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Home My WebLink Aboutresolution.council.067-25i 1111111111111111111111111111111111111111111111111111111111 IN 111111111 RECEPTION#: 709420, R: $532007 D: $0.00 DOC CODE: RESOLUTION Pg 1 of 9, 05/16/2025 at 10:50:57 AM Ingrid K. Grueter, Pitkin County, CO RESOLUTION #067 (Series of 2025) 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 NO. 13, SERIES OF 2022 AND ORDINANCE NO.23, SERIES OF 2023 AND AUTHORIZING THE INTERIM 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 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 No. 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, all six available 2025 Demolition Allotments were issued in 2024, leaving no allotments available for 2025; and WHEREAS, the Community Development Department received an application for a 2025 Demolition Allotment ("Application") on January 7, 2025, and such application was deemed complete; and, WHEREAS, the Application was denied by the Community Development Director due to insufficient allotments for 2025; and, WHEREAS, the Applicant timely appealed said denial; and, WHEREAS, on January 14, 2025, City Council passed Ordinance No. 21, Series of 2025 (Ordinance #21). Ordinance #21 added demolition diversion requirements to the City of Aspen Municipal Code and established reporting requirements and penalties for violation of the requirements; and, WHEREAS, the Application was submitted prior to passage of Ordinance #21, and therefore, the applicant would be exempt from the requirements of Ordinance #21; and, WHEREAS, pursuant to Section 26.470.160 of the City of Aspen Land Use Code, upon the appeal of the denial of an application for a demolition allotment due to insufficient allotments, City Council may take any action it deems necessary; and, WHEREAS, the applicant is willing to meet the more stringent demolition diversion requirements imposed by Ordinance 4-21 as a condition of receiving a 2026 multi -year demolition allotment; 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 2026 multi -year demolition allotment on the terms and conditions set forth within the Settlement Agreement, including compliance with Ordinance #21. The proposed Settlement Agreement is attached hereto as Exhibits "A". NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COT ORADO, That the City Council of the City of Aspen hereby approves the Settlement Agreement attached hereto as Exhibit "A" and does hereby authorize the Interim City Manager to execute said Settlement Agreements on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 22n" day of April 2025. � . . � �4 Rachel Richards,lV�ayor I, Nicole Henning, duly appointed and acting City Clerk do certify that tie 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, April 22, 2025. Nicole Henning, City,�lerk Docusign Envelope ID: E4177DE5-9523-441 F-812B-257E695F5CC8 SETTLEMENT AGREEMENT This Settlement Agreement (the "Agreement") is entered into this day of April, 2025 the "Effective Date") by and between the City of Aspen, a Colorado municipal corporation ("City") and Louis DeCray Loewenstein and Lael Kimberly Loewenstein and The Marcella DeCray Irrevocable Qualified Terminable Interest Property Trust (collectively referred to as the "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". RECITALS WHEREAS, Applicant is the owner of the real property legally described as Parcel 5, Boundary Agreement Plat, According to the Plat thereof recorded April 28, 1982 in Plat Book 13 at Page 35 in the real estate records of the Pitkin County Clerk and Recorder; and also commonly known as 979 Queen Street, 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 November 12, 1968, pursuant to a Warrant Deed recorded in Book 237 at Page 355 in the records of the Pitkin County Clerk and Recorder; and WHEREAS, on June 28, 2022, Aspen City Council adopted OrdinanceSeries 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 however, despite owning the Property for over 50 years, the Applicant does not meet the criteria to qualify as a local property owner under this provision; and, 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; and, 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, 1318956.1 10/23/14 Docusign Envelope ID: E4177DE5-9523-441 F-812B-257E695F5CC8 WHEREAS, after the lottery and award of all available 2024 Demolition Allotments, six of the ten applicants who did not receive the four allotments available in 2024 timely appealed to the City Council; and, WHEREAS, on May 145 20245 Council considered and approved Resolution el of 2024, which authorized resolution of the six demolition allotment appeals via settlement agreement thereby resulting in the issuance of six 2025 multi -year demolition allotments and further reducing the number of demolition allotments in 2025 by six; and, WHEREAS, all Demolition Allotments for 2025, including two additional Demolition Allotments for local owners issued in 2024, have been awarded, leaving no available Demolition Allotments for this calendar year; and, WHEREAS, on January 7, 2025, Applicant submitted its application fora 2025 demolition allotment pursuant to Section 26.470.040 of the City of Aspen Land Use Code, and said application was deemed complete; and, WHEREAS, since Applicant was not deemed eligible fora 2025 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 2025 Demolition Allotment. The appeal asserts the denial of its application amounts to an abuse of discretion. In addition, pursuant to Section 26.470.190.C, Applicant requested the issuance of a Demolition Allotment given the fact that no 2025 Demolition Allotment remain available. The appeal is presently pending before the City Council; (the "Appeal"); 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 Agreement is to amicably and finally resolve all claims the Parties may have against each other in accordance with the terms of this Agreement; and, WHEREAS, 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. 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 26.470.160 C., of the Land Use Code, which states as follows: Insufficient development allotments. Any property owner within the City who is prevented from developing a property because that year's 2 Docusign Envelope ID: E4177DE5-9523-441 F-812B-257E695F5CC8 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 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-mal�ing body heating 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 and directions given, if any, by the body hearing the appeal. The decision 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 Ia]ll 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 2026 multi -year Demolition Allotment subject to all the terms and conditions set forth herein. 4. Disposition of Claims. In consideration of the City's issuance of a 2026 Demolition Allotment to Applicant, Applicant agrees that it will comply with all provisions of the Demolition Standards, as amended from time -to -time prior to submission of an application for issuance of a demolition permit. In addition, Applicant agrees as follows. 3 Docusign Envelope ID: E4177DE5-9523-441 F-812B-257E695F5CC8 a. On January 14, 20251 City Council passed Ordinance #21, Series of 2025 ("Ordinance #21). Ordinance #21 added a new Chapter to Title 29 of the City of Aspen Municipal Code which requires demolition projects to comply with diversion standards and further sets forth reporting requirements and penalties for noncompliance. Pursuant to Ordinance #21, development projects with more than 2,000 square feet of Construction Mitigation Square Footage must separate all Recoverable Materials, as that term is defined therein, generated by demolition on site. b. Applicant submitted its application prior to the passage of Ordinance #21 and thus, any approval granted in response to the application may be exempt from Ordinance #21. Applicant hereby waives any claim that the activity undertaken pursuant to the Demolition Allotment is exempt from Ordinance #21. c. Applicant hereby agrees that the activity authorized by the Demolition Allotment granted pursuant to this Agreement shall fully comply with Ordinance #21, and the Applicant and its successor in interest will divert all possible "Recoverable Material" as the term is defined in Ordinance #21, generated by demolition. In addition, Applicant will comply with the approval process, reporting requirements, and shall be subject to the penalties for noncompliance set forth in Ordinance #21. 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 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 joined 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 modih fy in good fait Docusign Envelope ID: E4177DE5-9523-441 F-812B-257E695F5CC8 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 following the Effective Date. 8. Authority. 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. 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 April 15, 2025, this agreement and all terms and conditions set forth herein shall be deemed void ab initio. 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 maybe, or become, different from the facts or law as presently believed by the 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, Forum 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, 5 Docusign Envelope ID: E4177DE5-9523-441 F-812B-257E695F5CC8 costs and expenses actually incurred in initiating or responding to such proceeding, 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. 169 Modification. This Agreement shall not be moed except in writing signed by the Parties or their authorized representatives. 17. Seyerability. 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. Headings. The headings of paragraphs herein are included solely for convenience A 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 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 By: Signed by: ��c, Sf �nt,�c,►� 7753E0500940430... Interim City Manager Approved as to Form: By: DocuSigned by: Kate Johnson, City Attorney 0 4/23/2025 � 5:10:27 PM M[ Date: Docusign Envelope ID: E4177DE5-9523-441 F-812B-257E695F5CC8 4/2/2025 7680AUCCEKNOBI., Date: VufsbDeCray J= oewenstein (ht,WUA,Sf t,UV, 4/2/2025 E3467ED169B14EF.1: Date: Lael Kimberly Loewenstein Signed by: By: �u Date: The Marcella Defray Irrevocable Qualified Terminable Interest Property Trust Approved as to form: DocuSigned by: B y: 3A261265DA1 C461... Sarah Oates, Esq. Attorney for Applicant 7 Date: 4/2/2025