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HomeMy WebLinkAboutMemo.823 E Dean St MEMORANDUM TO: City of Aspen Planning and Zoning Commission FROM: Sophie Varga, Zoning Administrator THROUGH: Ben Anderson, Community Development Director MEMO DATE: December 27th, 2024 MEETING DATE: January 7th, 2024 RE: Appeal of Administrative Determination that a Project Triggers Demolition REQUEST OF THE PLANNING AND ZONING COMMISSION: The Planning and Zoning Commission (P&Z) is asked to review, consider, and affirm an administrative determination that a project triggers demolition. SUMMARY: The Land Use Code (LUC) assigns responsibility to the Community Development Director to make determinations in the relationship between the Common Development Procedures found in the LUC, other applicable sections of the LUC, and site-specific development processes, timelines, and conditions. If an applicant for a determination or any other affected entity does not agree with an issued determination, the code affords the right to appeal the decision to the appropriate body. Section 26.580.070, Demolition – Appeals, states that appeals of determinations that a project triggers demolition are heard by the Planning and Zoning Commission. The applicant requested a determination regarding if a proposed project would count as demolition. The proposal includes deconstructing an existing structure and reusing the materials for a new structure. The proposed reuse plan is included in Exhibit A, Record of Files, on pages 17 and 18. The removed roof framing would be reused as roof framing infill in the new structure. The removed exterior walls would be reused in the proposed basement as furring around the foundation perimeter. The applicant suggested that the proposal would fall into Exemption d, 26.580.050.d: If an existing structure is to be temporarily relocated, on or off-site, and placed back on an existing or reconfigured foundation that action shall not be considered Demolition for the purposes of this Chapter. This exemption applies when a structure is lifted in whole and placed back on a foundation. The Zoning Administrator, in consultation with and representing the Community Development Director, made the determination that their proposal to deconstruct the structure did not meet the exemption and would count as demolition. Staff Memo, 823/825 East Dean Street Appeal of Administrative Determination Change in Use Page 2 of 5 An Application for an Appeal of the Administrative Determination was received from the Applicant on November 15, 2024. The Planning and Zoning Commission is the final decision-making authority for this review. STAFF DISCUSSION AND BACKGROUND: On September 30th, 2024, the applicant reached out to the Zoning Administrator, Sophie Varga, and Chief Building Official, Bonnie Muhigirwa, to discuss a proposed project. The applicant was in the design phase and requested direction regarding if the City would view the proposal as triggering demolition. The applicant and Staff discussed the proposal via email and in a meeting. All documents are included in Exhibit A, Record of Files. The applicant described the proposal as a renovation and addition for a single-family home. This would involve deconstructing the existing structure by panelizing walls and roof, storing the panelizing structure off site while the new subgrade space was built, and then bringing the panelized structure back on site to incorporate into the new build. Importantly, based on the proposal so far, these panels would primarily be used as furring out sub-grade walls. Staff informed the applicant that this proposal would count towards the demolition percentage for the structure and that the exemption provided in 26.580.050.d would only apply if the entire structure was lifted in one piece and placed back in the same location. It would not apply if a structure was de-constructed and individual wall and roof elements re-utilized for other purposes. The applicant team and the Zoning Administrator and the Chief Building Official met on October 16th, 2024. The proposal’s interaction with the land use code was discussed as well as the option to appeal a determination. The implications of triggering demolition on the property were also covered. This included: 1. The requirement to attain a GMQS Demolition Allotment. 2. Following demolition, the allowable floor area on the property for redevelopment of the proposed use (single family residence) in the Residential Multi-Family (RMF) Zone District is reduced by 20% (from the allowance in the R-6 for a SFR). This reduction aligns with the purpose of the Zone District: “The purpose of the Residential Multi-Family (RMF) Zone District is to provide for the use of land for intensive long-term residential purposes, Short-term Rentals, and customary accessory uses.” (26.710.090.a) The floor area reduction is intended to encourage the development of dwelling units at a higher intensity and density. Staff requested that the applicant submit existing and proposed plans (included in Exhibit A, pages 14-20). The Community Development Director, Chief Building Official, and Zoning Administrator analyzed the proposal against the code laid out in 26.580, Demolition. The Zoning Administrator, acting on behalf of the Community Development Staff Memo, 823/825 East Dean Street Appeal of Administrative Determination Change in Use Page 3 of 5 Director, informed the applicant that the proposal did not meet the exemption criteria and would meet the definition of demolition (email November 11, 2024). The applicant formally appealed the decision on November 15th, 2024. It is of note that a permit has not yet been submitted at this time for the proposal. BASIS FOR ADMINISTRATIVE DETERMINATION: The Community Development Director, Chief Building Official, and Zoning Administrator analyzed the proposal against the code laid out in 26.580, Demolition. They found that deconstructing the entire building, reusing exterior walls subgrade for furring, and reusing existing roof as framing infill did not meet any of the exemptions. The proposal met the definition of demolition: Demolition. To raze, disassemble, tear down or destroy forty (40) percent or more of an existing structure (prior to commencing development) as defined and described in Chapter 26.580. For the method of determining demolition, see Section 26.580.040, Measurement of demolition. Section 26.580.040, Measurement of demolition, states that exterior wall assemblies above finished grade and existing roof assemblies are included when calculating demolition. Any existing roof assemblies or wall assemblies that are removed count towards the demolition percentage. In this instance, all existing roof and wall assemblies are proposed to be removed. Together, these findings establish the basis for the Determination. STANDARD OF REVIEW: 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 [Planning and Zoning Commission] 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 the Planning and Zoning Commission 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.) Staff Memo, 823/825 East Dean Street Appeal of Administrative Determination Change in Use Page 4 of 5 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). ). “If there is a reasonable basis for the agency’s application of the law, the decision may not be set aside on review.” Platte River Envtl. Conservation Org., Inc. v. National Hog Farms, Inc., 804 P.2d 290, 292 (Colo. 1990), citing Lee v. State Bd. of Dental Examiners, 654 P.2d 839 (Colo. 1982). 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). When reviewing a decision for misapplication of a code provision, the reviewing body "must determine whether the [locality] correctly construed the applicable Code provisions and, if so, whether it abused its discretion in applying those provisions to the facts before it." Langer v. Bd. of Cnty. Comm'rs, 462 P.3d 59, 64-65 (Colo. 2020). STAFF COMMENT: 1) Due Process. The applicant submitted a proposal to the Zoning Administrator to understand if the City of Aspen would state that it would trigger demolition. The issue was researched and discussed with the applicant, as well as internally with the Chief Building Official and Community Development Director. The Zoning Administrator let the applicant know in writing that the proposal would trigger demolition and including information regarding the Appeal Process. The Application for the Appeal was received within 14 days of the issuance of the determination. The Appeal was publicly noticed. Staff finds that proper procedural due process has been provided. In making the initial determination, Staff referred to the LUC provisions regarding demolition Staff finds that use of applicable code language provide substantive due process. This was not an arbitrary decision. 2) Discretion. The determination issued by the Community Development Director, via the Zoning Administrator, was based on the code in Chapter 26.580, Demolition. The proposal meets the definition of demolition and does not meet the criteria. The determination was neither arbitrary nor capricious in the exercise of authority. 3) Jurisdiction. The Director’s jurisdiction includes the ability to make decisions regarding the Demolition Chapter (26.580). Staff finds that the determination is a necessary component of the Director’s authority and is not in excess of jurisdiction. Staff Memo, 823/825 East Dean Street Appeal of Administrative Determination Change in Use Page 5 of 5 ACTIONS FOLLOWING APPEAL HEARING: Section 26.316.030.f reads as follows: Action by the decision-making body hearing the appeal. The decision-making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by resolution. All appeals shall be public meetings. RECOMMENDATION: Staff finds the Director’s Administrative Determination was rendered ethically, provided procedural and substantive due process, and did not exceed jurisdiction or abuse discretion. Staff recommends the Planning and Zoning Commission affirm the Director’s determination. The attached resolution is written in the affirmative, and staff recommends P&Z approve the resolution. Alternatively, the Commission may reverse the Director’s determination. There is an alternative Resolution provided that would support the applicant’s appeal by reversing the determination. EXHIBITS: Exhibit A – Record of Files