HomeMy WebLinkAbout26.304.070 Major Minor Amendments to Site Specific Approvals (2020)CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE INTERPRETATION
JURISDICTION: City of Aspen
APPLICABLE CODE SECTIONS: 26.306: Interpretations of Title
26.304.070.A.4: Major and Minor
Amendments defined
EFFECTIVE DATE: ___`1 April 20', 2020
WRITTEN & APPROVED
Phillip Supino,
Community Development Director
SUMMARY OF INTERPRETATION: The Community Development Department is issuing this
Interpretation to determine the application of the Land Use Code as it relates to "Major" and "Minor"
amendments to site specific development plans. This interpretation is the result of staff discussions and
numerous requests from applicants and the public over several years regarding whether an amendment to a
site -specific development will be considered and processed as Major or Minor Amendment. A particular
property or approval was not considered in this interpretation. Only the general application of the Land Use
Code to future applications is addressed.
To date, a formal Interpretation of Land Use Code Section 26.304.070.A.4 has not been issued by the
Community Development Director. This interpretation is being issued pursuant to authority granted to the
Community Development Director in Sec. 26.306 of the Land Use Code.
DISCUSSION AND CLARIFICATIONS: The following provides discussion points and clarifications
relevant to this Interpretation.
• Pursuant to Land Use Code Section 26.304.070, the "period of pendency" is the period in which a
land use application progresses through the entitlement process. The period of pendency begins
when a land use application is deemed complete and ends when a decision is rendered. The "period
of pendency" does not include the three-year vested rights period, which begins after the approval
of a site -specific development plan has been issued.
• During the period of statutory vested rights, Minor Amendments to a site -specific development plan
are reviewed under the Land Use Code in effect during the original approval.
• Major Amendments to a site -specific development plan requested within the period of statutory
vested rights or after the expiration of vested rights, are subject to the Land Use Code in effect at
the time of the amendment submission, as opposed to the code in effect at the time of original
approval.
Page 1 of 4
• When Land Use Code changes are adopted or vesting periods for site specific development plans
near or pass expiration, amendment requests to site specific development plans require careful
consideration with respect to Minor or Major Amendment standards. The determination of Major
versus Minor Amendment requirements establishes the applicability of the Land Use Code in effect
at the time of land use application submittal (for Minor Amendments) or the current version of the
Land Use Code (Major Amendments).
The Community Development Director has final decision -making authority to determine if an
amendment to a site -specific development plan constitutes a Minor or Major Amendment.
INTERPRETATION: The following narrative will address Land Use Code Section 26.304.070.A.4., and
other Land Use Code Sections, as applicable:
• Decisions rendered in previous "Major" and "Minor" determinations will not be used to interpret
Land Use Code Section 26.304.070.A.4. and does not influence the Director's interpretation of the
plain language of this section. Previous determinations made used the best information at the time,
to the best of the Community Development Department's knowledge and ability but are not
otherwise binding on this Director. This interpretation will be used to decide how future Minor or
Major site -specific development plan amendments are considered and processed without prejudice
or reference to specific properties or land use applications.
While appointed Boards and City Council have certain powers to make land use decisions, Land
Use Code Section 26.304.070(a)(4): Major and Minor Amendments Defined is only to be used by
the Community Development Director in processing amendment requests. This Interpretation does,
however, acknowledge that pursuant to Land Use Code Section 26.415.070(e), the Historic
Preservation Commission (HPC) has certain powers to decide whether an amendment is
"Substantial" or "Insubstantial". While somewhat similar in purpose, Major and Minor
Amendments and HPC "Substantial" and "Insubstantial" Amendments are not synonymous in their
review criteria and are not considered or engaged equally. As such, it is not within the HPC's
purview to interpret or apply the criteria for Major or Minor Amendments to an approved site -
specific development plan, and past precedent or assessment of "Substantial" or "Insubstantial" are
not applicable to this determination.
• To better understand the context and use of Land Use Code Section 26.304.070(a)(4), the staff
memos of a 2015 Land Use Code amendment on this topic have been reviewed and considered.
Staff memos from that Land Use Code amendment process are'included as Exhibit A.
The Minor Amendments discussions in Exhibit A references the descriptive words "simple" and
"non -substantive", and the statement, "do not affect a project's original representations". By way
of example, the memos state 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 a staff memo
to City Council dated October 26, 2015 states that a change from an approved metal roof to a
Page 2 of 4
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 three of the October 26°i, 2015 memo in Exhibit A provides direction on what is to be
considered a Major Amendment. The memo identifies two specific examples of major amendments.
In one, the memo considers the removal of a subgrade parking garage, concluding that proposal
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 second refers to changes in an approved lodge
room count that would change the "use mix" and would be considered a Major Amendment. Based
on that language and examples, the removal of key elements of a site -specific development plan
would be considered a "major" amendment.
• The examples used in the adoption of this provision of the Land Use Code are useful in providing
clarity for future evaluation of whether an amendment is maj or or minor. But first the Director must
start with the plain language of the Code. Land Use Code Section 26.304.070.A.4: Major and Minor
Amendments Defined, states:
"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. " (Emphasis Supplied.)
Code interpretation is first based on the plain and accepted meaning of the language used. It must
be interpreted to give meaning to the provision as a whole to give consistent, harmonious, and
sensible effect to all its parts, reading words and phrases in context and construing them according
to the rules of grammar and common usage. Of note, is the use of the word "or" in this Section.
"Or" is a conjunction that indicates alternatives. The use of "or" establishes that the change of any
one of the attributes listed is sufficient to require compliance with Major review standards. All
attributes listed in the code section must be evaluated equally when making a "Major" or "Minor"
determination. Should any one or more of the attributes not meet the test for a Minor amendment,
the amendment must be considered Major.
• Applying this to the examples in the 2015 memos, removing an entire subgrade parking structure
would change every aspect of project. A lodge with parking is certainly different in many respects
than a lodge without parking. This was pointed out when Referendum 41 was passed, requiring a
reduction in parking obligations to go to the voters. In this example, a distinguishing argument must
be noted: The removal of a subgrade parking garage may be visually moot to a street observer in
terms of massing and dimensions However, the changes weighed against the remaining criteria
listed in the Land Use Code are significant and constitute a Major Amendment.
• The other example from the October 26, 2015 memo is perhaps more subtle but leads to a clear
understanding of the language used. Changing room counts in a lodge that changes the use mix may
also not change massing, dimensions or design to a street observer. But it certainly changes the
inherent nature, use, or character of the project. Project approvals are granted based on
representations made in development documents during the approval process. Development
Page 3 of 4
features such as room counts are defining characteristics of a project upon which review bodies base
decisions in quasi-judicial reviews. Changes to those features which change the nature, use, or
character of the project require further consideration by review agencies and bodies. The Major
Amendment process provides review bodies, agencies, and the public the opportunity for further
consideration.
• The example provided in the memo regarding the change in the height of a retaining wall in a setback
provides some guidance in this interpretation. In this case, it is hard to explain how this change
would change the inherent nature, use, massing, character, dimensions, or design of the project.
But this does not complete the discussion. The Director must also interpret the intent of this Code
section as providing discretion to the Community Development Department in evaluating whether
a proposed change is "inconsequential." Inconsequential is defined by Merriam-Webster.com as,
"of no significance, unimportant, irrelevant." The word is inherently subjective. The Director
agrees with the 2015 memo's use of other descriptors: the change is "simple", "non -substantive",
and "does not affect a project's original representations." A proposed amendment may increase the
square footage of a project by 100 square feet, thus changing the dimensions and massing of the
project. For a 10,000 square foot commercial project that would properly be deemed
inconsequential.
• In summary, the application of code section 26.304.070.A.4 requires that the Director consider all
attributes of the development in question to determine whether a proposed amendment constitutes
a Minor or Major Amendment. A change of any one of the attributes and their relationship to the
representations in the original project approvals is sufficient justification for the Director to deem a
proposed amendment as a Major Amendment.
• Interpretations outside the bounds of the plain language codified in Land Use Code Section
26.304.070(A)(4) would require a Land Use Code amendment procedure outlined in Land Use Code
Section 26.310: Amendments to The Land Use Code and Of Zone District Map.
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 April 20th, 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: 2015 Staff Memoranda regarding Land Use Code Section 26.304.070.A.4
Page 4 of 4
Code Amendment - Land Use Code Reliance
First Reading – 7/27/2015
Page 1 of 3
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Jessica Garrow, Long Range Planner
THRU: Chris Bendon, Community Development Director
RE: Land Use Code Reliance Code Amendment
1st Reading of Ordinance 27, Series of 2015
DATE: July 27, 2015
(PH August 10, 2015)
SUMMARY:
The attached Ordinance would amend City’s Land Use Code to clarify which land use code a
project may rely on when part of a multi-step process or when amending a previous approval.
STAFF RECOMMENDATION:
Staff recommends approval of the proposed Ordinance on First Reading.
LAND USE REQUESTS AND REVIEW PROCEDURES:
This meeting is to review potential changes to the City’s Land Use Code. 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. These questions arise when projects are
part of a multi-step process, such as a project requiring Conceptual HPC Review, and Final HPC
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.
OVERVIEW:
Nearly all projects require amendments to their approvals, and this code change would clarify
how to determine which land use code an amendment is subject to. In addition, it would address
which land use code is in effect when multi-step land use processes are required.
EXHIBIT A
Code Amendment - Land Use Code Reliance
First Reading – 7/27/2015
Page 2 of 3
Minor Amendments: Most amendments are simple, non-substantive changes that do not affect
a project’s original representations. For example, in 2014 the Aspen Club received an
amendment approval from the Planning and Zoning Commission to amend a few retaining wall
heights in a setback area along the back of the property. The City applied the same codes to the
amendment as were in effect when the project originally received approval. The proposed code
amendment would clarify that the vested land use code applies.
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,
etc. 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 so-called major amendments to be subject to the code in effect upon submission, and would
prevent an applicant from using a decades old land use code.
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 department 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.
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. For instance, an application for a
Subdivision would not vest an applicant in that code for a subsequent separate application for
Commercial Design Review.
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 staff’s 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 is also being conducted.
STAFF RECOMMENDATION:
Staff recommends adoption of the Ordinance, on First Reading.
Code Amendment - Land Use Code Reliance
First Reading – 7/27/2015
Page 3 of 3
RECOMMENDED MOTION (ALL MOTIONS ARE PROPOSED IN THE AFFIRMATIVE):
“I move to approve Ordinance No. 27, Series of 2015, on First Reading.”
CITY MANAGER COMMENTS:_____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
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
Second Reading – 8/10/2015
Page 1 of 3
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Jessica Garrow, Long Range Planner
THRU: Chris Bendon, Community Development Director
RE: Land Use Code Reliance Code Amendment
Ordinance 27, Series of 2015
DATE: August 10, 2015
SUMMARY:
The attached Ordinance would amend City’s Land Use Code to clarify which land use code a
project may rely on when part of a multi-step process or when amending a previous approval.
STAFF RECOMMENDATION:
Staff recommends approval of the proposed Ordinance on First Reading.
LAND USE REQUESTS AND REVIEW PROCEDURES:
This is the second reading of proposed code amendments related to which land use code a project
may rely on when part of a multi-step process or when amending a previous 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. These questions arise when projects are
part of a multi-step process, such as a project requiring Conceptual HPC Review, and Final HPC
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.
Since first reading, staff reworked language to use the term Site-Specific Development Plan.
This is a term used in State Statute and in the City’s land use code and its use here, instead of
“project,” is much clearer. Staff also included language regarding multiple step applications,
such as “conceptual” and “final.” The City’s position has always been that an application for
Code Amendment - Land Use Code Reliance
Second Reading – 8/10/2015
Page 2 of 3
conceptual vests the application through the processing of both conceptual and final. There has
been recent discussion of this practice, highlighting the need for clarity.
OVERVIEW:
Nearly all projects require amendments to their approvals, and this code change would clarify
how to determine which land use code an amendment is subject to. 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. For example, in 2014 the Aspen Club received an
amendment approval from the Planning and Zoning Commission to amend a few retaining wall
heights in a setback area along the back of the property. The City applied the same codes to the
amendment as were in effect when the project originally received approval. The proposed code
amendment would clarify that the vested land use code applies.
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,
etc. 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 so-called major amendments to be subject to the code in effect upon submission, and would
prevent an applicant from using a decades old land use code.
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 department 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.
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. For instance, an application for a
Subdivision would not vest an applicant in that code for a subsequent separate application for
Commercial Design Review.
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
Code Amendment - Land Use Code Reliance
Second Reading – 8/10/2015
Page 3 of 3
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 staff’s 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 is also being 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 COMMENTS:_____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
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
Second Reading – 8/10/2015
Page 1 of 3
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Jessica Garrow, Long Range Planner
THRU: Chris Bendon, Community Development Director
RE: Land Use Code Reliance Code Amendment
Second Reading, Ordinance 27, Series of 2015
DATE: August 24, 2015
SUMMARY:
The attached Ordinance would amend City’s Land Use Code to clarify which land use code a
project may rely on when part of a multi-step process or when amending a previous approval.
STAFF RECOMMENDATION:
Staff recommends approval of the proposed Ordinance on Second Reading.
LAND USE REQUESTS AND REVIEW PROCEDURES:
This is the second reading of proposed code amendments related to which land use code a project
may rely on when part of a multi-step process or when amending a previous 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. These questions arise when projects are
part of a multi-step process, such as a project requiring Conceptual HPC Review, and Final HPC
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.
Since first reading, staff reworked language to use the term Site-Specific Development Plan.
This is a term used in State Statute and in the City’s land use code and its use here, instead of
“project,” is much clearer. Staff also included language regarding multiple step applications,
such as “conceptual” and “final.” The City’s position has always been that an application for an
approval of a site specific development plan shall be reviewed based on the laws in effect at the
Code Amendment - Land Use Code Reliance
Second Reading – 8/10/2015
Page 2 of 3
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 require amendments to their approvals, and this code change would clarify
how to determine which land use code an amendment is subject to. 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. For example, in 2014 the Aspen Club received an
amendment approval from the Planning and Zoning Commission to amend a few retaining wall
heights in a setback area along the back of the property. The City applied the same codes to the
amendment as were in effect when the project originally received approval. The proposed code
amendment would clarify that the vested land use code applies.
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,
etc. 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 so-called major amendments to be subject to the code in effect upon submission, and would
prevent an applicant from using a decades old land use code.
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 department 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.
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. For instance, an application for a
Subdivision would not be able to rely on the code in place at the time of the
application for subdivision when it applied for a subsequent separate application for
Commercial Design Review.
REFERRALS & OUTREACH:
Code Amendment - Land Use Code Reliance
Second Reading – 8/10/2015
Page 3 of 3
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 staff’s 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 is also being 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 COMMENTS:_____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
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 1 of 4
MEMORANDUM
TO: Mayor Skadron and City Council
FROM: Jessica Garrow, Long Range Planner
THRU: Chris Bendon, Community Development Director
RE: Land Use Code Reliance Code Amendment
Ordinance 27, Series of 2015
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 HPC 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 application
Code Amendment - Land Use Code Reliance
10/26/2015
Page 2 of 4
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 wall heights in a setback area
along the back of the property. The City applied the 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,
etc. 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.
Updates Since Second Reading: Staff has refined the proposed code language since the August
10th Council meeting. The language is broken into subsections in an effort to be clearer. In
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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. In 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 rights. 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 and City Council. Under the proposed code change, this project amendment
would have been considered a Major Amendment and would be reviewed under today’s
land use code because 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. These were both reviewed by the
Planning & Zoning Commission. Under the proposed code change, these would be
considered changes to the use mix and processed as a Major Amendment. This means
today’s code would apply and the review would be completed by City Council, 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 roofing
material made to look like metal. Under the proposed code change this would be
considered a Minor Amendment because it is a minor detail change and does not change
the inherent nature or use of the project.
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Following the August 10th 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 staff’s 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 COMMENTS:_____________________________________________________
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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