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HomeMy WebLinkAboutMemo_320WMain_Appeal MEMORANDUM TO: Mayor Torre and Aspen City Council FROM: Ben Anderson, Planner II; Community Development THROUGH: Jennifer Phelan, Interim Community Development Director MEMO DATE: September 2, 2019 MEETING DATE: September 9, 2019 RE: Resolution No. 96, Series of 2019; Appeal of an Interpretation of the Land Use Code Applicant: Robert I. Levy Representative: Richard Y. Neiley, Jr. Neiley Law Firm, LLC Location: 320 W. Main Street; Legally described as: Lot A, Historic Landmark Lot Split at 320 W. Main Street, according to the Final Plat recorded September 3, 2003 in Plat Book 66 at Page 32, City of Aspen, County of Pitkin, State of Colorado. Current Zoning and Use: Mixed-Use (MU); Offices Summary: This is an appeal of an interpretation issued by the Community Development Director regarding the property at 320 W. Main St. The applicant has proposed a change in use of the property to free-market residential. This proposal was denied by staff due to dimensional standards in the Mixed Use (MU) Zone District. The interpretation being appealed provided a code-based explanation of why the change in use would not be approved. Staff Recommendation: Staff recommends that the interpretation issued by the Community Development Director be upheld by City Council. Affirming the interpretation would have the effect of the property at 320 W. Main Street remaining consistent with its existing commercial use. Figures 1 & 2: 320 W. Main Page 2 of 6 Appeal of Interpretation 320 W. Main Street REQUEST OF COUNCIL: City Council is asked to review an Appeal of an Interpretation of the Land Use Code issued by the Community Development Director on July 3, 2019, related to the property at 320 W. Main Street. The appeal process is defined by Chapter 26.316 of the Land Use Code. SUMMARY AND BACKGROUND: The Applicant has proposed to convert a building that has been established as commercial/office use, to a free-market residential use. Staff has interpreted the Land Use Code to determine that the existing historic building cannot be converted to free-market residential use. Changes to dimensional limitations in the Mixed-Use zone district that were established to disincentivize the conversion of commercial spaces into residential use, have created a situation on this property that the building is larger than allowed (in terms of floor area) for free-market residential use. The appeal challenges this interpretation. Background In 1998, a designated historic landmark building, containing what is known as the Smith-Elisha house and a carriage house was granted an Administrative Change in Use (Exhibit D) by the Community Development Director to change the Smith-Elisha House from an office use to a single-family residence. In 2002, the property applied for and was granted an historic landmark lot split (Exhibit E), after a recently passed code amendment allowed historic landmark lot splits in the Office (now known as the Mixed Use) zone district. The lot split allowed the 9,000 sq. ft. lot to be divided into two, 4,500 sq. ft. lots, with Lot A containing the Smith-Elisha house (a single-family residence) and Lot B containing the carriage house (a mixed-use building). Subsequently in 2004, a Change in Use request was applied for and administratively granted by the Community Development Director to vacate the single-family residence use of the Smith- Elisha house and convert it back into an office use (Exhibit F). In 2005, City Council adopted Ordinance No. 7 (Exhibit G) which made changes to the zone district, inclusive of renaming the zone district from Office to Mixed Use and overhauling the permitted and conditional uses of the zone district as well as the dimensional standards. Of significance, was the introduction of a twenty percent (20%) reduction in Floor Area with the establishment of a single-family or duplex residence after the effective date of the ordinance. This Figure 3. Extract from Final Plat depicting Historic Landmark Lot Split Page 3 of 6 Appeal of Interpretation 320 W. Main Street requirement is still in place today, although there have been other subsequent changes to the zone district. In June of 2019, following discussions with Community Development staff that the property would not be allowed to be used as a single-family residence, the Applicant submitted a request for Interpretation of the Land Use Code The Community Development Director issued an Interpretation based on this request on July 3, 2019. The Applicant has appealed this Interpretation. A Land Use Application for a Change in Use has been submitted by the Applicant, with finalization predicated on the outcome of this appeal. BASIS FOR INTREPRETATION: The Interpretation that was issued and became effective on July 3, 2019 is attached as Exhibit A. The request for Interpretation was sought for three separate sections of the Land Use Code: 26.710.180.D.11.c.i and ii – This describes dimensional requirements/limitations for the Mixed- Use zone district. 26.312.050.C – This discusses the relationship of designated historic sites and structures to minimum lot area requirements and allowed uses. 26.312.030.A – This discusses the relationship of non-conforming structures and the ability to continue permitted uses. The Applicant’s argument can be found in the original application for the request for Interpretation (Exhibit B). Staff’s understanding of this argument is as follows and is related to the specific code sections referenced above: 1) 320 W. Main Street, in its approval from 2002 was granted floor area consistent with the Office zone district regulations. This floor area should be acknowledged in spite of subsequent changes to the zone district – most notably the floor area penalty that is now a part of the Mixed-Use zone district. (based on Applicant’s read of 26.710.180.D.11.c.i and ii). 2) As a historic structure, 320 W. Main Street, should be subject to a section of the non- conformities chapter that allows non-conforming historic structures to be used for residential uses – even if the existing floor area exceeds that which would otherwise be permitted in the zone district. (based on Applicant’s read of 26.312.050.C). 3) As a historic structure, 320 W. Main, originally built and used as a residential structure, should be allowed to continue as a residential use, in spite of the history of approvals and subsequent changes to the zone district requirements. (based on Applicant’s read of 26.312.030.A). In the Interpretation, staff acknowledged these arguments and responded to each. In summary, staff has interpreted the code as follows: Page 4 of 6 Appeal of Interpretation 320 W. Main Street First, in response to 2) and 3) above, the language referenced is from the Non-Conformities chapter of the Land Use Code (26.312). In its current configuration and use, there is nothing non-conforming about the property. As an approved historic lot-split, the lot-size of 4,500 square feet makes it a conforming, lot of record. Its approved use as an office, established in 2004, is a permitted use in the Mixed-Use zone district. In continuing as an office use, its existing floor area is conforming to previous approvals. Staff’s view is that the language from the land use code related to non-conformities does not apply – as 320 W. Main Street is a conforming property in all regards. Second, in relationship to 1) above and previous approvals and subsequent code changes that apply to this property, staff acknowledges that the historic building was built as and used as a residence during its history. It was a residence when the historic lot split was approved in 2002. The building became a commercial, office use in 2004 and remains as such. Subsequent to these 2002 and 2004 approvals, the Land Use Code changed the zone district from Office (a zone that no longer exists) to Mixed-Use. As there was a community desire to discourage new, free-market residential use along Main Street and encourage continued commercial/office use, the 20 percent floor area penalty for new free-market residential was implemented. Also important to the Interpretation is that any vested rights that the property held in 2002 ended long ago. In short, staff acknowledges (as described in the Interpretation) that yes, 320 W. Main was once a residence, but it was changed to a commercial/office use. The Land Use Code subsequently changed and the building, due to its existing floor area, cannot be converted to free-market residential under the current code as it will exceed the maximum floor area allowed for a residence based on the lot’s size. STANDARD OF REVIEW – APPEALS: 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 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). Page 5 of 6 Appeal of Interpretation 320 W. Main Street 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). DISCUSSION: 1) Due Process – The Applicant’s Appeal is a response to an Interpretation issued to the Applicant in regard to the property at 320 W. Main Street. 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 the specific property and to the applicable zone district. 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 in this case is based in the issue of discretion. 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. In staff’s view, as discussed above, the language in the Non-Conformities chapter of the Land Use Code cited by the Applicant does not apply to this circumstance as the property at 320 W. Main Street is currently conforming. Additionally, staff has evaluated the history of land use approvals granted to the property and the changes to the Land Use Code that apply to the property and have determined that the property is subject to the current dimensional requirements in the Mixed-use zone district. 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. Page 6 of 6 Appeal of Interpretation 320 W. Main Street Note: The Application for Appeal (Exhibit C) includes new arguments and references to additional sections of the Land Use Code that were not included in the original Application for Interpretation. While staff evaluated these additions and understood the new information to be an extension of the Applicant’s original argument, this memo does not discuss these additions as they were not included in the original request for Interpretation or specifically evaluated in the issued Interpretation. Staff’s view is that this information does not change the outcome of the Interpretation, or of the response to the Appeal. FINANCIAL IMPACTS: N/A ENVIRONMENTAL IMPACTS: N/A ALTERNATIVES: N/A RECOMMENDATIONS: 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 of discretion, or failed to provide due process and reverses the interpretation. Staff Recommendation 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. 96 affirming the interpretation. Recommended Motion “I move to approve Resolution No. 96, Series of 2019, affirming the Interpretation issued by the Community Development Director on July 3, 2019 related to the property at 320 W. Main Street.” CITY MANAGER COMMENTS: EXHIBITS: A – Interpretation – Issued July 3, 2019 B – Application for Interpretation C – Application for Appeal Approvals and Ordinances related to 320 W. Main and Mixed-Use zone district D – Administrative Change in Use (1998) E – Historic Lot Split (2002) F – Administrative Change in Use (2004) G – Ordinance No. 7, Series of 2005 – Establishment of Mixed-Use zone district on Main St.