HomeMy WebLinkAbout322 West Hyman Avenue_Memo_Final
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MEMORANDUM
TO: City of Aspen Board of Adjustment
FROM: Jeffrey Barnhill, Zoning Enforcement Officer
THRU: Bob Narracci, Zoning Administrator
RE: 322 W Hyman Avenue, Dimensional Variance Review
Resolution No. ____, Series of 2021
MEETING DATE: May 6, 2021
APPLICANT:
Michael Behrendt Trust
REPRESENTATIVE:
Ezra Louthis, Aspen Development Services, LLC
LOCATION:
322 West Hyman Avenue. Lots N and O, Block
46, City and Townsite of Aspen, County of
Pitkin, State of Colorado. PID#273512464005
CURRENT ZONING AND USE:
322 W Hyman Avenue is located within the R-6
zone district and is developed with a 4-unit
condominium complex.
Lot Size: 6,000 square feet
SUMMARY OF REQUEST:
The Applicant requests a side yard dimensional
setback variance from the minimum required in
the R-6 zone district to accommodate
reconstruction of the existing retaining wall
that is failing, with a roughly 7-foot-tall
retaining wall. The setback variance requested
is a zero (0) foot side yard setback where a
minimum of five (5) foot side yard setback is
required.
STAFF RECOMMENDATION:
Staff recommends the BOA find that a hardship does exist on
the subject property and approve the variance request.
FIGURE 1: CURRENT CONDITIONS
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REQUEST OF THE BOARD OF ADJUSTMENT: The Applicant is requesting the following approval from the Board of
Adjustment:
• Variance (Chapter 26.314) to grant a dimensional variance for this site, reducing the minimum setback
requirements in the R-6 zone district (The Board of Adjustment is the final review authority).
BACKGROUND AND EXISTING CONDITIONS:
322 West Hyman Avenue is identified as Lots N and O, Block 46, City and Townsite of Aspen, County of Pitkin, State
of Colorado. Currently 322 West Hyman Avenue is developed with a two-story condominium complex comprising
4 units. 322 W Hyman Ave is bounded by 334 West Hyman Avenue (St. Moritz Lodge) to the west, and it is bounded
by 312 West Hyman Avenue. The lot line between 322 W Hyman and 312 W Hyman contains a roughly 6’ tall
railroad tie retaining wall. It runs for roughly 51’ across the property line. The property began development in 1953
with subsequent permits through 1973. Certificates of Occupancy were granted in 1970 and 1973 for the main
building. It is important to note that a 4’ setback variance was granted in 1969 for the construction of a garage with
a second-story apartment (July 18, 1969 BOA Meeting Minutes). It is unclear when the retaining wall was built but
it appears as some sort of structure on the Lot Split Plat in 1984 (Book 12, Page 54). It shows up more clearly on
the Condominium Plat as a “RR Tie Retaining Wall” in 1987 (Book 20, Page 20).
Figure 2: Subject Property Location:
R-6 ZONE DISTRICT:
The R-6 zone district requires the following minimum setbacks for a 6,000 square foot lot:
• Front Yard: Principal buildings 10’ and Accessory buildings 15’.
• Side Yard: Minimum 5’ with a total combined side yard setback of 15’.
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• Rear Yard: Principal buildings: 10’. For the portion of a principal building used solely as a garage: 5’.
Accessory buildings: 5’.
REQUEST:
The Applicant requests approval for a dimensional setback variance for this lot to accommodate construction of a
proposed new retaining wall. Specifically, the following variance is requested:
322 West Hyman Avenue Setback Variances:
• East Side Yard Setback Variance: 0’, where 5’ is required.
Figure 3: Proposed Retaining Wall Location in Relation to Property Line
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Figure 4: Section of Retaining Wall Showing Location and Height
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REVIEWS
SETBACK VARIANCE: The criteria for receiving a variance (Exhibit A) are strict. A property owner must demonstrate
that reasonable use of the property has been withheld by the City and can only be achieved by the City providing a
variance. In situations where all, or practically all, reasonable use of a property is made impossible by development
regulations, the City is able to grant a variance to avoid a “regulatory taking”. The property owner must demonstrate
that their rights, as compared with owners of similar properties, have been deprived. In considering these criteria,
the Board of Adjustment must consider unique conditions inherent to the property which are not the result of the
Applicant’s actions and are not applicable to other parcels, buildings, or structures.
STAFF COMMENTS
Staff responses to the Variance review criteria can be found in Exhibit A. In review of the application, Staff believes
that the request is compliant with the applicable variance review criteria. Land Use Code Section 26.314.040.A.3
highlights a distinct difference between causing an Applicant “unnecessary hardship” in contrast to the creation of
a “mere inconvenience”. A nearly 6’ drop is rare for the surrounding zone district and surrounding parcels. The
condition on the site has been in place since at least the mid 80’s and the reconstructed wall will be required to have
a railing on top for life/safety to prevent a potential fall hazard. Although the retaining wall is a man-made scenario,
staff believes that there are no reasonable alternative design options to accommodate the wall to make it comply
with the Land Use Code. Staff has seen stepped retaining walls of 30” with a planting area in between the stepped
parts of the retaining wall in the past; however, that is not feasible for this site due to the existing constraints. Denial
of the requested setback variance will not deny the property’s fundamental development rights, but staff believes
that it would cause an unnecessary hardship on the applicant.
REFERRAL AGENCIES
Staff has received comments from the Engineering and Parks Departments. Engineering finds no problem with the
reconstruction of the retaining wall; however, for building permit Engineering will require a construction
easement/agreement for all work done on the adjacent property. The Parks Department also weighed in on the
reconstruction of the retaining wall. Parks provided comments to the applicant pertaining to building permit
requirements. An inspection will be required by the Parks Department prior to any demolition or construction to
approve any activity on the 312 W Hyman site. The applicant will be required to comply with all applicable
Engineering and Parks standards at the time of building permit application.
RECOMMENDATION:
Staff finds that this application reflects a request of genuine hardship, and that alternative design solutions to
achieve compliance with setbacks for the replacement retaining wall are unreasonable for this site. Staff
recommends that the BOA make a finding that a hardship does exist on the property and pass a motion to approve
the request.
ALTERNATIVE:
The BOA may want to make a finding that a hardship does not exist on the property and pass a motion to deny the
variance request.
PROPOSED MOTION (All motions are proposed in the affirmative):
1) “I move to approve BOA Resolution No. _____, Series 2021.” (this reflects Staff’s recommendation)
Or, in the alternative:
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2) “I move to approve the denial of BOA Resolution No. ______, Series 2021 and find that a hardship does not exist
on the property.”
ATTACHMENTS:
Exhibit A – Variance Review Criteria, Staff Findings
Exhibit B - BOA Resolution No. ______, Series 2021
Exhibit C – Application