Loading...
HomeMy WebLinkAboutcoa.lu.ec.Aspen Institute.1985 . . ~ . ,..-,. . >1i t BOOK 498 PAGE:256 STATEMENT OF EXCEPTION FROM THE FULL SUBDIVISION PROCESS AND SUB- DIVISION APPROVAL FOR THE PURPOSE OF ALLOWING THE ASPEN INSTITUTE FOR HUMANISTIC STUDIES TO EXERCISE ITS OPTION TO ACQUIRE RECORD TITLE TO THAT PROPERTY COMMONLY KNOWN AS TIIE "ACADEMIC PARCEL", RECORDED SEPTEMBER 26, 1980, IN BOOK 395 AT PAGE 763 AND DECLARA- TION OF COVENANTS AND RESTRICTIONS WHEREAS, the Aspen Institute for Humanistic Studies enjoys an option to purchase the real property described in Exhibit "A" annexed hereto, commonly known as the "Robert O. Anderson" or "Academic Parcel" (hereinafter "Academic Parcel"), in accordance with that "Option to Purchase", between the Meadows Corporation and the Aspen Institute for Humanistic Studies, recorded September 26, 1980, in Book 395 at Page 763, in the records of the Pitkin County Clerk and Recorder; and WHEREAS, John H. Roberts, Jr. is the record title owner of the parcel described in Exhibit "B" annexed hereto, which is subject to the option (hereinafter referred to as the "unified parcel"); and WHEREAS, by virtue of its Ap~lication for Exemption from the Definition of Subdivision or Exception from the Standards or Requirements of Chapter 20 of the Municipal Code submitted on or about July 16, 1985, incorporated herein and made a part hereof by this reference, the Aspen Institute requested an exception from the full subdivision process and the granting of subdivision approval so that it could properly exercise the aforesaid option and confirm record title to the Academic Parcel in ~e ~, Institute; and ~ - N .... .... -v 3: ABpen :::j,... ~o %:0 0'" -I::j :<> ""CD m;;> 0% 0% ::am 0;0 ,., ::0 N ;-.J N ...... Ct.> (:) .. c:z:> c.rs ~ .~ t BOOK ft <g.g' O"'i'-ti?;::~7 .t:.., Ir4V l......V WHEREAS, the City Council at its meeting of September 23, 1985, conducted a duly-noticed public hearing on the aforesaid application, and at the close thereof, determined that the Aspen Institute's request for such exception was appropriate and deter- mined to grant subdivision approval, subject, however, to the con- ditions, covenants and restrictions described hereinafter and as agreed to by the Aspen Institute during the course of the afore- said hearing. NOW, THEREFORE, the City Council of the City of Aspen, Colo- rado, does hereby determine that the application for exception from the full subdivision process is proper and hereby grants subdivision approval, subject to and upon satisfaction of the following conditions, which are hereby agreed to by the Aspen Institute for Humanistic Studies and John H. Roberts, Jr.: 1. Prior to recordation, a final plat of the unified par- cel conforming to the requirements of Section 20-15 of the Munici- pal Code of the City of Aspen shall be submitted to the City Engi- neer for review and written approval. Said plat of the unified parcel shall contain a recitation subscribed by the owners of the resulting parcels that said parcels are subject to the restric- tions, conditions and covenants of this Statement of Exception. 2. The final plat shall reflect any utility easements or other related interests lawfully in existence, as approved by the City Engineer; r-" 2 "-,, / 1"""\ .-; f BOOll498 p;,GE258 3. There shall be established an ingress/egress easement for pedestrian access between the two parcels as indicated on the final plat; 4. Encroachments and trail easements shall be shown on the final plat to the satisfaction of the City Engineer; 5. Adjacent ownerships shall be shown on the final plat. Further, in addition to the above-stated conditions and in consideration for the granting of an exception from the full sub- division process and subdivision approval, the Aspen Institute and John H. Roberts, Jr. ("Covenantors"), in furtherance of their representations to the City Council during the course of the public hearing and as an inducement to the City Council to approve the subdivision, do hereby restrict the unified parcel as follows: 1. In the event that any municipal improvement or improve- ments of the kind contemplated in Section 20-16 of the Municipal Code of the City of Aspen, as amended, become, in the sole judg- ment and discretion of the City Council of the City of Aspen, necessary or desirable to the area of the Academic Parcel, the Aspen Institute agrees to join, upon demand therefor by the City, any special improvement district, urban renewal district, or down- town development district formed for the construction of such improvements (including, without limitation, signage, drainage, underground utilities, paved streets and alleys, planting, curbs, gutters, sidewalks, street lights, traffic circulation, trails, recreation facilities, berms, open space lands, public transporta- 3 f"". .~ 800H 498 'r';C"'~n Q.',i'r:,/"',;.Jj 1)-"''-''~?'";tV tion facilities, parking, etc.) in the area of the Academic Par- cel. 2. Despite the separate ownerships, the unified parcel hereinabove described, as designated on the official City of Aspen zoning map, shall continue and be deemed a single unified parcel with regard to all zoning, land use and development, it being the intent of the City and Covenantors that any proposed change in zoning, land use or development with regard to the unified parcel shall be submitted and considered as if the unified parcel was not subdivided. No development application shall be submitted which does not comprehensively address development on the entire unified parcel, and no such application shall be submitted or considered without the written consent of all owners of the unified parcel. 3. The covenants and conditions herein contained shall run with the land and shall be binding on all parties having any right, title or interest in the above-described parcels or any part thereof, and their heirs, representatives, successors and assigns. 4. The subdivision shall become effective only upon the recording of the plat and this Statement of Exception and Declara- tion of Covenants. 5. No conditions or covenants contained herein shall be released, waived in any respect or modified or amended without the prior consent of the City of Aspen as reflected by ordinance of the City Council. Dated this day of 4 ~ rJ . BOOK p. '9', fit 'p ,"I: :;tt),'n If CJ kUL '........It V IN WITNESS WHEREOF, this Statement of Exception and Declara- tion of Covenants has been fully executed this__~_ day of ___ _--2.ct~~~___________,_, 1985. CITY OF ASPEN, COLORADO By:~jjJd!(j&:fi6r-PrOTem - ASPEN INSTITUTE FOR HUMANISTIC STUDIE 7Q;~ y- x_,' J $Il; _'f1Llkfj ~___________ JO~rH~Roberts, Jr. I, Kathryn S. Koch, do hereby certify that the foregoing Statement of Exception and Declaration of Covenants was considered and approved by the City Council and that the Mayor, William L. Stirling, was authorized to execute the same on behalf of the City of Aspen. , .J. 'U i." .,<, :,r, '(5... ;~i ", , \.- ,<:"4'.. , ~ .,~; ..' ...... 'J'" \";; S B ~\ L, : :\'~" \;::.; y; , ,'~ \~o~ O? ~~~"',/' 0~ -Koch--------- 5 h BOOl< 4~ i\\Gt:~~t;"L '=' ~ ..... - ." :::j,... ~o %::0 om -j-j :<~ ::t>CJ 01> 0% 02: ""m 0;;0 .... :0 N ':"'-I N ...... Ct.> RESOLUTION NO. ~~_ (Series of 1985) N .... .... ..., 3: .. CQ c.rs - A RESOLUTION GRANTING EXCEPTION FROM THE FULL SUBDIVISION PROCESS AND SUBDIVISION APPROVAL FOR THE PURPOSE OF CONFIRMING IN THE ASPEN INSTITUTE FOR HUMANISTIC STUDIES AN ABILITY TO EXERCISE ITS OPTION, RECORDED SEPTEMBER 26, 1980, BOOK 395 AT PAGE 763 IN ORDER TO OBTAIN RECORD TITLE TO THE "ACADEMIC PARCEL" WHEREAS, on or about July 16, 1985, the Aspen Institute for Humanistic Studies submitted an "Application for Exemption from the Definition of Subdivision or Exception from the Standards or Requirements of Chapter 20 of the Municipal Code", which applica- tion is hereby incorporated herein by this reference; and WHEREAS, the stated purpose for the said application was the Aspen Institute's need for subdivision approval so that it can exercise its option to purchase an approximately 26.5 acre parcel, commonly known as the "Robert o. Ander son" or "Academic" parcel, as described in the application and as specifically referred to in that option to purchase between the Meadows Corporation and the Aspen Institute, recorded September 26, 1980, in Book 395 at Page 763; and WHEREAS, the City Council aCknowledges that the Aspen Insti- tute for Humanistic Studies incalculably enriches the cultural and educational life of the City of Aspen; and WHEREAS, upon consideration of the evidence and testimony presented at the duly-noticed public hearing conducted by the City Council on September 23, 1985, the City Council has determined that, under the facts and circumstances presented, the require- ~ ~ ~4~~~ ments of the full subdivision process would be redundant, serve no public purpose and be unnecessary in relation to the land use policies of the City of Aspen; and upon the satisfaction of the conditions set forth below, the proposed subdivision will substan- tially comply with the design standards of Chapter 20; therefore, the City Council desires to grant subdivision approval subject, however, to the representations and agreements of the applicant; and WHEREAS, the City Council recognizes that the current record title owner of the entire unified parcel, specifically Aspen Moun- tain Joint Venture by letter dated September 10, 1985, and through representation at the public hearing, endorsed and supported the application subject, however, to the representations of the appli- cant. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: SectiQ~_l That the City Council hereby approves the Statement of Excep- tion appended hereto and grants subdivision approval pursuant to the provisions of Chapter 20-19(c) of the Municipal Code of the City of Aspen and, in granting and approving the annexed statement of exception and declaration of covenants, the City Council finds that: 1. The application requests the subdivision of a tract of land into two parcels for the purpose of transfer of ownership 2 ~ (""j BOOK 4~)~ r,- -'ir;JU) J (HlJC,.:.wV within the definition of "subdivision" set forth in Section 20-3(s) of the Municipal Code; 2. The Aspen Institute has represented that the application is for the purpose of confirming record title only and has agreed that any future application for zoning, land use or development pertaining to the academic parcel shall proceed the same as if the entire parcel was unified and in single ownership as if no subdi- vision had been approved, thereby requiring a comprehensive plan with the concurrence of all title owners; and 3. Under the facts and circumstances presented, the City Council hereby determines that requiring the application to be processed through the full subdivision process would be redundant, serve no public purpose and be unnecessary in relation to the land use policies of the City of Aspen and, notwithstanding the excep- tion and in view of the representations of the applicant, finds that the proposed subdivision will substantially comply with the design standards of Chapter 20 of the Municipal Code. Section 2 ---- The Mayor is hereby authorized to execute the attached State- ment of Exception and Declaration of Covenants on behalf of the City of Aspen. /i>l +-', ,) ! Dated: ______~~~~~~~~t~~_____________, 1985. ~,~ ~ wi'ffiam-r:;;--Sti'; ing;Mayor-- 3 ~ ~ BOQU Ji._.q~ r' >'j;i.J. n ~ vU !'rltJt :-,.IV ..... I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on _~~~~_~~_, 1985. " '\ . {', (.~ ,,- .\ y.....' ....'~ <..,' ~''1;'' "'.;.. ~...., ", f 2D s.,-' p' .~A~. - L: 11t '~/V . ,. "- ~. 1 /j a:.:zr~ <....../ ' / ~L/;, ~thiyn-S~~6~h;-C[tY-Clerk' --- ~ , ,\" (' JL Jr. ',,';-' ""." ", ..!,.' 4 ,-,., 11 INSTITUTE VERBATIM September 30, 1985 STIRLING Moving on to the Aspen Institute approval conditions, we have received two documents which we just got this afternoon, one is Resolution *24, Series of 1985, which is a resolution granting the exception from the full subdivision process with the language clarified in it representing the specific aspect of what was approved a week ago. Secondly, we have a second statement, which is a statement of exception from the full subdivision process and subdivision approval for the purpose of allowing the Aspen Institute to exercise its option to acquire record ti tl e. Is counsellor Taddune near by? All we all ready? Paul, I just read the title to Resolution No. 24 and the opening title of the state- ment of exception. In which sequence should be proceed. TADDUNE The sequence you proceed in is as follows; you have a Resolution which sets forth the grounds for granting the exception from the subdivision process and subdiv- ision approval. The second document, which is very simil ar to the first, is a document called statement of exception from the full subdivision process and subdivision approval and declaration of covenants and restrictions. The first document is designed to articulate your legislative action, which is basically to indicate that a hearing was held to indicate that 1 ,....., f"1 INSTITUTE VERBATIM September 30, 1985 the title owner of the entire unified parcel, specifi- cally Aspen Mountain Joint Venture, through represent- ation at the public hearing, endorsed and supported the appl ication. And these are items that are set forth in the recitals of the Resolution. As you go through the resolution, you will note that Section I indicates that you approve the statement of exception appended and grants subdivision approval and in granting and approving the next statement of exception and declaration of covenants, you find that the application requests subdivision of a tract of land into two parcels and that it falls within the defini- tion of subdivision. Secondly, you indicate that the Aspen Institute has represented that the application is for the purpose of confirming record title only, and has agreed that any future appl ication for zoning, land use or any development pertaining to the academic parcel shall proceed the same as if the entire parcel was unified and in single ownership as if no subdivi- sion had been approved, thereby requiring a comprehen- sive plan with the concurrence of all title owners. Thirdly, you find that under the facts and circum- stances presented that you determine that requiring the applicant to be processed through the full four step procedure would be redundant with no public 2 1"""'1 f""'\ INSTITUTE VERBATIM September 30, 1985 purpose and be unnecessary. Section 2 gives the Mayor the ability and authority to execute the statement of exception. The statement of exception has similar recitals and sets forth on page 2 of the statement of exception that prior to recordation, a final plat of the unified parcel conforming to the requirements of the Municipal Code shall be submi tted to the ci ty engineer for review and approval and said pI at of the unified parcel shall contain a recitation subscribed by the owners of the resul ting parcels, that is Aspen Mountain Joint Venture and the applicant, the Aspen Institute, that said parcels are subject to the restrictions, conditions and covenants of the state- ment of exception. The final plat, in paragraph 2 of page 2 of the statement of exception, indicates concerns of the city engineer as does item 3 in page 3, item 4 on page 3 and 5 on page 3. Now the operative language, and the language that you were really concerned about appears on page 4, number 2. But before I get to that, you should know that the typical language pertaining to a municipal improvement or improvements district, pertains to the parcel created by the Aspen Institute. We generally, when we grant subdivision approval, require that the applicant agree to participate in a public improvements district. The 3 f'""". "-,, I } INSTITUTE VERBATIM September 30, 1985 applicant in this case, the Aspen Institute with regard to the parcel owned by the Aspen Institute, is agreeing to do this. STIRLING It does not imply that the other entity, AMJV, would be held to that. TADDUNE It doesn I t imply that, but, when they come in for development approval, they understand that we will require that of them, I point that out to you. The operative language is paragraph 2 on page 4, which says that "despite the separate ownerships, the unified parcels, which is the parcel that is presently subject to the option, as designated on the official city of Aspen zoning map, shall continue and be deemed a single unified parcel with regard to all zoning, land use and development, it being the intent of the city and the covenantors, the covenantors are both the Aspen Institute and the Aspen Mountain Joint Venture," and I'll make a statement about the Aspen Mountain Joint Venture in a second, "that any proposed change in zoning, land use or development with regard to the unified parcel, shall be submitted and considered as if the unif ied parcel was not subdiv ided. " In other words, we're recognizing title for purposes of declar- ing record title only. But for purposes of zoning, land use or development with regard to the unified 4 1""'\ (""\ INSTITUTE VERBATIM September 30, 1985 parcel, that parcel will be deemed by the City Council to be as if no subdivision had occurred. It goes on further, "that no development application shall be submitted which does not comprehensively address development of the entire unified parcel, and no such appl ication shall be sUbmitt,ed or considered without the written consent of all owners of the unified parcel." So, there are three thoughts in this para- graph. One is that land use applications w ill be considered the same as if the subdivision had not occurred. Secondly, that no application shall be submitted and considered by the City Council which does not comprehensively address the land use consider- ations. And thirdly, that no development application will be submitted which is not consented to by the owner s of the Insti tute parcel or the academic parcel and the remaining parcel. You w ill note on page 4 that these conditions and covenants will run with the land, meaning that they will be installed with notice to anyone who purchases the property, and I might just say that we're looking at the title commitment. We believe that Aspen Mountain Joint Venture is the title owner. There may be transactions that occurred in Texas that I'm not aware of that deed the property over to John Roberts, individually. Now it doesn't 5 f"" t'""1 INSTITUTE VERBATIM September 30, 1985 make any difference to the Roberts group, but we just want to make sure that we have the record title owner as appears on the records of Pitkin County. The subdivision shall become effective only upon the recording of the plat and the statement of exception and declaration of covenants and that no conditions or covenants contained shall be released, waived in any respect or modified or amended without the prior consent of the City of Aspen as reflected by ordinance of the City Council. Normally, we don't require an ordinance but because of the sensitivity of this particular exception, we thought it would be in the best interests of the community to require that if this document is going to be amended or waived or reI eased in any respect that we uti! ize the ordinance procedure, which would invite public comment by notice of a public hearing. These two documents have been submitted to the attorneys of all of the various groups who are interested in the application, and the language has been inserted with the consent of every- one. It's a document that has several authors, we spent a lot of time on the telephone, we spent a lot of time insuring that we have a draft that everyone feels addresses their particular concerns and we do have, I believe, consensus among all of the attorneys 6 I""", r'\ INSTITUTE VERBATIM September 30, 1985 representing the particular interests that the document suffices for particular purposes. I have to say that some of the lawyers might want to make it a little bit more strict, in some respects; some of them feel it should be more liberal. But we do have a document that probably should be placed in a time capsule because such a large group of lawyers agreed that it says what it says. STIRLING TADDUNE STIRL ING TADDUNE STIRLING ISAAC STIRL ING Paul, the sequence then, thank you very much, Paul, I appreciate that. The sequence would then be to address the statement of exception first and secondly Resolution No. 24, Series of 1985. If you endorse the resolution, you endorse the complete packet. Shall we do them simultaneously, then? You do it just by passing the resolution. Now, Dwight, the reason we were caucusing back there is Dwight was bringing some matter to may attention, and he can, if you want to Well first of all, let me just see if we can get a motion to move the resolution forward. Is there a motion to approve Resolution No. 24, Series of 1985? So move. Is there a second? 7 1""'\ t""'\ , , INSTITUTE VERBATIM September 30, 1985 FALLIN Second STIRLING It has been moved by Tommy Isaac and seconded by Pat Fallin. Discussion? Counsellor, Dwight Shellman. SHELLMAN I am appearing again on behalf of the West Side Improvement Association. I want to just sort of second what Paul said. I think he did yeoman's work here and really, truly tried to develop a consensus. I have to say from my standpoint that I have been in a deposition all day and have not seen the last draft. I have sort of put together some last minute things that I think Counc il might want to conside r. Number one, in terms of just tightening up the language somewhat. I'm afraid it's in hand drafted form but that's all I could get done and secondarily, this will be a surprise to Paul and the other attorneys. I have had a request from members of my Association to address the question that has come up a couple of times about how do we deal with the likelihood of a suit, here, if there's a disagreement. So I have hand drafted a clause that those Councilmembers STIRLING Between the two ownership groups? SHELLMAN Yes, and how might the city get involved in that kind of probl em. So if you'll bear with me, I'm going to at least make those available to you. The matter is moving very quickly, and it's very hard to kind of 8 '---.....' t": r'\ I~STITUTE VERBATIM September 30, 1985 keep up with it. I haven't seen today's draft. I've looked it over. It looks the same as substantially the one that I worked with. Anyway, I'm going to just make these available to Council. Do you have a copy Paul? No I haven't seen it He hasn't seen any of this. I'm doing the best I can. One is the resolution; one is the exception. Let me just quickly indicate what I think the significant changes are. Before doing that, I've also received some word from some of the members that questions have arisen concerning whether proper notice was given to adjacent owners, and I am advised that Markalunas, Mencher, Bresnitz, Iselin and Hibberd are adjacent owners and their names did not appear on the list. That would be a serious problem, and there may be others but those are the only ones I have been advised of. And I simply bring that to Council's attention to indicate that I'm not authorized to waive a defect like that for any of those people, and Council may want to address that question to make sure that what you're doing here and imposing these restrictions is going to survive ultimate judicial scrutiny. The changes in the resolution, there are some that just reflect form. I did attempt to inc1 ude representation STIRL ING TADDUNE SHELLMAN 9 t""'\ fj INSTITUTE VERBATIM September 30, 1985 which are the ones I heard at the hearing, that no further development of the 26 acre parcel is contem- plated and that the application was made further that the Institute and the Roberts interests to whom I did not have a name, had made inducing representations and agreements set forth in the exception. Those are very minor changes, and I would certainly understand if Council didn't follow. In the statement of Excep- tion, the most significant change, excuse me and in the resolution there is one change of wording, I guess that's in the exception, excuse me. STIRLING So in the resolution you are recommending on page 3 item 2 and item, you're adding a new 3, then renumber- ing 4. Yes It's hard to read. It is hard to read, and if Council's interested in picking them up, I'll read them into the record. I want to give you an idea of the flavor of what's being suggested here, and then if we get specific if Council desires to do it. On the statement of exception, I again, inserted a representation that no further development is contemplated in the first page. I'm working with what's maybe a prior draft. The thing marked out w"s the word "owner", you see that on page SHELLMAN COLL INS SHELLMAN ~ 10 f"""\ n INSTITUTE VERBATIM September 30, 1985 2, and that may have been corrected in the current draft that's before you. That's just grammatical. When you get to paragraph 2, you begin to address the questions of substance. It was felt that the words "comprehensively address development" might be a little ambiguous on the entire unified parcel, so I've inserted the word "comprehensively address all develop- ment" because I think that's what Council meant. They didn't mean to comprehensively address a development on one acre of the parcel, and it might be capable of that construction. Then I've renumbered the paragraphs, what was paragraph 2 is now number 3 and referred to all these people, their heirs and repre- sentatives as owners collectively because I refer to that later on. And I've renumbered 4 and 5, added a paragraph 6 which does address this suit concern, and it goes as follows, because I'm pretty sure you won't be able to read my writing, "6, The owners assume all risk or loss, cost, damage or expense, which may arise from or relate to any disagreement between the owners as to any development appl ication with regard to all or any part of the unified parcel or failure of all said owners to agree to and proceed upon all or any part of any land use for development authorizations by the city of Aspen as to all or any part of the unif ied 11 t""", ~ INSTITUTE VERBATIM September 30, 1985 parcel." That basically says they just assume the risk in leading into the next sentence. Next sentence says, "Said owners hereby agree to indemnify, hold harml ess, waive or reI ease the ci ty of Aspen, its present and future agents and employees and elected and appointed official from, of , and as to all suits, claims, demands, damages, loss and expense, in any way arising out of or related to this statement of excep- tion or City Council or other municipal processes concerning the grantment of this statement of exception for which are here after undertaken pursuant to the provisions hereof", and that is intended to refer to an approval that this Council might give, which approval one or the other of the owners might disagree upon or have litigation about. So I've tried to make it fairly general. Those are the technical exceptions, but I did want to make sure that you knew that somebody had attempted to address this question of suit, which came up at the prior hearing. STIRLING Comments, Paul. Thank you very much Dwight, I apprec- iate the effort very much. On first blush, what is your observation, sir. TADDUNE I'll make this 20 pages if the people that own it want to put 20 pages of language in the statement of exception. If this is agreeable to the Aspen Mountain 12 INSTITUTE VERBATIM September 30, 1985 Joint Venture and the Institute, then that moots the question. Comments, Spencer Mayor, I think that everything that Dwight mentioned was covered fully, adequately, comprehensively by Paul. We've studied it. This document has been available for how long, Paul Well, I have to retract everything that I said before Dwight started speaking. You know we could probably go on for another two days in terms of language because actually Dwight was one of the first of the people to incorporate his ideas in the documents, so I think conceptually we incorporated everything that you felt was important and protected your client's interests and then we went from there around to some of the other attorneys. So, again, if the property owners would consent to something like this, then sure, STIRLING What about the city's point of view in terms of our visibility and liability in relation to some suit that may occur as a result of this agreement. I really don't know what this language is designed to address. If you could articulate a scenario where this language is designed to accomplish something I think what you're trying to say here is that if there's a law suit then the applicants are going to STIRL ING SCHIFFER TADDUNE TADDUNE 1"""\ r"") 13 t"'"'\ t) INSTITUTE VERBATIM September 30, 1985 indemnify the city against any damages, any losses, whatever, arising out of this subdivision. SHELLMAN I have a couple of scenarios that have occurred to me. I must tell you that Taddune has worked for 25 years, those are not going to be the one, there'll be two others that you haven't received. The situation that I see here and I think the Councilmembers see it also is that these applicants will be unable to agree on a comprehensive development for the entire parcel and may involve themselves and the city in litigation to attempt to get some of these restrictions, specifi- cally the unified parcel requirement, released and if such a claim is not valid, expense may be incurred. This clause does two things; it says you're going to indemnify against that cost, and the second thing says that you're going to waive and release your right to make, to litigate about, with the city, about what these exceptions mean or how they should be appl ied. Just let me add one other thing, Bill, I did discuss with Paul initially the day following Council action, and he was very good about addressing the matters I brought up. I did bring up the suit matter and Paul did not particularly favor the concept and I let it go and referred it back to my clients. My clients have since met, I'm told, and have reported to me various 14 ,-., r"\ /) INSTITUTE VERBATIM September 30, 1985 problems, which I attempted to address in this draft, and I have really not even seen the last draft because I was unable to be available today and I have to take responsibil ity for that. But the obj ective here is to get this matter before you so you can consider whether you wish to incorporate any of these changes. The only other thing, it looks small but it is significant, is the two things, one is that any application address all development on the parcel, and I think the language of the specially planned area is not a comprehensive plan but a precise development plan. I noted that and I think you might want to incorporate that. STIRLING Quick observations here, Art Daily DAILY On behalf of John Roberts, I think I understand the suggested changes Dwight has. I have no objection to any of them except the indemnification clause. And with respect to that it is terribly broad, I don't think that at this point I could agree to any part of that provision on behalf of John Roberts. John Roberts is not an appl icant before you, and is acting in an accommodating manner in supporting the Institute's application to acquire title and ownership to a piece of the Meadows property. John Roberts is not going to commit himself to reimburse or indemnify any parties in connection with this application at the 15 1"""\ ,-, INSTITUTE VERBATIM September 30, 1985 same time, John Roberts isn't going to waive any of his rights with respect to development, land use on that property out there with the exception of what John Roberts has already agreed to do, and that is agree along with the Institute that that property will be master planned at one time as a single unit. We have agreed to that and Paul has written it up very carefully. Tonight, at least, without more careful consideration, I cannot agree to any of that ????remain prov ision. Thank you Art. Any comments Spencer. Yes, Mr. Mayor. I think that what this is is evidence of overkill or at least attempting to overkill a si tua tion. We feel, and I represented at the last hearing, that Ordinance #20, Series of 1985, the SPA ordinance gave you sufficient insurance against what all the expressed concerns were. However, we were in agreement with the recommendation of the planning office and what Paul took on himself to draft. We have worked very carefully and closely with Art and with Paul to come up with language that is satisfactory to the city, you're well protected, you are more than well protected. I think what this is designed to do is to cause further delay because we can't agree to this tonight. We'll have to go back to the table, and STIRLING SCHIFFER 16 ~ ;-., ~ INSTITUTE VERBATIM September 30, 1985 as Paul pointed out, when you get lawyers sitting around a table and you try and redraft a document every word has meaning and it's going to ta ke us at least another week, maybe longer, to work out these concerns expressed concerns by Dwight on behalf of his cl ient, which I think are more than sUfficiently addressed, not only in the ordinances you have on the books but moreoever by what Paul has very aptly drafted Thank you very much. Yes sir, Nick McGrath. From the start in the first letter that we presented to you, Concerned Citizens of the West Side, we did suggest a provision, not as broad as Dwight has drafted today, asking the Institute for a specific waiver. The Institute has shown, at least in the past, its proclivity for suit. Naturally, we hope there's a change of attitude and atmosphere on its behalf, but of course, one doesn't draft with that kind of anticipated change in mind. So, all things being equal, I think my group would prefer a specific waiver, but that was raised, it was raised to Council STIRL ING MC GRATH in my letter. It does not seem that it was part of the consensus and therefore, I do have a little difficulty in reviewing broad language. While I'd like to have something along those lines, if it wasn't part of what everybody agreed to before, it's pretty hard to add it 17 ,-" fi INSTITUTE VERBATIM September 30, 1985 later. If I thought there were three solid votes for putting it in, I'd probably push a little harder. But I think one has to be practical after one engages in a lot of negotiation, I think we came pretty far and got a lot of protection, so generally we're pleased with it. STIRLING Thank you very much Nick. Any other comments at the Council table. My own feeling is that the documents we have before us sUfficiently protect the city and sufficiently reflect what was decided a week ago and I think the key parties here are the applicant, which is represented by Spencer Schiffer, and Paul Taddune, our counsellor's recommendation, in this particular case who has been part of all this drafting, and secondly, the other owner of the property who is represented tonight by Art Daily. My urging would be to go ahead and pass the statement of exception or the resolution as extracted before us here tonight. Tommy? ISAAC I just wanted to ask Paul, and get his opinion, do you feel that we're substantially covered from any litiga- tion arising from this resolution, or do you think we need a clause in there. TADDUNE Well I've discussed this issue with counsel. It's always nice to have as much protection as you can get. The extent to which you can exact a legal right from 18 1"""\ f'\. INSTITUTE VERBATIM September 30, 1985 somebody as opposed to something that you have an abil ity to determine as a matter of your discretion becomes something for a court to determine. When you extract legal rights, then you're giving somebody the opportunity to say that that extraction was illegal and there was no other al ternative but to agree, and that's why I haven't insisted upon that kind of an exaction. Because you're not going to find a judge in this country who is going to say that you don't have a right to come into the courthouse and complain about something. And this language is designed to try to prevent somebody from going to the courthouse and compl ain about something. STIRLING I don't think there's any waiver that anybody yet has dreamed up no matter how many years of practice or law school that is going to prohibit litigation at some point. I just haven't seen it yet from my experience. Some of the minor changes, Dwight, for example on page 2 of the statement of exception, what was recommended since you saw the most recent draft was that the word "owner" was just deleted, it was just deleted. So some of the changes you are recommending have al ready been sort of done, in terms of the language. My recommenda ti on woul d, I woul d call for the question unless there's any other discussion. Chic? 19 1"""\, t'1 INSTITUTE VERBATIM September 30, 1985 COLLINS That was a question I had, it seems like there's a fair number of differences between the statement of exception that Dwight referred to and the one that was handed out a few minutes ago. Let me tell you a little bit about the process. We haven't had a chance to look at this yet, which is the one that was just handed out to the council. Let me tell you a little bit about the process, and you can decide how you want to go about it. First of all, after we listened to what the Council and the applicant had to say last week, we put together what we thought was a draft resolution and a statement of exception. Those drafts were circulated to all the counsel who are appearing here. Changes were sug- gested, and Dwight was one of the first to suggest changes. His changes went out for comment. The redraft got circulated to all counsel. Then the Institute came in with some changes on Friday, and the Aspen Mountain Joint Venture commented late Friday. This morning we got the reaction of the applicant, the Institute, Spence Schiffer, and we got consensus on language. At about 11 o'clock the final was drafted and was circulated to all counsel who appeared. There was consensus among the Institute, there was consensus among Roberts, Nick McGrath had an opportunity to look TADDUNE COLL INS TADDUNE 20 I"". ti INSTITUTE VERBATIM September 30, 1985 at it, the only one that didn't, unf ort una tely, was Dwight, and I guess after talking to the people he represents he decided that some addi tiona} language should be incorporated. So that's the reason you're getting it at this point. The only thing I should say, though, is that the idea of a waiver in my discussions with people who are looking at this thing from a legalistic perspective have always talked about the possibility of a waiver. I think that basically what you have here is something in terms of the pUblic record, something that can be characterized as a waiver. When you, in my opinion, exact from someone a legal right, then you give them something to complain about, and that has been my obj ection. Rather than come up with a subdivision approval, to come up with a contract between 3 people. COLLINS Why is the owner not required to be the applicant in this request. Usually when a subdivision exception or exemption is requested, the owner of the property comes in and asks for it. TADDUNE In this particular case, if you look at the memo we submitted, the owner of the option is the Institute, and we assumed that, there was a standing issue we were concerned about, whether or not the owner of that option can come in without concurrence by the owner of 21 INSTITUTE VERBATIM September 30, 1985 the unified parcel. That problem was resolved in di rection of standing because the Roberts' group concurred in the application. So we didn't have a legal impediment or we didn't have a legal issue that we had to address, it became moot because the Institute was making the appl ication and the Roberts' group was endor sing it. In the statement of exception, the signator ies are the Mayor for the city, and Mr. Roberts for the Aspen Mountain Joint Venture. The Institute is not a part of this? It should be, that's an oversight that I probably didn't pay any attention to because of the signature line, I just didn't review it. No the Institute is Good point, Chic. Seeing this kind of document quite often here at Council, usually the very first whereas sets the stage for the different parties involved, and I don't quite see that here, The Institute or the AIHS, hereafter, and the same thing with the city and also the other, and I think it should be clear that this is an agree- ment with all parties There's no question. That's always been the under- standing. Probably what happened is when this last draft went out that the signature line, if you look COLL INS TADDUNE STIRL ING COLL INS TADDUNE "...,. ",-.., 22 INSTITUTE VERBATIM at the STIRLING That's a good point, Chic, so there would be a signa- ture line for the Aspen Institute. I think so There's no question, they should have been the first signature. We read in the appl ication exemption and exception. Have we dropped exemption and it's strictly exception, under the Code. What you are doing is granting subdivision approval and excepting the application from the four step subdivision process. STIRLING So it is exception, we discussed that distinction last Monday. Okay, resolution and ordinance, now according to the Municipal Code, if there are any conditions placed on land that is subdivided, it has to be handled through, by ordinance, this is in the Charter. And I noticed on page 4 of the statement of exception, that if there are to be any changes, then they should be reflected by ordinance and should we impl ement these 2 documents by ordinance (tape over) The Charter provision that Chic is referring to is Section 4.8 of the Charter and what it says is that any limitation on the use of private property should COLL INS TADDUNE COLL INS TADDUNE COLL INS TADDUNE ""..... (""\ ( September 30, 1985 23 1""\ ~ j INSTITUTE VERBATIM September 30, 1985 be installed by ordinance. Now, what I construe that to mean is a pol ice power action, such as a zoning regulation, a building code, anything that ,"ould restrict the use of private property. Tradi tionally, before I was the city attorney and while Sandy was the city attorney, for the past 15 years, I'm not aware that subdivision applications have been approved by ordinance. If we construe Section 4.8 to require an ordinance in every subdivision situation such as this, then we've been doing something wrong for IS years, number 1. Number 2, the resolution is designed to address the requirement in Section 20-19(c) of the Code, which says that when you grant an exception or an exemption, the basis for the exception should be articulated on the record by motion duly adopted or by resolution of the city council. That I s why we have two documents. One is the resolution to satisfy that COLLINS why are you granting an exception question, and the second is that's the reason why The Charter reads, if I may, that "or placing any burden upon, or 1 imi ting the use of pr ivate property, shall be by ordinance", and it seems to me this is not a straightforward subdivision where the burden or the conditions limiting the use are not as evident as they are in this case because I think from the statement of 24 f'"', ,-. , j-'" INSTITUTE VERBATIM September 30, 1985 exception, we are imposing a fair number of I imi ta- tions. TADDUNE Now, let me just say, I don't look at what is happen- ing here as an exaction because you'll notice that the resolution and the statement of exception and declara- tion of covenants are drafted in such a way as that they have agreed, and they have made representations to induce the city council to act in a certain way, so you know, as much as possibl e under the ci rcumstances here, we tried to characterize what the applicant and what John Roberts has done as a offer to be burdened not as complained about STIRLING Chic, any other questions COLL INS Just one more thing. Originally when this came in, we had a letter from Holland & Hart and I'd just like to read a coupl e of sentences here. And that they, they took some exception to subdividing this parcel off and suggested "w ish to suggest that the reasons discussed below in the Institute reconsider its present position on the matter." Simply stated, "in the view of the Aspen Mountain Joint Venture the filing today of a naked subdivision application would not only be premature and counter productive, it would be contrary to the intent of the governing land use laws of the ci ty of Aspen." 25 r-i , ~. INSTITUTE VERBATIM September 30, 1985 STIRLING Would you like to respond to that, Art. DAILY That was John Roberts' initial position when he became aware that the Institute proposed to divide this land off, John Roberts responded to Don McKinley of the Institute and suggested to him that, in our view it would be wiser and make better planning sense to wait a year or so and allow us to do some master planning and incorporate the subdivision as part of the master plan. Don McKinley talked to Mr. Anderson and they concl uded they did not 1 ike our approach and they wished to pursue the subdivision exception or exemption application despite our preference. So things have gone by, and we have ultimately decided, John Roberts has ultimately decided to support the subdivision application, conditioned as you are now consider ing. STIRLING But that condition, the key condition, which is page 4 number 2" which is the unified development plan that ever would come forward, that's new since the time DAILY you wrote the letter representing the original Roberts posi tion. Essentially, yes it is. STIRLING Spence SCHIFFER I just want to add, if you read the rest of the letter, however, Mr. Roberts does say that "if, 26 r'\ r'\ INSTITUTE VERBATIM September 30, 1985 however, the Institute agrees not to present any development plans and to treat the parcel as a unified parcel under the SPA ordinance, we are fully in support of it". As a matter of fact, I quote "if this interpretation is accurate, the Institute's application will not, in fact, have any impact on potential development of the area since regardless of the separation of the underlying ownerships, the entire Aspen Meadows property will still have to be master planned at the same time". Paul Chic, in furtherance of some of the questions you are asking, a lot of these things involve the prerogative of Council. For example, if you feel that this should be by ordinance rather than by resolution, I don't think there is anything in the Code that prohibits you from doing it that way, Number I. Number 2, whether you grant the exception is really a matter of discre- tion that is exercisable by the city Council. If you don't feel that a subdivision exception is appropriate under the circumstances, then 'You have the prerogative to deny the exception at this point, and refer it back to the planning and zoning commission. So what I've attempted to do is articulate what I see to be the Council's concern, in trying STIRL ING TADDUNE 27 I""', ~ INSTITUTE VERBATIM September 30, 1985 STIRLING Okay. Chic, another comment, sir. COLLINS what I was seeking is to get some assurance, you know, that in this agreement we're not leaving the door open for some kind of legal action in the future in which the city would be involved in. In looking at this thing, and I don't mean this particul ar appl ication, looking historically over some of these more compl i- cated agreements in terms of land use and subdivision and so on over the years, it is not uncommon that the intent is questioned somewhere down the line and there's legal action. But I think if we've got assurance, that's fine. Charlotte STIRLING WALLS It's becoming cl ear to me that thi s is not one of those simple lines, drawing of lines that this one step procedure is supposed to be, was originally drawn up for. I'm wondering if we shouldn't send it to P & Z and have them go through the regular procedure because this seems to be a lot more controversial than it was presented to us at the beginning, and that's the kind of case that really should go through P & Z rather than taking advantage of this one step proce- dure. Most of these that we have taken up in this one step city Council meeting in reSOlution, have been cases where land was originally drawn in old city lots 28 11 i"""\ ) INSTITUTE VERBATIM September 30, 1985 that were owned by only one person and in the down- zoning they were put together and people now want to separate them. And we allotted to do that because it was not a very controversial thing to do. It didn't have a lot of impact on the neighbors. STIRLING Though this Council did reject three of those very simple lots sp1 its that you're describing in the west end. WALLS I didn't consider those simple redrawing of lines, which is the reason I had for rejecting it. Thi s i s not a redrawing of lines, this is controversial, look at all these people we have here because of this. STIRLING Some are waiting for other agenda items because we're behind. WALLS They were certainly here the other night. I'm wonder- ing if we shouldn't just drop this right now and send it to P & Z and see what they say about it, get their recommendation before we take any action. STIRLING I don't think we need to do that, Charlotte. I think we are in a posi Hon to be able to act on it tonight, and I think it would be redundant to do that. Spencer, comment, sir. SCHIFFER Yes, thank you Mr. Mayor. We have had a public hearing on this. This really is a simple drawing of lines. As we pointed out in the application, reit- 29 ,I""'-. 1"'\ INSTITUTE VERBATIM September 30, 1985 erated, it came out of the public hearing over and over again, the only purpose for this application is so that the Institute can compl ete record ti tl e. There are no development plans, and as I said the last time around, I think that you are adequately covered and insured by reason of the Ordinance No. 20, Series of 1985, the SPA ordinance. However, this has become more complicated, it would seem to be more complicated in response to what I see are unreali stic concerns of people about the possibility that the parcels would be separately developed at some point in the future. So we have attempted to address those concerns, working in concert wi th the owner of the other part of the property, and the city attorney STIRLING And the attorneys who have raised objections as well, too. SCHIFFER And the attorneys who have raised objections. Most of the people who came and spoke that night, did not speak in opposition to what we plan on doing tonight or have presented to you, and that is a resolution which would treat it as one unified parcel for develop- ment purposes, for all development purposes. I might add, also in response to Chic's concerns, about ordinance versus resolution or motion, Section 20-19(d) specifically gives you the authority to pass this 30 f"" f") INSTITUTE VERBATIM STIRLING DUNAWAY STIRL ING ISAAC STIRL ING STIRLING September 30, 1985 resolution or motion, exemption or exception by duly adopted. I think there has to be reliance here. We went through a full public hearing and heard from many people. Most people who spoke that night urging us to go ahead The Council did decide Let me finish, Bil, and we made a decision that night, and what we're doing tonight is simply just cOdifying the language, and I think there just has to be reliance here, Charlotte, we've already gone through, and I don't think there's the need to do it, and I think what we need to do is act tonight on Resolution 24 and I woul dcall for the question. Is there a second for calling the question. Second. All in favor, motion carried. All those in favor of adopting Resolution No. 24, Series of 1985, as presented to us tonight signify by say ing aye. Isaac, Fallin and Stirling in favor, Walls and Collins opposed. It pa sse s 3 to 2. Thank you very much Paul. Thank you very much for all participants tonight for coming and for all the observations and suggestions. 31 ^ INSTITUTE VERBATIM All in favor "f'.' " i""""\ September 30, 1985 I 32