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HomeMy WebLinkAboutMemo_AppealAppeal of Interpretation – Duplex ADU Resolution No. 179, Series of 2017 Page 1 of 6 MEMORANDUM TO: City of Aspen’s Mayor and Council FROM: Jessica Garrow, Community Development Director Ben Anderson, Planner RE: Appeal of Land Use Code Interpretation; Removing an ADU/Carriage House, 26.520.090.C MEETING DATE: December 18, 2017 APPLICANT: Roy Martayan Revocable Trust REPRESENTED BY: Jeffrey Conklin Karp Neu Hanlon, P.C. STAFF RECOMMENDATION: Staff recommends the City Council Affirm the Interpretation, issued by the Community Development Director on October 9, 2017, confirming a requirement of the extinguishment of .75 FTE, Category 2 credits or equivalent cash in lieu, for the removal of an ADU established to mitigate for both units of a duplex. SUMMARY: The Land Use Code (LUC) assigns responsibility to the Community Development Director to provide interpretations of the text and Title of the Code. This is a formal process in which an applicant requests a written interpretation and, if the applicant for the interpretation or any other affected entity do not agree with the issued interpretation, affords the right to appeal the decision to the City Council. The Applicant is appealing an Interpretation of the Land Use Code (LUC) issued by the Community Development Director on October 9, 2017. An application for the Interpretation was was submitted by Jeffrey Conklin on behalf of the Roy Martayan Revocable Trust. The request for the Interpretation sought to establish the employee housing mitigation required to remove an ADU that was initially established to mitigate for both units of a duplex. In 2015, the City amended the the LUC to create a path for the ADUs to be removed if mitigations was provided and a building permit to remove the kitchen was completed. Planning Staff had issued a Pre Application for the removal of the ADU at 910 E. Cooper stating that the removal of this particular ADU would require mitigation for both units (.75 FTE, rather than .38 FTE) given the site specific approval for the ADU. The Interpretation was issued according to procedures specified by the LUC (Chapter 26.306) and is attached as Exhibit A. Appeal of Interpretation – Duplex ADU Resolution No. 179, Series of 2017 Page 2 of 6 The Interpretation as issued on October 9th stated: “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.” A letter from the Applicant’s representative dated October 19, 2017 serves as Notice of Appeal of the Interpretation and outlines the Applicant’s concerns with the Interpretation (Exhibit B). BACKGROUND: A 1990 Amendment (Ordinance No. 1, Series of 1990; Exhibit C) 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 for both units of 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 (600 square feet v. 300 square feet) of an ADU mitigating for a single family residence. In 2015, (Ordinance No. 35, Series of 2015; Exhibit D), 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 Appeal of Interpretation – Duplex ADU Resolution No. 179, Series of 2017 Page 3 of 6 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 two, free-market units of the duplex that included 910 E. Cooper (a part of the Phillips/Gordon Lot Split) were established by a Subdivision Exemption approved by City Council in Ordinance No. 45, Series of 1994 (Exhibit E) and defined by a Subdivision Exemption Agreement recorded on 4/20/95; Reception No. 380695 (Exhibit F). The Subdivision Agreement provides the following language: “Affordable housing mitigation shall be provided in connection with the duplex dwelling unit as follows. In the discretion of the Lot owner, the owner shall do one of the following: (i) provide one free-market unit and one resident –occupied unit (with an appropriate deed restriction) containing a minimum of 1500 square feet; (ii) provide two free market units, and one accessory dwelling unit containing a minimum of 600 square feet; (iii) provide two resident-occupied units, each appropriately deed restricted; or (iv) pay the applicable affordable housing impact fee.” At the time of development, the owner chose Option (ii). The ADU to mitigate for each of the two duplex units was located within the unit at 910 E. Cooper. The ADU is a “voluntary” unit, meaning that it is not required to be occupied, but if it is, the resident would be required to be qualified by APCHA. BASIS FOR INTERPRETATION: Staff acknowledges that the LUC does not provide specific direction for the removal of ADUs that were established to mitigate for both units of a duplex. Ideally, the LUC will be as descriptive as possible in responding to development scenarios that may emerge and will make all necessary connections to development scenarios in the past. In this case, the Code did not respond to the small number of ADUs that were created in mitigation for both units of a duplex (Staff research has identified less than ten (10) ADUs of this nature). In the absence of specific language in response to these types of ADUs within the LUC, staff looked to guidance from the following source in drafting the Interpretation: Ordinance No.1, Series of 1990. This provides the primary basis for the Interpretation. The Ordinance was very clear in regards to the provision of an ADU for employee housing mitigation. A single-family residence, if using an ADU to mitigate, was required to provide a unit that was at least 300 square feet in size. An ADU established to mitigate for both units of a duplex was required to be at least 600 square feet in size – specifically double the size required for the single family unit. Appeal of Interpretation – Duplex ADU Resolution No. 179, Series of 2017 Page 4 of 6 Importantly, in the discussion and development (Council meetings of January 29, and February 12 and 21 of 1990; Collectively Exhibit G) of the mechanisms for mitigating for a duplex, the minutes from Council meetings show that initially, Ordinance No. 1, Series of 1990 proposed a separate ADU (minimum size of 300 square feet) for each unit of a duplex. Concerns regarding density, including parking and other neighborhood impacts, shifted this option to what it became – a single ADU of double the size (600 square feet). As a further point in support of the Interpretation, if the owner would have chosen the alternative to pay cash-in-lieu instead of establishing the ADU, the approximate, “applicable affordable housing impact fee” for the duplex as a whole, would have been based on 1.2 FTE. Said another way, the double-sized, 600 square foot ADU was established as an alternative to a cash-in-lieu payment based on 1.2 FTE – mitigation for both units of the duplex. This source establishes the basis for the Interpretation. Staff argues that in the absence of clear language in the LUC regarding the removal of ADUs related to duplex development, direction comes from the ordinance under which this ADU was established. Ordinance No. 1, Series of 1990 that set the foundation for the nexus between residential development and employee generation attempted to create fairness and flexibility in mitigating for employee housing. In setting the required square footage for a duplex ADU as double that of a single family residence, the ordinance acknowledged the additional impact of density and intensity for each of the units of duplex development on employee generation. Staff finds that it is reasonable to apply the thinking surrounding mitigation for duplex development using an ADU in the Ordinance, to the code language that exists today regarding the removal of ADU. STANDARD OF REVIEW: Section 26.316.030(E) reads as follows: Standard of review. Unless otherwise specifically stated in this title, the decision-making body authorized to hear the appeal [City Council] shall decide the appeal based solely upon the record established by the body from which the appeal is taken [Community Development Director]. A decision or determination shall 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. The Land Use Code does not define the terms: “a denial of due process”, “exceeded its jurisdiction,” or “abused its discretion.” Court cases, however, have helped define these terms as follows and may be used by Council in its deliberation of the appeal: A denial of due process may be found if some procedural irregularity is determined to have occurred that affected a significant right of the appellant, or the administrative body otherwise acted in violation of the appellant’s constitutional or statutory rights. Ad Hoc Executive Committee of Medical Staff of Memorial Hospital v Runyan, 716 P. 2d 465 (Colo. 1986.) A decision may be considered to be an abuse of discretion if the “decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious Appeal of Interpretation – Duplex ADU Resolution No. 179, Series of 2017 Page 5 of 6 exercise of authority.” Ross v Fire and Police Pension Ass’n., 713 P.2d 1304 (Colo. 1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959). A decision may be considered to be in excess of jurisdiction if the decision being appealed from “is grounded in a misconstruction or misapplication of the law,” City of Colorado Springs v Givan, 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not within the authority of the administrative body to make. City of Colorado Springs v SecureCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000). STAFF COMMENT: 1) Due Process – The Applicant’s appeal is a response to an Interpretation issued to the Applicant in regards to a duplex unit at 910 E. Cooper Ave. The original request for interpretation was submitted through a Land Use Application. The timelines specified by Code in determining completeness of the application, issuing the Interpretation, and providing public notice were met. A separate application for appeal was filed in a timely manner consistent with Code, and the public hearing for the appeal is being held “as soon thereafter as is practical under the circumstances.” Proper notice of the hearing has been provided to the public and the Applicant. Assuming the public hearing does not contain any procedural flaws, staff believes that proper procedural due process has been provided. In providing an interpretation, the Director relied on the facts presented and the language within the Land Use Code and previous Ordinances related to Growth Management. The Interpretation was not arbitrary and provided substantive due process. The appeal does not raise questions of due process. 2) Discretion – With respect to abuse of the Director’s discretion, the Director did use her discretion in rendering the interpretation. An appeal raises the question of whether the Director abused that discretion. The Director is required to interpret specific text of the code to provide explanation and clarity. In rendering the Interpretation, the Director considered adopted ordinances and issues of intent in the Land Use Code. The Appeal of the Interpretation is based in the issue of discretion. The Applicant, in a letter from Mr. Conklin dated October 19, 2017 (Exhibit B), provides nine (9) statements that collectively argue that the Interpretation was not “reasonable”. The Land Use Code does not predict every type of circumstance. Staff considers the text of the code as well as the effects that would be expected with different interpretations. The Director believes that her discretion was applied appropriately and the Interpretation was rendered ethically. Staff does not agree that the Interpretation is an abuse of discretion. Again, ideally, the LUC would contain more specific language that includes discussion of ADUs used to mitigate for duplex residential development. In the absence of more specific language, it is a reasonable approach to use the limited, but applicable language within the Code for guidance, and then go beyond the Code to the lineage of the Ordinance (Ord. No 1, Series of 1990) that created the original rules for the employee housing mitigation required of residential development. From staff’s perspective, Appeal of Interpretation – Duplex ADU Resolution No. 179, Series of 2017 Page 6 of 6 this approach provides clarity to a circumstance and an intent that is not fully considered by the Land Use Code. 3) Jurisdiction – The Director’s jurisdiction to interpret the Land Use Code is established in Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the jurisdiction, authority, and duties allocated to the Community Development Director. One of the Director’s duties outlined in the Chapter reads: “To render interpretations of this Title or the boundaries of the Official Zone District Map pursuant to Chapter 26.306.” Staff believes this language is clear and disagrees with any premise that the Interpretation was “in excess of jurisdiction. The Appeal does not raise the question of jurisdiction. ACTIONS BY COUNCIL FOLLOWING APPEAL HEARING: Section 26.316.030(F) reads 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 shall be approved by resolution. All appeals shall be public meetings. TWO RESOLUTIONS: Attached are two draft Resolutions. One finds that the Director acted correctly and affirms the Interpretation. The second finds that the Director exceeded her jurisdiction, abused her authority, or failed to provide due process and reverses the interpretation. CONCLUSION: Staff finds the Director’s Interpretation was rendered ethically, provided due process, and did not exceed jurisdiction or abuse discretion. Staff recommends City Council affirm the Director’s interpretation by adopting the proposed Resolution No. 179 affirming the interpretation. EXHIBITS: A – Interpretation, including Exhibits B – Letter from Attorney Jeff Conklin, initiating the Appeal dated October 19, 2017 C – Ordinance No. 1, Series of 1990 D – Ordinance No. 35, Series of 2015 E – Ordinance No. 45, Series of 1994 F – Subdivision Exemption Agreement, Reception No. 380695 G – Minutes, City Council Meetings – January 29, and February 12 and 21, 1990 I – Application, Request for Interpretation J – Instruments of Notice for the Appeal