HomeMy WebLinkAboutminutes.council.20150223Regular Meeting Aspen City Council February 23, 2015
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CITIZEN COMMENTS AND PETITION ................................................................................................... 2
COUNCILMEMBER COMMENTS ............................................................................................................ 3
BOARD REPORTS ...................................................................................................................................... 4
CONSENT CALENDAR ............................................................................................................................. 4
Resolution #25, Series of 2015 – Contract – Winter & Company – Residential Design Standards
Update ....................................................................................................................................................... 6
Minutes – February 9, 2015 .............................................................................................................. 6
Resolution #24, Series of 2015 – Contract Change Order for R.A. Nelson ...................................... 6
PUBLIC HEARING FOR POLICY RESOLUTION - Resolution #15, Series of 2015 – amend Section
26.212 and 26.220 of the Land Use Code ................................................... Error! Bookmark not defined.
Ordinance 5, Series of 2015 – Utility Development Review Fee Amendment ............................................ 6
Ordinance #9, Series of 2015 – Limits on Variations Code Amendment ..................................................... 6
Ordinance #8, Series of 2015 ........................................................................................................................ 9
Resolution 23, Series of 2015 ..................................................................................................................... 10
Resolution 22, Series of 2015 ..................................................................................................................... 13
Regular Meeting Aspen City Council February 23, 2015
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At 5:00 pm Mayor Skadron called the meeting to order with Councilmembers Frisch, Mullins, Romero
and Daily present
CITIZEN COMMENTS AND PETITION
1. Peter Fornell asked about the progress with reviewing the cash in lieu program. There was a
study in 2011 and the results were not a surprise. It was recognized as a serious problem and no
action has been taken. The amount is only mitigated for 70 percent of what is requested in
development. The City is asking the community to come up with extra FTE’s to meet the
numbers. The employee generation study is completed and the results are what we expected.
One disappointing result is not taking a look at residential mitigation or generation. In regard to
the affordable housing certificate program, when accepting cash in lieu for 60 to 70 percent the
private sector can’t do that. If you want to see the program die continue to take 60 to 70 percent
of what it cost to complete. No one will buy certificates and development will come to a halt.
It’s time this board puts this on the top 10 list and takes a good hard look at what you are asking
for.
2. Jerry Bovino said our job is to keep Aspen beautiful. That is why we have a municipal code. The
worst we could do is carve one off variances to the code. Developers are smarter than we are.
We need to rewrite the code so it fits the current needs of the City. It should be uniform for every
developer that comes here. People are not opposed to development but bloated stupid
development that makes Aspen ugly for our grandchildren. Make the code something that is
good for everyone in Aspen.
3. Walt Madden encouraged Council to vote no on ordinance 9 at first reading. Ordinance 9 feels
like a knee jerk reaction to the charter amendment petition. He encouraged Council to stop
spending time on that and start legislating code amendments we need in town.
4. Tim Reed said Council creates policy and staff and the city implement them. Over 1000 voters
expressed disappointment in the process. Let this go to a vote and come back to an ordinance
after the vote.
5. Bert Myrin asked Council to vote no on ordinance 9 tonight. Spend time on the substance of the
code instead of the process. Try some things to address the substance.
6. Torre stated he supports the previous speakers. Not sending this to second reading will be the
best move for this Council. He said regarding the election he was dismayed when Council chose
to do an all mail ballot election. Polling places are vital to the community. The biggest charge
for Council is to encourage voter turnout. There is a middle ground. We don’t need to run all the
precincts we have previously. City Hall will act as a voting center. He recommended a second
center possibly at Schultz. In 2013 voter turnout was 35%. What can we do about that. It starts
with access. Sending a ballot to everyone is a great move. One third of the people who were on
the PMIV and requested a ballot sent the ballot back. 100% of the people who went to the polling
place voted. He is asking Council to consider setting up additional voting centers.
Mayor Skadron said he agrees with what Torre said. When this came before Council he objected to
mail ballot. Polling places are the essence of community and helped to create the fabric we cherish so
much. Does Council want to move to a hybrid system.
Councilman Daily said he respects what Torre brought to us. He had similar feelings when this first
came up. He likes the sense of community coming together to vote. If there is a way to move
towards a hybrid system he is happy to work with the Mayor.
Mayor Skadron said he is concerned about voter clarity. With multiple options there is a question of
when voting happens. His preference would be not the hybrid system but return to the old way.
Councilwoman Mullins stated she supports the hybrid but would support anything that gets more
voter turnout. Allowing voters several options increases their participation. She supports polling
places going away. Things do change and we need to provide other options.
Regular Meeting Aspen City Council February 23, 2015
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Torre said the trend is going towards mail in and the concern is to have similar systems. Getting a
ballot mailed has been available for a while. The only change here is one will be mailed to everyone.
It is hard to make heads or tails of who is voting. This will be the first all mail ballot for the City and
he suggests we run the hybrid system for this year. We won’t know that info until we test that out.
Councilman Frisch said the county, state and federal process are all doing same thing. If there is a
way for this election to be a hybrid we do need neon signs saying don’t expect this for the future. We
should try to get on the national process. Trying to get as many people to vote as possible. Polling
places won’t be there forever.
Torre stated the snow is back. He noticed there are places where large snowplows can’t access.
Specifically between Galena and Mill and he is asking Council and the City Manager if it would be
possible for resources for a bobcats to help with trouble spots.
7. Mick Ireland stated mail ballot is the most important statistic in a highly transient town where
about 20 percent of any given mailing is returned. A good many voters think a ballot is coming
and it can’t be forwarded. The hybrid system merits some consideration. The issue over
ordinance 9 is to continue it. Council might be well advised to continue it till after the election.
The ordinance exempts parking from the home rule charter. It might be better to wait until the
people have spoken. The ordinance concedes the point people are qualified to vote on land use
decisions. Rather than two competing versions let the people speak and come back. We need a
compressive approach to parking rather than a variance. When Base 1 was approved statistics
were conjecture not facts. It bears some examination. He proposes a framework to go forward to
look at the problem as a whole not a project by project basis.
8. Steve stated it is inappropriate to proceed on ordinance 9. It looks and smells like a tactic to screw
up the initiative.
9. Jasmine Depocter – stated she completely agrees with Mick Ireland.
10. Marsha Goshorn said the idea of a mail in ballot good. Many people came and dropped off their
ballot in the envelope for the November election.
11. Doug Wilson begged Council to postpone any action on Ordinance 9.
12. Cark Hecht said last November trash bins at the post office were stacked full of ballots.
13. Janine Kirk agrees with Bert and Mick. She hopes Council postpones ordinance 9 or votes no.
There have been social dances in the rio grande for the last 9 years. She appreciates the city
offering that. The numbers have gone from 20 to 50 and there is no other venue in this town.
She is asking Council to reconsider letting the rio grande crew use something other for a staging
area. She would like to use the room until December. Councilman Frisch said this came up
before and it is more than the use of the room than can be supplemented by a trailer. Jack
Wheeler stated the building is not being used for library contractors. They are re-waterproofing
the garage and remodeling the rio grande to accommodate the building and engineering
departments. The remodel is starting in April and will continue through summer. They stopped
taking reservations April 1 to give time for alternative space for activities. They tried to come up
with other ideas and are still working on that. In order to build engineering into that space they
need six months to renovate the space to accommodate them when they get there.
14. Blanca O’Leary stated over 1000 signed on for the petition to keep aspen aspen. It might make
more sense to wait for the May election results.
COUNCILMEMBER COMMENTS
1. Councilwoman Mullins asked what the schedule for the employee generation study is. Barry
Crook, managers office, replied the community development portion is set for a work session at
the end of March. Staff is meeting with housing on how to take the cash in lieu forward.
Councilman Frisch said he thought the cash in lieu affects residential and commercial. There is a
Regular Meeting Aspen City Council February 23, 2015
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community buy-in on the commercial aspect. The hard part is are we multiplying by the right
number. There is heartburn with the residential numbers. How many square feet equal an FTE.
We know one component. Chris Bendon, community development, said there are two projects,
APCHA and community development. It is on hold for clarity around the residential study. They
should have the report out around March first. Councilman Romero asked what report Peter was
referring to. Mr. Bendon said they have seen a draft but have not sent it out publicly.
Councilman Frisch asked where we are on the cash in lieu number. Mr. Crook said that study
was quite some time ago. There are questions on the methodology. Councilman Frisch
responded the gap methodology and it didn’t fly. Mr. Crook said there is a slightly different gap
proposal with a historical cost basis approach. Mr. Bendon said Council wanted to look at the
two things together. Cash in lieu was put on hold until the employee generation study came back.
Councilman Romero said the RHETT collection in 2014 was six or seven million. Councilman
Frisch said that will go in to how it is handled.
2. Councilman Frisch said the snow is good and smiles are big. Be careful in the back country. We
have one of the highest avalanche regions in the country.
3. Mayor Skadron said next weekend is the power of four mountaineering race. It is also the first
Aspen uphill event. There will be vendors at gondola plaza along with the first Aspen uphill ski
swap dedicated to ski mountaineering from 11 to 3 at the plaza. At four there will be a film
screening highlighting the history of Aspen at the Ute.
BOARD REPORTS
Mayor Skadron stated RFTA set the IGA for senior programs. They are working on the draft rio grande
corridor access control plan. RFTA manages the bike path and the trail is a protected corridor. There are
things RFTA must do to protect that and they are on top of it.
CONSENT CALENDAR
Resolution #24 – contract change order R.A. Nelson
Evan Pletcher, asset, told the Council transit one and two areas have an issue with roof drainage onto the
sidewalks creating ice and dangerous scenarios. There are also drainage issue with the concrete.
Councilman Romero asked if this is an existing condition. Jack Wheeler, asset, said they have been
talking about this since 2011. There was one issue with someone falling. This was in the budget for
2014. They increased the scope in December to add the roof structure over the walkway.
Councilman Romero said they approached the existing contractor and secured an attractive bid and
proposal to complete the work as a change order so we don’t have to see a second contractor. Mr.
Wheeler said the work was priced in the past and this is a better price and a more inclusive scope of work.
Councilwoman Mullins stated the memo mentions Council had approved the repairs previously but the
work was never completed. She asked if the money was previously budgeted. Mr. Wheeler said the
money carried forward to 2015. There is a typo in memo but it is a carry forward. It was approved two
years ago and carried forward to 2014. It did not get implemented in 2014 and carried forward again. It
was taken out to bid but they received no bids.
Mayor Skadron asked them to run through the numbers. Mr. Wheeler said the available carry forward is
134,000 dollars. The contract is for 130,000 and the rest is contingency.
Councilwoman Mullins asked if the reason it was not completed is there were no bids. Mr. Wheeler
replied yes, it went out to bid with the regrading project.
Resolution # 25 – residential design standards update
Chris Bendon, community development, stated the design standards were adopted in the mid 1990’s. The
result was a set of objective standards applied to residential design. They are silent on style but require
Regular Meeting Aspen City Council February 23, 2015
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certain aspects like garage placement and porches. This is a freshen up of those standards. There were
six or seven responses to the proposal. Staff selected Winter and Company. They have great experience
in Aspen design guidelines. They are comfortable with Aspen and resort areas. The questions in the
memo regards scope options and a significant question centered on scope expectations. This is a simple
freshen up. It is a basic framework that allows creativity in architecture and the ability to achieve
exemptions on certain properties. Some standards work well and some need retooling. It is not a
reconsideration of larger scope issues. Staff is not going back to a design board. If that is the expectation
we would be busting the budget. There might be folks in the design community who want the larger
conservation. If Council wants that Staff would rebid the proposal.
Councilman Frisch said his personal take is the built environment is focused on downtown. The
residential aspects are working well and the historic aspects have been taken care of. There is a pretty
good system and it works. Mr. Bendon stated this is for non-historic properties.
Councilwoman Mullins said she does not quite agree with Councilman Frisch. Winter will do a great job.
25,000 dollars is a good fee. It should have a lot of public participation and that may inform if it is a
refresh or a rework. A rework may be necessary to address all the different styles in town. The standards
right now don’t apply equally to each property. It needs looked at in depth. It can start with a refresh and
have public outreach and see what the response is. We very badly need a rewrite of the historic
guidelines. They still do not contain a strong landscape section and are weak in addressing
AspenModern. In the future she will suggest rewriting those. It sounds like a good contract for now and
a wait and see reaction. Councilman Frisch said there are three components; size, look and feel. He
asked if her concern is about one of these or other aspects. Councilwoman Mullins replied her concern is
varying architecture and some standards are fairly strict like the front door has to face the street. They do
not apply equally to all styles. It need to be more flexible or more detailed.
Councilman Romero said he agree with Councilwoman Mullins comments. His sense is staff is bringing
this forward based on friction and neighborhood architecture styling across town. It is hard to apply one
set of rules across these different personalities. They are not applied uniformly and create frustrating
conversations. This particular rule seems to be a duck out of water. Mr. Bendon said there are some fixes
Staff would have liked to have brought forward years ago. They shared frustrations with the development
community and Staff feels they can be dealt with. Councilman Romero said there is some level of reform
to make it simpler, cleaner and less regulation over all would be ok. It would allow for some needed
flexibility within the program and allow for creativity that is one of our hallmarks.
Mr. Bendon asked if there is any commentary on the optional scope. The graphics in the current
standards have been very valuable and is an add on item.
Councilman Frisch stated we are all trying to figure out how to encourage the condo market to redevelop.
Anything that comes up with ideas that respect town character and see things move forward I’m for.
Multi family is money well spent.
Councilwoman Mullins is in support to include the graphics.
Councilman Romero is also ok with the graphics and does not think they need to take on multi family
right now.
Councilman Daily said the recommended first step is necessary. It is not expensive or time consuming
but will be helpful to the community. Other areas that need updates and further work are a second step.
He would like Staff to think about the direction they need from Council to move ahead on those.
Regular Meeting Aspen City Council February 23, 2015
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Councilwoman Mullins said to keep the standards within the land use code.
Councilman Frisch said to go with this and see where it goes.
Mr. Bendon recommended Council adopts this with the 5,000 dollars for the graphics.
Resolution #25, Series of 2015 – Contract – Winter & Company – Residential Design Standards
Update
Minutes – February 9, 2015
Resolution #24, Series of 2015 – Contract Change Order for R.A. Nelson
Councilman Frisch moved to adopt the consent calendar; seconded by Councilwoman Mullins. All in
favor, motion carried.
Ordinance 5, Series of 2015 – Utility Development Review Fee Amendment
Lee Ledesma, utility department, told the Council 2015 is the first year with the utility development fees.
Prior to now they were absorbing the smaller reviews in house and outsourcing the larger ones. At the
end of 2014 when the 2015 fees were adopted the table with the remodels was adopted incorrectly. It was
shown as a per ecu rate instead of a .05 ecu. The majority of the remodels are a .05 on average with a flat
review fee less than 50 dollars. Unfortunately Staff needed to come back to get the fee fixed. The minor
and major review rates are correct as presented.
Councilwoman Mullins asked if it was a typo or omission. Ms. Ledesma replied it was a typo in the
remodel section. Everything presented on the revenue and expense side represent .05 not the per 1 ecu.
Not correcting the fee would impact the numbers in the long range plan by about 60,000 dollars.
Councilman Romero moved to read Ordinance #5, Series of 2015; seconded by Councilman Frisch. All
in favor, motion carried.
ORDINANCE NO. 5
(SERIES OF 2015)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO AMENDING
TITLE 2 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN TO AMEND SECTION 2.12.100,
BUILDING AND PLANNING.
Councilman Romero moved to adopt Ordinance #5, Series of 2015 on first reading; seconded by
Councilman Daily. Roll call vote; Councilmembers Romero, yes; Daily, yes; Mullins, yes; Frisch, yes;
Mayor Skadron, yes. Motion carried.
Ordinance #9, Series of 2015 – Limits on Variations Code Amendment
Jessica Garrow, community development, said this will limit the amount of variation an applicant can
request. Second reading is scheduled for March 9.
This will limit variation requests but allow some flexibility for Council to consider on a case by case
basis. It would apply to existing or new planned developments. For height, Council could approve up to
two feet above the limit and a ten percent increase in floor area. Beyond that a public vote would be
taken. Staff feels flexibility is important. For example, in terms of height an existing building needs a
new roof and add insulation but it will be six inches higher than the zone district allowance. This gives
Council an out to approve the additional six inches in height that is necessary. In terms of floor area we
see projects approved in the 1970’s and 80’s and would like to expand. It should be considered on a site
specific basis and Council should have the ability to approve it. P&Z approved specific expansions that
the units could do. This flexibility is important. For housing mitigation this amendment would apply to
all properties except essential public facilities and those going through the AspenModern program. The
current code states Council has to set the mitigation requirement. Commercial and lodging mitigation is
set at 60 percent. The AspenModern code requires the property owner to negotiate with the City. This
Regular Meeting Aspen City Council February 23, 2015
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has resulted in 11 designations in the last four years. The other 25 designated properties took 37 years.
The program is successful and working and a model that other communities can do. Parking is not
proposed in this amendment. Flexibility on a site by site basis is important. If someone goes above and
beyond on transportation mitigation Council should be able to consider that.
There are differences between the charter amendment and this proposed code amendment. The goal is to
have Council provide direction to Staff on what they would like to see changed. The first is related to
non-conformities and the charter amendment exempts the replacement of non-conforming structures and
this code amendment would do the same thing. The difference is the charter amendment is broad and
applies to properties broadly and not a specific review. If a non-conforming structure wanted to expand it
could not occur without a public vote. With this code amendment they could expand in these thresholds
or request a hardship variance through the board of adjustment. For AspenModern, with the charter
amendment Council could continue negotiation but if it increased height or floor area, decreased parking
or housing it would trigger a public vote. The code amendment would not trigger a vote. For essential
public facilities, with this code amendment the practice of Council establishing the mitigation requirement
would continue. The charter amendment is limited to commercial and lodge zone districts inside the
round a bout. The code amendment is limited to existing and new planned developments and applies
equally to all property. Staff is also requesting P&Z be designated as the board of adjustment.
Mr. Bendon stated Staff thinks it is legitimate to have some flexibility at the Council table to
accommodate some design challenges. Obermeyer needed slight variations in height that had to do with
topography. In order to make sense of the architecture you had to deal with the undulating topography.
There are lots of sites with complicated slopes and are difficult to deal with architecturally. Staff is not
suggesting this code amendment affect parking there is a more thorough discussion that should happen
around parking. There is a work session in March focused on transportation management.
Councilwoman Mullins said the Molly Gibson is a site with several different underlying zones if you
stipulate only 10 percent FAR or two feet in height what if there is a choice of applicable zones. Mr.
Bendon said they will have that answer for second reading. Split zone properties are difficult.
Councilwoman Mullins asked him to comment about parking and she does not think we should be
addressing parking. We need to be thinking about a more comprehensive policy as modes of
transportation are changing. She prefers to come up with a bigger policy decision on parking. This has
been described as a knee jerk reaction and she does not think it is. This is a response to the community
concern. We’ve approved several projects with no variances. In terms of voting no on moving this to
second reading, when she voted no on Base 2 one of the outcomes is there is no additional public
comment. She wants to make sure everyone who wants to comment on this has a chance.
Councilman Frisch said it sounded like if we were for this ordinance it would nullify the ballot question.
No matter what we do up here there will be a vote we have to title. It is going forward whether we want
to or not. His overall view is a lot of people who signed it wanted to shout out this is the only option we
have and we want to take it. Staff is responding to Councils request that doesn’t ham string the
community and is a more thoughtful way. Council could have put their own proposal on the ballot. Is
there is a way to come up with what serves the community best and act in good faith with what we have
heard in the community. The idea of allowing flexibility for a little height and FAR only just raises the
bar to a new max. The flexibility makes sense. The reason we are stuck here is this town gets a lot of
buyer’s remorse. We need to figure out how we tackle this and it is not just another up zone. Mr. Bendon
said developers will make a conscious decision as to what they put forward and some of that is what they
have to go through. They understand it is a two foot variation and they might focus on developing a
project that conforms to the code and not unload with additional trips to council. If it is really a
discussion of two feet and it is necessary they will do it. Two feet is nominal in terms of their project.
They will only come if there is a real technical necessity to their request. Councilman Frisch said if there
was a poll taken to buildings that are objectionable there are buildings filled with variances that are no
problem. It seems there are buildings that don’t have any variances and have lots of consternation.
There are a lot of buildings that give issues that met the code. That is the issue. If height needs to be
Regular Meeting Aspen City Council February 23, 2015
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changed we should be talking about that. Will there be further steps taken to get to the real issue. Mr.
Bendon replied a lot of what happens in town are code compliant for when they were approved. The code
has changed. What you are seeing is it takes a few years for approved projects to be built. What you are
seeing downtown is not a result of variances but a code that allowed for those heights. It has been
changed. Councilman Frisch said he looks forward to a flexibility conversation.
Mayor Skadron said the parking component should not be part of the ordinance. Councilman Frisch
replied he believes parking was added to the charter amendment because it was a variance. We need to
have a discussion about parking. Mayor Skadron said there is a desire in the community for less cars but
we demand development to deliver parking. Mr. Bendon said there is legitimate flexibility Council can
provide on parking mitigation. Councilwoman Mullins said we should not have something set in stone
for parking. We do need less cars in town.
Councilman Daily stated these are important matters for this community and he is glad we are having this
conversation. This is good for the community and will result in better planning and projects. He does not
believe absolute limits are healthy or responsive to government. He likes the direction Staff has gone. He
is not saying the specifics are the right ones but tighten down the limits to a reasonable framework and
allow some reasonable discretion. He would hate to eliminate any discretion. It is healthy and limits the
risk of abuses. The message is keep it to the code. It is healthier for our community than absolute limits.
This Council isn’t looking for broad unfettered authority. This makes our life easier and we can do our
job better if reasonable limits are there. Council has approved four lodge projects and all are healthy for
the community and help improve the lodging inventory. All have been done without abusing the code.
So far the response of this Council has been measured. To a certain extend we have been elected to
exercise a certain level of measured and reasonable judgment. As Cavanaugh explained it, we are talking
about thoughtful government. This Council has endeavored to meet that objective but we won’t hit it on
every issue. A measured area of discretion in the long run healthy for our community. To put absolute
limits on development is not healthy. We will have a better built community if there is measured
discretion in Council.
Councilman Romero stated Councilman Daily hit the nail on the head and it was well said. There is a
conversation of whether to put the amendment into action and is Council guilty of interference. It is just
reactionary and knee jerk. Council attempted to examine how we can do this in a way that is good faith
and send a message that was proactive. He shares the sentiments that absolutes especially embedded in
the charter is the wrong venue and takes away an important level of thoughtful governance. There is lots
of good thinking and sensibility behind the charter amendment work but a bit of anger and frustration. He
thinks it will be strongly supported. The guidance he has been trying to focus on are the next steps. It is a
trust issue.
Councilman Frisch said if the charter amendment passes, regardless of when we pass a code amendment
the ballot issue will supersede. If it doesn’t pass is it in the community’s best interest to have this code
amendment or wait until after the election. If it doesn’t pass is this the one we want binding or is it better
to pause and reflect. Is the code amendment March 9 better than one if we wait. I do believe there are a
lot of people who want to see some action but don’t like the charter amendment. There are a lot of good
ideas but the charter is not the right venue. It still doesn’t solve the problem of fix the code.
Mayor Skadron asked for floor area if there is an additional10 percent how you control this from
becoming the basic request of the applicant. It is not unlikely there will be some unforeseen hardship but
what we will see is the applicant will argue there is a hardship. Ms. Garrow said there will be a set of
criteria Council can use to determine if there is a hardship. Mr. Bendon said it is an additional request
requiring additional review with additional exposure and risk. Height is much more sensitive and much
more limited. He’s not sure if it’s the approval or the ask that irritates people more. The ask is irritating
to folks. Minimizing that may make Council’s job easier. Mayor Skadron asked what technology around
modeling programs are we using. Should it be a requirement they use these tools to help the community
Regular Meeting Aspen City Council February 23, 2015
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see the impact. Mr. Bendon replied it should be an absolute requirement. There is a lot of technical
logistics to fit within the City model. There will be additional effort this summer with an intern. Mayor
Skadron asked how to keep this from becoming a basic request. What tool is there to prevent it from
becoming a request. Mr. Bendon said there should be an argument as to why a project is deserving a
variance. Yes there ought to be some limits around the request. Mayor Skadron said some flexibility to
work around site specific conditions be incorporated without a quantative component. Mr. Bendon said
they have that effectively now. An applicant can come in and ask for anything. There are inherent
acceptable limits. This puts benchmarks there. We will take the application in but those requests are
subject to a public vote. Mayor Skadron asked if there is a sufficient degree of confidence the flexible
components of the floor area portion won’t be abused the way it is perceived variances have been.
Councilman Daily agrees that we don’t want this 10 percent to become the new baseline. Some ability to
vary due to a site specific constraint and that language is appropriate.
Councilman Frisch said what is the additional hurdle to stop the two feet or 10 percent from showing up.
How do we stop that from becoming the new minimum. We tried to bring down the unlimited ask in
lodging from an unlimited number of floor to four and were shot down. Mr. Bendon said we don’t want
the 10 percent to be enticing or part of base line right. Councilwoman Mullins is concerned it will set a
new bar and needs a good argument why it won’t. It needs beefed up more for second reading.
Mayor Skadron said board of adjustments is currently a citizen committee Staff is talking about giving
those powers to HPC and P&Z. Mr. Bendon said their duties would be assigned to HPC and P&Z. HPC
deals with variances quite a bit. There is a value as a board member in how the process works and BOA
doesn’t get that since they meet very infrequently. P&Z and HPC are fully equipped to deal with this.
Mayor Skadron said he concurs with Council and this should go to second reading. To others who made
earlier comments, he whole heartily endorses the principle behind the charter amendment. The issue he
has is in governance and a healthy community equates to good governance. He can’t support a process
that impedes the democratic process. The issue is about governance and if democracy is based on
everyone participating and making decisions it is important to move forward. By allowing this to go
forward we will have debate in council chambers. Support speaks to good governance. A way of
governing that keeps our community strong.
Councilman Frisch said for affordable housing what Staff is recommending is if you want to change the
levels don’t do it through variances do it through the code. Mr. Bendon said there are physical anomalies
of a parcel that can affect height or floor area but not affordable housing. Affordable housing is a global
level not a project to project one with the exception of essential public facilities and AspenModern.
Councilman Frisch moved to read Ordinance 9, Series of 2015; seconded by Councilwoman Mullins. All
in favor, motion carried.
ORDINANCE NO. 9
(SERIES OF 2015)
AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING AMENDMENTS TO THE CITY
OF ASPEN LAND USE CODE LIMITING DIMENSIONAL AND OTHER VARIATIONS, AND
ESTABLISHING THE PLANNING & ZONING COMMISSION AS THE BOARD OF ADJUSTMENT.
Councilwoman Mullins moved to adopt Ordinance 9, Series of 2015 on first reading; seconded by
Councilman Frisch. Roll call vote; Councilmembers Mullins, yes; Frisch, yes; Daily, yes; Romero, yes;
Mayor Skadron, yes. Motion carried.
Ordinance #8, Series of 2015 – Second Alternate for HPC and P&Z Commissions
Linda Manning, city clerk, told the Council this is the public hearing for the ordinance that would allow a
second alternate for the Historic Preservation and Planning and Zoning Commissions.
Regular Meeting Aspen City Council February 23, 2015
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Mayor Skadron opened the public comment.
1. Marcia Goshorn said this is very important. The housing board has had this problem. Adding a
second alternate keeps the process moving.
Mayor Skadron closed the public comment.
Councilman Frisch moved to adopt Ordinance 8, Series of 2015; seconded by Councilwoman Mullins.
Roll call vote; Councilmembers Romero, yes; Frisch, yes; Mullins, yes; Mayor Skadron, yes. Motion
carried.
Resolution 23, Series of 2015 – Regarding the FERC Permit, Pursuit of Micro Hydro Projects and
Reaffirming the City of Aspen’s Position Regarding the Protection of its Water Rights.
Jim True, city attorney, told the Council at the January 27, 2015 work session council provided direction
to come forth with a resolution to formalize some of the positions regarding the castle creek energy
center, micro hydro and the protection of water rights. The resolution specifically addresses those issues
and allows the current FERC preliminary permit to expire. This is based on direction provided by
Council in April of 2014. The FERC attorney advised FERC that we are not pursuing the energy center
any further. There was a resolution that adopted the settlement in the water right abandonment case.
Staff did considered the possibility of using that permit for micro hydro projects on both Castle and
Maroon creek. Staff is recommending not using that permit and if we are going to pursue micro hydro we
do so on separate permits. The City will allow the current FERC permit to expire on February 28, 2015.
The resolution also addresses the pursuit of micro hydro on Castle and Maroon creeks. The purpose of
pursing micro hydro is threefold. To generate power by developing renewable energy resources, maintain
healthy stream flows in the two creeks, and protect City water rights and supplies. Staff is recommending
pursuing the Maroon creek micro hydro project immediately and authorize the FERC attorney to file a
preliminary permit or other approval process with FERC. Staff is not recommending staff or attorney file
a permit request on castle creek but simply continue to study it. The resolution provides a statement
regarding the City’s long standing and well established intention to protect its water rights. It reaffirms
the City’s determination to protect, develop, use all of its water rights to their full decreed extent for all
decreed uses and purposes and firmly states the City has no intention and it should not be deemed that any
of these actions would be considered as abandoning those water rights.
Mayor Skadron opened the public comment.
1. Dick Butera stated his presentation is not about his property. He said he is here to remind council
the history of past funding of previous councils attempt to build a hydroelectric plant under castle
creek and the attempt to do it again under the guise of micro hydro. The past council in
cooperation with the water department has spent 13.8 million dollars on the failed project. If
asking why water rates were raised in 2011 through 2017 by six percent per year when the cost of
the water has not gone up. The 13 million has to come from somewhere. The outstanding debt on
5 million dollars bonds has to be serviced at 400,000 dollars a year for 15 years. The water
department is not forthcoming with their expenses on this project. This council has approved an
outside audit for parking and he asked Council to audit this so the tax payers will know why their
bills are increasing. The micro hydro proposes up to 300,000 dollars for research. There has
never been one in America yet. The machines are made in England and difficult to ship. It is a
crazy project and he would love a work session on it. It would produce around 10kw or electric
for one house. Council is told to fund this project because it preserves the city’s water rights on
Castle Creek. The City has water rights for the collection of water in Thomas reservoir. You
don’t need to spend money to preserve those rights. Aspen does not have the water rights to
Regular Meeting Aspen City Council February 23, 2015
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generate electricity. Mr. Butera read the section of the Colorado Statutes that pertain to water
rights. Abandonment is defined as “termination of a water right in whole or in part as the result
of the intent of the owner to discontinue permanently the use of all or part of the water available
thereunder” CRS 37.92.305. The failure to apply water to a beneficial use for a period of 10
years or more creates assumption of abandonment. If you don’t use or show an intent to use it
you lose it and you don’t get water rights back. Water lawyers have cost 1.2 million so far. He
asked for an audit of the money spent for learning purposes and another legal opinion of rights of
Aspen to use water to generate electricity. We were told they do not have the rights. He said his
government is making him spend hundreds of thousands of dollars to defend his property rights.
He would like to have further discussion without lawyers. He stated he found an unsigned
agreement for the head gate. For 45 years they abandoned the use and intent for generation of
electricity. Two million is for the penstock. He said he was also told that for seven years two
employees go to a secret location and spin the generator by hand every two weeks so it does not
freeze. It is a terrible thing that happened. His reason for being here is to urge Council not to do
it again.
2. Marsha Goshorn said she would like to know where the 13 million went. We have kept our water
rights for drinking is that considered a use. It has not been for hydro have we lost our rights.
Mayor Skadron closed the public hearing.
Mr. True said there are water rights for drinking and we have significant rights on castle and maroon and
those are not in jeopardy. We have specific rights and this will help maintain minimum stream flows. He
is not suggesting that the drinking water rights are in jeopardy. He still believes the resolution and
proceeding with the study on a step by step basis including filing the permit will cost around 5,000 dollars
for maroon creek. There is a maroon creek hydro project in existing now. We need the attorney to pursue
either a new permit or other application for the micro hydro project on maroon creek. He is not
recommending we proceed immediately for a project on castle.
Councilman Frisch said there are three issues in front of us. We are going to let the permit expire
February 28th. He said it is in our interest to protect our water rights for as long as possible. These rights
have to do with hydro water rights not drinking water. Mr. True stated they are related to hydro power
usage as it relates to the existing facility on maroon creek and also helps to protect minimum stream flow.
Councilman Frisch said over the past months there has been lots of opposition to the CCEC and why
don’t we explore some micro options that won’t harm the stream. Mr. True said these options don’t
require diversions. They can be used in existing diversions or head gates. Councilman Frisch said we
had some type of micro in some stage of development and not done before. What type of financial costs
are we buying into. By approving this we are out about 5,000 dollars. Mr. True stated that is the only
financial impact proposing at this time. If there is any further expenditure they will come back to
Council. They will advise Council of every step. The next step is this preliminary permit. Scott Miller,
utilities, stated there are several different types of micro hydro plants out there. Staff will look at all and
make presentations on the potential costs and generation.
Councilman Daily asked about the possibility of spending 300,000 dollars on further studies. Are we
considering that. Mr. Miller replied no. Mr. True said the preliminary cost of the project may be
300,000. We are not proposing a budget approval for a 300,000 study. Dave Hornbacher, utilities, stated
when City Council approved the 2015 budget there is a line item for 50,000 for the study of micro hydro.
In the long range plan for 2016 there is 300,000 dollars shown with the intent that a portion could be used
to further study and 250,000 dollars for construction. The 2017 plan contains an additional 250,000
dollars. Council has only approve the 2015 budget. Councilman Daily said he is most interested in a cost
Regular Meeting Aspen City Council February 23, 2015
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benefit analysis of proceeding with the micro hydro and the benefit side is the critical side. We need to
understand what the water rights we are protecting with the micro hydro.
Councilman Frisch asked if Council needs to make a decision about the permit that is expiring on the 28th.
Is FERC waiting for us to answer. Mr. True said there is no difference we are just trying to be as clear to
the public as possible. Councilman Frisch asked about the micro hydro and water rights timing. Mr. True
said Staff feels it may be important to file with a preliminary permit for a maroon creek facility. For
estimated cost we felt it was appropriate to protect our place in line for the micro possibility. Is it
absolutely mandatory we do it, not necessarily but we recommend it.
Mr. Butera recommended the City get an expert as to what the end project will be. Amory Lovins said
the old hydro would have been the most expensive electricity in America. We don’t know what we get if
we get a micro. Mr. True stated there is a lot more to it than the power piece. Staff disagrees with Mr.
Butera.
Councilwoman Mullins asked how this protects water rights on castle creek. Mr. True stated the third
point of the resolution is to reiterate our goals and intents regarding water rights. Fairly regular in the past
we made those formal decisions. Our water attorney recommends we reiterate our water rights. Just as
Mr. Butera suggest we have abandoned water rights, we affirm we have not. We want to make it clear,
and the resolution does it. We do not intend to and have not abandoned water rights.
Councilman Frisch said if the 5,000 dollars gets approved is there is 50,000 dollars approved to look at
the next steps. Mr. Hornbacher stated he wanted to ensure Council what money is budgeted where. They
would spend staff time to gather the information and provide it to Council. Council can provide direction
on what money gets spent when and for what. Mr. Miller stated we don’t need to spend 50,000 to get to
the work session.
Councilman Daily said he is looking for information on what level of city water rights are going to be
protected.
Councilman Romero said it is a two pronged approach. It is not simply the economic return but the water
rights. This Council is trying to be much more mindful and Staff is responding in that regard.
Councilman Frisch asked if one of the macro question is build a hydro or lose water rights versus we keep
trying to spend as little as possible to try to keep the water rights. It feels like we are trying to protect our
water rights but at some point you got to use them, not talk about it. Is this money and action for the
water right protection or we don’t need to do that since we have the water rights. Mr. True said there are
several aspects to that. There are other pressures on the creek we are trying to address including
minimum stream flows. There are arguments people can make if we do not take these steps. Councilman
Frisch stated he is supportive of honoring number one and not spending another penny without knowing
what the master plan is. He stated he does not know what the end game is. He said he thought we were
not going to run into a bunch of opposition that we saw with the CCEC while protecting our long term
water rights. He would like to know how it will play out after the 5,000. Mr. True said it will come back
in a step by step process. He does expect there will be opposition. There are other users of Maroon
creek.
Councilman Frisch asked when we get the next steps. Mr. Miller said they will have the preliminary
investigation of micro hydro in three months. Councilman Romero asked how much of that information
is needed for the permit. Mr. True said staff has done preliminary studies to this point that are sufficient.
Regular Meeting Aspen City Council February 23, 2015
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There is a permit for the existing facility and it may take a different direction. The FERC attorney said he
has sufficient information and is prepared to file the preliminary permit.
Mr. True said there will be opposition but Staff believes it is in best interest of the community.
Mayor Skadron asked Mr. Butera why he wouldn’t support the City in its pursuit of micro hydro. The
goal is not to generate electricity but to support a direction to protect the City’s water rights. You benefit
more than anybody. Should the City lose it water rights some unknown party can come along and claim
the senior water rights. Maureen Hirsch said someone can’t go after the senior water rights but they could
go after junior ones. Mr. Butera said this is a bad project. The 13 million was bad. It is not a smart
projects. They don’t have very much information regarding this. Let’s find out from an outside expert.
We are here to save money and run an efficient government. Let’s find out what would make a good
project and if we find something good that works I’m voting for it. You can’t come back now and start to
spend money to maintain water rights. The City does not have them in castle creek. The City abandoned
the plant 50 years ago. There are other rights but not hydro. Mr. True stated Staff disagree with his
representations. We have water attorneys who have litigated with Mr. Butera.
Councilman Frisch asked where the castle creek water rights stand. There are experts on both sides
saying different things. Mr. True stated the City went through litigation on abandonment. We did not
resolve the disputes around the legal rights and if there was abandonment.
Councilman Romero moved to approve Resolution 23, Series of 2015; seconded by Councilwoman
Mullins.
Councilman Frisch stated he will support this but has questions around the direct cause to water bills
going up to cover the costs of the CCEC. We should be ready to talk about that.
All in favor, motion carried.
Resolution 22, Series of 2015 – Setting the Ballot Title for the Charter Amendment Question
Ms. Manning stated Council sets the ballot title and Staff is recommending using the language provided
by Mr. Myrin that appeared on the petition. Mr. True said it is Councils obligation to set the title and
language. Staff provided the language to Mr. Myrin and he had no opposition.
Councilman Daily moved to adopt Resolution 22, series of 215; seconded by Councilman Frisch. All in
favor, motion carried.
Councilman Romero moved to adjourn at 8:25 pm.; seconded by Councilman Frisch. All in favor,
motion carried.
Linda Manning
City Clerk