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Home My WebLink AboutLand Use Case.CU.1005 Cemetery Ln.A028-99/0 0 `t UkB �s J y L r- PN: 2735-013-10001 Case A028-99 Bri n Con i onal U e for an ADU dr uA g as C 2107 COMMUNITY DEVELOPMENT DEPARTMENT 130 South Galena Street Aspen, Colorado 81611 (970) 920-5090 City of Aspen Land Use: 1041 Deposit 1042 Flat Fee 1043 HPC 1046 Zoning and Sign Referral Fees: 1163 City Engineer 1205 Environmental Health 1190 Housing Building Fees: 1071 Board of Appeals 1072 Building Permit 1073 Electrical Permit 1074 Energy Code Review 1075 Mechanical Permit 1076 Plan Check 1077 Plumbing Permit 1078 Reinspection Other Fees: 1006 Copy 1302 GIS Maps 1481 Housing Cash in Lieu 1383 Open Space Cash in Lieu 1383 Park Dedication 1468 Parking Cash in Lieu Performance Deposit 1268 Public Right-of-way 1164 School District Land Ded. TOTAL NAME: ADDRESS/PROJECT: PHONE: CHECK# CASE/PERMIT#: DATE: # OF COPIES: INITIAL: dz;�93 5 - 0l ' - l000 CASE STATUS SHEET Case Case Assigned To: Toycc Oho _ i Msft-4 disa) Representative's Name: `gyp I -I u;►. Phone: 720-4 - °17ScZ Fax: =-n 4 — G 1- fc; I -- Activity: Date Assigned: 36557 Date Applicant Contacted: Date of Site Visit: Date of Determination of Completeness Date of DRC Meeting: P&Z Date(s): HPC Date(s): Council Date(s): Date Action/Activity A t.A/ PARCEL` 2735-013-10001 DATE RCVD: 13/15/99 22 CASE NAME: Brien Conditional Use for an ADU PROJ ADDR: Lot 44, West Aspen Subdivision CASE TYP: ADU r OWN/APP: Alice Brien ADR P.O. Box 11915 CJ57 Aspen, CO 81612 REP: John Muir ADR: 208 Main Street ..� C/S/Z: Carbondale, CO 816 FEES DUE: 255 (ff) + 160 (e) + 160 (h) FEES RCVD 575 REFERRALS • • APPLICANT: ALICE BRIEN, REPRESENTED BY JOHN MUIR LOCATION: LOT 44, WEST ASPEN SUBDIVISION ACTION: CONDITIONAL USE APPROVAL FOR AN ADU AND VARIANCE FROM THE RESIDENTIAL DESIGN STANDARDS STANDARDS APPLICABLE TO ALL CONDITIONAL USES: The conditional use is consistent with the purposes, goals, objectives and standards of the Aspen Area Community Plan, and with the intent of the zone district in which it is proposed to be located. The conditional use is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, or enhances the mixture of complimentary uses and activities in the immediate vicinity of the parcel proposed for development. The location, size, design and operating characteristics of the proposed conditional use minimizes adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties. There are adequate public facilities and services to serve the conditional use including but not limited to roads, potable water, sewer, solid waste, parks, police, fire protection, emergency medical services, hospital and medical services, drainage systems, and schools. The applicant commits to supply affordable housing to meet the incremental need for increased employees generated by the conditional use. The proposed conditional use complies with all additional standards imposed on it by the Aspen Area Comprehensive Plan and by all other applicable requirements of this title. ACCESSORY DWELLING UNITS: Accessory dwelling units shall contain not less than three hundred (300) square feet and no more than seven hundred (700) square feet of net livable area. The unit shall be deed restricted, meeting the Housing Authority's guidelines for resident occupied units and shall be limited to rental periods of not less than six (6) months in duration. Owners of the principle residence shall have the right to place a qualified employee or employees of his or her choosing in the accessory dwelling unit. One (1) parking space shall be provided on -site for each studio unit, and for each bedroom within a one or two -bedroom accessory dwelling unit. An attached accessory dwelling unit shall be subject to all other dimensional requirements of the underlying zone district. A detached accessory dwelling unit shall only be permitted on parcels that have secondary and/or alley access, exempting parcels with existing structures to be converted to detached accessory dwelling units, detached garages or carports where an accessory dwelling unit is proposed above, attached to, or contained within such detached garage or carport. Detached accessory dwelling units are prohibited within the R-15B zone district. An attached accessory dwelling unit shall utilize alley access to the extent practical. DEVELOPMENT REVIEW STANDARDS: The proposed development shall be compatible with and subordinate in character to the primary residence located on the parcel as well as development located within the neighborhood, and assuming year- round occupancy, shall not create a density pattern inconsistent with the established neighborhood. Where the proposed development varies from the dimensional requirements of the underlying zone district, the Planning and Zoning Commission shall find that such variation is more compatible in character with the primary residence than the development in accord with dimensional requirements. The Planning and Zoning Commission and the Historic Preservation Commission may exempt nonconforming structures, being converted to a detached accessory dwelling unit, provided the nonconformity is not increased. Conditional use review shall be granted pursuant to Section 26.60.040 standards applicable to all conditional uses. VARIANCE CRITERIA: For a variance to be granted, it would have to be based on one of the following three criteria: The proposed design yields greater compliance with the goals of the Aspen Area Community Plan, or The proposed design more effectively addresses the issue or problem the given standard responds to, or A variance is clearly necessary for reasons of fairness related to unusual site specific constraints. Post -it" b fax transmittal memo 7671 #off pages �►� j raj Tc ll /Vif/i1� From QUr� VYL�.7Q/' Ico.t �Ctrft�oa�/�Ut✓ Ico.'{ o f IlTde*q I Dept. I Phone # /a`n O- L O /_ Z_ IFax # —J-V 4- _ dZ_ ZJ -q, IFax # I MEMORANDUM TO: Aspen Planning and Zoning Commission THRU: Julie Ann Woods, Director of Community Development FROM: Joyce A. Ohlson, Deputy Director of Community Development RE: Lot 44, West Aspen Subdivision, Conditional Use for an Accessory Dwelling Unit (ADU), and Variance from the Residential Design Standards Public Hearing. Parcel ID 2735-012-310001 DATE: May 4, 1999 SUMMARY: The applicant is requesting Conditional Use approval to construct an Accessory Dwelling Unit (ADU). The applicant owns Lot 44 of the West Aspen Subdivision and intends to construct a single-family residence with a corresponding ADU on what is now a vacant, approved lot. The proposed ADU would be connected to the primary residence at basement level; however, with walk -out and above grade components to the ADU. By providing the ADU, the applicant would obtain a GMQS Exemption, enabling the property owner to construct the new residence in accordance with City Land Use Regulations. The applicant is also seeking variance to the,Residential Design Standards (Ordinance 30) for two design features. One variance request is to the "garage placement' standard which requires that garages parallel to the street be recessed 10 feet from the front fagade. The other request is a variance to the "volume" design standard which doubles the floor area calculation of any room where exterior plate heights are located between nine and twelve feet above finished floor. Community Development staff recommends that the Conditional Use for the ADU be approved, subject to conditions. With regard to the Residential Design Standards, staff recommends approval of the "garage placement' variance, but denial of the "volume" variance. APPLICANT: Alice M. Brien, represented by John Muir of Galambos/Muir Architects LOCATION: Lot 44, West Aspen Subdivision. Generally, the property is located in the northwest corner created by the intersection of Cemetery Lane and Silver King Drive. ZONING: Moderate Density Residential (R-15) CURRENT LAND USE: The subject property is presently undeveloped and was approved in 1968 by Pitkin County as part of the West Aspen Subdivision. An undeveloped trail is located across a portion of the property from which access is gained to Red Butte. LOT SIZE: The subject property is 15,734 square feet in size. ALLOWABLE FAR: The lot has an allowable floor area of 3,408 square feet. The R-15 zone requires a minimum lot area of 15,000 square foot per dwelling unit. ADUs do not count as units of density. PROPOSED LAND USE: Single family dwelling with attached Accessory Dwelling Unit. REVIEW PROCEDURE: Accessory Dwelling Units (ADUs) require conditional use approval by the Planning and Zoning Commission at a public hearing. It is a one-step review that requires notification to be published, posted and mailed in accordance with Section 26.52.060(E). The following sections of the code are applicable to this conditional use review: Section 26.40.090, Accessory Dwelling Units; Section 26.28.050, Moderate -Density Residential (R-15); Section 26.60.040, Standards Applicable to All Conditional Uses; and, Section 26.58.040, Residential Design Standards. Community Development Department staff reviewed this proposal against the Residential Design Standards and found that the submitted development application for the residence and ADU complies with the exception of the "garage placement" and "volume" standards. The volume standard variance request applies to both the east and south elevations, first and second floors, as illustrated on Sheets A2.1, A3.1, A2.2, and A3.2. of the applicant's submittal, Exhibit A. The Commission will serve as the DRAC when evaluating this request. BACKGROUND: The subject property is a vacant lot located at the toe of the southeast slope of Red Butte. The parcel serves as the foreground of a significant view from the Cemetery Lane area up to the ridge of Red Butte. Significantly steep slopes are found on the site necessitating the maximum 25% reduction in floor area for this development. The proposed floor area incorporates this reduction factor. The site constraints strongly dictate the area that is suitable for development and to a large extent, the 3-floor, stepped back design of the structure. As noted earlier, a primitive trail crosses a portion of the property providing a point of access to the Red Butte Open Space, a City -owned property. No formal easement over this trail has ever been in place for the use of this trail by the public over private property. The property owner has willingly worked closely with the City of Aspen Parks Department to determine a suitable relocation for the trail. Furthermore, the property owner has entered into an agreement with the City to provide a perpetual trail easement and right-of-way for public use. The easement agreement stipulates that the desirable and exact trail location will be determined by the Parks Department, surveyed and then the easement document will be finalized. Additional and specific language regarding the dedication of the easement is put forth in a signed and recorded document between the City and property owner, Alice Brien. While the location is not finalized, preliminary evaluation by the Parks Department indicates that the location of the proposed residence will not impact the future trail and is therefore not at issue. REFFERRAL COMMENTS: Comments from the City Engineering, Housing, Zoning, and Parks Departments as well as the Aspen Consolidated Sanitation District and the Aspen Fire Protection District are contained within this report as Exhibit B. Where appropriate, many of the comments have been utilized as conditions in the proposed resolution. STAFF COMMENTS: Section 26.40.090, Accessory Dwelling Units The proposed ADU would contain approximately 370 square feet of net livable area. The ADU would be deed restricted, meeting the housing authority's guidelines for resident occupied units, limited to rental periods of not less than six (6) months in duration. The owners of the principal residences will retain the right to set the rental rates and select a qualified employee(s) of his/her choosing in their ADU. One (1) off- street parking space will be provided on -site for the ADU, and will be accessed from the same driveway serving the principle dwelling. Therefore, the proposal complies with the requirements of Section 26.40.090(A)(1). Pursuant to Section 26.40.090(A)(2), the development, including the ADU, is subject to all of the dimensional requirements of the underlying zone district, Moderate -Density Residential (R-15). All of the dimensional requirements will be met; including those associated with floor area, height, site coverage, and setbacks. Since the ADU would be attached to the primary residence, Section 26.490.090(A)(3) is not applicable. Section 26.40.090(A)(4) states that "an attached accessory dwelling unit shall utilize alley access to the extent practical. " No alley exists to serve the subject property which makes this section not applicable as well. Section 26.40.090(B), Development Review Standards, requires that "the proposed development be compatible with and subordinate in character to the primary residence located on the parcel as well as development located within the neighborhood, and assuming year-round occupancy, shall not create a density pattern inconsistent with the established neighborhood." The proposed ADU would not be overtly distinct in terms of external appearances, as it has been designed to appear as part of the primary residence; thus, it will be compatible with and subordinate in character to the primary residences. This property is located in an established residential neighborhood which is, for the most part, made up of single family residences, many of which are greater in size than what is proposed on the subject property. Other ADUs are located in the neighborhood. The proposed ADU will be compatible with the character of the existing neighborhood and will not create a density pattern incompatible with that already established in the area. Section 26.60.040, Standards Applicable to All Conditional Uses Pursuant to Section 26.60.040, a development application for a conditional use approval shall meet the following standards: (A) The conditional use is consistent with the purposes, goals, objectives and standards of the Aspen Area Comprehensive Plan, and with the intent of the zone district in which it is proposed to be located. The stated purpose of the R-15 zone district "is to provide areas for long term residential purposes with customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Moderate -Density Residential (R-15) zone district typically consist of additions to the Aspen Townsite and subdivisions on the periphery of the city...." The proposed ADU would be in harmony with the purpose of the R-15 zone district since the ADU would provide for long-term residential use (or customary accessory use) and be in close proximity to transit (a bus stop is located on the Cemetery Lane frontage of the subject property). ADUs are allowed as conditional uses in the R-15 zone district. One of the stated themes of the AACP with regard to "revitalizing the permanent community" is to "increase resident housing." Also, the proposal is consistent with the following purposes, goals, objectives and standards of the AACP: • "Promote, market and implement Cottage Infill and Accessory Dwelling Unit programs;" • • "Develop small scale resident housing which fits the character of the community and is interspersed with free market housing throughout the Aspen Area and up valley of Aspen Village;" and, "The public and private sectors together should develop . . . employee -occupied accessory dwelling units, to achieve the identified unmet need to sustain a critical mass of residents." Staff finds that this conditional use application for the ADU complies with Section 26.60.040(A). (B) The conditional use is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, or enhances the mixture of complimentary uses and activities in the immediate vicinity of the parcel proposed for development. The subject parcel is surrounded by residential uses, some of which have associated accessory dwelling units, making the proposed ADU both consistent and compatible with the existing residential development in the immediate vicinity. Development on the subject property, one of the last undeveloped lots in a large, established residential subdivision, really constitutes infill of a like use and density. Also see the last paragraph of the Section 26.40.090, Accessory Dwelling Units portion of this memo, above. (C) The location, size, design and operating characteristics of the proposed conditional use minimizes adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties. As mentioned earlier in this memo, the proposed ADU would appear as part of the principal residences; thus, its location, size and design will minimize any potential adverse visual impacts. No noise, vibration, or odor related impacts are anticipated. The proposed ADU would operate like any other residence or ADU found in the neighborhood. The anticipated impacts should be negligible. During the course of review of the plans, staff has identified an opportunity for enclosed storage within the residence/ADU structure. Plan A2.3 provides the basement floor plan. By moving the suite door back from the ADU so that it would enclose the area below the stair landing, that area under the stairway could provide secured and private storage for the ADU resident. Indoor storage would be practical and minimize the likelihood of outdoor storage and its potential impact on the neighborhood. (D) There are adequate public facilities and services to serve the conditional use including but not limited to roads, potable water, sewer, solid waste, parks, police, fire protection, emergency medical services, hospital and medical services, drainage systems, and schools. There are adequate public facilities and services to serve the proposed uses. The residences would be within an existing, well -established neighborhood. (E) The applicant commits to supply affordable housing to meet the incremental need for increased employees generated by the conditional use. While the proposed development of the ADU would not generate an increase in the employment base, the applicant will be supplying an ADU which, pursuant to Section 26.40.090(A)(1), will be deed restricted, registered with the housing office, and available for rental to eligible working residents of Pitkin County for periods of not less than six months in duration, thereby serving the need for increased affordable housing in the City of Aspen. (F) The proposed conditional use complies with all additional standards imposed on it by the Aspen Area Comprehensive Plan and by all other applicable requirements of this title. The proposed conditional use will comply with all additional standards imposed on it by the AACP and by all other applicable requirements of the Municipal Code, such as those contained in Section 26.58.040, Residential Design Standards, unless variances are granted by the Commission. Section 26.58.040, Residential Design Standards The design for the proposed residence was reviewed by staff against the Residential Design Standards of Section 26.58.040. Staff found the proposed designs to comply with all but two of the design standards, namely standards 26.58.040(F)(4), Garages, Carports and Storage Areas, and (12), Volume. Re: Garages, Carports and Storage Areas As it applies to this application, this standard requires that all portions of a garage, carport or storage area parallel to the street be recessed behind the front fagade a minimum of ten (10) feet. If a variance is to be granted, it would have to be based or one of the following three criteria: (a) the proposed design yields greater compliance with the goals of the Aspen Area Community Plan; or, (b) the proposed design more effectively addresses the issue or problem the given standard responds to; or, (c) a variance is clearly necessary for reasons of fairness related to unusual site specific constraints. The site is a unique triangularly shaped lot and possesses steep slopes. Given these constraints, the proposed location and orientation of the garage lend themselves better to minimizing impacts through less cutting of the natural slope. If the garage were further back on the site the result would be a steeper driveway and greater cut. In addition, the location of the garage serves as a first "step" in the stepped back design of the residence. This stepped back layout seems to better utilize the site instead of an arrangement that would orient the residence more horizontally across the slope. The orientation of the garage is such that the garage doors face toward the southeast and do not directly face the street. This orientation moves away from the prototypical suburban residential setting which was one of the intents of the garage placement standard. Staff feels that the garage location variance is both necessary due to unusual site constraints and is a more effective method of addressing the garage placement issue, criterion b and c. Staff recommends the garage variance be granted. Re: Volume This standard requires that windows in any areas that lie between nine (9) and twelve (12) feet above the height of the floor plate, and non -orthogonal windows in any areas that lie between nine (9) and fifteen (15) feet above the height of the floor plate, result in a doubling of the floor area calculation for the respective room. The proposed design for the residence contains "volume" standard violations only on its east and south elevations. The east elevation as depicted on Plan A3.1 proposes two deviations from the window standard. These deviations are rather small in nature and are found along the top of the square dormer and arched windows. The other east elevation is depicted on Plan A3.2 and comprises at least a third of the specific window area, creating a substantial deviation from the standard. This east elevation of the residence and ADU faces toward Cemetery Lane and will be quite visible. On the south elevation, about half of the small square dormer windows and the set of three arched windows above the balcony doors exceed the standard. (Note: Given the plans provided by the applicant, it is difficult at this time to calculate the exact square footage of nonconformity.) Staff has requested amended plans and presentation materials from the applicant that clearly illustrate the specific areas that do not comply. In Exhibit A, Applicant's Plans, staff has highlighted the window components that are not in conformance with the standard. Under the language of the volume penalty, the applicant has three (3) options once it is determined that the proposed design does not comply: first, the applicant can choose to redesign the proposal to comply with the standard; next, the applicant can appeal staff's finding to the Design Review Appeal Committee or other appropriate board; lastly, the applicant can choose to accept a floor area penalty which would double the calculation of floor area in those spaces visually accessed though the non -conforming windows. The applicant has chosen to appeal staff's finding to the Planning and Zoning Commission in an attempt to obtain a variance. If a variance is to be granted, it would have to be based on one of the following three criteria: (a) the proposed design yields greater compliance with the goals of the Aspen Area Community Plan; or, (b) the proposed design more effectively addresses the issue or problem the given standard responds to; or, (c) a variance is clearly necessary for reasons of fairness related to unusual site - specific constraints. According to the pending revisions to the Residential Design Standards, the purpose/intent of the "Volume" standard "is to ensure that each residential building has street -facing architectural details and elements which provide human scale to the facade, enhance the walking experience, and reinforce local building traditions." Although pending code amendments do not hold any force in the review of current applications, staff felt this information might be helpful in understanding the issues/concerns that the volume standard attempts to address. Staff's evaluation of the proposed design does not yield a finding of greater compliance with the Aspen Area Community Plan. If the requested variances are to be justified, it would need to be on the grounds that either the proposed design more efficiently addresses the issue or problem the given standard responds to, or is necessary for reasons of fairness related to unusual site specific constraints. The following paragraphs discuss the requested variances relative to the variance standards. Staff does find that there are unusual site -specific constraints associated with the property; however, these constraints do not necessarily make it unfair, impractical or impossible to comply with the volume standard. Due to the verticality of the stepped back layout of the residence and how this layout moves up the slope of the property, the taller window arrangements may even add to the perception of height and stature of the proposed development. In the context of the neighborhood, this specific layout, including the window arrangement, does not move the development toward meeting this criteria or the criteria having to do with more effectively addressing the issue or problem the standard responds to. It is possible to develop within the exact letter of the "Volume" standard as put forth in the Code. Hence, staff believes the applicant should be held to the letter of the standard and either redesign the elevations or accept the floor area penalty for the corresponding internal spaces. STAFF FINDINGS: Based upon review of the applicant's land use application and the referral comments, Community Development staff finds that there is sufficient information to support the Conditional Use request with conditions. With the recommended conditions of approval, the proposal meets or exceeds all standards applicable to the review of Accessory Dwelling Units as conditional uses. With regard to the Residential Design Standards, staff believes the requested "garage placement" variance meets criteria b and c, but the circumstances do not warrant positive findings cf the criteria in order to grant the "volume" variance. The applicant does have the option to redesign the window elements to comply with the letter of the volume standard without compromising moving forward on the residence and ADU. RECOMMENDATION: Community Development staff recommends that the Conditional Use request for an Accessory Dwelling Unit and the Variance to the Design Standard for the garage placement only, on Lot 44, West Aspen Subdivision, be approved with the following conditions: 1.) The building permit application shall include the following in addition to normal submittal requirements: a) a signed and recorded copy of the Planning and Zoning Commission Resolution outlining the granted approvals and conditions, and on the cover sheet of the building permit plan set and all other prints made for the purpose of construction, the language of any and all conditions of approval; b) a signed and notarized letter from the contractor indicating that all conditions of approval are known to and understood by him/her; c) working drawings to verify compliance with all applicable dimensional requirements; d) plans for all utility meter locations; locations must be accessible for readings and may not be obstructed; e) a current Site Improvement Survey indicating the nature of all easements of record indicated on the property title commitment; f) a copy of the recorded plat showing Lot 44, West Aspen Subdivision; g) a $50 fee in lieu of digital submission requirements; h) a completed and recorded sidewalk, curb and gutter construction agreement and an agreement to join any future improvement districts for the purpose of constructing improvements which benefit the prosperity under an assessment formula. i) a completed and recorded ADU deed restriction on the property, a form for which may be obtained from the Housing Office. The deed restriction shall be noted on the building permit plans. j) a storm drainage report and mitigation plan, including permanent and temporary erosion control, water runoff, sediment control, contaminant control and retention components (24" x 36" size plan sheet or on the lot grading plan) prepared by a Colorado licensed Civil Engineer which addresses pre-, post- and during construction conditions and in accordance with Section 26.88.040(C)(0 of the Land Use Code; k) indication of whether a ground injection or re -charge type drainage system is proposed (i.e., drywells) and if so, a soils report establishing percolation rates will need to be included; 1) indicate that drywells will not be permitted within utility easements; m) indicate through the above -referenced drainage plans that foundation drainage systems will be detained on site; n) a tree removal or relocation permit from the City Parks Department for any trees to be removed or relocated; o) an executed copy of an agreement to join any future improvement district(s) which may be formed for the purpose of constructing improvements in adjacent public rights -of way; and p) a completed and approved tap permit with the Aspen Consolidated Sanitation district. The applicant shall connect the ADU to the sanitary sewer in a manner acceptable to the ACSD superintendent. 2.) The building permit plans shall reflect/indicate the following in addition to normal submittal requirements: a. conformance with all aspects of the City's Residential Design Standards unless specific variance has been granted; b. that the proposed ADU is labeled as such and meets with the definition of Accessory Dwelling Unit; c. that the ADU will contain a kitchen having a minimum of a two -burner stove with oven, standard sink, and a 6-cubic foot refrigerator plus freezer. d. that the ADU has the minimum one (1) off-street parking space provided. The ADU space must have clear access and cannot be stacked with a space for the primary residence; e. that the ADU meets all applicable UBC requirements for light and air f. that the roof is designed to prevent snow and ice from falling on, or building up on, the entrance to the ADU; g. that the ADU plan is amended to provide for a private and secure storage area for the ADU by moving the basement level suite door to a location so that the space under the stair landing may be part of the ADU; h. conformance with the City's requirements for driveways. Driveways must be separated by 25 feet or more (including neighboring driveways), and must be paved from the edge of the street to the property line. The City Engineer may approve paving alternatives; i. a fire suppression system if the gross square footage of the structure exceeds 5,000 square feet or if determined by the Fire Chief to be necessary because of fire and emergency access constraints of the proposed driveway. j. a five (5) foot wide pedestrian usable space with a five (5) foot wide buffer for snow storage at the edge of the street paving. 3.) The applicant should provide separate utility taps and meters for each residential unit. 4.) All utility meters and any new utility pedestals or transformers must be installed on the applicant's property and not in any public right -of way. Easements must be provided for pedestals. All utility locations and easements must be delineated and described on the site improvement survey. Meter locations must be accessible for reading and may not be obstructed. • 0 5.) The applicant must receive approval for any work within the public right -of way from the appropriate City Department. This includes, but is not limited to, approval for a mailbox and landscaping from the City Streets Department. 6.) All construction vehicles, materials, debris shall be maintained on -site and not within public rights -of way unless specifically approved by the Director of the Streets Department. The applicant shall inform the contractor of this condition. 7.) The applicant and contractor shall abide by all noise ordinances. Construction activity is limited to the hours between 7 a.m. and 10 p.m. 8.) Prior to the issuance of a Certificate of Occupancy, the applicant shall permit Community Development Department, Engineering and Housing Office staff to inspect the property to determine compliance with the conditions of approval. 9.) The proposed design has been granted a variance from Section 26.58.040(F)(4) of the Residential Design Standards, Aspen Municipal Code. All other requirements of the Residential Design Standards shall be complied with. 10.) Before applying for a building permit, the applicant shall record this Planning and Zoning Resolution, and pay the associated fee, with the Pitkin County Clerk and Recorder located in the Courthouse Plaza Building. The applicant may utilize the City Clerk for this recordation process upon payment of recordation fees. 11.) All material representations made by the applicant in the application and during the meetings with the Planning and Zoning Commission shall be adhered to and considered conditions of approval, unless otherwise addressed by other conditions. 12.) If the proposed use, density, or timing of the construction of the project change or the site grading, drainage, parking or utility plans for this project change subsequent to this approval, a complete set of the revised plans shall be provided to the Engineering and Community Development Departments for review and re- evaluation. 13.) Prior to issuance of any building permits, a review of any proposed minor changes from the approval, as set forth herein shall be made by the Community Development and Engineering Departments, or referred back to the Planning and Zoning Commission. RECOMMENDED MOTION: "I move to approve the Conditional Use allowing an Accessory Dwelling Unit and to approve a Variance to the Design Standard, for garage placement only, on Lot 44, West Aspen Subdivision with the conditions outlined in the Community Development Department memo dated May 4, 1999." EXHIBITS: "A" - Applicant's Land Use Application/Plans "B" - Referral Agency Comments "C" - Vicinity Map MEMORANDUM TO: Aspen Planning and Zoning Commission THRU: Julie Ann Woods, Director of Community Development FROM: Joyce A. Ohlson, Deputy Director of Community Development RE: Lot 44, West Aspen Subdivision, Conditional Use for an Accessory Dwelling Unit (ADU), and Variance from the Residential Design Standards Public Hearing. Parcel ID 2735-012-310001 DATE: May 4, 1999 SUMMARY: The applicant is requesting Conditional Use approval to construct an Accessory Dwelling Unit (ADU). The applicant owns Lot 44 of the West Aspen Subdivision and intends to construct a single-family residence with a corresponding ADU on what is now a vacant, approved lot. The proposed ADU would be connected to the primary residence at basement level; however, with walk -out and above grade components to the ADU. By providing the ADU, the applicant would obtain a GMQS Exemption, enabling the property owner to construct the new residence in accordance with City Land Use Regulations. The applicant is also seeking variance to the Residential Design Standards (Ordinance 30) for two design features. One variance request is to the "garage placement' standard which requires that garages parallel to the street be recessed 10 feet from the front facade. The other request is a variance to the "volume" design standard which doubles the floor area calculation of any room where exterior plate heights are located between nine and twelve feet above finished floor. Community Development staff recommends that the Conditional Use for the ADU be approved, subject to conditions. With regard to the Residential Design Standards, staff recommends approval of the "garage placement" variance, but denial of the "volume" variance. APPLICANT: Alice M. Brien, represented by John Muir of Galambos/Muir Architects LOCATION: Lot 44, West Aspen Subdivision. Generally, the property is located in the northwest corner created by the intersection of Cemetery Lane and Silver King Drive. ZONING: Moderate Density Residential (R-15) CURRENT LAND USE: The subject property is presently undeveloped and was approved in 1968 by Pitkin County as part of the West Aspen Subdivision. An undeveloped trail is located across a portion of the property from which access is gained to Red Butte. LOT SIZE: The subject property is 15,734 square feet in size. ALLOWABLE FAR: The lot has an allowable floor area of 3,408 square feet. The R-15 zone requires a minimum lot area of 15,000 square foot per dwelling unit. ADUs do not count as units of density. PROPOSED LAND USE: Single family dwelling with attached Accessory Dwelling Unit. REVIEW PROCEDURE: Accessory Dwelling Units (ADUs) require conditional use approval by the Planning and Zoning Commission at a public hearing. It is a one-step review that requires notification to be published, posted and mailed in accordance with Section 26.52.060(E). The following sections of the code are applicable to this conditional use review: Section 26.40.090, Accessory Dwelling Units; Section 26.28.050, Moderate -Density Residential (R-15); Section 26.60.040, Standards Applicable to All Conditional Uses; and, Section 26.58.040, Residential Design Standards. Community Development Department staff reviewed this proposal against the Residential Design Standards and found that the submitted development application for the residence and ADU complies with the exception of the "garage placement" and "volume" standards. The volume standard variance request applies to both the east and south elevations, first and second floors, as illustrated on Sheets A2.1, A3.1, A2.2, and A3.2. of the applicant's submittal, Exhibit A. The Commission will serve as the DRAC when evaluating this request. BACKGROUND: The subject property is a vacant lot located at the toe of the southeast slope of Red Butte. The parcel serves as the foreground of a significant view from the Cemetery Lane area up to the ridge of Red Butte. Significantly steep slopes are found on the site necessitating the maximum 25% reduction in floor area for this development. The proposed floor area incorporates this reduction factor. The site constraints strongly dictate the area that is suitable for development and to a large extent, the 3-floor, stepped back design of the structure. As noted earlier, a primitive trail crosses a portion of the property providing a point of access to the Red Butte Open Space, a City -owned property. No formal easement over this trail has ever been in place for the use of this trail by the public over private property. The property owner has willingly worked closely with the City of Aspen Parks Department to determine a suitable relocation for the trail. Furthermore, the property owner has entered into an agreement with the City to provide a perpetual trail easement and right-of-way for public use. The easement agreement stipulates that the desirable and exact trail location will be determined by the Parks Department, surveyed and then the easement document will be finalized. Additional and specific language regarding the dedication of the easement is put forth in a signed and recorded document between the City and property owner, Alice Brien. While the location is not finalized, preliminary evaluation by the Parks Department indicates that the location of the proposed residence will not impact the future trail and is therefore not at issue. REFFERRAL COMMENTS: Comments from the City Engineering, Housing, Zoning, and Parks Departments as well as the Aspen Consolidated Sanitation District and the Aspen Fire Protection District are contained within this report as Exhibit B. Where appropriate, many of the comments have been utilized as conditions in the proposed resolution. STAFF COMMENTS: Section 26.40.090, Accessory Dwelling Units� - 3 q The proposed ADU would contain approximately 27 square feet of net livable area. The ADU would be deed restricted, meeting the housing authority's guidelines for resident occupied units, limited to rental periods of not less than six (6) months in duration. The owners of the principal residences will retain the right to set the rental rates and select a qualified employee(s) of his/her choosing in their ADU. One (1) off- street parking space will be provided on -site for the ADU, and will be accessed from the same driveway serving the principle dwelling. Therefore, the proposal complies with the requirements of Section 26.40.090(A)(1). Pursuant to Section 26.40.090(A)(2), the development, including the ADU, is subject to all of the dimensional requirements of the underlying zone district, Moderate -Density Residential (R-15). All of the dimensional requirements will be met; including those associated with floor area, height, site coverage, and setbacks. Since the ADU would be attached to the primary residence, Section 26.490.090(A)(3) is not applicable. Section 26.40.090(A)(4) states that "an attached accessory dwelling unit shall utilize alley access to the extent practical." No alley exists to serve the subject property which makes this section not applicable as well. Section 26.40.090(B), Development Review Standards, requires that "the proposed development be compatible with and subordinate in character to the primary residence located on the parcel as well as development located within the neighborhood, and assuming year-round occupancy, shall not create a density pattern inconsistent with the established neighborhood." The proposed ADU would not be overtly distinct in terms of external appearances, as it has been designed to appear as part of the primary residence; thus, it will be compatible with and subordinate in character to the primary residences. This property is located in an established residential neighborhood which is, for the most part, made up of single family residences, many of which are greater in size than what is proposed on the subject property. Other ADUs are located in the neighborhood. The proposed ADU will be compatible with the character of the existing neighborhood and will not create a density pattern incompatible with that already established in the area. Section 26.60.040, Standards Applicable to All Conditional Uses Pursuant to Section 26.60.040, a development application for a conditional use approval shall meet the following standards: (A) The conditional use is consistent with the purposes, goals, objectives and standards of the Aspen Area Comprehensive Plan, and with the intent of the zone district in which it is proposed to be located. The stated purpose of the R-15 zone district "is to provide areas for long term residential purposes with customary accessory uses. Recreational and institutional uses customarily found in proximity to residential uses are included as conditional uses. Lands in the Moderate -Density Residential (R-15) zone district typically consist of additions to the Aspen Townsite and subdivisions on the periphery of the city...." The proposed ADU would be in harmony with the purpose of the R-15 zone district since the ADU would provide for long-term residential use (or customary accessory use) and be in close proximity to transit (a bus stop is located on the Cemetery Lane frontage of the subject property). ADUs are allowed as conditional uses in the R-15 zone district. One of the stated themes of the AACP with regard to "revitalizing the permanent community" is to "increase resident housing." Also, the proposal is consistent with the following purposes, goals, objectives and standards of the AACP: • "Promote, market and implement Cottage Infill and Accessory Dwelling Unit programs;" "Develop small scale resident housing which fits the character of the community and is interspersed with free market housing throughout the Aspen Area and up valley of Aspen Village;" and, "The public and private sectors together should develop . . . employee -occupied accessory dwelling units, to achieve the identified unmet need to sustain a critical mass of residents." Staff finds that this conditional use application for the ADU complies with Section 26.60.040(A). (B) The conditional use is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, or enhances the mixture of complimentary uses and activities in the immediate vicinity of the parcel proposed for development. The subject parcel is surrounded by residential uses, some of which have associated accessory dwelling units, making the proposed ADU both consistent and compatible with the existing residential development in the immediate vicinity. Development on the subject property, one of the last undeveloped lots in a large, established residential subdivision, really constitutes infill of a like use and density. Also see the last paragraph of the Section 26.40.090, Accessory Dwelling Units portion of this memo, above. (C) The location, size, design and operating characteristics of the proposed conditional use minimizes adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties. As mentioned earlier in this memo, the proposed ADU would appear as part of the principal residences; thus, its location, size and design will minimize any potential adverse visual impacts. No noise, vibration, or odor related impacts are anticipated. The proposed ADU would operate like any other residence or ADU found in the neighborhood. The anticipated impacts should be negligible. During the course of review of the plans, staff has identified an opportunity for enclosed storage within the residence/ADU structure. Plan A2.3 provides the basement floor plan. By moving the suite door back from the ADU so that it would enclose the area below the stair landing, that area under the stairway could provide secured and private storage for the ADU resident. Indoor storage would be practical and minimize the likelihood of outdoor storage and its potential impact on the neighborhood. (D) There are adequate public facilities and services to serve the conditional use including but not limited to roads, potable water, sewer, solid waste, parks, police, fire protection, emergency medical services, hospital and medical services, drainage systems, and schools. There are adequate public facilities and services to serve the proposed uses. The residences would be within an existing, well -established neighborhood. (E) The applicant commits to supply affordable housing to meet the incremental need for increased employees generated by the conditional use. While the proposed development of the ADU would not generate an increase in the employment base, the applicant will be supplying an ADU which, pursuant to Section 26.40.090(A)(1), will be deed restricted, registered with the housing office, and available for rental to eligible working residents of Pitkin County for periods of not less than six months in duration, thereby serving the need for increased affordable housing in the City of Aspen. (F) The proposed conditional use complies with all additional standards imposed on it by the Aspen Area Comprehensive Plan and by all other applicable requirements of this title. The proposed conditional use will comply with all additional standards imposed on it by the AACP and by all other applicable requirements of the Municipal Code, such as those contained in Section 26.58.040, Residential Design Standards, unless variances are granted by the Commission. Section 26.58.040, Residential Design Standards The design for the proposed residence was reviewed by staff against the Residential Design Standards of Section 26.58.040. Staff found the proposed designs to comply with all but two of the design standards, namely standards 26.58.040(F)(4), Garages, Carports and Storage Areas, and (12), Volume. Re: Garages, Carports and Storage Areas As it applies to this application, this standard requires that all portions of a garage, carport or storage area parallel to the street be recessed behind the front fagade a minimum of ten (10) feet. If a variance is to be granted, it would have to be based on one of the following three criteria: (a) the proposed design yields greater compliance with the goals of the Aspen Area Community Plan; or, (b) the proposed design more effectively addresses the issue or problem the given standard responds to; or, (c) a variance is clearly necessary for reasons of fairness related to unusual site specific constraints. The site is a unique triangularly shaped lot and possesses steep slopes. Given these constraints, the proposed location and orientation of the garage lend themselves better to minimizing impacts through less cutting of the natural slope. If the garage were further back on the site the result would be a steeper driveway and greater cut. In addition, the location of the garage serves as a first "step" in the stepped back design of the residence. This stepped back layout seems to better utilize the site instead of an arrangement that would orient the residence more horizontally across the slope. The orientation of the garage is such that the garage doors face toward the southeast and do not directly face the street. This orientation moves away from the prototypical suburban residential setting which was one of the intents of the garage placement standard. Staff feels that the garage location variance is both necessary due to unusual site constraints and is a more effective method of addressing the garage placement issue, criterion b and c. Staff recommends the garage variance be granted. Re: Volume This standard requires that windows in any areas that lie between nine (9) and twelve (12) feet above the height of the floor plate, and non -orthogonal windows in any areas that lie between nine (9) and fifteen (15) feet above the height of the floor plate, result in a doubling of the floor area calculation for the respective room. The proposed design for the residence contains "volume" standard violations only on its east and south elevations. The east elevation as depicted on Plan A3.1 proposes two deviations from the window standard. These deviations are rather small in nature and are found along the top of the square dormer and arched windows. The other east elevation is depicted on Plan A3.2 and comprises at least a third of the specific window area, creating a substantial deviation from the standard. This east elevation of the residence and ADU faces toward Cemetery Lane and will be quite visible. On the south elevation, about half of the small square dormer windows and the set of three arched windows above the balcony doors exceed the standard. (Note: Given the plans provided by the applicant, it is difficult at this time to calculate the exact square footage of nonconformity.) Staff has requested amended plans and presentation materials from the applicant that clearly illustrate the specific areas that do not comply. In Exhibit A, Applicant's Plans, staff has highlighted the window components that are not in conformance with the standard. Under the language of the volume penalty, the applicant has three (3) options once it is determined that the proposed design does not comply: first, the applicant can choose to redesign the proposal to comply with the standard; next, the applicant can appeal staff's finding to the Design Review Appeal Committee or other appropriate board; lastly, the applicant can choose to accept a floor area penalty which would double the calculation of floor area in those spaces visually accessed though the non -conforming windows. The applicant has chosen to appeal staff's finding to the Planning and Zoning Commission in an attempt to obtain a variance. If a variance is to be granted, it would have to be based on one of the following three criteria: (a) the proposed design yields greater compliance with the goals of the Aspen Area Community Plan; or, (b) the proposed design more effectively addresses the issue or problem the given standard responds to; or, (c) a variance is clearly necessary for reasons of fairness related to unusual site - specific constraints. According to the pending revisions to the Residential Design Standards, the purpose/intent of the "Volume" standard "is to ensure that each residential building has street -facing architectural details and elements which provide human scale to the facade, enhance the walking experience, and reinforce local building traditions." Although pending code amendments do not hold any force in the review of current applications, staff felt this information might be helpful in understanding the issues/concerns that the volume standard attempts to address. Staff's evaluation of the proposed design does not yield a finding of greater compliance with the Aspen Area Community Plan. If the requested variances are to be justified, it would need to be on the grounds that either the proposed design more efficiently addresses the issue or problem the given standard responds to, or is necessary for reasons of fairness related to unusual site specific constraints. The following paragraphs discuss the requested variances relative to the variance standards. Staff does find that there are unusual site -specific constraints associated with the property; however, these constraints do not necessarily make it unfair, impractical or impossible to comply with the volume standard. Due to the verticality of the stepped back layout of the residence and how this layout moves up the slope of the property, the taller window arrangements may even add to the perception of height and stature of the proposed development. In the context of the neighborhood, this specific layout, including the window arrangement, does not move the development toward meeting this criteria or the criteria having to do with more effectively addressing the issue or problem the standard responds to. It is possible to develop within the exact letter of the "Volume" standard as put forth in the Code. Hence, staff believes the applicant should be held to the letter of the standard and either redesign the elevations or accept the floor area penalty for the corresponding internal spaces. STAFF FINDINGS: Based upon review of the applicant's land use application and the referral comments, Community Development staff finds that there is sufficient information to support the Conditional Use request with conditions. With the recommended conditions of approval, the proposal meets or exceeds all standards applicable to the review of Accessory Dwelling Units as conditional uses. With regard to the Residential Design Standards, staff believes the requested "garage placement" variance meets criteria b and c, but the circumstances do not warrant positive findings of the criteria in order to grant the "volume" variance. The applicant does have the option to redesign the window elements to comply with the letter of the volume standard without compromising moving forward on the residence and ADU. RECOMMENDATION: Community Development staff recommends that the Conditional Use request for an Accessory Dwelling Unit and the Variance to the Design Standard for the garage placement only, on Lot 44, West Aspen Subdivision, be approved with the following conditions: 1.) The building permit application shall include the following in addition to normal submittal requirements: a) a signed and recorded copy of the Planning and Zoning Commission Resolution outlining the granted approvals and conditions, and on the cover sheet of the building permit plan set and all other prints made for the purpose of construction, the language of any and all conditions of approval; b) a signed and notarized letter from the contractor indicating that all conditions of approval are known to and understood by him/her; c) working drawings to verify compliance with all applicable dimensional requirements; d) plans for all utility meter locations; locations must be accessible for readings and may not be obstructed; e) a current Site Improvement Survey indicating the nature of all easements of record indicated on the property title commitment; f) a copy of the recorded plat showing Lot 44, West Aspen Subdivision; g) a $50 fee in lieu of digital submission requirements; h) a completed and recorded sidewalk, curb and gutter construction agreement and an agreement to join any future improvement districts for the purpose of constructing improvements which benefit the prosperity under an assessment formula. i) a completed and recorded ADU deed restriction on the property, a form for which may be obtained from the Housing Office. The deed restriction shall be noted on the building permit plans. j) a storm drainage report and mitigation plan, including permanent and temporary erosion control, water runoff, sediment control, contaminant control and retention components (24" x 36" size plan sheet or on the lot grading plan) prepared by a Colorado licensed Civil Engineer which addresses pre-, post- and during construction conditions and in accordance with Section 26.88.040(C)(f) of the Land Use Code; k) indication of whether a ground injection or re -charge type drainage system is proposed (i.e., drywells) and if so, a soils report establishing percolation rates will need to be included; 1) indicate that drywells will not be permitted within utility easements; m) indicate through the above -referenced drainage plans that foundation drainage systems will be detained on site; n) a tree removal or relocation permit from the City Parks Department for any trees to be removed or relocated; o) an executed copy of an agreement to join any future improvement district(s) which may be formed for the purpose of constructing improvements in adjacent public rights -of way; and p) a completed and approved tap permit with the Aspen Consolidated Sanitation district. The applicant shall connect the ADU to the sanitary sewer in a manner acceptable to the ACSD superintendent. 2.) The building permit plans shall reflect/indicate the following in addition to normal submittal requirements: a. conformance with all aspects of the City's Residential Design Standards unless specific variance has been granted; b. that the proposed ADU is labeled as such and meets with the definition of Accessory Dwelling Unit; c. that the ADU will contain a kitchen having a minimum of a two -burner stove with oven, standard sink, and a 6-cubic foot refrigerator plus freezer. d. that the ADU has the minimum one (1) off-street parking space provided. The ADU space must have clear access and cannot be stacked with a space for the primary residence; e. that the ADU meets all applicable UBC requirements for light and air f. that the roof is designed to prevent snow and ice from falling on, or building up on, the entrance to the ADU; g. that the ADU plan is amended to provide for a private and secure storage area for the ADU by moving the basement level suite door to a location so that the space under the stair landing may be part of the ADU; h. conformance with the City's requirements for driveways. Driveways must be separated by 25 feet or more (including neighboring driveways), and must be paved from the edge of the street to the property line. The City Engineer may approve paving alternatives; i. a fire suppression system if the gross square footage of the structure exceeds 5,000 square feet or if determined by the Fire Chief to be necessary because of fire and emergency access constraints of the proposed driveway. j. a five (5) foot wide pedestrian usable space with a five (5) foot wide buffer for snow storage at the edge of the street paving. 3.) The applicant should provide separate utility taps and meters for each residential unit. 4.) All utility meters and any new utility pedestals or transformers must be installed on the applicant's property and not in any public right -of way. Easements must be provided for pedestals. All utility locations and easements must be delineated and described on the site improvement survey. Meter locations must be accessible for reading and may not be obstructed. 5.) The applicant must receive approval for any work within the public right -of way from the appropriate City Department. This includes, but is not limited to, approval for a mailbox and landscaping from the City Streets Department. 6.) All construction vehicles, materials, debris shall be maintained on -site and not within public rights -of way unless specifically approved by the Director of the Streets Department. The applicant shall inform the contractor of this condition. 7.) The applicant and contractor shall abide by all noise ordinances. Construction activity is limited to the hours between 7 a.m. and 10 p.m. 8.) Prior to the issuance of a Certificate of Occupancy, the applicant shall permit Community Development Department, Engineering and Housing Office staff to inspect the property to determine compliance with the conditions of approval. 9.) The proposed design has been granted a variance from Section 26.58.040(F)(4) of the Residential Design Standards, Aspen Municipal Code. All other requirements of the Residential Design Standards shall be complied with. 10.) Before applying for a building permit, the applicant shall record this Planning and Zoning Resolution, and pay the associated fee, with the Pitkin County Clerk and Recorder located in the Courthouse Plaza Building. The applicant may utilize the City Clerk for this recordation process upon payment of recordation fees. 11.) All material representations made by the applicant in the application and during the meetings with the Planning and Zoning Commission shall be adhered to and considered conditions of approval, unless otherwise addressed by other conditions. 12.) If the proposed use, density, or timing of the construction of the project change or the site grading, drainage, parking or utility plans for this project change subsequent to this approval, a complete set of the revised plans shall be provided to the Engineering and Community Development Departments for review and re- evaluation. 13.) Prior to issuance of any building permits, a review of any proposed minor changes from the approval, as set forth herein shall be made by the Community Development and Engineering Departments, or referred back to the Planning and Zoning Commission. RECOMMENDED MOTION: "I move to approve the Conditional Use allowing an Accessory Dwelling Unit and to approve a Variance to the Design Standard, for garage placement only, on Lot 44, West Aspen Subdivision with the conditions outlined in the Community Development Department memo dated May 4, 1999." EXHIBITS: "A" - Applicant's Land Use Application/Plans "B" - Referral Agency Comments "C" - Vicinity Map EXHIBIT A GALAMBOS / MUIR ARCHITECTS ARCHITECTURE& PLANNING Design Narrative Lot 44, West Aspen Subdivision Alice M. Brien, Applicant 1. Overview (please note that a site/structure model of the proposed home will be provided at the public hearing) The site comprises the toe of Red Butte adjacent to the intersection of Cemetery Lane and Silver King Drive, zoned R-15. Except for a small relatively flat area in the northeast corner (mostly in the front yard setback) the site is steeply sloped. The applicant proposes a three -level wood -framed custom home, with the two lower levels being partially below grade. The allowable floor area is 3,408 square feet after taking the maximum 25% floor area reduction for a sloping site. The proposed floor area is 3,370 square feet by Department of Community Development standards after deductions for the garage and the partial sub -grade conditions of the basement and first floor. Actual gross floor area is 4,858 square feet; the net livable floor area is 4,406 square feet. Adjacent structures on the west side of Cemetery Lane and the North side of Silver King drive are two-story residential and generally unremarkable in character. None of these sites are as steeply sloped as the subject site. Every effort has been made to make the home fit the site in a harmonious fashion, with each successive floor level set back from the one below as the home steps up the site. The home has been placed as far back from Cemetery Lane as possible to provide acoustic and visual separation from this busy street as well as the adjacent RFTA bus stop. Placement also seeks to use existing cottonwood trees at the southeast corner of the site as screening elements. Exterior wall materials consist of stone, stucco, wood shingle siding, wood window trim, and log/timber trusses and accents. Stone type will be complementary to the reddish tones of the native soil. Roofing material will be jumbo cedar shake. Driveway access has been placed as far from the intersection of Cemetery Lane and Silver King Drive and the adjacent RFTA bus stop as is practical. Major public utilities are available on Cemetery Lane. PHONE: 208 MAIN STREET CARBONDALE, COLORADO 81623 (970) 704-9750 FAX: (970) 704-0287 E—MAIL: GALAMBOS(ii�SOPRIS.NEr 0 Copies of the applicant's easement agreement with the City of Aspen granting the City a perpetual trail easement across the subject property have been provided with this application. The proposed alignment of this trail is shown on the grading and landscape plans, sheets L-1 and L-2. The applicant undertook to provide this easement on her own initiative after considering that an opportunity for the City to incorporate existing "unofficial" trails into the City's established trail system would be a benefit to the community as a whole. The applicant respectfully requests that the Department of Community Development and the Planning and Zoning Commission consider this act a good -faith demonstration of her desire to build a project that is an asset to the community, both functionally and aesthetically. 1. Accessory Dwelling Unit Applicant seeks to exempt the project from GMQS Scoring & Competition procedure through the construction of an Accessory Dwelling Unit. No floor area exemptions or dimensional variances are requested in connection with this unit. The unit is attached to the main structure in a subordinate location on the north end of the basement level (see sheet A2.3). Grade configuration in this area allows for a walk -out condition (see east elevation, sheet A3.1, and north elevation, sheet A3.4). The entry door is on the north side and a stone stepping path is proposed from the entry door to the adjacent driveway/parking area (see landscape plan sheet L-2). The net livable floor area is 370 square feet. The floor plan of the unit (see sheet A6.1) proposes a studio -style arrangement, with a low wall separating the unit into living and sleeping areas. Per the floor plan, the sleeping area allows for a queen bed, side table, wardrobe, and dresser. The living area is sized for a kitchenette, seven -foot couch with end tables, T.V. cart, and a bistro table. A separate bath with shower is provided. A glass entry door and two windows provide over 80 square feet of glazing and ventilation, with pleasant views east to Aspen and Independence pass and north to Hunter Creek. 2. Residential Design Standards (Ordinance 30) — Garages & Driveways Applicant requests a variance for the requirement that garages parallel to the street be recessed 10 feet from the front facade. The proposed garage is located at the east end of the basement level (see sheet A2.3) within 10 feet of the front facade. The applicant recognizes that the prominence of the site requires sensitivity to grading issues; this location allows for a greater horizontal driveway distance from the street entry point and the garage, substantially softening the grading required, and reducing the driveway's visual impact from the street (see Grading and Landscape plans, sheets L-1 and L-2). This location allows the garage doors to be rotated away from a parallel relationship to the street, reducing their visual impact as well. The proposed garage provides a one-story element at the front of the structure, consistent with the concept of massing that "steps" up the slope of this unusual site. The proposed garage is substantially screened from the street by existing and proposed planting and by its separation from the street (seven feet vertically and 40 feet to the curb horizontally). 4. Residential Design Standards (Ordinance 30) — Exterior Plate Height Expression Applicant requests a variance for the requirement that exterior fagade penetrations (windows) between nine and twelve feet above finished floor (nine and fifteen feet for circular or non -orthogonal penetrations) incur an floor area penalty. a. 1-story gabled end wall at the Great Room — (see First Floor Plan, sheet A2.1, east elevation, sheet A3.1, east elevation #2, sheet A3.2) Gabled roofs are used throughout the proposed structure to impart a more rustic feel appropriate to the site. At the East end of the Great Room the proposed windows break down this gable in a desirable way and provide logical transition points between the different exterior materials. This element is substantially screened from Cemetery Lane by the garage element below and in front and by its vertical separation from the street (nineteen feet to finish floor). In fact from the street the garage would conceal the lower half of this window set. Existing and proposed planting provide additional screening. b. 1.5 story stone gabled end wall at the Entry Foyer — (see First Floor Plan, sheet A2.1, east elevation, sheet A3.1) This gabled element is used to break up this portion of the east elevation and, along with the stone entry stair and covered porch, provides a strong entry element. The window proposed strikes an appropriate aesthetic balance between stone and window area. Horizontal and vertical separation from Cemetery Lane, along with proposed planting, provides partial screening from the street. c. 1-story gabled end wall at Master Bedroom — (see Second Floor Plan, sheet A2.2, south elevation, sheet A3.2) As with the Great Room, windows proposed break down a tall gabled element in a more desirable way and provide logical transition points between the different exterior materials. This element faces south and has very low street impact since it is separated from Silver King Drive by adjacent residential structures as well as the balcony/kitchen element in front. d. Saddle dormer elements at the Great Room, Guest Master Bedroom, and Master Bathroom - (see first & second floor plans, sheets A2.1 and A2.2, east and south elevations sheets A3.1 and A3.2) Saddle dormers and the window sets within are used to break up the eave lines for more visual interest and to provide transition points for exterior materials. In the Guest Master Bedroom the vertical separation and the balcony/A.D.U. element in front will conceal most of the lower half of this window as seen from the street. The dormer/window sets in the Great Room and Master Bathroom face south and have very low street impact since they are separated from Silver King Drive by adjacent residential structures. • • 51T€ L-OT� ASPEN A SU�P1WMSiDNSKI Olh cO'h' r"ED 6 o k4+p COIL nwood �k• Rd COLO nctr e0 , nuinViewDr Q L" e r S w B u"" a 2rMo ky � Bcnc a �Y N To Glenwood Springs By r !l y>b and on Al Sie"AN6�d hb W,1 vet( e c CA J b B •°� a � � �� F4F yes of W PncIE a p IE cVc 4 o �� y 1 Silva King Dr Gillis le St 'eve a 82 Po£ w Q 2 2 Ra:c St S 3 Spring St Sm ! I 4 Cottonwood La O a ^ " crsr 5 Aju Ave C Fra crr Sr Pu S 6 Oils L.a MaropPGh 0 ° 0 7 Maple La 8 Midland Parr PI 3: s S S1 l q 5 9 Mucoue Ln A " r 6 10 Smuggkr Grow Cl S"` ill U S I I Ardmore Cl Z v _ E Aq 12 Rivusidc Ave Yl� '" vc " _�/q St kr f 13 Dale Ave 14 Midland Ave as path r v e Sr g 15 Mayflower Ct D Y� r y h c h 12 O h 1 1 I !c\`� B 4 y O o (`. 14 1 !�rnCJ n oo �aark 3 C? % U vc 9 v rov ROAD CLA S=F n()N y - / r� 1 6 M vi w Prr-rytirj.w+y r 7i a0. 9c Cca nt} ��n �r Ptah to" 0 ! 1/2 MILE � C Ughtoity ms& ; Po 'ral L 82 ` E Din ro" r jid 0 1f2 KILOMETO t Q -+�- Ralroad� I t To US 24 01998 Phone Directories Co. In' I 1 2 3 4 5 6 \/IGIN171' NAP b LAND USE APPLICATION* PROJECT: II 11 Name: (� 1 "��Tn Ivy I4nM�i Location: 44 W E-ec— &S l� �CJx7IV i Sir`�►�I CEanET�►,1�7 ��.►• e Sic _vim �ti►i (Indicate street address, lot & block number, legal description where appropriate) APPLICANT: Name: Address: P 9 (S Cz, 8 i& l2 Phone #: 2 5 REPRESENTATIVE: Name: G�c[ .. Z NAu I13.-Asc.61iF_=-1'T S Address:Csr. 'Atzpy�, L,-� Phone #: (ct'V) 704 ' `Z 750 TYPE OF APPLICATION: (please check all that apply): Conditional Use Conceptual PUD Conceptual Historic Devt. Special Review Final PUD (& PUD Amendment) Final Historic Development Design Review Appeal Conceptual SPA Minor Historic Devt. GMQS Allotment Final SPA (& SPA Amendment) Historic Demolition Gv1QS Exemption Subdivision Historic Designation ESA - 8040 Greenline, Stream Subdivision Exemption (includes Small Lodge Conversion/ Margin. Hallam Lake Bluff, condominiumization) Expansion Mountain View Plane Lot Split Temporary Use Other: Lot Line Adjustment Text/Map Amendment EXISTING CONDITIONS: (description of existing buildings, uses, PROPOSAL: (description of proposed buildings, uses, modifications, etc.) etc.) Have you attached the following? FEES DUE: Pre -Application Conference Summary 7 Attachment 41, Signed Fee Agreement ❑ Response to Attachment #2, Dimensional Requirements Form 7 Response to Attachment #3, Minimum Submission Contents 7 Response to Attachment #4, Specific Submission Contents 7 Response to Attachment 95, Review Standards for Your Application • 130 S. Galena St., Aspen, CO 81611 970-920-5090 It "" brand fax transmittal memo 7671 #of pages ► O AA.. From r) / V it k Co. Phone # Fax# Z)28-7_ Fax# FaX To: �i ►lh Aw'y- From: -,,J ce- A. OhLso.-i Fax: A d "� _ 2. Pages: , I ri C_.. 00 Vs-i Phone: Date: �J 1 7- q q Re: A D u CC: ❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle • Comments: `1 okn 1 VI 5.1V ct- - P f ? t� C� - 5t p,--, 0 lAr C kli r-r.G►�S Ct rY_ o LA,+ 04 -Fv LA,► Sc-) W<- w 16 I CA V- 7 Vs A. 54 5V,c-� Lvp�, �� CAr� V 4, Slit + � r A uk)t- WtQ OL"4- -fke— (ASSUkw.i 1 Gt C�-�- ► Y "V-N- tkkeA fl L-1.-5 1 EXHIBIT B MEMORANDUM To: Joyce Ohlson, Deputy Community Development Director Thru: Nick Adeh, City Engineer iZ6z Z,7 e�L From: Chuck Roth, Project Engineer (7F Date: April 16, 1999 Re: Brien Residence Conditional Use for an Accessory Dwelling Unit (Lot 44, West Aspen Subdivision) The Development Review Committee has reviewed the above referenced application at their March 31, 1999 meeting, and we have the following comments: General - If the proposed site plan is modified from the one presented in the application, as discussed in the DRC meeting, the Engineering Department should review the new site plan to verify that these comments are still pertinent to the development and to review the proposed design. No additional information is necessary at this time, although if the proposed use, density, or timing of construction of the project change, or the site, parking or utility plans for this project change subsequent to this review, a complete set of the revised plans shall be provided to the Engineering Department for review and re-evaluation. The discussion and recommendations given in this memorandum apply to the application and plans provided for this review and such comments and recommendations may change in response to changes in the use, density, or timing of the construction of the project, or changes in the site, parking or utility designs. 1. Improvement Survey - Survey needs to state nature of boundary line easements and label utility features adjacent to property and manhole on property. Although the manhole lid on the property is inscribed "sewer", the Sanitation District has informed us that it is not theirs. The applicant needs to determine what the function is of the manhole, and any appurtenant underground improvements, so that it can be properly labeled on the improvement survey and considered in the site design. The architectural site plan indicates a bus stop and an electric transformer that are not shown and that need to be indicated on the improvement survey. Is there a drainage swale along Cemetery Lane? 2. Site Drainage - The existing City storm drainage infrastructure system is does not have additional capacity to convey increased storm runoff. The site development approvals must include the requirement of meeting runoff design standards of the Land Use Code at Sec. 26.88.040.C.4.f and a requirement that the building permit application include a drainage mitigation plan (24"06" size plan sheet or on the lot grading plan) and a report signed and stamped by an engineer registered in the State of Colorado, submitted as part of the building and site plan, as well as a temporary sediment control and containment plan for the construction phase. If drywells are an acceptable solution for site drainage, a soils report must be provided with percolation test to verify the feasibility of this type system. Drywells may not be placed within utility easements. The foundation drainage system should be separate from storm drainage, must be detained on site, and must be shown on drainage plans prior to permit drawings. The drainage may be conveyed to existing landscaped areas if the drainage report demonstrates that the percolation rate and the retention volume meet the design storm. Drainage from the driveway is of special concern. 3. Sidewalk, Curb and Gutter - The development plans need to indicate a five foot wide pedestrian usable space with a five foot buffer for snow storage, where feasible. The applicant needs to sign a sidewalk, curb and gutter construction agreement, and pay recording fees, prior to issuance of a building permit. Note that there is insufficient space between the property line and the existing edge of pavement for the pedestrian area along the entire frontage. The applicant should be requested to, but cannot be required to, dedicate an easement for the pedestrian area where needed. 4. Driveways - Maximum allowable width within public right-of-way is 18' plus two 3' wings. The driveway grades should be designed to anticipate the possible construction of sidewalk in the future. 5. Parks Department - The applicant needs to convey an as -built easement, prior to certificate of occupancy, for an existing trail which will be reconfigured. The applicant needs to obtain a tree removal permit from the Parks Department. Scrub oak trees are included in tree permits. 6. HousimZ Office - There needs to be a double door between the ADU and the house. 7. Utilities - Preliminary information from the City Water Department is that the manhole lid labeled "sewer" that is on the property is a lid on a pressure reducing vault. An easement needs to be conveyed for the vault and the waterline. This should be confirmed by the surveyor with the City Water Department. No trees may be planted in the lot line utility easements. Any landscaping in the vicinity of the Holy Cross facilities in the public right-of-way, at the southerly corner of the parcel, must be approved by Holy Cross. Because of the corner location, maximum height of plantings and mature plantings may not exceed 42" above street grade. Any landscaping shown on the building permit application is not approved by the building permit process and must be separately applied for with a permit for working in the public right-of-way, also available at the Community Development Department. 8. Fire Marshal - If the area of the structure exceeds 5,000 square feet, sprinklers must be installed. The plans will be reviewed by the Fire Marshall at the time of application for a building permit. 9. Work in the Public Right-of-way - Given the continuous problems of unapproved work and development in public rights -of -way adjacent to private property, we advise the applicant as follows: The applicant must receive approval from city engineering (920-5080) for design of improvements, including landscaping, within public rights -of -way, parks department (920-5120) for vegetation species and for public trail disturbance, and streets department (920-5130) for mailboxes , street and alley cuts, and shall obtain permits for any work or development, including landscaping, within public rights -of -way from the city community development department. DRC Attendees Staff: Joyce Ohlson, Chris Bendon, Ed Van Walraven, Russell Grance, Stephanie Levesque, John Krueger, Ross Soderstrom Applicants: Alice Brien, John Muir 99M52 • 10 TO: FROM: RE: DATE: MEMORANDUM Joyce Ohlson Sara Thomas, City Zoning Officer Brien Residence Conditional Use for an ADU April 9, 1999 Lot 44, West Aspen Subdivision is a 15,734 square foot parcel located in the R-15 zone district. The following dimensional requirements apply to this parcel: Front yard setback Side yard setback Rear yard setback Site Coverage Open Space Height 25 feet 10 feet 10 feet No requirement No requirement 25 feet The majority of the parcel contains slopes in excess of 20-30% requiring that the maximum slope reduction be applied when calculating the permitted floor area. Floor area can be reduced by no more than 25% due to slope, allowing for a permitted floor area of 3408 square feet for this parcel. The proposed structure appears to conform with all setback requirements. Building height and floor area cannot be verified at this time as the application packet contains insufficient data for this level of review. All dimensional requirements will be verified at time of building permit application. P.1 APR 01 '99 10:E;2A1-JWN HOUSING nFC MWORANDUM TO, Joyce Ohison, Community Development Dept. FROM. Stefanie A, Levesque, Housing Of --Go DATE: Apri 1, 1999 Housing Office City of Aspen/Pitkin County 530 East Main Street~ Lower Level Aspen, Colorado 81611 1970) 920.5050 Fax: (970) 920-5580 RE: Brien -- Lot 44, West Aspen Subdivision ADU PQrccl 10 No. REQUEST: The applicant is requesting approval for an sooessory dwelling unit to be located in the lower level of the main home. BACKGROUND: According to Section 26.40,090, Accessory Dwelling Unfts, a unit shall contain not less than 300 square feet of net lnrable area and not more than 700 square feet of net livable area. ISSUES: When the Housing Office reviews plans for an accessory dwelling unit, there are particular areas that are given special nttention. They are as tollows: 1, The unit must be a totally private unit, which means the unit must have a private entrance anc there shall be no other rooms in t' 3 unit that neeI to t* utilized by the individuals in the principal residt=a; i.e., a mechanical room tort1w principal esidence. 2, The kitchen includes a m1nirnum of a two -burner stove with oven, standard sink, and a 6-cubic foot refrigerator plus freezer. 3. the unit is rewired to have a certain percentage of natural light into the unit; i.e., windows, sliding. @lass door, window wells, etc., especially if the unit is located below grade. The Uniform Building Code requires that 10% of the floor area of a unit needs to have natural light. Netural ligtit is defined as light which is clear and open to the sky. 4. Should the unit be used to obtain an FAR bonus, the unit MUST be rented to a qualified employee. 5. A deed restriction MUST be recorded PRIOR to building permit approval. The dead restriction shall be obtained from the Housing Office. RECOMMENDATION: After reviewing the application, the Housing Office recommends approval on the condition that issues 1-5 above are met prior to building permit approval. Prior to C.O. the Housing Office requires a site tour to inspect the unit, lreferrahbriemadu Aspen Consolidated Sanitation District Sy Kelly * Chairman John Keleher Paul Smith ' Treas Frantz Loushin Michael Kelly " Secy RECEIVED Bruce,Matherly, Mgr April 5, 1999 Joyce Ohlson Community Development 130 S. Galena Aspen, CO 81611 Re: Brien ADU Dear Joyce: APR 7 1999 ASPEN ! Pi I KIN COMMUNITY C� 'CLOPMENT The lot referred to in this application is located within the District's service area. There are no sanitary sewer facilities located on this particular lot. The location of the District's system has been faxed to Ross Soderstrom of the City engineering department. The nearest public line is located in the intersection of Snowbunny and Cemetery Lanes. Service to the property is contingent upon compliance with the District's rules, regulations, and specifications which are on file at the District office. Once detailed plans are available, a tap permit can be completed at our office which will estimate the total connection charges for the development. We would request, as a condition of approval, that a tap permit be completed and the total connection fees be paid prior to the issuance of a building permit. Please call if you have any questions. Sincerely, Bruce Matherly (� District Manager 565 N. Mill St -Aspen, CO 81611 / (970)925-3601 / FAX (970) 925-2537 • EXHIBIT C ILA �►i w • U I1/ 1 ►/ : a ►11 1►I TO: Joyce Ohlson, Deputy Director Community Development Department FROM: John D. Krueger, Trails Coordinator, Parks Department RE: Brien Residence conditional use for an ADU DATE April 25, 1999 Upon review of the application the Parks Department offers the following comments: The Parks Department would like to thank the applicant for granting a trail easement to provide access to such an important piece of open space as the Red Butte parcel. The Parks Department has pledged to work with the applicant on the design and location of the trail as defined in the trail easement agreement. The proposed trail alignment as represented on the landscape plan may change within the easement area depending upon the applicant's final landscape plan. It is important to note that it is critical for the trail to reach the Red Butte property via the defined easement area, which could take the trail as high as the 78 1 0-elevation line on the property. It is also, important to remind the applicant, as stated at the DRC meeting, that there is potential for another trail along the front of the property that would be part of a trail up and down Cemetery Lane. 0 PUBLIC NOTICE RE: LOT 44 WEST ASPEN SUBDIVISION, CONDITIONAL USE FOR AN ACCESSORY DWELLING UNIT NOTICE IS HEREBY GIVEN that a public hearing will be held on Tuesday, May 4, 1999 at a meeting to begin at 4:30 p.m. before the Aspen Planning and Zoning Commission, Sister Cities Room, City Hall, 130 S. Galena St., Aspen, to consider an application submitted by Alice Brien, P.O. Box 11915, Aspen, CO 81612, requesting Conditional Use approval to construct an accessory dwelling unit. The property is located at the intersection of Snowbunny Lane and Silver King Drive, and is legally described as Lot 44, West Aspen Subdivision. For further information, contact Joyce Ohlson at the Aspen/Pitkin Community Development Department, 130 S. Galena St., Aspen, CO (970) 920-5062, joyceo@ci.aspen.co.us. s/Robert Blaich, Chair Aspen Planning and Zoning Commission Published in the Aspen Times on April 17. 1999 City of Aspen Account Suzanne Wolff, 04:01 PM 3/29/99 , brien residence X-Sender: suzannew@comdev Date: Mon, 29 Mar 1999 16:01:03 -0600 To: joyceo From: Suzanne Wolff <suzannew@ci.aspen.co.us> Subject: brien residence The County does not have any comments on this application at this time. I assume that the Parks Dept is "on it" regarding the trail access to Red Butte. In general you don't need to refer applications like this to the County - I'm not sure what the referral requirement is in the City Code, but we generally only review "larger" applications or ones with direct impacts on adjacent County property. Printed for Joyce Ohlson <ci.aspen.co.us> 1 4 A 1 teqt<l o4e l'�'Ct.�+ ap 4�?4xt�� uKdkr con cz vow r uQe,ti,tA.J . f d.r r,4 . �SS Jokry AU tir (L� C-wt,+- a va v-� Ckk4 S �►�►� K 6 V, vt • �a� r.,,,�Jr� f Irowt,c� wed, �Ws4v-e. bZ-n—Ws (/ U MEMORANDUM TO: Plans were routed to those departments checked -off below: A ........... City Engineer • ........... Zoning Officer ........... Housing Director • ........... Parks Department • ........... Aspen Fire Marshal O ........... City Water O ........... Aspen Consolidated Sanitation District • ........... Building Department O ........... Environmental Health O ........... Electric Department O ........... Holy Cross Electric O ........... City Attorney O ........... Streets Department O ........... Historic Preservation Officer • ........... Pitkin County Planning FROM: Joyce Ohlson, Deputy Director Community Development Department 130 So. Galena St.; Aspen, CO 81611 Phone-920.5062 Fax-920.5439 RE: Brien Residence conditional Use for an ADU DATE: March 25, 1999 REFERRAL SCHEDULE DRC MEETING DATE:(note time: 1:30-3:00) March 31, 1999 OTHER REFERRALS DUE TO PLANNER: April 7, 1999 ENGINEERING REFERRAL DUE TO PLANNER: April 9, 1999 Thank you, Joyce. Ross Soderstrom, 02:56 PM 4/1/99 -, Brien ADU appl. for ACSD X-Sender: ross@comdev Date: Thu, 01 Apr 1999 14:56:10 -0700 To: joyceo@ci.aspen.co.us, acsdoffc@rof.net, lonniew@ci.aspen.co.us, philo@ci.aspen.co.us From: Ross Soderstrom <ross@ci.aspen.co.us> Subject: Brien ADU appl. for ACSD Cc: rebeccas@ci.aspen.co.us Joyce: Pls send a copy of the Brien ADU application to Tom Bracewell at the Aspen Cons. Sanitation District and to the City Water Dept. for review & .comment. 0\10v-94i6� d ,9A I visited the site this morning and the lanholeilid located within the property is labeled "sewer" which may not be what is actually under the ground. In any case, if this manhole / vault is active, the proper utility company will need an easement for the facilities (size depends on the facilities, size and depth). (The lid is a 24" dia. manhole lid embossed with "sewer": Is this a water vault by chance?). The manhole and vault at the south end of the property are both electric vaults (Holycross Energy). High voltage electric lines run from the switch gear (northeast corner) to these splice vaults (southeast corner, along Cemetery Rd frontage) in the R-O-W and easement, therefore no trees should be planted along the easement in the front of the property nor in the r-o-w due to the high voltage electric lines. I'll address this in my memo. Thx. Ross S. Printed for Joyce Ohlson <ci.aspen.co.us> 1 • • Sarah Oates, 08:45 AM 3/30/99 , Re: Brien adu X-Sender: saraho@comdev Date: Tue, 30 Mar 1999 08:45:07 -0600 To: joyceo From: Sarah Oates <saraho@ci.aspen.co.us> Subject: Re: Brien adu Julie Ann told John Muir that the Brien adu would be scheduled for April 20, but something has already been scheduled for that date (AACP). So, you might want to call and let him know that his case will be on the May 4 agenda. >Date: Mon, 29 Mar 1999 15:58:58 -0700 (MST) >X-Sender: juliew@comdev >To: Sarah Oates <saraho@ci.aspen.co.us> >From: Julie Ann Woods <juliew@ci.aspen.co.us> >Subject: Re: Brien adu >Yeah --I goofed. I think the May 4th P&Z should be okay. We aren't doing >buttermilk, but we're going to do AACP instead. JA. >At 09:38 AM 3/26/99 -0600, you wrote: >>You had mentioned to John Muir that we may be able to get him on the April >>20 agenda --that is reserved for the Buttermilk Master Plan work session with >>the county P&Z. Are we going to try to squeeze him in there? Let me know, >>because the notice is due Tuesday. Even if we had looked at his case any >>earlier he wouldn't be on the agenda any earlier --he couldn't have met the >>noticing requirements for 1st Tuesday in April. >>I'll be out monday, but if we do decide to let him on the agenda I should be >>able to whip out a notice fairly quickly. Printed for Joyce Ohlson <ci.aspen.co.us> 1 EASEMENT AGREEMENT THIS AGREEMENT made this T" day of IV-Wdrct�" , 1998, between the City of Aspen, Colorado, a municipal corporation (hereinafter referred to as "City") and Alice Brien, owner of Lot 44 of the West Aspen Subdivision, Filing 2 (hereinafter referred to as "Grantor"). WHEREAS, Grantor has Lot 44 of the West Aspen Subdivision, Filing 2, Pitkin County, Colorado, under contract to purchase with a scheduled closing date of January 15, 1999, and WHEREAS, the City wishes to acquire a trail easement and construct a trail over a portion of Lot 44 of the West Aspen Subdivision, Filing 2, and WHEREAS, in the event that Grantor actually purchases the said property, Grantor is desirous of granting the City a certain future perpetual trail easement and right-of-way across Lot 44 of the West Aspen Subdivision, Filing 2, for the purpose of providing unlimited access to trail users to the Red Butte Open Space area under the terms and conditions hereinafter specified. NOW, THEREFORE, for and in consideration of the sum of ten dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Grantor, the Grantor hereby grants and conveys to the City, its successors and assigns, for the benefit of the general public, a perpetual and exclusive trail easement across the area shown in Exhibits A and B, attached hereto and by this reference incorporated herein, and which is more fully described herein, for the. purpose of providing unlimited access to trail users to the Red Butte Open Space area under the terms and conditions hereinafter specified. Specifically, the trail shall be built by the City at its sole cost and expense within the triangular piece of property as it appears on Exhibit A. Grantor and City shall cooperate in determining the exact location of the trail within the described triangular area. In no event shall the trail be constructed above the elevation lines which comprise the western boundaries of the triangular area described in Exhibit A. Exhibit B indicates the approximate placement of the trail on Lot 44. However, the parties understand and acknowledge that the exact location of the trail easement is not known at this time. The proposed trail shall be built within the area described in Exhibits A and B, subject only to the terms and conditions set forth below. Following the construction of the trail, the City shall cause the alignment to be surveyed and prepare an as -built legal description of the trail easement. The alignment of the easement shall be determined at the time of the survey. The trail and legal description shall then be shown as an amendment to the final plat and recorded with the County Clerk and Recorder, all at the sole cost and expense of the City. THE ABOVE -GRANTED TRAIL EASEMENT and right-of-way is subject to and specifically conditioned upon Grantor purchasing Lot 44 and upon the following terms, agreements, and reservations: 1. Simultaneously with the construction, the City shall work with the Grantor or subsequent successor in interest to design an appropriate landscaping plan to screen the trail from the home on Lot 44. 2. The landscape design shall to the extent possible be coordinated with the landscaping planned for the rest of the lot. The landscaping may possibly include a split rail fence, signage at the trail head, an earth -form berm, trees, and vegetation necessary to provide privacy to the homeowner and direction to the trail users. 3. The City shall maintain the trail, fence, and signage. 4. The City shall contribute twelve thousand dollars ($12,000.00) towards any landscaping which Grantor desires to locate within the triangular area described in Exhibit A in order to mitigate any disturbances caused by the construction of the trail or to improve the landscape of the remainder of Lot 44. The City shall not be responsible for the continued maintenance of any landscaping planted by Grantor outside of the actual as -built and surveyed trail easement. 5. No motorized vehicles, except City trail maintenance vehicles, shall be allowed on the trail. 6. The City agrees to use reasonable care in construction of improvements within the area of the trail easement and agrees to avoid damage to the surrounding land and improvements thereto, and further agrees to restore such land and improvements to their condition as they existed prior to any construction, improvements, or repairs to the trail. 8. It is the intention of the parties to make the land available to the public for recreational purposes without charge, and to limit the parties' liability to persons entering thereon for such purposes. In the event that either or both of the parties might otherwise be liable under applicable state statutes, City hereby agrees, to the extent permitted by law, to indemnify and hold Grantor harmless from and against claims or awards for loss, damage, or any liability including reasonable attorney's fees and costs, which may result from City's acts or omissions covering and including, but not by way of limitation, installation, excavation, fill, construction, maintenance, repair, replacement, public use or location of the trail as subsequently determined by a court of competent jurisdiction. Nothing herein shall constitute a waiver of City's rights as provided in Section 24-1-101, et seq., C.R.S. 9. Subject to the conditions set forth herein, Grantor hereby grants to City a temporary construction license over and upon the land described herein and in Exhibits A and B during the time period necessary to construct the trail. 10. All covenants and conditions of this agreement shall be specifically enforceable, as applicable, by any appropriate legal action after thirty (30) days written notice. In the event that the parties resort to litigation or alternative dispute resolution, the prevailing party shall be entitled to recover damages and costs, including reasonable attorneys' fees. 11. No claim of waiver, consent or acquiescence with respect to any provision of this agreement shall be valid against the Grantor, except on the basis of a written instrument, executed and accepted by the Grantor. TO HAVE AND TO HOLD the said easement unto City, its successors and assigns forever. The provisions and covenants hereof shall inure to and be binding upon the parties, their successors, assigns, heirs, and legal representatives. IN WITNESS WHEREOF, the parties have executed this instrument the day and year first above written. • ALICE BRIEN /ZA STATE OF COLORADO ) ss. County of Pitkin ) The foregoing instrument was acknowledged -4 - (I ('- , 1998, by Alice Brien. before me this day of WITNESS MY HAND AND OFFICIAL SEAL. vdc) "�A W, C otary Public, State of Colorado My Commissiot-Expirres ,� �1� i I�`�`"/ ��• � Ili THE CITY OF ASPEN, COLORADO By: C ATTEST: Kathryn K Aspen City Clerk G11A GALAMBOS / MUIR ARCHITECTS ARCHITECTURE & PLANNING March 15, 1999 Mr. Mitch Haas City of Aspen Community Development Department 130 South Galena St. Aspen, CO 81611 RE: Lot 44, West Aspen Subdivision Alice M. Brien, Applicant Dear Mitch: Pursuant to your pre -application conference summary dated 3/3/99 please review the attached submittal documents relative to Conditional Use review (accessory dwelling unit) and Ordinance 30 review: 1. Proof of Ownership in the form of a Deed of Trust dated January 15, 1999 2. Signed Fee Agreement 3. Letter granting John Muir authorization to act as representative for Alice M. Brien, applicant. 4. Owner's Policy of Title Insurance as submitted to our offices by Pitkin County Title 5. Fee Deposit of $575 6. 22 copies of the complete application package 7. Vicinity Map 8. Design Narrative 9. Copy of trail easement agreement between applicant and the City of Aspen 9. Neighborhood block plan and photographic panorama. Please note that for the public hearing we will be providing a model showing the proposed structure on the site with representation of proposed planting. 208 MAIN STREET CARBONDALE, COLORADO 81623 PHONE: (970) 704-9750 FAX: (970) 704-0287 E-MAIL: GALAMBOS@SOPRIS.NET 0 10. List of property owners within a 300' radius With regards to the West Aspen Subdivision agreement, Pitkin County Title has informed us that the time limit on that document has expired. We will, however, attempt to locate a copy if required by your department. The submittal requirements contained in the pre -application summary were a bit confusing in terms of how many and what size drawings are required. Should this package be incomplete in any way please contact me immediately. Sincerely, L. John Muir, Architect T Ki r 11 Id. _. lv. 4;,� F, 6 0 FIDELITY NATIONAL TITLE INSURANCE COMPANY Fidelity National Title Insurance Company 17911 Von Kaman Avenue, Suite 306 Irvine, CA 92614-6353 Mat • • scow NW Owner's Policy of Title insurance Fidelity ?1'azional .Urle Insurance Company A Stock Company Policy Number 1 312- 136903 OWNER'S POLICY OF TITLE INSURANCE SUZUECT TO THE EiCL LrS.'ONS FRO,W COVERAGE, TFf,E cXCEPTICYS FRO.vf COVEPAGE CD.V,AINED y,,,; SCHCDULE BAND THE CONDITIONS A.tiD STIPULATIONS. FIL-ELITY NARONAL TITLE INSUR41VCE COMp.4A a corpor,t.'on, herein called the Company, insures, as oieDate of Polley shown in Schedule A, aVinst loss or damage, not exceeding tAe .1mcunt oflnsurance stated to Seheduie A, sustained or Incurred by the insured by reason of: I. 77ala to .'he jvxe- er Inlore!t dercrtbed in Schedule A being vested other than as stated herein, ?. A,�y da{ect in or lien or Encumbrance on the :isle. ?, Unmarketabilhty of the title; 4. Lack of a right of access to and from the land. The .Company will also pay the costs. attor.reys'fees and expenses Incurred in defense ?f the title, as insured, but only to t .e extent provided to the Conditions and Stipulations. IN NUNEZ WY-LEREOF, FIDELITY NATIONAL TIME LVSUk ! VCF CO:�LpA.`lY ha, . a:L ed this policy to be sig-1cd a,rd sea!_d 5y:rs dul}! authcrt:ed offlcert it ofDara efPolicv sho�vn in 5clredule.4. post -it' Fax Note 7671 Dace ► To FYOM ` , Co-'7eoT. Cc. anMait vrxer Fa; R Fax or SEA i *-ALIgnan= Countersigned: ALTA. 0—nCr'! ?JiICv ":0-17•92) .N:7C lr0rM Nu 1712 (b'93) Fldelfty National Title Insurance Company y>9 6'IV ; �� -__ - wo. 4S 3: EXCLL51ONS FROM COVER.AGL The fo►lowfng roaners are expressy ese-u m lie coverage of this pale; MW ibe Campanpant•Y will till or d2maa4 costs, alferoeys' fees or expenses wnlcb arm by reason of: 1. (a) Any law- ordinance of geyernmeatal r"Waiden (inclueli■g bat w laillad to bsiildiag sad zoning laws, ordla2ric", or reguletiostsl ratrieting, regatal'arg, prohiWting or Witiag to (i) the xcupartclr, me or enjoyment of the lead; (ll) the character. o:measions or Iecatlon of arty Itoprovernesel now or her>9iter erected on the land; 6W a w9sralion in c-nership or a caasrfe in the illwArsiens of arse of the land or any parcel of which the land is or was a part: or fiv) eeviroamcatal protection, or (he effect of any 00111licid of these taws, ordinsrizes or governmental regulations. except to the extent Out a ootke of the ee(pretme■t thereof at a twlia of a defect. lien or ancambrasce resulting from it violation or auegtd Violation affecting the land bas beca recorded in Ibe p•risik records at Dew of Poliky. (b) Any governmental police power not excluded by (a) sbovta except to the extent ihss a notice of the cureim thereof or it notice of a delete, lien or encumbrance renuhing from a violation or alleged violation affecting the land has been recorded is the p■Nic records at Date of Policy, 2, Rights of eminent domain unless ntsluce of the exercise thereof has been recorded in itre public records at Dale of Policy, but not excluding from coveragt any 14kins which has occurred prior to Date of Policy which would be binding on the rights of a purciaasr for value without knowledge. J. Defeem, liens, encumbnnceL adverse daims or other matters: (a) created, suffered, asiumed or agreed to by the fe5ared cfeimeat; (b) not knows to the Curnpaq, no( recorded in tie public records at Date of Policy, but known to the Insured daimant and act disclosed in writing to the Company by (be Insured claltaaai prior to the date Me Insured claimant became is insured under this policy: lei reioM(ng In no lt)ss or daaare to the insured claimant: (d) attaching or ceeated subseouent to Dose of Poiicyt or (e) resahing ;n lost or darner which would noe have beta sustained if the insured claimaet had paid value for the estate or interest insured by this policy. d. Any Jelin which arises cal of the baesaction ,tiliag in the Insured the estate or interest Imured by this policy, by reason of the operation of feda-al bankrep(ty. Stow insolvency, or similar creditors' rights law, that is based on: (il the transaction a»sting rise etlete or ietarast insured by Ibis policy being dnased a fraudulent coaveyonce or fraudulent transfer; or (ii) the transaction craont the estate or interest insured by this policy being deemed a preferential tranater except where the preferential transfer results from the failure: (a) to limdy ricard the inslraene■t of transfer, or (b) of Stich recordation to Impart notice to a purchaser for salue or a judgment or lien creditor. CONDITIONS kSD STIPULAnONS 1. DEFINITION CW TERMS The follow!r.g terms when used :n this policy mean. iV "insured '. the w.Sured rained in Schedule A. and. subject to any rignis or defenses Line Company would have had againic the named insured, these who suc- :ce1 to the interim of the named assured by operatscn of law its disttngWshed from purcnase iric(uding, 71AI not limited to, heirs, distributes, devisers, survivors, per- sona. representatives. -text of 1Ca, or corporate w fiduciary successors. (b) -insured :;a r7ant' : an insured claimingg bra cr damage. (c) "Knowledge" or "known". actual knowledge, trot constructive knowledge or notice which may be imps red to an insured oy reason of the public rcmm5 as dcf.ncd in this policy or tiny other rt:ord which impart constructive notice of m.a - trrs aifectiaq Line land, (d) "land": (he land described or referred to in Schedule A, and impproyerenu afriixed thereto which by taw :oruutu(e seal property. The (er-t "rand- does tact Inc',tde any property beynad the lines of the area described or referred to ,n Scnedu,c A, no: any right, tide, in(erost. estate cr easemnt in abutfing ;trccu, rcads, avenues. alleys, !sines, ways or walarvysys, base notnrng herein shall mortify or limit the extent to which a right Of accata to an4 from u`,e larid i; insured by Lnis p0.11cy. (e) -morgage nerg3ge. dote of trust. trust deer, or other secunr) :nst ument. (() -public records': recordi established under since s atuies at Date et Policy for the ;urposc of imoartin; cors!:uciive notice Of maven rJ"' : to via: property t3 purchasers for v?luc and witn= knowledge. 1Nkt respect to Sec:lon l(aKiv) of tnc txclusium From Coverage, "public records" shaJ east tnciude envi.onrnn- til protection teens riled in (tat swords of (he clerk of ilia United States dlatrict court for the dismci in which the land ii located. (g) -unmarkettbility of :he�ri;la"; an alleged or apparent matter affecting he title .o the land, riot •eluded or excepted from Coverage, which woulc entitle a purchaser of the estate or inwest described in Sdrecule A to be rdcssed ;rout the cbllgation to purchasc by virtue of a contractual condition regalring the deiivery cf marknabk title. 2. CON'TiNUATION OF INSURA-NCE A --TER CONVEYANCE OF TITLE The :overage .yf this policy shall continue in force as of bate of policy in favor cf ar insured only ;o tong as the insured rowers an estate or interest in one land• or holds an indeo(edness secured by s purchase money, mompge given by a pur- crm;er tram the insured, or only so long is the intivod shall have liability by reason of covenae:s ai warranty nude by the insured in any transfer or eonvoyanea (if rho _ra(e or racer:st. Tres policy stall not continue in force in favor of any pur- cha;er from me insured of either (1) an -slate or int_rest in the land, or 'it) an in- dcbtcdnesn secured by a Durctmv money mortgage, giver to the insured 3. 'NOTICE OF CLALM TO BE GIVE:4 BY MEWD CLAZIANT ,~ _- insured shall mcxif,+the Company promptly in writing (i) in case of any titi$a- tion as set forth In Seddon d(a) Wow, (u it) in cue knowledge Thal: come cc an in- stred hereunder of any claim of nUe or interest which is adverse to the tiLe to the vitate or interest as insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy. or (iii) if title to the ,Late or In- teresi, as insured, is r%cicred as uametrkelable. If prompt iii ice shall not be given to the Company, that as to tyre insured ail liability of the Company sho.11 tarriuritio wi h re8ard to We nsrttr or clatters for which prompt notice is rejuisrd; provided, however.:hat fade:e to rmtify the Company shall in no case prejudice the right3 of any :rsurce under this policy umcss the Company shall be pre,,udleed by tfx failure and lhcn only to the extent of the prejudice. 4. DEMSE AND PROSECUTION OF ACTIONS; DUTY Of INSL'RLD CLALSIX'rT TO COOPERATE (a) Upon wnaea request `;y he insured usd subjsct to the o;aons contained in Section 6 of these Conditions and Stipulation, the Company, at i!s own cost and without unreasonable delay, shall provide foe .he defense of an insured in lingationt in which any dtird party a izLne a clairn adverse to tiro title or interest as irutwed, bT a :,y as to uwse stated _gusts of action alleging a defect, limn or encumbrance or other minter Insured against yy this poliey. The Comptury ;ball haye in* tigltc to tclrct counsel of its own c111*9 iaabject to the ryht of the insured to object for reasonable cause) to represent the ,nture4 as to those atattoi muses of action and shall not be liabie for and will not pay the Fees of any other couasei The Compa.vy will not pay any tees. costs or expenses Incurred by the intia ed in the defensc of 'hose causes of action which allege nutters not :nsurce against by the policy. (b) The Company shall have he tight, at is owe cos;, w institute and ;rosectat any action or proceedieg or to do say other act which In its opinior may be necessary o: desirable to establish she (itir to the astam or iistc-m, .is insurer, or to preycni or reduce :ens or damage to the insured. Tic Company ma take anyy aporoprtote union under the sernw of this policy, whether or not it stall be liable hereuader, end shall no; thereby coricede liaStlay or waive any provision of this policy. If Lie Company ;hail exercise its rights uncer this paragraph, it sha)i do so diligently. (c) Whenever the Company ;Hall l'rave brought an action or interposed a dcfenst as requi.ec or perri :red by the provisions of this policy, the Company may pursue any IiuSalion to Final determination by a court )Fcotripetenr jurt3dlcuon and cx- pressiy reserves the right, in its sole discretion. to appeal from any adverse juag- merit or ureter. (d) In a); cases where tt.is policy pre -its or requires the Company to prosecute or provide for the defensc of any achon or procadutg, the insured shall secure to the Compnr.y the riPnt :o so prosecute or provicle. dtfenst in the action or pro- eoadiag. and ill appaii iheroin, and pem+ii ;he Company to use, at its option, Lhe e of the inred for this eu.rou. Whenever requested by the Company. the iname susnsured, it the Company I experse, shall give ;he Company all reasonable ago (i) In nay action or proceeding, securing evidence, obtaining witnesses, prosezitong or dc.anding the action or arzccxl:rag, or cffumng sediment, and tit) in any other lawful sec which in the opinion of the Company may be necessary or desirable to urablich the tide to vu estate or interest as insured. IF the Ccmpsny is prejudiced by the Failure of the insured to :`tarnish the equimcl cooperation, the Compary's obligations to :he insured under the policy shall term rare, including_ any :!ability D. obligation to defrnd, prnscrate, or continue any litigation, wi(n tcg3rd to the xarttx it mariers requiring such cooperation, 5. PROOF OF LOSS OR DAMAGE In addition to and after (he ricticffi r'equimd under Section 1 of these Conditions and 3lipuimicns have been provid=d rise Company, a proof of loss or darrugc sigacd and sworn to by the insured claimant shall be n itrualced (o he Company within X cays after the insured claimant shall ascertain the taco giving rise to the loss or damage. The proof of loss or damage shall describe the defect in. or lien or -ccumoranc- on are rue, or other matter insured against by :hit po:icy which con- Stt(utcs Into basis of loss or damage and snall since, to the extam possible. the basis 0f catcu:at.:ng the amount of (rte 'ess or damage. if the Company is prejudiced by (he failure of the insured ciaira is to provide the required goof of loss or da.-natte. tha Cotrtpany'a obligations to thm e insured 3nder the policy ;hail ta:nima, including any !iaoi rty or obligation :c defend, psysecute, or corsrinue any iitigation, with regard to the maltIrr or mrttler requinng such proof of loss tx damage. In addition, the insurai claimant may reasonably be required to sub:tit to examina- aon under oath by any authorized reprc=nstativc of the Company and shall produce am fee exination, inspection and copying, at such reasonable times and places as may be designated by way authorised representative of the CompareY all records, books, ledgers, then!✓, correspondence an: mareoranda, whethtr bearing a due before or after Date of Policy, which reasonably pettain to the loss or damage Furiner, if requested Sy any aurhonzod representative of the Company. the insured clairnanl shall gut its permission, in writing, for any authorized rtprsetutivo of the ComQarsy to examine, 'aspect aril cony all records, books, ledgers. checks corrmpandenee and memoranda ;n the t aatody or x•.trol Of a third party, which reuooab►y pe taiA Lobe: !ass or damage. All :nforrtuuon designated ascent dental by the Instlrod clalnum provided to the Company ?ursdant to this Sxtion &hail coc be disclosed to others ultless, in the reasonable Judgment of dr Company, it is stecessacr in the ntdnvaisr:ation of doe claim. Failure of dii: instird claiawt _c suo- rnit for examitsat+On under oath, produce other rataom*bly requesreA mformation or ;rsnt pttt:n+istlio■ to secure reasonably necessary ithforsasaatin from third parries as requlrcd in else above paragraph shill terminate nay liability of the r-ctrpany under this policy as :0 WE chum. �.J0. � q 1, I J J 6. OTTIONS TO !AY OR OTIIEA)Y 58IllL CLAZIIS; M't(^tAT70N OF LUDiLM' Ir. cue of it claim under LSns ao:ic), the Company shall have the following &&I- tiorial options: (a) To Pay or Taadter Payment of the Arni bf insurance. To pay or sander payman. of the amount of insurance under this policy togther .vith any C"u, surrey C far and "was incurred by the mitred claimant, whim were suticirizcd by tie Cem*a�ay, up to the cane of payment or tender of payment and which the Company is obli�asat to pay. Vt7vn i"Ic cscrcisc by the Company of this option, all liability a:id obitgauons to the twurcd under tuts policy, other than tc rru t: tine psynient required, shall terminate, inaludin any liability or obligaticrs to defend, proaecutc, or continue any litigation, and Idle policy shall be surerdered to he Company for cancellation. (b) To Fay or Other-ise Settle with Parties Other than the ]assured Or With the Insured Clasittaant. (1) to pay or osttenvise settle with other panics for or in the '.arre of tin insured Clurnant any claim uasur-A against under this policy, rogel+er with any costs. at- torricys' f=s and expenses irt_urred by 1x uuured cla',mani wnieh were autho-ized by Lie Company up .c he time of payment and whici the Company is obbgatod to pay or (lit to pay or otherwise settle wit" the insured clahmard the ic6s or damage pro- viced fog under Nis policy, together with any costs, anoriieysroes and capons- incurred by the insured claimant whic!7 were autbortred by the Coatpaiy up to the time of payment and which the Company is obligated .c pay. Upon Lhe exec i.0 by the Com>p>zny of ewicr of lira options provided form pan bXi) or (ii;, the Corr.lny's obligations to the insured under this policy ,rt• r LzA ciatmni loss or damage. other than the paymcn13 'equired to be made, shall ter• minatc, including any liability or obligation to defend, proseute or centinwe any :itigauon. 7. DETERIMINATiON, EXTENT OF 11AS)Lli'Y AND COLNSLMkNCE This policy is a ecntnct of indemnity against actual monetary, ;osa of 44=.44 sususned or incurred by ;he :nsured-iaimatu who hits iuffersd lost or Carnage by reason of tracers trisured against by this policy and only x the extent herein described. (ai The liability of the Company und--r this policy shall nQ( exceed the least cf; (i) the Amount of inaurance slates in Schedule A; or, Iii) the difference between the value of the insured estou or interest as insured Inc the valise of the insured estate or nterc4: subject to ;his defect, Len or encum- brance insured itainst by this polio'). 0) Li the cv6'nt the Amount of lrss,rarice anted in SCtiedtde A at rho Date of Policy to less than 80 percent, of the value of the insured estate or intcMi. or the fW: consideration paid for the shims or !merest whchcver rs lass, or if sabsecuer.: to Ike DUr of Poi.cy an ,mpNvemanr is anewC on the iand which increases the value of the insured !stale Jr tnreftsi by 1 ltaat 212 percent over the amount ;f Imsu.ante soled :n Schedule A. tun 0..is POiicv is subject to the foi:awing: r:) wher- no s:loaeq:enx imprrvemeit has been made, is to any partal loss, the Cornpsny Thai! only pay the cis pro rasa in the proporion clay the amouni of insurance at Cate of Policy yearn 10 the total 1a1ue of the estate of ,nteresi at Date of policy, or 16) where a subsequent ,mt)rO%Mon( has been mace. as a any panial :ass. its,- Company snail my pay tie loss pro rau in the proportion bai 1Z0 perm: of the Amours of Insun.—N sated i i Schedule A bears to the star of the Amount of lrsurance state.! in Schedule A and me amount expended for the im rovement. The provisions of this paragraph shall nut apply io costs, armri,., - fees and ox- penses for which she Company is liable under this policy, and shall only apply 'o (hal port.n, of any loss which ease,- ', in the 3ggrag1tt 10 percent of tie Amount of Insurance stated in 5weduic A. lc) The Company will pay only tlsose cents, attorneys' fees and expeisas iaeured in accordance wills Section 4 of these Conditions Ind Stipulations. 8. APPORTIONMENT li the lard descrbo,l .n Schedule A consists of two or more parcels which are ,icc used as a singic site. and a loss is miabiished affecting one or (Wore of the pasts but not ail the Wits sha't be computed and settled on I pro rasa batis as i.r tie amount of insurance under :his policy was divieed pro rasa as :o ho value on Date of PoLcy of'Acti separstc yaree! to the wnoie- esclusivc of any improvemertu male subse- quent to date of Policy, unless a ;iabilhy or value has atrerwise kite igreed upon as to each pirce! by Inc C:Ympany and the insured at Oc time of the issuance of Lhis policy and shown by an express siatamen( cr by an endorsement attache:1 sa this policy. 9. LLviITAT1ON OF L1A811-IT1i (a) 1f she Company esaebl(shes the llc'c. ,t:moves the alleged difeet, lien Or encumbraoce, or cures the lack of a .. igh. of access to or from ms laird, or cures (he claim of 'j=rkeubilit y of title or o herw4e establishts tic lien of the insured mon6aga, all as insareo, in a reasonably <i.igaal manner by any method, irteludi++� litigation and the cornpieuon of any appi,als therefrom, it shall hays fullh perforntsed its obligations with respect To :hat manor and shall sot x lisib!e for any loss or dale'. t Caused thereby. b) 7n rc event of any lniyanion, including liuSation by the Cumpany, or wicb the Company's enmesh, the Company shall have no Iiabiltty for loss or darrage linen there has been a trial dearminaUon by a court of compstant jv isdlciion, strati disposition of all appeals therefrom, adverse to t1< title as insuruc. (c) The Company stall rot be liable for lost or damage to any insured for liab-liry volunsant)' L�sumW py me insured in srttling any claim or suit without the prw wntten consent of ;.'era Company. W. REDUCIICN OF C+SU'RANCE; LLiBLI'M Al paymcnu und!r Thu polity, ":ea and expenses, snail rehouse the arsounit REDUCTION OR TEWIMNATION. OF payrmts nixie for ensts, artornsys' fps of the inumnce pro Lunt. :1. L LASM =1 NO't�.,..ITIti E L is expras:y ands tat .'ie amount 'f inturssrcc under this policy shall be r0" by any amount the Ctmpany may pay :rider any po[irmo r- tgage insuring a 10 which exJept;on Is taken to Schedule B or .o Which 'he insured 4ux aetreed. uswned, or taken subject, or wtiza is hercaf.dr enaAcd by an in afted ark which it a charge or lien on LSe chats or interest deu bed or rrfa-reil to in Schedule A, and the amount so paid s-Wi he ceeme.:! a payrruot under his policy tc thr insured owner. I.I. PA YMHN7' OF 1,OM (a) No payment ,ba be made without produeiag this policy for ersdorsemerll of Li payment urtits,t 1m policy has been lost or destroyed, In which use proof of loss or destruction shall be fulmished to the satisfaction of the Company. (b, When liaoildy and he extent of IOss or dursagc has beer, dcfiritcly fixed in aCcordailLc with hose CondiLOM and Stspulatitms, the 16,rs or dmuge shall be paynti w:u iia 30 days thereafter, 13. SURROCATION LTON PAVATNT OR SEI7LE,1LiNT (a) The Company's Riot of Subroleativri. Whenever the Company shall have scaled and paid a claim ynder this a>liey, all :.eh( of subrtiginion shall icst in the Company una',fecrcd by arty act of the in sired clisinianc. The Comperty, shell 'oe subrogated to and be dmi lad to all righis and rem colic; which the insured taiman'would nave had against any person or property in respeci to The maim had L'is policy mol been ,ssued. [f requessud ty Lhe Company; the In- sured :daitrim shall trsasfer to the Company all echts arc remedies against any person or yrvpeny t;ccssary in urdcr to Jtrfect Uhis righr of worogsuen. The in- sured claimant shall permit the Company to s'uo, "mpromiae or senle in the name of the insured clairttam and to use the runic of iht Insured _li irtnm :r, any tnnsac- :tw,. or litigarcn invctving these rights cr remWies_ if 3 payment on account of a e:aim does not fully cover rc loss of the inured claimant, the Company stall be subroesied to t:.c::c rights and rcrxdici in the pro- pr;rion which the Company's payment bean co tlx m whole aouni of the loss. if lose should result from any sIX of the insured clairvnt, as StxtW lbove, that act Ihsll not void this policy, but the Company, to that ew_K, :hit[: be required to pay only twat part of any losses insured against by this policy xhwc .. shall exceed tie arnouni, I any, lost to the Company by reason of the impairment by the insured claimant of r .* Company's rght of subrogation. (b) The Company's Riom Against Nona -wind Obligom The Company's rio..t of iubrogation against non-insured orLgors shalt exist art?. Oil; include, wrthou, Jmiwiom (he rights of the inured to itdernn0cs, guaranties. other policies of instirmcc or bonds, notwithstanding any terris or cond:uons con• Wried in those AstrUmtots which provice for subrogation ngtits 5y reason of this policy 14 A"ITRATION Unless prohibited by app!iesble law, either the Company or the insured may Ce. Marc artarstlon pursuant to the Title Insurance knit anon Rules of the .American Arbitration Association. ArWtrabic marsrs may induce, but arc not limited to, any co :troversy or claim between the Company and Cc insured arunng out of.,sr retailing to this polic), any service pf the Company in :onaaeLon with ;is issuance or the 5rea h of a policy provision or )1 r obligstKn. All rrbttribit matters when the ADOU'll of [ns'ssrance is S i.000,7)X or less shall be arbitrated In the optton of either the Cornpiny or the: insured. All ar5ivatle matters when the Amount of Insurance is m cxcesr of SI,000.OuO snaU be arbitrate4 only whet agreod to by ooih the Com- pany and the insured. Arbiundion pursuant to this policy and under the Rules in efft. on the diite The demand for arbitracicn is made or, at the option of the insured, the Rules ;n erfect at Date of Policy shall to binding upon the panics. The Sward may include artorricys' gee: only if the laws of the state in which the land is located pernnit a court to award attorneys' fen to a prevailing ?arty. Judgment upon Cie award rendered by the Arbilrator(s) may be entered in any court having jurisdiction thereof. The Irw of the tihis of the :and shall apply w ar. xrbitra6zin under the Tile In. $trance Arbitration Rues A copy of Lie Rules may be obtained frrm the Company upon -NUCSI. IS. 1.1A813M LRAIIT'c.4 TO THIS POLICY; POLICI' 0177E CONTRACT (a) Thin *icy'ogether with all endowments, if any, attached Sereto by the Com- pany is the eidre policy art: contract between the insured and use Company. In su Amine any prwisioe of this policy, this policy shall be consraed at a whole (b) Ary :la;m of loss or damage whether or not based on negligence, and which Irises out or the 3:otw of the title to the estate or interest covered hc:eby or by any anion asserting such claim:, shall be ronncted to this policy, (c) No arrsendment of or rndorsemew to his polity can be made except by a wrwrg endorsed hereon or attached hereto -ignited by either the President, a Vic, 11:esndrnt, the 3ecreary, an Assistant 3ecretari, or +andaiir,g officer or authorirce signatory of the Computy. 16. SEVER4BILiTY In the event any proyisioa of the policy to held inva:id or unenforceable under aprl,cablc law, the policy shall be deemod not to include (hat provision and ail other proviasons "I rnmesin in full force and effact. All noticci rcgrirod to be given the Comparsy and any statement to writing re- quired to be Runiahed the Company shall utdude the number of this pot.,, and shall bet addrawad to tine Company it; Fidelity tiarional Title lwurance Company ltiaiio..n1 Claims .Adrrunstration 1"911 Von Ka -mar. Avenue- 5uite 300 il-rice. CA 9261:-�253 FNT • SCHEDULE A-01ADMR'S POLICY CXSE VJPMER DAT3 OF POLICY AMOUNT OF INSURANCE POLICY NuomER PCT13538C4 01/19/99 0 11:46 A.M. $ 705,000.00 1312-136903 1 . ITANE OF INSliRS'D : AL''CE M. BRIEN 2. THEE ESTATE OR INTEREST _N TFE LA1v7 FEREIN AND WHICH IS COVHBED BY —HIS PCLICY IS: =N FEE SIMPLE 3. :'! ESTATE CR I!7TZRSST REFEPR'ZD TO i:3RE;N IS AT DATE OF POLICY VESTED IN: ;LLTCE M. BRIEN -1. "n LAND RZ ERRED TO IN THIS POLICY IS S:TVATFD IN THE CODNTY or FIT--CIN, STATE OF COLORXDO AND IS OSSCRIBED AS FOLLOWS: LOT 44, WEST ASPEN SUBDIVISION, FILING PTO. 2, acccrdi.ng to the Plat thereof reccrded September 4, 1968 in Plat Sock 3 at Page 308. P17KIN COUNTY TITLE, INC. 601- E. 4OPKINS AVE. ASPEN, COLORADO 8100-11 (97C) 925-1765;(970)-925-5527 FAX THE POLI:Y NUMBER SHWN ON THIS SCHEDULE MUST AGREE W:TH `HE PREPR.YTED NUMBER ON THE COVER SHEET I I-,Y V'. /�, , , j P , C CASE NUMBER PCT1358aC4 SCIODULE 8-00MRS DATE CF POLICY 01/19/99 99 11:46 A.M. POLICY NUMSEP 1312-1369C3 THIS POLICY DOES NOT INSJRE AGAINST LOSS OR DAMAGE BY REASON Or TM FOLLOWING: I. Rights or claims of parties in passessior_ not shown by the public records. 2. Easements, or claims of easements, not sh7,-ow, by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, enchroac:unents, any facts which a correct survey and inspocticn of the premises would disclose and which are not shoWm by the p,.Iblic records. 4. Any lier., or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. S. water rights, claims or title to water. 6. Taxes for the year 1999 not yet due or payable. T. Right of the proprietor of a vein or lode to extract or remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted as reserved in Un.-Lted States Patent recorded in Book 18C at Page 334. S. Easements, rights of way and all matters as disclosed on Plat of subject prcperty recorded September 4, 1568 in Plat Book 3 at Page 3C8. 9. perpetual Sewer Easement and Right of Way granted to As=eri metrowlitan Sanitation District by Deed recorded in Bock 260 at Page 614. 10. Deed of ':rust from : ALICE M. BRIE? To the Public Trustee of the County of Pitkin For the use of h1ESA NATIONAL BANK. Original krount $400,000.00 Dated January 15, 1999 Recorded January 19, 1999 Reception No. 426738 • 0 CITY OF ASPEN PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Mitch Haas, 920-5095 DATE: 3/3/99 PROJECT: Lot 44, West Aspen Subdivision REPRESENTATIVES: John Muir of Galambos/Muir Associates (970) 704-9750 OWNER: Alice Brien TYPE OF APPLICATION: Conditional Use Review for an ADU to gain a GMQS Exemption for the construction of a single-family home, and Residential Design Review (a/k/a Ordinance 30). DESCRIPTION: Applicant seeks to construct a single-family residence on Lot 4 of the West Aspen Subdivision. In order to obtain an exemption from the GMQS Scoring and Competition procedures, the applicant will apply to construct an ADU. Otherwise, cash -in -lieu of the ADU(s) would be required before the exemption(s) could be granted. ADUs are subject to Conditional Use approval by the Planning and Zoning Commission at a public hearing. As with all residential development, Residential Design Review would also be required. The Residential Design Review would be carried out by Community Development Department staff; however, if any variances are to be necessary or requested, the applicant shall have the choice (one or the other, but in no case both) of having the Commission hear the variance request(s) at the same public hearing as the conditional use review, or opting instead to have the Design Review Appeal Committee decide upon the variance request(s). The property is located at the intersection of Cemetery Lane and Silver King Drive, and is zoned R-15, Moderate -Density Residential. As the property contains steep slopes and a ridgeline on a fairly prominent corner location, staff will strongly encourage the applicant to pursue a design that would minimize, to the greatest extent possible, the driveway roadcut by placing the garage along the street, at the bottom of the property with a connecting element to the residence above. Land Use Code Section(s) Chapter 26.60, Conditional Uses; Section 26.40.090, Accessory Dwelling Units; Section 26.28.050, Moderate -Density Residential (R-15); Section 26.04.090, Definitions (specifically, but not limited to the definition of "Floor Area, G. Accessory Dwelling Unit or Linked Pavilion"); and, Section 26.58.040, Residential Design Standards. Also see: Chapter 26.44, Park Development Impact Fee; Section 26.40.080(B), Lights; and, Chapter 26.52, Common Development Review Procedures. N'p • �L" �' �'J Review by: Community Development Department and City of Aspen Planning and.Zoning Qu �ti SVloning 15 Commission. oe 0 , >_ Public Hearing: Yes, the conditional use review requires a public hearing, and the notice requirements outlined in Chapter 26.52 will have to be followed. Residential Design Variances can only be granted at a public hearing, but noticing for these requires only that the proper sign be posted on the property five (5) days in advance of the hearing and that an executed affidavit of notice be presented to staff on the day of the hearing. Referral Agencies: Engineering, Housing, Parks, Zoning, Fire Marshal, ACSD, Water, Electric, Building, and Streets. Planning Fees: Planning Flat Fee ($255) Referral Agency Fees: Engineering, Minor ($160); and, Housing, Minor ($160). Total Fee: $575. • ASPEN/PITKIN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of City of Aspen Development Application Fees (Please Print Clearly) CITY OF ASPEN (hereinafter CITY) and / L-Xe-t,7 (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an application for O�= ^ -3il4c- l l-VJMG7- Otit C1Jr 44 , anec-;2t.t (hereinafter. THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 43 (Series of 1996) establishes a fee structure for land use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties to allow APPLICANT to make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICAINT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or City Council to make legally required findings for project approval, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ which is for hours of Planning staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing. CITY OF ASPEN APPLICANT Signature: 141-2 . Julie Ann Woods Date: _ // � ✓C Community Development Director Printed Name: f ICIF /V �IV City of Aspen Mailing Address: do. 13,p ,Y /1 S PO 6- Al Co - ?/ lv / '�?— RECORDATION REQUESTED BY: MESA NATIONAL BANK 317 E Hopkins Ave Aspen, CO 81611 WHEN RECORDED MAIL TO: MESA NATIONAL BANK 317 E Hopkins Ave Aspen, CO 81611 SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY DEED QF TRUST U) THIS DEED OF TRUST IS DATED JANUARY 15, 1959, among Alice M. Brien, whose address Is P O Box 60 11915, Aspen, CO 81612 (referred to below as "Grantor"); MESA NATIONAL BANK, whose address is 317 E Hopkins Ave, Aspen, CO 81611 (referred to below sometimes as "Lender" and sometimes as "Beneficiary"); and the Public Trustee of Pitkin County, Colorado (referred to below as "Trustee"). CONVEYANCE AND GRANT. For valuable consideration, Grantor hereby Irrevocably grants, transfers and assigns to Trustee for the benefit of Lender as Beneficiary all of Grantor's right, title, and interest in and to the following described real property, together with all existing — or subsequently erected or affixed buildings, Improvements and fixtures; all easements, rights of way, and appurtenances; all water, water rights v and ditch rights (including stock In utilities with ditch or irrigation right's); and all other �rights, royalties, and profits relating to the real property, � including without limitation all minerals, oil, gas, geothermal and similar matters, located in Pitkin County, State of Colorado (the "Real Property"): Lot 44, WEST ASPEN SUBDIVISION, FILING NO. 2, according to the Plat thereof recorded September 4, 1968 In Plat Book 3 at Page 308 The Real Property or Its address is commonly known as Vacant land, Aspen, CO 81612. Grantor presently assigns to Lender (also known as Beneficiary in this heed of Trust) all of Grantor's right, title, and Interest In and to all present and future leases of the Properly and all Rents from the Property. In addition, Grantor grants Lender a Uniform Commercial Code security Interest in the Rents and the Personal Properly defined below. DEFINITIONS. The following words shall have the following meanings when used In this Deed of Trust. Terms not otherwise defined In this Deed of Trust shall have the meanings attributed to such terms In the Uniform Commercial Code. All references to dollar amounts shall mean amounts In lawful money of the United Slates of America. Beneficiary. The word 'Beneficiary" means MESA NATIONAL BANK, its successors and assigns. MESA NATIONAL BANK also Is referred to as "Lender" in this Deed of Trust. Deed of Trust. The words "Deed of Trust" mean this Deed of Trust among Grantor, Lender, and Trustee, and includes without limitation all assignment and security interest provisions relating to the Personal Property and Rents. Grantor. The word "Grantor" means any and all persons and entities executing this Deed of Trust, Including without limitation Alice M. Brien. Guarantor. The word "Guarantor" means and Includes without limitation any and all guarantors, sureties, and accommodation parties In connection with the Indebtedness. Improvements. The word "Improvements" means and Includes without limitation all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal and Interest payable under the Note and any amounts expended or advanced by Lender to discharge obligations of Grantor or expenses Incurred by Trustee or Lender to enforce obligations of Grantor under this Deed of Trust, together with interest on such amounts as provided in this Deed of Trust. Lender. The word "Lender" means MESA NATIONAL BANK, Its successors and assigns. Note. The word "Note" means the Note dated January 15, 1999, in the principal amount of $400,000.00 from Grantor to Lender, together with all renewals, extensions, modifications, refinancings, and substitutions for the Note. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to Ilia Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; ,and together with all proceeds (including without limitation all Insurance proceeds and refunds of premiums) from any sale or other disposl;lon of the Property. Property. The word "Property" means collectively the Real Properly and the Personal Property. z Real Property. The words "Real Property" mean the property, InlE.rests and rights described above In the "Conveyance and Grant" section. Related Documents. The words "Related Documents" mean acid Include without limitation all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements and documents, whether now or hereafter existing, executed In connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, Income, issues, royalties, profits, and other benefits derived from the Property. Trustee. The word 'Trustee" means the Public Trustee of Pitkin Cbunty, Colorado. THIS DEED OF TRUST, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (1) PAYMENT OF THE INDEBTEDNESS AND (2) PERFORMANCE OF ANY AND ALL OBLIGATIONS OF GRANTOR UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS DEED OF TRUST. THIS DEED OF TRUST IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: PAYMENT AND PERFORMANCE. Except as otherwise provided In this Deed of Trust, Grantor shall pay to Lender all amounts secured by this Deed of Trust as they become due, and shall strictly and In a Ilmely manner perform all of Grantor's obligations under the Note, Ihls Deed of Trust, and the Related Documents. POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by the following provisions: Possession and Use. Until the occurrence of an Event of Default, Grantor may (a) remain in possession and control of the Properly, (b) 01-15-1999 DEED OF TRUST Page 2 (Continued) use, operate or manage the Property, and (c) collect any Rents from the Property. Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Hazardous Substances. The terms "hazardous waste," "hazardous substance," "disposal," "release," and "threatened release," as used In this Deed of Trust, shall have the same meanings as set forth in t:ie Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, at seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, at seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, at seq., or other applicablei state or Federal laws, rules, or regulations adopted pursuant to any of the foregoing. The terms "hazardous waste" and "hazardous substance" shall also include, without limitation, petroleum and petroleum by—products or any fraction thereof and asbestos. Grantor represents and warrants to Lender that: (a) During the period of Grantor's ownership of the Properly, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any hazardous waste or substance by any person on, under, ab6ul or from the Properly; (b) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and, acknowledged by Lender in writing, (I) any use, generation, manufacture, storage, treatment, disposal, release, or threatened release of any hazardous waste or substance on, under, about or from the Property by any prior owners or occupants of the Properly or III) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (c) Except as previously disclosed to and acknowledged by Lender in writing, (1) neither Grantor nor any tenant, contractor, agent or other authorized user of the Properly shall use, generate, manufacture, store, treat, dispose of, or release any hazardous waste or substance on, under, about or from the Property and (11) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, Including without limitation those laws, regulations, and ordinances described above. Grantor authorizes Lender and Its agents to enter upon the Properly to make such Inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Deed of Trust. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein 'are based on Grantor's due diligence In Investigating the Property for hazardous waste and hazardous substances. Grantor hereby (a) releases and waives any future claims against Lender for Indemnity or contribution In the event Grantor becomes liable for cleanup or other costs under any such laws, and (b) agrees to Indemnity and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or Indirectly sustain or suffer resulting from a breach of this section of the Deed of Trust or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance on the properties. The provisions of this section of the Deed of Trust, Including the obligation to Indemnity, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Deed of Trust and shall not be affected by Lender's acquisition of any interest In the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), soil, gravel or rock products without the prior written consent of Lender. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without the prior written consent of Lender. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Its agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's Interests and to Inspect the Property for purposes of Grantor's compliance with the terms and conditions of this Deed of Trust. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter In effect, of all governmental authorities applicable to the use or occupancy of the Properly. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, In Lender's sole opinion, Lender's interests in the Properly are not jeopardized. Lender may require Grantor to post adequate security or a surely bond, reasonably satisfactory to Lender, to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon nor leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above In this section, which from the character and,use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE — CONSENT BY LENDER. Lender may, at its option, declare Immediately due and payable all sums secured by this Deed of Trust upon the sale or transfer, without the Lender's prior written consent, of all or any part of the Real Properly, or any Interest in the Real Properly. A "sale or transfer" means the conveyance of Real Properly or any right, title or interest therein; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease —option contract, or by sale, assignment, or transfer of any beneficial interest In or to any land trust holding title to the Real Properly, or by any other method of conveyance of Real Properly interest. If any Grantor is a corporation, partnership or limited liability company, transfer also Includes any change In ownership of more than twenty—five percent (25%) of the voting stock, partnership interests or limited liability company Interests, as the case may be, of Grantor. However, this option shall not be exercised by Lender If such exercise Is prohibited by federal law or by Colorado law. TAXES AND LIENS. The following provisions relating to the taxes and iiens on the Property are a part of this Deed of Trust. Payment. Grantor shall pay when due (and In all events prior to delinquency) all taxes, special taxes, assessments, charges (including water and sewer), fines and Impositions levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of all liens having priority over or equal to the Interest of Lender under this Deed of Trust, except for the lien of taxes and assessments not due and except as otherwise provided in this Deed of Trust. Right To Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or If requested by Lender, deposit with Lender cash or a sufficient corporate surely bond or other security satisfactory to Lender In an amount sufficient to discharge the lien plus any costs and attorneys' fees or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall, defend Itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surely bond furnished in the contest proceedings. , Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any lime a written statement of file taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work Is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender [hat Grantor can and will pay the cost of such Improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating ;to Insuring the Property are a part of this Deed of Trust. Maintenance of Insurance. Grantor shall procure and maintain policies of fire Insurance with standard extended coverage endorsements on a replacement basis for the full Insurable value covering all Improvements on the Real Property In an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause In favor of Lender, together with such other hazard and liability Insurance as Lender may reasonably require. Policies shall be written In form, amounts, coverages and basis reasonably acceptable to Lender and Issued by a company or companies reasonably acceptable to Lender. Grantor, upon request of Lender, will deliver to Lender from time to time the policies or certificates of Insurance in forr'n satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least ten (10) days' prior written notice to Lender. Each insurance policy also shall Include an 01-15-1999 DEED OF TRUST Page 3 (Continued) endorsement providing that coverage In favor of Lender will not be Impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property at any time become located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance for the full unpald principal balance of the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such Insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof of loss If Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is Impaired, Lender may, at Its election, receive and retain the proceeds of any Insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Properly, or the restoration and repair of the Property. If Leilder elects to apply the proceeds to restoration and repair, Grantor shall repair or replace the damaged or destroyed Improvements In a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the rbasonabte cost of repair or restoration If Grantor is not In default under this Deed of Trust. Any proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Properly shall be used first to pay any amount owing to Lender under this Deed of Trust, then to pay accrued Interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Unexpired Insurance at Sale. Any unexpired Insurance shall Inure to the benefit of, and pass to, the purchaser of the Properly covered by this Deed of Trust at any trustee's sale or other sale held under the provisions of this Deed of Trust, or at any foreclosure sale of such Property. EXPENDITURES BY LENDER. If Grantor falls to comply with any provision of this Deed of Trust, or if any action or proceeding Is commenced that would materially affect Lender's Interests In the Property, Lender an Grantor's behalf may, but shall not be required to, lake any action that Lender deems appropriate. Any amount that Lender expends In so doing will bear interest at the rate provided for in the Note from the date incurred or paid by Lender to the data of repayment by Grantor. All such expenses, at Lender's option, will (a) be payable on demand, (b) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable Insurance policy or (it) the remaining term of the Note, or (c) be treated as a balloon payment which will be due and payable at the Note's maturity. This Deed of Trust also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any other rights or any remedies to which Lender may be 'entitled on account of the default. Any such action by Lender shall not be construed as curing the default so as to bar Lender from any remedy that it otherwise would have had. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Deed of Trust. Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property In fee simple, free and clear of all liens and encumbrances other than those set forth In the Real Properly. description or in any title insurance policy, title report, or final title opinion Issued in favor of, and accepted by, Lender In connection with this Deed of Trust, and (b) Grantor has the full right, power, and authority to execute and deliver this Deed of Trust to Lender. Defense of Title. Subject to the exception In the paragraph above, Grantor warrants and will forever defend the title to the Properly against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the Interest of Trustee or Lender under this Deed of Trust, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party In such proceeding, but Lender shall be entitled to participate In the proceeding and to be represented In the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property ana Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Deed of Trust. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or.restoralion of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees Incurred by Trustee or Lender in connection with the condemnation. Proceedings. If any proceeding In condemnation is filed, Grantor shall promptly notify Lender In writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shalt be entitled to participate In the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such Instruments as may be requested by it from time to time to permit such participation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a parl of this Deed of Trust: Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents In addition to this Deed of Trust and take whatever other action Is requested by Lender to perfect and continue Lender's lien on the Real Properly. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Deed of Trust, Including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Deed of Trust. Taxes. The following shall constitute taxes to which this section applies: (a) a specific tax upon this type of Deed of Trust or upon all or any part of the Indebtedness secured by this Deed of Trust; (b) a specific tax on Grantor which Grantor is authorized or required to deduct from payments on the Indebtedness secured by this type of Deed of Trust; (c) a tax on this type of Deed of Trust chargeable against the Lender or the holder of the Note; and (d) a specific tax on all or any portion of the Indebtedness or on payments of principal and Interest made by Grantor. ° Subsequent Taxes. If any lax to which this section applies Is enacted subsequent to the dale of this Deed of Trust, this event shall have the same effect as an Event of Default (as defined below), and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (a) pays the tax before it bEComes delinquent, or (b) contests the lax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Deed of Trust as a security agreement are a part of [his Deed of Trust. Security Agreement. This Instrument shall constitute a security agreement to the extent any of the Property constitutes fixtures or other personal property, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall execute financing statements and take whatever other action Is requested by Lender to perfect and continue Lender's security Interest In the Rants and Personal Properly. In addition to recording this Deed of Trust In the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Deed of Trust as a financing statement. Grantor shall reimburse Lender for all expenses Incurred in perfecting or continuing this security Interest. Upon default, Grantor shall assemble the Personal Properly in a manner and at a place reasonably convenient to Grantor and Lender and make It available to Lender within three (3) days after receipt of written demand from Lender. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party), from which information concerning the security Interest granted by this Deed of Trust may be obtained (each as required by the Uniform Commercial Code), are as stated on the first page of this Deed of Trust. FURTHER ASSURANCES; ATTORNEY -IN -FACT. The following provisions relating to further assurances and attorney -in -fact are a part of this Deed of Trust. Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such 01-15-1999 DEED OF TRUST Page a (Continued) mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, Instruments of further assurance, certificates, and other documents as may, In the sole opinion of Lender, be necessary or desirable In order to effectuate, complete, perfect, continue, or preserve (a) the obligations of Grantor under the Note, this Deed of Trust, and the Related Documents, and (b) the liens and security Interests created by this Deed of Trust as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or agreed to the contrary by Lender in writing, Grantor shall reimburse Lender for all costs and expenses Incurred In connection with the matters referred to In this paragraph. Attorney —In —Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby Irrevocably appoints Lender as Grantor's attorney —In —fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, In Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. Trustee may, upon production of the Note duly cancelled, release this Deed of Trust, and such release shall constitute a release of the lien for all such additional sums and expenditures made pursuant to this Deed of Trust. Lender agrees to cooperate with Grantor in obtaining such release and releasing the other collateral securing the Indebtedness. Any release fees required by law shall be paid by Grantor, if permitted by applicable law. DEFAULT. Each of the following, at the option of Lender, shall conslilule an event of default ("Event of Default") under this Deed of Trust: Default on Indebtedness. Failure of Grantor to make any payment when due on the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Deed of Trust to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect disgharge of any lien. Compliance Default. Failure of Grantor to comply with any other term, obligation, covenant or condition contained in this Deed of Trust, the Note or in any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by or on behalf of Grantor under this Deed of Trust, the Note or the Related Documents Is false or misleading In any material respect, either now or at the lime made or furnished. Defective Collateralization. This Deed of Trust or any of the Relaled Documents ceases to be in full force and effect (including failure of any collateral documents to create a valid and perfected security Iriteresl or lien) at any time and for any reason. Death or Insolvency. The death of Grantor, the Insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or Insolvency laws by or against Grantor. Foreclosure, Forfeiture, etc. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self—help, repossession or any other method, by any creditor of Grantor or by any governmental agency against any of the Property. However, this subsection shall not apply In the event of a good faith dispute by Grantor as to the validity or reasonableness of the claim which Is the basis of the foreclosure or forefeiture proceeding, provided that Grantor gives Lender written notice of such claim and furnishes reserves or a surely bond for the claim satisfactory to Lender. Breach of Other Agreement. Any breach by Grantor under the terms of any other agreement between Grantor and Lender that is not remedied within any grace period provided therein, Including without limitation any agreement concerning any Indebtedness or other obligation of Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes Incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty In a manner satisfactory to Lender, and, In doing so, cure the Event of Default. Insecurity. Lender In good faith has reasonable cause to believe iI is Insecure or that its collateral Is Impaired. Right to Cure. If such a failure is curable and if Grantor has not been given a notice of a breach of the same provision of this Deed of Trust within the preceding twelve (12) months, It may be cured (and no Event of Default will have occurred) if Grantor, after Lender sends written notice demanding cure of such failure: (a) cures the failure within twenty (20) days; or (b) if the cure requires more than twenty (20) days, immediately initiates steps sufficient to cure the failure and (hereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of Default and at any time thereafter, Trustee or Lender, at its option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by law: Accelerate Indebtedness. Lender shall have the right at its option without notice to Grantor to declare the entire Indebtedness immediately due and payable, Including any prepayment penally which Grantor would be required to pay. Foreclosure. Lender shall have the right to cause all or any part of the Real Property, and Personal Property, if Lender decides to proceed against it as if it were real property, 10 be sold by the Trustee according to the laws of the Slate of Colorado as respects foreclosures against real property. The Trustee shall give notice In accordance with the laws of Colorado. The Trustee shall apply the proceeds of the sale in the following order: (a) to all costs and expenses of the sale, Including but not limited to Trustee's fees, attorneys' fees, and the cost of title evidence; (b) to all sums secured by this Deed of Trust; and (c) the excess, if any, to the person or persons legally entitled to the excess. UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Grantor, to take possession of and manage the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor Irrevocably designates Lender as Grantor's attorney —In —fact to endorse Instruments received In payment thereof In the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise Its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect [lie Rents from the Properly and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond If permitted by law. Lender's right to the appointment of a recelvenshall exist whether or not the apparent value of the Properly exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Receiver may be appointed by a court of competent jurisdiction upon ex pane application and without notice, notice being expressly waived. Tenancy at Sufferance. It Grantor remains In possession of the Property after the Properly is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of. Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (a) pay a reasonable rental for the use of the Property, or (b) vacate the Property Immediately upon the demand of Lender. Other Remedies. Trustee or Lender shall have any other right or remedy provided In this Deed of Trust or the Note or by law. Sale of the Property. In exercising Its rights and remedies, Lender shall be free to designate on or before it files a notice of election and demand with the Trustee, that the Trustee sell all or any part of the Properly together or separately, In one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. Upon any sale of the Properly, whether made under a power of sale granted in this Deed of Trust or pursuant to judicial proceedings, If the holder of the Note is a purchaser at such sale, it shall be entitled to use and apply all, or any portion of, the Indebtedness for or In settlement or payment of all, or any portion of, the purchase price of the Property purchased, and, In such case, this Deed of Trust, the Nola, and any documents evidencing expenditures secured by this Deed of Trust shall be presented to the person conducting the sale In order that the amount of Indebtedness so used or applied may be credited thereon as having been paid. 01-15-1999 DEED OF TRUST Page 5 (Continued) Waiver; Election of Remedies. A waiver by any party of a breach of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the party's rights otherwise to demand strict compliance with that provision or any other provision. Election by Lender to pursue any remedy provided In this Deed of Trust, the Note, In any Related Document, or provided by law shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Deed of Trust after failure of Grantor to perform shall not affect Lender's right to declare a default and to exercise any of Its remedies. Attorneys' Fees; Expenses. If Lender forecloses or institutes any suit or action to enforce any of the terms of this Deed of Trust, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and on any appeal. Whether or not any court action Is Involved, all reasonable expenses Incurred by Lender which in Lender's opinion are necessary at any time for the protection of its Interest or the enforcement of Its rights shall become a part of the Indebtedness payable on demand and shall bear Interest at the Note rate from the date of expenditure until repaid. Expenses covered by this paragraph Include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees whether or not there Is a lawsuit, Including attorneys' fees for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or Injunction), appeals and any anticipated post -judgment collection services, the cost of searching records, obtaining title reports (Including foreclosure reports), surveyors' reports, appraisal fees, title Insurance, and fees for the Trustee, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. Rights of Trustee. Trustee shall have all of the rights and duties of Lender as set forth In this section. POWERS AND OBLIGATIONS OF TRUSTEE. The following provisions relating to the powers and obligations of Trustee are part of this Deed of Trust. Powers of Trustee. In addition to all powers of Trustee arising as a matter of law, Trustee shall have the power to take the following actions with respect to the Properly upon the written request of Lender and Grantor: (a) join in preparing and filing a map or plat of the Real Property, Including the dedication of streets or other rights to the public; (b) join in granting any easement or creating any restriction on the Real Properly; and (c) join in any subordination or other agreement affecting this Deed of Trust or the interest of Lender under this Deed of Trust. Obligations to Notify. Trustee shall not be obligated to notify any other party of a pending sale under any other trust deed or lien, or of any action or proceeding in which Grantor, Lender, or Trustee shall be'a party, unless the action or proceeding is brought by Trustee. Trustee. Trustee shall meet all qualifications required for Trustee under applicable law. In addition to the rights and remedies set forth above, with respect to all or any part of the Properly, the Trustee shall have the right to foreclose by notice and sale, and Lender shall have the right to foreclose by judicial foreclosure, In either case In accordance with and to the full extent provided by applicable law. NOTICES TO GRANTOR AND OTHER PARTIES. Any notice under this Deed of Trust shall be in writing, may be sent by telefacsimile (unless otherwise required by law), and shall be effective when actually delivered, or when deposited with a nationally recognized overnight courier, or, if mailed, shall be deemed effective when deposited In the United Slates mail first class, certified or registered mail, postage prepaid, directed to the addresses shown near the beginning of this Deed of Trust. Any party may change its address for notices under this Deed of Trust by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. All copies of notices of foreclosure from the holder of any lien which has priority over this Deed of Trust shall be sent to Lender's address, as shown near the beginning of this Deed of Trust. For notice purposes, Grantor agrees to keep Lender and Trustee informed at all times of Grantor's current address. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Deed of Trust: Amendments. This Deed of Trust, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Deed of Trust. No alteration of or amendment to this Deed of Trust shall be effective unless given In writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Applicable Law. This Deed of Trust has been delivered to Lender and accepted by Lender In the State of Colorado. This Deed of Trust shall be governed by and construed In accordance with the laws of the State of Colorado. Caption Headings. Caption headings In this Deed of Trust are for convenience purposes only and are not to be used to Interpret or define the provisions of this Deed of Trust. Merger. There shall be no merger of the Interest or estate created by this Deed of Trust with any other Interest or estate in the Property at any time held by or for the benefit of Lender In any capacity, without the written consent of Lender. Severabllity. If a court of competent jurisdiction finds any provision of this Deed of Trust to be Invalid or unenforceable as to any person or circumstance, such finding shall not render that provision Invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, If the offending provision cannot be so modified, it shall be stricken and all other provisions of this Deed of Trust in all other respects shall remain valid and enforceable. Successors and Assigns. Subject to the limitations stated In this Deed of Trust on transfer of Grantor's Interest, this Deed of Trust shall be binding upon and Inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Deed of Trust and the Indebtedness by way of forbearance or extension without releasipg Grantor from the obligations of this Deed of Trust or liability under the Indebtedness. Time Is of the Essence. Time Is of the essence in the performance of this Deed of Trust. Waivers and Consents. Lender shall not be deemed to have waived any rights under this Deed of Trust (or under the Related Documents) unless such waiver Is in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by any party of a provision of this Deed of Trust shall not constitute a waiver of or prejudice the party's right otherwise to demand strict compliance with that provision or any other provision. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or any of Grantor's obligations as to any future transactions. Whenever consent by Lender is required in this Deed of Trust, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent Instances where such consent is required. Z Waiver of Homestead Exemption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of the Stale of Colorado as to all Indebtedness secured by this Deed of Trust. EACH GRANTO 7CCKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS DEED OF TRUST, AND EACH GRANTOR AGREES TO ITS TERMS. � / GRANT O/ /^ ......................................... Alice M. Brien 01-15-1999 DEED OF TRUST (Continued) INDIVIDUAL ACKNOWLEDGMENT'Q STATE OF 0 '� 012 QL')b ) ss COUNTY OF ?1 Tk 1 t--J ) '\OTARY -0-0-0- .'Otj 1'. MY COMMISSION EXPIRES JUNE 5, 2001 Page 6 On this day before me, the undersigned Notary Public, personally appeared Alice M. Brien, to me known to be the Individual described In and who executed the Deed of Trust, and acknowledged that he or she signed the Deed of Trust as his or her free and voluntary act and deed, for the uses and purposes therein mentioned. .TM f Glven d my hand d al seal th s / day of VA U 19_. By. Residing aid -7 E. MQO/ems . AY-�N CO Y16 It Notary Public In and for the Stale of My commission expires du kiS 2w l LASER PRO, Reg. U.S. Pal. & T.M. OII., Ver. 3.25a (c) 1999 CFI ProServlces, Inc. Ali rlghIs reserved. ICO-GoI E3.25 F3.25 P3.25 BRIENI.LNJ z SET 7Sa7 p 0 to FOOT �lTOUS UNPLATTED NO EASEMENT FOR TRAIL NOTED IN TITLE C"ITMENT IT IS SUGGESTED AN ATTORNEY REVIEW THIS MATTER. ►: lavy 77N7 LOT 43 .T RI M�• 11RY VRART wa^Asc: naM Aw E alne aFenM.iaT,a �® a�ir�� W IR NT RR rtA,F,D t•i�M K � TNl 'ELL" CAr E1EA a, A _` \ I -� Ig 0\ 'CIO\ / L 0 T, 4 4' Ln Twas Y wa o ND.E RE-L. No W yw O �G S LEGENC' AND NC -ES O FOUND 3UNVET MDWUENT AS :ESOII,ED ® MANHOLE -- ♦ SUN VET CONTROL % 0 OJT UT IL I'+ ROLE EDGE aF GaAVEL ! • RATER VALVE i TITLE IWORMTIM AUAW.3EO tT / rITRIN cOUR" TITLE, INC r USE N0. KT1336E DATEO' 1011310E / y SMOESCA ICED SETER=ASEIENT SOOt 260 AT rAOE 6lA TREE .r f" 7W 7VI� Z,Is6411i,t IV lr'c A r Jill" r-r% L - 7-H CEO /1)6TR61 /rr Z_ ✓ %� L J DT U CERTIFICATION tTNE UOE471GNED STATES TMT THE FR(FERTY DESCRIBED IEREON AS I ELD SwKEYED DURING VrV. 500E AND IS ACGRATE IASED ON TIE FIELD EV,DE; CE M SNO•N A I) }11IC TNERE ME NO DISCR£FANCIES OF RECO.O 'DUOMT IEV COIiLIOAS' E,MDl0A0-ENTS, EASBENTS OR RIGMTS OF LAT IN FI[{p EV IOEIICE M OORN TO NE Earl AS �EREQN-ENORN UCERG•OUO UTILITIES -ITN NO ABOVEF.ROINO M NtTEMNCa g DOONEIITS of RECORD NOT SUrrLIED TO THE 7U-VEYO4 ARM FYQfTED TN,S UAVET ,S VOID ULES7 fET $TAKIRED -ITN THE RR ,QF.7HS SoMlOt SELO+. \JOMNIM. IO70STN n:.s_. 2 J ♦ SFIRE T3N 7794.E7' - .• .. - SITE IMPROVEMENT/TOPOGRAPHIC SURVEY aF LOT A. REST ASP" VA lyll t FILING N0. I, CIST OF MFEN, COUNTY OF rI TRIM, 7TATE OF COLORADO. CONTAINING 15,734 30 FT - PREPARED ET ASPEN SURVEY ENGINEERS, INC. 110 SOUTH OALEMA 7TREET ASPEN, COLORA00 ■1611 ,NNE/FM It701 023-3E16 DATE .oE 1179E 19267 • SET :5w7 N \ \ \ \ S FOOT Ca1TdR7 ' I I \ \ lJl+/7o �G✓(/L-{/ I� � I I 1 \ \ \ 1 \ , \ ..-._L_�,r-•• A:• � .fi9l, �r4Lfb�'�Jr1EN% UNPLAT ED NO EASEMENT FOR TRAIL NOTED IN TITLE COMMITMENT T - IIS S(1GGESTEp AN ATTORNEY ll 1 REVIEW THIS MATTER. Ny \ \�� —/- f)-7— LOT 43 Ln TREES -... V I, II STOP 'I . - WD 6 WE -RAM NO CAP � 4 O �G 1�4 V �arPpi'� �IUT:Ir ._ txH �T S O a 0 SPIRE TIM 7794. R2' LEGEND AND NOTES FOUND SWvEY-*WA-*Mt AS DESCRIBED NARRULE SURVEY CONTROL CUT UTIL.n POLE , EDGE OF GRAVEL WATER YALYE TITLE INFO11MATr ON FURNISIED BY: PITIIIN COUNTY TITLE, INC. CASE N0. PCTISSRR DATED: 10/17/94 UMDE SCR I RED SEWER EASEPENT 600W 260 AT PACE 614 TREE CERTIFICATION TEE JROERS CIE STnTE2 TIUT TINE RROIERTT DESCR IWED EEREON WAS FIELD 5WYEYED OIIR ING V[lV L19WR AMO IS ACNRATE RASED ON r" FIELD EV D, BO AS iMDRMI_AND INA7 TEERE ARE NO DI SCWEPA4CIES OF RECDRO 90l.ROART 1!E COMFt ICTSr ENCROACSRIENTS, EASEMENTS OR OF OF GAT 'N FIELD EVIDENCE OR RNORSS 70 EEL� EXCEPY AS NERFOIR'•SNSWN. UIDERGROUIO UTILITIES RITE NO ATOVEQOUND APPMT MANOFl,c A,p pOp,1MENTS OF REC0110 NOT SUPPL 'PLIED 0 THE SURYET011 MF kirs.TTE4' ITN I! SW YET IS VOID UNLESS RET STAMPED --TN TMW7*@,4.oR.1K SDRVEYOR BELOW. Jlill EOWOXT. •._. 33947 SITE IMPROVEMENT/TOPOGRAPHIC SURVEY OFT 44 WEST ASPEN SWOI TSION FILING NO. 2, CITY OF ASPEN, COUNTY OF ,I TRIM, STATE OF CdLOAADO. CONTAINING 15,73, SO FT •/ PREPARED ET ASPEN SURVEY ENGINEERS, INC 210 SOWN GALENA STREET AVE", CDLDWADO S1611 PHONE/FAX 19701 925-3416 DATE AR Il /RW :8267 EXHIBIT A CUSTOM RESIDENCE LOT 44, WEST ASPEN SUBDIVISION AS1C"ll'siel9 `LOLORd'ilDO GALAMBOS /MUIR ARCHITECTS 208 AMAIN STREET CARBONDALE, COLORADO 81623 TELE: (970) 704-9750 FAX: (970) 287 ON s � General Notes: s 1. Contractor shall field verify costing grades vtmttlea end coo rtiona sod troti(y dre tavner of my dsaepane es before starting a -'aj work making rrwdficatioru ss es directed by the Landscape Arehitea Contracts will be required U complete the work of dtia project according b the proposed dmvings, details and epa'ificationa. If conflicts arise in the field, contact the Landscape / / _• Architect for resolUian. CorMtractor shall take sok responr'biliry for my coos irctared doe to damage or said utilities. �� / j a R 2. These drawings do rash specify aafery muuials or equipment, methods or sequencing b protect persona coal property. It shall be Window. W211 tthe he cob and often. ponsibiliry b d'uat and impletrMent sdery operations end procedures b protect the Gwoer, mbrattraeters, 3. Do not willfully proceed with cauWnion as designed when it is obvious that unknown Obsmd:tiau or grade dffemocra exist dot may net have ban known during design. Such conditions shall be immediately brought to the attention of the Landscape / Architect. The Contra" shall ASSUME full responsibility for a0 necessary revisions din to failum to give such nolificmoa I af 4. Contractor shall be tesposi sole for my coordination with any other contractor. 5. Verify locations and conditions of existing trw and plant material priorto beginning work Contractor dull take appropriate meavvea b protect them and avoid compaction within the drip lines. Avoid noting [cots over 1" diameter. Existing plant material damage by contractor than be replaced u contractora expense. .� \ _ / / / �T• e 7. All finish Vadesan sham provide for (2:1)tural nm-Off u wren without low apds nt pockets. shall Set flow Linea leemarely and provide a minimum 96 and a maximum 50% (2:1) gradient unless otherwise noted. Contractor dull be responsible for positive drainage duarghout the site, with accurately set flow lines. No low spots or ponding of water will be accepted in the find work v. Prduall Bound off spell tour awe smooth Improvements. / / // /// /lip 8. Gradually round off b and roa of do b a smooth and natural transition between relatively level arse and slopes. _ _ —_ 9. remain until will anchor hay ba4a a the toe of all disturbed! dto prevent erosion of existing dopes. The hay bales alum tcnuin _ / / until said dope are sufficiently revcgcuted 10 Contractor sham install GREENFIx - CFS-172 erosion control blanket orall ( equal) on slope steeper thin 2:1 after finish grades haw been approved by the Landscape Architect and sown with etnative(or Vaaaequal) on � .; •. - 11. Contractor shall install GREENFIX - WS-172 erosion control blanket (or equal) on all slopes steeper than 4:1 after finish �_ ` •• • / / //// 1=�0 grades have been approved by the Laddscape Architect and sown with native grass seed \ : \ •- _ .. / . %/ / / / /� / / . 12. Contractor shall install fencing along ong the limit of grindingto prevent damage existing vegetation. . Master-Bedo0m_ Kitchen- 7810 /// / /Guest Bedroom ,. / / . .. ��•-let o' - ---_Proposed Residence Limit of Grading -Iccessory Dwelling ))Mat/ - • / / V i /.'t. 7p a' / Window Well \� \ \ \ \ ` ° ' / _ • j 5'•0" Boulder Retaining Wall ........ O Limit of Grading \ \ \. Garage. \. 0gL7a02.0> .-• /! P t g Proposed Trail Alignment • 9) - rA 12 Existing _Trees,. \\ �H In Envelope \ �..: R• J �~ --- a P''°palf LIME y,^ 0 1 �r ...star stae f••l t+ e e Ceet wF�t • Data-., - March 11, 1"9 r z Scale: 1" = 10'. 0" Sheet:, L-1 Plant 12 +I 19 HI 4 12 i� is t 12 22,0000. Existing Trees • 1 0. rrbm� (rc drnilr Nor(.r roar aar. aumn edema sear De tr.eued belwem an gr.a,r...rd plantkm8 beds - . 7. AD pbmtkg bed. aha0 rrQive Y hardwood bark muldi: aD heebanooa beds aha0 rem:[ve 3' finely shredded harttwood bark mulch Sole: 1* = 101. Qw "8. A0 Mpen tre. aha0 be Bed CODech , 60% sha0 be mu114trur�d :I; and a0 duD pvr lateral 6c.:rl:mg In 16e upper 2/3 of the tree. 9. C. dmwn b the Iandsope are. are Bniah grad., bmrlumltrmg d' of mp'o0 b hwn areas ard 8" of wpsal in plaoft areas. 10. A0 disturbed grad. are w be Reded Mtlr T1R ar of Aspeda remmmeded nadw Red mr. �� r il. All shrub areas dull reodve Mha-S griper fabrk. 12. w0 rmewly phrued shrub and tre. dull reat.e Grip trrlaauon, a0 sod and perr—W aaeae dull receive spray Irdptk. with 100% overlap. Thin syaRm shall be autoou0c. Temporary 4Ap8on dull be provided w M reveseutad and w➢dfkrw it arm for a mhmimtmm of 30 days, Usher reduce waper'ama Sradua0y 13. Mukh all sown area with 33' of straw. 4) C7 N . O O U �0 Cy V/ a a W PW POW ' Marsh llr 199f Sbeek L-2 Is �r 20,-< ¢ STUDY '� to 40 a ¢ : KITCHEN 0 � � -- - - - - - - - - - - - - - - - - - - - - - - - - I DINING � I I I EL !02 -0 P 1 I ` tat LI I I I I I UP 19 R 9 G.BATH GUEST MASTER BED DN. DN 4 I EL-I'-C I -(j,--- / YY I Y • ----- I FOYER I I BALCONY too GREAAJM41V / `// - -- / 1 - J---- / - - ----- ----- --- / I 1 I BALCCb �I> / ri / r-s r-c Kra rs /�a F G H K (PmAr GALAMBOS /MUIR ARCHITECTS 2H MAW „rREET CARDWDALIe COLORAW 04. Wa)>•04-W&O z 'W, 1 V (s) � Z Q zo W �w N Q r ` V Q lofted for data RI-Ocw scr draw(na MARcm rz 189e P-J--t DR1EN Jab mmber U r FIR57- FLOOR PLAN .... 4.. n..__n� __.. _ �.'?._. ..^n. --�n..... _. ... _ _ � I ILA• Ai- .,c�'Sf+�n' — •� `T3�:r. y:;i ;.. Jim 6r �1 ++us.-`'�eA+l.`�.c'!�r.L. lb • - _ .. ., .aches+-, = a .. � � va�-w _ .. .. _. t CT GALAMBOS /MU! 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