HomeMy WebLinkAboutordinance.council.021-02 ORDINANCE NO. 21
(SERIES OF 2002)
AN ORDINANCE OF THE CITY OF ASPEN TO AMEND CHAPTER 26.590
26.590, TIMESHARE, AND RELATED SECTIONS OF THE CODE, THESE BEING
SECTION 26.104.100, DEFINITIONS; 26.710.320, LODGE PRESERVATION OVERLAY
ZONE DISTRICT; 26.710.190, LODGE/TOURIST RESIDENTIAL ZONE DISTRICT;
26.710.330, SKI AREA BASE ZONE DISTRICT; 26.710.140, COMMERCIAL CORE
ZONE DISTRICT; 26.710,200, COMMERCIAL LODGE ZONE DISTiCh; 26~480.030
SUBDIVISION EXEMPTIONS; 26.480,040 SUBDI~SiON
PROCEDURES; 26.510.030, PROCEDURES FOR SIGN PERMIT APPROVAL; AND
26.470.070, GMQS EXEMPTIONS
WHEREAS~ the City Council and the Plarming and Zoning Commission of the City of
Aspen directed the Community Development Department to propose amendments to the
Land Use Code to better address the emerging types of timeshare and fractional fee projects that are
being planned in Aspen; and,
WHEREAS, in response to this direction, the Community Development Director prepared
the research paper Fractional Fee Ownership - Summary of Research and Identification of
Regulator3; Options, dated January, 2002; and,
WHEREAS, a work session was held with the Aspen City Council and the Plarming and
Zoning Commission on February 12, 2002, at which time a discussion of the research paper was
held and direction was given to the Community Development Director to prepare the appropriate
amendments to the Aspen Land Use Code; and,
WHEREAS, a work session was held with the Planning and Zoning Commission on March
26, 2002, to review a first draft of these proposed amendments to the Land Use Code, at which time
it was determined that a public hearing should be scheduled to consider the proposals; and,
WHEREAS, pursuant to Section 26.310 of the Aspen Land Use Code, applications to
amend the text of Title 26 of the Municipal Code shall be reviewed and recommended for approval,
approval w/th conditions, or denial by the Community Development Director and then by the
Planning and Zoning Commission at a public hearing. Final action shall be by City Council after
reviewing and considering these recommendations; and,
WHEREAS, the Community Development Director recommended approval of the
amendments to the Land Use Code as are described herein; and,
WHEREAS, the Planning and Zoning Commission conducted a duly noticed public
hearing on May 21, June 4, and June 11, 2002, to consider these amendments to the Aspen Land
Use Code, took public testimony, and considered the recommendations of the Planning Director;
and,
WIIEREAS, at the conclusion of the public hearing, the Planning and Zoning Commission
reconunended approval of these amendments by a vote of 4 (four) in favor to 1 (one) against; and,
WHEREAS, the City Council reviewed and considered the recommendations of the
Community Development Director and the Planning and Zoning Commission during a duly noticed
public hearing; and,
WHEREAS, the City Council finds that the amendments to the Aspen Land Use Code, as
described herein, meet or exceed all applicable standards and their approval is consistent with the
goals and elements of the Aspen Area Community Plan; and,
WI-IEREAS, the City Council finds that this Ordinance furthers and is necessary for the
promotion of the public health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY TIlE CITY COUNCIL OF THE CITY OF
ASPEN COLORADO:
Section 1:
That Chapter 26.590 of the Aspen Municipal Code be repealed and re-enacted to read as follows:
Chapter 26.590
TIMESHARE DEVELOPMENT
26.590.010 Purpose and Intent.
The purpose of this chapter is to establish the procedures and standards by which timeshare
development may be permitted within the City of Aspen. It is the City's intent to establish
timeshare regulations that provide for the protection of the character of Aspen as a resort
community, and that help to promote increased tourism and vitality within the City. Specifically,
the City intends that new timeshare projects in Aspen will implement the goals of the Aspen Area
Community Plan, and will help to ach/eve the following public purposes:
A. Increased Vitality. Timeshare developments can provide the opportunity for increased
tourism to Aspen, can add to the level of community vitality, and can help to create a more
sustainable local economy. This can be accomplished by expanding the number and variety
of "hot beds" available to visitors, raising occupancy levels in the accommodations sector,
and attracting "new trials" to Aspen, from persons who have not previously visited th/s
community.
B. Preserve and Enhance Lodging Inventory. Aspen's tourist accommodations inventory has
for some time included a significant percentage of traditional lodges. The community
would like to preserve and enhance this lodging inventory, by encouraging timeshare units
to be contained in projects that look and operate in a manner similar to Aspen's traditional
lodges. These regulations have been designed to accomplish this purpose by establishing
standards for the physical and operational features of timeshare lodges, to ensure that neTM
and re-developed timeshare lodges maintain Aspen'S lodging traditions.
C. Upgrade Quality of Accommodations. It is important to Aspen's tourist economy that its
accommodations are kept up-to-date. Timeshare development offers the opportunity to
infuse capital into the short term accommodations inventory, so facilities can be
modernized. It is equally important to enSure that once facilities are upgraded, the facility is
managed to provide a quality visitor experience over time. These regulations are intended
to ensure that timeshare lodges are properly maintained over the life of the development.
D. Maintain Community Character. Aspen has a valued reputation as a quality resort
community. The City intends to regulate timeshare marketing and Sales practices, to ensure
that the way timeshare estates are marketed and sold is consistent with the character of this
communitY, and to minimize the potential for practices that would create an inappropriate
image of Aspen. The City also intends to provide protection for its long term residential
neighborhoods, to ensure that the impacts of timeshare develOpment do not adversely affect
the character of these residential areas, by limiting this use to the City's lodge and selected
commercial zone districts.
26.590.020 Overview of Timeshare DeVelOpment.
A. Applicability. The requirements of this Chapter shall applY to all timeshare development
within the City of Aspen. These requirements shall be in addition to all other applicable
requirements set forth in this Title 26, and those set forth in the Colorad° statutes.
B. Types of Timeshare Development. There are t~vo types of timeshare development that may
be permitted within the City of Aspen, as follows:
1. Timeshare lodge development is the basic form of timesharing permitted in Aspen. It
applies to any application to convert lodge units or residential dwelling units to timesharing
or to develop new units for timesharing, except for those applications that are eligible for an
exemption, as described below. Timeshare lodge development is a permitted use in the
Lodge/Tourist Residential (L/TR), Commercial Lodge (CL), Lodge Preservation Overlay
(LP), Commercial Core (CC), and Ski Area Base (SKI) zone districts. To obtain approval
of a timeshare lodge development, an applicant shall folloTM the procedures outlined in
Section 26.590.040 and shali comply With the applicable characteristics of Section
26.590.060 and the applicable standards of Section 26.590.070.
2. Exempt timesharing is a more limited type .of timesharing permitted in Aspen. The onlY
units eligible for this exemption are single-family dwelling units, condominiumized duplex
dwelling units, and condominiumized multi-family dwelling unitS Within any individual
condominium complex or condominium project that contains no more than six (6) such
units. Exempt timesharing is a permitted use in the Lodge/Tourist Residential (L/TR) and
the Ski Area Base (SKI) zone districts. To obtain approval for exempt timesharing, an
applicant shall follow the procedures outlined in Section 26.590.030 B and shall comply
with the standards of Section 26.590.030 C.
26.590.030 Exempt Timesharing.
A. Eligibility For Exemption.
1. The following types of dwelling units are eligible to apply for this exemption:
a. Single-family dwelling units;
b. Condominiumized duplex dwelling units; and
c. Condominiumized multi-family dwelling units within any individual condominium
complex or condominium project that contains no more than six (6) such units.
2. To be eligible to apply for the exemption, the single-family, duplex, or multi-family
dwelling units must be located in the Lodge/Tourist Residential (L/TR) zone district or the
Ski Area Base (SKI) zone district.
B. Minimum Requirements To Obtain Exemption.
1. No more than six (6) estates may be created in any dwelling unit via this exemption. An
applicant wishing to create more than six (6) estates in any unit may do so only via an
application for a timeshare lodge development.
2. The ownership interests that may be created pursuant to this exemption shall be limited to
"time-span estates" as defined in C.R.S. 38-33-110, where the annually recurring exclusive
right to possession and occupancy is determined by a schedule or formula.
3. Apphcations for exempt timesharing shall be processed as a subdivision exemption,
pursuant to Section 26.480.030 A. 5. of this Code.
4. The minimum application contents for the subdivision exemption application shall be as
follows:
a. The applicable portions of the information described in Section 26.590.050 A., B., F and G.;
and
b. The general application contents required in Section 26.304.030, Application and Fees.
Review Standards for Exemption. An applicant for exempt timesharing shall demonstrate
compliance with each of the following standards. These standards are in addition to those
standards applicable to the [eview of the subdivision exemption.
1. The proposal shall not conflict with any applicable deed restrictions or private covenants, or
with any provisions of the Colorado statutes. If the proposal is for a condominium, it shall
comply with the applicable provisions of Section 26.590.070 I. of this Code.
2. All units to be converted to timesharing shall comply with the City's adopted fire, health,
and building codes. If any unit does not comply with said codes, then no sale of an interest
in that unit shall be closed until a certificate of occupancy has been issued that brings the
unit into compliance.
3. All dwelling units to be converted to timesharing shall comply with the requirements of the
zone district in which they are located and all other applicable standards of this Land Use
Code, or with the requirements of any PUD or other site specific development approval
granted to the property.
4. The conversion of any multi-family dwelling unit that meets the definition of residential
multi-family housing to timesharing shall comply with the provisions of Chapter 26.530,
Resident Multi-Family Replacement Program, even when there is no demolition of the
existing multi-family dwelling trait.
5. The marketing, sales, management, and operation of the fimeshare estates shall comply with
the provisions of Sections 26.590.070 F. and 26.590.070 J. of this Code.
6. A wall sign shall be mounted on each building stating that it has been approved by the City
for timesharing and providing the name and phone number of a management entity or local
contact person who can be called in the event of an emergency or to respond to
neighborhood conccn'ns. The sign shall comply with the requirements of Section
26.510.030 B.22. of this Code.
7. Development shall be in compliance with the provisions of the Subdivision requirements in
Section 26.480 when new lots or units are created.
26.590.040 Procedure for Review of Timeshare Lodge DevelOpment Application.
All timesharing that is not eligible for an exemption shall be processed as follows:
A. PUD Review Required. Timeshare lodge development shall be processed as a Planned Unit
Development (PUD), pursuant to Chapter 26.445 of this Code.
B. Consolidated PUD Review. The Community Development Director may determine that
because a timeshare lodge development is a conversion of an existing building, or because
of the limited extent of the issues involved in the proposal, the four step PUD review
process should be consolidated into a two step review, pursuant to Section 26.445.030 B.2,
Consolidated Conceptual and Final Review. Development of a timeshare lodge in the
Lodge Preservation Overlay (LP) Zone District shall be processed as a two step review,
pursuant to Section 26.445.030 B.3. The Community Development Director is also
authorized to waive those PUD submission requirements from Section 26.445.060 and
review standards fi'om Section 26.445.050 that the Director finds are not applicable to a
proposed timeshare development.
C. Subdivision Review. Timeshare lodge development shall also require subdivision approval.
Review of the subdivision application may be combined with final PUD review, as
authorized by Section 26.304.060 B., Combined Reviews, and by Section 26.445.030 B.4,
Concurrent Associated Reviews.
D. Growth Management Quota System Review. Whenever a proposed timeshare lodge
development or exempt timesharing is subject to review under the City's Growth
Management Quota System (Chapter 26.470), the development shall be considered to be a
"Tourist Accommodation" or a "Lodge" under that System.
E. Authority to Grant Variations. Variations from the requirements applied to fimeshare lodge
development may be authorized by the City Council. An applicant requesting a variation
shall demonstrate that the provision requested to be varied is not applicable.to the proposed
development or cannot be met, and shall demonstrate that the 'proposed variation is
reasonable, would not be contrary to the public interest, and better implements the purpose
and intent of these timeshare regulations than the codified requirement.
26.590.050 Contents of Application.
In addition to the general application information required in Section 26.304.030, Application and
Fees, and those apphcation contents for PUD and subdivision, the application for timeshare lodge
development shall include the following information. For projects that require both conceptual and
final review it is expected that this information will be provided in a preliminary manner at the
conceptual stage and in a detailed manner at the final stage.
A. Timeshare Use Plan. A detailed description of the basic elements of the proposed
timeshare use plan. The use plan shall describe the number of estates being created in each
unit, the total number of estates to be created, the expected price for each estate, and
whether a purchaser is buying a specific unit for a specific time, a specific unit for a floating
time, or whether there is no specific unit but just a specific time. It shall also describe
whether owners will be able tO participate in an exchange program, and if so, in which
program(s) they will be eligible to participate. The use plan shall also provide a specific
description of how the development will comply with the requirements of Section
26.590.060, Characteristics of a Timeshare Lodge.
B. Summary of Disclosure Statement and Timeshare Instruments. A detailed summary of each
of the key points that will be included in the disclosure statement and the timeshare
development instruments (see Section 26.590.090) if the project receives approval from the
City.
C. Management Plan. A plan for how the timeshare development will be managed, describing
whether the applicant will manage the project, or if it will be managed by a management
company, a branded company, or other entity, and describing how the project will be
operated.
D. Marketing Plan. The marketing plan for the timeshare development, including information
on proposed sales techniques (including a description of gifts, premiums, or promotions to
be offered), sales packaging, and whether a sales office will be established off-site.
E. Budget. A planned budget for the proposed homeowners/condominium association
estimating the proposed costs and expenditures for the management and maintenance of the
timeshare development.
F. Upgrading Plan. For any existing project that is proposed to be converted to a timeshare
lodge development, the applicant shall submit a plan of how the project will be physically
upgraded and modernized.
G. Tax Collection. A statement indicating the maturer in which real estate transfer taxes and
sales taxes will be collected.
Developer's Registration. A copy of the developer's registration with the Colorado Real
Estate Commission. If the developer has not so registered at the time of submission of the
application, then this information shall be submitted at the time the timeshare documents
are submitted for recordation, pursuant to Section 26.590.090 of this Code.
26.590.060 Characteristics of a Timeshare Lodge Development
It is the intent of the City of Aspen that all timeshare lodge developments incorporate some of the
physical and operational features that are typically found in lodges in Aspen. The City recognizes
that each timeshare development is unique, and that each development should not contain ail of
these features. In fact, considering the proposed location of the development and the intended
method of operating the facility, certain of these features may not be appropriate. The City also
recognizes that when owners occupy their units, the development will operate more like a private
residential complex than like a lodge. But the City seeks to balance that form of use with
opportunities for other guests to use the facility. Therefore, the City has identified a menu of
timeshare lodging features, including both mandatory and optional elements. All timeshare lodge
developments shall incorporate the mandatory physical and operational features listed herein.
However, an applicant may instead propose to substitute optional opefational features for one or
mom of the mandatory features listed herein, or may propose its own set of features which ensure
that the development operates in a manner similar to a lodge when the owners are not using their
timeshare estates, as described further below.
A. Mandatory Physical Elements.
1. All timeshare lodge developments shall have a staffed on-site front desk, located within a
lobby that is sized to meet the needs of the project. If the timeshare lodge is part of a multi-
site development, there may be a single front desk for these sites. The staffed front desk
shall be open at least during regular business hours, and shall be managed to provide full-
time registration and reservation services, including provision for late check-in and for other
off-hours guest needs. The front desk shall accommodate walk-in rentals.
2. A timeshare lodge development shall contain a sufficient level of recreational facilities
(such as exercise equipment, a pool or spa, or similar facilities) and other amenities (such as
a lobby, meeting spaces, and similar facilities) to serve the occupants, including facilities
that can be used in the winter and the summer seasons. The extent of the facilities provided
should be proportional to the size of the timeshare lodge development. The types of
facilities should be consistent with the planned method and style of operating the
development.
3. A timeshare lodge in the Commercial Core (CC) zone district shall not have any lodge
rooms located on the ground floor. Instead, a timeshare lodge in the CC zone district shall
contain at least one of the following elements: a bar, restaurant, or retail facilities. The
element(s) provided shall be located along the street front, shall be accessible from the
street, and shall be desigued to serve the public, not just the occupants of the timeshare
lodge.
B. Mandatory Operational Practices. The City wants to ensure that the traits in a timeshare
lodge development are available for rental to the public when they are not being occupied
by the owner, the owner's guests, or persons occupying the unit under an exchange program.
The City has identified certain operational practices that Will accomplish this intent, wlfich
are listed in this section. An applicant who agrees to include all of the practices listed
below in the operation of the timeshare development shall be deemed to haVe complied with
the requirements of this sub-section B and need not address any of the optional operational
practices of sub-section C.
The City recognizes, however, that there may be other ways to comply with this intent, and
will consider these and other operational practices. Applicants may propose to substitute
one or more of the optional practices listed in Section C., below, for one or more of the
mandatory practices listed in this Section B. Applicants may also propose other operational
practices not listed in Section C. as a means of demonstrating compliance with this
standard. Acceptance of the proposed optional practices as a substitute for one or more of
the mandatory practices shall be at the sole discretion of the City Council.
1. Timeshare estates shall be made available for short-term rental when the estate is not in use
by the owner of the unit, the owner's guests, or persons occupying the unit under an
exchange program. Units that are available for rental shall be listed at competitive rates in a
central reservation system. Listing of the unit with a recognized central reservation system
in Aspen, or through the central reservation system of the company that will manage the
timeshare development, is preferred.
2. The covenants of the homeowners association shall permit walk-in rental of units. The
association shall not limit rental of units to such arrangements as only weekly rentals or
Saturday-to-Saturday rentals; instead the association shall permit shorter stays, split-week
rentals, and similar flexible arrangements.
3. Owners of timesha~e estates shall be required to reserve their mt/time sufficiently far
enough in advance to enable the public to obtain access to those units that are not so
reserved.
4. The owner of a timeshare estate shall not be permitted to occupy that estate for any period
in excess of thirty (30) consecutive calendar days.
5. The units that re'main in the developer's inventory shall be made available for rental to the
public while the estates are being sold, except for models and other units that are needed for
marketing or promotional purposes.
C. Optional Operational Features.
1. Timeshare lodge developments that subdivide each unit into a larger number of estates
(more than 10 estates per unit) are preferred to those which subdivide each unit into a
smaller number of estates (less than 10 estates per unit).
2. Applicants may formulate their timeshare use plan such that the purchaser would not expect
to occupy the same unit each visit; instead the purchaser would purchase the right to occupy
a certain type of unit for a certain period of time. Applicants may also include provisions in
the homeowners association documents prokibiting owners from personalizing the unit they
have purchased.
3. Applicants may design their development as a mixed project, which includes not only
timeshare un/ts, but also some units that would continue to be owned and operated by the
applicant and his successors or assigns as traditional lodge units. Another type of use plan
that is encouraged would be for the applicant to agree not to sell all of the shares in every
unit, but to instead keep some time reserved for rental to the public at market rates during
both the high seasons and the off-seasons.
4. Applicants may decide to sell on and off-season estates as a package.
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5. Applicants may include in their use plan provisions that allow for a wide range of exchange
oppommities for owners, which will promote new Aspen trials.
26.590.070 Review Standards for Timeshare Lodge Development.
An applicant for timeshare lodge development shall demonstrate compliance with each of the
following standards, as applicable to the proposed development. These standards are in addition to
those standards applicable to the review of the PUD and Subdivision applications.
A. Fiscal Impact Analysis and Mitigation. Any applicant proposing to convert an existing
lodge to a timeshare lodge development shall be required to demonstrate that the
proposed conversion will not have a negative tax consequence for the City. In order to
demonstrate the tax consequences of the proposed conversion, the applicant shall prepare
a detailed fiscal impact study as part of the final PUD application. The fiscal impact
study shall contain at least the following comparisons between the existing lodge
operation and the proposed timeshare lodge development:
1. A summary of the sales taxes paid to the City for rental of lodge rooms during the prior
five years of its operation. If the lodge has stopped renting rooms prior to the time of
submission of the application, then the summary shall reflect the final five years the lodge
was in operation. The summary of past taxes paid shall be compared to a projection of
the sales taxes the proposed timeshare lodge development will pay to the City over the
first five years of its operation. As part of this projection, the applicant shall specify the
number of nights the applicant anticipates each timeshare lodge unit will be available for
daily rental to visitors (that is, the annual number of nights when the unit will not be
occupied by the owner or the owner's guests), the expected visitor occupancy rate for
these units, the expected average daily cost to rent the unit, and the resulting amount of
sales tax that will be paid to the City.
2. An estimation of the real estate transfer taxes that would be paid to the City if the existing
lodge were to be sold. If an actual sale of the property has occurred within the last 12
months, then the real estate taxes paid for that sale shall be used. This estimation shall be
compared to a projection of the real estate transfer taxes the proposed timeshare lodge
development will pay to the City over the first five years of its operation. This projection
shall include a statement of the expected sales prices for the timeshare estates, and the
applicable tax rate that will be applied to each sale.
3. A summary of the City-portion of the property taxes paid for the lodge for the prior five
years of its operation, and a projection of the property taxes the proposed timeshare lodge
development will pay to the City over the first five years of its operation. This projection
shall include a statement of the expected value that will be assigned to the property by the
Tax Assessor, and the applicable tax rate.
The fiscal impact study may also contain such other information that the applicant
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believes is relevant to understanding the tax consequences of the proposed development.
For example, the applicant may provide information demonstrating there will be
"secondary", or "indirect" tax benefits to the City from the occupancy of the timeshare
units, in terms of increased retail sales and other economic activity in the community as
compared to the existing lodge development. The applicant shall be expected to prove
definitively why the timeshare units would cause such economic advantages that would
not be achieved by a traditional lodge development. Any such additional information
provided shall compare the taxes paid during the prior five years of the lodge's operation
to the first five years of the proposed timeshare lodge's operation.
If the fiscal impact study demonstrates there will be an annual tax loss to the City from
the conversion of an existing lodge to a timeshare lodge, then the applicant shall be
required to propose a mitigation program that resolves the problem, to the satisfaction of
the Aspen City Council. The accepted mitigation program shall be documented in the
PUD Agreement for the project that is entered into between the applicant and the Aspen
City Council.
B. Upgrading of Existing Projects. Any existing project that is proposed to be converted to a
timeshare lodge development shall be physically upgraded and modernized. The extent of
the upgrading that is to be accomplished shall be determined as part of the PUD review,
considering the condition of the existing facilities, with the intent being to make the
development compatible in character with surrounding properties and to extend the useful
life of the building.
1. To the extent that it would be practical and reasonable, existing structures shall be brought
into compliance with the City's adopted fire, health, and building codes.
2. No sale of any interest in a timeshare lodge development shall be closed until a certificate of
occupancy has been issued for the upgrading.
Preservation of Existing Lodging Inventory. An express purpose of these regulations is to
preserve and enhance Aspen's existing lodging inventory. Therefore, any proposal to
convert an existing lodge or other property that provides short term accommodations to a
timeshare lodge should, at a minimum, replace the existing number of units on the property
in the planned timeshare lodge. If the applicant is unable to rePlace the existing number of
units, then the timeshare lodge development shall replace the existing number of bedrooms
on the property, or the applicant shall demonstrate how the proposal complies with the
proposes of these regulations, even though the planned timeshare lodge will not rePlace
either the existing number of units or bedrooms.
D. Affordable Housing Requirements.
1. Whenever a timeshare lodge development is required to provide affordable housing,
mitigation for the development shall be calculated by applying the standards of the Cit3/s
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housing designee for lodge uses. The affordable housing requirement shall be calculated
based on the maximum number of proposed lock out rooms in the development, and shall
also take into account any retail, restaurant, conference, or other functions proposed in the
lodge.
2. The conversion of any multi-family dwelling unit that meets the definition of residential
multi-family housing to timesharing shall comply with the provisions of Chapter 26.530,
Resident Multi-Family Replacement Program, even when there is no demolition of the
existing multi-family dwelling unit.
E. Parking Requirements.
1. The parking requirement for timeshare lodge development shall be calculated by applying
the parking standard for the underlying zone district for lodge uses. The parking
requirement shall be calculated based on the maximum number of proposed lock out rooms
in the development.
2. The timeshare lodge development shall also provide an appropriate level of guest
transportation services, such as vans or other shuttle vehicles, to offer an alternative to
having owners and guests using their own vehicles in Aspen.
3. The owner of a timeshare estate shall be prohibited from storing a vehicle in a parking space
on-site when the owner is not using that estate.
F. Appropriateness of Marketing and Sales Practices. The marketing and sale of timeshare
estates shall be governed by the real estate laws set forth in Title 12, Article 61, C.R.S., as
may be amended from time to time. The applicant and licensed marketing entity shall
present to the City a plan for marketing the timeshare development.
1. The following marketing and sales practices for a timeshare development shall not be
permitted:
a. The solicitation of prospective purchasers of timeshare units on any street, mall, or other
public property or facility; and
b. Any unethical sales and marketing practices which would tend to mislead potential
purchasers.
2. Giving of girls to encourage potential purchasers to attend a sales presentation or to visit a
timeshare development is permitted, provided the girl reflects the local Aspen economy.
For example, girls for travel to or accommodations in Aspen, restaurants in Aspen, and
local attractions (ski passes, concert tickets, rafting trips, etc.) are permitted. Girls that have
no relationship to the local Aspen economy are not permitted. The following girls are also
not permitted:
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a. Any gift for which an accurate description is not given;
b. Any gift package for which notice is not given to the prospective purchaser that the
purchaser will be required to attend a sales presentation as a condition of receiving the gifts;
and
c. Any gift package for which the printed announcement of the requirement to attend a sales
presentation is in smaller type face than the information on the gift being offered.
G. Adequacy of Maintenance and Management Planl The applicant shall provide
documentation and guarantees that the timeshare lodge development will be appropriately
managed and maintained in an manner that will be both stable and continuous. Tlfis shall
include an identification of when and how maintenance will be provided, and shall also
address the following requirements:
1. A fair procedure shall be established for the estate owners to review and approve any fee
increases which may be made throughout the life of the timeshare development} to provide
assurance and protection to timeshare owners that management/assessment fees will be
applied and used appropriately.
2. The applicant shall also demonstrate that there will be a reserve fund to ensure that the
proposed timeshare development will be properly maintained throughout its lifetime.
H. Compliance with State Statutes. The applicant shall demonstrate that the proposed
timeshare lodge development will comply with all applicable requirements of Title 12,
Article 61, C.R.S.; Title 38, Article 33, C.R.S.; and Title 38, Article 33~3, C.R.S.; including
the requirements concerning the five (5) day period for rescission of a sales contract, and the
procedures for holding deposits or down payments in escrow.
I. Approval By Condominium Owners. If the development that is proposed to be timeshared
is a condominium, the applicant shall submit written proof that the condominium
declaration allows timesharing, that one hundred (100) percent of the owners of the
condominium units have approved the timeshare development, including any improvements
to the common elements that the applicant may propose, that all mortgagees of the
condominium have approved the proposed timeshare development, and that all
condominium units in the timeshare development will be included in the same sales and
marketing program.
Prohibited Practices and Uses. Without in any way limiting any requirement contained in
this Chapter, it is unlawful for any person to knowingly engage in any of the following
practices:
1. The creation, operation or sale of a right-to-use interest or any other timeshare concept
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which is not specifically allowed and approved pursuant to the requirements of this section.
Right-to-use timeshare concepts (e.g. lease-holds and vacation clubs) are considered
inappropriate in Aspen and are not permitted.
2. Misrepresentation of the facts contained in any application for timeshare approval,
timeshare development instnmaents, or disclosure statement.
3. Failure to comply with any representations contained in any application for timesharing or
misrepresc~nting the substance of any such application to another who may be a prospective
purchaser of a timeshare interest.
4. Manage, operate, use, offer for sale or sell a timeshare estate or interest therein in violation
of any requirement of this Chapter or any approval granted pursuant hereto, or cause or aid
and abet another to violate any requirement of this Chapter, or an approval granted pursuant
to this Chapter.
26.590.080 Business License and Sales Tax Payments.
A. Business License. It shall be unlawful for any timeshare development to operate in the City
of Aspera without first obtaining a business license in accordance with the standard
procedures of the City of Aspen.
B. Sales Tax Payments. Occupancy of any timeshare unit by anyone who pays a rental fee for
the use of the unit (other than the owner thereof) shall be subject to the City's sales tax the
same as if such occupancy were of a hotel or lodge unit. Any timeshare development, as a
condition of its approval, shall be required to obtain an Aspen Sales Tax/Lodging Tax
License, which shall establish how this tax shall be collected and paid to the City. The
manager of the association shall be responsible for the timely collection of the City sales tax
for the City of Aspen for rentals made through the association or a reservation system. The
manager shall notify individual estate owners that they are responsible for the payment of
sales tax to the City for units rented on a private basis.
26.590.090 Timeshare Documents.
At the same time the applicant submits the PUD Development Plan and PUD Agreement to the
City for recordation, pursuant to Section 26.445.070, or submits the necessary documents to record
the subdivision exemption, the applicant shall also submit the following timeshare documents in a
form suitable for recording. The Community Development Director may require the applicant to
submit a draft version of these timeshare documents at the time of submission of the Final PUD
application.
A. Disclosure Statement. The applicant shall submit a disclosure statement that contains the
following information:
1. The name and address of the developer of the timeshare development as well as a summary
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of the developer's business experience, including all background and experience in the
development of timeshare development, and the present financial condition of the
developer.
2. The name and address Of the manager/management company for the development, if any,
and a description of the manager's/management company's responsibilities, powers, duties,
authority and business experience. All information on the manager's background and
experience specifically related to timeshare development shall be provided.
3. The names and addresses of the marketing entity and the listing broker and a statement of
whether there are any lawsuits pending or investigations that have been undertaken against
the marketing entity or listing broker, and if so, a description of the status or disposition of
said lawsuits or investigations. A summary of the marketing entity's business experience
including all background and experience related to timeshare development.
4. A description of the timeshare units, including the developer's schedule for comPletion of
all buildings, units, and amenities, with dates of availability.
5. If the timeshare plan consists of a condominium or a similar form of ownership, a
description of the development and any pertinent provisions of the condominium
instruments.
6. Any restraints on the transfer of the purchaser's interest in the timeshare units or plan.
7. The timeshare use plan, which shall include a description of the rights and responsibilities
under the plan.
8. Notice of any liens, title defects or encumbrances on or affecting the title to the units or plan
and, if there are encumbrances or liens, a statement as to whether, when and how they will
be removed.
9. Notice of any pending or anticipated legal actions that are material to the timeshare units or
plan of which the applicant has, or should have, knowledge.
10. The total financial obligation of the purchaser, which shall include the initial price and any
additional charges to which the purchaser may be subject in purchasing the unit.
11. An estimate of the dues, maintenance fees, real property taxes, sales taxes, real estate
transfer tax and similar periodic expenses, and the method or formula by which they are
derived and apportioned, which shall include whether maintenance fees are determined by
unit, time of year, or prorated share of the overall maintenance costs, or any other means
utilized to cpmpute maintenance fees.
12. A statement demonstrating the manner in which management/assessment fees will be held,
utilized and accounted for.
13. A description of any financing offered by the applicant.
14. The terms and significant limitations of any warranties provided, including statutory
warranties and limitations on the enforcement thereof or on damages.
15. A statement that the proposed development will comply with all applicable requirements of
Title 12, Article 61, C.R.S. Upon request from the City, the applicant shall provide a copy
of the documents submitted to the State of Colorado for the registration and certification of
the timeshare developer.
16. The extent to which a timeshare unit may become subject to a tax or other lien arising out of
claims against other timeshare owners of the same timeshare unit.
17. The minimum percentage of units the developer will require be sold before the developer
will proceed with the completion of the timeshare development.
18. A description of the maintenance to be supplied to the timeshare development, including
how and when such maintenance will be provided.
19. Whether any or all the units in the proposed development will be available for participation
in an exchange program. The applicant shall disclose which exchange program(s) the
timeshare estate owners will be eligible to utilize.
20. A description of all insurance covering the property.
21. A description of the on-site amenities and recreational facilities which are available for use
by the unit owners. All on-site amenities shall be owned by the homeowner's association
and the developer shall not be allowed to charge any additional fees for use of the amenities.
If there are any off-site facilities that are related to the property, these shall also be
described, including a summary of any fees that timeshare owners would have to pay to use
those off-site facilities.
22. A statement that any timeshare interest shall be expressly subject to all requirements and
representations set forth in the disclosure statement.
23. For any timeshare development that is a conversion of an existing project, a statement shall
be provided by the developer, based on a report prepared by an independent architect or
engineer, licensed by the State of Colorado, describing the present condition of all structural
components and mechanical and electrical installations material to the use and enjoyment of
the timeshare units. The statement shall also provide a list of any outstanding notices of
uncured violations of building code or other municipal regulations, together with the
estimated cost of curing those violations.
B. Timeshare Development Instruments. The applicant shall submit the following timeshare
development instruments:
1. Instruments for the interval estate or time span estate including:
a. The legal description, street address or other description sufficient to identify the property.
b. Identification of timeshare time periods by letter, name, number or combination thereof.
c. Identification of the timeshare estate and the method whereby additional timeshare estates
may be created.
d. The formula, fraction or percentage of the common expenses and any voting fights assigned
to each timeshare estate.
e. Any restrictions on the use, occupancy, alteration or alienation of timeshare units.
f. Any other matters that the applicant or the City Council deems reasonably necessary.
2. All timeshare development instruments shall provide for the following:
a. That a homeowners association shall be establishedl Responsibility for maintenance of the
development shall reside within the association. The association shall designate a managing
agent. The management contract with the managing agent shall allow for either party to
terminate, for cause, upon thirty (30) days notice. In the event the manager is terminated, a
new managing agent shall be designated as quickly as possible by the association. Any
management agreement shall specify the managing agent's duties and responsibilities to
maintain the development.
b. A stipulation by the owner of the timeshare interest irrevocably designating the
homeowners association and/or the managing agent as an agent for the service of legal
notices for any legal action, proceeding or heating pertaining to the timeshare interest or for
the service of process (in a manner sufficient to satisfy the requirements of personal service
in the state, pursuant to Rule 4 C.R.C.P.} as amended).
c. Each fimeshare interest with a multiple ownership shall be required to designate one
managing agent as the spokesperson and voter for all of the owners involved.
d. That the association shall have the ability to compel a timeshare owner to pay maintenance
fees and if any owner's fees are not paid, his interest shall be subject to a lien and
foreclosure or other divestment. In the event an owner or his guests violate the roles and
regulations of the association, the association shall have the right to enjoin the violation and
the prevailing party in such suit shall be awarded his court costs and reasonable attorney's
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fees.
e. Provisions addressing reconstruction or repair of all or a portion of the timeshare
development following its willful or non-willful destruction. Provisions should also be
included addressing termination of the association, including the percentage of owners that
must agree for the termination to become effective, what happens to the common elements
in the event of a termination, and how the proceeds shall be distributed in the event the
property is taken due to condemnation or eminent domain.
3. Updating and filing.
a. The developer and his successors and assigns (other than individual unit purchasers) shall
have a continuing duty to update the disclosure statement and file with the City all
amendments to the timeshare development's insmanents. Such amendments shall comply
with the requirements of this section. No amendment which shall significantly alter the
physical elements or operational practices of a timeshare lodge shall be effective unless
approved and accepted by the City. All amendments shall be initially submitted for review
to the Community Development Director who shall have authority to either approve a
proposed amendment as in compliance with the requirements of this section or refer the
proposed an~endment for appropriate subdivision or PUD approval.
b. The condominium association and/or the homeowners association, or both if there be
multiple associations, and not individual unit owners shall have the continuing
responsibility to submit to the City any amendments to the condominium documents and/or
timeshare development insmunents that would alter any condition imposed by the City or
any prior representation made by the applicant to obtain approval of the timeshare
development. Once the condominium association has been formed, the City shall not accept
any amendments for review without prior approval thereby.
4. Before transfer of a timeshare unit and no later than the date of execution of any contract of
sale, the applicant or any other seller of a fimeshare unit shall provide the intended
transferee with a copy of the disclosure statement and any amendments thereto, except this
requirement shall not apply to the owner of a single timeshare estate in a development who
is attempting to sell the estate.
5. Conveyance of a timeshare interest shall be subject to the condominium declaration which
shall include the disclosure statement as an exhibit thereto.
Section 2:
That the following definitions be revised or added to Section 26.104.100 of the Aspen Municipal
Code:
Timeshare Lodge. A development or a unit that has been approved for timesharing, pursuant to
Chapter 26.590, and has the characteristics of a timeshare lodge, as specified in Section 26.590.060.
Each unit in a timeshare lodge shall be subdivided into no less than seven (7) time span or interval
estates. A timeshare lodge unit may contain a kitchen and still be considered to be a lodge unit (not
a residential dwelling unit) for purposes of this Land Use Code (although the City's adopted
building codes will consider a unit with a kitchen to be a dwelling unit, and the City may, therefore,
require it to comply with the applicable provisions of those codes for a dwelling unit).
Lodge. Same as hotel.
Section 3:
That Section 26.710.320 B.1. of the Aspen Municipal Code, permitted uses in the LP Zone District,
be amended to read as follows:
1. Lodge, provided:
a. All lodge units within the LP Overlay Zone District may have kitchens within individual
lodge rooms.
b. All lodge units must be available for overnight lodging by the general public on a short-term
basis for at least six (6) months of each calendar year. This requirement shall not apply to a
timeshare lodge.
Section 4:
That Section 26.710.190 D.2.d. of the Aspen Municipal Code, minimum lot area per dwelling unit
requirement for lodge units in the L/TR Zone District, be amended to read as follows:
d. Lodge units (including timeshare lodge units). No requirement. Whenever kitchen
facilities are installed in a lodge unit in the L/TR zone district, such unit shall be deemed a
multi-family dwelling unit, and the lodge shall be required to satisfy the minimum lot area
requirements for a multi-family dwelling, as provided above, unless the develOpment is a
timeshare lodge, which shall have no minimum lot area per dwelling unit requirement.
Section 5:
That Sections 26.710.140 C., 26.710.190 C., 26.710.200 C., 26.710.320 C. and 26.710.330 C. of
the Aspen Municipal Code be amended to delete "timesharing" as a conditional use.
Section 6:
That Sections 26.710.140 B., 26.710.200 B., and 26.710.320 B. of the Aspen Municipal Code be
amended to add "timeshare lodge" as a permitted use, and that Sections 26.710.190 B. and
26.710.330 B. of the Aspen Municipal Code be amended to add "timeshare lodge" and "exempt
timesharing" as permitted uses.
Section 7:
That Section 26.480.030 A. of the Aspen Municipal Code, General Exemptions, be amended to add
a new sub-section 5., to read as follows:
5. Exempt Timesharing. The creation of time-span estates that comply with the requirements
for exempt timesharing, pursuant to Section 26.590.030 of the Code. This subdivision exemption
shall not be used to create any new lots or dwelling units.
Section 8:
That sub-section A. of Section 26.480.040 of the Aspen Municipal Code, Procedures for Review,
be amended to read as follows:
A. Lot Line Adjustment and Exempt Timesharing. After an application for a lot line
adjustment or exempt timesharing has been determined to be complete by the Community
Development Director, the Director shall approve, approve with conditions, or deny the application.
Section 9:
That a new sub-section 22. be added to Section 26.510.030 B. of the Aspen Municipal Code;
Exempt Signs, to read as follows
22. Timeshare identification signs. A building that is approved for exempt timesharing,
pursuant to Section 26.590.030, shall have a wall-mounted sign with an area not exceeding
two (2) square feet, stating that it has been approved for timesharing and identifying the
name and phone number of a contact person or management entity for the property.
Section 10:
That Section 26.470.070 O. of the Aspen Municipal Code, Conversion of Lodge Reconstmction
Credits to Residential Dwelling Units, be repealed.
Section 11:
This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be conducted and concluded under such prior ordinances.
Section 12:
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
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separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
Section 13:
A public hearing on the Ordinance was held on August 26, then continued to September 23, and
finally heard on the 15th day of October. 2002 in the City Council Chambers, Aspen City. Hall.
Aspen Colorado, fifteen (15) days prior to which hearing a public notice of same was published in a
newspaper of general circulation within the City of Aspen.
INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law, by the City
Council o£the City of Aspen on this 24th day of June, 2002.
Attest:
Kathryn S. l~ch, City Clerk Hele/n Kalin~Kla~degl~d,Xl~Iayor
FINALLY, adopted, passed and approved this 15th day of October, 2002.
Attest:
Kathr~n 'S~. ~ch, City Clerk I~le~ l(~l~k.Kla~der~d, Mayor
Approved as to form:
Jofm-W~orcester, iUity Attorney
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