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HomeMy WebLinkAboutInterpretation_Duplex_ADUCITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE INTERPRETATION JURISDICTION: City of Aspen APPLICABLE CODE SECTIONS: 26.520.090(C), Removing an ADU EFFECTIVE DATE: WRITTEN BY: APPROVED BY: ` in ?,I Gr October 9, 2017 Ben Anderson Jessica Garrow Community Development Director SUMMARY The Aspen Land Use Code previously allowed the construction of Accessory Dwelling Units (ADU) as an alternative to cash -in -lieu payment of mitigation for employee generation resulting from new development of residential floor area. Regarding duplexes, the code provided an option of creating an ADU of at least 600 square feet in providing mitigation for both units of a new duplex. 600 square feet was double the square footage required for mitigation of single family residences. In 2015, an Amendment to Land Use Code provided a process for the removal of ADUs that had been previously established. The provisions of the 2015 Amendment do not specifically address ADUs related to duplex development. PURPOSE This Interpretation clarifies the mitigation requirement for the removal of an ADU established to provide Growth Management Exemption for both units of a duplex. This Interpretation was requested by Roy Martayan, owner of 910 E. Cooper, represented by Jeffrey J. Conklin of Karp Neu Hanlon, P.C. through a Land Use Application that was deemed complete on September 22, 2017. DISCUSSION A 1990 Amendment (Ordinance No. 1, Series of 1990) to the Land Use Code created new requirements related to the Growth Management Quota System and the development of single family, duplex and multifamily dwelling units. One of the specific elements of this amendment created options in qualifying for a Growth Management Exemption when developing a new duplex. The options included providing a cash -in -lieu payment, or providing on- or off- site physical housing mitigation. The option relevant to this interpretation is related to the creation of an Accessory Dwelling Unit (ADU). The code allowed the development of an ADU of at least 300 square feet to mitigate a single-family residence, or an ADU of double the size, 600 square feet, to mitigate a duplex. The impetus of this 1990 Amendment to the Land Use Code was a strong desire expressed by the community and City Council to respond to trends within local development that demolished housing for employees and year—round residents in pursuit of lodging for tourists and the creation of second homes. The City engaged consultants to show evidence of the direct nexus between the new development, the expansion of the local workforce, and the need for employee housing. Through careful market analysis, the new Growth Management section of the code established a direct link between new development and the costs that would be placed on the community of housing employees needed to support new development. Cash -in -lieu calculation and alternative mitigation (such as the development of ADUs) were the subject of extensive discussions in public hearings with City Council. In the end, very specific mitigation requirements were placed on different types of new development on the basis of the direct impact of the development type to growth management related issues — including employee housing. It was from this process that the mitigation alternatives for duplex development emerged — including the provision of an ADU that was double the size of an ADU mitigating for a single family residence. In 2015, (Ordinance No. 35, Series of 2015), City Council responded to a variety of issues surrounding both established and new ADUs. The community, particularly property owners and employee housing advocates, raised concerns that established ADUs were not fully realizing the desired outcome of occupied employee housing units and in some cases had become a burden on property owners. In response, Ordinance No. 35 created provisions for the removal of established ADUs. For voluntary ADUs (meaning that the unit was not required to be rented, but if it was, the tenant needed to be APCHA qualified), the removal of the ADU required the extinguishment of a .38 FTE, Category 2 Affordable Housing Credit or an equivalent cash -in -lieu. Ordinance No. 35 does not speak specifically to ADUs that were established as mitigation for duplex development. The Community Development Department received a request for a Pre Application to remove an ADU at 910 E. Cooper. After research of the property, Community Development determined that the ADU established at 910 E. Cooper served as mitigation for both units of a duplex at 910 and 914 E. Cooper (aka Pyrenees Townhomes, Units East and West). The Pre Application (dated May, 26, 2017) established that the Applicant would be required to extinguish .76 FTE, Category 2 Affordable Housing Credits, or the equivalent cash -in -lieu to remove the ADU. This decision was based on the fact that this ADU met the 600 square feet requirement and was approved to mitigate both units of the duplex and was part of a site specific development approval. Staffs position was that the 600 square foot requirement was not established as an arbitrary number - 600 square feet reflects double the floor area required for an ADU used to mitigate for a single family residence and would therefore require double the mitigation required by 26.520.090.C; Removing An ADU/Carriage House. It is important to note that the Pyrenees Townhomes duplex was a product of the Phillips/Gordon Lot Split that produced two additional single family residences (using existing historic structures). The approval for the 609 square foot ADU for the duplex was included with the approval for two ADUs for the single family residences. The ADUs for each of the single family residences were approved to be a minimum of 300 square feet. This distinction in size of the ADUs approved for the single family residences and duplex defines Staff s response. The mitigation for a duplex using the ADU alternative was double that of a single family residence. Staff finds that removing an ADU that mitigated for a duplex should be reflective of this initial distinction. INTERPRETATION ADUs that were established as mitigation for both units of a duplex shall require mitigation for each individual duplex unit, in order for the one 600 square foot unit to be removed pursuant to Ordinance No. 35, Series of 2015. Consequently, the mitigation required is .75 FTE, Category 2 Affordable Housing Credits or equivalent cash -in -lieu, as established in 26.520.090.C. 26.316.030(A) APPEAL PROCEDURES A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the City office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision or determination. B. Effect of filing an appeal. The filing of a notice of appeal shall stay any proceedings in furtherance of the action appealed from unless the Community Development Director certifies in writing to the chairperson of the decision -making body authorized to hear the appeal that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The chairperson of the decision -making body with authority to hear the appeal may review such certification and grant or deny a stay of the proceedings. C. Timing of appeal. The decision -making body authorized to hear the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See Subsection 26.304.060[E]). E. Standard of review. Unless otherwise specifically stated in this Title, the decision -malting body authorized to hear the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process or the administrative body has exceeded its jurisdiction or abused its discretion. F. 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 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. (Ord. No. 55-2000, §§4, 5; Ord. No. 27-2002, §24; Ord. No. 12, 2007, §19)