HomeMy WebLinkAboutagenda.boa.20230216AGENDA
ASPEN BOARD OF ADJUSTMENT
February 16, 2023
4:30 PM,
I.ROLL CALL
II.COMMENTS
III.MINUTES
III.A Draft Minutes - 12/1/22, 1/26/23
IV.DECLARATION OF CONFLICT OF INTEREST
V.PUBLIC HEARINGS
V.A 701 S. Monarch Street | Dimensional Variance Review
VI.OTHER BUSINESS
VI.A Election of Chair & Vice-Chair
VII.BOARD REPORTS
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minutes.boa.20221201_DRAFT.docx
minutes.boa.20230126_DRAFT.docx
701 S. Monarch_Memo.pdf
Resolution_No._XX__Series_of_2023_APPROVING_VARIANCE.pdf
Resolution_No._XX__Series_of_2023_DENYING_VARIANCE.pdf
701 S. Monarch_Variance Review Criteria.pdf
1
VIII.ADJOURN
TYPICAL PROCEEDING FORMAT FOR ALL PUBLIC HEARINGS
1) Conflicts of Interest (handled at beginning of agenda)
2) Provide proof of legal notice (affidavit of notice for PH)
3) Staff presentation
4) Board questions and clarifications of staff
5) Applicant presentation
6) Board questions and clarifications of applicant
7) Public comments
8) Board questions and clarifications relating to public comments
9) Close public comment portion of bearing
10) Staff rebuttal/clarification of evidence presented by applicant and public comment
11) Applicant rebuttal/clarification
End of fact finding. Deliberation by the commission commences. No further interaction
between commission and staff, applicant or public
12) Chairperson identified the issues to be discussed among commissioners.
13) Discussion between commissioners*
14) Motion*
*Make sure the discussion and motion includes what criteria are met or not met
Revised January 9, 2021
2
REGULAR MEETING ASPEN BOARD OF ADJUSTMENT December 1st,2022
Chairperson Sandler opened the meeting of the Aspen Board of Adjustment at 4:34 p.m.
Commissioners in attendance: Jim Farrey, Collin Frank, Ashley Feddersen, Andrew Sandler
Commissioners not in attendance: Tim Sack and Rick Head
Staff present:
Jeffrey Barnhill, Planner I
Kevin Rayes, Planner
Bob Narracci, Zoning Administrator
Jim True, City Attorney
Cindy Klob, Records Manager
Risa Rushmore, Administrative Assistant
Staff Comments:None
Commissioner comments: None
Declaration of Conflicts of Interest:None
Minutes: Mr. Sandler motioned to approve the minutes from 9/8/22. Ms. Feddersen seconded.
Roll call vote: Mr. Frank, yes; Mr. Farrey, yes; Ms. Feddersen, yes; Mr. Sandler, yes. All in
favor, motion passes.
Mr. True asked if Ms. Feddersen was joining the meeting via phone. Ms. Feddersen said yes. Mr.
True noted for the record that Ms. Feddersen was participating via phone and asked if anyone
had an objection. There were no objections.
PUBLIC HEARINGS: 401 Park Ave. – Permitted Use Variance
Staff Presentation – Jeffrey Barnhill -Planner I
Mr. Barnhill started by going over some background on the property and noted that it is part of
the Bibbig subdivision and in the R-6 zone district. He also noted the 333 Park Ave. was granted
a variance via BOA resolution #1 of 2022 for a single-family residence and that 401 and 333
Park Ave. have the same ownership. The owners are here today for construction staging on 401
Park while they construct the 333 Park property. Mr. Barnhill then went over the Permitted Use
Variance and its difference from a traditional variance. He also showed a diagram of the two
properties detailing the location of construction parking and material staging areas on the 401
Park property. He then went over the review criteria for the Permitted Use Variance and noted
that staff had determined that this proposal met all of the review criteria. Mr. Barnhill mentioned
that this proposal had been reviewed by the Parks and Engineering Departments and both agreed
with staff’s position recommending approval. There were some conditions in the draft resolution
that addressed their concerns related to the restoration post completion of 333 Park. Staff
recommends approval with the conditions included in the resolution.
Applicant Presentation –Sara Adams – Bendon Adams
Ms. Adams thanked Mr. Barnhill for his presentation and agreed that this was a good solution for
the neighborhood and hoped the board agreed with staff’s recommendation.
3
REGULAR MEETING ASPEN BOARD OF ADJUSTMENT December 1st,2022
There were no questions from the board members.
PUBLIC COMMENTS: None
Mr. Sandler moved to approve Resolution #3, Series of 2022 granting approval for a Permitted
Use Variance to allow off-site construction staging on 401 Park Avenue, with conditions. Mr.
Farrey seconded. Roll call vote:Mr. Frank, yes; Mr. Farrey, yes; Ms. Feddersen, yes; Mr.
Sandler, yes. All in favor, motion passes.
424 S. Spring St. – Setback Variance Request
Staff Presentation –Kevin Rayes –Planner
Mr. Rayes started by showing an overhead view of the property and noted it is where the
Butcher’s Block is located. He went over the current conditions and highlighted several
businesses that occupy the building. He noted that since it was built in the 1960’s and has not
undergone any demolition since then, it is not required to be up to current code standards. It
currently encroaches into a lot of setbacks. He then pointed out a small space between this
property and the adjacent one that was never developed and is the subject of this review. He
showed a few pictures of the space in its current condition which shows various uses including a
dumpster and recycling, refrigeration units and storage sheds. Most of the equipment has been
thought of as necessary for the basic function of the businesses. The challenge is the applicant
would like to keep the equipment where it is, but it is currently well into the 5-foot setback
required here. The applicant is requesting to memorialize the equipment in order to have a
guaranty to be able to continue using it. Mr. Rayes went on to describe the variance review
criteria and noted that due to the corner lot it is not ideal to relocate the equipment to any other
side of the building. He then showed a site plan included in the resolution that highlights the area
the equipment can be located in order to give clarity to the applicant. He stated that staff finds all
criteria to be met and is recommending approval of the variance requested.
Mr. Farrey asked if the area between the two buildings highlighted in the site plan was owned by
the applicant. Mr. Rayes said that the area the equipment is located on is owned by the applicant.
Mr. Farrey asked why this came to the BOA and was not done administratively. Mr. Rayes
responded by saying variances are pretty clear and that putting equipment in the setback is
normally not allowed by code. This is also to provide transparency with the public and is not on
staff to decide if it is consistent with community values rather it is up to the board.
PUBLIC COMMENTS: None
Mr. Sandler moved to approve Resolution #4, Series of 2022 approving a setback variance for
424 S. Spring Street. Ms. Feddersen seconded. Roll call vote:Mr. Frank, yes; Mr. Farrey, yes;
Ms. Feddersen, yes; Mr. Sandler, yes. All in favor, motion passes.
4
REGULAR MEETING ASPEN BOARD OF ADJUSTMENT December 1st,2022
ADJOURN:Ms. Feddersen motioned to adjourn. Mr. Sandler seconded. Roll call vote: Mr.
Frank, yes; Mr. Farrey, yes; Ms. Feddersen, yes; Mr. Sandler, yes. All in favor, motion passes.
_____________________
Mike Sear, Deputy Clerk
5
REGULAR MEETING ASPEN BOARD OF ADJUSTMENT January 26th, 2023
Chairperson Sandler opened the meeting at 4:30 pm.
Commissioners in attendance: Chairperson Sandler
Commissioners not in attendance: Mr. Frank, Ms. Feddersen, Mr. Farrey, Mr. Sack and Mr.
Head.
Staff present:
Kevin Rayes, Senior Planner
Jim True, City Attorney
Mike Sear, Deputy City Clerk
Risa Rushmore, Administrative Assistant II
PUBLIC HEARINGS: 701 South Monarch St. – Dimensional Variance Request
Mr. Sandler moved to continue all business on tonight’s agenda until February 16th, 2023 at
4:30pm due to lack of a quorum.
ADJOURN.
6
Page 1 of 4
MEMORANDUM
TO: City of Aspen Board of Adjustment
FROM: Kevin Rayes, Senior Planner
THRU: Bob Narracci, Zoning Administrator
RE: 701 S. Monarch Street, Dimensional Variance Review
Resolution No. XX, Series of 2023
MEETING DATE: February 16, 2023
APPLICANT:
Caribou Condominium Association Inc.
REPRESENTATIVE:
Chris Bryan, Garfield & Hecht, PC
LOCATION:
701 S. Monarch Street (AKA the Caribou
Condominiums)
CURRENT ZONING AND USE:
Zoned Lodge (L) and improved with six
condominiumzed multi-family residential
dwelling units
Lot Size:
12,144 sq. ft.
SUMMARY OF REQUEST:
The applicant requests a side yard
setback variance of five (5) feet, reducing
the minimum setback from five (5) feet to
zero (0) feet along the southern side of
the property to develop a retaining wall.
STAFF RECOMMENDATION:
Staff supports a variance on this property
and recommends approval of the request.
Figure 1: Site Location
701
Figure 2: Front of Property (As Viewed from
Monarch Street)
7
Page 2 of 4
REQUEST OF THE BOARD OF ADJUSTMENT: The Applicant requests the following approval
from the Board of Adjustment:
• Variance (Chapter 26.314) to grant a setback variance for this site, reducing the minimum
setback from five feet to zero feet to redevelop a retaining wall. The Board of Adjustment
is the final review authority.
BACKGROUND:
701 S. Monarch (AKA the Caribou Condominiums) is located within the Lodge (L) zone district
and has a Gross Lot Area of 12,144 sq. ft. The property was developed circa 1975 and is currently
improved with six condominiumized multi-family residential dwelling units, onsite parking spaces,
and a common outdoor pool area.
The southern-most side of the pool area contains a retaining wall that encroaches into the five-
foot side yard setback prescribed within the Lodge (L) zone district. Pursuant to Land Use Code
Section 26.575.020.e.5.k, Calculations and Measurements, a retaining wall may be located within
a setback if the wall does not exceed 30 inches above or below grade and it is determined to be
necessary for the structural integrity of the improvement. The existing wall was likely constructed
around the time the property was originally developed. It is approximately four feet tall and
considered an existing nonconformity.
The applicant plans to
construct a new wall
adjacent to the existing wall
and requests a setback
variance of five feet to
accommodate the new wall.
Figure 5 depicts the
proposed footprint of the
new wall as it relates to the
setback.
Property Line
Setback
Figures 3 & 4: Existing Retaining Wall
Existing
Wall
Setback
Figure 5: Location and Footprint of Proposed wall
Proposed wall
Existing wall
8
Page 3 of 4
REVIEWS
Setback Variance:
The criteria to grant a variance are strict. The applicant must demonstrate that reasonable use of
the property has been withheld by the City and can only be achieved through a variance. In
situations where all, or practically all, reasonable use of a property is made impossible by
development regulations, the City may 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.
STAFF COMMENTS:
Staff supports approval of the requested variance
to build a new retaining wall with the condition that
the existing wall remain in place. While the existing
wall was never developed in accordance with
engineering standards, it does appear to support
the base of a large tree located uphill from the
property. Removing the wall could loosen the soil
and compromise the foundation of the tree.
Developing a properly engineered retaining wall
adjacent to the existing wall is likely the least
impactful solution that will maintain the shored-up
area and benefit the tree. Staff believes the
potential risk posed to the tree by removing the
existing wall is a unique condition that is likely not
applicable to other parcels in the immediate
vicinity.
As depicted in Figure 5, the existing wall encroaches into the side setback by up to five feet in
certain areas and complies with setback standards in others. The alignment of the proposed wall
follows the contours of the existing wall, meaning a five-foot setback variance is needed in certain
areas and not in others. Requiring the Applicant to keep the existing wall in place and to build a
new wall alongside it, will reduce the current encroachment and will not confer any special
privilege on the property.
Staff supports the five-foot setback variance with the condition that the representations from the
proposed site plan be met. (The site plan is included in Exhibit A of the resolution.) A retaining
wall that aligns with the contours of the existing wall requires the minimum variance that will make
possible reasonable use of the property.
RECOMMENDATION:
Staff recommends the Board of Adjustment approve the variance request to reduce the
minimum side-yard setback from five feet to zero feet, with the condition that the existing
wall remain in place. Building a structurally sound wall adjacent to the existing wall will
mitigate impacts to the tree located uphill from the property.
Figure 6: Existing wall and adjacent tree
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Page 4 of 4
PROPOSED MOTION:
Staff recommends approval of the request. Two motions are included, both of which are
written in the affirmative. The first approves the resolution while the second denies the
resolution.
Motion 1:
“I move to approve Resolution No. XX, Series 2023, approving the variance to reduce the
side yard setback along the southern side of the property from 5-ft. to 0-ft, subject to the
conditions of approval included the resolution.”
If the Board determines that the criteria are not met for a Variance, the following motion may be
used:
Motion 2:
“I move to approve Resolution No. XX, Series 2023, denying the variance for the side yard
setback.”
ATTACHMENTS:
Exhibit A – Variance Review Criteria | Staff Findings
Exhibit B – Application
10
Board of Adjustment
Resolution No. XX, Series 2023
Page 1 of 4
RESOLUTION NO. XX
(SERIES OF 2023)
A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT APPROVING
A SETBACK VARIANCE FOR THE PROPERTY LEGALLY DESCRIBED AS
CARIBOU CONDOMINIUMS COMMON AREA, PURSUANT TO THE
CONDOMINIUM MAP APPEARING IN MAP BOOK 4 AT PAGE 379 AND 380, AS
AMENDED BY THE FINAL SUBDIVISION PLAT APPEARING IN MAP BOOK 4 AT
PAGES 404 AND 405, PITKIN COUNTY, COLORADO, COMMONLY KNOWN AS 701
S. MONARCH STREET, ASPEN, CO 81611
Parcel ID No: 2735-131-25-800
WHEREAS, the subject property is located within the Lodge (L) zone district and contains
an existing-nonconforming four (4) foot retaining wall located within the five (5) foot side-yard
setback; and,
WHEREAS, Land Use Code Section 26.575.020.e.5.k, Allowed Projections into Setbacks,
allows retaining walls within setbacks which do not exceed thirty (30) inches vertically above or
below the lower of natural or finished grade improvements; and,
WHEREAS, the Community Development Department received an application for 701 S.
Monarch Street, (the Application) from the Caribou Condominiums Association, Inc. (Applicant),
represented by Chris Bryan, Garfield & Hecht, for the following land use review approvals:
•Setback Variance: pursuant to Land Use Code Chapter 26.314, to develop a new retaining
wall within the side yard setback along the south of the property; and,
WHEREAS, all code citation references are to the City of Aspen Land Use Code in effect
on the day the application was deemed complete – August 22, 2022, as applicable to this Project;
and,
WHEREAS, during a duly noticed public hearing on January 26, 2023, the Board of
Adjustment voted to continue the hearing to February 16, 2023, due to lack of quorum,
WHEREAS, on February 16, 2023, the Board of Adjustment reviewed the application and
approved Resolution XX, Series of 2023, by a XX to XX vote (X-X), 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: Conditions of Approval
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the
Board of Adjustment hereby approves a five (5) foot side yard setback variance along the southern
side of the property, reducing the setback requirement from five (5) feet to zero (0) feet to develop
11
Board of Adjustment
Resolution No. XX, Series 2023
Page 2 of 4
a new four (4) foot retaining wall, with a forty-two (42) inch guardrail on top, subject to the
following conditions:
1.Approval is conditioned on the existing retaining wall remaining in place. Any changes to
the existing wall or immediate vicinity that may impact trees located on the uphill side of
the subject property shall require subsequent review from the Parks Department. The Parks
Department reserves the right to impose additional conditions to protect all trees in the
area.
2.The entirety of the new wall shall be located fully outside of the adjacent access easement
(Book 94, Page 52).
3.The footprint of the new wall shall be consistent with the site plans included as Exhibit A
and B of this resolution. Small changes of a technical nature may be approved
administratively if found to benefit the tree.
Section 2: Material Representations
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, 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 3: Existing Litigation
This Resolution shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4: Severability
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
APPROVED, by the Board at its meeting on February 16, 2023.
Approved as to content:
______________________________
Andrew Sandler, Chair
Approved as to form:
__________________________
James R. True, City Attorney
Attest:
__________________________
Mike Sear, Deputy City Clerk
12
Board of Adjustment
Resolution No. XX, Series 2023
Page 3 of 4
Exhibit A: Approved Site Plan
xhibit A: Approved Site Plan
xhibit A: Approved Site Plan
Existing 4-ft.
retaining wall
Approved 4-ft.
retaining wall
13
Board of Adjustment
Resolution No. XX, Series 2023
Page 4 of 4
Exhibit B: Approved Cross Section
14
Board of Adjustment
Resolution No. XX, Series 2023
Page 1 of 2
RESOLUTION NO. XX
(SERIES OF 2023)
A RESOLUTION OF THE CITY OF ASPEN BOARD OF ADJUSTMENT DENYING A
DIMENSIONAL VARIANCE FOR THE PROPERTY LEGALLY DESCRIBED AS
CARIBOU CONDOMINIUMS COMMON AREA, PURSUANT TO THE
CONDOMINIUM MAP APPEARING IN MAP BOOK 4 AT PAGE 379 AND 380, AS
AMENDED BY THE FINAL SUBDIVISION PLAT APPEARING IN MAP BOOK 4 AT
PAGE 404 AND 405, PITKIN COUNTY, COLORADO, COMMONLY KNOWN AS 701 S.
MONARCH STREET, ASPEN, CO 81611
Parcel ID No: 2735-131-25-800
WHEREAS, the subject property is located within the Lodge (L) zone district and contains
an existing-nonconforming four (4) foot retaining wall located within the five (5) foot side-yard
setback; and,
WHEREAS, Land Use Code Section 26.575.020.e.5.k, Allowed Projections into Setbacks,
allows retaining walls within setbacks which do not exceed thirty (30) inches vertically above or
below the lower of natural or finished grade improvements; and,
WHEREAS, the Community Development Department received an application for 701 S.
Monarch Street, (the Application) from the Caribou Condominiums Association, Inc. (Applicant),
represented by Chris Bryan, Garfield & Hecht, for the following land use review approvals:
•Setback Variance: pursuant to Land Use Code Chapter 26.314, to develop a new wall
within the setback; and,
WHEREAS, all code citation references are to the City of Aspen Land Use Code in effect
on the day the application was deemed complete – August 22, 2022, as applicable to this Project;
and,
WHEREAS, during a duly noticed public hearing on January 26, 2023, the Board of
Adjustment continued the hearing to February 16, 2023, due to lack of quorum,
WHEREAS, on February 16, 2023, the Board of Adjustment reviewed the Application
and approved Resolution XX, Series of 2023, by a XX to XX vote (X-X), denying the request for
a Dimensional Variance.
15
Board of Adjustment
Resolution No. XX, Series 2023
Page 2 of 2
NOW, THEREFORE BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF THE
CITY OF ASPEN, COLORADO THAT:
Section 1: Conditions of Denial
Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal
Code, the Board of Adjustment hereby denies a southern-side variance to reduce the setback from
five (5) feet to zero (0) feet to accommodate a new retaining wall.
Section 2: Material Representations
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, 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 3: Existing Litigation
This Resolution shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 4: Severability
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.
FINALLY, denied this 26th day of January 2023.
Approved as to content:
______________________________
Andrew Sandler, Chair
Approved as to form:
_______________________
James R. True, City Attorney
Attest:
______________________________
Mike Sear, Deputy City Clerk
16
Exhibit A –Variance Review Staff Findings
Page | 1
Chapter 26.314, Variance Review Criteria
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.
Staff Findings: The purpose of the City’s land use code is very general. It does,
however, speak to the legitimate rights and reasonable expectations of property
owners. Zoning limitations should be observed and enforced as uniformly as
practical. In this instance, an existing non-conforming retaining wall of an unknown
origin is shoring up soil and a large tree. The Parks Department is concerned that
demolishing the existing wall could harm the tree. Building a new wall along the
edge of the existing wall will provide additional support to the surrounding area and
benefit the tree, which is consistent with the general purpose, goals and policies
of the Municipal Code. Staff finds this criterion to be met.
2. The grant of variance is the minimum variance that will make possible the
reasonable use of the parcel, building or structure.
Staff Findings: While staff believes that reasonable use of the property already
exists, the existing retaining wall provides a public benefit which is the shore up
the foundation of the tree. Building a properly engineered retaining wall that aligns
with the contours of the existing wall is considered the minimum variance needed
to accommodate the tree. Staff finds this criterion to be 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 buildings in the same zone district, and which do not result
from the actions of the applicant; or
Staff Findings: The property is located at the base of Aspen Mountain. The
presence of steep slopes is not a unique condition, however, the existing
retaining wall provides a public benefit by supporting the soil and earth
surrounding a large tree. Demolishing the existing wall could impact the soil
and compromise the foundation of the tree. Keeping the existing wall in place
and building a new wall alongside it will shore up the area and benefit the tree.
Staff believes this to be a unique circumstance that does not apply to other
parcels. Staff finds this criterion to be met.
17
Exhibit A –Variance Review Staff Findings
Page | 2
b. Granting the variance will not confer upon the applicant any special
privilege denied the terms of this Title and the Municipal Code to other
parcels, buildings or structures, in the same zone district.
Staff Findings: As previously mentioned, given the unique site constraints and
the concern about maintaining the health of the subject tree, a variance is
warranted to ensure the structural integrity of the area. This is not considered
a special privilege, but rather a unique site condition that requires a variance.
Staff finds this criterion to be met.
18