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HomeMy WebLinkAboutminutes.council.20150309Regular Meeting Aspen City Council March 9, 2015 1 CITIZEN COMMENTS AND PETITION ................................................................................................... 2 COUNCILMEMBER COMMENTS ............................................................................................................ 2 CITY MANAGER COMMENTS – ............................................................................................................. 2 BOARD REPORTS ...................................................................................................................................... 2 CONSENT CALENDAR ............................................................................................................................. 2 Ordinance #10, Series of 2015 – 530 W. Hallam Historic Landmark Lot Split ........................................... 4 Ordinance #5, Series of 2015 – Utilities Development Review Fees ........................................................... 5 Ordinance #9, series of 2015 – Limits on Variations Code Amendment ..................................................... 5 Ordinance #7, Series of 2015 – 1450 Crystal Lake Road, Aspen Club & Spa – Planned Development Amendment ................................................................................................................................................. 12 Regular Meeting Aspen City Council March 9, 2015 2 At 5:00 pm Mayor Skadron called the regular meeting to order with Councilmembers Frisch, Mullins, Romero and Daily present CITIZEN COMMENTS AND PETITION 1. Peter Fornell asked about the scheduling regarding the employee generation study and cash in lieu work sessions. Steve Barwick, city manager, stated the meetings are scheduled for March 30. Chris Bendon, community development, said the report is on the city website. Mr. Fornell said he may ask to comment at the work session. COUNCILMEMBER COMMENTS 1. Councilwoman Mullins stated she has talked to a lot of people and support what engineering is doing and recommending for the Castle Creek Bridge and pedestrian / bike traffic. The EOTC recently approved funding for two projects. This will have an immediate beneficial effect and can be reversed if does not work. She supports staff’s recommendation. 2. Councilman Frisch said he enjoyed the snow this weekend. Spring is here and there are lots of people in town. 3. Mayor Skadron thanked Mendel Mintz and the crew for hosting the Israeli veterans. It was a special night. 4. Mayor Skadron congratulated the participants of the power of four race with a special congrats to Adam Frisch. CITY MANAGER COMMENTS Linda Manning, city clerk, announced the candidates for Mayor as Steve Skadron and Torre. The candidates for City Council are Marcia Goshorn, Tom McCabe, Keith Goode, Adam Frisch, Andy Israel, Mick Ireland, and Bert Myrin. Anyone who would like to run as a write in can file an affidavit with the Clerk by 5:00pm on March 12th. The last day to withdraw is March 18th. BOARD REPORTS Councilwoman Mullins attended the Ruedi Water Authority meeting. She said the original purpose of the group was to promote hydro and that was accomplished in 1986 as well as manage environmental concerns and the water sales program. Moving forward, they hope to continue local projects and represent the valley wide state water plan, education, research, partnerships and collaborations. CONSENT CALENDAR Food and wine charity 5K run Jennifer Albright Carney, ACRA, said the race is open to the public and pass holders. They need the noise variances because the race has to start at 7am. The race needs to be finished so speakers and participants can run and still be able to attend the seminars that start at 10. The option of pushing the start time back is not one. Julie Hardman, ACRA, said they don’t close streets for the route. The race goes through the West End to the Rio Grande. The run is over before traffic gets going. Councilwoman Mullins asked if they are compliant with everything else. Ms. Hardman replied correct. Councilman Frisch said he did the race once and it’s awesome. The timing makes sense. An amplified speaker for announcements is great and there could be music later as racers come in. 6: 30 in the morning Regular Meeting Aspen City Council March 9, 2015 3 is early. He asked if there were complaints last year. Ms. Harman replied yes. Councilman Frisch said overall they need to be careful of amplified music at 6:30 in the morning. CJ Oliver, environmental health, said the limit is 60 decibels at the property line. There should be no music just announcements at the start and save the music to afterwards. They did get a number of complaints last year. Councilman Romero is supportive of moving forward with the request. Mayor Skadron said it is a simple request that triggers huge angst. What is proposed is too loud for this time. Mr. Oliver said 60 is not unattainable. It could be ok in the park. Mayor Skadron asked if the 250 foot permitted is appropriate for neighbor notification. Mr. Oliver said as long as the amplification is reasonable. Ms. Hardman said the stage is towards the middle of park. They talked to KK about expanding neighbor notifications more than what happened in the past. Nancy Leslie, special events, said they are in the process of evaluating separate parameters for neighbor notifications. Mayor Skadron said he wants the event to be awesome but does not want one angry citizen to come down on Council. He wants the appropriate notices. Councilman Frisch agrees. There is a huge charity component to this. He is happy to leave it in their judgment for this year but keep the noise in mind. USA Pro Challenge banners and construction Councilman Frisch asked if this has been supported in the past. Ms. Leslie said they have not changed the request for the last five years. Councilwoman Mullins asked if they are excluding anyone else to put up a banner. Ms. Leslie stated in the past they worked with everyone. Councilwoman Mullins said it is better to have them change more frequently. It is a pretty big event. She would support it if nothing else gets pushed to the side. Councilman Romero said we are now building up additional pieces of our brand and the bike community is a piece of that. The request is consistent with the last several years and there are no open objections or complaints from citizens. It is ok as proposed. Councilman Daily asked if in the past years were there any problems with the construction ban. Ms. Leslie said she doesn’t know about that she has never received any issues but she may not be the right person. There is limited parking and street closures during the event. It would be all day on Wednesday and half a day on Thursday. Councilman Daily said there was a similar ban in recent years and we would have heard if there were issues. He supports the request. Mayor Skadron said he does not support this. He asked Mr. True to comment on the concept of public forum. Mr. True replied it was adopted a number of years ago. 26.5.10.120 attempted to use an objective basis where we state to the community that we allow signs under our code that do not try to have any restriction regarding content. Content is the chief aspect of the attempted legislation so we comply with constitution requirements. There are specific limitations including duration and purpose. This falls within purpose but not duration. Mayor Skadron said we risk losing this as a public forum. Mr. True said we need to be careful. The duration in the code says two weeks or the length of the event, whatever is less. The code allows the city manager to approve banners that would fit within the specific designation but we have allowed Council to waive the duration aspect. His concern is we can lose our ability to regulate the use of our public facilities for these types of organizations if we are not careful how we regulate this use. Council does have the authority to lengthen the time. The use of city property for private events becomes the issue and we need to be careful to be content neutral. Regular Meeting Aspen City Council March 9, 2015 4 Mayor Skadron asked if Council allowing a four week duration violates the duration aspect. Mr. True said we adopted policy that Council can waive it. We are trying to balance the rights of individuals to convey their messages through temporary signs or displays and the right of the public to be protected against unrestricted proliferation of signs and displays per the objective of the charter and insure fair and consistent enforcement of the sign and display regulations. Councilwoman Mullins said it is unfortunate to have one banner up for a whole month. Hearing that, reinforces the need to change out the banners. She would support a shorter period of time. Councilman Frisch asked when this originally came up what was the four weeks based on and how does this compare to food and wine. Ms. Leslie said she doesn’t know that. It’s more of a hey this is coming, remember this has impacts. It is a big event that is televised internationally and live. It is big marketing for Aspen. Councilman Daily said he does not fully understand why the banner request is four weeks. People here already know about it. He said he is on the fence. Ms. Leslie said they request they go up the first of August through the bike race. Mayor Skadron said he thinks it should be two weeks. There should be a threshold that should not be violated. There was pushback from the arts and culture community. He does not want to get into the position of what event is more important.  Food & Wine Charity 5K Run Noise Variance  Requests Associated with USA Pro Challenge – Banners and Construction  Minutes – February 23, 2015 Councilman Frisch moved to approve the consent agenda amending the banner request to August 8 through the 22; seconded by Councilwoman Mullins. All in favor, motion carried. Ordinance #10, Series of 2015 – 530 W. Hallam Historic Landmark Lot Split Amy Simon, community development, told the Council this is a 9,000 square foot lot in the West End with a Victorian house. The proposal is to restore it back to the original structure and take the rest of the square footage and put it into a detached new house on the lot. HPC granted conceptual approval. If the lot split is approved it will return for final design review. Councilwoman Mullins said she read the memo and all the requirements are met and it would be tough to deny. Councilman Romero moved to read Ordinance #10, Series of 2015; seconded by Councilman Frisch. All in favor, motion carried. ORDINANCE #10 (SERIES OF 2015) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO APPROVING A HISTORIC LANDMARK LOT SPLIT FOR THE PROPERTY LOCATED AT 530 W. HALLAM, LOTS K, L, AND M, BLOCK 28, CITY AND TOWNSITE OF ASPEN, COLORADO Councilman Romero moved to approve Ordinance #10, Series of 2015 on first reading; seconded by Councilman Daily. Roll call vote. Councilmembers Romero, yes; Mullins, yes; Frisch, yes; Daily, yes; Mayor Skadron, yes. Motion carried. Regular Meeting Aspen City Council March 9, 2015 5 Ordinance #5, Series of 2015 – Utilities Development Review Fees Lee Ledesma, utilities, stated this is a correction to what was adopted in November 2014 as part of the fee ordinance to the remodel component of the development fee. It was adopted as $59.09 per ecu instead of per .05 ecu. The financial impact of not correcting the fee would be $66,000. Councilwoman Mullins stated she wants to confirm this was a typo and not counter to the budget process. It was never intended to read as it does now. Ms. Ledesma said the budget that was approved reflected the rate of .05 per ecu. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilwoman Mullins moved to adopt Ordinance #5, Series of 2015; seconded by Councilman Daily. Roll call vote. Councilmembers Mullins, yes; Daily, yes; Romero, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. Ordinance #9, series of 2015 – Limits on Variations Code Amendment Jessica Garrow, community development, said this code amendment would address variations that are currently in the land use code. It specifically addresses variations to height, floor area and affordable housing mitigation. It also establishes the Planning and Zoning Commission as the Board of Adjustment. At first reading, Council had concerns related to flexibility. Staff lowered the ten percent variance for floor area to five. It would still accommodate site specific issues and allow flexibility for quality projects. Height is proposed the same as it was at first reading with a two foot variance. With the change to five percent floor area Staff is proposing single family, duplex and multi family as a single use be exempt. These are the things Staff is seeing on a day to day basis. The actual building is not changing but more exposed wall increases the floor area. Staff added additional review criteria for requests related to the two foot height increase or five percent floor area increase. The first is related to site specific constraints. The second is more open ended and allows Council to exercise some discretion for projects that benefit the community. Affordable housing is the same and mitigation is not allowed to be varied with the exception of essential public facilities and properties going through historic designation. This is an important tool in Councils tool box. As for the Board of Adjustment, it makes sense given the frequency of P&Z meetings. Staff notified the Board of Adjustment that Staff was proposing this change and received a few comments. Some said it makes sense and others are interested in giving public comments. Staff include other options but are recommending approval of the ordinance as written. Mr. Bendon said they pared this down to address the needs from time to time. It does not encourage folks to apply for what they want. It is focused on need not want. Staff has some hesitation around the triggering of a vote. Councilman Romero asked if the proposed single multi exemption is internally consistent with the charter question and similar exemptions. Ms. Garrow replied it is fairly consistent. The charter amendment explicitly exempts single family but not multi in the lodge zone. Councilman Frisch said he has a hard time supporting any variation of this. Few people have reached out about the BOA and wanting it to be kept. It gives the small regular person a place to go. P&Z is a big player. What is their role supposed to be. How do we protect individual citizens who want to talk. Ms. Regular Meeting Aspen City Council March 9, 2015 6 Garrow said in the past if an application is coming forward with hardship variance they are also coming with other requests that are going to HPC and P&Z. The code allows those reviews to be combined. Councilman Frisch said citizens think BOA is the place to start. Mr. Bendon replied it is a matter of efficiency. The application would still be submitted and reviewed. The name of the board is different but is still made up of citizens who are familiar with the code. It is just a change in the name of the board. Councilman Frisch said the charter may not be the best place. The passions of the community can get ahead a bit and end up with buyer’s remorse. The charter is hard to get out of. There is a lot of availabilities for the public to petition council. A lot of land use issues deal with PD’s and we already have something in place. Mr. True said referendum provisions state an ordinance adopted by council, if legislative, can be referred to the voters. The question is what is legislative. The courts have upheld that rezoning is referable. We have always considered that a PUD or PD is also subject to referendum. That is where the big variance discussions occur. Under most context that Council sees a project it’s subject to referendum. Councilman Frisch said the Sky was done out of a PD and there is the ability to refer already. Mr. True said the Sky hotel is a good example. The given request was subject to a referendum. Councilman Frisch said the final written decision is the community could have petitioned Councils decision. Mr. True said the Ritz was denied by Council and an ordinance of approval was initiated. Councilman Frisch said he could argue that if he asks what buildings give angst they would pick those with no variances like the art museum and Benton building. Council just approved some projects for Sky, Molly Gibson with a few feet of setbacks, Mr. Hunt and use of bathrooms on the roof and not a lot of concerns on variances. There were some concerns about the design and parking but not the variance. If it doesn’t pass the community is saying pause, reflect and the underlying land use code is important. He is not sure what the upside for the community is. He is giving serious thought for voting against the ordinance. Former Mayor Sterling said Council voted down what the applicant brought forth for the Ritz. The citizens brought the petition forward. The citizens voted for the citizen proposal not the one council came up with. Councilman Frisch said if the charter amendment passes it’s irrelevant. If it doesn’t it’s one of the reasons there are bigger discussions to be had. There is already a path to petition projects. The charter is a horrible place for it. Councilwoman Mullins asked why is the BOA issue part of this ordinance. Mr. Bendon said it is a more compressive look at variances and the administrative structure around them. It should be part of the overall package to assist the administrative workings of how variances are handled. Councilwoman Mullins said the bulk of the ordinance is debatable and BOA is an administrative move. Its fine it’s in there but it may be easier if it was a separate ordinance. Councilman Daily said at first reading he made a number of comments. He still does not believe in creating an absolute barrier to all variance is healthy planning, sound regulating and sound governing. He supports what staff is proposing and likes it better tonight. The review criteria addresses Council’s concerns. Only the most modest variances will be allowed. He would prefer the Council have a small measure of discretion in this arena to promote and achieve better projects in limited situations. He would hate to give away that opportunity. Mayor Skadron said he agrees with additional controls in the land use code. The charter is the wrong place. Changes tonight apply now. It applies even if the charter amendment doesn’t pass. It is necessary Regular Meeting Aspen City Council March 9, 2015 7 and an appropriate level of control. The Ritz resulted in an increase in development. It was denied by Council. It was approved by the voters after a massive marketing campaign. His primary concern is that when complex issues go to a vote someone can come with a ton of marketing money and buy the vote. The Lowell Myers building was going to be given to ACRA. Toni Kronberg led a campaign to preserve the open space. It was never the issue. The building was getting built. The debate got convoluted. The building gets built and the community lost the opportunity to use valuable space. If you voted yes you were against the project and no in favor for. It’s an example of how marketing replaces the due diligence. Mayor Skadron opened the public comment 1. Marcia Goshorn said the ordinance is missing components that are in the ballot question around ADA and energy efficiency. The land use code needs to be rewritten and has been for years. The land use code needs to be readable. The problem is the parking issue. The Chabad is a wonderful project but was only to be used on Saturday. It is open to the community when it’s not used. There were parking issues before it was built. The BOA is a safety valve like Council is for HPC. There is a special review committee for housing. Making P&Z the BOA is like having a doctor that gave a diagnosis and going back to same doctor for a second opinion you did in the first place. BOA does not get used often but is gets used when it is important. BOA is a new set of eyes. We need to keep the BOA. Mr. Bendon said it does not go away. The function remains and the duties are assigned to P&Z. Ms. Goshorn said parking should be in the land use code. Mayor Skadron asked as it pertains to this ordinance should it contain parking. Ms. Goshorn said it gives the planning office the authority to vary parking. Mr. Bendon said the parking requirements are in the code and not determined by the planning office. 2. Neal Segal said he has not heard one person address the critical question. Is Aspen better off if future Councils are completely divested of any latitude in land use applications as opposed to attaining flexibility in some areas, hand tied or not. A hand tied Council would undermine the very purpose of representative government. To have our elected officials use their discretion and collective judgment. He is in favor of the proposed ordinance. It addresses the public concern for perceived out of scale structures and gives council flexibility in certain areas. It does not mean that retaining small flexibility is automatic up zoning. Council still retains the power to say no. Proponents of the charter amendment are of the view voters will educate themselves and make considered decisions. Why should the same electorate be given the choice of stripping Council of all power or this ordinance that limits but gives some flexibility. They want a clear path that does not offer the voters a reasonable alternative that they can weigh. This ordinance moves the land use code in the right direction. In contrast, proponents can’t offer any assurance that in the future they can put the toothpaste back in the tube and convince the voters the charter amendment should be revoked. In the end this ordinance is a matter of leadership. Doing what is correct in the face of a lot of public outrage and pressure. It bears repeating that Steve was the only no vote in the art museum. He used to remind juries the concept of standing fast is embedded in our DNA. It goes back to John Adams who defended red coats accused of murder in the Boston massacre case. The principle is the same. The pesky facts all pointed in a direction away from what the mob wanted. This is the right path. 3. Bill Stirling stated the proposed charter amendment is the wrong instrument. The charter is Aspen’s constitution and it talks about how we govern. It is not a document that has anything to do with land use or environmental controls. If a group of US citizens are unhappy they would not think of a constitutional amendment. We address issues through petitions and legislative actions. The tabor amendment looked so good. It has paralyzed the state because it is an amendment to the constitution. We chose persons who will protect the best long term interests of our community and are guided by the land use code. Which period of Aspen’s history is different. It could make very similar boxes in town or chill all development. The option to grant variances is an essential land use planning tool. He can’t imagine not having that tool. Give council the Regular Meeting Aspen City Council March 9, 2015 8 ability to reshape and add character. Ordinance 9 is a thinly vailed answer to the charter amendment. The last thing you want to do is compete with the pending charter amendment. This is only a little less bad than the charter amendment. It still involves taking variances to the electorate. Staff is on the right track but has been too reactive to the charter amendment. Select good officials. He suggested Council vote this down or direct staff to modify it. Limits in the code now are what the code is about. Rarely are variances granted as gifts, favors or bonuses. Reasons for variances could be geographical, historic preservation, view plane or response to long range community benefits. They should be granted sparingly and carefully. Limits in the code set the standards. Don’t tie the hands of the council. They should have discretion to make informed variances. In May, reject the charter amendment, citizens. Don’t pass this watered down version. Have confidence in elected officials and citizens to do the right thing. 4. Phyllis Bronson stated she thinks this Council is really listening. She has seen a shift in how things are being heard in these meetings. It’s confusing. In principle she agrees with the petitions but acting them out it is confusing. The petitions are a response to bad land use planning for many years. The angst is what has happened over Hyman Avenue and the petition is a response to that. Two weeks ago we heard Council say the development proposal is upzoning and it made sense. Yet, tonight you are saying it’s a better version. It is kicking the can down the road. She does not see the purpose of doing piecemeal and not waiting to see what happens with the election. 5. Mitch Haas said his education says as long as zoning has been around variances have been around. Parking is not one size fits all and needs flexibility. Good projects have variances. Times change and codes are a reaction to change. There are reason for variances. He does not use the BOA. We need a process where elected officials have the flexibility to make decisions. He is not opposed to limits for variations. It is hard to advise people because it’s inconsistent. The County did this in 1996. They like the code and follow it and it is easy to advise clients. People avoid the BOA in the city because you know the answer before you go there. He does not agree with the idea that everything go to a public vote. 6. Torre asked Council who started ordinance 9. Councilman Frisch said Council asked Staff if there were more appropriate options when the Clerk certified the petition. Councilman Romero said it prompted the conversation of being accused of interfering with the ballot question versus providing some proactive alternative. Torre said it was a reaction to the petition. It is amazing how fast ordinance 9 came into being. There have been suggestions to land use changes for years and they have not come forward. Energy is better spent with code changes. He heard the same argument 12 years ago with infill. This is two more feet. He supported the petition being in front of the voters. He believes it’s in the wrong place as well. We should be trying to make a land use code that reflects community values and it can be done. He agrees that ordinance 9 is not ready yet. He believes asking for five percent on floor area and two feet is up fill. Variances are in the code for projects of exceptionality and community benefit. The petition doesn’t tie the hands of Council. They could sell it to the community. Currently, three projects that got approvals over four years under the old code guidelines that have been lying dormant are coming back now. The land use code is not completely broken but needs to be fortified. It gives developers a non- moving goal post. The BOA should not be eliminated. P&Z has enough on their plate. The ordinance does not do justice asking for code changes. He hopes this does not become the Skadronization of Aspen. He hopes Council puts the ordinance off. It does not get to heart of matter. Councilman Frisch said there is a 28 foot height limit. 40 feet is gone from downtown. Height and free market drove things a few years ago. Not sure how you get smaller than 28 feet. The issue is people forget the last war. Projects still have approvals and vesting rights and we are seeing 40 foot play out. He wants to see changes to mitigation not so much bulk and mass. Torre Regular Meeting Aspen City Council March 9, 2015 9 stated in the last two years no code changes have been initiated by this council. Why have we not seen any code changes. Mayor Skadron asked why we need code changes. We did not have to change the code because we put the law into place that is being followed. We did it because of absurd notions that land use issues should be put in the charter. People who agree with the charter should say this belongs in the land use code and work to make it happen. Base 1, Molly Gibson and the Sky are massive projects that would have taken years and filled with anger. We established new direction to not do draconian action that is going forward. Bert was excited about ordinance 19 and that is what triggered this. The scare of 4 floors. Those pushing this can come and agree to changes. It’s about community. Bert sat there and said I will no longer adhere to democracy because I can get more done with petition. There is a shift in the way community is governing itself and objection is in spirit of community and fearful of it. Torre said over the last two years council has not come forward with land use code changes. The petition is being driven by code changes. Council rewrote the code for the Sky when it changed rules about vacated right of way. He supports council in making changes appropriate to the community. He does not think ordinance 9 is the action to take. He is glad the petition is on the ballot. Is it the right place. It is a question of process and they do belong in the charter. Not a land use move but a process. Mayor Skadron closed the public hearing Councilwoman Mullins thanked Mayor Skadron for his response to Torre. She is not for the ballot issue. It is not the right place to be in the charter, too black and white. It is counter to representative government. She is also not for this ordinance. She appreciates Staff responding to Council’s request but this is not the right answer. The land use code is quite complicated and cumbersome and this will add to it. There are lots of exclusions and exceptions. We are better off in electing like-minded officials. There is an incredible low number of people that show up to a regular election. For off season elections how many people are going to show up. She guesses not that many and is it really a representative vote. There are also questions if someone showing up to vote can understand the code. She does not expect a voter to put that much time into a vote. Variances are one of Council’s tools not a party favor. It is a tool to create the best project. We need this. We can’t have a cookie cutter land use code. In last two years there has been animated and very productive discussions when discussing variances and come up with a more successful projects. She is not sure you can get the same result from a vote. She defended this at the last meeting with the choice between the petition or changes to the code. Seems more a response to the petition and not a completely well worked out response. By passing this we weaken our position. The land use code is working. If things are not as well as we want we need to change the code. If Council is not doing our job every two years Council changes. She thanked Staff for their hard work but she can’t support it. Mr. Bendon said they included a few options that are a worth wile discussion. They could amend the proposal to not allow for any variances and no vote. Councilman Romero said we are six weeks into this process. This is reactionary. The debate is are we interfering with proposing legislation versus trying to provide voters with a sincere proactive alternative. It is a good faith gesture. Council decided to move forward with a proactive good faith message. It is still warranted to provide a thoughtful response. It is fair criticism that it is not fully baked. He does not want to abandon it due to criticism. This Council has worked on proposed land use efforts for several years particularly the lodging and hot bed inventory. It has been on the top 10 list to make inroads on Regular Meeting Aspen City Council March 9, 2015 10 lodging. The lodging package was 90 plus pages. About one third on new development aspects. That’s where the infamous potential fourth floor would occur. The legislation has a set of criteria and standards to achieve the elusive fourth floor. Other parts of the document dealt with small lodges. We failed to recognize breaking it apart. As for code amendments, the previous administration made fairly dramatic adjustment to the code regarding heights. They have been adjusted in the core. The hot buttons are FAR, housing and parking. Parking is counterintuitive. We make sure the developer delivers the required parking and it results in more parking. FAR is a no brainier with a height variance. You can’t achieve a lot of FAR when working within 28 feet. 12 years ago there was a series of adjustments to the housing requirements to accelerate development. They are deserving of a review. The Sky is meeting mitigation requirements. Because of relaxation of rates it required a relatively small additional housing requirement. Council is willing to do the work at this table and Staff is willing to do the work. We can come to something and work on it further to strengthen in a good faith measure to give voters an honest example of what it could be. If the charter amendment passes this gets flushed. We shouldn’t be afraid of that. He is still supportive but it might need strengthening. The options are targeted at a different goal. He can see the BOA as staying the status quo. He would not advocate option four. Remove the element of the vote and examine the thresholds which Council can provide and approve variance. Even if Council can’t come to an agreement it would have exercised good communication. Councilman Daily said he appreciates all the comments. This is reactionary. It is not in the sense of rebellion but Council wanted to be responsive and let the community know we are listening. The potential for abuse is too great. He is not in a huge hurry to adopt amendments just for that purpose. He supported this because it’s going in the right direction. He wants the community to know we are listening and will do all we can to get it right. He wants the code to be the best policy statement we can make. He is willing to give it more time. He does not have specific ideas to improve it but if there are ways to broaden and provide reasonable assurances it won’t over step the bounds. This Council has not approved any projects that people in the community are saying are abusive. This conversation is intended to be instructive, positive and thoughtful and have a code that works and is responsive to what the community wants. Let’s give it a little more time. It is certainly going in the right direction. He is comfortable with more time. None of the options are where he is heading. Councilman Frisch stated it was Council who asked Staff to come up with ideas. He is not a fan of tableing this. It is not half baked. Staff came up with good ideas. The core value is we have proper rules in place for the community to petition or go against decisions made at the Council table. He does not see how the community gains by increasing the ability to go to public votes. Staff proposed really good ideas. There are core values that aren’t going to get where we need to go. He does not think the base premise of variances are the cause of the problem. What staff proposed is sound and solid but he will not support this. We need some type of flexibility. Variances are part of what happens in land use development. This Council does a good job of representing a good part of the community. There were some little variances that would have cost time. None of the ideas fit for what I think to move the ball forward. We are better off waiting to see how the vote comes out in May. Public votes for land use codes should be kept to an ultimate minimum. Councilwoman Mullins stated she does not want to throw this out. If we asked Staff to work on it we are in agreement we don’t want a public vote but to retain the ability to use variances. She is willing to put in the land use code no variance for mitigation, you just do it. She is not sure what is left to continue discussing. Regular Meeting Aspen City Council March 9, 2015 11 Mayor Skadron said the bottom line is believe in government where eligible citizens vote on representatives who pass laws for them. This Council has passed significant land use applications without variances. He said Council’s mission is to meet the principles of the AACP to achieve a healthy year round community and a thriving vibrant visitor base. Draconian changes to the charter around growth does not move us closer to satisfying the AACP principles. While it might feel good to make changes to the charter it isn’t right. He is ready to move forward with option two, adopt the height and floor area limits as proposed and do not allow additional requests through a public vote. A public vote is contrary to the principles of representative democracy. Councilman Frisch asked if we could see an increase in public votes based on variances given at this table. Mayor Skadron said he can support the direction of option two since we are seeing success at this table. It did not happen at the previous administrations because of the tactics at this table. We are doing things differently and seeing success. This is the way to do it, not through a charter amendment. He said he came in wanting to vote against what was approved by staff and go with option four. He said he wants to do what is right for the community and not what feels good. Option two is right for the community no matter the political risk. Councilman Romero said nominal variances have occurred recently and they have been appropriate. Councilwoman Mullins said option two would include prohibiting reductions in affordable housing. Ms. Garrow replied that is included in section one and would not change. Mayor Skadron said BOA is not a threshold issue. Mr. Bendon said from their perspective, BOA can be viewed as a place you can go to receive exemptions from city requirements. That is troublesome. You go to the BOA to be exempt from requirements. There is some value of assigning those duties to a board that regularly meets. The standards are the same. It is still a peer review. He is not concerned with P&Z’s workload. Councilman Romero said on a major application it would be a second opinion. Mr. Bendon said the appeals are to City Council. Councilman Romero said he is not familiar with developers who said I hate that Council decision let me go to BOA. Mr. Bendon replied it’s not an appeal of a Council decision but an appeal of the code. Councilman Frisch said option two variance allowance is two foot. If a future Council lowers or raises the height limit the two feet will stay in place and five percent FAR is the max. Mayor Skadron stated the critical component is the public vote. It undermines a system that has served so many so well for so long. He asked if it is possible to do modeling to see what the five percent or two feet would look like. Mr. Bendon said they will be bringing forward a supplement request around digital modeling. Modeling is useful when an applicant is showing a project. Councilman Frisch said two feet and five percent works for him. Current bulk, mass and height are roughly right. His core concern is the increase and frequency of public votes. Will option two increase options to petition. What checks and balances do we have that this will not be the new maximum. Mr. Bendon said if you are developing a building with 28 feet you can do your review without going to Council. The risk, exposure, time are not worth it unless there is a real need. Mr. Haas said Chris is right. If you come in for 200 square feet the whole project is on the table. Councilman Frisch said there is reason to table this. Are the right mitigations in place. He said no for parking and affordable housing. It is not just about bulk and mass and height. There is some current mitigations in place that can stop good projects from coming forward. He would like follow up on that. Regular Meeting Aspen City Council March 9, 2015 12 Ms. Garrow said mitigation on parking is a much longer conversation. Mayor Skadron said he is proposing further consideration of option two. No public vote is most important. He is not quite confident on the two feet and five percent yet. Ms. Garrow said these are numbers Staff would suggest. They could go lower but that may be on option four where the zoning is the zoning and no variance or public vote. Councilman Frisch stated he appreciates the mitigation is a long time out but there are still issues. Mr. Bendon said this does not cover parking. There may be a bigger discussion on affordable housing. Mayor Skadron said to clarify, he said earlier he was coming in to support option four but it was his intention to support option three. Mayor Skadron move to continue ordinance 9 to the March 16 agenda; seconded by Councilman Romero. All in favor, motion carried. Ordinance #7, Series of 2015 – 1450 Crystal Lake Road, Aspen Club & Spa – Planned Development Amendment Jim True stated after first reading Councilmembers Romero and Mullins reviewed the status with their relationship with the owner and business about further participation. Councilman Romero expressed similar concerns with those of Mayor Skadron. Councilwoman Mullins issue is her son is an employee of the applicant. Given the position of the four members it is necessary to invoke rule 2.02.050B of the municipal code or the rule of necessity. It states in the event that a Councilmembers participation is needed in order to have a quorum or allow the Council to act, the Councilmember may participate if the conflict is disclosed. If the majority of the Council is disqualified than all the disqualified members must participate. In this circumstance, everyone has disclosed their disqualification and everyone must participate. In this situation he must address the substance of the disqualifications. The charter states no member may of the Council should vote on any question in which he has substantial personal or financial interest other than the common public interest or any question concerning his own conduct. In said instances that member shall disclose that interes to the Council. That section of the charter also states on all other questions each member present shall vote when his name is called. Any member refusing to vote except when not so required by this paragraph shall be guilty of misconduct in office. Pursuant to the charters expression regarding conflict, Council adopted an ethics code that attempted to quantify the basis for recusal. Although the code outlines specific restrictions such as residence within 300 feet of a project and definitions of financial interest it does not and cannot outline all aspects of personal or financial requirements for recusal. It has been recognized a personal interest be such to require recusal when City officials feels he or she cannot objectively evaluate an application. In these situations a Council person may be forced or can be faced with either not reviewing criteria as strictly as possible or over analyzing and applying criteria too strictly to avoid the appearance of favoritism. It is a difficult situation but it is the situation that the four Councilmembers are in. In invoking the rule of necessity, in this situation neither the charter or the code require that a Councilmember be asked to state his or her ability to set aside any personal issue and evaluate to the best of their ability the application objectively and fairly. Mr. True stated he has spoken to all the Councilmembers subject to this matter and requested each acknowledge, on the record, in fact they can set aside any personal issues that they may face that would have otherwise caused recusal. Regular Meeting Aspen City Council March 9, 2015 13 Mr. True would like Council to make a comment on their ability to consider this manner in an objective manner as possible. Mayor Skadron asked if Council is comfortable with their ability to be objective. Councilmember Daily replied entirely, Mullins replied yes, Romero replied he is, and Mayor Skadron stated he can act on this without bias. Ms. Garrow stated Aspen Club & Spa is requesting a number of reviews. They are proposing to remove an approved subgrade parking garage, add ten new lodge pillows and reduce one lodge unit. They are also proposing some design changes including using a synthetic roofing material and adjusting an internal lot line. The reviews include a planned development amendment, growth management reviews related to the request of increased lodge pillows, a commercial design amendment and a subdivision amendment. The approved development has just over 110,000 square feet of floor area. Because of the removal of the subgrade garage it decreases by 3,000 square feet. The net leasable is not changing from what was approved at 63,000 square feet. There is a change to the timeshare units of a decrease of one unit and an increase of five bedrooms or 10 pillows. The affordable housing units were approved at 12 and are not changing. Ms. Garrow showed an image of the current site. The entrance is off of Ute to the parking area. There is an upper tennis court and four on the lower bench. The approved site plan access is still off of Ute. Parking will be similar as what is there today. There is an additional access point on Ute for the subgrade garage and results in a 21 foot wall along Ute. There is an existing access point off of the cull-da-sac on Ute to access the affordable housing. The applicant is proposing to reuse the existing club building. What is current tennis courts will becomes town house style lodge units. She showed an image of the plan with the removal of the parking garage. It will have a similar parking configuration but larger. The applicant is committing to not reducing the number of parking spaces (133). Replacing the parking ramp will be parking spaces. There are also impervious surface changes. The main change is increased surface parking and the area where the garage ramp would have been and the new parking on top of the club. The applicant is requesting to increase the height of the club building. The approval is for 28 feet. The applicant found the building is already over 28 feet at 30.5 feet. The applicant is requesting an additional eight inches for the reroof. There is also a change to the affordable housing units. They are requesting a change from 28 to 30 feet to provide some more livability. The walls and stairs are changing from the upper bench to lower bench with a slight change to the set back. There is a state requirement for a wall to cross the property line. There is also an internal site elevator. With the sub grade garage there were four access points into the club and ADA access was difficult. The applicant is requesting to add in the elevator. They are requesting to use a synthetic material for the roof. It looks like metal but there are energy and construction benefits. P&Z reviewed this and approved it unanimously. 6,000 truck trips will be saved with the removal of the garage. They felt the request for increases in height are warranted. APCHA is recommending in favor for the housing mitigation request. With the increase in bedrooms there is 1.5 FTE’s generated and the applicant has over mitigated. Councilman Frisch asked how long the 28 feet has been there. Ms. Garrow replied it predates the construction of the club. Regular Meeting Aspen City Council March 9, 2015 14 Councilwoman Mullins said the memo says it was approved at a range of 28 to 41 feet. Ms. Garrow said that is because of how we measure height either at natural or finish grade. This site has a significant indent so it measured at 41 feet. From finished grade it measured at 28. Mayor Skadron asked why was the housing over mitigated. Ms. Garrow replied that is what the applicant requested. Michael Fox said they wanted to. There is a tremendous advantage to have employees on site. Mayor Skadron asked how the amount of impervious surface grows. Ms. Garrow stated due to moving the subgrade parking to the surface. Planning staff had concerns and suggested the applicant look at additional landscaping. Staff would support the removal of five parking spaces. The proposal has less impervious surface than today. Mayor Skadron asked about issues with storm water treatment. Ms. Garrow said the site is located on the roaring fork river it had to go through a stream margin review. The property line goes into the middle of the river. No development is happening within that zone. Mayor Skadron said the parking approved is over parked by five spaces. Ms. Garrow said they were dedicated to the affordable housing as temporary spaces. They have 17 spaces dedicated when 12 are required. Councilwoman Mullins asked about the opportunity / feasibility of permeable pavement in place of the impervious ones. Ms. Garrow said the current approval has some language about using some pavers for areas of fire access. Mr. Fox said as they started moving towards construction they asked how do we make the project better. One of the biggest issues was the underground parking. There are four different entrances to the club and it separated out the membership base. It is a 30,000 square foot concrete box that serves no purpose other than parking. It is a waste of materials, man power and energy. They came up with a better solution that looks better. The impacts on the neighbors are better. It is more inclusive with one entrance. It streamlines the construction and shortens the construction cycle. It is a project that makes sense and is more inclusive and better than what they originally had. Councilwoman Mullins said it is a compelling argument to changing form separating people to integrating them by changing entrances. Mr. Fox said there will be one entrance that takes everyone into the club. Councilwoman Mullins asked is there a reason they can’t make most of the paving permeable. Mr. Fox said the pavers they had were not full time pavers. With full time driving it is a maintenance disaster and snow plows tear them up. Councilwoman Mullins said that technology is changing constantly and suggested they do more research. Councilman Romero asked Mr. Fox to run through the math on the change of lodge units and rooms. Mr. Fox said there is a real demand for family friendly units. Councilman Romero asked if they will be lock offs. Mr. Fox replied there is a lock off in each unit and they are 100 percent fractional. Councilman Romero said on affordable housing he looked at the P&Z minutes and there was something about an improved setback off of Ute Avenue. Bob Daniel stated there are a couple on improvements to the affordable housing. With the parking ramp the affordable housing residents had to park in the garage. The storage areas for the affordable housing is now incorporated with a stair access to the lower level. Regular Meeting Aspen City Council March 9, 2015 15 The two feet is critical, energy codes have stringent roofing requirements. They are asking for it for the roofing and livability. Councilman Romero stated it is 100 percent rentals at category two, three and four. How many bedrooms. Mr. Fox replied 24 bedrooms, two per unit. Councilman Romero asked if there are any other landscape considerations along Ute. Mr. Daniel spoke about the 22 foot wall to accommodate the ramp. They added a landscaping buffer as part of the modification to reduce the walls while accommodating shuttle pull off. Councilman Frisch said for the affordable housing the roof is smarter and more energy efficient and part of the reason for the two extra feet. If it doesn’t go that way what will you be using. Mr. Fox replied metal. Councilman Frisch said about paving, a lot has changed and it would be great for staff to look at. Staff mentioned concerns about landscaping. Ms. Garrow said they included in the ordinance the ability for the applicant to have five fewer parking spaces to accommodate landscaping. Councilman Frisch asked if there is a zero sum game, more landscaping less parking. Where does staff see the five spot trade off. Ms. Garrow replied the area within the Ute Avenue and main parking areas. It’s a lot of parking with not a lot of green space. Mr. Daniels said for impervious pavers the URMP has standards on use and type. They are ok for small space but more challenging when plowing a larger space. They are not adverse to continue to look at opportunities for that. Reducing the spaces along Ute would give a wider strip but reduce the ability to use angles. More spaces is better than less. Councilwoman Mullins asked what percent of the roof is green. Mr. Daniels stated they are still working through that. Councilman Daily said he wants Staff to be comfortable that impervious pavers have been studied thoroughly. He is fine with recommendation of approval with the requirements in the ordinance. Mayor Skadron opened the public comment. 1. Martha Latrell stated she is representing board of the club townhomes and they are very much in favor of the whole project. The applicant has done a beautiful job. Eliminating the underground parking will shorten the construction time and they love that idea. Michael and the design team have done a great job. It improves their neighborhood. 2. Marcia Goshorn said she appreciates what they have come forward with. There was lots of thought on affordable housing. The topography of the site would not be a variance if measured from grade. New roofing materials and energy efficiency and nothing that would be in conflict with the ballot question. It is not a variance if it is an efficiency issue. She loves the idea of taking out the garage and more rural character. Adding lodging without asking for favors. She totally supports the project and their work with non-profits. She does not support taking out parking spaces. They are guest spaces for the affordable housing. 3. Korinjo Devore said she is the president of the Billings affordable housing project on Ute. They were invited to be a part of the process. She would love to have 7,000 less dump truck trips on Ute. Extra livable space is desirable. She support this. Regular Meeting Aspen City Council March 9, 2015 16 Mayor Skadron closed the public comment. Councilman Romero stated he finds Staff is correct and is comfortable the standards have been met. He will support it. Councilwoman Mullins will also support this. She applauded them for getting rid of the underground garage. It is less impact to the environment, resources used and neighbors. She wants them to keep looking into permeable pavers. It is a compelling argument to create one entrance. It is difficult to talk about height and this is the value of variances to improve the way units are used. Councilman Daily said it is a solid proposal. Mayor Skadron said it was vested under the 2007 land use code why is it being reviewed under the current one. Ms. Garrow said it is vested and stays under rules it was approved under. Mayor Skadron said it was really divisive when this came before the community. An essential public facility requires satisfaction of subjective review criteria. The application must bring significant public benefit. His support was contingent on a set of values of a specific equation and the equation has changed. Is what is being presented better than what was originally proposed. If not there is no need to vary. The improvements do in fact make it better and not all change is bad. There is a tradeoff between more landscaping or less parking. Councilwoman Mullins suggested exploring pervious pavers and are you asking for a condition. She replied it does not need to be a condition. Mayor Skadron said benefits are the housing mitigation is in excess at 128 %, it is over parked, there is a decrease of truck trips, it’s slightly smaller, there is a decrease in lodge units but an increase in rooms, the construction duration is shorter and there is an increase in the livability of the affordable housing. The improvements brought a level of benefits that were not previously there. He asked what the catch is. Mr. Fox said he is not sure why they are sitting here. Mayor Skadron said he finds it satisfies the criteria and he will support it. Councilman Frisch moved to approve Ordinance #7, Series of 2015; seconded by Councilman Romero. Roll call vote. Councilmembers Daily, yes; Frisch, yes; Mullins, yes; Romero, yes; Mayor Skadron, yes. Motion carried. Councilman Romero moved to adjourn at 9:30 pm; seconded by Councilwoman Mullins. All in favor, motion carried. Linda Manning City Clerk