HomeMy WebLinkAboutagenda.boa.20220908AGENDA
ASPEN BOARD OF ADJUSTMENT
September 8, 2022
4:30 PM,
I.ROLL CALL
II.COMMENTS
III.MINUTES
III.A Minutes - 1/20/2022
IV.DECLARATION OF CONFLICT OF INTEREST
V.PUBLIC HEARINGS
V.A Resolution #02, Series of 2022 - 560 Spruce Street - Request for Setback Variances
VI.OTHER BUSINESS
VII.ADJOURN
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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
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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 9, 2021
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SPECIAL MEETING ASPEN BOARD OF ADJUSTMENT JANUARY 20, 2022
Chairperson Sandler opened the meeting of the Aspen Board of Adjustment at 4:32 p.m.
Commissioners in attendance: Jim Farrey, Collin Frank, Ashley Feddersen, Andrew Sandler
Commissioners not in attendance: Tim Sack
Staff present:
Jeffrey Barnhill, Planner I
Bob Narracci, Zoning Administrator
Jim True, City Attorney
Kate Johnson, Assistant City Attorney
Mike Sear, Deputy City Clerk
Staff Comments:None
Commissioner comments: None
Declaration of Conflicts of Interest:None
Minutes: Mr. Sandler motioned to approve the minutes from 11/11/21, 12/2/21 and 1/6/22. Ms.
Feddersen seconded. Roll call vote: Mr. Farrey, yes; Mr. Frank, yes; Ms. Feddersen, yes; Mr.
Sandler, yes. All in favor, motion passes.
PUBLIC HEARINGS: 333 Park Ave. – Dimensional Variance
Staff Presentation – Jeffrey Barnhill -Planner I
Mr. Barnhill reminded the Board the this was approved as Resolution #5 of 2019 and the
variance expired, which is why it is before the BOA today.
Mr. Barnhill then introduced the project and showed an aerial view of the location. He presented
a slide showing the applicant as BMH Investments LTD, represented by Sara Adams of Bendon
Adams, the request of the BOA for variances to minimum setback requirements and the various
setback requirements for this size lot in the R-6 Zone District. Originally the site was historic
with 2 historic resources that were relocated leaving behind a vacant lot. He then went over the
variance requests including:
Front yard setback variance of 6” (10’ required)
SE side yard setback variance of 5’ (15’ required)
NW side yard setback variance of 10’ (15’ required)
Combined side yard setback variance of 15’ (36’ required)
Mr. Barnhill then listed the encumbrances of the property including:
2 access easements to the front
Extensive Steep Slopes
Top of Slope 15’ setback
Stream margin progressive Height Limit
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SPECIAL MEETING ASPEN BOARD OF ADJUSTMENT JANUARY 20, 2022
He showed a site plan showing what the applicant would have to work with without variances to
the normal setbacks. He went over the standards applicable to variances and determining factors
on whether an applicant’s rights would be deprived. He stated staff’s position (same as from
2019), that they do not support the proposed variance and went over the reasons why. He stated
that, should the BOA find a hardship exists on the property, staff has drafted a resolution of
approval, with conditions and attached Exhibit C, being the previous BOA approval resolution
#5 of 2019.
Ms. Feddersen asked to see Exhibit C and said that four of the members were on the board and
approved this in 2019. She asked if the applicant’s request had changed. Mr. Barnhill said no that
it had just timed out.
Ms. Feddersen said she still stands by her 2019 decision. Mr. Sandler agreed.
Mr. Farrey asked what the reason is for them being back today.
Ms. Adams said that when the BOA grants a variance the code specifies that is only for one year,
while the State statutory vesting is for three years. The condition of approval in 2019 said that it
was good for one year and within that one year you have to submit a permit for a single-family
home. The applicant applied for a permit for demolition and to relocate the historic landmark,
but it was not considered a single-family home permit. She asked that because of the moratorium
that they get more than the one year this time. She suggested three years in order to get through
the moratorium and not have to come back again.
Mr. Farrey said he thought they needed the three years more than ever given the current
situation. He asked Ms. Adams to get it done in the time frame permitted and not to come back.
Mr. True referenced section 6 of the resolution that talks to Land Use Code Section 26.314.070.
He said this is different than the vesting that is created through a Site-Specific Development
Plan.
Mr. Farrey asked if Mr. True was suggesting that three years was too long. Mr. True said that per
26.314.070, there is the ability to grant a one-time extension for up to another 12 months.
Ms. Adams restated that they are looking for a total of three years. Mr. True responded that he
did not think the BOA had the authority to do that. Ms. Adams said that she had discussed this
with Ms. Johnson. Ms. Johnson responded that she did not recall having that conversation. Mr.
Barnhill said he remembered talking about it and that Ms. Adams was landing on three years, but
he did not recall if they ever knew if that was something that the board could grant.
Mr. Farrey asked if they could issue two 12-month extensions to get the applicant to the 36
months they are requesting.
Mr. True restated that he did not think they had the authority to do that. Per the code they may
grant a one-time extension of 12 months.
Mr. Farrey said that they should grant the variance with an automatic one-time extension and that
they could come back to BOA if they needed to.
Ms. Feddersen asked if they could do that. Mr. True said yes.
PUBLIC COMMENTS: none
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SPECIAL MEETING ASPEN BOARD OF ADJUSTMENT JANUARY 20, 2022
Mr. Farrey said they would move for approval based on the criteria that it is consistent with the
purposes, goals, objectives, and policies of Title 26 of the municipal code. That the project
complies with the City’s design standards and environmental regulations and that the variance is
the minimum necessary for reasonable use of the site.
Mr. Farrey then moved to approve for 12 months now and an automatic 12-month extension. Ms.
Feddersen seconded. Roll call vote: Mr. Farrey, yes; Mr. Frank, yes; Ms. Feddersen, yes; Mr.
Sandler, yes. All in favor, motion passes.
ADJOURN:
Mr. Sandler motioned to adjourn. Mr. Farrey seconded. Roll call vote: Mr. Farrey, yes; Mr.
Frank, yes; Ms. Feddersen, yes; Mr. Sandler, yes. All in favor, motion passes.
_____________________
Mike Sear, Deputy Clerk
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Page 1 of 5
MEMORANDUM
TO: City of Aspen Board of Adjustment
FROM: Jeffrey Barnhill, Planner I
THRU: Bob Narracci, Zoning Administrator
RE: 560 Spruce St, Dimensional Variance Review
Resolution #02, Series of 2022
MEETING DATE: September 8, 2022
APPLICANT:
Aspen Spruce LLC, Sandor Shapery
REPRESENTATIVE:
Chris Bendon, BendonAdams
LOCATION:
560 Spruce Street, Aspen, Colorado
81611: Spruce Street Subdivision, Lot 1
PID#273707418001
CURRENT ZONING AND USE:
560 Spruce Street is located within the R-6
zone district and is developed with a legally
established nonconforming duplex
residence. One of the units is deed-
restricted and the other unit is free market.
The existing duplex is a top – bottom duplex
configuration. The upper unit was deed
restricted.
Lot Size: 3,981 square feet
SUMMARY OF REQUEST:
The Applicant requests front yard, side
yard, rear yard, and combined side yard
dimensional setback variances from the
minimum required in the R-6 zone district to
legalize existing improvements.
STAFF RECOMMENDATION:
The applicant previously received a Notice of Approval to
remove the deed-restriction on one of the duplex units with
the condition that the exterior stairwell located on the south
side of the subject property be removed prior to
transitioning this property to a single-family dwelling. This
stairwell encroaches into the setback and was approved
as an Exception for Building Code Compliance to
accommodate life/safety egress from the upper-level
duplex unit. Now that the structure is to be converted into
a single-family dwelling, the exterior stairwell providing
life/safety egress for the upper-level duplex unit is no
longer necessary.
If the Board of Adjustment grants the proposed setback
variance on the south side, then the exterior stairwell may
remain in place.
Existing development on the subject property and adjacent
properties is nonconforming with structures existing
beyond properties lines. The constraints of the subject
property along the south and easterly property lines are
life-safety issues, further development in these areas are
not likely to meet building code. Staff recommends the
BOA make a finding that a hardship does not exist on the
subject property and deny the variance requests.
FIGURE 1: VICINITY MAP
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Page 2 of 5
REQUEST OF THE BOARD OF ADJUSTMENT: The Applicant is requesting the following approval from
the Board of Adjustment:
• Variance (Chapter 26.314) to grant a dimensional variance for this site, reducing the minimum setback
requirements in the R-6 zone district (The Board of Adjustment is the final review authority).
BACKGROUND AND EXISTING CONDITIONS:
The applicant requests variances to the setback standards of the R-6 zone district for a nonconforming
structure. The purpose of the Nonconformities 26.312 section of the code is to protect owners and
neighbors from development that compromises safety, environmental standards, and neighborhood
character. The existing nonconforming structure exists in the setback s. Per the nonconformities section
of the code, nonconformities are not permitted to be enlarged. This is to reduce the impact of
nonconformities on neighboring properties including emergency access. The owner’s representative
inaccurately asserts that the owner applied for and received a “setback variance” in order to accommodate
a stairway along the southern property line and encroaching into the required setback. Using the words
‘setback variance’ in this context, the applicant is introducing confusion into the Board of Adjustment’s
consideration of this matter. Again, the Notice of Approval granted by the City of Aspen on December 20,
2019, was for an exception for building code compliance for a greater than 30” stairway within the setback
of the property for egress. (Exhibit A) An exception for building code compliance is found in the Land Use
Code under 26.575.020.K, is wholly different from a “variance”, and is judged by a different set of criteria.
26.575.020.K Exceptions for Building Code Compliance allows the Community Development Director to
approve exemptions to dimensional standards within the Land use Code if the following review criteria
can be met:
a. The exemptions are needed to accommodate improvement required to achieve building, fire, or
accessibility code in or on existing building when no other practical solution exists, and
b. The visual impact of the exemption is minimal, and
c. No other reasonable way to implement code compliance exists.
Whereas a variance is based on the hardship criteria found in Chapter 26.314. Currently, the applicant is
able to do work on all sides of the building on their property provided that the non-conformities will not be
getting larger.
Figure 2: 2021 photo depicting development in existing sideyard setback in contact with neighboring structure.
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Page 3 of 5
FIGURE 3. View of existing zero lot line condition taken from north side of property.
R-6 ZONE DISTRICT:
The R-6 zone district requires the following minimum setbacks for a 3,982 square foot lot annexed
subsequent to January 1, 1989:
• Front Yard: Principal buildings 10’ and Accessory buildings 15’.
• Side Yard: Minimum 10’ with a total combined side yard setback of 20’.
• Rear Yard: Principal buildings: 10’. For the portion of a principal building used solely as a garage:
5’. Accessory buildings: 5’.
The nonconforming lot is a triangular-like shape and +/-48ft at the widest area of the lot, not meeting the
R-6 standard for a 60ft wide lot. The existing building is 4’3” from the easterly property boundary, 0’0”
front the northern property boundary, and 0’0” from the westerly property boundary. Nonconforming
structures are allowed to be continued by right, however expansion of a nonconforming structure requires
a special review with the Planning & Zoning Commission as the final review. The applicant is allowed by
right to do normal maintenance, upkeep, remodeling, and retrofitting so long as the nonconforming
structure is not expanded. If the nonconforming structure is expanded, only then would it trigger special
review with the Planning and Zoning Commission.
REQUEST:
The Applicant requests approval for a dimensional setback variance for this lot to legalize existing
improvements to the property and to accommodate a stairway built pursuant to a Building Code Exception
for Egress. The variance will not grant “conforming” status to the parcel. Specifically, the following variances
are requested:
560 Spruce St Setback Variances:
• (West) Front Yard Setback Variance: 5’ setback (10’ required)
• (North) Side Yard Setback Variance: 0’ setback (10’ required)
• (South) Side Yard Setback Variance: 0‘ setback (10’ required)
• (East) Rear Yard Setback Vairance: 0’ setback (10’ required)
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Page 4 of 5
• Combined Yard Setback Variance: 0’ combined setback (20’ required)
STAFF RECOMMENDED SETBACKS ON SITE IF BOA DETERMINES HARDSHIP:
560 Spruce St Setback Variances:
• (West) Front Yard Setback Variance: 7’ 8” setback (10’ required)
• (North) Side Yard Setback Variance: 7” setback (10’ required)
• (South) Side Yard Setback Variance: 1’1” setback (10’ required)
• (East) Rear Yard Setback Variance: 0’ setback (10’ required)
• Combined Yard Setback Variance: 1’8” combined setback (20’ required)
The staff recommended setbacks are the minimum needed to legalize all existing improvements
on this site. Please be aware that legalizing the existing improvements achieves legal non-
conforming status, it does not make the property conforming.
SETBACK VARIANCE: The criteria for receiving a variance (Exhibit B) are strict. A property owner must
demonstrate that reasonable use of the property has been withheld by the City and can only be achieved
by the City providing a variance. In situations where all, or practically all, reasonable use of a property is
made impossible by development regulations, the City is able to grant a variance to avoid a “regulatory
taking”. The property owner must demonstrate that their rights, as compared with owners of similar
properties, have been deprived. In considering these criteria, the Board of Adjustment must consider unique
conditions inherent to the property which are not the result of the Applicant’s actions and are not applicable
to other parcels, buildings, or structures. It is important to note that this request is to legalize the existing
non-conformities.
STAFF COMMENTS
For the Board of Adjustment to make the most informed decision on the Variance request, it is important
the Board is aware of the recent land use application history of the property. In March 2021, the property
owner submitted a land use application requesting approval to remove the deed-restriction on the second
unit of the duplex and remodel the existing structure to a single-family dwelling and develop a single-car
garage on-site. The March 2021 application was approved with a condition that required the existing
noncompliant exterior stairwell (adjacent to the neighboring structure) to be removed. The applicant did
not agree with this requirement and has submitted this land use application for a variance to all setback
requirements. This history is important as it demonstrates that the applicant has not been denied
reasonable use of the property and in fact was granted rights to improve the property with the proposed
garage meeting the required setback requirements of the R-6 zone district. The applicant has backtracked
with this new application for a variance to provide that, “literal enforcement by the city of the zoning
requirements will require demolition of the 560 home and modifications to the structures on the property to
the south.” This argument is disingenuous as plans were already approved with conditions in March of
2021 for improvements to be made to the structure and site. If the duplex at 560 Spruce Street is
demolished it will be because the applicant simply wishes to do so. The fact that non-conforming properties
may be difficult to finance and insure does not constitute a hardship under the City of Aspen Land Use
Code.
The subject property and westerly neighbor have a 3ft encroachment agreement to allow the continuance
of the existing structures at 548 Spruce St to exist in part on the subject property. Allowing a 0’0” setback
along the existing 3ft encroachment agreement encourages existing structures on the subject property to
impose more so on the already closely located neighboring property. Emergency access between buildings
is a significant concern in allowing a variance to the rear yard setback. Additionally, if the applicant receives
the requested variance, the City of Aspen shall not deem the project conforming. It will become a legally
established nonconformity.
The applicant’s representative states that the property was originally built in the 1880s. They also assert
that “literal enforcement of the setbacks on the 560 Spruce property would force demolition of a home that
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Page 5 of 5
has existed on this property since before the applicability of zoning laws in Aspen.” Zoning laws have
existed prior to 2022 and did not necessitate “forced demolition”. This confirms the fact that “reasonable
use” of this property has been established for roughly 140 years. The Board of Adjustment should question
why the applicant is now portraying that there will need to be a forced demolition of the structure due to
zoning regulations when it has persisted through time.
The staff recommended setbacks are the minimum required for this property to legalize their existing
structures. Any additional variance would not be considered the minimum required as the building already
sits on the site. Additionally, the Board of Adjustment may not approve any variances for the part of the
structure that is over the rear property line.
REFERRAL AGENCIES
Staff referred this request to the Engineering Department for a cursory review of the setback variances.
The Engineering Department states that “the requested setback variance would limit available space for
stormwater treatment, drainage conveyance, and utility corridors. Engineering does not support the
requested setback variances.” Additionally, the property is not located in a sidewalk deferred zone and
should the property redevelop, a sidewalk will be required. By granting the setback variances the pedestrian
experience could be compromised by encroaching buildings. Any development of the property will require
removal of the fence from the City Right-of-Way.
RECOMMENDATION:
Staff finds that this application reflects a request of inconvenience rather than a hardship, and that there
are alternative design solutions to achieve compliance with setbacks. The applicant has an approved plan
set that they may use to remodel and improve the structure without any setback variances. Staff
recommends that the BOA make a finding that a hardship does not exist on the property and pass a motion
to deny the requests.
ALTERNATIVE:
The BOA may want to make a finding that a hardship exists on the property and pass a motion to approve
a portion of the variance requests. Should the BOA find a hardship exists on the property, a potential
motion should reflect the existing surrounding development pattern relating to side yard setbacks in the
neighborhood and the potential impacts to the neighboring parcels. The BOA should take into account the
Staff recommended minimum required setbacks to legalize the existing non-conformities.
PROPOSED MOTION (All motions are proposed in the affirmative):
1) “I move to approve the denial of BOA Resolution #02, Series 2022.” (this reflects Staff’s
recommendation)
Or, in the alternative:
2) “I move to approve BOA Resolution #02, Series 2022 and find that a hardship exists on the property.”
ATTACHMENTS:
Exhibit A – Notice of Approval – Exception for Building Code Compliance
Exhibit B – Variance Review Criteria, Staff Findings
Exhibit C – Draft BOA Resolution #02, Series 2022
Exhibit D – Application
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Exhibit A –Variance Review Criteria
Chapter 26.314, Variance
A. In order to authorize a variance from the dimensional requirements of Title 26, the
appropriate decision-making body shall make a finding that the following three (3)
circumstances exist:
1. The grant of variance will be generally consistent with the purposes, goals, objectives
and policies of this Title and the Municipal Code; and
Staff Findings: The purpose of the City’s land use code not only protects the public’s
health, safety, and welfare, but also identifies a property’s rights which includes
reasonable expectations for property owners. Staff believes a reasonable expectation is
that zoning limitations are observed and enforced as uniformly as practicable. Staff finds
this criterion not met.
2. The grant of variance is the minimum variance that will make possible the reasonable
use of the parcel, building or structure; and
Staff Findings: Staff finds that reasonable use of the parcel exists as the parcel is
developed today. Furthermore, the applicant received approval to remove the deed-
restriction on one of the duplex units to remodel the building into a single-family
dwelling, expanding the free market residential square footage and build a garage
without requiring a setback variance. The approval was conditioned on removal of the
exterior stairs in the side yard setback. The applicant rejected this condition of approval.
Staff finds that the request for zero-foot setbacks is not the minimum variance necessary
to make use of the property, but rather the greatest request the applicant can make.
Reasonable use of the property exists without the unnecessary granting of zero-foot
setbacks.
Staff recommends consideration of the existing approval and the appropriateness of
granting a variance for the applicant to maintain or remove the nonconforming stairs in
the east side yard setback.
Staff finds this criterion not met.
3. Literal interpretation and enforcement of the terms and provisions of this Title would
deprive the applicant of rights commonly enjoyed by other parcels in the same zone
district and would cause the applicant unnecessary hardship, as distinguished from
mere inconvenience. In determining whether an applicant's rights would be deprived,
the Board shall consider whether either of the following conditions apply:
a. There are special conditions and circumstances which are unique to the parcel,
building or structure, which are not applicable to other parcels, structures or
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buildings in the same zone district and which do not result from the actions of the
applicant; or
Staff Findings: The applicant has a valid approval from March 2021 to remodel the
existing duplex structure into a single-family dwelling, expand the free market residential
square footage and build a garage. This valid approval is conditional on removal of the
exterior stairs. The building code exception for the exterior stairs expires when the
building changes from a duplex to a single-family dwelling.
It is appropriate for the Board to consider granting a variance for the exterior stairs but
maintain the dimensional standards for the remainder of the lot. The subject lot is half
the size of the lots in the zone district and an irregular triangular shape. The irregular
shape of the property does not make development on the property impossible but rather
requires appropriate design. Maintaining dimensional standards allows reasonable use,
and even expansion of development on the lot, as demonstrated in the valid approval
issued March 2021.
Nonconforming Status The subject lot is 3,981 sq.ft. and a triangular shape. It is roughly
half the size of similar lots in the neighboring Fox Crossing and Williams Addition areas
where lots are rectangular and generally 7,500 sq.ft. The subject lot has the other
distinguishing quality that it was possibly developed in the 1880s (although not a historic
landmark). The subject property is a legally established nonconforming structure on a
legally established nonconforming lot. Application for variances from all setback
standards is an attempt at using the Board of Adjustment to circumvent the necessary
Special Review required to limit expansion of Nonconformities. The goals of the
Nonconformities section of the land use code is to encourage redevelopment of
Nonconformities to current safety and community standards.
It is important that the Board of Adjustment differentiate that the applicant’s desire for
zero-setback variances is neither a necessity nor a hardship. Granting of the requested
zero-setback variances would create a precedent for property owners of nonconformities
to request variances which may put the BOA in the position of creating special privileges
for certain land owners. Staff has added proposed setbacks that would be the minimum
required for the structure to be legalized should the BOA find a hardship on the property.
Staff finds this criterion not met.
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b. Granting the variance will not confer upon the applicant any special privilege denied
by the terms of this Title and the Municipal Code to other parcels, buildings or
structures, in the same zone district.
Staff Findings: The subject property is a Nonconformity. Granting of the requested zero-
setback variances for this substandard lot will encourage over development of the lot and
grant special zero-setback variances that do not exist on other properties.
The subject property is a legally established nonconforming structure on a legally
established nonconforming lot. Application for variances from all setback standards is
an attempt at using the Board of Adjustment to circumvent the necessary Special Review
required to limit expansion of Nonconformities. The goals of the Nonconformities section
of the land use code is to encourage redevelopment of Nonconformities to current safety
and community standards.
Staff finds that should the BOA find that a hardship exists, property specific findings
should be made so that special privilege is not conveyed with the grant of a variance.
Staff finds this criterion not met.
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Board of Adjustment
Resolution #02, Series 2022
Page 1 of 3
RESOLUTION #02
(SERIES OF 2022)
A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT APPROVING
DIMENSIONAL VARIANCES FOR THE PROPERTY LEGALLY DESCRIBED AS LOT 1,
SPRUCE STREET SUBDIVISION, ACCORDING TO THE PLAT THEREOF FILED JULY 15,
1985 IN PLAT BOOK 17 AT PAGE 46, COMMONLY KNOWN AS 560 SPRUCE STREET.
Parcel ID No: 273707418001
WHEREAS, the Community Development Department received an application for 560 Spruce
Street, (the Application) from Aspen Spruce LLC. (Applicant), represented by Chris Bendon of
BendonAdams, for the following land use review:
Variance: pursuant to Land Use Code Chapter 26.314,
WHEREAS, the subject property is within the R-6 zone district, is 3,982 square feet in size,
annexed subsequent to January 1, 1989, and requires compliance with the following minimum setback
dimensions:
• Front Yard: Principal buildings 10’ and Accessory buildings 15’
• Side Yard: minimum 10’ for a total of 20’ combined side yard setback
• Rear Yard: Principal buildings: 10’. For the portion of a principal building used solely as a garage:
5’. Accessory buildings: 5’
WHEREAS, all code citation references are to the City of Aspen Land Use Code in effect on the
day the application was deemed complete – December 17th, 2021, as applicable to this Project; and,
WHEREAS, the Board of Adjustment reviewed the Application at a duly noticed public hearing
on September 8th, 2022; and,
WHEREAS, the Board of Adjustment finds that a hardship exists on the property and that it is
reasonable to grant setback variances that relate to the existing development pattern in the immediate
neighborhood; and,
WHEREAS, during a duly noticed public hearing on September 8th, 2022, the Board of Adjustment
approved Resolution #02, Series of 2022, by a __ to __ vote, granting approval for Dimensional Variance
Review, as identified herein.
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1:
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the Board of
Adjustment hereby grants the following dimensional variances, as displayed in Exhibit A, approved site
plan and renderings:
560 Spruce Street
• Front Yard Setback Variance: 5' setback to legalize existing improvements on site.
• N Side Yard Setback Variance: 0’ setback to legalize existing improvements on site.
• S Side Yard Setback Variance: 0’ setback to legalize existing improvements on site.
• Combined Side Yard Setback Variance: 0’ setback to legalize existing improvements on site.
• Rear Yard Setback Variance: 0’ setback to legalize existing improvements on site.
15
Board of Adjustment
Resolution #02, Series 2022
Page 2 of 3
Other than the existing improvements shown on Exhibit A attached hereto, no other development shall be
permitted within established R-6 setbacks other than those projections defined within Land Use Code
Subsection 26.575.020(e)(5), Allowed Projections into Setbacks.
Section 2:
The site drainage shall comply with all rules and regulations as deemed necessary by the Engineering
Department.
Section 3:
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 Community
Development Department and the Board of Adjustment Commission, are hereby incorporated in such plan
development approvals and the same shall be complied with as if fully set forth herein, unless amended by
other specific conditions or an authorized authority.
Section 4:
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 5:
The subject variance is not a Site-Specific Development Plan (SSDP), is not vested, and will not receive a
Development Order.
Section 6:
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.
ATTACHMENTS:
Exhibit A – Approved Site Plan and Elevations
FINALLY, approved this 8th day of September, 2022.
Approved as to form: Approved as to content:
__________________________ ______________________________
James R. True, City Attorney Andrew Sandler, Chair
Attest:
_______________________________
Mike Sear, Deputy City Clerk
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Board of Adjustment
Resolution #02, Series 2022
Page 3 of 3
Exhibit A
17
Board of Adjustment
Resolution #02, Series 2022
Page 1 of 3
RESOLUTION #02
(SERIES OF 2022)
A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT APPROVING
DIMENSIONAL VARIANCES FOR THE PROPERTY LEGALLY DESCRIBED AS LOT 1,
SPRUCE STREET SUBDIVISION, ACCORDING TO THE PLAT THEREOF FILED JULY 15,
1985 IN PLAT BOOK 17 AT PAGE 46, COMMONLY KNOWN AS 560 SPRUCE STREET.
Parcel ID No: 273707418001
WHEREAS, the Community Development Department received an application for 560 Spruce
Street, (the Application) from Aspen Spruce LLC. (Applicant), represented by Chris Bendon of
BendonAdams, for the following land use review:
Variance: pursuant to Land Use Code Chapter 26.314,
WHEREAS, the subject property is within the R-6 zone district, is 3,982 square feet in size,
annexed subsequent to January 1, 1989, and requires compliance with the following minimum setback
dimensions:
• Front Yard: Principal buildings 10’ and Accessory buildings 15’
• Side Yard: minimum 10’ for a total of 20’ combined side yard setback
• Rear Yard: Principal buildings: 10’. For the portion of a principal building used solely as a garage:
5’. Accessory buildings: 5’
WHEREAS, all code citation references are to the City of Aspen Land Use Code in effect on the
day the application was deemed complete – December 17th, 2021, as applicable to this Project; and,
WHEREAS, the Board of Adjustment reviewed the Application at a duly noticed public hearing
on September 8th, 2022; and,
WHEREAS, the Board of Adjustment finds that a hardship exists on the property and that it is
reasonable to grant setback variances that relate to the existing development pattern in the immediate
neighborhood; and,
WHEREAS, during a duly noticed public hearing on September 8th, 2022, the Board of Adjustment
approved Resolution #02, Series of 2022, by a __ to __ vote, granting approval for Dimensional Variance
Review, as identified herein.
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF THE CITY OF
ASPEN, COLORADO THAT:
Section 1:
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the Board of
Adjustment hereby grants the following dimensional variances, as displayed in Exhibit A, approved site
plan and renderings:
560 Spruce Street
• Front Yard Setback Variance: 7' 8” setback to legalize existing improvements on site.
• N Side Yard Setback Variance: 7” setback to legalize existing improvements on site.
• S Side Yard Setback Variance: 1’ 1” setback to legalize existing improvements on site.
• Combined Side Yard Setback Variance: 1’ 8” setback to legalize existing improvements on site.
• Rear Yard Setback Variance: 0’ setback to legalize existing improvements on site.
18
Board of Adjustment
Resolution #02, Series 2022
Page 2 of 3
Other than the existing improvements shown on Exhibit A attached hereto, no other development shall be
permitted within established R-6 setbacks other than those projections defined within Land Use Code
Subsection 26.575.020(e)(5), Allowed Projections into Setbacks.
Section 2:
The site drainage shall comply with all rules and regulations as deemed necessary by the Engineer ing
Department.
Section 3:
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 Community
Development Department and the Board of Adjustment Commission, are hereby incorporated in such plan
development approvals and the same shall be complied with as if fully set forth herein, unless amended by
other specific conditions or an authorized authority.
Section 4:
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 5:
The subject variance is not a Site-Specific Development Plan (SSDP), is not vested, and will not receive a
Development Order.
Section 6:
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.
ATTACHMENTS:
Exhibit A – Approved Site Plan and Elevations
FINALLY, approved this 8th day of September, 2022.
Approved as to form: Approved as to content:
__________________________ ______________________________
James R. True, City Attorney Andrew Sandler, Chair
Attest:
_______________________________
Mike Sear, Deputy City Clerk
19
Board of Adjustment
Resolution #02, Series 2022
Page 3 of 3
Exhibit A – Approved Site Plan
20
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
December 6, 2021
Michelle Bonfils Thibeault
Community Development
City of Aspen
130 So. Galena St.
Aspen, CO 81611
RE: 560 Spruce Street – Lot 1 Spruce Street Subdivision
Request for Setback Variances
Ms. Bonfils Thibeault:
Please accept this application
requesting variances from the setback
requirements applicable to 560 Spruce
Street. Setback variances are
requested to acknowledge the peculiar
layout of the parcel, historic placement
of the home, and to maintain a stairway
that was built according to a building
permit issued by the city in 2020. The
applicant is seeking setback variances
so the property can be considered
conforming.
Location of property along
Spruce Street
The 560 Spruce property is currently
developed as an over/under duplex.
The 3,891 square foot parcel is zoned
R-6 and allows for the development of
a single-family home.
Picture of property from
Spruce Street
21
560 Spruce
Page 2
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
The property was originally built in the 1880s and operated as an assay office in
conjunction with the Smuggler and Consolidated mines. The upstairs was modified to
become a residence used in conjunction with the downstairs commercial space connected
by an interior stairway. Numerous building modifications have been undertaken to the
point that the building no longer has any historic integrity or significance.
The building was acquired by a new owner who operated Aspen Lures, a fishing lure
manufacturer where the original assay office existed on the ground floor. The downstairs
was thereafter converted from the
fishing lure factory to an apartment
thus creating a duplex, with one unit
upstairs and one downstairs.
Eventually through the years the
interior staircase was removed, and
an exterior stair was added.
The subject building was one of
several buildings located on the
original larger site which included an
old cabin located to the east of the 560
building now the location of a multi-
story home addressed as 570 Spruce
Street.
In 1976, an easement was provided to the southerly neighbor to accommodate existing
improvements spanning the property boundary. These improvements, while subject of an
easement, are also subject to removal if literal enforcement of the setback requirement is
enforced by the city. This private agreement will remain intact.
The map to the right
highlights improvements
associated with the
southerly neighbor and
subject of the 1976
easement
22
560 Spruce
Page 3
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
A subdivision application was submitted to Pitkin County in
the 1980s to separate the 570 home from the subject duplex
property. The Spruce Street subdivision plat is filed at Book
17, page 46. The subject property is now known as Lot 1 of
the Spruce Street subdivision.
Because the duplex unit on Lot 1 was a nonconforming use,
the applicant was required to restrict one of the two units to
employee housing for as long as the duplex use was
maintained per Pitkin County Board of County
Commissioners (BOCC) Resolution 077 in 1984. A Deed
Restriction was recorded in 1985 as reception no. 269778.
The recorded document states that the restriction “shall
remain in effect for so long as there exists a duplex unit on
the property or for fifty (50) years, whichever is less.”
The property was subsequently annexed into City of Aspen
jurisdiction in 1989, along with other properties in the
“Williams Addition” and the “Silver King” and “Centennial”
housing complexes. The property was provided with R-6
Zoning.
Access to the second-floor unit was through the
neighboring property and via an exterior stairway
extending into the required rear yard setback along the
property boundary and over the eastern property line
and encroaching into Lot 2 of the Spruce Street
subdivision. This access was not supported with an
easement.
The map to the right shows a close-in
view of the property survey and highlights
the access to the second-floor unit in
relation to the property line
It was important to the owner, Mr. Shapery, to remove
the access from the neighboring property. Area along
the southern portion of Lot 1 could be used for a
relocated stair, but would encroach into the required 5-
foot sideyard – this solution required a sideyard
variance.
Mr. Shapery applied for and received a setback variance in order to accommodate a
stairway along the southern property line and encroaching into the required setback. The
23
560 Spruce
Page 4
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
Notice of Approval was granted by the City of Aspen on December 20, 2019. The Notice
of Approval for the setback variance states that the criteria for approval had been met.
Relying on this setback variance issued by the city, Mr. Shapery proceeded with submitting
a building permit application on January 22, 2020. The permit application was accepted
as complete by the City of Aspen on April 15, 2020 and reviewed for compliance. Mr.
Shapery received his building permit October 19, 2020.
The approved drawings associated with the building permit clearly show the demolition of
the stairs on the eastern side of the building overhanging the property boundary and
installation of stairs along the southern side of the building to be encroaching into the
required setback.
The image to the
right is a plan from
the building permit
application showing
removal of the stairs
on the east side of
the property and the
addition of stairs on
the south side of the
property
Mr. Shapery acted upon issued permit number
0032.2020.BRES, constructing the improvements and
gaining the necessary site inspections along the way.
Mr. Shapery has acted in good faith and has built in
accordance with the issued permit.
The image to the right shows a current
picture of the improvements
constructed according to the setback
NoA and permit 0032.2020.BRES
24
560 Spruce
Page 5
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
This variance application requests the establishment of modified setbacks for the property
and for the property to be deemed “conforming.” The odd shape of the property, the limited
size of the property, and the existing placement of improvements all contribute to a
hardship on the property. Literal enforcement by the city of the zoning requirements will
require demolition of the 560 home and modifications to the structures on the property to
the south. This is not a mere inconvenience or even a tolerable situation. A forced
demolition of the home would be catastrophic to the landowner.
The map to the right shows
the improvements located
on the 560 Spruce
property. Highlighted in
red are the areas of the
existing home that must be
demolished if literal
enforcement of the setback
is enforced
The requested
setbacks are shown in
the chart to the right
The applicant has addressed the standards for grant of a variance in Exhibit 1. The owner
wants to make sure the property, upon receiving the requested variance, is deemed
“conforming” by the City of Aspen. Non-conforming properties are difficult to finance and
insure – the designation itself is a hardship. A conforming designation is also sought to
prohibit future city interference on permitting matters and to ensure setback variances
remain in place in perpetuity.
Proposed Setback Dimensions
Measured from: Dimension:
Front Yard
Western property line
adjacent to Spruce
Street
5 feet
North Side
Yard
Northern property line
shared with Centennial
Apartments
0 feet
South Side
Yard
Southern property line
shared with 548
Spruce Street
0 feet
Rear Yard
Eastern property line
shared with 570
Spruce Street
0 feet
25
560 Spruce
Page 6
300 SO SPRING ST | 202 | ASPEN, CO 81611
970.925.2855 | BENDONADAMS.COM
The 1976 easement granted to the property to the south allows for the continued existence
of slight incursions on to the 560 property. The agreement between the two parties allows
the continued existence of these improvements from an ownership perspective. The
easement does not bind the City of Aspen. Literal enforcement of the setbacks would
cause the removal of these elements associated with the property to the south, an
outcome not desired by the 560 owner. With grant of the requested variances, the private
agreement will remain intact and will continue to enable the neighbor’s structures to
remain. The applicant understands that the City of Aspen does not interpret, enforce, or
manage the applicability, meaning or effect of private agreements.
The property is owned by Aspen Spruce LLC, a Colorado limited liability company. Aspen
Spruce has authorized BendonAdams to submit this land use application. The law offices
of Peck Feigenbaum also represents Aspen Spruce.
This application responds to variance review criteria. Responses to each review criterion
are attached to this application as Exhibit 1. Other pertinent documents are attached for
your reference. 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. HOA form
6. Agreement to pay
7. Pre-Application conference summary
8. 1976 Easement
9. Survey
10. Vicinity Map
26
Exhibit 1
Review Criteria
page 1
Response to Review Standards:
Section 26.314.040.A –
In order to authorize a variance from the dimensional requirements of Title 26, the appropriate
decision-making body shall make a finding that the following three (3) circumstances exist:
1. The grant of variance will be generally consistent with the
purposes, goals, objectives and policies of this Title and
the Municipal Code.
Response – Title 26 of the Municipal Code (known as the Land
Use Code) provides zoning limitations and development standards
for properties in the City of Aspen. The purpose of Title 26, stated
in 26.104.020 includes the analysis of various development factors
“and the legitimate rights and reasonable expectations of property
owners.”
The property is zoned for single-family development and the owner
has a legitimate and reasonable expectation to be able to develop,
enjoy, improve, and maintain a single-family home and for its long-term placement to be
considered “conforming.” A variance to required setbacks to enable the continued existence and
normal improvements to the property, including additions and alterations, is consistent with the
purpose of the Medium-Density Zone District (R-6 Zone).
2. The grant of variance is the minimum variance that will make possible the reasonable
use of the parcel, building or structure.
Response – The application proposes
setbacks for the property that will make
possible the reasonable use of the
property. The property is very small –
less than a tenth of an acre – and
configured in a long, skinny, nearly
triangle shape with one property line at
a very acute angle severely hampering
its useability.
The map to the right highlights the
unique configuration of the 560
Spruce property
The home on the property was developed long before the current zoning restrictions. The home
is non-conforming with regard to setbacks on all sides. The home is essentially touching three of
the lot lines and in some cases slightly over these three lot lines. These conditions effect a zero
(0) foot setback situation as the home currently exists. A zero (0) foot setback is requested along
the north, south, and eastern property lines to account for and accommodate the home including
27
Exhibit 1
Review Criteria
page 2
normal maintenance, upkeep, extensions, expansions, remodeling, retrofitting, and/or
redevelopment. Zero (0) foot setbacks along these three property boundaries will alleviate a
substantial burden on the property, remove the threat to the existing improvements, enable a
“conforming” status with respect to mortgages, title insurance and home insurance, and enable
the property to be enjoyed as any other property in the Medium-Density (R-6) Zone District.
The map to the right shows
the improvements located
on the 560 Spruce property.
Highlighted in red are the
areas of setback violation
Substantial portions of the
home extend into the front
yard setback. A five (5) foot
setback is requested along
the western side of the
property to enable
reasonable use of the
property, including current
and ongoing use of the land
and structures as well as
reasonable expansions,
extensions, maintenance,
upkeep, and enjoyment of
the property. This is especially important given the peculiar configuration of the parcel,
complicating the layout and construction configuration that would otherwise be heavily impacted
by the acute angle of the property, resulting in only acute-angle buildings with severely
compromised use capability. The five (5) foot front yard setback will alleviate this burden and
enable the property to be enjoyed as any other property in the Medium-Density (R-6) Zone District.
The resulting development pattern enabled by the requested setbacks will be consistent and
complimentary to the zone district and the neighborhood. The improvements will continue to be
substantially set back from the adjacent Spruce Street, providing visual relief for passersby while
accommodating reasonable development of the 560 property.
The proposed setbacks are a reasonable outcome and respectful of the neighborhood conditions.
These setbacks have been proposed as the minimum necessary for the property to achieve and
sustain reasonable use.
Proposed Setback Dimensions
Measured from: Dimension:
Front Yard Western property line adjacent
to Spruce Street 5 feet
North Side Yard Northern property line shared
with Centennial Apartments 0 feet
South Side Yard Southern property line shared
with 548 Spruce Street 0 feet
Rear Yard Eastern property line shared
with 570 Spruce Street 0 feet
28
Exhibit 1
Review Criteria
page 3
3. Literal interpretation and enforcement of the terms and provisions of this Title would
deprive the applicant of rights commonly enjoyed by other parcels in the same zone
district and would cause the applicant unnecessary hardship, as distinguished from mere
inconvenience. In determining whether an applicant's rights would be deprived, the Board
shall consider whether either of the following conditions apply:
a) There are special conditions and circumstances which are unique to the parcel,
building or structure, which are not applicable to other parcels, structures or
buildings in the same zone district and which do not result from the actions of the
applicant.
b) Granting the variance will not confer upon the applicant any special privilege
denied by the terms of this Title and the Municipal Code to other parcels,
buildings or structures, in the same zone district.
Response – Literal enforcement of the setbacks on the 560 Spruce property would force
demolition of a home that has existed on this property since before the applicability of zoning laws
in Aspen. The property is zoned for residential use and has limited other marketable use if a home
cannot be developed. The property has no commercial rights and is too small, less than one-
tenth of an acre, to be used for any other productive purpose. The right to continue to enjoy a
home on this property; to use, maintain, extend, expand, remodel, or develop the home is the
fundamental right of the property.
The areas of the home
highlighted in red on the
map to the right would be
required to be
demolished if literal
enforcement of the
setbacks were to occur
The property has received and executed various building permits over the years including a recent
building permit, issued by the City of Aspen, to install access stairs along the southern property
boundary. The 2020 permit for these stairs was issued according to a setback variance granted
by the City of Aspen in 2019. This appears to be the only building permit from 2020 that the City
is attempting to revoke, causing an unnecessary hardship acutely aimed at this landowner.
In addition, literal enforcement of the setbacks would require demolition of the home. This is far
beyond a mere inconvenience – forced demolition of one’s home clearly represents a hardship.
Demolition of the home would also remove the principal use of the property thereby depleting its
marketable value to near zero.
The size and configuration of the parcel represents a significant challenge. The parcel is very
small – less than one-tenth of an acre. Its long, skinny configuration with one property boundary
29
Exhibit 1
Review Criteria
page 4
positioned with a very acute angle forces buildings to adhere to this angle and provide minimal
useability. This unique condition is not the result of the applicant’s actions but does create unique
development challenges. A garage, for example, must be rectilinear to accommodate the shape
of a standard car. An acute-angle, triangle-shaped garage would provide little accommodation
for almost any reasonable use.
The positioning of the building on the parcel is a unique circumstance. The structure violates the
prescribed setbacks along all sides of the building. The structure was initially built in the 1880s –
long before the advent of zoning regulations in Aspen and certainly not the result of the applicant’s
actions. The structure has been modified over the years to accommodate various uses and has
been used in a residential capacity for decades. The home was not positioned on the parcel with
zoning in mind. In fact, no zoning existed, and the initial placement did not violate any local land
use regulation. The unique placement must be considered.
Enabling the property to avoid a forced demolition – to be used, enjoyed, maintained, expanded,
remodeled, extended, and even redeveloped is a right commonly afforded all property owners
with property in the Medium-Density (R-6) Zone District. The proposed setbacks will enable the
existing structure, that has been in this position for 125+ years, to continue. The proposed
setbacks will allow use of the property consistent with use of similarly situated properties that are
devoid of these peculiar circumstances. The floor area allowance will allow development
proportional to the property size, which is significantly less than the vast majority of properties in
the Medium-Density (R-6) Zone District.
Granting the requested setbacks will also allow for standard additions/alterations of the property.
New additions, an altered roofline, or a covered patio, or a trellis would otherwise result in a
combination of various setback requirements and herky-jerky contraption of a home. Even
installing a new window or a replacement window, under current interpretations of the City’s land
use code, would not be allowed unless each window was granted a special review by the Planning
and Zoning Commission, a six-month review and public hearing process. Enabling the property
to proceed under the proposed setbacks would allow standard, routine improvements to be made
just like with any home in the Medium-Density (R-6) Zone District.
By granting the requested setbacks, the owner of 560 Spruce Street will enjoy development rights
in-line with those of like parcels in the Medium-Density (R-6) Zone District. The unique conditions
of the property will no longer pose a hardship. The unique positioning of the improvements on
the property will no longer be under threat of removal. The property will enjoy the full range of
use and development potentials of similar parcels. Finally, the property will not be subject to
ongoing extensive planning processes for every small incremental improvement.
30
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)
560 Spruce Street; Aspen, CO 81611
2737-074-18-001
Aspen Spruce LLC, a Colorado limited liability company; Sandor Shapery, Manager
402 W. Broadway #1050; San Diego, CA 92101
BendonAdams
300 So. Spring St. #202; Aspen, CO 81611
619.239.4700 sandy@shaperyenterprises.com
970.925.2855 Chris@BendonAdams.com
Setback variances requested on all four sides of property.
na na 1 (existing)
0 na
x
x
x
x
2,275
Exhibit 2CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
Setback variances
31
Exhibit 3
32
620 East Hopkins Avenue
Aspen, CO 81611
Phone: 970-925-3577 Fax: 970-300-4423
www.titlecorockies.com
COMMITMENT TRANSMITTAL
Commitment Ordered By:
Chris Bendon
BendonAdams
300 So. Spring St. #202
Aspen, CO 81611
Phone: 970-925-2855 Fax:
email: chris@bendonadams.com
Inquiries should be directed to:
Authorized Officer or Agent
Title Company of the Rockies
620 East Hopkins Avenue
Aspen, CO 81611
Phone: 970-925-3577 Fax: 970-300-4423
Commitment Number:0707067-C3
Buyer's Name(s):Purchaser with contractual rights under a purchaser agreement with the vested owner
identified at item 4 below
Seller's Name(s):Aspen Spruce LLC, a Colorado limited liability company
Property:560 Spruce Street, Aspen, CO 81611
Spruce Street Subdivision, Lot 1, Pitkin County, CO
COPIES / MAILING LIST
Purchaser with contractual rights under a purchaser agreement
with the vested owner identified at item 4 below
Aspen Spruce LLC, a Colorado limited liability company
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.
Service Beyond Expectation in Colorado for: Eagle, Garfield, Grand, Pitkin and Summit Counties. (Limited Coverage: Jackson, Lake, Park and Routt Counties)
Locations In: Avon/Beaver Creek, Basalt, Breckenridge, Grand Lake and Winter Park. (Closing Services available in Aspen and Glenwood Springs).
Page 1 of 1 November 9, 2021
3:40 PM
Exhibit 4
33
620 East Hopkins Avenue
Aspen, CO 81611
Phone: 970-925-3577 Fax: 970-300-4423
www.titlecorockies.com
Commitment Ordered By:
Chris Bendon
BendonAdams
300 So. Spring St. #202
Aspen, CO 81611
Phone: 970-925-2855 Fax:
email: chris@bendonadams.com
Inquiries should be directed to:
Authorized Officer or Agent
Title Company of the Rockies
620 East Hopkins Avenue
Aspen, CO 81611
Phone: 970-925-3577 Fax: 970-300-4423
Commitment Number:0707067-C3
Buyer's Name(s):Purchaser with contractual rights under a purchaser agreement with the vested owner identified
at item 4 below
Seller's Name(s):Aspen Spruce LLC, a Colorado limited liability company
Property:560 Spruce Street, Aspen, CO 81611
Spruce Street Subdivision, Lot 1, Pitkin County, CO
TITLE CHARGES
These charges are based on issuance of the policy or policies described in the attached Commitment for Title Insurance, and includes premiums
for the proposed coverage amount(s) and endorsement(s) referred to therein, and may also include additional work and/or third party charges
related thereto.
If applicable, the designation of “Buyer” and “Seller” shown below may be based on traditional settlement practices in Pitkin County, Colorado,
and/or certain terms of any contract, or other information provided with the Application for Title Insurance.
Owner’s Policy Premium:
Loan Policy Premium:
Additional Lender Charge(s):
Additional Other Charge(s):
Tax Certificate:
Total Endorsement Charge(s):
TBD Charge(s):
TOTAL CHARGES:
$0.00
$0.00
$250.00
$250.00
Service Beyond Expectation in Colorado for: Eagle, Garfield, Grand, Pitkin and Summit Counties. (Limited Coverage: Jackson, Lake, Park and Routt Counties)
Locations In: Avon/Beaver Creek, Basalt, Breckenridge, Grand Lake and Winter Park. (Closing Services available in Aspen and Glenwood Springs).
34
ALTA Commitment Form
COMMITMENT FOR TITLE INSURANCE
Issued by
STEWART TITLE GUARANTY COMPANY, a Texas Corporation (“Company”), for a valuable consideration, commits
to issue its policy or policies of title insurance, as identified in Schedule A, in favor of the Proposed Insured named in
Schedule A, as owner or mortgagee of the estate or interest in the land described or referred to in Schedule A, upon
payment of the premiums and charges and compliance with the Require-ments; all subject to the provisions of Schedules
A and B and to the Conditions of this Commitment.
This Commitment shall be effective only when the identity of the Proposed Insured and the amount of the policy or
policies committed for have been inserted in Schedule A by the Company.
All liability and obligation under this Commitment shall cease and terminate six months after the Effective Date or
when the policy or policies committed for shall issue, whichever first occurs, provided that the failure to issue the
policy or policies is not the fault of the Company.
The Company will provide a sample of the Commitment upon request.
This Commitment shall not be valid or binding until countersigned by a validating officer or authorized signatory.
IN WITNESS WHEREOF, Stewart Title Guaranty Company has caused its corporate name and seal to be affixed by its
duly authorized officers on the date shown in Schedule A.
Authorized Signature
Authorized Signatory
Title Company of the Rockies, LLC
(Company)
10 W Beaver Creek Blvd., Suite 221, PO Box
980
35
CONDITIONS
The term mortgage, when used herein, shall include deed of trust, trust deed, or other security1.
instrument.
If the proposed Insured has or acquires actual knowledge of any defect, lien, encumbrance, adverse claim or2.
other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those
shown in Schedule B hereof, and shall fail to disclose such knowledge to the Company in writing, the
Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to
the extent the Company is prejudiced by failure to so disclose such knowledge. If the proposed Insured shall
disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any
such defect, lien, encumbrance, adverse claim or other matter, the Company at its option may amend
Schedule B of this Commitment accordingly, but such amendment shall not relieve the Company from
liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations.
Liability of the Company under this Commitment shall be only to the named proposed Insured and such3.
parties included under the definition of Insured in the form of policy or policies committed for and only for
actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements
hereof, or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or
mortgage thereon covered by this Commitment. In no event shall such liability exceed the amount stated in
Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions and
Conditions and Stipulations and the Exclusions from Coverage of the form of policy or policies committed for
in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this
Commitment except as expressly modified herein.
This Commitment is a contract to issue one or more title insurance policies and is not an abstract of title or a4.
report of the condition of title. Any action or actions or rights of action that the proposed Insured may have
or may bring against the Company arising out of the status of the title to the estate or interest or the status of
the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this
Commitment.
The policy to be issued contains an arbitration clause. All arbitrable matters when the Amount of Insurance5.
is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured as the exclusive
remedy of the parties. You may review a copy of the arbitration rules at<http://www.alta.org/>.
All notices required to be given the Company and any statement in writing required to be furnished the Company
shall be addressed to it at P.O. Box 2029, Houston, Texas 77252.
Page 2
36
COMMITMENT FOR TITLE INSURANCE
Issued by
as agent for
Stewart Title Guaranty Company
SCHEDULE A
Reference:Commitment Number: 0707067-C3
1.Effective Date: October 26, 2021, 7:00 am Issue Date: November 09, 2021
2.Policy (or Policies) to be issued:
ALTA Owner's Policy (6-17-06)Policy Amount: Amount to be Determined
Premium:Amount to be Determined
Proposed Insured:Purchaser with contractual rights under a purchaser agreement with the vested
owner identified at item 4 below
3.The estate or interest in the land described or referred to in this Commitment is Fee Simple.
4.The Title is, at the Commitment Date, vested in:
Aspen Spruce LLC, a Colorado limited liability company
5.The land referred to in this Commitment is described as follows:
FOR LEGAL DESCRIPTION SEE SCHEDULE A CONTINUED ON NEXT PAGE
For Informational Purposes Only - APN: R011821
Countersigned
Title Company of the Rockies, LLC
This page is only a part of a 2016 ALTA ® Commitment for Title Insurance issued by Stewart Title Guaranty Company. 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.
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.
Commitment for Title Insurance (8-1-2016)
Technical Correction 4-2-2018
Schedule B - Part II
Page 1
37
By:
Mike Mulligan
38
Commitment No: 0707067-C3
SCHEDULE A (continued)
LEGAL DESCRIPTION
The Land referred to herein is located in the County of Pitkin, State of Colorado, and described as follows:
Lot 1,
SPRUCE STREET SUBDIVISION, according to the Plat thereof filed July 15, 1985 in Plat Book 17 at Page 46.
For each policy to be issued as identified in Schedule A, Item 2, the Company shall not be liable under
this commitment until it receives a specific designation of a Proposed Insured, and has revised this
commitment identifying that Proposed Insured by name. As provided in Commitment Condition 4, the
Company may amend this commitment to add, among other things, additional exceptions or
requirements after the designation of the Proposed Insured.
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Stewart Title Guaranty
Company. 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.
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
Commitment for Title Insurance (8-1-2016)
Technical Correction 4-2-2018
Schedule A
Page 3
39
Commitment No: 0707067-C3
COMMITMENT FOR TITLE INSURANCE
Issued by
Stewart Title Guaranty Company
SCHEDULE B, PART I
Requirements
All of the following Requirements must be met:
1.The 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.
2.Pay the agreed amount for the estate or interest to be insured.
3.Pay the premiums, fees, and charges for the Policy to the Company.
4.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.
Resolution or Statement of Authority by Aspen Spruce LLC, a Colorado limited liability company,5.
authorizing the transaction, executed by the managers or members set forth in the Operating Agreement.
NOTE: Review Operating Agreement for authority of party(ies) to act on behalf of said limited liability
company and complete the transaction contemplated herein.
Resolution or Statement of Authority by Maui-Front Street, LLC, a Nevada limited liability company,6.
authorizing the transaction, executed by the managers or members set forth in the Operating Agreement.
NOTE: Review Operating Agreement for authority of party(ies) to act on behalf of said limited liability
company and complete the transaction contemplated herein.
Evidence satisfactory to the Company or its duly authorized agent either (a) that the "real estate transfer7.
taxes" imposed by Ordinance No. 20 (Series of 1979), and by Ordinance No. 13, (Series of 1990), of the
City of Aspen, Colorado have been paid, and that the liens imposed thereby have been fully satisfied, or (b)
that Certificates of Exemption have been issued pursuant to the provisions thereof.
Release by the Public Trustee of Pitkin County of the Deed of Trust from Donald Lee Delise and Cecelia8.
Delise for the use of Quicken Loans Inc., to secure $533,850.00, dated May 8, 2013, and recorded May 8,
2013 at Reception No. 599329.
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Stewart Title Guaranty
Company. 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.
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
Commitment for Title Insurance (8-1-2016)
Technical Correction 4-2-2018
Schedule B - Part I
Page 4
40
Commitment No: 0707067-C3
Release by the Public Trustee of Pitkin County of the Deed of Trust from Maui-Front Street, LLC for the9.
use of Morgan Stanley Private Bank, to secure $1,500,000.00, dated June 21, 2019, and recorded June 21,
2019 at Reception No. 656812.
NOTE: Assignment of the above Deed of Trust to Quicken Loans Inc., recorded July 17, 2019 at Reception
No. 657314.
Deed from Aspen Spruce LLC, a Colorado limited liability company to Purchaser with contractual rights10.
under a purchaser agreement with the vested owner identified at item 4 below.
NOTE: Duly executed real property transfer declaration, executed by either the Grantor or Grantee, to
accompany the Deed mentioned above, pursuant to Article 14 of House Bill No. 1288-CRA 39-14-102.
THE COMPANY RESERVES THE RIGHT TO CONDUCT AN ADDITIONAL SEARCH OF THE
RECORDS IN THE OFFICE OF THE CLERK AND RECORDER FOR PITKIN COUNTY, COLORADO
FOR JUDGMENT LIENS, TAX LIENS OR OTHER SIMILAR OR DISSIMILAR INVOLUNTARY
MATTERS AFFECTING THE GRANTEE OR GRANTEES, AND TO MAKE SUCH ADDITIONAL
REQUIREMENTS AS IT DEEMS NECESSARY, AFTER THE IDENTITY OF THE GRANTEE OR
GRANTEES HAS BEEN DISCLOSED TO THE COMPANY.
NOTE: THIS COMMITMENT IS ISSUED UPON THE EXPRESS AGREEMENT AND
UNDERSTANDING THAT THE APPLICABLE PREMIUMS, CHARGES AND FEES SHALL BE PAID
BY THE APPLICANT IF THE APPLICANT AND/OR ITS DESIGNEE OR NOMINEE CLOSES THE
TRANSACTION CONTEMPLATED BY OR OTHERWISE RELIES UPON THE COMMITMENT, ALL
IN ACCORDANCE WITH THE RULES AND SCHEDULES OF RATES ON FILE WITH THE
COLORADO DEPARTMENT OF INSURANCE.
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Stewart Title Guaranty
Company. 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.
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
Commitment for Title Insurance (8-1-2016)
Technical Correction 4-2-2018
Schedule B - Part I - continued
Page 5
41
Commitment No: 0707067-C3
SCHEDULE B, PART II
Exceptions
THIS COMMITMENT DOES NOT REPUBLISH ANY COVENANT, CONDITION, RESTRICTION, OR
LIMITATION CONTAINED IN ANY DOCUMENT REFERRED TO IN THIS COMMITMENT TO THE
EXTENT THAT THE SPECIFIC COVENANT, CONDITION, RESTRICTION, OR LIMITATION VIOLATES
STATE OR FEDERAL LAW BASED ON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION,
GENDER IDENTITY, HANDICAP, FAMILIAL STATUS, OR NATIONAL ORIGIN.
Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are
disposed of to the satisfaction of the Company.
Any loss or damage, including attorney fees, by reason of the matters shown below:
Any facts, right, interests, or claims which are not shown by the Public Records but which could be1.
ascertained by an inspection of said Land or by making inquiry of persons in possession thereof.
Easements or claims of easements, not shown by the Public Records.2.
Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that3.
would be disclosed by an accurate and complete land survey of the Land.
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.
Right of the Proprietor of a Vein or Lode to extract and remove his ore therefrom, should the same be found7.
to penetrate or intersect the premises hereby granted, as reserved in United States Patent recorded
December 24, 1902, in Book 55 at Page 116.
All right, title and interest in and to said land located at a depth below five hundred feet as reserved by Top8.
of Aspen, Inc. in the Deed to Thomas D. Kassler recorded December 12, 1972, in Book 269 at Page 733,
said easement being more particularly described in said instrument.
Grant of Access Easement and Agreement between Centennial-Aspen II Limited Partnership and Donald L.9.
DeLise recorded May 13, 1985, in Book 486 at Page 38.
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Stewart Title Guaranty
Company. 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.
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
Commitment for Title Insurance (8-1-2016)
Technical Correction 4-2-2018
Schedule B - Part II
Page 6
42
Commitment No: 0707067-C3
Easements, rights of way and all other matters as shown on the Plat of Spruce Street Subdivision, filed July10.
15, 1985 in Plat Book 17 at Page 46.
Terms, agreements, provisions, conditions and obligations as contained in Deed Restriction recorded July11.
15, 1985 in Book 491 at Page 201.
Any and all leases and or tenancies and any and all parties claiming by, through, or under such leases and or12.
tenancies.
This page is only a part of a 2016 ALTA® Commitment for Title Insurance issued by Stewart Title Guaranty
Company. 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.
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
Commitment for Title Insurance (8-1-2016)
Technical Correction 4-2-2018
Schedule B - Part II - continued
Page 7
43
Commitment No: 0707067-C3
DISCLOSURE STATEMENTS
Note 1: Colorado Division of Insurance Regulations 3-5-1, Paragraph C of Article VII, 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.” (Gap Protection)
Note 2: Exception No. 4 of Schedule B, Section 2 of this Commitment may be deleted from the Owner's Policy to be
issued hereunder upon compliance with the following conditions:
The Land described in Schedule A of this commitment must be a single-family residence, which includes a1.
condominium or townhouse unit.
No labor or materials may have been furnished by mechanics or materialmen for purpose of construction on2.
the Land described in Schedule A of this Commitment within the past 13 months.
The Company must receive an appropriate affidavit indemnifying the Company against unfiled mechanic's3.
and materialmen's liens.
Any deviation from conditions A though C above is subject to such additional requirements or Information4.
as the Company may deem necessary, or, at its option, the Company may refuse to delete the exception.
Payment of the premium for said coverage.5.
Note 3: The following disclosures are hereby made pursuant to §10-11-122, C.R.S.:
The subject real property may be located in a special taxing district;(i)
A certificate of taxes due listing each taxing jurisdiction shall be obtained from the County Treasurer or the(ii)
County Treasurer's authorized agent; and
Information regarding special districts and the boundaries of such districts may be obtained from the(iii)
County Commissioners, the County Clerk and Recorder, or the County Assessor.
Note 4: If the sales price of the subject property exceeds $100,000.00, the seller shall be required to comply with the
disclosure or withholding provisions of C.R.S. §39-22-604.5 (Non-resident withholding).
Note 5: Pursuant to C.R.S. §10-11-123 Notice is hereby given:
(a)If there is recorded evidence that a mineral estate has been severed, leased or otherwise conveyed from the
surface estate then there is a substantial likelihood that a third party holds some or all interest in oil, gas,
other minerals, or geothermal energy in the property, and
(b)That such mineral estate may include the right to enter and use the property without the surface owner's
permission.
Note 6: Effective September 1, 1997, C.R.S. §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 inch the clerk and recorder may refuse to record or file any document that does not conform.
Note 7: Our Privacy Policy:
We will not reveal nonpublic personal customer information to any external non-affiliated organization unless we
have been authorized by the customer, or are required by law.
Note 8: Records:
Regulation 3-5-1 Section 7 (N) provides that each title entity shall maintain adequate documentation and records
sufficient to show compliance with this regulation and Title 10 of the Colorado Revised Statutes for a period of not
less than seven (7) years, except as otherwise permitted by law.
Note 9: Pursuant Regulation 3-5-1 Section 9 (F) notice is hereby given that “A title entity shall not earn interest on
fiduciary funds unless disclosure is made to all necessary parties to a transaction that interest is or has been earned.
Said disclosure must offer the opportunity to receive payment of any interest earned on such funds beyond any
administrative fees as may be on file with the division. Said disclosure must be clear and conspicuous, and may be
made at any time up to and including closing.”
Be advised that the closing agent will or could charge an Administrative Fee for processing such an additional
Page 8
44
services request and any resulting payee will also be subjected to a W-9 or other required tax documentation for such
purpose(s).
Be further advised that, for many transactions, the imposed Administrative Fee associated with such an additional
service may exceed any such interest earned.
Therefore, you may have the right to some of the interest earned over and above the Administrative Fee, if applicable
(e.g., any money over any administrative fees involved in figuring the amounts earned).
Note 10: Pursuant to Regulation 3-5-1 Section 9 (G) notice is hereby given that “Until a title entity receives written
instructions pertaining to the holding of fiduciary funds, in a form agreeable to the title entity, it shall comply with
the following:
The title entity shall deposit funds into an escrow, trust, or other fiduciary account and hold them in a1.
fiduciary capacity.
The title entity shall use any funds designated as “earnest money” for the consummation of the transaction2.
as evidenced by the contract to buy and sell real estate applicable to said transaction, except as otherwise
provided in this section. If the transaction does not close, the title entity shall:
Release the earnest money funds as directed by written instructions signed by both the buyer and seller;(a)
or
If acceptable written instructions are not received, uncontested funds shall be held by the title entity for(b)
180 days from the scheduled date of closing, after which the title entity shall return said funds to the
payor.
In the event of any controversy regarding the funds held by the title entity (notwithstanding any termination3.
of the contract), the title entity shall not be required to take any action unless and until such controversy is
resolved. At its option and discretion, the title entity may:
Await any proceeding; or(a)
Interplead all parties and deposit such funds into a court of competent jurisdiction, and recover court(b)
costs and reasonable attorney and legal fees; or
Deliver written notice to the buyer and seller that unless the title entity receives a copy of a summons(c)
and complaint or claim (between buyer and seller), containing the case number of the lawsuit or
lawsuits, within 120 days of the title entity's written notice delivered to the parties, title entity shall
return the funds to the depositing party.”
Note 11: Pursuant to Colorado Division of Insurance Regulation 8-1-3,Section 5, Paragraph C (11)(f), a closing
protection letter is available to the consumer.
Page 9
45
Commitment No: 0707067-C3
Page 10
46
Exhibit 5
47
Exhibit 6
48
PRE-APPLICATION CONFERENCE SUMMARY
DATE: October 12, 2021
PLANNER: Michelle Bonfils Thibeault | michelle.bonfils@cityofaspen.com | 970.429.2741
PROJECT NAME AND ADDRESS: 560 Spruce Street | Continuation of Exterior Stairs in the Setback
PARCEL ID #: 2737-074-18-001
REPRESENTATIVE: Chris Bendon | chris@bendonadams.com
DESCRIPTION: The subject property at 560 Spruce Street is located in the Medium Density Residential (R-6)
zone. The lot is +/-3,982 sq.ft., below the minimum lot size requirement for the R-6 zone (6,000 sq.ft.
minimum gross lost area). The existing duplex, including exterior stairs, are an existing nonconforming use
on the property. One unit of the duplex is deed restricted (Reception #269778). The duplex is an over/under
configuration. Access to the top floor unit is by exterior stair only. The original exterior stairway on the
building straddled the north property line. Subsequently, an application to move the exterior stairway to a
location completely within the property boundaries and requiring an exemption from side yard setback
standards was granted December 20, 2019 by a Notice of Approval for an Exemption For Building Code
Compliance.
The applicant proposes to maintain the exterior stairs located in the required 5 ft. side yard setback to the
second floor after vacating the deed-restriction and redeveloping the property into a single-family residence.
Building code does not require an exterior stair for a single-family residence. A 3.0” ft. encroachment
easement (Reception No. 183756) exists along the eastern side yard allowing the neighboring building roof
to overhang the shared property boundary. The existing exterior stairway is both in the setback and in the
encroachment easement. A land use application submitted March 5, 2021 requested an Administrative
Growth Management application (LPA-21-2021) to vacate the deed restriction of the affordable housing unit
to redevelop the property into a single-family home, conditions of approval for this land use application
required removal of the exterior stairway from the required side yard setback. The hardship requiring this
nonconforming exterior stairway to be maintained should also address the encumbrance onto the
encroachment easement.
RELEVANT LAND USE CODE SECTIONS:
Section Number Section Title
26.304 Common Development Review Procedures
26.314 Variances
26.575.020 Calculations and Measurements
26.710.090 Moderate Density Residential (R-6)
For your convenience – links to the Land Use Application, and Land Use Code are below:
Land Use Application Land Use Code
Exhibit 7
49
REVIEW BY: Community Development staff for complete application and Board of Adjustment
for dimensional variance.
PUBLIC HEARING: Yes, Board of Adjustment
PLANNING FEES: $1,950 deposit for 6 hours of staff time (additional or less hours will be billed or
refunded at a rate of $325 per hour)
REFERRAL FEES: $325 deposit for Engineering review (additional hours will be billed at $325/hour)
TOTAL DEPOSIT: $2,275. Additional or less hours will be billed or refunded at a rate of $325/hour
APPLICATION CHECKLIST – PLEASE EMAIL APPLICATION TO: MICHELLE.BONFILS@CITYOFASPEN.COM
Completed Land Use Application and signed Fee Agreement.
Pre-application Conference Summary (this document).
An 8 ½” by 11” vicinity map locating the parcel within the City of Aspen.
HOA Compliance form (Attached to Application)
Applicant’s name, address and phone number, within a letter signed by the applicant stating the
name, address and phone number of the representative authorized to act on behalf of the
applicant
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. The purpose of this requirement is to show that the Applicant has
the authority to apply for a Land Use Case.
A recent site improvement survey (no older than 1 year) certified by a registered land surveyor
licensed in the State of Colorado.
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.
Written responses to all review criteria outlined in Land Use Code Section 26.314.040 , Standards
Applicable to Variances. The applicant should adequately demonstrate the need for a variance.
Once the copy is deemed complete by staff, the following items will then need to be submitted:
Total fee for review of the application.
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.
50
Exhibit 8
51
52
53
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FOUND 1.25" RED PLASTIC
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#5 REBAR "WITNESS"
PLS 28643 2' WC
0.1' BELOW GRADE
N89° 20' 00"W 125.00'N0° 40' 00"E120.00'S3° 07' 00"E48.22'N62° 3
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N86° 53' 00"E 42.61'S0° 40' 00"W170.82'FOUND 1.5" ALUMINUM
CAP ON #5 REBAR
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0.4' BELOW GRADE
EXISTING #5 REBAR
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0.3' BELOW GRADE
FOUND 1.25"
YELLOW PLASTIC
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FLUSH WITH GRADE
SHED
EXISTING BUILDING
EXISTING BUILDING28.3'7.3'9.1'8.5'8.2'17.3'11.6'
20.2'32.4'3.3'9.1'8.5'ENCROACHMENT NO. 2 (HATCHED)
- SEE DETAIL THIS SHEET
ENCROACHMENT
NO. 3 (HATCHED)
SEE DETAIL THIS SHEET
TWO STORY WOOD
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ROBERT B GILE III
LOT 2
570 SPRUCE ST
PO BOX 1198
MINTURN, CO 81645
PARCEL No. 2737-074-18-002
JEFF TASSE
LOTS 1 AND LOT 2 BLOCK 10 WILLIAMS ADDITION
548 SPRUCE ST
37 HOOK ST SOUTHBRIDGE,
MA 01550
PARCEL No. 2737-074-10-031
LOT 1
3981.30 SQ FT
0.09 ACRES
ASSESSOR PARCEL No.
2737-074-18-001
ADDRESS:
560 SPRUCE ST.
FOUND 1.25" RED PLASTIC
CAP ON 18" LONG
#5 REBAR "WITNESS"
PLS 28643 3' WC
FLUSH WITH GRADE
FOUND 1.25" RED PLASTIC
CAP ON 18" LONG
#5 REBAR "WITNESS"
PLS 28643 1' WC
FLUSH WITH GRADE
OVERHANG
93°
3.0' GRANT OF ENCROACHMENT EASEMENT
RECORDED IN BOOK 311 PAGE 904
RECEPTION No. 183756
STAIRS UP
UPPER LEVEL
WOOD DECK
ENCROACHMENT
NO. 1 (HATCHED)
SEE DETAIL THIS SHEET
ADJOINER'S BUILDING
ENCROACHMENT
NO. 3 (HATCHED)
RO0F
EAVE
2.8'CONCRETESIDEWALKUPPER LEVEL
WOOD DECK
0.7'PROPERTY LINEPROPERTY LINE
PROPERTY LINEEXISTING
BUILDINGSUBJECT PROPERTY'S BUILDINGWINDOW WELL0.4'
0.2'
SHED
OVERHANG
WOOD
HAND RAIL
20.5'
0.2'PROPERTY LINE
ENCROACHMENT
NO. 1
(HATCHED)
ENCROACHMENT
NO. 2
(HATCHED)
3.1'
N89° 20' 00"W43.14'
PROPERTY DESCRIPTION
LOT 1,
SPRUCE STREET SUBDIVISION
ACCORDING TO THE PLAT THEREOF RECORDED JULY 15, 1985 IN PLAT BOOK
17 AT PAGE 46 AS RECEPTION No. 269700.
CITY OF ASPEN
COUNTY OF PITKIN
STATE OF COLORADO
NOTICE: ACCORDING TO COLORADO LAW YOU MUST COMMENCE ANY LEGAL
ACTION BASED UPON ANY DEFECT IN THIS SURVEY WITHIN THREE YEARS
AFTER YOU FIRST DISCOVER SUCH DEFECT. IN NO EVENT MAY ANY ACTION
BASED UPON ANY DEFECT IN THIS SURVEY BE COMMENCED MORE THAN TEN
YEARS FROM THE DATE OF CERTIFICATION SHOWN HEREON.
SOPRIS ENGINEERING - LLC
CIVIL CONSULTANTS
502 MAIN STREET, SUITE A3
CARBONDALE, COLORADO 81623
(970) 704-0311 SOPRISENG@SOPRISENG.COM 11/24/2021 - 19082.02 - G:\2019\19082\ISP 2021\19082.02 ISP.dwg
VICINITY MAP
SCALE: 1" = 2000'
GENERAL UTILITY NOTES:
The locations of underground utilities have been plotted based on utility maps,
construction/design plans, other information provided by utility companies and actual
field locations in some instances. These utilities, as shown, may not represent actual
field conditions. It is the responsibility of the contractor to contact all utility
companies for field location of utilities prior to construction.
GAS METER
ELECTRIC TRANSFORMER
ELECTRIC METER
TELEPHONE PEDESTAL
CATV PEDESTAL
EXISTING CONDITIONS LEGEND
1 inch = ft.
( IN FEET )
GRAPHIC SCALE
010 10 20
10
405
IMPROVEMENT SURVEY PLAT OF:
LOT 1, SPRUCE STREET SUBDIVISION
A TRACT OF LAND SITUATED IN THE NW1
4 OF THE SE1
4 OF SECTION 7,
TOWNSHIP 10 SOUTH RANGE 84 WEST OF THE 6TH P.M.
CITY OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO.
SHEET 1 OF 1
U.S. SURVEY FEET
NOTES
1) DATE OF SURVEY: MARCH 28 - APRIL 16, 2019, AND NOVEMBER 16, 2021.
2) DATE OF PREPARATION: APRIL 16, 2019, UPDATED NOVEMBER 24, 2021.
3) BASIS OF BEARING: A BEARING OF N 73°50'56" E FROM A FOUND REBAR AND ALUMINUM
CAP L.S. 9184 AT THE WEST CORNER OF LOT 1, AND A FOUND REBAR AND CAP L.S. 9184 AT
THE NORTHEAST CORNER OF LOT 2, AS SHOWN.
4) BASIS OF SURVEY: THE FINAL PLAT OF SPRUCE STREET SUBDIVISION, FOUND IN PLAT BOOK 17
AT PAGE 46 OF THE PITKIN COUNTY CLERK AND RECORDERS OFFICE, THE THIRD AMENDED
PLAT OF THE CENTENNIAL CONDOMINIUM FOUND IN PLAT BOOK 69 AT PAGE 18 OF THE
PITKIN COUNTY CLERK AND RECORDERS OFFICE, VARIOUS DOCUMENTS OF RECORD, AND THE
FOUND MONUMENTS, AS SHOWN.
5) THIS SURVEY DOES NOT CONSTITUTE A TITLE SEARCH BY SOPRIS ENGINEERING, LLC (SE) TO
DETERMINE OWNERSHIP OR EASEMENTS OF RECORD. FOR ALL INFORMATION REGARDING
EASEMENTS, RIGHTS OF WAY AND/OR TITLE OF RECORD, SE RELIED UPON THE ABOVE SAID
PLAT DESCRIBED IN NOTE 4. AND TITLE COMMITMENT PREPARED BY TITLE COMPANY OF HE
ROCKIES, EFFECTIVE DATE OCTOBER 26, 2021, COMMITMENT NUMBER 0707067-C3.
6) ENCROACHMENT 1 - SHOWN PER RECORD PLAT. PHYSICAL ENCROACHMENTS INCLUDE
PORTIONS OF CONCRETE WALK AS SHOWN HEREON.
7) ENCROACHMENT 2 - SHOWN PER RECORD PLAT. PHYSICAL ENCROACHMENT INCLUDE
PORTIONS CONCRETE WALK AS SHOWN HEREON.
8) ENCROACHMENT 3 - SHOWN PER RECORD PLAT. PHYSICAL ENCROACHMENT INCLUDE
PORTION OF ADJACENT BUILDING AS SHOWN HEREON
SIT
SCALE: 1" = 5'
ENCROACHMENT DETAIL
ENCROACHMENT EASEMENTS DETAILS
SHOWN PER LOT 1, SPRUCE STREET SUBDIVISION (PB 17 - PG 46 AT RECEPTION NO. 269700)
SEE NOTES 6 - 8 THIS SHEET
1) A PARCEL OF LAND SITUATED IN THE SE1/4 OF SECTION 7, T10S R84W OF THE 6TH. P.M., PITKIN COUNTY, COLORADO AND BEING MORE FULLY DESCRIBED AS FOLLOWS;
BEGINNING AT A POINT ON THE EASTERLY BOUNDARY LINE OF LOT 1 WHENCE THE SOUTHEASTERLY CORNER OF SAID LOT 1, BEARS S 03°07' E 7.88 FEET; THENCE N
03°07 W 18.91 FEET ALONG SAID EASTERLY BOUNDARY LINE, THENCE S 88°33'31" E 2.09 FEET; THENCE S 01°26'29" W 18.85 FEET; THENCE N 88°33'31" W 0.59 FEET TO
THE POINT OF BEGINNING,
CONTAINING 25 SQUARE FEET MORE OR LESS.
2) ALSO A PARCEL OF LAND DESCRIBED AS FOLLOWS;
BEGINNING AT A POINT ON THE EASTERLY BOUNDARY LINE OF LOT 1 WHENCE THE SOUTHEASTERLY CORNER OF SAID LOT 1 BEARS S 03°07' E 28.50 FEET; THENCE N
03°07' W 11.90 FEET ALONG SAID EASTERLY BOUNDARY LINE, THENCE S 88°33'31" E 0.95 FEET; THENCE S 01°26'29" W 11.86 FEET TO THE POINT OF BEGINNING,
CONTAINING 6 SQUARE FEET MORE OR LESS.
3) BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 1 DESCRIBED IN DEED BOOK 297 AT PAGE 554; THENCE N 89°20' W 6.02 FEET ALONG SOUTHERLY BOUNDARY LINE
OF SAID LOT 1, THENCE N 00°32'04" E 2.48 FEET; THENCE S 89°27'56" E 5.86 FEET TO THE POINT OF INTERSECTION WITH EASTERLY BOUNDARY LINE OF SAID LOT 1,
THENCE S 03°07' E 2.50 FEET ALONG SAID EASTERLY BOUNDARY LINE TO THE POINT OF BEGINNING,
CONTAINING 15 SQUARE FEET MORE OR LESS.
TITLE NOTES
1) LOT 1 IS SUBJECT TO THE EXCEPTED LAND 500' BENEATH THE SURFACE RECORDED IN BOOK
269 AT PAGE 733 OF THE PITKIN COUNTY RECORDS.
FENCE LINE
IMPROVEMENT SURVEY PLAT
I, MARK S. BECKLER, HEREBY CERTIFY TO ASPEN SPRUCE LLC AND TITLE
COMPANY OF THE ROCKIES, THAT THIS IS AN “IMPROVEMENT SURVEY
PLAT” AS DEFINED BY C.R.S. § 38-51-102(9), AND THAT IT IS A
MONUMENTED LAND SURVEY SHOWING THE CURRENT LOCATION OF ALL
STRUCTURES, WATER COURSES, WATER FEATURES AND/OR BODIES OF
WATER , VISIBLE ROADS, UTILITIES, FENCES, OR WALLS SITUATED ON THE
DESCRIBED PARCEL AND WITHIN FIVE FEET OF ALL BOUNDARIES OF SUCH
PARCEL, ANY CONFLICTING BOUNDARY EVIDENCE OR VISIBLE
ENCROACHMENTS, AND ALL EASEMENTS AND RIGHTS OF WAY OF A PUBLIC
OR PRIVATE NATURE THAT ARE VISIBLE, OR APPARENT, OR OF RECORD AND
UNDERGROUND UTILITIES DESCRIBED IN TITLE COMPANY OF THE ROCKIES
COMMITMENT NO. 070767-C3, OR OTHER SOURCES AS SPECIFIED ON THE
IMPROVEMENT SURVEY PLAT.
________________________________
MARK S. BECKLER L.S. #28643
11-24-21
Exhibit 9
54
Exhibit 10
560 Spruce Street – Vicinity Map
55
September 5, 2022
LJ Erspamer and Marcia Poutous
534 Spruce Street
Aspen, CO 81611
Jeffrey Barnhill
City of Aspen Community Development
Board of Adjustments
Aspen Colorado
To the City of Aspen Board of Adjustments,
We received a notice that the property owner of 560 Spruce Street who is the second
house towards Hunter Creek from us has filed for a variance of 5 foot and zero setback
for their property.
Approval of this application would create alarming consequences in our Williams
Addition neighborhood.
While this lot is of a small size and odd shape we categorically oppose this application
for many reasons.
1. The Code Would Not Force Demolition of the House. The application states
that: “Literal enforcement of the setbacks on the 560 Spruce property would force
demolition of a home that has existed on this property since before the applicability of
zoning laws in Aspen.” This statement is false.
It is our understanding that the existing home on the property is non-conforming with
regard to setbacks. This means that the Code considers this house to be a non-
conforming structure. Sec. 26.312.030, Non-conforming structures, reads as follows:
a. “A non-conforming structure devoted to a use permitted in the zone district in which
it is located may be continued…”
b. “Normal maintenance to non-conforming structures may be performed…”
So it is quite clear that literal enforcement of the Code would not force demolition of this
house; it would instead allow this house to be continued and maintained.
It appears to us that the only forced demolition that would take place here is of a stairway
which was apparently permitted by the City in 2020. The application does not provide us
with enough information regarding the stairway for us to comment on the City’s decision
to revoke that particular permit. However, the Code makes it clear that the other
nonconforming aspects of the structure can continue and can be maintained and that the
owner will not be threatened with a “forced demolition” of his home.
2. Variance Request Would Have the Effect of a Rezoning. The applicant has not
described any of the additions or modifications which are planned to the home. Typically,
a variance application is submitted to the Board of Adjustment when an applicant
proposes to make specific changes to a property which cannot comply with the underlying
zoning requirements due to a unique physical limitation on the property.
In this case, no specific changes to the existing house have been proposed. Instead, the
applicant seeks to establish reduced setbacks (actually 0’ setbacks) for the house to allow
future improvements and additions to be made to the property. As the application states:
“The applicant is seeking setback variances so the property can be considered
conforming”. The application also requests: “A variance to required setbacks to enable
the continued existence and normal improvements to the property, including additions
and alterations.”
An application to make a property conforming is not what we normally expect from a
variance request. Instead, because this variance would allow future additions and
alterations to take place, this application would, in effect, be a rezoning of the property
which would change its underlying setbacks in a manner which is not enjoyed by any
other property in the R-6 zone district. This variance would allow the applicant to build a
new house from property line to property line on this lot without the traditional limitations
of the R-6 zone district.
Moreover, the application states that “A conforming designation is also sought to prohibit
future city interference on permitting matters and to ensure setback variances remain in
place in perpetuity.” Having these new setbacks remain in effect in perpetuity is further
proof that approval of this application would be a zoning change, not a variance.
Variances are typically granted by the Board of Adjustment only for the duration of the
particular structure. At such time as the structure is removed the variance would cease
and the applicant would have to build a new structure that complies with the underlying
zoning or then seek a variance for the new structure. So, this application runs contrary
to the City’s traditional approach to granting a variance.
3. Applicant is Requesting Much More than the Minimum Variance. The Code
requires the Board to make a finding that the variance requested is the “minimum
variance” to allow for the reasonable use of the property. Given the fact that the applicant
is asking for these setback variances to be in effect in perpetuity and to allow for future
additions or alterations which have not been described, it is impossible for the Board to
make this finding. As the application states “A zero (0) foot setback is requested along
the north, south, and eastern property lines to account for and accommodate the home
including normal maintenance, upkeep, extensions, expansions, remodeling, retrofitting,
and/or redevelopment.
Having 0’ setbacks to allow for the future redevelopment of this property would seem to
us to be the maximum possible variance which could be granted to this property. What
property owner wouldn’t want to have no setback limitations on their property? What type
of dangerous precedent would be the Board be setting if it granted this kind of carte
blanche to this applicant?
We hope you will agree with the staff and deny this variance request.
Sincerely,
LJ Erspamer Marcia Poutous
Mike Sear
From: ewpskimela@aol.com
Sent: Wednesday, September 7, 2022 5:22 PM
To: Public Comment
Subject: 560 spruce
Follow Up Flag: Follow up
Flag Status: Flagged
Heres another million dollar project not wanting to adhere to the codes...
i do not endorse the variances they are requesting. either stay within the codes and guidelines or go somewhere else.
ed petrosius
The following is a transcript of a voicemail received by Ed Petrosius on
Sept. 9th at 10:29am.
Speaker 1
Hi Jeffrey this is Ed Petrosius 8477674419 and I just got the.
Speaker 1
I just got a postcard about the coming up for a variance on 560 Spruce St A hearing coming up on the
same thing with September 8th.
Speaker 1
Uhm, they want a 5 foot variance instead of the blah blah blah. I say no. So whatever you gotta do,
that's what I think. Don't give him the variance. See ya. Thanks.