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HomeMy WebLinkAboutLtr to Jen Phelan Re Code Interpretation v7 11 26 19 GIDEON I. KAUFMAN* HAL S. DISHLER ** PATRICK D. MCALLISTER * ALSO ADMITTED IN MARYLAND ** ALSO ADMITTED IN TEXAS LAW OFFICES OF KAUFMAN, DISHLER & MCALLISTER, P.C. 315 EAST HYMAN AVENUE SUITE 305 ASPEN, COLORADO 81611 TELEPHONE (970) 925-8166 FACSIMILE (970) 925-1090 November 26, 2019 Via Hand Delivery Via Email at jennifer.phelan@cityofaspen.com Jennifer Phelan Interim Planning Director, City of Aspen 130 S Galena St 3rd Floor Aspen, CO 81611RE: 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, doesa 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 1-6outlined above.If the HPC 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 has chosen not to exercise its right to call up for review, that action demonstratesCouncil 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 leasable 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.There is also clear recent precedent for determining when an amendmentto a project should 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 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 minorsince the amendments were generally consistent with the conceptual approval. 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 amendment as those which do not change the inherent nature, use, massing, character, dimension, or design of a project. If one carefully examines the code language, for the definition of 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 amendmentproposes 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, Kaufman, Dishler & McAllister, P.C. A Professional Corporation By:________________________ Gideon Kaufman