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HomeMy WebLinkAboutresolution.council.143-24RESOLUTION #143 (Series of 2024) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A SETTLEMENT AGREEMENT TO RESOLVE AN EXISTING APPEAL AND DISPUTES REGARDING AN APPLICATION FOR DEMOLITION ALLOTMENT PURSUANT TO ORDINANCE #13, SERIES OF 2022 AND ORDINANCE #23, SERIES OF 2023 AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID SETTLEMENT AGREEMENT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance #13, Series of 2022 (Ordinance #13). Ordinance #13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance # 13 was a restriction on the number of demolition allotments that would be issued each year; and, WHEREAS, Ordinance # 13 included Growth Management Quota System amendments that provide a can of six (6) standard Demolition Allotments per year, and stated that such all would be granted on a first come/first served basis; and, WHEREAS, Ordinance #13 provided for up to two (2) additional Demolition Allotments for local property owners who were not granted a Demolition Allotment due to lack of allotments for the calendar year, and, WHEREAS, pursuant to Ordinance # 13, Council may award up to two (2) allotments from future years to property owners denied an allotment due to a lack of allotments in any calendar year if the property owner can establish that the property proposeI for redevelopment has been owned and occupied by the applicant or applicant's immediate family members for at least 35 years (referred to herein as a "local allotment"), and, WHEREAS, pursuant to Ordinance #23, Series of 2023 (Ordinance #23), a lottery system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance #23 created two additional Demolition Allotments for 2024, thus allowing four Demolition Allotments to be distributed by lottery; and, WHEREAS, on January 9, 2024, Council approved Resolution #006, Series of 2024, to `carry forward' two unused and unclaimed local allotments, thereby creating four local allotments available in 2024; and, WHEREAS, numerous applicants participated in the lottery that was conducted on February 2092024 and, WHEREAS, all available 2024 demolition allotments were awarded through the lottery conducted on February 20, 20244 and, WHEREAS, Council awarded four 2024 local allotments via Resolution #'s 27, 55, 69 and 70, Series of 2024; and, WHEREAS, the Jerome L. Blumberg Revocable Trust and Suzanne J. Blumberg Revocable Trust, by and through its trustees, ("applicant") filed an application for a 2024 demolition allotment for property commonly known by address as 232 McSkimming Road, in Aspen, Colorado subsequent to the February 20, 2024, lottery and award of the 2024 local allotments; and, WHEREAS, the applicant provided sufficient evidence to qualify fora 3 5+ year local all pursuant to section 26.470.110.G; and, WHEREAS, the Community Development Director issued a Notice of Denial to the applicant on the grounds that there were no 2024 allotments available; and WHEREAS, the applicant timely filed a notice of appeal of the Notice of Denial pursuant to Section 26.470.160.C, which appeal is presently pending before City Council; and, further WHEREAS, the City staff and the applicant desire to resolve the appeal and any disputes that could arise involving the City and the applicant concerning this application and appeal; and WHEREAS, there has been submitted to the City Council a Settlement Agreement, which if approved by the City Council would resolve this appeal by granting to the applicant a 2025 local demolition allotment on the terms set forth within the Settlement Agreement. The proposed Settlement Agreement is attached hereto as Exhibits 'All NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO9 That the City Council of the City of Aspen hereby approves the Settlement Agreement attached hereto as Exhibit "A" and does hereby authorize the City Manager to execute said Settlement Agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 3rd day of December 2024. Torre, Mayor I, Nicole Henning, 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 Aspen, Colorado, at a meeting held December 3,424, Nicole Henning, Clerk Docusign Envelope ID: 7C4C06E2-E119-4E6E-A6B9-39AF439AAA62 SETTLEMENT AGREEMENT �/ This Settlement Agreement (the "Agreement") is entered into this��day of I t�� � 2024 (the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City") and Jerome L Blumberg Revocable Trust and Suzanne J. Blumberg Revocable Trust ("Applicant"). The above -named entities and individuals may hereafter be collectively referred to as the "Parties", and each entity or individual may be separately referred to as a "Party". i RECITALS WHEREAS, Applicant is the owner of the real property legally described as Lot 2, Block 2, Aspen Grove Subdivision; Pitkin County, Colorado ;and also commonly known as 232 McSkimming Road, Aspen, Colorado 81611 (the "Property"); and WHEREAS, the Applicant and the Applicant's predecessor's in interest first purchased the Property and single-family home on May 2, 1979 pursuant to a Warrant Deed recorded at Reception No. 214179 in the records of the Pitkin County Clerk and Recorder; and WHEREAS, on June 28, 2022, Aspen City Council adopted Ordinance No. 13; Series of 2022 (Ordinance #13}. Ordinance #13 provided numerous code amendments following the institution of a moratorium adopted by Council on March 15, 2022, pursuant to Ordinance #6, Series of 2022. Among the items adopted pursuant to Ordinance # 13 was a restriction on the number of "Demolition Allotments" that would be issued each year; and, WHEREAS, Ordinance #13 included Growth Management Quota System amendments that provide a cap of six (6) standard Demolition Allotments per year, and stated that such allotments would be granted on a first come/first served basis. Pursuant to previous action by City Council, four of the six available 2024 Demolition Allotments had been issued in 2023; and, WHEREAS, furthermore, Ordinance # 13's amendments provided for up to two (2) additional Demolition Allotments for local property owners who were not granted a Demolition Allotment due to lack of allotments. for the calendar year. WHEREAS, pursuant to Ordinance No. 23, Series of 2024 (Ordinance #23), a lottery system was adopted by City Council to distribute Demolition Allotments. In addition, Ordinance #23 created two additional Demolition Allotments for 2024, thus allowing four Demolition Allotments to be distributed by lottery. WHEREAS, a lottery was held on February 20, 2024, and pursuant to such lottery, four properties, not including the Property, were deemed eligible for 2024 Demolition .Allotments; and, WHEREAS, -after the lottery and award of all available �2024 Demolition Allotments, the Applicant submitted its application fora 2024 Demolition Allotment on or about May 29, 2024, for the Property. The application was deemed complete. 1318956.1 10/23/14 Docusign Envelope ID: 7C4CWE2-E1194HE-A6139-39AF439AAA62 WHEREAS, all Demolition Allotments for 2024, including the two additional Demolition Allotments for local owners, have been awarded, leaving no available Demolition Allotments for this calendar year. WHEREAS, since Applicant was not deemed eligible for a 2024 Demolition Allotment, it was issued a letter of denial, and, WHEREAS, pursuant to Section 26.470.160 C. and Chapter 26.316 of the City's Land Use Code, the Applicant timely filed a notice of appeal of the denial of Applicant's application for a 2024 Demolition Allotment. The appeal is presently pending before the City Council; (the "Appeal"); and, ti'VHEREAS, the Applicant meets the definition of a local, and is thus eligible for an additional local demolition permit granted by Ordinance #13; and, WHEREAS, the Parties have reached an agreement to settle their disputes and desire to reduce the terms and conditions of their agreement to writing for consideration by City Council; and, WHEREAS, the intent of this Agreemer�c is to amicably and finally resolve all claims the Parties may have against each other in accordance with the terms of this Agreement; and, �%'VI�REAS, the Aspen City Council finds that this Agreement furthers and is necessary for the promotion of public health, safety, and welfare; and, is in the best interest of the City, the Applicant and the Community as a whole. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the parties agree as follows. 1. Appeal Requirements. The appeal was filed pursuant to Section 26.470.Ib0 C., of the Land Use Code, awhich states as follows: Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's development allotments have been entirely allocated may appeal to the City Council for development approval. An application requesting allotments must first be denied due to lack of necessary allotments. The appeal procedures set forth at Chapter 26.316 shall apply. The City Council may take any such action determined necessary, including but not 2 Docusign Envelope ID: 7C4CME2-El19-4H&MBMMF439AAA62 limited to making a one-time increase of the annual development allotment sufficient to accommodate the application. As noted therein, the appeal procedures set forth in Chapter 26.316 shall apply. That Chapter states in Section 26.316.030 (f), as follows: Action by the decision -making body hearing the appeal. The decision - making body hearing the appeal may reverse, affirm or modify the decision or determination appealed from and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision -making body may also elect to remand an appeal to the body that originally heard the matter for further proceedings consistent with that body's jurisdiction if any, by the body hearing the appeal. The decision and directions given, shall be approved by written resolution. All appeals shall be public meetings. In addition, any project granted a Demolition Allotment must comply with the provisions of the Residential Demolition and Redevelopment Standards (Demolition Standards) adopted pursuant to Ordinance # 13 . Such Demolition Standards provide, among other requirements, that "[a]II projects are required to source separate non -hazardous waste materials and divert a minimum of 35% by weight, from the landfill." 2. Resolution of Appeal. The City Council has the authority to resolve an appeal that has been submitted to it through hearing or agreement. In this instance, this Agreement is submitted as a proposed resolution of the appeal. By accepting the proposed Agreement, the City Council is not concluding that the Applicant has met its burdens of appeal set forth in Chapter 26.316. This proposed resolution is being accepted as a compromise to a disputed matter and is deemed in the best interest of the City of Aspen. 3. Grant of a Multi -Year Allotment. As noted in paragraph 1, above, Section 26.470.160 C., allows the City Council, as part of the resolution of the appeal to "take any such action determined necessary, ... sufficient to accommodate the application." Therefore, subject to conditions set forth herein, the City Council hereby grants to the Applicant a 2025 local property owner Demolition Allotment as authorized by Section 26.3470.110(g) subject to all the terms and conditions set forth herein. 4. Disposition of Claims. In consideration of the City's issuance of a 20251oca1 property owner Demolition Allotment to Applicant, Applicant agrees that it will comply with all provisions of the Demolition Standards, as amended from time4o-time prior to submission of an application for issuance of a demolition permit. 5. Release. All appeals of the Applicant shall be deemed withdrawn and any and all other claims raised by the Applicant in the appeal shall be dismissed by the Parties, with prejudice, with each Party to pay its own costs and fees. Further, it is acknowledged that this Agreement is a compromise of.disputed claims and shall not be construed as an admission on the 3 -- Docusign Envelope ID: 7C4CWE2-E1194HE-A6139-39AF439AAA62 part of either Party of the validity, or lack thereof, regarding or concerning any claim or defense asserted by either Party in the appeal described above. In consideration for and upon full and timely completion of the provisions of this Agreement set forth above, the Parties for themselves and their successors, representatives, agents, heirs and assigns will completely release and forever discharge the other of and from any and all past, present or future claims, demands, obligations, actions and causes of action of any nature that were, or could have been brought in the appeal or subsequent litigation relating to this matter. However, such release shall not release Applicant from the requirements of any applicable City Codes required for development activities resulting from the receipt of the Demolition Allotment. 6. Covenant Not to Sue. Except to enforce the express obligations of the Parties under this Agreement, each Party covenants, as of the Effective Date, not to institute any action or proceeding against the other Party related to the matters released above, or to cause such Party to be j oined or substituted as a party in any other lawsuit or proceeding, or at all arising out of or in connection with the released claims. 7. Further Assurances. Each Party to this Agreement shall execute and deliver any and all additional papers, documents, and other assurances, and shall do any and all acts and things reasonably necessary or appropriate in connection with the performance of his/her/its obligations hereunder and to carry out the intent of the Parties hereto, and to correct or modify in good faith any errors or omissions which shall subsequently be discovered following the Effective Date. Each Party to this Agreement agrees to cooperate to the extent necessary and appropriate to effectuate all terms and conditions of this Agreement followinfew g the Effective Date. 8. Authori .The Parties represent and warrant that they possess the sole and full authority to enter into this Agreement free of any rights of settlement, approval, subrogation, or other condition or impediment. Each Party represents and warrants that the entry of this Agreement or performance of any obligation called for hereunder does not violate any contractual or other obligation by which it is bound. However, the Parties acknowledge and agree that the execution of this Agreement by the City is specifically subject to the approval of this Agreement by the Aspen City Council as set forth in paragraph 9, below. It 9. Approval by City Council, The Parties agree that the current appeal remains valid but stayed until this agreement is approved by the Aspen City Council by Resolution at a public meeting, which approval shall be at the sole and absolute discretion of City Council. If a Resolution of approval is not adopted on or before December 17, 2024, this agreement and all terms and conditions set forth herein shall be deemed void ab Who, In such event, the parties have agreed that the original appeal hearing shall be held before the City Council on date mutually agreed to by the Parties. 10. Runs With the .Land; Recording. This Agreement shall be a benefit and a burden on the Property and shall run with the land.. This Agreement may be recorded in the Pitkin County records by either Party. 11. Nonreliance. The Parties to this Agreement expressly assume the risks that the facts or law may be, or become, different from the facts or law as presently believed by the Docusign Envelope ID: 7C4C06E2-E119-4E6E-A6B9-39AF439AAA62 Parties. The Parties represent that they have had the opportunity to consult with, and/or have consulted with, counsel regarding this Agreement. 12. Entire Agreement. The Parties represent and agree that no promise, inducement, or agreement other than that expressed herein has been made to them and that this Agreement is fully integrated, supersedes all prior agreements, understandings, statements or representations and contains the entire agreement between them with respect to the subject matter hereof. 13. Voluntary and Informed Assent. The Parties represent and agree that they have read and fully understand this Agreement, that they are fully competent to manage their own personal and business affairs and to enter into and sign this Agreement, and that they are executing this Agreement voluntarily, free of any duress or coercion. 14. Governing`Law, Forurn and Attorneys' Fees. The laws of the State of Colorado shall apply to and control any interpretation, .construction, performance or enforcement of this Agreement. Any action. or proceeding to construe or enforce this Agreement, or to recover damages for its breach, shall be brought in the District Court for Pitkin County, Colorado and the Parties consent to the exercise of that Court's jurisdiction over them. In the event any litigation or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, default, misrepresentation, or breach in connection with any of the provisions of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs and expenses actually incurred in initiating or responding to such proceeding, j in addition to any other relief to which such Party may be entitled. 15. Construction. This Agreement shall be construed as if the Parties jointly prepared them, and any uncertainty or ambiguity shall not be interpreted against any one party. 16. Modification. This Agreement shall not be modified except in writing signed by the Parties or their authorized representatives. 17. Severability. The Parties agree that if, for any reason, a provision of this Agreement shall be held unenforceable by any court of competent jurisdiction this Agreement shall be automatically conformed to the law this Agreement shall continue in full force and effect. 18. Headin;;s. The headings of paragraphs herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement. 19. Counterparts. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement binding on all Parties hereto, notwithstanding that all the parties are not signatories to the original or the same counterpart. Facsimile or electronic signatures shall be accepted the same as an original signature. A photocopy of this agreement may be used in.any action brought to enforce or construe this Agreement. 20. No Waiver. No failure to exercise and no delay in exercising any right, power or remedy under this Agreement shall impair any right, power or remedy which any Party may Docusign Envelope ID: 7C4CME2-E119-4HE-A6139-39AF439AAA62 have, nor shall any such delay be construed to be a waiver of any such rights, powers or remedies or an acquiescence in any breach or default under the Agreement, nor shall any waiver of any breach or default of any Party be deemed a waiver of any default or breach subsequently appearing. THE CITY OF ASPEN, a Colorado municipal corporation DocuSigned by: Date: 12/11/2024 � 2:58:46 PM P S D214EE1942B... City Manager The Jerome L. Blumberg Revocable Trust and Suzanne J. Blumberg evo able Trust r' By: Jer e Blumberg Date: