title insurance company, an
ownership and encumbrance report, or attorney licensed to practice in the State of Colorado,
listing the names of all owners of the property, and all mortgages, judgments, liens, easements,
contracts and agreements affecting the parcel, and demonstrating the owner’s right to apply for
the Development Application.
Applicant’s name, address and telephone number in a letter signed by the applicant that states the
name, address and telephone number of the representative authorized to act on behalf of the
applicant.
HOA Compliance form
A written description of the proposal and an explanation in written, graphic, or model form of how
the proposed development complies with the review standards relevant to the development
application and relevant land use approvals associated with the property.
Complete floor area and deck calculations of the existing conditions at the Aspen Townhouses by
the River property, using the methodologies provided in the Aspen Municipal Code, along with
calculations of the proposed expansion of Unit 13, verification that sufficient unused area is
available for the project and that the HOA authorizes allocation of adequate unused area to cover
the proposed work.
A site improvement survey (no older than a year from submittal) including topography and
vegetation showing the current status of the parcel certified by a registered land surveyor by
licensed in the State of Colorado.
One scaled copy of plans depicting the project and the Stream Margin Review Area, Top of Slope,
and the 15’ setback from Top of Slope to confirm applicability and any impacts to these areas. If
the applicant requests an appeal of the Top of Slope location, a proposed new Top of Slope must
be indicated on the plan and supported by evidence that the amended location is appropriately
delineates the bank of the river.
Once the application has been deemed complete by the Planning Director, then submittal of the total fee
deposit for review of the application will be requested.
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on
current zoning, which is subject to change in the future, and upon factual representations that may or may
not be accurate. The summary does not create a legal or vested right.
189
Exhibit 8
1050 Waters Avenue #15 – Vicinity Map
190
Exhibit 9191
Exhibit 10
192
193
194
195
196
197
198
199
RECORD OF PROCEEDINGS 100 Leaves
FORM '0 C.F.HOECKELB.6.&L.CO.
Public Hearing, P & z, 2/4/69, continued.
unit. Lets say develop the other 7S0 sq.ft. to green area. So you are
devoting 7S0 sq.ft. to living unit but you have to give up 7S0 sq.ft.
for green area.
Robin Molny - Thats pie in the sky. When you stop and think, in affect
you are reducing the density. I would think that that would be the result
of what you are saying. You are talking SO/SO aren't you.
Lennie Lookner - Maybe you could work up something to reduce the density and
give us more green areas to look at.
Robin Molny - That is what we are striving to do in slightly different
terms.
Harry Uhfelder - I have been developing the Aspen Townhouses. I have never
utilitized the full allowed density. For instance, this last year I
developed 11 units on S lots. I am leaving area for green space and off
street parking. And I think it works very well. It is popular and
acceptable. I think you have to find a compromise solution in between what
has been suggested and what is allowed. It can be done. It is popular
and keeping in the character of the place. Some kind of compromise.
Tom Benton - When we requested the density we did not only request the
density but also scale control, to go along with that. Our feeling in
this was the density is as recommended in the Master Plan were based ona
study almost a year of study whereas the densities that were adopted
finally were based on nothing more than a little Harassment by a few people.
Now what Mr. Uhfelder said there are a great many things that have been
built in Aspen that have densities of much less, actually those are
densities which are recommended in the Master Plan. There is no problem
here. I think thats the type of thing Aspen needs and is beneficial
to Aspen. But just these few thathave caused the big problem and so
unfortunately you have to regulate for those few. Now I think you are
right that the major problem is not completely densities in itself. It
is the use of space. Personnally I feel there is nothing wrong with a
compromise as long as the town achieves benefitas well as the people
who are building also. But our request was for two things, so that this
wouldn't happen, that we wouldn't be involved in cutting the densities
in half and find thatpeople are building the same size building with units
just twice as large. I think that the direction would be beneficial
and some sort of bonus system. But it has to be tied, we feel, absolute
requirement that certain amount of land be left open because if you don't
make it a requirement, it will never be.
Nancy Ward - I have never hadthis question answered to me. I have property,
I came out with a design conforming to multiple family dwelling. I was
told why not call yourself a lodge, then you can get more on that
property. Now I didn't intend to build a lodge, I want apartments. I
don't intend to run a lodge. Now what loophole is in the zoning code
that will allow me to pur more units on my land simply by calling myself
a lodge.
Chairman Heneghan - That was a loophole, and that has been changed. There
is no reference in the present zoning ordinance to a lodge, motel unit,
condominium none of these references are now made. There are only two -
limited and unlimited unit. What you call it or do with it is your own
N? 82
200
FOIlM!O C.F.HOECI(ELB.B.B:L.CQ.
RECORD OF PROCEEDINGS 100 Leaves
Regular Meeting, Aspen Planning &. Zoning, 7/20/71
Goals Task Force
Objectives
PUD
Uhfelder Const.
a Minimal expense. Other plan calls for outlying parking
areas and mini buses with 2 hour parking in this general
area. Mini buses would shuffle people between the two
parking areas. Another plan is for parking under Wagner
Park and shuffle people up to the lift and also a transit
system.
Adams moved to recommend to the City Council that Plan #1
be adopted for the 1971 and 1972 season and feasibility on
financing be done by the Finance Department on Plans #2
and #3 and Plans #2 and #3 be reviewed by Voorhees.
Seconded by Goodhard. All in favor, motion carried.
Goals Task Force Objectives - Mr. Bartel explained at the
last study session he had submitted the program on quality
skiing. Objective #4 was discussed and the Commission re-
quest a more definitive interpretation be inserted as re-
lates to economy. Also request the word maximum be modified.
Collins moved that the Commission accept the tentative
objectives as submitted by resolution and recommend that
the Planner and Goals Task Force proceed with development
of the programs for the balance of the objectives.
Seconded by Goodhard.
Collins moved to amend the motion to allow Herb Bartel to
change the woraing in Paragraph 4. Seconded by Goodhard.
All in favor, motion carried.
Main Motion - All in favor, motion carried.
Commission agreed to hold a study session next Tuesday to
discuss quality skiing, growth policy and Zoline preliminary
pms.
PUD - Commission request the Secretary schedule a public
hearing for August 17th.
Uhfelder Construction - Chairman Molny reported this con-
struction has been brought to his attention by citizens.
The stream margin regulation was effective on April 20th.
Mr. Uhfelder obtained his building permit on March 9th
and fulfilled his building permit on June 7th. City Attorney
Kern is checking into which date should be considered, the
March date of June date as relates to the regulations. The
plot plan shows the Roaring Fork River being about 10' away
from the building at the closest point. In checking the
site the stakes appear like the river will touch the build=
ing. Also following the March date, the City adopted the
Uniform Building Code and requires a certified survey. This
application appears to be an obvious attempt to circumvent
the City ordinance. Property located at the end of Waters
Avenue. The City Attorney is also checking to see if there
are any violations in this case. Also, one of the adjoin-
ing property owners feel the building is being built on dis-
puted land. Private citizens are checking into a perhaps
federal violation of streams.
2-
201
RECORD OF PROCEEDINGS 100 Leaves
FOIlM!O C.F.HOECI(ELB.B.Il:L.CO.
Regular Meeting, Aspen Planning &. Zoning, 7/20/71
It was pointed out the citizens in seeing this building
built practically in the stream by feel this is the result
of the stream margin regulations which is not the case.
Jordan moved the Planning and Zoning Commission strongly
express their concern and would appreciate the City
Attorney looking at this in depth. Seconded by Collins.
All in favor, motion carried.
Adams moved to adjourn at 6:45 P. M., Seconded by Breasted.
All in favor, motion carried.
Lorraine Graves, Secretary
202
Exhibit 11
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
Exhibit 12
225
226
227
228
229
230
231
232
233
234
Exhibit 13235
236
Exhibit 14237
From:Reilly Thimons
To:Rothschild, Andrew; Chris Bendon
Subject:RE: [EXTERNAL] Townhomes by the River
Date:Wednesday, April 7, 2021 3:19:10 PM
Thank you Andrew! I will add this into the application letter narrative and PDF it to add to the
exhibits.
From: Rothschild, Andrew <arothschild@lewisrice.com>
Sent: Wednesday, April 7, 2021 1:19 PM
To: Chris Bendon <chris@bendonadams.com>; Reilly Thimons <reilly@bendonadams.com>
Subject: FW: [EXTERNAL] Townhomes by the River
Chris and Reilly- this just received from Scott and Wendy Geary. Should be helpful. Let me know if
you want me to forward without my comments. Thanks.
From: Scott and Wendy Geary [mailto:wwgeary@gmail.com]
Sent: Wednesday, April 07, 2021 2:15 PM
To: Rothschild, Andrew <arothschild@lewisrice.com>
Subject: [EXTERNAL] Townhomes by the River
RE: Decks at the Townhomes By The River
We are William "Scott" Geary and Wendy Geary, representing the Geary Family, LLC, the
owners of the small A-frame house at 1102 Waters Avenue in Aspen. Our house was built in
1967, and as a younger man, Scott remembers the Townhomes by the River being built with
decks. We have a great view from our back deck looking north down the Roaringfork River
and at the Townhomes. The past 38 years we have spent a major part of our time in Aspen and
recall the two larger decks that are towards the south side of the building. Those two decks
were always larger than the other decks since they are built over the ground and not the river.
They are not only accessible from the individual condominium but also from a walkway along
the building.
This message, including attachments, is from the law firm of Lewis Rice LLC. This message contains
information that may be confidential and protected by the attorney-client or attorney work product
privileges. If you are not the intended recipient, promptly delete this message and notify the sender
of the delivery error by return e-mail or call us at 314-444-7600. You may not forward, print, copy,
distribute, or use the information in this message if you are not the intended recipient.
Exhibit 15
238
11/13/2020
Mark M. Tye
P.O. Box 8992
Aspen, CO 81611
RE: Consulting for litigation purposes regarding a deck improvement
1050 Waters Ave, Aspen Townhouses by the River Unit 15
Aspen, Colorado
Dear Mr. Tye,
This letter is being written to communicate my observations of your deck improvement on Unit 15. I previ-
ously appraised this unit at the time of your purchase in 1999 (my appraisal report date of value was June 29,
1999), at which time I performed a full property viewing and measurement of the residential unit as well as the
deck. Refer to the exhibits attached for the floor plan and deck photos.
This 1999 appraisal report shows the deck to be 12 feet in depth and 14 feet in width. The photo was also taken
in 1999 but my database has a February date on this picture. This shows the northeast corner of the deck, in-
cluding the north deck wall and the east knee wall with a bench top.
On November 10, 2020 I went back to the property and measured the deck and took pictures. I found the deck
to be the same size (12’ x 14’) and of the same finish that it was in 1999. My current photos are attached. As
such, it is my observation that no changes or extensions have been made to the deck since June 1999.
I was asked if I had a recollection or comment on the side path and staircase that leads down to the subject’s
deck. I do not specifically recall whether this path existed in 1999 and I have no pictures of the path in my sub-
ject 1999 file. However, I did find two other photos in my database – one undated and the other from 2007 –
which show the south side of the building and this common area path from a bit of a distance. I have included
these for your reference.
This summarizes my findings as to the state of the deck improvement. If you have any questions or need addi-
tional assistance with this case, feel free to contact me.
Respectfully Submitted,
Susan Ebert - Stone, SRA
CO. Cert. Res. 1767
Exhibit 16
239
2 | Page
EXHIBIT 1: FLOOR PLAN FROM 1999 FILE
240
3 | Page
EXHIBIT 2: VARIOUS PHOTOS
Photos taken November 2020
241
4 | Page
242
5 | Page
February 1999 photo August 2006 photo (just the top of the subject deck)
South side common area photos:
April 2007 Undated
243
A201
BUILDING 1
SHEET NUMBER
SHEET TITLE 1050 WATERS AVE.ASPEN, CO 81611Red Room Design
1001 Grand Avenue, Ste 211
Glenwood Springs, CO 81601
970.413.3144
DRAWING ISSUE
1/8/2021 10:31 AMCALCULATIONS
NOT FOR
CONSTRUCTION
E 1 E 248.7 sq ft
E 3 E 449.2 sq ft
E 6 E 566.7 sq ft
E 7 E 849.0 sq ft
COMMONCOMMONSHED40.0 sq ft
UNIT 1489.3 sq ft
UNIT 2489.3 sq ft
UNIT 3489.3 sq ft
UNIT4489.3 sq ft
UNIT 5474.3 sq ft
UNIT 6489.3 sq ft
UNIT 7489.3 sq ft
UNIT 8489.3 sq ft 128'32'-9"8'-9"8'-8"3'-6"8'-10"14'-113/4"15'-51/16"8'-9"B 185.3 sq ft
UNIT 1489.3 sq ft
UNIT 2489.3 sq ft
UNIT 3489.3 sq ft
UNIT4489.3 sq ft
UNIT 5474.3 sq ft
UNIT 6489.3 sq ft
UNIT 7489.3 sq ft
UNIT 8489.3 sq ft 128'32'-9"5'-6"
B 285.3 sq ft
B 385.3 sq ft
B 485.3 sq ft
B 585.3 sq ft
B 685.3 sq ft
B 785.3 sq ft
B 885.3 sq ft
UNIT 1489.3 sq ft
UNIT 2489.3 sq ft
UNIT 3489.3 sq ft
UNIT4489.3 sq ft
UNIT 5474.3 sq ft
UNIT 6489.3 sq ft
UNIT 7489.3 sq ft
UNIT 8489.3 sq ft
32'-9"128'64'16'48'SCALE: 1/8" = 1'-0"
Middle Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Upper Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Lower Level Plan
0 4'8'16'
GROSS AREA CALCULATIONS
LOWER LEVEL
UNIT 1 489.3 SF
UNIT 2 489.3 SF
UNIT 3 489.3SF
UNIT 4 489.3 SF
UNIT 5 474.3 SF
UNIT 6 489.3 SF
UNIT 7 489.3 SF
UNIT 8 489.3 SF
TOTAL 3,899.4 SF
MIDDLE LEVEL
UNIT 1 489.3 SF
UNIT 2 489.3 SF
UNIT 3 489.3SF
UNIT 4 489.3 SF
UNIT 5 474.3 SF
UNIT 6 489.3 SF
UNIT 7 489.3 SF
UNIT 8 489.3 SF
SHED 40.0 SF
TOTAL 3,939.4 SF
UPPER LEVEL
UNIT 1 489.3 SF
UNIT 2 489.3 SF
UNIT 3 489.3SF
UNIT 4 489.3 SF
UNIT 5 474.3 SF
UNIT 6 489.3 SF
UNIT 7 489.3 SF
UNIT 8 489.3 SF
TOTAL 3,899.4 SF
TOTAL SF 11,738.2 SF
GROSS DECK CALCULATIONS
LOWER LEVEL
TOTAL 0 SF
MIDDLE LEVEL
E1, E2 DECK 48.7 SF
E3, E4 DECK 49.2 SF
E5, E6 DECK 66.7 SF
E7, E8 DECK 49.0 SF
TOTAL 213.6 SF
UPPER LEVEL
B1 DECK 85.3 SF
B2 DECK 85.3 SF
B3 DECK 85.3 SF
B4 DECK 85.3 SF
B5 DECK 85.3 SF
B6 DECK 85.3 SF
B7 DECK 85.3 SF
B8 DECK 85.3 SF
TOTAL 682.4 SF
TOTAL SF 896 SF
UNIT DIVISIONS ARE ESTIMATED
ESTIMATED FAR
LOWER LEVEL 1,949.7 SF (@50%)
MIDDLE LEVEL 3,899.4 SF
UPPER LEVEL 3,409.4 SF (61.25 X 8)
TOTAL 9,258.5 SF
BUILDING 1
Exhibit 17
244
A202
BUILDING 2
SHEET NUMBER
SHEET TITLE 1050 WATERS AVE.ASPEN, CO 81611Red Room Design
1001 Grand Avenue, Ste 211
Glenwood Springs, CO 81601
970.413.3144
DRAWING ISSUE
1/8/2021 10:31 AMCALCULATIONS
NOT FOR
CONSTRUCTION
COMMON 11, 1276.0 sq ft
COMMON 9, 1076.0 sq ft
B 10 65.0 sq ft
B 1265.0 sq ft
B 1465.0 sq ft
COMMON
42.2 sq ft
UNIT 14435.3 sq ft
UNIT 16501.6 sq ft
UNIT 13386.3 sq ft
UNIT 12846.3 sq ft
UNIT10442.7 sq ft
B 11.516.7 sq ft
36'-9"
B 16 65.0 sq ft
B 1665.0 sq ft UNIT 16455.9 sq ft
UNIT 14868.3 sq ft
UNIT 12461.3 sq ft
UNIT 10962.2 sq ft
32'-5"
B 1165.0 sq ft
B 965.0 sq ft
UNIT 11947.8 sq ft
UNIT 9893.5 sq ft
UNIT 13435.3 sq ft
UNIT 15439.8 sq ft
COMMON13, 1442.2 sq ft
B 13189.1 sq ft
B 15182.5 sq ft
32'-5"
SCALE: 1/8" = 1'-0"
Middle Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Upper Level Plan
0 4'8'16'SCALE: 1/8" = 1'-0"
Lower Level Plan
0 4'8'16'
GROSS AREA CALCULATIONS
LOWER LEVEL
UNIT 15 439.8 SF
UNIT 13 435.3 SF
UNIT 11 947.8 SF
UNIT 9 893.5 SF
E 13, 15 42.2 SF
TOTAL 2,758.6 SF
MIDDLE LEVEL
UNIT 16 501.6 SF
UNIT 14 435.3 SF
UNIT 13 386.3 SF
UNIT 12 823.8 SF
UNIT 10 420.1 SF
COMMON 13, 14, 15, 16 42.2 SF
COMMON 11, 12 98.6 SF
COMMON 9, 10 98.6 SF
TOTAL 2,806.5 SF
UPPER LEVEL
UNIT 16 455.9 SF
UNIT 14 868.3 SF
UNIT 12 461.3 SF
UNIT 10 962.2 SF
TOTAL 2,747.7 SF
TOTAL SF 8,312.8 SF
GROSS DECK CALCULATIONS
LOWER LEVEL
B 15 DECK 182.5 SF
B 13 DECK 189.1 SF
B 11 DECK 65 SF
B 9 DECK 65 SF
TOTAL 501.6 SF
MIDDLE LEVEL
B 10 DECK 65 SF
B 11.5 DECK 16.7 SF
B 12 DECK 65 SF
B 14 DECK 65SF
TOTAL 211.7 SF
UPPER LEVEL
B 16 DECK 65 SF
B 16 DECK 65 SF
TOTAL 130 SF
TOTAL SF 843.3 SF
UNIT DIVISIONS ARE ESTIMATED
BUILDING 2
ESTIMATED FAR
LOWER LEVEL 1,655.15 SF (@60%)
MIDDLE LEVEL 2,806.5 SF
UPPER LEVEL 2,747.7 SF
TOTAL 7,209.35 SF
245
From:Michelle Bonfils
To:Amy Simon
Subject:FW: Public Hearing - 13 & #15, 1050 E Waters Ave.
Date:Thursday, May 27, 2021 3:33:24 PM
From: Ned Sullivan <novillus@earthlink.net>
Sent: Monday, May 24, 2021 2:01 PM
To: Michelle Bonfils <michelle.bonfils@cityofaspen.com>
Subject: Public Hearing - 13 & #15, 1050 E Waters Ave.
Ms. Thibeault;
I am writing in response to the postcards which I recently received, regarding the hearings on June 1 for
Land Use Reviews on 1050 E. Waters Ave., Units 13 and 15. These reviews concern possible
unapproved expansions of decks for these two units. As the owner of Unit 10, I am in a position to see
both of these decks. I have occupied this unit for 25 years full-time, and can attest that with the exception
of a small staircase up to the deck of Unit 13, there has been no expansion of the square footage of either
deck during this time period. I lived on the adjacent property downstream during the construction of these
units, but obviously was not taking notes, and soon moved a few blocks away. Apparently neither deck
conforms to the original approved plans for the building, but no one can remember if they were originally
built that way 50 years ago, or were expanded at some later date. At this point it would seem that the
easiest solution to this hearing would be to grandfather in both decks in their current configurations and
close the cases for both of the current owners. The developer/builder of the complex, Harry Uhlfelder, is
long dead, and I doubt if there is anyone, former owner or tenant, still in Aspen who could shed any more
light on the subject. Since the construction of this complex, and several others downstream, the
laws/codes have changed regarding setbacks from the river (stream margins), etc. I suggest that the City
of Aspen not waste any more time or money on this particular subject and move on to more important
matters.
As it is unlikely that this Hearing will be conducted in person with comments from the public, I am asking
you to forward this email on to the Planning and Zoning Commission to be included in the Hearing as
public input.
Thank you in advance,
Edward M. Sullivan
#10, 1050 E. Waters Ave.
Box 1324, Aspen, CO 81612
925-1021
246
1
Cindy Klob
From:Michelle Bonfils
Sent:Monday, May 31, 2021 7:57 AM
To:Cindy Klob
Subject:FW: E Waters Ave land use reviews
Follow Up Flag:Follow up
Flag Status:Flagged
Hi Cindy,
I received another emailed public comment. How would you like me to distribute this?
Happy Memorial Day!
-Michelle
From: Davis Parr <davisparr@gmail.com>
Sent: Thursday, May 27, 2021 3:07 PM
To: Michelle Bonfils <michelle.bonfils@cityofaspen.com>
Cc: Rothschild, Andrew <arothschild@lewisrice.com>
Subject: E Waters Ave land use reviews
To whom it may concern:
I am writing in regards to the upcoming hearings regarding land use reviews for 1050 E Waters Ave. -
specifically the outdoor additions to units 13 and 15. As the tenant of unit 14, I live directly above units 13
and 15 and therefore have a direct view of the structures in question.
To put it very simply, I have absolutely no problem with these additions and believe that they should be
grandfathered. They are well designed, appropriately sized, and impeccably maintained. If anything, I
believe that they are additive to the overall structure as they add a sense of modernity and completeness
to what is otherwise a fairly aged building. As far as I know they present zero impairment to any tenants'
views of the river - which I assume is the operative issue here.
I was once involved in a similar situation with a neighbor in midtown Manhattan - a city that is notorious
for its stringent planning controls. After no small amount of heartache, the senior members of planning
finally opined that it was really not their ultimate duty to interpret the last letter of the law, but rather to
make the city a better place overall. Thus the project was approved. I would suggest that everyone here
take a step back, look at the big picture and move on.
Furthermore and with all due respect, I can't imagine that Aspen Planning and Zoning does not have
much better things to do with their time and budget given the massive amount of current construction and
what looks to be a record year for real estate. Your team must have a huge amount of work to do and
getting lost in the minutia seems counter-productive.
Thanks for your time.
Sincerely,
Davis Parr
--
Davis Parr
Exhibt A1 - Page 1 of 4
2
Cell: 214-701-5528
email: davisparr@gmail.com
Exhibt A1 - Page 2 of 4
1
Cindy Klob
From:Michelle Bonfils
Sent:Tuesday, June 1, 2021 12:47 PM
To:Cindy Klob
Subject:Fwd: Today’s Special Review re 1050 Waters Ave
Follow Up Flag:Follow up
Flag Status:Flagged
Hi Cindy,
Another public comment for the hearings tonight.
Thank you,
-Michelle
Get Outlook for iOS
From: Evan Rose <roseevan@gmail.com>
Sent: Tuesday, June 1, 2021 2:40 PM
To: Michelle Bonfils
Subject: Today’s Special Review re 1050 Waters Ave
Hi Michelle,
I saw the public notice for this meeting and had hoped to attend, but my work schedule today won’t allow me to call in.
I live on Waters Ave and want to express my concern about any decision that would allow residents to flout the building
code/permitting requirements and then get their work approved retroactively. It seems to me that any decision other
than requiring the property owners to fully conform with the legal requirements would incentivize others to ignore the
permit requirements in the hopes their violations will be excused after the fact. That’d be a slap in the face to every
Aspen resident who actually follows the rules.
Thanks,
Evan R
Sent from my iPhone
Exhibt A1 - Page 3 of 4
1
Cindy Klob
From:Michelle Bonfils
Sent:Tuesday, June 1, 2021 4:24 PM
To:Cindy Klob
Subject:FW: Waters Ave. 6/1/21 hearing
Hi Cindy, one more public comment for the hearings this evening. Thanks, -Michelle
-----Original Message-----
From: Fonda Paterson <fondapaterson@me.com>
Sent: Tuesday, June 1, 2021 3:34 PM
To: Michelle Bonfils <michelle.bonfils@cityofaspen.com>
Subject: Waters Ave. 6/1/21 hearing
Hi Michelle,
Re: Waters Ave. Special Review of un-permitted non-conforming elements
As a lifelong Aspen resident, I’m concerned about the prospect of the city allowing property owners to retain non-
conforming improvements made without a building permit.
In my view, the property owners should be required to return the property to what was originally allowed, as the
Planning Department recommends.
Fonda Paterson
Exhibt A1 - Page 4 of 4