HomeMy WebLinkAboutExhibit A_InterpretationCITY CIF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE INTERPRETATION
JURISDICTION: City of Aspen
APPLICABLE CODE SECTIONS: 26. 312.030 (A) Authority to continue
26. 312.050(C) Historic property
26.710.180 Mixed -Use
July 3, 2019
WRITTEN BY:, Jennifer Phelan, Deputy Planning Director
APPROVE l Y ( Jessica Garrow,
Community Development Director
The Community Development department is issuing this Interpretation regarding an
.gnated property (320 W. Main Street) in determining what, if any, parameters are applicable
Use of the property from its currently approved office use to a single-family residence.
a designated historic landmark building, containing what is known as the Smith
e house was granted an administrative Change in Use by the Community
ge the Smith Elisha House from an office use to a single-family residence.
was granted an historic landmark lot split, after a recently passed code
-k lot splits in the Office (now known as the Mixed Use) zone district.
lot to be divided into two, 4,500 sq. ft. lots, with Lot A containing the
7 residence) and Lot B containing the carriage house (a mixed -use
i Use request was applied for and administratively granted by the
vacate the single-family residence use of the Smith Elisha house and
A).
ty' Council adopted Ordinance No. 7 which made changes to the zone district, inclusive of
ie zone district from Office to Mixed Use and overhauling the permitted and conditional uses of
strict as well as the dimensional standards. Of significance, was the introduction of a twenty
' o) reduction in Floor Area with the establishment of a single-family or duplex residence after
date of the ordinance. This requirement is still in place today, although there have been other,
changes to the zone district.
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The applicant makes the argument that Lot A (containing the Smith Elisha house) should be vested in the
zone district requirements from 2002, that use of the property as a single-family residence would not exceed
the Maximum Allowed Floor Area, and that use of the property as a single-family residence does not result
in the creation of a non -conformity. Specifically, the applicant requests an Interpretation on how three
sections of the Land Use Code apply to the potential residential use of the property.
DISCUSSION: Two of the citations noted by the applicant are from the Nonconformities chapter of the
Land Use Code. Under section 26.312.030, Non -conforming structures, sub -section (A) notes:
"a non -conforming structure devoted to a use permitted in the zone district in which it is located may be
continued in accordance with the provisions of this Chapter."
A second citation, under section 26.312.050, Non -conforming lots of record, sub -section (C) notes:
"a lot of record containing a property listed on the Aspen Inventory of Historic Landmark Sites and
Structures need not meet the minimum lot area requirement of its zone district to allow the uses that are
permitted and conditional uses in the zone district subject to the standards and procedures established in
chapter 26.415."
Discussion Points
1)A code amendment in 2002 (Ordinance No. 1), allowed a historic landmark in the Office zone district to
subdivide (via a historic landmark lot split) down to a minimum of a 3,000 sq. ft. lot as a preservation
incentive. The subject property benefited from this preservation incentive, which resulted in two lots of
4,500 sq. ft. being created. In 2002, as it is currently, the minimum lot size for historic landmark properties
is 3,000 sq. ft.. Hence, at 4,500 sq. ft., Lot A is a conforming lot of record with regard to lot size. At the
time of the lot split in 2002, Community Development records indicate that the property was conforming
to the MU zone district requirements.1
Also at the time of the lot split, Lot A contained a single-family residence. Subsequently, in 2004, a Change
in Use request was processed and granted by the city for Lot A. The land use approval permitted the single-
family residence to be converted to an office use. A Change in Use is considered a form of Development,
which is inclusive of "the use or alteration of land or land uses...". In 2004, as it is currently, office use is
a conforming use in the Mixed -Use zone district. As recently as 2010, the City issued a Letter of Completion
for an interior remodel of the space indicating the use of the building was entirely commercial, not
residential. All approved residential use of the building ceased with the 2004 Change in Use approval.
2) Applicant argues that due to language in the 2002 ordinance approving the historic landmark lot split
(Exhibit B), the property is vested in the 2002 Land Use Code. The language in the ordinance states that a
note be added to the subdivision plat "stating that all new development on the lots will conform to the
dimensional requirements of the Office zone district, except the variances approved by the HPC." The same
ordinance also states that a note on the plat be added that "...any development of the lots will comply with
the applicable provisions of the Land Use Code in effect at the time of application."
3) Generally speaking, when a land use approval is granted, a vested property right is established. A vested
property right allows a site -specific approval to be built after approval without meeting any zoning or land
use changes during a prescribed time period. As required by Colorado Revised Statutes and codified in the
I The 2002 historic lot split record shows that the Floor Area of the Smith Elisha house was 3,306 sq. ft. A 500 sq. ft. Floor
Area bonus a setback variance on the east property line were granted to accommodate the existing building.
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Land Use Code, a vested right in Aspen expires after the third anniversary of the issuance of a Development
Order. Additionally, the Land Use Code notes that "in no case shall a development order be valid more than
ten (10) years."
INTERPRETATION: As described in the General Purpose statement of the Zoning Districts chapter, the
city has adopted zone district regulations "...to ensure that each permitted and conditional use is compatible
with surrounding land uses...." and that "all development within each zone district shall be consistent with
the purposes stated for that Zone District..."
These regulations change from time to time depending on the expectations and needs of the community and
development is required to comply with current standards. As a form of development, a Change in Use
request must show that not only does the use comply with the permitted uses allowed within the zone
district, but also with the dimensional requirements (e.g. Floor Area or parking standards).
With regard to the Nonconformities chapter, the intent of the chapter is to allow lawfully established
...uses of land, buildings and structures" to "... continue, but not allow nonconformities to be enlarged or
expanded." In the case of the subject property, the lot is a conforming lot of record. It exceeds the minimum
lot size required for a historic landmark so the citation that references non -conforming lots is not applicable.
Even so, it provides an exemption for the minimum sized lot required of a property, but does not exempt a
historic property from other dimensional standards of the zone district.
• The fact that this property is a conforming lot of record and appears to be a conforming structure
with regard to the legally established use, renders the Nonconformities chapter irrelevant to the
Interpretation.
With regard to the subject property, changes in the use of the building and size of the lot have occurred over
time. Additionally, changes to the Land Use Code have occurred. For the Smith Elisha house, the permitted
use of the building is office, as memorialized by the land use approval granted in 2004. Any new
development, in this case the use of land being changed from office to a single-family residence requires
compliance with the Mixed -Use zone district dimensional standards in effect at the time of the application
being made for the Change in Use. The 2002 ordinance approving the historic lot split does not have
jurisdiction with regard to the Land Use Code to be used, as the vesting period is long over and no longer
valid.
• The fact that language in the ordinance mentioned compliance with the Office zone district at the
time, but also required any new development to meet the requirements of the Land Use Code at time
of application, as well as the expiration of the vesting rights timeline, cannot be interpreted to allow
new development to comply with seventeen year old land use regulations.
Since the property is currently an office use, conversion to a residence will establish the use subsequent to
adoption of the 2005 ordinance, requiring a twenty percent (20%) reduction in Floor Area for establishment
of a single-family residence. The Floor Area schedule needs to be met and not exceeded in order to approve
a Change in Use request.
APPEAL OF DECISION: Any person with a right to appeal an adverse determination shall initiate an
appeal by filing a notice of appeal on a form prescribed by 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.
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This Interpretation was provided on July 3, 2019, and shall become effective on the same date. This
Interpretation of the Land Use Code shall be valid until such time as the code sections specified are amended
to implement this clarification or for other purposes.
Attachments:
Exhibit A: 2004 Change in Use approval
Exhibit B: Ordinance No. 14 (Series of 2002)
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TO: Julie Ann Woods, Community Development Director
FROM: Joyce A. Allgaier, Deputy Director
RE: GMQS Exemption by Community Development Director for Change in
Use of a Historic Landmark, 320 W. Main Street, Smith-Elisha House
DATE: January 15, 2004
CC: Sarah Oates, Zoning Officer
Amy Guthrie, Historic Preservation Officer
SUMMARY: Staff recommends approval of a Growth Management Quota System
(GMQS) Exemption for the proposed change in use from residential to office for a
property listed on the Aspen Inventory of Historic Landmark Sites and Structures. A
request for a conversion of the existing residential space to accommodate an office use is
proposed, along with the necessary physical internal changes The owners are Caroline
and Scott McDonald who have agreed to this request and have authorized Patrick Imeson
to make this application.
LOCATION: 320 W. Main Street, Lot N and ''/z Lot O, Block 44, City and Townsite of
Aspen. Note that the application refers only to the Smith-Elisha House and not the
existing barn on the property. This property is also called, "Lot A", on the official
Historic Landmark Lot Split Plat for this subject property.
ZONING: "O", Office.
APPLICANT: Patrick Imeson
STAFF REVIi' W: Section 26.470.070.D.1 of the Municipal Code provides a GMQS
Exemption by the Community Development Director for the "Change in Use" of a
designated historic landmark which does not increase the building's existing floor area
ratio. The applicant proposes to convert existing residence into office space.
In order to grant a GMQS exemption, the Community Development Director must find
that the following standard is met:
3. The change in use of a historic landmark shall not increase the building's
existing floor area ratio.
Response: The applicant will make renovations to the interior of the building in order
to create space appropriate for office use, but no alterations which affect existing FAR are
indicated in the application and are not allowed.
RECOMMENDATION:
ATION:
Staff recommends this GMQS Exemption be granted with the conditions as noted below.
A GMQS Exemption for a Change in Use from residential to office use for the
structure located at 120 W. Main Street, also known as the Smith-Elisha House, a
designated historic landmark, is hereby APPROWD with the conditions as
follows:
This approval is effective on_Febivary 30, 2004; and,
No additional floor area shall be created or added to the structure without the
required approvals of the City of Aspen; and,
That the business owners strive to provide bus passes to their employees as a
means to mitigate trip generation and minimize on -site parking demand.
Julie ,Woods, C unity Development irector
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ORDINANCE NO. 14
(Series of 2002)
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WHEREAS, pursuant to Sections 26.480.030(A)(2) and (4), Section
26.470.070(C), and Section 26.415.010(D) of the Municipal Code, a Historic Landmark
Lot Split is a subdivision exemption subject to review and approval by City Council after
obtaining a recommendation from the Historic Preservation Commission (hereinafter
HPC); and
WHEREAS, the applicants, Scott and Mary Caroline McDonald, owners of 320
W. Main Street, Lots N, O, and P, Block 44, City and Townsite of Aspen, have requested
approval to split a 9,000 square foot parcel into two lots of 4,500 square feet each; and
WHEREAS, the Community Development Department has reviewed the
application and recommends approval of the Historic Landmark Lot Split; and
WHEREAS, the HPC reviewed the request for the historic lot split at a properly
noticed public hearing on May 8, 2002, and reviewed a setback variance request at a
public hearing on June 12, 2002, and recommended approval; and
WHEREAS, the Aspen City Council has reviewed and considered the
subdivision exemption under the applicable provisions of the Municipal Code as
identified herein, has reviewed and considered those recommendations made by the
Community Development Department, and the Historic Preservation Commission, and
has taken and considered public comment at a public hearing; and
WHEREAS, the City Council finds that the Historic Landmark Lot Split meets or
exceeds all applicable development standards of the above referenced Municipal Code
sections; and
WHEREAS, the City Council finds that this Ordinance furthers and is necessary
for the public health, safety and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO, THAT:
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Pursuant to Sections 26.480.030(A)(2) and (4), Section 26.470.070(C), and
Section 26.415.010(D) of the Municipal Code, and subject to those conditions of
approval as specified herein, the City Council fmds as follows in regard to the
subdivision exemption:
1. The applicant's submission is complete and sufficient to afford review and
evaluation for approval; and
2. The subdivision exemption is consistent with the purposes of subdivision as
outlined in Section 26.480 of the Municipal Code, which purposes include: assist
in the orderly and efficient development of the City; ensure the proper
distribution of development; encourage the well -planned subdivision of land by
establishing standards for the design of a subdivision; improve land records and
survey monuments by establishing standards for surveys and plats; coordinate the
construction of public facilities with the need for public facilities; safeguard the
interests of the public and the subdivider and provide consumer protection for the
purchaser•, acquire and ensure the maintenance of public open spaces and parks,
provide procedures so that development encourages the preservation of important
and unique natural or scenic features, including but not limited to mature trees or
indigenous vegetation, bluff, hillsides, or similar geologic features, or edges of
rivers and other bodies of water, and, promote the health, safety and general
welfare of the residents of the City of Aspen.
Section 2
Pursuant to the findings set forth in Section 1, above, the City Council does
hereby grant an Historic Landmark Lot Split subdivision exemption for 320 W. Main
Street with the following conditions:
1. The HPC has approved a 500 square foot FAR bonus, for the purpose of allowing
the existing structures to remain in place. The bonus is not being awarded to allow
any expansion on the property. This condition shall be noted on the plat.
2. In order to qualify for the bonus, the applicant must meet "City of Aspen Historic
Preservation Design Guideline 2.2." A plan for repair and repainting of the
Smith-Elisha house must be submitted to HPC staff by July 31, 2002, and the
work must be completed by December 31, 2002, The City will require a financial
security be posted by the applicant to ensure that this condition is met.
3. The HPC has waived any of the required parking that cannot be contained on the
site in the form of legal sized spaces. This condition shall be noted on the plat.
4. The HPC has granted a 3 foot sideyard setback variance along the east side of the
Smith-Elisha House. As a condition of the variance, which was partially justified
by the owner's desire to have the two new lots share an existing sidewalk, it was
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determined that as long as the historic carriage house remains the only structure
on the east half of Lot O and all of Lot P, Block 44, City and Townsite of Aspen,
said building shall be accessed from the street via the shared sidewalk which runs
down the east side of the adjacent Smith- Elisha house. No new sidewalk can be
created from Main Street to the carriage house unless approved by the HPC. This
condition shall be noted on the plat.
5. A subdivision plat and subdivision exemption agreement shall be reviewed and
approved by the Community Development Department and recorded in the office
of the Pitkin County Clerk and Recorder within one hundred eighty (180) days of
final approval by City Council. Failure to record the plat and subdivision
exemption agreement within the specified time limit shall render the plat invalid
and reconsideration of the plat by City Council will be required for a showing of
good cause. As a minimum, the subdivision plat shall:
a. Meet the requirements of Section 26.480 of the Aspen Municipal Code;
b. Contain a plat note stating that the lots contained therein shall be
prohibited from further subdivision and any development of the lots will
comply with the applicable provisions of the Land Use Code in effect at
the time of application;
c. Contain a plat note stating that all new development on the lots will
conform to the dimensional requirements of the Office zone district,
except the variances approved by the HPC.
4. The FAR on the two lots created by this lot split shall be based on the use of the
buildings. At this time the Smith-Elisha house is intended to be a residence and
the carriage house is mixed -use. The maximum FAR for each lot may be affected
by applicable lot area reductions (i.e., slopes, access easements, etc.). The
applicant shall verify with the City Zoning Officer the total allowable FAR on
each lot, taking into account any and all applicable lot area reductions. The
property shall be subdivided into two parcels, Lots A and B, each 4,500 square
feet in size. This condition shall be noted on the plat.
5. The site is located on Main Street, where pedestrian improvements are an important
goal. The applicant must verify that the existing sidewalk, curb, and gutter in front
of the property meet the requirements of the City Engineering Department, or
rectify any inadequacies prior to filing the plat.
6. Part of the historic significance of this property lies in the fact that this is a
significant residence with a large carriage house on the site. These two structures
are strongly associated architecturally and establish a strong historic context on
the site. The HPC will review any future development on the property, however,
as a condition of approval of this lot split, a fence shall not be allowed to be
constructed between the two newly create lots, which would separate them
visually from each other. This shall be noted on the plat.
Section 3
This Ordinance shall not have any effect on existing litigation and shall not
operate as an abatement of any action or proceeding now pending under or by virtue of
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the ordinances repealed or amended as herein provided, and the same shall be conducted
and concluded under such prior ordinances.
Section 4
If any section, subsection, sentence, clause, phrase or portion of this ordinance is
for any reason held invalid or unconstitutional by any court of competent jurisdiction,
such portion shall be deemed a separate, distinct, and independent provision and shall not
affect the validity of the remaining portions thereof.
Section 5
A public hearing on the Ordinance was held on the 24th day of June, 2002, in the
City Council Chambers, Aspen City Hall, Aspen Colorado.
INTRODUCED, REAR AND ORDERED PUBLISHED as provided by law by
the City Council of the City of Aspen on the 13" day of May, 2002.
H en ali KI e ud, Mayor
3t, adopted, passed and approved this 24th day of
Approved as to form:
John
J� �te
Worcester
City Attorney