HomeMy WebLinkAboutMajor_Minor_Interp_FINALCITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE INTERPRETATION
JURISDICTION:City of Aspen
APPLICABLE CODE SECTIONS:26.306: Interpretations of Title26.304.070.A.4: Major and Minor Amendments defined
EFFECTIVE DATE:March _____ th, 2020
WRITTEN & APPROVEDBY:______________________________________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 yearsregarding the degree to which an amendment to a site-specific development will beconsidered and processed as Major or Minor Amendment. A particular property or approvalwas not consideredin this interpretation. Only the general application of the Land Use Code to future applicationsis addressed.
DISCUSSION AND CLARIFICATIONS:The following provides discussion points and clarificationsrelevant to this 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.
Pursuant to Land Use Code Section 26.304.070, the “period of pendency” isthe duration 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 rightsperiod, which begins after the approval of a site-specific development plan has been issued.
During the period of statutory vested rights, Minor Amendmentsto a site-specific development plan arereviewed under the Land Use Code in effect during the initial approval.
Major Amendmentsto 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.
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 MinorAmendments) or the current version of the Land Use Code (Major Amendments).
The Community Development Director has final decision-making authorityto determine if an amendment to a site specific development plan constitutes a Minor or Major Amendment.The Land Use Code does not provide for an appeal process to such determinations.
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 plain language reading ofthis section. Previous determinations made used the best information at the time, to the best of the Community Development Department’sknowledge and ability.This interpretation will be used to decide how future Minor or Majorsite-specific development plan amendmentsare considered and processed without prejudice or reference to specific properties or land use application.
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 Definedis only to be used by the Community Development Director in the processing of amendment requests.This Interpretation does,however, acknowledge that pursuant to Land Use Code Section 26.415.070.E, the Historic Preservation Commission (HPC) hascertain powers to decide whether an amendment is “Substantial” or “Insubstantial”. While somewhat similar in name, Major and Minor Amendments and HPC “Substantial” and “Insubstantial” Amendments are notsynonymous in their review criteriaandare not considered or engaged equally. As such, it is not within the HPC’s purview to differentiate between a Major or Minor Amendment to an approved site-specific development plan, and pastprecedent or assessment of “Substantial” or “Insubstantial” are not applicable.
To better understand the context and use of Land Use Code Section 26.304.070.A.4, the staff memo and Council discussion of a 2015 Land Use Code amendment on this topic oughtto be considered. The 2015 staff memois included as Exhibit A.
TheMinor Amendments heading onpage two of Exhibit A references thedescriptive words “simple” and “non-substantive”, and the statement,“do not affect a project’s original representations”. By way of example, the memostates 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 three of Exhibit A provides direction 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 changethe nature of the project and key representations made at the time of the approval.The 2015 Staff memo also states that changes in an approved lodge room count changes the “use mix” and would be considered a major amendment. Based on that language and example, the removalof keyelements of a site-specific development plan would be considered a “major”amendment.
The application of Land Use Code Section 26.304.070.A.4 will be usedin the following hypothetical example amendment to a site-specific development plan for the removal of a portion of the basement in a mixed-use building. The plain language reading of the Land Use Code is key to this example,and all the attributes in this code section (underlined) must be analyzed.Of note, use of the word “or” in Section 26.304.070.A.4 establishes that any one of the attributes listed are 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 is considered Major.
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 inherentnature, 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.”
Given that a basement is subgrade, and, with all other aspects of the project remaining unchanged, it can reasonably be considered that itsreduction in size wouldnot change the visual massing or character of the project in an inherent manner. Shouldthe basement reductionestablish a change relating to visual massing or character, it can reasonably be considered that the manner of the change wouldbe inconsequential in nature.
The remaining attributes inherent nature, use,dimensions, and design require furtherconsideration. 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 inherent nature, use, dimensions, and design characteristics of the project. Thus, the proposed change would fail to meet the “inconsequential” standard in the code section.
To provide further clarity, using Exhibit A as a basis for establishing theintent of this Code section, to be considered a MinorAmendment, 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”. Absentthe proposed amendment clearly meeting the intent ofthese descriptors, a basement size reduction would not meet this test and the amendment would be considered Major.
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. Any one of the attributes and their relationship to the representations in the original project approvalsaresufficient justification for the Director to deem a proposed amendment as a Major Amendment.
Interpretations outside the bounds of representations made during the 2015 Major and Minor Code amendment hearings andexpandedreading beyond the plain language codified in Land Use Code Section 26.304.070(A)(4) would require aLand Use Code amendment procedure outlined in Land Use Code Section 26.310: Amendments to The Land Use Code and Official 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 March _______, 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: October 26th, 2015 Staff Memorandum regarding Land Use Code Section 26.304.070.A.4