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HomeMy WebLinkAboutminutes.council.19970210Asoen City Council Regular Meetin~ February 10, 1997 Mayor Bennett called the meeting to order at 5:05 p.m. with Councilmembers Marolt, Waggaman, Richards and Paulson present. OUTSTANDING EMPLOYEE BONUS AWARDS Mayor Bennett and Council presented orestanding bonus awards to Jim Considine, data processing department; Tabatha Miller, finance department; Jerry Nye, streets department, and team awards to Mark O'Meara and Charlie Bailey, water department, and Dean Railsback and Carolyn Herwick, streets department. CITIZEN PARTICIPATION There were no comments. COUNCILMEMBER COMMENTS 1. Mayor Bennett said last week was an Elected Official Transportation meeting and also a meeting Friday with 11 governments and state agencies on transportation. The meeting was very exciting and gratifying. 2. Amy Margerum, city manager, reminded Council there is a special meeting tomorrow, Tuesday, February 11 at 4 p.m. on potential litigation. CONSENT CALENDAR Councilwoman Waggaman moved to read Ordinance #7, Series of 1997; seconded by Councilwoman Richards. All in favor, motion carried. ORDINANCE #7 (Series of 1997) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING THE ANNEXATION OF CERTAIN TERRITORY TO THE CITY OF ASPEN, COLORADO, TO BE KNOWN AND DESIGNATED AS THE "HALLAM LAKE PARCEL" ANNEXATION was read by the deputy city clerk Asoen City Council Regular Meetin~ February 10, 1997 Councilwoman Richards moved to adopt the consent calendar; seconded by Councilman Paulson. The consent calendar is: Minutes - January 27, 1997 Ordinance #7, 1997 - Hallam Lake Annexation Resolution #9, 1997 - Contract Oklahoma Flats Bridge Resolution # 10, 1997 - Contract Water Place Housing Construction Appointment To Kids First Board - Amy Maron Roll call vote; Councilmembers Marolt, yes; Waggaman, yes; Richards, yes; Paulson, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #1, SERIES OF 1997 -Historic Designation 17 Queen Street Chris Bendon, community development department, said staff and P & Z recommend adoption of historic designation for 17 Queen street. There is a historic house which was designated in 1990. The applicant wants to designate the entire parcel in order to take advantage of the historic landmark lot split. Staff also recommends a $2,000 landmark grant and waiver of park dedication fees for fitture development of the property. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilman Paulson moved to adopt Ordinance #1, Series of 1997, on second reading; seconded by Councilwoman Richards. Roll call vote; Councilmembers Marolt, yes; Waggaman, yes; Mayor Bennett, yes; Richards, yes; Paulson, yes. Motion carried. ORDINANCE #2, SERIES OF 1997 - LP Map Amendments, Rezoning Suzanne Wolff, community development department, told Council this ordinance is a follow up to Council's work on small lodges, conversions, and change in use. This ordinance rezones all the properties currently zoned lodge preservation to the most appropriate underlying zone district with an LP overlay. The ordinance lists 2 Asoen City Council Regular Meetin~ February 10, 1997 these properties and the zone to which they will be rezoned. Ms. Wolff said this rezoning provides the opportunity for existing lodges to expand or to convert to residential, commercial or office uses. Ms. Wolff said this rezoning is consistent with the criteria in the code. Staff and P & Z recommend approval of these rezonings. Councilwoman Richards questioned the rezoning to RMF for the Copper Horse and Alpina Haus as they were purchased by the developer of the Ritz and were permanently deed restricted. Ms. Wolff told Council staff zoned these to the most appropriate district and did not discuss zoning them AH. John Worcester, city attorney, said the zoning will not change the deed restriction and as long as AH is a permitted use, it does not make any difference. Ms. Wolff told Council in the existing AH zone there are no dimensional requirements. Part of rezoning these to the underlying zone district is that the development is subject to the zone district' s dimensional requirements. If the lots were zoned AH, staff would have to go through some process to establish dimensional requirements. Council agreed to leave the ordinance as written. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilwoman Waggaman moved to adopt Ordinance #2, Series of 1997, with the recommendation to the community development department to review the attached list with affordable housing ramifications; seconded by Councilwoman Richards. Roll call vote; Councilmembers Marolt, yes; Paulson, yes; Waggaman, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #4, SERIES OF 1997 - Aspen Meadows Lot 5 Vested Rights Extension Julie Anne Woods, community development department, told Council this is a vested rights and GMQS extension for the trustee townhomes at the Meadows owned by the Aspen Institute. Staff recommends approval of the extension, taking this to June 1997. Since first reading, the engineering department added some conditions, some of which have already been taken care of. The condition still being requested is that the applicant will plant 15 - 20 more trees along Meadows road by October 15, 1997. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. 3 Asoen City Council Regular Meetin~ February 10, 1997 Gideon Kaufman, representing the applicant, said they hope to get an early start this spring and not have to interfere with the Institute' s summer programs and not have to request another extension. Councilman Paulson moved to adopt Ordinance #4, Series of 1997, on second reading, as amended; seconded by Councilwoman Richards. Roll call vote; Councilmembers Marolt, yes; Waggaman, yes; Richards, yes; Paulson, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #5, SERIES OF 1997 - Aspen Meadows Lot 6 Vested Rights Extension Julie Anne Woods, community development director, told Council this property is owned by Savanah Limited Partnership. They are also requesting an extension of vested rights and GMQS for 7 new multi-family units. Staff recommends approval of this extension and to take out the conditions that have already been met. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilwoman Richards said the applicant would like the construction of the trail and the homesite occur at the same time. Councilwoman Richards said this trail has been put off time and again and she would like to see it built by June 19, 1997 unless the parks department has some objection to that. Councilwoman Richards moved to adopt Ordinance #5, Series of 1997, on second reading as amended deleting section 1, paragraphs 3, 4, and 5; seconded by Councilman Paulson. Roll call vote; Councilmembers Marolt, yes; Waggaman, yes; Mayor Bennett, yes; Richards, yes; Paulson, yes. Motion carried. ORDINANCE #8, SERIES OF 1997 - Land Use Code Amendments Councilwoman Waggaman moved to read Ordinance #8, Series of 1997; seconded by Councilwoman Richards. All in favor, motion carried. ORDINANCE #8 (Series of 1997) 4 Asoen City Council Regular Meetin~ February 10, 1997 AN ORDNANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN AMENDING TITLES 20 AND 26 OF THE ASPEN MUNICIPAL CODE TO WIT: SECTION 20.08.020 CERTIFICATE OF COMPLIANCE/EXEMPTION SECTION OF THE MULTI-FAMILY HOUSING REPLACEMENT PROGRAM; SECTION 26.04.100 DEFINITIONS FOR KITCHEN, BEDROOM, TATTOO PARLOR, ARTIST' S STUDIO, YARD, AND FLOOR AREA; SECTION 26.28.010 GENERAL PURPOSE SECTION OF THE ZONE DISTRICT REGULATIONS; SECTION 26.40.080B AND 26.40.120 MISCELLANEOUS PROVISIONS AND OUTDOOR LIGHTING; SECTIONS 26.40.0903E AND 26.40.090A.C ACCESSORY DWELLING UNITS; SECTIONS 26.58.040f. 1 AND 26.58.040.F.4.c RESIDENTIAL DESIGN STANDARDS; SECTIONS 26.68.02, 26.68.030B, 26.68.050B, 26.68.030B.4. AND 26.68.040.C6, 26.68.060.B DEVELOPMENT IN ENVIRONMENTAL SENSITIVE AREAS (ESA) EXEMPTIONS; SECTION 26.68.040.C.2 STREAM MARGIN REVIEW EXEMPTION; SECTION 26.88.030.A.2.b SUBDIVISION EXEMPTION; SECTION 26.92.030 PROCEDURE FOR AMENDMENT TO THE OFFICIAL ZONE DISTRICT MAP; SECTION 26.100.050.A. 1 .a AND 26.102.040.a.5.d.2 GMQS TIMING OF EXEMPTION REQUEST PROCEDURES was read by the deputy city clerk Mary Lackner, community development department, told Council these are mostly clarifications. The only new section relates to outdoor lighting which would disallow lighting spilling over properties lines. This should address light spilling into neighbors' windows. This will be enforced through the zoning officer. This is a new standard of the code and development will have to comply with it. John Worcester, city attorney, pointed out there will be some subjectiveness in enforcement of this section. Councilwoman Richards suggested that procedure and enforcement is included for Council at second reading. Mayor Bennett asked about the applicability of this section to the city' s antique lights. Councilwoman Waggaman said these can be painted inside the globe. Worcester said it will be difficult to have any street lights that do not shine into adjacent properties. Councilwoman Waggaman said that light that illuminates walkways should not be found illegal. Councilman Marolt asked how this would affect the holiday lights on trees. Mayor Bennett said it is not the intention to ban blinking holiday lights. Councilman Paulson suggested date and time limitation on lights. Worcester Asoen City Council Regular Meetin~ February 10, 1997 suggested the oredoor lighting be eliminated from this ordinance and it can come back as a separate ordinance. Councilman Marolt said the definition of a tattoo parlor seems as if it will eliminate it from the S/C/I zone. Councilwoman Richards recalled Council felt a tattoo parlor did not meet the definition of an artist' s studio and received a temporary permit for 6 months to be in the S/C/I zone. Worcester said this not an attempt to include tattoo parlor in any zone but just to define it in the land use code. Councilman Marolt questioned the definition of "long term resident" at 6 months. Worcester said the attempt is to better define what 6 months means, not the length itself. Council said one issue is short term rentals in residences, which is not legal in most zone districts of the community. Bed and breakfast uses are allowed in some districts as a conditional use. Councilwoman Richards asked abom the procedure for the certificate of exemption. This does not state from whom it is obtained. Councilwoman Richards asked about the accessory dwelling unit separated from a principle structure by 10 feet maximum footprint of 450 feet shall be calculated at 50 percent up to 700 square feet, why isn't this up to 900 square feet or twice 450 square feet. Ms. Lackner said ADUs are permitted between 300 and 700 square feet so the bonus is half of what is allowed. Councilwoman Richards said the AACP called for looking at larger ADUs to encourage families. Councilwoman Richards asked if there has been a follow up to that recommendation. Ms. Lackner said this section was inadvertently left out of the code during an ordinance adoption of 1996. Councilwoman Richards said in earlier discussions, she thought that Council had agreed that the definition of an artist' s studio was specifically not crafts related to personal adornment, like hair salons, manicures. Councilwoman Richards suggested the ordinance be changed to delete "craftsperson" and to add "specifically not crafts related to personal adornment". Councilwoman Richards requested staff look at the pros and cons and bring this back at second reading. Councilwoman Richards said she does not have problems with exemptions of the community development director; however, the public notification process is very important. Ms. Lackner said this is a clarification of another section of the code. An earlier provision outlines the notification process. 6 Asoen City Council Regular Meetin~ February 10, 1997 Mayor Bennett questioned the definition of bedroom. Ms. Lackner reminded Council the park dedication fee is based on per bedroom. If people label rooms study, media room, library, there are fewer bedrooms to be calculated for the fee. Councilwoman Richards moved to adopt Ordinance #8, Series of 1997, on first reading deleting Section 11 referring to outdoor lighting; seconded by Councilman Paulson. Roll call vote; Councilmembers Marolt, yes; Waggaman, yes; Mayor Bennett, yes; Richards, yes; Paulson, yes. Motion carried. APPEAL OF THE JOINT GROWTH MANAGEMENT COMMISSION SCORING - Stage 3 Suzanne Wolff, community development department, told Council the applicant, Stage 3, has submitted an appeal of the growth management commissions' scoring of the Stage 3 penthouse application and requests that the Council overturn the scoring based on a denial of due process. Ms. Wolff told Council one metro area residential GMQS allotment was requested to develop 1 flee market dwelling unit above Stage 3 theatre. This is the application for the 1996 competition. There was a public hearing January 14, 1997. Staff presented recommended scores to the Commission and recommended that the Commission adopt these scores. The Commission determined they preferred to score the application themselves. The application exceeded the minimum threshold score in 3 of 3 of the scoring categories and did not receive the minimum threshold score in maintaining design quality, historic compatibility and community character. The allocation was denied. Ms. Wolff pointed om the attthority to review appeal is limited to determining whether there was a denial of due process or an abuse of discretion by the growth management commission. The basis of the applicant' s appeal is that the Commission did not complete all steps necessary to score a growth management application as specified in the Code and failure to complete these steps denied the applicant the opportunity to have the application fidly and properly considered by the commission and resulted in scoring errors by the members. The Code states that 2 scoring rounds will be held; preliminary and final. Only 1 scoring round was held during the public hearing in January. The Code does not require the Commission members to discuss or justify their scores between rounds, a second scoring round provides the members an opportunity to reconsider their 7 Asoen City Council Regular Meetin~ February 10, 1997 scores after discussion. The applicant was denied the possibility of revisions from the preliminary scoring round since the procedure was not followed and only 1 scoring was held. Council' s alternatives are to affirm the scoring of the Commission, or to overturn the Commission' s scoring. In this case, the applicant may file another appeal to the Council and Board of County Commissioners. This body has the attthority to remedy the Commission' s scoring by amending the number of points or by remanding the application back to the Commission. Ms. Wolff stated staff agrees with the applicant that the procedure was not followed and the scoring process may have been flawed. Staff is recommending that Council overturn the Commission' s scoring and allow the applicant to continue to the second appeal. John Worcester, city attorney, pointed out this is not an appeal to revisit the scoring but all Council needs to decide is whether or not due process was provided. Council is not getting the merits of the project itself. Alan Richman, representing Stage 3, introduced the Carisch's owners of the property. Richman requested Council review the record and find that a procedural error was made by the Commission in their hearing. Because of this error, the Code specifically attthorizes Council overturn the Commission's scoring. This will give the applicant the opportunity to appeal the matter to a joint hearing by Council and Commissioners who can remedy the problem by changing the scores, remanding the application, or any other remedy they may see fit. Richman said if Council reviews the minutes, they will see that the fidl scoring procedure was not completed by the growth management commission. They only completed 1 scoring of the application and did not go through the fidl procedure required by regulations; both a preliminary and a final scoring. Richman said with 2 scorings, there could have been other outcomes and the applicant could have received a higher score. Due to this error, the applicants were denied a fidl process outlined in the regulations. Richman pointed out at a following P & Z meeting, several Commissioners made comments about this process expressing their opinion that the process had not been complete and that the hearing needed to be finished. Richman said the applicants are seeking a chance for a required regulatory process to be completed. Richman said the applicant feel this process offers much to the community in employee Asoen City Council Regular Meetin~ February 10, 1997 housing and would like a chance to work with the neighbors on their concerns. In order to get to that step, the applicants have to get past the allotment issue. Richman said the joint Council and Commissioners may remand the project back to the growth management commission. If the project does get an allotment, P & Z still has parking special review, FAR bonus review, subdivision review and growth management review. There are opportunities for the public and the Commission to work with the applicant on the project. Worcester the issue before Council is only the process. Joe Edwards, representing Concept 600, stated they are in opposition to this application. Edwards said the question is what does "due process" mean. The applicant would have Council construe it as crossing every "t" as set forth in the city' s regulations, total and strict adherence to every concept in the code. Edwards stated that is not the definition of due process, which is a constitutional term and is a word of art. Edwards pointed out a case in Colorado which defined a procedural due process and states, "In order to establish a procedural due process violation, a plaintiff must prove that he or she was deprived of an opportunity granted at a meaningrid time and in a meaningrid manner for a hearing appropriate to the nature of the case". Edwards cited cases in his memorandum to Council that talk about how zoning proceedings are informal and one does not need strict rules of government evidence and requirement but only a review of fitndamental fairness. Edwards said this case got a fidl and vigorous discussion. Edwards said the applicants have complained they did not get the opportunity for the Commission members discuss amongst themselves the possible justification for their points between initial and second scoring. Edwards said in this case, staff recommended a score and Commissioner Hunt move that the Commission not have any scoring and adopt staff' s recommendation. Edwards said this procedure has been used before and not envisioned at all in the Code. There is no such procedure outlined, and it was about to happen. Edwards told Council this motion failed and then ensued a long discussion among Commission members on why they did felt staff' s score was insufficient, particularly in the fourth category. Edwards said this informational discussion, the explanation of the justification of why the Commission could not support the staff recommendation took place. During this time the applicant answered question. Edward said this was a hearing appropriate to the nature of the case. This meeting 9 Asoen City Council Regular Meetin~ February 10, 1997 lasted over an hour. Edwards submitted a fidl hearing did take place and it was fair. There was not an initial scoring and a subsequent one; there was fidl exposure. Edwards pointed om the applicant did not object to the termination of the hearing after the scoring process or ask for a second scoring. Edwards said the principles of Colorado law are that arguments that are not made in the initial hearing or objections to the proceedings not raised will not be considered for the first time on appeal. Edwards said the purpose of that role is to allow the initial hearing board to hear any alleged procedural errors and to correct them. Edwards said the principle of law is if the applicants do not object at the time, they do not get to object later. Edwards said under Colorado law criteria, he feels that due process, a technical legal term having Constitutional standards, was not violated and the applicants had a fair hearing. Edwards requested Council reject the appeal. Lennie Oates, representing the applicant, stated Edwards' construction relates to court cases and does not apply to administrative hearing. Oates said regardless of whether there is informality in administrative law in a growth management hearing, the Code clearly states there will be 2 scoring rounds, a preliminary scoring round and a final scoring round. Oates stated this did not happen. Oates said this language is mandatory. The fact there were not 2 scoring rounds denied the applicants a fair hearing. Richman pointed om the Commission had only one scoring. The Code states that once the initial scoring is given, the Commission members look at one another' s score, reflect on it and discuss it if they wish and then have another scoring. The second scoring did not occtlr. Councilman Paulson asked if the applicant raised the issue of the second scoring; whose responsibility was it to raise this issue. Richman said no one raised that issue. Richman told Council the growth management system was completely changed in that last 18 months. No one has used every part of it. Staff recommended a score above the threshold. The applicant expected to get past growth management and that a detailed discussion would come up during flirther P & Z reviews. Worcester agreed that "due process" has a technical meaning and is a term of art in the legal profession. This term derives from the fifth amendment to the U. S. Constitution. Worcester said a court may not find due process was violated in the sense of the fifth amendment; however, the code grants the Council the right 10 Asoen City Council Regular Meetin~ February 10, 1997 whether or not every "t" was crossed. Worcester said whether the applicants waived the right to appeal, this was not a trial but was an administrative hearing. Worcester said he does not feel the applicants waived anything by not raising this issue at the hearing. Worcester said Courts will look at the totality of circumstances. Councilman Marolt said he feels with only one project, the Commission voted low scores and did not go through the entire procedure. Councilman Marolt said because of this he does not feel it was credible and the appeal should be considered and this should be redone. Councilwoman Richards said she would support a motion to overturn the scoring of the joint Commission. Councilwoman Richards said Council is always dealing with citizens and applicants wading through the City' s rules. Councilwoman Richards said Council tries to simplify procedures and make them more clear cut and understandable. Councilwoman Richards said she would like to send this back to the Commission for a chance to correct a process that missed a step. Mayor Bennett said the city has a very complicated set of rules for applicants to follow in the land use code. It is incumbent upon the city to follow these roles also. Mayor Bennett said these six steps are clearly set out and 2 of the steps were omitted. Mayor Bennett said there is an issue of internal due process and fairness. Mayor Bennett said he would support an appeal and feels it is the right thing to do. Councilwoman Waggaman said she can understand why the Code was written to require 2 votes. Councilwoman Waggaman supports overturning this. Councilwoman Waggaman said the growth management commission should have an opportunity to rescore this again. Councilman Paulson said he is concerned abom setting a precedent with this. The growth management system is not popular with a lot of developers and it seems there will always be appeals coming forward. Councilman Paulson said he hopes that the applicant can live with what comes out of the process. Councilwoman Richards moved to sustain the appeal of the 1996 metro area residential GMQS scoring; seconded by Councilman Marolt. All in favor, motion carried. 11 Asoen City Council Regular Meetin~ February 10, 1997 Councilwoman Richards moved to adjourn at 7:20 p.m.; seconded by Councilman Marolt. All in favor, motion carried. Kathryn S. Koch, City Clerk 12 Asoen City Council Regular Meetin~ February 10, 1997 OUTSTANDING EMPLOYEE BONUS AWARDS ...............................................1 CITIZEN PARTICIPATION ...................................................................................1 COUNCILMEMBER COMMENTS .......................................................................1 CONSENT CALENDAR ........................................................................................1 Minutes - January 27, 1997 .................................................................................2 Ordinance #7, 1997 - Hallam Lake Annexation ...................................................2 Resolution #9, 1997 - Contract Oklahoma Flats Bridge .......................................2 Resolution # 10, 1997 - Contract Water Place Housing Construction ....................2 Appointment To Kids First Board - Amy Maron ..................................................2 ORDINANCE #1, SERIES OF 1997 - Historic Designation 17 Queen Street ..........2 ORDINANCE #2, SERIES OF 1997 - LP Map Amendments, Rezoning ................2 ORDINANCE #4, SERIES OF 1997 - Aspen Meadows Lot 5 Vested Rights Extension ................................................................................................................3 ORDINANCE #5, SERIES OF 1997 - Aspen Meadows Lot 6 Vested Rights Extension ................................................................................................................4 ORDINANCE #8, SERIES OF 1997 - Land Use Code Amendments ......................4 APPEAL OF THE JOINT GROWTH MANAGEMENT COMMISSION SCORING - Stage 3 ................................................................................................7 13