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HomeMy WebLinkAboutminutes.council.20150810Regular Meeting Aspen City Council August 10, 2015 1 CITIZEN COMMENTS & PETITIONS ...................................................................................................... 2 COUNCILMEMBER COMMENTS ............................................................................................................ 2 AGENDA ADDITIONA AND DELETIONS .............................................................................................. 2 BOARD REPORTS ...................................................................................................................................... 2 NOTICE OF CALL UP ................................................................................................................................ 2 CONSENT CALENDAR ............................................................................................................................. 3  Resolution #80, Series of 2015 – Contract for Main and Maroon Pedestrian Improvements .............. 4  Resolution #74, Series of 2015 – asphalt Trails Overlay Contract ....................................................... 4  Resolution #82, 83, 84, Series of 2015 – Police Vehicles Purchase and Equipping ............................. 4  Resolution #75, Series of 2015 – Wheeler Opera House Lobby/Box Office Improvements Contract . 4  Minutes – July 27, 2015 ........................................................................................................................ 4 ORDINANCE #28, Series of 2015 – 540 E Main St. Rezoning ................................................................... 4 RESOLUTION #76, SERIES OF 2015 - Affordable Housing Credits Policy Direction ............................. 5 ORDINANCE #24, SERIES OF 2015 – Castle Ridge Apartments 8040 Greenline Review and Minor Planned Development Amendment Review ................................................................................................. 7 ORDINANCE #25, SERIES OF 2015 – CC and C1 Code Amendments .................................................... 8 ORDINANCE #27, SERIES OF 2015 – Land Use Code Reliance Code Amendment .............................. 12 ACTION ITEM - Executive Session – C.R.S. 24.6.402(4)(b) conference with attorney ........................... 12 Regular Meeting Aspen City Council August 10, 2015 2 At 5:05 pm Mayor Skadron called the regular meeting to order with Councilmembers Mullins, Daily, Myrin and Frisch present. CITIZEN COMMENTS & PETITIONS 1. Randy Gold stated he had a conversation with Councilman Daily about the traffic and parking. He suggested creating a round a bout at Cemetery lane. It would eliminate the light and ease the traffic flow in and out of town. He also suggested underground parking in conjunction with the round a bout and the intercept lot. The question is how to get people to use them. Incentivize them by making the garage there free with the downtown garage and parking more expensive. Randy Ready, manager’s office, said CDOT has looked at this and the problem is the unbalancing at the light. The traffic coming from Cemetery Lane is such a small amount. He suggested the possibility of a Texas T alternative there. COUNCILMEMBER COMMENTS 1. Councilwoman Mullins said she just returned from visiting her older son in Amsterdam and it still doesn’t compare to Aspen. 2. Councilman Myrin thanked everyone for the small farm talk on Friday. There is the potential to have more food grown locally. He would like to experiment next summer for the City Hall garden to move to the front of City Hall. 3. Mayor Skadron said AREDay is in Snowmass and there are many outstanding speakers. 4. Mayor Skadron will be attending the Mayor’s innovation convention this weekend in De Moines. AGENDA ADDITIONA AND DELETIONS Ordinance #27 will be continued. BOARD REPORTS 1. Councilman Frisch stated the Nordic Council approved the master nordic trail plan. He gave a hats off to Matt Kuhn and staff. There will be new signage in the valley. We have one of the top Nordic trail system in the country if not the world. 2. Mayor Skadron said RFTAs board meeting will be on Thursday and he will report back at the next Council meeting. NOTICE OF CALL UP 710 & 720 E Durant Ave., P&Z Approval Justin Barker, community development, told the Council currently on the property there are two – three story mixed use buildings. The applicant has proposed to replace the exterior materials. The parapets will be enclosed on the top level on the east building. Councilman Myrin asked if there is any change in the deck size. Mr. Barker replied no, they all remain same. Mayor Skadron said on page two of the memo the picture that shows the improvements indicates there is a difference that impacts the view plane up the valley and is it a consideration of Staff. Mr. Barker said the direction of Staff is the existing walls are already there and the applicant is only facing them off. They are being dropped by four or five inches to comply with the height of the zone district. The height will be 32 feet. There is no Council direction to call this up. Regular Meeting Aspen City Council August 10, 2015 3 CONSENT CALENDAR Resolution #75 – Wheeler Opera House Lobby/Box Office Improvement Contract Mayor Skadron said the Wheeler has been going through improvements. There were two significant stages of improvement and now the focus is on the lobby. Jeff Pendarvis, asset, said the focus is on the bar and light focus on the box office. They saw an opportunity to enhance the experience when you walk in the door. It was well received by the wheeler board. Mayor Skadron asked what are the budget numbers. Mr. Pendarvis replied the initial number was 3.154 million. It included the second floor and box office as well as the roof and Hvac. The scope grew to include an upgrade to the control system for the Hvac of 134,000 dollars. To take down the wall between the grand staircase was another 102,000. The owners contingency is 25 percent. Mayor Skadron said the 25 percent contingency is partially informed by the theater portion of the Wheeler. Mr. Pendarvis said that is some of the thought process. We feel like we have done all our due diligence. Councilwoman Mullins said it is a good move to do the lobby. It will make an enormous difference. What is the schedule. Mr. Pendarvis said construction will start on the 31st of this month with the hope to wrap up around thanksgiving on construction and punch list by December 18th. Councilwoman Mullins asked what is being done on the bar. He said they will push back everything. The entrance to the men’s room will move to the east of the bar to free up the ladies room. There will also be the addition of a drop in stage. Councilwoman Mullins asked for that portion of the budget. Mr. Pendarvis said the reconfiguration is in the initial portion of budget. It is the adds downstairs that increase the budget. Councilman Daily stated he appreciates the work. He thanked Staff and the architects. The space of both floors is attractive. Councilman Frisch said he is excited to see the final result. Resolution #80 – Main and Maroon Pedestrian Improvements Councilwoman Mullins said the memo says there are four areas needing flashing lights, Garmisch and Hunter, Third, Original and Hopkins. This is for Original and Hopkins, and Fourth and Main instead of Third and Main. What about Garmisch and Hunter. Are they lower priority. Trish Aragon, engineering, replied they are lower priority. Staff wanted to do these locations first. The thought on Main is to come down 8th and Hallam, now that the Jewish Community Center is constructed we wanted to put it in there. Hopkins and Original is at the end of its usable life. Councilwoman Mullins said they are surprisingly expensive. Ms. Aragon said it is to get the permanent power. Councilman Myrin asked if the flashing lights will be on both sides like they are on Main or one sided like Mill. Justin Forman, engineering, replied they will be on both. Mayor Skadron asked if they work. Ms. Aragon said they have noticed an absolute improved compliance rate. Councilman Frisch said he is supportive of this but is also willing to look at something not as intrusive. Mayor Skadron said he personally crosses at intersections and does not push the button but waits for traffic to stop. Last winter Council did a site visit on Main Street with new technology. Steve Barwick, city manager, said we talked about possibilities of technologies of lighting systems that light up just the intersections. Bill Linn, police, said he has officers at Main Street intersections and the ones with the lights the officers don’t have anything to do. Resolution #82, 83, 84 - Police vehicle purchase Regular Meeting Aspen City Council August 10, 2015 4 Councilman Myrin asked if we are we doing this for recognition and uniformity or to replace Toyotas with Fords. Bill Linn, police, said the Toyotas have had their challenges. They have had catastrophic failures six times. Officers are coming down with back issues sitting in seats not designed to do police work. Councilman Myrin said they have to do quite a few modifications to the Fords, is it possible to modify the existing Toyotas with new seats. Mr. Linn said he would have to defer with fleet on the timing of replacing the cars. The cars are on a schedule with 60,000 mile replacement or five year. They are well past that in terms of mileage at 75,000. Councilman Myrin said they are not buying new cars because of seats. Were there options that would have a real world option of more than 12 miles per gallon. Mr. Linn replied it is not that we put on miles so much but we crawl around. Idling around town is not the most efficient use of a motor. Mayor Skadron asked is 75,000 a lot of miles on a police vehicle. Mr. Linn said he does not know the answer to that. Mr. Barwick replied that is a standard replacement for the city. • Resolution #80, Series of 2015 – Contract for Main and Maroon Pedestrian Improvements • Resolution #74, Series of 2015 – Asphalt Trails Overlay Contract • Resolution #82, 83, 84, Series of 2015 – Police Vehicles Purchase and Equipping • Resolution #75, Series of 2015 – Wheeler Opera House Lobby/Box Office Improvements Contract • Minutes – July 27, 2015 Councilman Frisch moved to adopt the consent calendar; seconded by Councilman Daily. All in favor, motion carried. ORDINANCE #28, Series of 2015 – 540 E Main St. Rezoning Hillary Seminick, community development, told the Council the City is requesting to rezone from SCI, commercial and commercial core to public. Redevelopment is not being considered as part of this land use application. The site is being considered for a new police department. The property is approximately 27,000 sq ft. It currently houses the City parking department. At this time there is no proposed change in use. The property is designated historic with three 19th century cabins in the rear of the lot. Staff finds the public zone district is appropriate and cleans up the mix of zone districts. When a proposed use is not allowed in all of the zones the use can only be developed on the land which it is a permitted use. The parking department is considered a public use. While public use is not permitted within SCI, it is allowed on the ground floor of both commercial and commercial core. The parking department is located within the commercial core portion of the property. The public zone district will require a planned development to be established when development occurs. A PD is not being pursued at this time. The dimensional characteristics of the parcel will be determined through the planned development review process. There will be a historic preservation review as well. HPC received an overview on June 10 and expressed no concern. On June 30, P&Z passed Resolution 12 with a recommendation to approve the rezoning. Staff recommends adoption of Ordinance 28 on first reading and schedule second reading for September 14. Councilman Frisch has no concerns at this time. Councilman Myrin asked for rezoning for public what can go on public. Is it established by the PD or by the underlying zoning. The ideal would be a combination of SCI, commercial and CC. What protections do neighbors have. It may be a conversation about the public zone in general. Ms. Seminick said the PD overlay relies on the underlying zone district. There are no dimensional requirements in the public zone district. Those are set by the planned development process. Councilman Myrin stated that frightens him. Alan Richman, representing the applicant, said the PD review criteria speaks to compatibility of surrounding developments. The array of uses that can happen on public need to accommodate things like a hook and ladder truck that can be set by dimensions that require you to look at surrounding uses. It is Regular Meeting Aspen City Council August 10, 2015 5 not as if we are opening Pandora’s box to trump tower. We are not varying from a number but establishing the number. Councilman Frisch said he appreciates where he is coming from. It is the nature of the beast of a PD. Mr. Richman said the rational is the difficulty is assuming you know the dimensional requirements. It is a one of a kind building. The process itself is the assurance the community gets there is a full airing with the neighbors. We are imposing a PD requiring a review. Councilwoman Mullins stated currently there is SCI, CC and C1. It would be good to have why we can’t expand or have CC or C1 across the site. The SCI zone has value and there has been hesitation to change it. This will represent a decrease in overall SCI across town and what is the possibility of finding anywhere else in town to replace that lost area of SCI. She is in support of rezoning to public but we need to explain the consequence of getting rid of or not using the other zone districts. Councilman Daily is in support of the proposal. There are three zones on the current property and not an effective mix. He tends to agree with Mr. Richman. The standards of the PD are in effective to protect the public. The uses the City needs to have are broad and unusual and this is a good start to a proper zone. Councilman Frisch moved to read Ordinance #28, Series of 2015; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE NO 28 (SERIES OF 2015) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING THE REZONING OF THE PROPERTY COMMONLY DESCRIBED AS 540 E MAIN ST., LEGALLY DESCRIBED IN EXHIBIT A; CITY OF ASPEN, PITKIN COUNTY, COLORADO. Councilman Frisch moved to adopt Ordinance #28, Series of 2015 on first reading; seconded by Councilman Daily. Roll call vote. Councilmembers Daily, yes; Myrin, yes; Frisch, yes; Mullins, yes; Mayor Skadron, yes. Motion Carried. RESOLUTION #76, SERIES OF 2015 - Affordable Housing Credits Policy Direction Jessica Garrow, community development, stated this is a policy resolution to consider if the City should pursue code amendments to the housing credits chapter of the land use code. The program was established in 2010. It was intended to encourage private sector development of affordable housing. To date housing for over 47 full time equalivents has been created through the program. The program allows a private developer to build voluntary affordable housing units and receive certificates from the City. The developer can sell the certificates to others to satisfy their own housing mitigation requirements. Staff is proposing a number of amendments. They have conducted outreach with P&Z, APCHA and informed the Next Gen board. Recommendations from P&Z, APCHA and an email from Next Gen are included in the memo. The first change is related to who can create the credits. In 2014 Council provided direction to limit the program to the private sector. Private development should not have to compete with the public sector. The second change is related to dormitory units. Staff is recommending they not be eligible for housing credits. They serve an important part of our community but not full time workers. The third change is related to sales limitations. Staff is proposing the units be permanently deed restricted as for sale units. P&Z suggested a full affordable housing project could be rental units as long as there is a specific agreement that they are forever deed restricted. The fourth is related to fractional credits. Should slight overages be eligible for certificates. Staff concern is they are often integral to that development. P&Z disagreed with staff and supported Peter Fornell comments. The overage encourages building on site housing. The next change is related to category limitation. Staff has operated that credits are only created Regular Meeting Aspen City Council August 10, 2015 6 for category one through four. There needs to be a conversion mechanism. APCHA supports this direction. P & Z generally supported this as well. Next Gen disagrees with the Staff recommendation. Staff is proposing to codify where hosing credits may be created and projects outside the City of Aspen not qualify. Councilman Daily Commented on P&Z and APCHA ignoring the Next Gen suggestion of including the higher category. It is worthy of more discussion. Ms. Garrow said they have to have the conversion ability. They could write the language where it is limited to categories where there is an APCHA established number rather than specifically calling out a category number. Councilman Daily said he would like to hear from Next Gen. Councilwoman Mullins asked about cash in lieu being the basis for the housing credit value and we talked of phasing out that program. How will that happen when the program is gone. Ms. Garrow replied we have to have a mechanism to convert so we would either establish that conversion factor in another code amendment or find another method. Councilwoman Mullins asked for an explanation of the fractional. Ms. Garrow gave the example of a developer who has a certificate that says 20 fte’s. Another developer generates 2.15 FTE’s needs to mitigate for it. The code requires he uses housing certificates, on site unit or cash in lieu. Most chose on site or certificates. For an on site, the easiest way to mitigate the 2.15 FTEs is to build a single two bedroom unit. That would mitigate 2.25 FTEs. This over mitigates by .1. The policy question is should this slight overage generate a certificate that I can then sell. Councilman Frisch stated he supports the public sector limits. He supports the dormitory recommendation. He supports the sales limitation. For category limitations, is staff against category five because it is bad or because the technical limitations. He appreciates the higher demand of two through four but we want to be welcoming to all the categories. We can solve the technical issues. Ms. Garrow said the concern is the administrative mechanism to convert the credits. APCHA felt strongly there is not a need for the higher categories. Councilman Frisch said for fractional credits if someone is over mitigating he needs further clarity to the downside if someone buys more credits then they need why they should not use them how they see fit. He is not sure what the downside of onsite mitigation is. Ms. Garrow stated they are concerned those units are deed restricted as for sale permanently as affordable housing. Councilman Myrin asked if the public sector participation looked at the supply and demand side. Ms. Garrow replied only on creation. Councilman Myrin said he supports it on the demand side. He said if there are mechanisms to support the fractional he would definitely support it. He would support for sale more strongly than deed restriction. One of our top ten goals is to reduce traffic. He would support these being built on this side of the round a bout in an effort to reduce traffic. Mayor Skadron stated he is interested in the category limitation discussion. Mayor Skadron opened the public comment. 1. Peter Fornell said good job to community development. He said the memo says that units must have one or more bedrooms but he heard studios mentioned. 518 Main had one studio and there were 35 applicants. They are a valid part of the affordable housing mix. Everyone freaks out when you say fractional but it is remainder mitigation. If my mitigation is one employee and I build a three bedroom in the back why am I not eligible for two certificates. I’m building in excess of my requirement. All units created for housing credits must be for sale so I can’t tear them down. There are methods to do away with the cash in lieu number. He agrees with the notion of build within the city limits. 2. Skippy Mesirow, Kimbo Brown-Schiratto, Christine Benedetti, Lindsey Palardy, representing the Next Generation Housing Committee, read the memo they submitted with the packet. Ms. Brown-Schiratto stated they suggest expanding to categories five through seven. The number one problem facing their demographic is not enough available units in certain categories. 30 percent Regular Meeting Aspen City Council August 10, 2015 7 of participants in their survey stated a total annual income before taxes between 100,000 to 150,000 dollars and 20 percent with 150,000 dollars or higher. They believe there is a demand for family friendly housing in the higher categories. Next Gen fully supports the argument that more lower category rental units need to be made available or created. Mr. Mesirow said the realities of affordable housing has changed. Having this discussion is critical to the Aspen Idea. Mayor Skadron asked for a comment on APCHAs policies and Next Gens research and is interested in the quality of the data. Jim True, city attorney, stated it is important to get Mike Kosdrosky’ s input. Councilman Frisch asked if they want to see category five included or incentivized. Mr. Mesirow replied for now they are interested in a broad discussion that focuses on all members of the community. It is early to suggest whether it should be incentivized or not. If there is a need for it and it is good for the community it should be built. Ms. Brown-Schiratto said she believes the City has done a great job of developing and selling the lower category unity. If the City is not interesting in the higher category units that is where we suggest the public private partnership. Councilman Frisch said the higher the category the less subsidy. We are trying to offer a well balance offering for the community. Mr. Bendon went back to Councilman Frisch’s question of is our hang-up philosophical or technological. It is most definitely technological. We don’t have the mechanism to deal with categories five through seven. We should keep this as a technological discussion and not keep this as a housing guideline discussion. That should stay with APCHA. Councilwoman Mullins said she would like to hear how Next Gen is working with APCHA and sharing data with them. Councilman Myrin stated incentives can be based on a variety of things. We need to be aware of the moving parts. Councilman Daily expressed his appreciation for the Next Gen group. Ms. Garrow proposed two changes. There was an oversight by Staff in the first bullet. It should say studio or more. She suggest Section one bullet three be deleted and replaced with get additional feedback from APCHA. Councilman Myrin moved to approve Resolution #76, Series of 2015 with amendments, seconded by Councilman Frisch. Councilman Myrin wants bullet two to have language to include for sale information. Ms. Garrow suggested adding language that fractional units are not eligible unless the unit is deed restricted as for sale or some other agreement. Councilman Frisch agrees. Councilman Myrin would like to add to final bullet point an incentive where it does not increase traffic. Councilman Frisch asked whether it should say must or should be incentivized. He also asked about Aspen or inside the round a bout. Councilman Myrin said he is not ready to commit to it tonight but would like it as a discussion. Mr. Bendon said they may want to expand that to all types of mitigation. Councilman Frisch is ok with that. All in favor, motion carried. ORDINANCE #24, SERIES OF 2015 – Castle Ridge Apartments 8040 Green line Review and Minor Planned Development Amendment Review Sara Nadolny, community development, stated this is a minor amendment to a project review approval and 8040 green line to the Castle Ridge property. It is located south of Aspen Valley Hospital and west of Castle Creek Road. Zoning is R15 with a PD overlay. There are eight multi-family housing buildings on the site. There is no formal PD approval associated with the site. It is estimated to be approximately Regular Meeting Aspen City Council August 10, 2015 8 64,251 sq feet. The applicant is proposing a floor area increase of 988 sq ft to construct a new maintenance storage shed. Currently there are two small sheds with decks and fences just over 300 sq feet. At first reading she may have gave the impression these were not legally established. From the building department she has it from good authority that these were legally established. The applicant is charged with meeting the criteria for 8040 and PD. The 8040 review is for locations above 8040 feet in elevation. The intent is to consider the impact on development on the natural environment. It looks at natural watershed, unstable slopes, air pollution and minimize disturbance to the terrain. It was reviewed by planning staff and engineering. The site is level and suitable for development. The water runoff has already been mitigated. There is no adverse effects anticipated to the water shed. There is no reason to think the shed would negatively affect the air quality. There will be no new roads or grading. Staff feels the applicant has met the criteria for the 8040. For the criteria for the minor amendment to project review, Staff looks at site suitability and compatibility of development with the site. The shed is oriented towards the paved parking lot. The proposed building reflect the style of the residences surrounding it. The height is 16 feet 3 inches. The engineering department has no real concerns. The applicant will need to submit a drainage report. Staff finds the review criteria has been met and recommends approval with a condition the applicant record a new site plan with the new structure on it. Luis Menendez, architect, said the eight buildings were constructed in 1981 and require ongoing maintenance. Neither the sheds or fenced in areas are large enough to contain all the necessary materials. The proposed shed is at the parking elevation and will be cut in to the slope. Councilman Myrin asked if the current structure impacts the review criteria. Ms. Nadolny replied there is not a credit. Without something showing an approval there is no existing credit. Mayor Skadron asked if minor PD amendments have always been subject to Council review. Mr. Bendon said in the past PDs would be minor at staff or major at Council. Adding sq ft, height or changing dimensions would need done at Council since the change is done by ordinance. In the past it would have triggered a full P&Z and Council review. Councilman Myrin said currently there is no housing attached to this. Could that happen. Ms. Nadolny replied that is a change in use. Mr. Bendon stated this can’t just morph into a residential unit. It would require a Council review. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Frisch moved to adopt Ordinance #24, Series of 2015; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Mullins, yes; Frisch, yes; Myrin, yes; Daily, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #25, SERIES OF 2015 – CC and C1 Code Amendments Jessica Garrow, told the Council, the code amendment would legalize existing free market residential units in the CC and C1 zone districts. In January of 2013 Council approved Ordinance 25-2012 that eliminated free market residential as an allowed use in CC and C1. It made existing free market residential units non-conforming and placed limits on investments as well as prohibited expansions. The proposed amendment would legalize all existing free market residential units in those zone districts as well as units that were under construction or approved prior to the passage of the 2012 ordinance. The amendment would prohibit any new free market residential units from being established. It would allow for internal expansions or combinations. It would prohibit external expansions. The proposed changes apply equally to all properties in C1 and CC. There are almost 200 residential units in those zone districts. Exhibit E outlines those locations. Staff tried to balance the obstacles with the financing and Regular Meeting Aspen City Council August 10, 2015 9 doing upgrades. The thought at the time was the expansion of free market units was threatening the vitality of downtown. Floor area exemptions apply equally to all properties in these zones. There are certain exemptions in the code. One of those is decks. There is a limit on deck area to 15 percent of the floor area. With the change in the code to prohibit free market residential units it meant that regardless of the code exemption you could not expand. In 2014 decks were exempted as part of mixed use buildings. Free market residential were not part of the conversation. Staff is proposing existing free market residential units be legalized but not take advantage of free decks. Councilman Myrin asked if the 15 percent that was limited prior to 2014 address the concerns of commercial vitality. Ms. Garrow replied no, it was just a general provision that applied to all properties to allow some outdoor space. Councilman Myrin asked if it exist anywhere now. Ms. Garrow stated all single family duplex districts and all multi family districts. Councilman Myrin said all Main Street would be 100 percent. Ms. Garrow said correct. Councilman Myrin said some of this came forward when the penthouse decks came. Ms. Garrow said partially. The calculation was complicated for mixed use. The thought at the time was allowing more roof top would be more visually pleasing and clean up the mechanical gunk. Councilman Myrin said Staff’s view is going to the limited deck space would impact the CC negatively. Ms. Garrow said it has the potential to push out commercial uses. Mr. Bendon said it is not the presence of the deck per say that is going to challenge the commercial viability of the building. Councilman Myrin asked if he is comfortable differentiating CC with C1. Mr. Bendon stated they consider CC and C1 the downtown proper. Councilwoman Mullins asked for the difference in intent of CC and C1. Mr. Bendon said he recommends to treat them the same. There are some differences where CC is a historic district where C1 is not. CC prohibits offices on the ground floor. Ms. Garrow said there are higher heights and larger floor areas on CC. Councilwoman Mullins said investment is limited currently, how. Ms. Garrow said to 10 percent of the cost to replace the entire structure that the unit is in for any one year period. Councilwoman Mullins said it might be a bad idea to lift all the restrictions on garages but she does not understand it for decks. It won’t increase the mass. Mr. Bendon said it’s not a mass or scale issue. It could be seen as an enhancement. It is the amount of improvements that are made to the resident. It is the disproportionate value of enhancement made to the rest of the units. Councilwoman Mullins said there is no way to expand the size of the unit even if you land a TRD. Ms. Garrow said the overall size of the building could not be expanded but the individual unit could. Councilwoman Mullins asked if there is a limit on the height of furniture or permanent/non-permanent fixtures for roof top decks. Mr. Bendon said there are limitations on permanent fixtures but not furniture. Councilman Daily said he agrees with Councilwoman Mullins. He is more inclined to the second option for floor area exemptions to allow some exemptions not all. To allow decks and at grade patios. He does not see the negative impact of allowing these kinds of decks to be enlarged. It is restoring the rights they once enjoyed. Councilman Frisch said he supports the direction Councilmembers Daily and Mullins are heading. Mayor Skadron asked what is Staffs direction. Ms. Garrow said they recommend option four, not allowing any exemptions away from Ordinance 25-2012. If Council wants to allow some floor area exemptions they be limited to decks and at grade patios since it has the least impacts. Mayor Skadron asked why isn’t it the primary recommendation. Mr. Bendon replied they are trying to stay true to Ordinance 25-2012. Councilwoman Mullins asked what is the reasoning for option three to allow exemptions in C1 and not CC. Ms. Garrow stated it was recommended by Councilman Myrin to start with a smaller impact. Regular Meeting Aspen City Council August 10, 2015 10 Councilman Myrin asked for option two, is there a way to include times prior to ordinance 25. Ms. Garrow stated they can find a way to write it. Mayor Skadron opened the public comment. 1. Jurine Bears, 605 E Main Street owner, said she was shocked to find out the property rights have been taken away without notice. She is hopeful that Council will change the ordinance. She hopes Council lets people use their decks because they are a wonderful amenity. 2. Jim Smith said the owners of Concept 600 appreciate that Staff and Council are willing to work on this issue to return to conforming status. There is another long standing property right they would like to have back and that is to expand decks, balconies and roofs. He reviewed the history of the ordinances affecting decks. He is surprised Community development has recommended option four. The other four zones have not been curtailed of that right. He believes option one would be more preferable as it is more consistent with what Council did just a year and a half ago. Ordinance 25-2012 had an unintended consequence on 200 units and he hopes ordinance 25-2015 does not have an unintended consequence on those same units. 3. Jody Edwards, representing Concept 600 HOA said there is a lot of fear of some unintended consequence if Staff allowed the floor area exemptions to apply to these units. The expansion of these units creates pressure to have quieter uses in the commercial space. The owners have different expectations of the uses. We are only talking about existing units and floor area exemptions. Staff would have a valid fear if we were talking about newly developed residential units. I can’t see how adding a deck would affect the commercial space. He suggested changes to page five of ten section C1 – the purpose is different from the intro language and legally established free market housing needs added. Page eight of ten section 12 F, the last sentence that states ”Free Market Residential units shall not be able to utilize any exemptions to floor area outlined in the code” should be struck is the easiest way to fix this problem. 4. Ms. Garrow added letters from Judy Fick, The Doran Family and Jim Smith. Mayor Skadron closed the public comment. Councilman Myrin stated he is leaning more towards number two limited to prior to ordinance 25-2012. We are concerned with things going forward. It would be limited to decks and at grade and nothing else. He would like to see the limit at 15 percent held. He would like to start with a small zone and smaller limit on FAR. Start with baby steps and limit to a prior date. He is very concerned with expanding to CC. Mr. Bendon asked if he is concerned with rooftop deck versus what Concept 600 is talking about. Councilman Myrin replied absolutely. Having an unlimited deck space with the ability to cover it could give another floor. Mr. Bendon replied they do think there may be a difference to a roof top deck and one on the side of a building. We think the same issue will come up in CC if we just do this in C1. The limits on investments for non-conforming uses were established when the prevailing thought in the planning profession was those uses would eventually just amortize themselves away. We don’t think that will happen. The value is just way too high. Councilman Myrin asked if that would then be a change in investment on non-conforming uses and not FAR. Mr. Bendon replied it is but it is somewhat back burner. Mayor Skadron asked in regard to roof top decks versus decks on the side of the buildings could you find reason to modify point two. Mr. Bendon stated they seek simplification and we get there by complicating the code. Mr. Edwards said they agree the non-conforming section of the code was made for another time. He agrees that roof top decks are different. The potential solution is to not allow roof top decks. Councilwoman Mullins stated it is difficult trying to maintain the town for the benefit of the residents but here is an individual interest versus a community wide one. How does the 15 percent address garages, storage and patios. Mr. Bendon suggested an addendum stating expansions to FAR permitted except for at grade patios and decks (other than rooftop), balconies, exterior stairways, trellis, and other similar Regular Meeting Aspen City Council August 10, 2015 11 features up to 15 percent of the free market residential floor area. Councilwoman Mullins said once the residents become conforming there is no limit on the money that can become invested. Councilman Frisch said the limit on investment needs to go as soon as possible everywhere in town. We need to stop the non-conformity in both zones no matter what. He is more swayed by Staffs argument that we need to treat the two zones the same. It should apply to both CC and C1. We need to get rid of the non-conforming and investment limits. Councilman Daily said he is supportive of option two. He sees severe risk factors in allowing roof top decks as a possible use. He concurs with Mr. Bendon that limiting to C1 is too restrictive. 15 percent of FAR restores the rights from 2011. He prefers to go with option two. Mr. Edwards asked how are you going to calculate the 15 percent when some exemptions apply and some don’t. How is an unlimited deck such a big problem when a 15 percent one creates a huge problem. Mr. Bendon stated that’s why we have two zoning officers and a town full of architects. The 15 percent is closest to what it was prior to 2011. Ms. Garrow said floor area is still calculate the same way. Councilman Myrin asked how long has the 15 percent been in the code. Mr. Bendon replied it’s been in the code for some time. 20 years. Lindsey Smith said the 15 percent could cause issue with the HOA. We are ready to move forward with our project. She respectfully request Council draw a line through the 15 percent. Mayor Skadron said the overall desire is to maintain consistency with the CC and C1 amendment established in 25-2012. He is somewhere between option two and four. We should cure the non- conformities but he is hesitant to expand development rights. He wanted to allow 15 percent as was allowed prior to ordinance 25. The exemptions should be limited to decks and patios and treat C1 and CC similarly. Mr. Bendon said point two could be modified to allow for at grade patios and decks other than roof top up to 15 percent. In terms of how an HOA manages itself any option works for Staff. CC and C1 would be treated the same. Councilman Frisch asked what 100 looks like from a cautious standpoint. Mr. Bendon said that is difficult to answer. It would require a property by property examination and they are not prepared for that tonight. Councilman Myrin said the 15 percent is restoring back to what it was. What happens between a property is between them. He is ok with that. The only difference is CC and C1. Mr. Bendon suggested changing CC and C1 within Section 12 E Floor area Subsection I –“limit to the existing floor area no expansion to the floor area shall be permitted except for at grade patios and decks other than roof top decks, balconies, exterior stairways, trellis and other similar features up to 15 percent of the free market residential floor area. Any subsequent reduction of floor area occupied by such residential use shall be deemed a new limitation and the use shall not thereafter be enlarged to occupy a greater floor area. Free market residential units shall not be able to utilize any exemptions of floor area outlined in Section 26.575.020(D), Measuring Floor Area, except as noted above.” The same language would also replace 12F. Language would also be added within the purpose statement C1 legally established free market uses prior to ordinance 25-2012. Regular Meeting Aspen City Council August 10, 2015 12 Councilman Frisch moved to adopt Ordinance #25, Series of 2015 with amendments; Seconded by Councilman Daily. Roll call vote. Councilmembers Frisch, yes; Mullins, yes; Daily, yes; Myrin, no; Mayor Skadron, yes. Motion carried. ORDINANCE #27, SERIES OF 2015 – Land Use Code Reliance Code Amendment Councilman Frisch moved to continue Ordinance #27, Series of 2015 to August 27, 2015; seconded by Councilwoman Mullins. All in favor, motion carried. ACTION ITEM - Executive Session – C.R.S. 24.6.402(4)(b) conference with attorney Councilwoman Mullins moved to go in to executive session at 9:45 p.m.; seconded by Councilman Daily. All in favor, motion carried. At 10:20 p.m. Councilman Frisch moved to come out of executive session; seconded by Councilwoman Mullins. All in favor, motion carried. Councilman Frisch moved to adjourn the regular meeting at 10:20 p.m.; seconded by Councilwoman Mullins. All in favor, motion carried. Linda Manning, City Clerk.