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HomeMy WebLinkAboutminutes.council.20021216Regular Meeting Aspen City Council December 16, 2002 CITIZEN PARTICIPATION .................................................... i ............................... 2 COUNCILMEMBER COMMENTS ........................................................................ 4 COUNCIL CONTINGENCY FUNDING FOR DISPLAY CASE ................... 6 RESOLUTION #117, SERIES OF 2002 - Contract Monolithic Sculptures Wagner Park Playground Equipment ........................................................................ 6 RESOLUTION # 120, SERIES OF 2002 - Deputy Municipal Judge Appointment - Anthony Hershey ............................................................................. 6 ORDINANCE #49, SERIES OF 2002 - Housing Guidelines ........................... 6 ORDINANCE #42, SERIES OF 2002 - 533 W. Francis Historic Lot Split.. 7 ORDINANCE #43, SERIES OF 2002 - 333 West Bleeker Historic Lot Split ORDINANCE #44, SERIES OF 2002 216 East Hallam Historic Lot Split 9 ORDINANCE #45, SERIES OF 2002 - Supplemental Appropriations ........ 12 RESOLUTION #119, SERIES OF 2002 - Temporary Use Sleigh Rides on Golf Course .................................................................................................................... 13 RESOLUTION #121, SERIES OF 2002 - 218 North Monarch Appeal of HPC Decision ................................................................................................................ 14 RESOLUTION #118, SERIES OF 2002 - In Support of New Maroon Creek Bridge .............................................................................................................................. 20 BURLINGAME PARCEL D DESIGN CONTRACTS ..................................... 21 Regular Meetin~ Aspen City Council December 16, 2002 Mayor Klanderud called the meeting to order at 5:00 p.m. with Councilmembers Semrau, Paulson, Hershey and McCabe present. CITIZEN PARTICIPATION 1. Caroline MacDonald reminded Council she started a historic lot split, which took 2 years while waiting for a new historic ordinance. Ms. MacDonald noted two of the conditions on her approval were to get the plat map signed off before December 31 and to submit a plan for repair and repainting on the Elisha house by December 31. Ms. MacDonald said the way the FAR calculations read, her I0' 1" ceiling causes the FAR to be calculated at 1.5 times because of the 1" and the extra square footage in the attic required painting. Ms. MacDonald told Council her submitted plan states, "I am going to repair the exposed wood and repaint the house". Ms. MacDonald said she has a lot of other issues with the city; however, she had to submit a work plan by December 31sI. Ms. MacDonald requested Council to direct staff to honor the work plan. Ms. MacDonald said she received a letter from the city attorney stating she should go back to HPC for renegotiation. Ms. MacDonald said she feels her work plan is very clear. 2. Ann Owsley, daughter of Claire Sandersen, said Claire received many awards from Aspen. Ms. Sandersen was a pacifist and an activist. Ms. Owsley said she has created the Claire Sandersen Pacifism award and is going to give it to Terry Paulson. Ms. Owsley said when people gather at the Viet Nam memorial for Memorial Day and Veteran's Day, peace is the main topic of conversation at these celebrations. Ms. Owsley said Council should take a stand on this ~ssue as it will be the community's children sent tO War. 3. Mayor Klanderud said regarding the trolleys, there are letters of intent and bills of sale signed by the city. Council has made its decision to dispose of the trolleys. Mayor Klanderud said citizens can continue to attend and to petition Council regarding the trolleys; however, this is not a good use of citizens' time, Council's time or the community's time. Mayor Klanderud said one person representing the trolleys may petition Council for 3 minutes. Ramona Markalunas read a resolution regarding the trolleys, requesting these trolleys be sold as a lot in a sealed bid process and giving the money to a local non-profit organization. The resolution states "the Aspen Street Railway Co. wishes to have closure on the issue of the 'disposal of the 2 Regular Meeting Aspen City Council December 16, 2002 trolleys', the members of the Aspen Street Railway Co. guarantee that the subject of the trolleys will never be brought before this present City Council The Aspen Street Railway Company recognizes the City Council of Aspen, Colorado, for its forbearance on this issue and acknowledges that these City owned assets must serve the needs of the Citizens of Aspen". Mayor Klanderud said the City Council has done what they believe to be the right thing and would like closure on this ~ssue, also. Councilman Paulson asked if Council feels 46% of citizens who voted for the trolley can be ignored. Mayor Klanderud noted the members of Council who lost the election on the entrance to Aspen are not bringing that up again and again. 4~ Toni Kronberg said she would like to speak about the trolley issue. Mayor Klanderud said she is not to speak about the trolleys. Ms. Kronberg said this is public comment and she has 3 minutes to speak. Mayor Klanderud said Council is not taking any more comment about the trolleys. Councilman Paulson asked if it is the will of Council not to let citizens speak. Ms. Kronberg noted she was denied the opportunity to exercise her constitutional right to speak. Ms. Kronberg said the last time she came to Council, she asked Council if they would consider donating the trolley to one of the 2 pool groups, Friends of Moore pool or SPARC. Ms. Kronberg said they did not get bleachers for the pool. Ms. Kronberg read from the trolley ballot language, "and provided further that the city manager ~s authorized to dispose of the trolleys cars", and it does not say dispose of to whom. Mayor Klanderud asked Ms. Kronberg not to proceed any further. Ms. Kronberg said that decision was made at a brown bag lunch. Mayor Klanderud stated it is a privilege to speak in Council meetings and when that privilege is abused Council does not have to continue to honor it. Ms. Kronberg stated it is a right, not a privilege. Ms. Kronberg asked the record note she was denied the opportunity to exercise freedom of speech. Ms. Kronberg asked if Council will be taking comment on supplemental appropriations. Mavor Klanderud said that is a public hearing. Ms. Kronberg said she does not see why the city will not donate the trolleys to a non-profit group in town when it was not approved by the voters exactly how to dispose of them and the decision was made in a brown bag lunch meeting, not in a City Council meeting. 5. Bill Stifling brought up Resolution #118, regarding the Maroon Creek bridge. MayOr Klanderud pointed out this is on the agenda and the Council Regular Meeting Aspen City Council December 16, 2002 agenda states this is time for any citizen to address Council on issues NOT on the agenda. Stirling asked this resolution be tabled until 2003. 6. Toni Kronberg said Council does not normally take public comment on action items and asked if there will be comments allowed on Resolution #118 regarding the Maroon Creek bridge. Mayor Klanderud said Council will allow comments. Ms. Kronberg asked the city attorney if it is not a citizen's right to speak on whatever they want during citizen's comments. John Worcester, city attorney, said the Mayor, as the presiding officer of City Council, has an obligation to preside over the meeting including proper decorum. The Mayor can limit comment anyway she sees fit, and if a majority of Council disagree, they can overrule her decision. The Mayor is ~n charge of running the meeting. COUNCILMEMBER COMMENTS 1. Mayor Klanderud congratulated Casey Puckett for winning 24 Hours of Aspen, which is an amazing feat in an amazing race. 2. Mayor Klanderud wished everyone Happy Holidays and Peace in the new year. Mayor Klanderud said Council has big issues to deal with. It does not serve the community well to continue to discredit City Council. One can disagree with some of the people all of the time, all of the people some of the time. Mayor Klanderud said she hopes everyone enters the New Year with the best interests of Aspen mind and with the hope that 2003 is a stellar year. Mayor Klandernd thanked all citizens who helped make Aspen what it is. 3. Councilman Hershey said there was a panel last week at the high school, including the Mayor, at which drugs and drugs in the school was discussed. Councilman Hershey said he would like Council to schedule a work session with the police department and discuss underage drinking in local bars and suggestions for how this might be addressed. Mayor Klanderud said she thought the school committee was going to come back with proposals. Loren Ryerson, chie£ofpolice, said he felt this was a call for the community to start the discussion on substance abuse. 4. Councilman Paulson said this year is not ending on pleasing circumstances; the trolley and the entrance to Aspen are two examples. Councilman Paulson said he has problems with a Council that bullies 4 Regular Meeting Aspen City Council December 16, 2002 citizens. This Council is abuSing their authoritY. Council:man paUlson said he hoPeS 2003 ~om~s ofit better than this one~ If Council is dOing a good job, there will not be as many citizens' comments, no matter what the issue. Councilman Paulson said he would like to start out the new year with a resolution to listen to citizens. 5. Councilman McCabe said a past city Council came to ask this Council to pass a resolution regarding peace in Iraq. Councilman McCabe noted none of these Council members were veterans. Councilman McCabe said he is a veteran and shooting at people is not theoretical to him. Councilman McCabe said he does not like it when people who did not 'serve this country tell him what to do. Many veterans are the biggest peace proponents in the USA. Councilman McCabe stated it is not the place of Aspen City Council to pass a resolution having anything to do with peace in Iraq. Councilman McCabe said Council passing a resolution displays no courage; it is a feel good action that means nothing. 6. Councilman McCabe said the resolution on Maroon Creek bridge did not come from a majority of behind the scenes Council to put this on the agenda. Councilman McCabe noted this was discussed at the Council retreat earlier this month. Mayor Klanderud pointed out last year at Council's retreat, all 5 Council agreed they could support the new Maroon Creek bridge. At this year's retreat, 4 Council people directed staff to draft a resolution to go to CDOT to disconnect the Maroon Creek bridge issue from the entrance to Aspen issue and deal with the bridge separately. 7. Councilman Semrau said that bullies do not put questions on an election ballot. If this Council were truly bullies,'the trolleYs would have been gone a year ago and there would have been no entrance to Aspen question on the ballot. Councilman Semrau said Council Will follow what the electorate said and will listen to citizens in the new year. 8. City Manager Steve Barwick requested Burlingame parcel D, developer selection be added to the end of the agenda. Barwick also requested an executive session at the end of the meeting to discuss a personnel issue. 9. Mayor Klanderud announced that RFTA passed a balanced budget for 2003. The Board has made it ~lear there is concern that RFTA continue to scrutinize its budget so that the level of subsidy is not so high. There was 5 Regular Meeting Aspen City Council December 16, 2002 unanimous Support for a resolution to try to implement green buses into the transportation system. There is an order in to Neoplan fo~ the new Highlands bus and the company approached RFTA to see if they were interested in a hybrid bus. RFTA BOard passed a resolutiOn to take action on issues of national and state concern that directly affects the mission of RFTA. 10. Councilman McCabe said the Aspen Youth Council has been meeting regularly. Mayor Klanderud and Councilman McCabe have addressed the school on civics in social studies. The Youth Council has been Soliciting apphcations for grants for youth activities. One of the Youth Council members will serve on the ARC committee. COUNCIL CONTINGENCY FUNDING FOR DISPLAY CASE Councilman Hershey moved to approve this; seconded by Councilman Semrau. All in favor, motion carried. RESOLUTION #117, SERIES OF 2002 - Contract Monolithic Sculptures Wagner Park Playground Eqmpment Councilman Semrau moved to approve Resolution #I 17, Series of 2002; seconded by Councilman Paulson. All in favor with the exception of Councilman McCabe; motion carried. RESOLUTION #120, SERIES OF 2002 - Deputy Municipal Judge Appointment - Anthony Hershey Councilman Hershey left the room due to a conflict of interest. Councilman Semrau moved to approve Resolution #120, Series of 2002; seconded by Councilman McCabe. All in favor, motion carried. ORDINANCE #49, SERIES OF 2002 - Housing Guidelines Councilman Hershey moved to read Ordinance #49, Series of 2002; seconded by Councilman Semrau. All in favor, motion carried. ORDINANCE NO. 49 (Series of 2002) 6 Regular Meeting Aspen City, Council December 16, 2002 AN ORDINANCE AMENDING CERTAIN SECTJONS ON AN ANNUAL BASIS FOR THE ASPEN/PITK!N COUNTY iAFFORDABLE HOUSING AND OTHER AMENDED CHANGES AS STATED IN THE GUIDELINES AS RECOMMENDED BY THE ASPEN/PITKIN COUNTY HOUSING AUTHORITY Councilman Paulson moved to adopt Ordinance #49, Series of 2002, on first reading; seconded by Councilman Semrau. Roll call vote: Semrau, yes~ McCabe, yes~ Hershey, yes~ Paulson, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #42~ $RRIES OF 2001 - 533 W. Francis Historic Lot Split Katie Ertmer, community development department, entered into the record a letter received by FAX from a neighbor, Lucy Dikeou. The proposal is to create two lots, 4200 square feet containing a historic structure and 4800 square feet, currently vacant. The applicants propose an addition to the historic house. The applicant worked with HPC to reduce the size of the addition and to preserve the integrity of the historic structure. HPC reco~ended approval. The letter from Ms. Dikeou indicated concerns With variances, that they are not consiStent with the historic pattern of the neighborhood, that the project was inaccurately described, and that there was no carport. Mitch Haas, representing the applicant, told Council this property could be condominiumized into two lots withoUt city review; however, this process creates a lot line and is easier to finance. HPC was very supportive of this and called it a "model project". Haas pointed to the model of this project showing the scale of the addition. The miner's cottage is on the front with the addition on the rear. Haas noted the houSe next door encroaches On to this property and there is an existing easement agreement. Mayor Klanderud opened the public hearing. Dale Potvin, representing John Oxley, told Council his client has concerns about the view plane, particularly on the undeveloped lot. Potvin requested Council direct the applicant to meet with the Oxleys when that lot is develoPed and to be respectful of the view plane. 7 Regular Meeting Aspen City Council ~ December 16, 2002 Mayor Klanderud closed the public hearing. Mayor Klanderud said there were concerns about this neighborhood with previous development. Amy Guthrie, community development department, told Council the house on the other side of West Smuggler, which has caused the neighbors to be concerned, in question was not a historic property and was rebuilt to non-conforming standards. Ms. Guthrie said HPC felt strongly that the variances for 533 West Francis were appropriate to grant separation between the historic house and the new cons~ction and to give flexibility to build a one-story addition to the miner's cottage. The HPC feels variances are an appropriate way to reach historic goals of the city. Haas noted the original variance requests were larger than what was approved. In the original Plan, the addition was closer to the Fifth street right-of-way. Now the historic structure is closest to the street. Haas told Council the new structure will be subject to HPC review and the height limit, which in this zone district is 25 feet. Councilman Hershey moved to adopt Ordinance #42, Series of 2002, on second reading; seconded by Councilman Semrau. CounCilman Pauls0n said he WOUld like to see the ordin~ce amended to address the Potvin's concern. Mayor Klanderud said council cannot require the HPC not to go through their process Roll call vote: McCabe, yes; Semrau, yes; Paulson, no; Hershey, yes. Mayor Klanderud, yes. Motion carried. ORDINANCE #43, SERIES OF 2002 - 333 West Bleeker Historic Lot Split Katie Ertmer, community development department, told Council this is a 9,000 square foot lot and the proposal is to create a 6,000 square foot lot containing structures listed on the national register, and a vacant 3,000 square foot lot. The land is subdivided to protect the structures listed on the national register and the majority of the FAR will go into the new house. Alan Richman, representing the applicant, told COuncil no variances are being requested. The proposal meets two of the city's goals, moving the floor.area away from this historic structure, and to allow a small infill unit on the new 3,000 square foot lot. 8 Regular Meeting Aspen City Council December 16, 2002 Mayor Klanderud opened thepublic hearing. There were no comments. Mayor Klanderud closed the public hearing. Councilman Semrau asked if the 6,000 square foot lot could be split again. Amy Guthrie, community development department, said the owners could apply for conditional use to do 2 detached units; however, with the small amount of FAR left, this would probably be unlikely. Councilman Hershey moved to adopt Ordinance #43, Series of 2002, on second reading; seconded by Councilman McCabe. Roll call vote: Paulson, yes; McCabe, yes; Hershey, yes; Semrau, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #44~ SERIES OF 2002 - 216 East Hallam Historic Lot Split Councilman Hershey entered a letter from Mr. Amato into the record. Amy Guthrie, community development department, noted this application is for a small addition to the historic house and the rest of the square footage going to the new building. This is a goal of HPC. Ms. Guthrie reminded Council they reviewed this last summer and granted an access license and vacated a portion of an alley. The property is immediately to the east of the Red Brick School. The house is in very poor condition and has had some unsympathetic treatment. The proposal is to divide the property into three 3,000 square foot parcels; move the Frost house a few feet to the west; to reverse the alterations; add a garage on the back of the house; add a new building. Ms. Guthrie noted the new building will comply with all required setbacks and dimensional requirements. The new building will be behind the spruce trees. HPC feels this project meets their design guidelines and recommends approval. The barn is on a separate parcel and is being restored to a single-family dwelling. Stan Clauson, representing the applicant, reminded Council Ordinance #1, 2002, provides for historic lot splits on 6,000 square feet. This lot split meets all requirements of the code. Clauson noted the FAR is established by the size of the parcel and the zone district. In R-6, total FAR is 3240 square feet; HPC has granted a 500 square foot historic preservation bonus so the FAR will be 3740 square feet and will be divided 1946 square feet to the historic residence and 1794 square feet to the new residence. Clauson pointed out the new residence ~s smaller because of the site constraints, like the large spruce tree. The existing width of the historic structure is 29 feet Regular Meeting Aspen Cit~ Council December 16, 2002 SO the HPC granted a variance for side yard setbacks. Clanson said the existing Frost house will be restored according to historic pictures of thc house. Camilla Auger, applicant, reminded Council through this application land to the north owned by thc Trueman Center was given to the city. The applicant has put some landscaping on this parcel. The applicant put 12 Victorian trellis along the edge of the Red Brick School. Fine gravel will be laid on the driveway between the Red Brick School and the Frost property. Mayor Klandernd opened the public hearing. Mayor Klandcrud entered a letters from Helen Palmer, Mr. Amato, Kermit Sutton, Paul Rutledge and Monte and Richard Johnson into the record. There is a packet from Bert Myrin sent to all Council including a copy of the P&Z minutes denying a duplex. Hal Dishler, representing Amato, told Council his client has thc same concern as that of the P&Z. Dishler said this is the essentially same project that was denied by P&Z. There are safety concerns with 3 residences using a common driveway, which is also used by pedestrians and bicyclists. Dishler said his client is also ,concerned about 3 dWellings and the massing and density of those. Denise Diers read a letter into the record from Paul and Susan Perm, which was also submitted to P&Z in July. Perm's letter noted they, too, went through HPC and built an ADU rather than a larger structure, Penn stated rezoning does not give any benefits to the community at large. The variances will only benefit the developers. Ms. Diers told Council she looked at the historic incentives, which state they are to encourage good historical preservation practices. Ms. Diers asked if the incentives have become something other than good. The incentives state quality of life is the guiding principle behind the program. Ms. Diers said only the developer's quality of life is being enhanced in this proposal. Ms. Diers said the construction of adding an additional dwelling will impact the neighborhood for a long time. Ms. Diers noted the view to Red Mountain and of the barn will be obliterated. The neighborhood viewed this as one lot and it is now going to become 3 lots. Bill Stirling said this is a good example of the new historic lot split ordinance and an incentive for preservation of Victorians. This proposal is I0 Regular Meeting Aspen City Council December 16, 2002 to break up the mass and not have one large dwelling on the front of the lot. Stirling said there are duplexes throughout this neighborhood; there ~s a large multi-use public building immediately to the west There are no height variances being requested, nor is this a proposal for a large addition on the back of a historic structure. Mayor Klanderud closed the public hearing. Mayor Klanderud asked if a duplex were approved by P&Z, would there have been a ADU required. Ms. Guthrie said the applicant would have had to provide cash-in-lieu or a duplex. Ms. Guthrie reminded Council in March 2000, the historic preservation ordinance was amended and there is no housing mitigation required. Councilman Semrau asked if what happened at P&Z is relevant since this is a different application for a lot split. Ms. Guthrie said HPC read the P&Z minutes and decided that discussion had nothing to bear on the standards for a lot split. Mayor Klanderud said this may result in a better finished product; however, it is very similar to the previous proposal Ms. Klanderud noted this was not a rezoning for development. The only property rezoned was a rear portion and this rezoning did not permit more development. Clauson reiterated that Ordinance #1, 2002, was a move away from larger lOts with larger structures and a move toward the smaller, historic lots. Clauson said this proposal is consistent with the historic character of the west end. The 3740 square feet allocated to the front lot remains the same whether it is a single-family house, a duplex or a lot split. The lot split provides more of a view corridor through the property than would a larger structure. Councilman Hershey said HPC, staff and Council worked hard on revamping the HPC review and criteria. Councilman Hershey said he would support this lot split on the recommendation of HPC. Mayor Klanderud asked why P&Z voted against this project. Ms. Guthrie said the standards for a duplex and for a lot split are different and P&Z was not convinced that project was compatible with the density of the neighborhood. HPC favors creating smaller lots. Councilman Paulson said he has a problem with the direction of HPC. Councilman Paulson stated to him the Mona Frost building is a historic property, sitting on a lot with a lot of space and a barn in the back. 11 Regular Meetin~ Aspen Cit~ Council December 16, 2002 Councilman Paulson said he has trouble understanding why a lot split would enhance the historic nature of this parcel. Ms. Auger told Council the complaint from P&Z was the density, that it was incompatible with the neighborhood to have a duplex. Ms. Auger pointed out she is trying to restore a historic house next to a 30,000 square foot mixed use structure. Ms. Auger noted the criteria for a duplex are more complicated than a lot split, which criteria are very straightforward. Ms. Auger said this application is for the same square footage and the same site coverage but two little houses have a better look. Clauson said there was confusion on how the conditional use criteria should apply to a duplex. Clauson said in passing a code amendment to allow lot splits on lots of 6,000 square feet, Council supports a historic house on a 3,000 square foot lot. Councilman Semrau said one of the goals of the historic preservation program was not to have overpowering additions on small historic resources. The goal of historic lot splits was to encourage people to create smaller multiple dwellings. Councilman Semrau said he feels this direction will help to preserve the integrity of the city's historic resources. Councilman McCabe agreed this ~s a different x~ay to approach historic preservation while trying to make it economically viable. Councilman Semrau moved to adopt Ordinance #44, Series of 2002, on second reading; seconded by Councilman Hershey. Councilman Paulson said he will vote for this with reservations as he feels HPC is missing the point about historic preservation. Councilman Paulson said this is saving a house but not the character of the site. Roll call vote: Semrau, yes; McCabe, yes; Paulson, yes; Hershey, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #45~ SERIES OF 2002 - Supplemental Appropriations Paul Menter, finance director, told Council this ordinance appropriates $6.2 million to the recreation center, $4.5 million from the Wheeler fund and $1.7 million from the housing day care fund. The terms of the interfund loans are a maximum 4 years at 3.5% interest. Menter told Council staffmet with the Wheeler Board last week and resolved the issues of concern expressed at the last Council meeting. 12 Regular Meeting Aspen City CoUncil December 16~ 2002 Mayor Klanderud opened the public hearing. Toni Kronberg said the pool and ice facility were supposed to haVe separate accounting. Ms. Kronberg asked where the $6 million is going, for what will it be used, and how will it be Paid back. Ms. Kronherg said she would like a break down of where the $6 million is going. Menter said this money is going into fund 363 so it will have a positiVe caSh balance. These funds will be repaid to the Wheeler and housing day care With interest. City Manager Steve Barwick said the necessity for this loan is due to the fact that the city has gotten farther in construction than SPARC has in its fund raising efforts. Ms. Kronberg asked why the pool was down sized and why the ice rink was up sized. Ms. Kronberg said She would like to find out eXactly how much money was spent on the pool. Menter said he would be glad to get these figures. Mayor Klandemd closed the public hearing. Councilman Mccabe mOved to adOpt Ordinance #45, Series of 2002, on second reading; seconded by Councilman Hershey. Roll call vote: Paulson, yes; Semrau, yes; Hershey, yes; McCabe, yes; Mayor Klandemd, yes. Motion carried. RESOLUTION #119~ SERIES OF 2002 - Temporary Use Sleigh Rides on Golf Course Sarah Oates, conununity development department, told Council this request is to allow commercial sleigh rides on the golf course from December 17th through the end of March. These sleigh rides will be on the dog track course. The applicant has worked with staff to make sure concerns are met. The rides will be from 4 to 9 p.m. daily. Ms. Oates noted letters of support have been received and one letter of concern from Tom Peirce. Staff recommends apprOval as this meets the criteria for the temporary use. Mayor Klanderud opened the public hearing. There were no comments. Mayor Klanderud closed the public hearing. 13 Regular Meeting Aspen City, Council December l& 2002 Councilman Hershey moved to approve Resolution #119, Series of 2002; Seconded by Councilman Semrau. All in favor, motion carried. RESOLUTION #121~ SERIES OF 2002 - 218 North Monarch Appeal of HPC Decision John Worcester, city attorney, told Council this is an appeal of a decision made by HPC; it is an appeal on the record, which is before Council in its entirety. Worcester noted this is not an opportunity for the applicant to argue the case; the facts found by the HPC and incorporated in the record are the facts Council is to assume to be correct. The standard of review from the land use code is that Council shall affirm the decision of t~e HPC unless they determine there was an abuse of discretion or a denial of due process. Worcester said these phrases are not defined in the city code, but there is a case law in Colorado which has defined them. An abuse Of discretion could include that HPC applied the wrong legal standard to the application, that the record is devoid of any competent evidence to support the' decision of the HPC. A denial of due procesS relates to the fairness of the process before HPC, like failure of proper notice, HPC members not conducting themselves impartially, not allowing the applicant to be heard, or any other procedural irregularities. WorceSter said if COuncil finds an abuse of. disCretiOn or denial of due process, they may take action t° remedy the situation, including a reversal of the HPC decision, altering conditiOns of approval, changing the timeline, or remanding the issue back to the HPC. Worcester said Council has received several e-mails from the appellant and these should be included in the record. These e-mails are dated December 9, December 9, December 11, December 11, December 13, and December 12, 2002. Mayor Klanderud entered into the record an e:mail from her to the applicant. Worcester said it is important that ex parte communications be entered into the record. Councilman Hershey said due to the content of some of these e-mails, he cannot be Partial on this application, recused himself and left the room. Mayor Klanderud stated she has read the e-mails but they have not influenced her. This is an appeal based on the record and the substantive document is the minutes of the Historic Preservation meeting. Councilman Semrau said he has not read them. Councilman Paulson said he read one of the e-mails and has walked bY the site to look at the fencing. Worcester said the issue for recusing oneself is whether a C0~h~iipers°n Can Still have an open mind and be imparti'al. CounCilman 14 Regular Meeting Aspen City Council December 16, 2002 McCabe said he read one e-mail to a point, then deleted it. The other e- mails he deleted. Amy Guthrie, community development department, pointed out Council has the entire packet from HPC including the staff memorandum. There was a minor development application hearing October 9, 2002. The application was denied because HPC felt the fence was not consistent with the historic preservation guidelines, which are the basis for all HPC decisions. Ms. Guthrie stated all the code reqmrements and procedures were followed for noticing and holding a hearing. The applicant was given a fair chance to speak. HPC moved to deny the application finding the standards were not met; they made a reasoned decision. Ms. Guthrie pointed out there is a chapter in the historic preservation guidelines dealing with streetscapes and lot features and in which fences are discussed. There are 5 standards regarding new fences; HPC found 2 of these were not met, which was the reason for denying the application. The standards not met are 1.2 and 1.3. Ms. Guthrie pointed out there are general overriding guidelines written in bold with supporting bullet points to illuminate the reasoning behind these, to provide examples or additional information. HPC found the bullet points under 1.2 and 1.3 did not support an approval of this application. Ms. Guthrie said there is an underriding policy of historic preservation, even on a national level, that there should be an understanding of the history of a property and that one does not replicate the historical features in a way that could be confusing. The concern with this proposal, especially the posts, was that it was very confusing and misleading that the fence is contemporary in front of a house over 100 years old. Ms. Guthrie told Council the applicant has taken issue with the fact the guidelines use the term "a new replacement fence" in bold in the memorandum yet the phrase is not repeated in the bullet points which are supposed to support the bold statement. Ms. Guthrie told Council neither she nor the applicant can confirm there has ever been a fence on this site. Ms. Guthrie said the replacement comment is that a fence is one that substitutes for what might have been when the house was built. Ms. Guthrie recommended Council uphold HPC's decision. Bert Myrin, applicant, said HPC exceeded its jurisdiction, abused its discretion by denying the application for a new fence using criteria used for 15 Regular Meeting Aspen City Council December 16, 2002 a replacement fence. Mynn Passed out a sheet containing the complete criteria used by HPC, 1.2 stating a new replacement fence should use materials that appear similar to that of the original. Myrin noted even removing the word "replacement" indicates that the criteria are looking for something similar to the original. Myrin said this rule is not applicable in cases where there was no original fence. Myrin stated 1.3 reads "A new replacement fence should have transparent qualifies", which again regards replacement fences, not new fences. Myrin pointed out HPC's staff position is outlined on this sheet and is that the supplementary statements clarify the primary design guidelines and that they apply to replacement fences and outline specific methods of complying with guideline. MYrin said staff's memo states replacement is not given emphasis, but in 1.2 it is underlined. Myrin told Council the box at the bottom is the criteria Council needs to apply. The left side of this sheet is findings Council could make, that HPC denied the applicant due process by not applying established rules; that HPC exceeded its jurisdiction by going beyond what the motion relied on; that HPC abused their discretion in creating rules that are not just for replacement. Myrin said Council's remedies are to reverse the decision, to alter the conditions of approval, remand the application back to HPC. Myrin requested Council find HPC denied the applicant due process, exceeded its jurisdiction and abused its discretion finding that guideline 1.2 is not applicable, that a prior fence is not being replaced so there is no need to consider material similar to the non-existent original. Myrin said Council should also find that guideline 1.3 is not applicable when a prior fence is not being replaced. Myrin requested Council direct staff to apply the replacement rule only after staff definitively approves there has been a fence on site before. Myrin said Council shall clarify the stated HPC regulation that infers a fence once existed on absolutely every front yard to instead infer a fence existed only when proven by staff. Myrin said if Council finds that 1.2 and 1.3 should be applied to his case, he has more evidence. Myrin said if Council finds that 1.2 and 1.3 are not applicable and HPC applied rules that are not applicable, Council can determine its action. Mayor Klanderud said she finds 1.2 and 1.3 applicable. It is a specious argument to definitively prove whether a fence ever existed there. The point is that this is a historic property in a historic nmghborhood. Mayor Klanderud said it makes sense these rules apply to a house that is historic. 16 Regular Meeting Aspen City Council December 16~ 2002 Mayor Klanderud said even if this is a replacement fence, the property owner is bringing in new materials. Councilman Paulson said if there was never an original fence, how can the replacement argument be used. Mayor Klanderud said there is a style appropriate to that historical period. Mayor Klandemd said the guideline is applicable. Councilman McCabe asked how long this process has taken. Ms. Guthrie said the fence permit application was dated September and the hearing before HPC was October and the appeal was filed within the required period. Councilman Paulson said these guidelines talk about replacement of an original and do not apply to a new fence. Councilman Semrau stated the burden of proof is on the applicant to clearly show there was an abuse of discretion or denial of due process in order to justify Council overturning HPC. Councilman Semrau said he does not feel there was an abuse of discretion or denial of due process. Councilman McCabe said although he can understand the applicant's concern about the wording, it is clear what the intent of the guidelines are. Councilman McCabe said it is clear what these guidelines are trying to protect. Myrin presented another sheet, which was if Council determined this is a replacement fence, outlining the criteria HPC found was not met. One ~s that any fence visible from public right-of-way must be built of wood or wrought iron. A wood or picket fence is an appropriate replacement in most locations, a simple wire fence may also be considered. Solid stockade fences are only allowed in side or rear yards. Myrin said when this is applied under 1.2, the style of the fence posts, like the color, ~s a detail left to the property owner. The guideline focuses on larger concerns like limiting of material to avoid the duplication of a contemporary CDOT cement jersey barrier style. Myrin said finding 1.2 is not met is a violation ora fair application of established rules. Myrin stated the criteria of 1.2 are met. Myrin read 1.3, "A new replacement fence should have a transparent quality allowing views into the yard from the street. A fence defines a front yard is usually low to the ground and transparent in nature. On residential properties, a fence which is located forward of the front building faCade may not be taller than 42" from natural grade. A privacy fence may be used in back yards and along alleys but not forward of the front faCade of the building. Note that using no fence at all is often the best approach. 17 Regular Meeting Aspen City Council December 16, 2002 Contemporary interpretations of traditional fences should be compatible with the historic context." Myrin told Council there are two different posts under consideration, and the usage of the two has no bearing on the transparency of the fence. The fence itself is transparent and allows views of the front yard. The distinction between the posts does not impact the views of the yard. Either post is 4 inches wide and the 6 posts take up 24 inches along 112 feet of street. Myrin pointed out post #5 is 41 inches tall, which meets the criteria of 42 inches; the #16 post approved by HPC is 50 inches tall and does not meet this criteria. Myrin stated he does not feel the bullet point stating a privacy fence may be used along back yards and alleys is applicable at all. Myrin told Council he has never suggested a privacy fence. Myrin said this is an abuse of discretion in applying roles that do not apply. Myrin noted the statement "no fencing is the best approach" does not provide a property owner to provide a low fence for the health, safety and welfare of the homeowner's children or pets. HPC did acknowledge that fences are appropriate. Myrin said his fence meets this criteria. Myrin told Council neither post suggested for his fence is contemporary and even if either were found to be contemporary, either post is compatible with the historic house. Myrin requested Council find guideline 1.2 is met and that guidelines 1.3 is met as well. Councilman Semrau said it is not within Council's scope to determine whether these criteria are met; it ~s up to HPC. Councilman Semrau said Council's role is to decide whether there was an abuse of discretion in applying the criteria. Worcester said Council could decide ifHPC was wrong in applying the wrong legal standard to the application. Worcester noted Council should not take the facts presented by the applicant before HPC and decide the facts are something different. Councilman McCabe noted the post the HPC approved does not meet the height limit. Ms. Guthrie told Council the only height of a post as represented by the applicant would meet the 42-inch criteria. HPC indicated a fence they would accept and the applicant notes this is higher than the criteria. Height was not an ~ssue at the HPC meeting. Myrin told Council he submitted a catalog of fence posts to HPC and they picked a certain style of post. Walt Madden, applicant, said there was confusion at the HPC on how to select a fence post. 18 Regular Meeting Aspen City Council December 16, 2002 Mayor Klanderud said she has read the HPC minutes and the guidelines. Height is one consideration as is the more ornate fence post. Mayor Klanderud said if one reviews how HPC proceeded through the fence hearing, she finds no denial of due process and no abuse of discretion. Mayor Klanderud said she sees no basis to do anything but affirm the decision of the HPC. Councilman Semrau agreed it is not Council's job to review HPC's choice of posts. It is HPC's job to know what fits the historic district. Councilman Semrau said that issue is not up for consideration. Councilman Semrau agreed there ~s not proof there was abuse of discretion or denial of due process. Councilman Paulson disagreed and noted the argument is over whether fence posts are too historic. Councilman Paulson said this is a violation of discretion because the rules are not being followed. Councilman Paulson said there is no guideline that will not allow the applicant to have this fencepost. Mayor Klanderud said changing the regulations is a separate issue from whether HPC followed the regulations in making their determination. Councilman Paulson said the regulations do not have a discrete, finite rule in which to judge this fence. Councilman Paulson said the criteria state the fence should be compatible with'the historic context and the fence posts should have met that criteria. Councilman paulson said he feels HPC abused its discretion, that this was too historic and subjective. Councilman McCabe said he struggles with these technical issues; however, that is why there are people on the HPC who have expertise in the field. Councilman McCabe said the guidelines from the interior department make a case for having something similar to the property but that a person with a trained eye could separate this from an original. Councilman McCabe said he cannot see where the HPC abused its discretion. Mayor Klanderud said Council agrees with HPC's decision. Myrin presented a third sheet which states, "Without first determining the application was for a contemporary interpretation of a traditional fence, the October 9th state memo jumped to the following concern relating to contemporary design. The products that Stored Iron Works provided are in many cases are identical to those that could be purchased 100 years ago and in fact are examples of historic wrought iron fences that bear the company's logo in Aspen". Myrin stated this was not part of the criteria in the motion. Myrin said Council has decided that guideline 1.3 is applicable. Councilman Semrau said all Council has decided is that HPC did not abuse its discretion. 19 Regular Meeting Aspen City Council December 16, 2002 Mayor Klanderud pointed out no where in the HPC findings does it appear they abused their discretion or exceeded their jurisdiction by going beyond the guidelines. Mayor Klanderud noted it does not appear the applicant was denied due process either. Councilman Paulson said 112 does not apply2 Councilman Paulson said this should be sent back to HPC. Councilman Semrau moved to adopt Resolution #121, Series of 2002, affirming the decision made by HPC; seconded by Counc!lman McCabe. All in favor with the exception of Councilman Paulson, motion carded. RESOLUTION #118, SERIES OF 2002 2In SupPort of'New MaroOn Creek Bridge Randy Ready, assistant city manager, reminded Council ar their retreat in early December, they directed staff to draft a resolution in support of a new Maroon Creek bridge. Ready stated the 1996 vote authorized two lanes of traffic and rail for the entrance to Aspen, the section from Buttermilk to 7th and Main. The 1998 Record of Decision corroborated that and opened the possibility of two dedicated bus lanes. The right-of-way conveyance to CDOT in August was specific'that this easement was to construct, maintain and operate a two-lane parkway and a corridor for light rail transit system to be constructed when the financing is available. Ready pointed out this resolution is specific to allow construction of a new Maroon Creek bridge and its approaches. Ready illustrated highway 82 and 6 segments, 4 of which be required for a new Maroon Creek bridge. The resolution does not address the parcels on the Thomas/Marolt property, which were part of the November election. The resolution does ask that the segment from the roundabout to Tiehack road to be completed as an early action item. Mayor Klanderud noted 12 months ago all 5 Councilmembers agreed on supporting a new Maroon Creek bridge. Councilman Paulson has changed his mind since last year. Lenir Drake told Council she supports construction of a new bridge over Maroon Creek bridge; however, she ~s concerned about the limited scope of this resolution. Ms. Drake said she is concerned about the absence of reference to the 2002 vote. Ms. Drake said CDOT has no money and there seems to be no reason to make a decision on this resolution at this meeting. Ms. Drake requested Council broaden the content of this resolution to 20 Regular Meeting Aspen City Council December !6, 2002 request the return of the Marolt open space land to the city and also to make improvements to the S-curvesl Bill Stirling said this bridge is not going to collapse tomorrow. Stirling said if the number of cars on highway 82 is reduced, a new bridge may not be needed. Council should work on ways to reduce automobile and bus traffic. Stirling suggested Council table this resolution for further study and consideration. Mayor Klanderud said she is not sure for the reasons for delay and she does not favor doing nothing. Councilman Semrau pointed out 12 months ago this was the only thing Council agreed on and it was perceived the community agreed on replacing the bridge. This is one component of the entrance to Aspen that does have to happen. Councilman Semrau stated this bridge request should be no risk to anyone. Councilman Semrau noted Council asked City Attorney Worcester to look into the ramifications of asking CDOT for the city land back. Mayor Klanderud reiterated she sees no reason to wait on this bridge issue. Councilman Hershey moved to suspend the rules and extend the meeting to 9:45 p.m.; seconded by COunCilman McCabe. All in favOr, motion carded. Donna Fisher said she supports what other citizens have said and takes issue with Council stating citizens do not want anything to be done. Ms. Fisher said this resolution is putting the cart before the horse and other issues need to be taken care of first. Councilman McCabe moved to adopt Resolution #118, Series of 2002; seconded by Councilman Hershey. Everyone opposed. Motion NOT carried. BURLINGAME PARCEL D DESIGN CONTRACTS ' Troy Rayburn, housing department, said Council must approve $60,000 to be dispensed $20,000 to each of 3 finalist design teams. Co~cilman Semrau commended staff as this ProjeCt has been fast tracked and may have a chance of getting started this spring. Councilman Semrau moved tO approve Resolution #122, Series of 2002, authorizing the city manager to execute 3 service agreements as outlined on 21 Regular Meeting Aspen City. Council December 16~ 200? F~'- the staff memorandum; seconded by Councilman McCabe. All in favor, motion carried. Councilman Hershey moved to go into executive session at 9:15 p.m. pursuant to C.R.S. 24-6-402(4)(b), advice fi:om counsel relating to personnel msues; seconded by Councilman McCabe. All in favor, motion carried. Councilman McCabe moved to come out of executive session at 9:30 p.m.; seconded by Councilman Hershey. All in favor, motion carried. Councilman Hershey moved to adjourn at 9:30 p.m.; seconded by Councilman Semrau. All in favor, motion carried. City Clerk 22