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HomeMy WebLinkAboutDraft Interpretation and Exhibits_scannedCITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT LAND USE INTERPRETATION JURISDICTION: City of Aspen APPLICABLE CODE SECTIONS: 26.306: Interpretations of Title EFFECTIVE DATE: WRITTEN BY: 26.304.070.A.4: Major and Minor Amendments defined January 3rd, 2020 Mike Kraemer, Senior Planner Phillip Supino, Community Development Director SUMMARY: The Community Development Department is issuing this Interpretation for a request submitted by a person having a contractual interest in real property within the City of Aspen to determine the application of the Land Use Code as it relates to "Major" and "Minor" amendments to an approved site - specific development plan. Specifically, the Applicants have identified an example amendment referencing the reduction in size of an approved subgrade basement. A specific property or site specific development plan has not been identified. As such, this interpretation will be issued without consideration for a particular property or approval and will focus solely on the applicable Land Use Code sections as they relate to Major and Minor amendment land use requests. BACKGROUND: While the Applicants have not identified a property or site specific development or approval, this Interpretation is the result of discussions with Staff and the Applicants regarding Major or. Minor Amendments for property located at 305 S. Mill Street and the elimination of a portion of an approved subgrade basement. During these discussions, Staff found that, pursuant to established Land Use Code criteria, eliminating a portion of the approved basement constitutes a Major amendment and requires a Major amendment process. In response to this decision, the Applicants elected to submit an Interpretation request of Land Use Code Section 26.304.070.A.4. to further define and identify what constitutes a Major or Minor amendment. The Interpretation Request can be viewed in Exhibit A. ARGUMENT The Applicants have suggested multiple topics to consider whether an amendment is Major or Minor. The following narrative outlines the Applicants' arguments and justifications. The Applicants contend that during consideration for a Major or Minor amendment request, in addition to Land use Code Section 26.304.070.A.4, a determination should also take into account whether the amendment: 1) Conforms to the conceptual Historic Preservation Commission (HPC) approval; 2) Is identical to the plan called up to the City Council; 3) Meets the criteria for a minor amendment to a growth management development order; Page I of 4 4) Has been found by the HPC to be an "insubstantial" change; 5) Complies with previous findings by Staff as to the type of amendments that were found to be minor; 6) Will the proposed amendment modify significant representations or important concessions made by the party seeking the amendment? It has also been argued that a recent precedent was established for property located at 517 E. Hopkins Avenue. In this instance, an amendment to a site specific development plan was requested and considered Minor, whereby conformance with the previous conceptual HPC approval was the stated justification for this determination. Criteria in Land Use Code Section 26.470.150: Amendment of a Growth Management Development Order to determine an "Insubstantial" or "Substantial" amendment is stated to also relate to this Interpretation request. Finally, the Applicants argue the use of the word "inherent" in Land Use Code Section 26.304.070.A.4 helps to define the type of changes that would qualify for a minor amendment. The following provides discussion points relevant to the requested interpretation. • To date, a. formal Interpretation of Land Use Code Section 26.304.070.A.4 has not been issued by the Community Development Director. • A Major amendment is subject to the current Land Use Code in effect at the time of the amendment submission. During the period of statutory vested rights, a Minor Amendment is reviewed under the Land Use Code in effect during the initial approval for the site specific development plan and shall continue to be reviewed under which the plan was approved for the period of vested rights. • When Land Use Code changes are adopted and vesting periods for site specific development plans near expiration or have expired, amendment requests require careful consideration. • The Community Development Director is the final decision maker when determining if an amendment is Minor or Major. INTERPRETATION: The following narrative will address the Applicants' arguments and provide clarity on Land Use Code Section 26.304.070(A)(4): The Applicants have suggested 6 points when considering whether an amendment is Major or Minor. While use of the 6 points could provide additional clarity on the topic, none of the suggested points reside within the adopted Municipal Code and are specifically not codified in Title 26: Land Use Regulations. Use of these suggested 6 points would expand the reading of Land Use Code Section 26.304.070(A)(4) in a manner that is inconsistent with the criteria and processes identified Land Use Code Section 26.310: Amendments to The Land Use Code and Official Zone District Map. Should use of the 6 suggested points come into play, City Council final review and approval of the 6 points would first need to be achieved. • The following is in response to the portion of the Applicants' request stating that should the HPC find the amendment to be "insubstantial", the amendment is then considered "minor". Page 2 of 4 While the HPC has certain powers to make land use decisions, Land Use Code Section 26.304.070.A.4: Major and Minor Amendments Defined, does not reside within the HPC chapter of the Code and is only to be used by the Community Development Director in his or her processing of amendment requests. Allowing the HPC to determine a Major or Minor amendment would expand the HPC's powers and duties, inconsistent with the adopted Land Use Code. This Interpretation does, however, acknowledge that the HPC has certain power to decide whether an amendment to an approved HPC project is "substantial" or "insubstantial" (Land Use Code Section 26.415.070.E). While somewhat similar in name, "Major" and "Minor" Amendments and HPC "Substantial" and "Insubstantial" Amendments are not synonymous in their review criteria and, from time to time, may not necessarily be considered consistently. ® The Applicants argues that the 517 E Hopkins "minor" amendment determination has established a precedent and should be used to interpret Land Use Code Section 26.304.070.A.4. The following is in response to this argument: While the 517 E Hopkins amendment request was considered "minor", that determination was made using the best information at the time to the best of Staffs ability. The previous 517 E Hopkins "minor" determination should not today sway the Director's plain language reading of Land Use Code Section 26.304.070.A.4. In contrast to the previous determination made for 517 E Hopkins, the requested interpretation will decide how future "minor" or "major" amendment applications are considered and processed. a To better understand the context and use of Land Use Code Section 26.304.070.A.4, the 2015 Staff memo and representations made to City Council at the time of the Code amendment hearings needs to be considered. The 2015 Staff memo can be viewed in Exhibit B. The minor amendments heading on Page 2 of the 2015 Staff memo to City Council references descriptive words "simple" and "non -substantive", and which "do not affect a project's original representations". By way of example, the memo states that changes made to retaining wall heights in a setback along the back of a property would be considered a minor amendment. Another example provided in the memo states that a change from an approved metal roof to a synthetic roof would be considered a minor amendment because it is a detail change that does not change the inherent nature or use of the project. . Page 3 of the Staff memo provides clarity on what is considered a major amendment. By way of example, the memo identifies that the removal of a subgrade parking garage would be considered a major amendment because it would change the nature of the project and key representations made at the time of the approval. The 2015 Staff memo also identifies that changes in an approved lodge room count changes the "use mix" and would be considered a major amendment. e The Applicants specifically pose a question pertaining to an amendment to a site specific development plan that reduces the size of an approved basement. The plain language reading of the Land Use Code is key to this question and Interpretation. Land Use Code Section 26.304.070.A.4: Major and Minor Amendments Defined, states: Page 3 of 4 "For the purposes of this section, minor amendments are those which do not change the inherent nature, use, massing, character, dimensions, or design of the project or which changes these attributes in an inconsequential manner. All other amendments shall be considered major. " To consider this question, the attributes outlined above must be analyzed. Given that a basement is subgrade, and, with all other aspects of the project remaining unchanged, it can reasonably be considered that the reduction in size is not anticipated to change or impact the visual massing, -use, character, or design of the project in an inherent manner. And, should the basement reduction establish a change relating to these specific attributes, it can reasonably be considered that the manner of the change would be inconsequential in nature. The remaining attribute "dimension" requires further discussion. The plain language reading of Land Use Code suggests that even though visually moot to a street observer, a basement size reduction would impact the dimensional characteristics of the project and would need to be found by the Director to be "inconsequential" for it to be minor. To provide further clarity, using the 2015 Staff memo as a basis for intent of this Code section, to be considered minor, a finding would need to be, made by the Director that the basement size reduction is "simple", "non -substantive", and "does not affect a project's original representations". Absent a clear relationship with these attributes, a basement size change would not meet this test and the request would be considered a major amendment. SUMMARY AND FINDINGS: The Applicants have requested an interpretation of Land Use Code Sections 26.304.070.A.4 and an answer to how a basement size change would be considered. Together using the plain language of Land Use Code Section 26.304.070A.4 and the 2015 Staff memorandum to City Council that codified this Code section, the above Interpretation is provided. 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. This Interpretation was provided on January 3`d, 2020, 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. Attachment: Exhibit A: Interpretation Request Exhibit B: October 26d', 2015 Staff Memorandum regarding Land Use Code Section 26.304.070.A.4 Page 4 of 4 LAW OFFICES TELEPHONE GIDEON I. KAUFMAN* OF HAL S. DISHLER ** (870) 925-8188 PATRICK D. MCALLISTER KAAUFMAN, DISHLER d& MCALLISTER, P.C. FACSIMILE (970) 925.1090 • ALSOAOMITiEOINM YIANO 315 EAST HYMAN AVENUE •' ALSO AOMMEO IN TEXAS SUITE 305 ASPEN, COLORADO 81611 RIJ Gov a G zoos November 26, 2019 City c4 Aspen Via Hand Delivery Community Development, Via Email at jennifer.phelan@cityofaspen.com Jennifer Phelan Interim Planning Director, City of Aspen 130 S Galena St 3rd Floor Aspen, CO 81611 RE: Interpretation of Title 26 Dear Jennifer: Pursuant to Section 26.306.010(B) "An interpretation may be requested by any affected person, any resident or real property owner in the City or any person having a contractual interest in real property in the City. The Community Development Director shall have the authority to initiate interpretations of Title 26", this letter seeks an interpretation from you as the Community Development Director who has the authority to make interpretations of the text of Title 26 of the Land Use Code. I write this letter on behalf of Danny and Mark Patterson, who meet the criteria of 26.306.010(B) as affected persons, residents, real property owners in the city, -- as well as -persons who will have a leasehold interest in real property in the city. We are seeking an interpretation of Section 26.304.070(A)(4) "Major and Minor Amendments defined. For the purposes of this section, minor amendments are those which do not change the inherent nature, use, massing, character, dimensions, or design of the project or which changes these attributes in an inconsequential manner. All other amendments shall be considered major" for a definition of a minor amendment to an approved site specific development plan: specifically, does a project that reduces an expanded basement to the conceptually approved basement size constitute a minor amendment as long as the criteria for an insubstantial amendment to growth management is met and it qualifies as an insubstantial HPC amendment? Given the flexible language contained in the code in determining what constitutes a major or minor amendment, I believe that such a determination should take into account whether the amendment (1) conforms to the conceptual HPC approval, (2) is identical to the plan called up to the City Council for its review, (3) meets the criteria for a minor amendment to a growth management development order, (4) has been found by the HPC to be an insubstantial change, (5) complies with previous findings by Staff as to the type of amendments that were found to be minor, and (6) will the proposed amendment modify significant representations or important concessions made by the party seeking the amendment. A code amendment interpretation concerning a finding between a minor and major amendment should take into account the points raised in 1-6 outlined above. If the UPC has made a determination that an amendment to conceptual approval is Insubstantial, that is an important consideration in determining whether that amendment is minor under Section 26.304.070(A)(4). That is a logical conclusion as conceptual approves height, scale, massing and proportions of a project and goes to the project's inherent nature, use, mass, character, dimension, or design. If the City Council has reviewed a conceptual HPC approval and based on that review ),as chosen not to exercise its right to call up for review, that action demonstrates Council is satisfied with the project as presented in conceptual approval. If a later amendment is approved during final review, and an applicant then wishes to revert to the approved conceptual form, reviewed by Council, that type of change should be considered a minor amendment as it is conforming with a previous approval. Reverting to the conceptual approval may result in a minor change to the approved net asable commercial space and or the approved floor area dimensions by solely making interior changes without any exterior impacts to the project: for example, removing stairs increases floor area and net leaseable because stairs are exempt from both calculations on the top most floor of the element. This action still qualifies as a minor amendment to a site specific approval. Section 26.470,150 of the Land Use Code, Amendments to an approved growth management development order, outlines specific criteria that differentiate a substantial and an insubstantial amendment; the latter of which does not impact the exterior appearance of the building, does not change the requirements of approved housing units, results from a technical change or is a minor change that has "no substantial effect on the representations of the original project review." These criteria further clarify a growth management dimension change that is "inconsequential" and therefore qualifies as a minor amendment to an approved site specific development plan. �I 6 I' ) There is also clear recent precedent for determining when an amendment to a project shout be treated as a minor amendment, There was a finding at 517 E. Hopkins, where an amendment was found to be minor by both Staff and HPC. In that case, after final approval, 517 V( E. Hopkins proposed minor design adjustments and as well as restoring some of the conceptual approvals that had been changed at final review. That type of amendment was considered minor since the amendments were generally consistent with the conceptual approval, P) Similar to 517 E. Hopkins, if a conceptually approved project is amended at final review to allow for expanding the basement, and then an amendment is proposed to return to the conceptually approved project without the expanded basement, this amendment should likewise be considered minor, especially if this type of amendment meets the criteria established in the 517 E. Hopkins finding. An added justification would be if it also met the factors enumerated above in 1-6, as well as there being no visual impacts nor any changes to the above grade HPC approved elements. An important determining factor in distinguishing between a major and minor amendment is found in Section 26.304.070(A)(4) of the code. The code definition of major and minor amendments gives guidance on how to identify a minor amendment. It classifies a minor S amendment as those which do not change the inherent nature, use, massing, character, 0 r nsion, or design of a project. If one carefully examines the code language, for the definition �v { a minor amendment the code did not use the term change alone to define minor amendment. It specifically used the term inherent to help define the type of changes that would qualify for a minor amendment: Therefore one needs to look at the definition of inherent to understand whether an amendment is minor. Inherent is defined as a permanent and inseparable element, quality or attribute. This standard would be applied in determining whether an amendment to the nature, use, massing, character, dimensions, or design of a project qualifies it as minor. The code further provides that even if the amendment proposes a change to the nature, use, massing, character, dimensions, or design, but is found to be inconsequential, it nonetheless remains a minor amendment. The code therefore offers multiple ways an amendment can be found as minor. We therefore request a Staff interpretation of Section 26.306.070(A)(4) which defines minor amendment that is in conformity with its HPC conceptual approval and the other findings outlined in this letter. Sincerely, M A C. MEMORANDUM TO: Mayor Skadron and City Council FROM: Jessica Gairow, Long Range Planner THRU: Chris Bendon, Community Development Director RE: Land Use Code Reliance Code Amendment Ordinance 27, Series of2015 DATE: October 26, 2015 SUMMARY: The attached Ordinance would amend the City's Land Use Code to clarify which land use code a project may rely on when either part of a multi -step review process or when amending a previously vested approval. STAFF RECOMMENDATION: Staff recommends approval of the proposed Ordinance on Second Reading. LAND USE REQUESTS AND REVIEw PROCEDURES: This is the second public hearing on the proposed code amendments that clarify which land use code a project may rely on when part of a multi -step process or when amending a previously vested approval. Pursuant to Land Use Code Section 26.310, City Council is the final review authority for all code amendments. All code amendments are subject to a three -step process. This is the third step in the process: 1. Public Outreach 2. Policy Resolution by City Council indicating if an amendment should be pursued 3. Public Hearings on Ordinance outlining specific code amendments. BACKGROUND: The Community Development Department often receives inquiries from project applicants wondering which land use code applies to their project — the one they received initial approval under or the current code. These questions arise when projects are part of a multi -step process, such as a project requiring Conceptual HPC Review, and Final BPC Review, as well as when a vested project requests an amendment to the approval. Staff has a written policy addressing this issue (attached as Exhibit C), and proposes to formally incorporate it into the Land Use Code (attached as Exhibit D). A copy of the approved Policy Resolution is attached as Exhibit E. The proposed code change would ensure major project changes are reviewed under the current code, rather than a code that may be years old. The code amendment uses the term Site -Specific Development Plan, which is a term used in State Statute and in the City's land use code. The City's position has always been that an Code Amendment - Land Use Code Reliance 10/26/2015 Page 1 of 4 application for an approval of a Site Specific Development Plan shall be reviewed based on the laws in effect at the time of the application for the first step, typically conceptual approval, and those laws apply throughout the process, unless there is a substantial amendment. There has been recent discussion of this practice, highlighting the need for clarity. OVERVIEW: Nearly all projects request some kind of amendment to their approvals due to changed ownership, refinements during building permit preparation, or due to changing economic or market conditions. This code change would clarify how to determine which land use code applies to an amendment. In addition, it would address which land use code is in effect when multi -step land use processes are required. Minor Amendments: Most amendments are simple, non -substantive changes that do not affect a project's original representations. The proposed code amendment would clarify that the vested land use code applies. For example, in 2014 the Aspen Club received an amendment approval from the Planning and Zoning Commission to amend a few retaining wa e1e is in a vested land use code to the amendment. For the purposes of this code amendment, staff proposes that minor amendments are those which do not change the inherent nature, use, massing, character, dimensions, or design of the project or which change these attributes in such a subtle way as to be immaterial. All other amendments would be considered major. Major Amendment: Other project amendments appear as completely new projects with nothing resembling the former project — different uses, new site plan, different massing and architecture, to. Staff believes processing these types of "amendments" under an out-of-date code is inappropriate. This has also been a concern of the Planning and Zoning Commission, specifically during the reviews of the Aspen Townhomes amendment and the Boomerang amendment. Staff believes these "amendments" should be considered new projects and subject to the land use code in effect upon submission of the amendment. Staff s proposal would require these major amendments to be subject to the code in effect upon submission, and would prevent an applicant from using the vested code which can be decades old. Multi -Step Processes: Often a project is subject to multiple land use reviews. For instance, a project may be subject to a Conceptual Commercial Design Review and a Final Commercial Design Review. For these projects,. existing City policy is to review them according to the land use code in effect on the date of the complete application for the first -step. For instance, a project requiring subsequent applications for Conceptual HPC Review and Final HPC Review, is reviewed according to the land use code in effect when the complete Conceptual HPC application is made. This process is typical`for communities in Colorado. Multiple applications that are not part of a code required multi -step process would be subject to the land use code in effect for each individual submission. Code Amendment - Land Use Code Reliance 10/26/2015. Page 2 of 4 Updates Since Second Reading: Staff has refined the proposed code language since the August lot Council meeting. The language is broken into subsections in an effort to be clearer. In addition, the classification of amendments has been changed from Insubstantial/Substantial to Minor/Major. This change was made to ensure the section's terminology does not conflict with the various amendment processes in the code. Council had some questions at the last hearing regarding how the code amendment would impact the review of land use cases. It is important to note that this amendment does not change a review process per se, it only changes what code applies to a project's amendment. Staff has created a list of recent amendments to vested projects (attached as Exhibit F) to help illustrate how the code amendment would impact which land use code a project amendment is reviewed under. Staff believes the proposed code amendment strengthens the City's ability to ensure projects meet the most recent city standards. hi some cases this could change the review body because various amendment processes have been updated over the last ten years. In other cases the review body would remain the same. Using the Aspen Club as an example, the project had a number of amendments after the final approval and granting of vested tights. Some were reviewed administratively, while others went to the Planning & Zoning Commission or City Council for review and approval. All were reviewed under the vested land use code (2008). Below is a summary of how this code amendment would have impacted those reviews. • Example of Major Amendment that does not change the final review body: The request to remove the sub -grade parking garage was processed as a Substantial Amendment to the Planned Development, requiring review and approval by the Planning & Zoning Commission anCouncil. Under the proposed code change, this s project amendment would have been considered a Major Amend Pit and would be reviewed under todav's land use co e ecause it changed the nature of the project and a key representation of the project. Moving this amendment to today's code would have required review and approval by City Council. This means the process for the review would have been the same, but the review standards would be the current ones as opposed to the standards from seven (7) years ago. Example of Major Amendment that does change the review body: The Aspen Club made two different requests related to lodge room count. First they requested to add lodge units, and then they requested to remove lodge units. ese were oth reviewed by the Planning & Zoning Commission. U� t p sed code change, these would be considered changes to the use mix and processed as a Maior Amdmt. This means tnrlax,°� rn�ie w»nlrl a»»lv a» t e review wou d he completed by CityenenCouncil. not the Planning & Zoning Commission. Example of Minor Amendment: The Aspen Club received approval from the Planning & Zoning Commission and City Council for an amendment to the building materials — the project was approved with a metal roof and the applicant requested a synthetic o e Amendment - Land st suede Reliance 10/26/2015 Page 3 of 4 roofing material made to look like metal. Under the proposed code change this would be coffered a Minor Amendment heeause it is a minor detail change and does not change Following the August 101h public hearing, staff contacted the Town of Telluride to better understand their amendment process and their process for Site Specific Development Plan approvals. According to their Town Planner, their process is almost identical to the City of Aspen's. If a project applies for an initial design review, they are subject to the code in effect when that application was made for the entirety of their multi -step application process. They do not subject a land use application to "pending ordinances," as that would violate state law. Telluride has not amended their code, but recognizes that their pending ordinance provision conflicts with state law and does not enforce it. REFERRALS & OUTREACH: A meeting was held with the Planning and Zoning Commission to obtain feedback on the proposed code amendment. The Planning & Zoning Commission strongly supported the code amendment as proposed by staff to ensure a fairer and clearer review process. A copy of their meeting minutes is attached as Exhibit B. The City Attorney's Office has reviewed the suggested approach and supports staffs recommendation. In addition, copies of the existing policy were sent to land use planners when it was issued. Additional outreach through the Community Development Department's newsletter was also conducted. STAFF RECOMMENDATION: Staff recommends adoption of the Ordinance. RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE): "I move to approve Ordinance No. 27, Series of 2015." CITY MANAGER ATTACHMENTS: Exhibit A — Staff Findings Exhibit B — P&Z meeting minutes, May 19, 2015 Exhibit C — Administrative Policy on Land Use Code Reliance Exhibit D — Proposed Code Language Exhibit E — Approved Policy Resolution Code Amendment - Land Use Code Reliance 10/26/2015 Page 4 of 4