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HomeMy WebLinkAboutcoa.lu.ca.31 Trainors Landing.0039.2016.ASLU0039.2016.ASLU 31 TRAINORS LANDING PROJECTIONS IN SETBACKS c co, Iq 6 PATH: G/DRIVE / MASTER FILES/ADMINISTRATIVE/ADMIN/LANDUSE CASE DOGS C7j THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0039.2016.ASLU PARCEL ID NUMBERS 2735 13112 002 PROJECT ADDRESS 31 TRAINORS LANDING PLANNER SARA NADOLNY CASE DESCRIPTION APPLICATION FOR PROJECTION SETBACKS REPRESENTATIVE PAUL TADDUNE DATE OF FINAL ACTION 06.07.2016 CLOSED BY KARLA HENRICHON 7.20.2016 Permits Oo ' !Zd � (c . A-S LAA I File Edit Record Navigate Form Reports Format Tab Help ox Fi 411 Jump 1 ;J �JAA-.)J -J off:■;� ►►r+� Main Custom Fields Routing Status Fee Summary Acbons Routing History 'o slu JAspen Land Use RMNE35 NII ASLU TRARIORS LANDING I Apt/Suite City �:,SPEII State = Zip 81C11 Permit Information Master permit Routing queue Applied Oa 0T2016 Project Status !cendin; Apprcwed Desviption APPLICATION FOR PROJECTION IN SETBACKS Issued Closed/Final Submitted MIKE HOFFh1AN 6443442 Clock Running pay 0 Expires 04`30 2017 Submitted via Owner Last name BREN IAII First name POHN 31 NORS LIIDG B Phone (:: Address ASPEN CO 81611 Applicant [, Owner is applicant? ❑ Contractor is applicant? Last name BREI IIIAII First name POHN 31 NORS L IIDG B Phone ( Cust # 130354 Address ASPEN CO 81611 Email Loder Last name First name Phone ( Address AspenGold5 (server. angelas = 1 of 1 �325 RECEPTION#: 629858, 06/08/2016 at 10 01: 5 PM, 1 o c, R $16.00 Doc Code ADMIN DECISION Janice K. Vos Caudill, Pitkin County, CO ADMINISTRATIVE DETERMINATION DENIAL OF AN ADMINISTRATIVE EXCEPTION FOR THE LOCATION OF A HOT TUB ON THE PROPERTY LEGALLY DESCRIBED AS TRAINORS LANDING SUBDIVISION, LOT 9, UNIT B, COMMONLY KNOWN AS 31 TRAINOR'S LANDING, CITY OF ASPEN, COUNTY OF PITKIN, COLORADO. Parcel ID No. 273513112002 APPLICANT: John Brennan SUBJECT & SITE OF APPROVAL: 31 Trainor's Landing, aka Lot 9, Unit B of Trainor's Landing Subdivision, Barbee Family Affordable Housing, involving the request for an administrative exemption to allow a hot tub to be maintained at a street -facing fagade of a duplex building. This is an administrative review. SUMMARY: The applicant has requested approval to maintain a hot tub at the front yard, ground -level patio of his unit. The hot tub faces Trainor's Landing, a private street. Subsection 26.575.020.E.(m) of the Land Use Code requires the following conditions for the location of a hot tub or spa: a) Prohibited between any lot line adjacent to a street and any structure; and b) Shall be located at least double the minimum setback for a primary structure from any lot line adjacent to a street; and c) If visible from the street, these features shall be screened in accordance with Section 26.575.050, Fences; and d) If located within a setback not adjacent to a street, these features shall not exceed thirty (30) inches above or below finished grade. These features may be up to thirty (30) inches above and below finished grade simultaneously. The hot tub is located between the front yard lot line, adjacent to the street, and the residence. Additionally, the hot tub is unscreened. An exemption from this section of Code may be granted by the Community Development Director if it is determined that "the visual impact of the exemption is minimal and that no other reasonable option exists. Approval shall be in the form of a recordable administrative determination." (Subsection 26.575.020.E.5). The application materials do not include an HOA compliance letter, a form that is generally required for properties subject to an HOA. Staff has agreed to proceed with this review despite the absence of this document in order to provide a decision on the merits of this request. The applicant has indicated a medical need for this hot tub and has indicated its use on the property in its current location for over a year prior to the complaint being filed for non- compliance with the Land Use Code. STAFF EVALUATION: To grant an exception to the above Code subsection the Community Development Director must determine that the visual impact of the exemption is minimal and that no other reasonable option exists. The standard does not allow for the granting of an exemption due to convenience, cost or medical reasons, or non-compliance for a specified period of time. Staff has reviewed the request and finds that there are other reasonable options to locate the hot tub, which include the eastern side yard and the rear yard of the property. In its current location the hot tub can be viewed from the street, and therefore Staff cannot make the determination that the visual impact of the hot tub is minimal. DECISION: Staff finds the application does not meet the criteria for an administrative exemption to maintain a hot tub between a building's faVade and a street, and DENIES the applicant's request. APPEAL OF DECISION: Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the City office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision or determination. Appeals of determinations are heard by the City's Hearing Officer. DECISION RENDERED BY: j1eGarro opment Director Mmunity dey Attachments: Exhibit A — Application (in file) Date 2 LAW OFFICES OF MAY 0 5 2016 E. MICHAEL HOFFMAN, P.c. 200 EAST MAIN STREET (aC, i NT P.O. Box EE ASPEN, COLORADO 81612 TELEPHONE: (970) 544-3442 FACSIMILE: (866) 929-7870 E-MAIL: mhoffmap@emhlaw.net April 13. 2016 Hillary Seminick, Planning Technician City of Aspen Community Development Department 130 S. Galena Aspen, Colorado 81611 Re: Request for Exception from Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks Dear Ms. Seminick, We deliver to you the following documents in connection with John Brennan's request for an exception from the application of Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks, for his home located at 31 Trainor's Landing in Aspen: 1. Agreement to Pay signed by Mr. Brennan, and Attachment 2 and 3 from the Community Development Department's Land Use Application packet. 2. Pre -application Conference Summary. 3. Ownership and Encumbrance Report of Stewart Title for 31 Trainor's Landing, Aspen. 4. A letter from Mr. Brennan authorizing me to file this package on his behalf. 5. A full-size copy of the recorded Condominium Map for Trainor's Landing Condominiums, which is an as -built survey of the property, as required by Colorado statute. 6. A written desorption of the request and an explanation of how the proposed development, complies with the review standards and design guidelines relevant to the application. 7. Mr. Brennan's deposit check of $325 made payable to the City of Aspen, as required by the Pre -Application Conference Summary. For the reasons set forth in the written description of the request, no HOA Compliance Form is included in this package. Thank you for your prompt attention to this request. s Ms. Hillary Seminick April 13, 2016 Page 2 Sincerely, / �--.-� Michael Hoffman CITY OF ASPEN PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Hillary Seminick, 429.2741 DATE: March 8, 2016 PROJECT: 31 Trainors Landing REPRESENTATIVE: Mike Hoffman DESCRIPTION: The applicant has an existing spa located on a deck facing a street. The hot tub location does not meet requirements of 26.575.020.E.5.(m), Allowed Projections into Setbacks. Specifically, the spa location does not meet the following requirements: (a) that prohibits a spa between the structure and the lot line adjacent to a street. Additionally, the structure appears that it does not meet requirement (b) where the spa shall be located at least double the minimum setback for a primary structure from the front lot line. Furthermore, the spa appears to be within the side yard setback. The spa is not in compliance with requirement (d) as the feature is in excess of 30" above finished grade. The Community Development Director may approve an exception to this prohibition. The Community Development Director must first determine that the visual impact of the exemption is minimal and that no other reasonable option exists. The applicant is requesting an administrative exception from the prohibition. Below is a link to the Land Use Code for your convenience: Land Use Code: http://www.aspenpitkin.com/Departments/Community-DevelopmenUPlannina-and-Zoning/Title-26-Land-Use-Code/ Relevant Land Use Code Section(s): 26.304 Common Development Review Procedures 26.575.020 Calculations and Measurements 26.575.020.E.5 Allowed Projections into Setbacks 26.710.090 Affordable Housing/Planned Development (AH/PD) Review by: Staff for completeness and review. Public Hearing: None. Referral Agencies: None. Planning Fees: $325 for 1 billable hours (additional or less billable hours are at $325 per hour). Total Deposit: $325 To apply, submit one copy of the following information: ❑ Completed Land Use Application and signed fee agreement. ❑ Pre -application Conference Summary (this document). ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, an ownership and encumbrance report, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ❑ Applicant's name, address and telephone number in a letter signed by the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the applicant. ❑ HOA Compliance form (Attached). ❑ Site improvement survey including topography and vegetation showing the current status, certified by a registered land surveyor, licensed in the state of Colorado. ❑ Scaled drawings of all proposed structure(s) or addition(s) depicting their form, including their height, massing, scale, proportions and roof plan; and the primary features of all elevations. ❑ A written description of the proposal and an explanation of how the proposed development, complies with the review standards and design guidelines relevant to the application. Once the copy is deemed complete by staff, the following items will then need to be submitted: ❑ Total deposit for review of the application. ❑ A digital copy of the application provided in pdf file format. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. • i Stewart title Stewart Title - Aspen 620 East Hopkins Avenue Aspen, CO 81611 WRITTEN OWNERSHIP AND ENCUMBRANCE REPORT Order No. 01330-77864 Date: April 13, 2016 Customer Reference: 31 Trainors Landing Unit B Aspen, CO 81611 LEGAL DESCRIPTION: Unit B, TRAINOR'S LANDING CONDOMINIUMS, According to the Plat thereof recorded October 3, 2002 in Plat Book 62 at Page 75 and defined and described in the Condominium Declaration recorded October 3, 2002 as Reception No. 472951. County of Pitkin, State of Colorado APPARENT OWNER OF RECORD: John Patrick Brennan Deeds of Trust, Mortgages and Liens which purport to affect the above described property, as disclosed by the records of the Clerk and Recorder of Pitkin County, Colorado, through the effective date of April 08, 2016: 1. Deed of Trust from John Patrick Brennan for the benefit of Wells Fargo Bank to secure the amount of $150,000.00 recorded October 4, 2012 as Reception No. 592889. NOTE: Vesting Deed recorded October 10, 2008 as Reception No. 553518. The liability of Stewart Title, its affiliates and associates, for any errors or omissions affecting or relating to the information appearing in this report is strictly limited to the amount paid for this report. The aforementioned liability is limited to the customer who ordered this report. There are no expressed or implied warranties assuring or representing that this report is reliable for title information, and therefore, should be verified by a Commitment for Title Insurance. No representation is made as to the completeness, validity, or legal sufficiency of the documents referenced herein, nor have any of such documents been examined to determine whether or not there are any exceptions, reservations, encumbrances or other matters which might be detrimental to Title. No search has been made for any reservations, restrictions, covenants, easements, rights of way, mineral interests, water rights, and any other encumbrances which are not a deed of trust, mortgage or lien. Authorized Countersignature Kurt Beereboom Authorized Representative of Stewart Title Order No.: 01330-77864 Page 1 of 2 written OE Report STCO 0 9 Order No.: 01330-77864 Page 2 of 2 Written OE Report STCO John Brennan 31 Trainor's Landing Aspen, Colorado 81611 April 11, 2016 Ms. Hillary Seminick, Planning Technician City of Aspen Community Development Department 130 S. Galena Aspen, Colorado 81611 Re: Authorization for Michael Hoffman to File Request for Request for Exception from Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks Dear Ms. Phelan, As the owner of 31 Trainor's Landing in Aspen, I hereby authorize E. Michael Hoffman, P.C. to submit and process the request for Request for Exception from Code Section 26.575.020.E.5.(m), which accompanies this letter. The name and relevant information for the firm is as follows: Michael Hoffman, Esq. E. Michael Hoffman, P.C. 200 East Main Street Aspen, Colorado 81611 Telephone: (970) 544-3442 Thank you for your consideration to the application. If you have any questions or require any additional information, please do not hesitate to contact me. John Brennan t. MAY 0 5 2016 LAW OFFICES OF E. MICHAEL HOFFMAN, P.c. 200 EAST MAIN STREET P.O. Box EE ASPEN, COLORADO 81612 TELEPHONE: (970) 544-3442 FACSIMILE: (866) 929-7870 E-MAIL: mhoffmaTaa,emhlaw.net April 11. 2016 Hillary Seminick, Planning Technician City of Aspen Community Development Department 130 S. Galena Aspen, Colorado 81611 Re: Request for Exception from Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks Dear Ms. Seminick, This letter constitutes the request of John Brennan, the owner of 31 Trainor's Landing in Aspen, for an exception from the requirements of City of Aspen Land Use Code ("Code") Section 26.575.020.E.5.(m), Allowed Projections into Setbacks (referred to herein as the "Hot Tub Regulation"). According to the Pre -Application Conference Summary, the location of Mr. Brennan's hot tub apparently does not meet the following aspects of the Hot Tub Regulation: (a) The rule "prohibits a spa between the structure and the lot line adjacent to a street." (b) "Additionally, the structure appears that it does not meet requirement (b) where the spa shall be located at least double the minimum setback for a primary structure from the front lot line." (c) "The spa appears to be within the side yard setback." (d) "The spa is not in compliance with requirement (d) as the feature is in excess of 30" above finished grade." Mr. Brennan's Hot Tub Has No Negative Visual Impacts; Neither Does Use of the Hot Tub. As further stated in the Pre-App, the "Community Development Director may approve an exception to this prohibition. The Community Development Director must first determine that the visual impact of the exemption is minimal and that no other reasonable option exists." The last sentence includes two elements. The Community Development Director must find that (a) the visual impact of the exemption is minimal, and (b) that no other reasonable option exists. As a site visit clearly demonstrates, the hot tub has virtually no visual impact from Trainor's Landing or from any other unit other than the condominium owned by Mr. and Mrs. Hines at 21 Trainor's Landing. Mr. and Mrs. Hines filed a Citizen Complaint Form in October of 2015, in which they stated that the hot tub "is a noisy and unsightly nuisance." Of the seven residents of C1 • Ms. Hillary Seminick April 11, 2016 Page 2 Trainor's Landing only the Hines and Murrays failed to sign a document that states that the Brennan's hot tub has ZERO VISUAL IMPACT to them. A copy of that document is attached hereto as Exhibit A. The City must acknowledge that Mr. Brennan's hot tub has been operating in its current position on the property since December of 2013. He hired a qualified electrical contractor (Ajax Electric) to install the hot tub wiring. The current dispute did not arise until September 16, 2015 — when a disagreement arose between Mr. Brennan and Denis Murray, Plans Examination Manager for the City of Aspen and the president of the Trainor's Landing HOA. Mr. Brennan complained that the Trainor's Landing president was making decisions regarding the subdivision that required a vote by the Board without consulting the Board. Animosity between the Hines and Mr. Brennan has existed for years. Mr. Brennan made many documented complaints to the HOA president (Mr. Murray) and the Hines regarding the Hines' off -leash dog. Those complaints failed to bring compliance to HOA Regulations. Mr. Brennan used his hot tub for almost two years before the Hines filed the complaint in which they claimed that the continued presence and use of the hot tub interferes with the quiet enjoyment of their home. Yet the Hines did sign off on Mr. Brennan's request to build the deck, upon which the hot tub sits, in the spring of 2003. Until the hot tub was installed, a summer deck table was used by the Brennan family for outdoor summer dining and its size and height above grade are almost identical to that of the hot tub. No doubt the dining noises were greater and of longer duration than the 30 to 40 minutes of current hot tub use. In a November 24, 2015 e-mail, Carolyn Hines declared that normal talking is louder than the hot tub. A copy of that email is attached as Exhibit B. In reality, neither the hot tub itself nor its use by Mr. Brennan causes a negative visual impact upon Mr. and Mrs. Hines nor disturbs the quiet enjoyment of their home. We believe their complaint was brought in retaliation for the complaints that Mr. Brennan lodged with the HOA over their off -leash dog and for a complaint that Mr. Brennan lodged with the Hines and the HOA regarding Mr. Hines turning a blaring radio out their kitchen window while Mr. Brennan and his children used the hot tub on a weekend afternoon. 2. As a Matter of Fairness, Mr. Brennan Should Be Granted an Exception from the requirements of the Hot Tub Regulation From the beginning of the City's investigation into the Hines' complaint, Mr. Brennan has offered to abide by reasonable restrictions on his use of the hot tub and to install landscaping or other screening devices to eliminate the .Hines' view of the hot tub from their residence. Mr. Brennan's offer has been consistently ignored. Mr. Brennan has never used the tub after 9 p.m. or before 9 a.m., never had music on while in the tub, never had any public displays of affection or nudity while in the tub. Mr. Brennan has explored the idea of moving the hot tub to some other location on the property. 0 s Ms. Hillary Seminick April 11, 2016 Page 3 Hillary Seminick identified an area on the Brennan property which the City would find acceptable for the hot tub. Mr. Brennan proposed several sites within this area to the Hines and Murrays -- as all other members of the Trainor's community did not care where the hot tub was located nor have a problem with its current location. The Hines and Murrays did not accept either of the proposed alternative sites. As the Trainor's Landing HOA is so small, without an approval from either the Hines or the Murrays Mr. Brennan cannot move his hot tub anywhere. A copy of an email from Mrs. Hines to the other members of the Trainor's Landing Condominium Association is attached as Exhibit C. The preliminary findings are met. The Community Development Director may consider Mr. Brennan's request of an exception from the requirements of the Hot Tub Regulation The Code, as amended by Ordinance No. 46 (Series of 2015), does not provide standards for the Community Development Director's consideration of Mr. Brennan's request for an exception. Therefore, we are assuming that basic concepts of fairness and equity apply to her decision -making in this regard. As a matter of fairness and equity, Mr. Brennan is entitled to keep his hot tub in its current location. The factors important to this determination are listed here. 1. Mr. Brennan received approval from the Trainor's Landing HOA for a deck in its current location in April of 2003. 2. Prior to buying the hot tub, Mr. Brennan sought the approval of the HOA President, Mr. Murray. Mr. Murray voiced no objection to the proposed deck location for the hot tub. Mr. Brennan hired Ajax Electric to work with the City's Community Development Department to acquire all of the permits needed to install the hot tub. As shown on the Electrical Permit,' Chet Feldman of Ajax Electric filed for an electrical permit from the City in December of 2013 and paid all requisite fees in April of 2014. 4. The electrical permit application received Zoning Review on December 5. 2013. The initials "SN" are found in the space provided for Zoning Review. 5. Mr. Brennan- was not involved in the City's consideration of the electrical permit request. The City completed its review and issued the permit on April 10, 2014. 6. The hot tub was installed by the contractor in compliance with the permit. 7. Mr. Brennan used the hot tub without incident until the City issued its Correction Notice ("red tag") on January 9, 2016. 8. The red tag was issued on the basis that the work described in the original electrical permit had never received a final inspection. This justification is pretext only. In his over 30 years as an electrician in Aspen, Mr. Feldman had never before had the City revoke an electrical I The Electrical Permit is attached to this letter as Exhibit D. 0 Ms. Hillary Seminick April 11, 2016 Page 4 permit because the job did not receive a final inspection. In all prior cases where the City realized that no final inspection had occurred, the City had allowed the work to be inspected late (up to two years late, in his experience) or, at worst, required that the permit fee be paid again prior to final inspection. Never before had the City revoked the permit and brought a municipal complaint against the homeowner. 9. Despite allegations of the Hines to the contrary, Mr. Brennan, his family and guests always used the hot tub with great consideration of the privacy concerns of his neighbors. 10. MR. BRENNAN DID NOTHING WRONG. He did everything any law-abiding citizen would do prior to installing a hot tub. 11. In multiple locations in the City of Aspen built-in hot tubs are located between the street and the main structure. This includes 411 South Aspen Street, an approximately 13-year- old multi -family housing complex. Trainor's Landing is a 14-year-old development. There is also a front -yard hot tub at the Snow Queen Lodge. Both of these structures are located within two blocks of the Brennan residence. For reasons not stated in the City's complaint, Mr. Brennan has been singled out and treated as a wrongdoer in connection with his ownership and use of the hot tub. Nothing in the current facts justifies this treatment. In this case, we believe the City is being used as the tool of Mr. Brennan's neighbors to retaliate for justified complaints made by Mr. Brennan concerning the neighbors' conduct. That conclusion is reinforced by the fact that the neighbors waited almost two years to make a complaint to the City. A one-year statute of limitations prevents the neighbors or condominium association from suing Mr. Brennan to compel him to remove of the hot tub due to his alleged failure to receive their consent prior to installing the spa? The Building Department should not have revoked the electrical permit or brought a municipal complaint in this matter. As a matter of equity, Mr. Brennan is entitled to an exception from the Code provisions cited in the Pre -Application Conference Summary. 3. The Americans with Disabilities Act Provides an Additional Basis for Granting an Exception from the Hot Tub Regulation. The Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12132, invalidates municipal regulations which intentionally discriminate against "qualified persons," as defined by the statute. In addition, the law limits the impact of regulations which have a "disparate impact" on disabled individuals or where the regulation evidences a municipality's "failure to accommodate such individuals." 3 Zoning regulations have been invalidated under these theories.4 2 See C.R.S. § 38-33.3-123(2). 3 Grider v. City & Cty. of Denver, 2011 WL 721279, at *3 (D. Colo. Feb. 23, 2011). 4 For assembled cases, see Eric M. Larsson, J.D., Challenges to Zoning or Land Use Regulation Under Americans with Disabilities Act of 1990. 42 U.S.C.A. & 12132, 57 Causes of Action 2d 763 (2013, updated March 2016). 0 0 Ms. Hillary Seminick April 11, 2016 Page 5 The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., prohibits discrimination by public entities based on disability, providing that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Like the [Fair Housing Act Amendments], the ADA requires entities to make reasonable accommodations for the disabled. [ ] Both statutes are applicable to municipal zoning decisions.' A "failure to accommodate claim requires plaintiffs to allege (in addition to the parties' status as qualified individuals with disabilities and public entities): (i) that they are facially entitled to public benefits which are also available to similarly - situated persons without disabilities; (ii) that they require a reasonable accommodation in order for them to meaningfully access those benefits; and (iii) the public entity has refused to provide them with such a reasonable accommodation."' Mr. Brennan has had ulcerative colitis since 2006. He has missed multiple days from ",ork as a result of that condition. "Ulcerative colitis is an inflammatory bowel disease (IBD) that causes long-lasting inflammation and ulcers (sores) in your digestive tract. Ulcerative colitis affects the innermost lining of your large intestine (colon) and rectum. Symptoms usually develop over time, rather than suddenly. Ulcerative colitis can be debilitating and sometimes can lead to life -threatening complications."' Treatment includes surgery and the taking of steroids.8 Hydrotherapy, including spa or hot tub therapy, is helpful.9 As shown in the "doctors notes" attached hereto as Exhibit E, Dr. Gerald Tomasso of Glenwood Medical Associates endorses the use of hot water treatment for his ulcerative colitis. In addition, in the spring of 2014 Mr. Brennan was hit by a skier while patrolling on Aspen Highlands for the Aspen Skiing Company. That accident caused a tear in one of Mr. Brennan's vertebral disks and compression on a nerve that leave him in constant pain. That pain has not abated despite multiple cortisone injections. The accident also damaged Mr. Brennan's hip, knee 5 Quad Enterprises Co., LLC v. Town of Southold, 369 F. App'x 202, 205 (2d Cir. 2010) (citations omitted). 6 Grider v. City & Cty. of Denver, at *-5. 7 Website of Mayo Clinic, accessed on April 11, 2016, at http://www.mayoclinic.org/diseases- conditions/ul cerati ve-col itis/basics/definition/con-20043 763. 8 Id., at hqp://www.mayoclinic.org/diseases-conditions/ulcerative-colitis/basics/treatment/con-20043763. 9 See, for example, https://www.sharecare.com/health/inflammatory-bowel-disease-ibd/health-guide/living-well- with-colitis-crohns/everyday-tips#sl ide-4. L1 Ms. Hillary Seminick April 11, 2016 Page 6 and shoulder joints. These injuries continue to cause him pain. He was out of work for several weeks after the accident and continues to miss work when his back injuries flare up. This happens several times a year. The pain from these injuries is reduced by hydrotherapy. Dr. Donald S. Corenman of The Steadman Clinic in Vail, and Dr. Anne Goyette of Aspen Medical Care both ask that the City take into account the daily benefits Mr. Brennan receives from daily, convenient hydrotherapy at his home. Copies of their recommendations are found in Exhibit E. An individual is considered disabled under the ADA if he or she: "(1) suffers from a physical or mental impairment; that (2) affects a major life activity; and (3) the effect is substantial."10 Mr. Brennan is disabled under this definition. The effects of his ulcerative colitis and back pain substantially affect his abilities to live and work. "Courts have uniformly recognized municipal or city governments as public entities under the" ADA.' 1 "Zoning decisions by local governments are "activities" performed by public entities, within the meaning of ADA's antidiscrimination provision." Further, the City is particularly vulnerable to ADA claims because it is a recipient of federal financial assistance.13 For example, last year the City was awarded $2 million by the Federal Highway Administration for the renovation of Rubey Park. The three tests for "reasonable accommodation" are applied to the current facts as follows: Mr. Brennan is facially entitled to public benefits which are also available to similarly - situated persons without disabilities. Mr. Brennan has a right to a relatively pain free -existence to the extent reasonably possible. Hydrotherapy helps reduce his pain and assists in preventing bouts of colitis. The Hot Tub Regulation permits hot tubs on larger lots within the City of Aspen. If Mr. Brennan was able to afford a home on an Aspen Townsite lot in the West End, for example, he would most likely be able to locate his hot tub in a manner which complies with the Hot Tub Regulation. Because Mr. Brennan lives in a condominium created on a small lot within an affordable housing complex in Aspen, however, he is prohibited from enjoying the benefits (a hot tub on his property) enjoyed by a person without disabilities who owns a more typical lot located in a less -constrained area of the City. 10 See, for example, Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002). 11 Larson, Footnote 3, above, § 10. 12 Id 13 "Under the ADA and Rehabilitation Act, public entities and entities receiving federal financial assistance are required to make `reasonable modifications' or `reasonable accommodations' in their rules, policies and practices when necessary to avoid discrimination." First Step, Inc. v. City of New London, 247 F. Supp. 2d 135, 154 (D. Conn. 2003) (quoting Innovative Health Systems, Inc. v. City of White Plains, 931 F.Supp. 222, 239 (1996)) Ms. Hillary Seminick April 11, 2016 Page 7 In connection with zoning or land use regulations, this element of a "reasonable accommodation" claim under ADA law is sometimes stated as follows: "A municipality discriminates in violation of the FHA, the ADA, or the Rehabilitation Act if it refuses to make changes to `traditional rules or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling."'14 The City's enforcement of the Hot Tub Regulation diminishes the opportunity of a person with ulcerative colitis and chronic back pain to live in an affordable housing unit in Aspen. 2. Mr. Brennan requires a reasonable accommodation in order to meaningfully access those benefits; and Mr. Brennan needs easy, uncomplicated access to a hot tub. The ability to incorporate hot tub use into his daily routine is essential to Mr. Brennan's quality of life. Having to drive to a remote location to use a hot tub will substantially discourage regular use. The ongoing cost of joining a health club or becoming a member of the Aspen Recreation Center will further discourage Mr. Brennan's access. A reasonable accommodation to Mr. Brennan's disability would be to permit him to keep his hot tub in its current location. The City has refused to provide Mr. Brennan with reasonable accommodation. The City refuses to consider Mr. Brennan's request and has demanded that he comply with the Hot Tub Regulation. The ADA applies to the current request and requires that the City make a reasonable accommodation to the Hot Tub Regulation to permit him to use a hot tub at his home as therapy for his ulcerative colitis and chronic back pain. An exception to the Hot Tub Regulation should be granted under these circumstances. Thank you for your consideration. Sincerely, r - /,-,If�, l _ � i Michael Hoffman 14 Reg7 Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 53 (2d Cir. 2002)(citing Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333 (2d Cir.1995), which included the quotation from H.R.Rep. No. 711, I00th Cong., 2d Sess. 25 (1988), reprinted at 1988 U.S.C.C.A.N. 2173, 2186). 0 • Ms. Hillary Seminick April 11, 2016 Page 8 Table of Exhibits Exhibit A — HOA Sign -off Sheet Exhibit B — Carolyn Hines Email of November 24, 2015 Exhibit C — Carolyn Hines Email of March 28, 2016 Exhibit D — Electrical Permit Exhibit E — Recommendations from Physicians Exhibit A 0 0 John Brennan's hot tub has zero visual impact to us: #31�i,,�„te,��� - #38- #48- #58- Exhibit B 1• John Brennan/jb@avalanchemitigationservices.com From: Carolyn Hines [carolynhines@aspencountryday.net] Sent: Tuesday, November 24, 2015 9:31 AM To: jb@avalanchemitigationservices.com Subject: Re: Hot Tub Hi, John, This is the first I've seen this, so thanks for resending. At this point, while the process we discussed at the meeting is underway, I think the assumption was that the use would continue as before. Of course any attempt to keep the noise level down would be appreciated; conversations tend to carry over the water noise. In the future, if you would direct any emails for our household to my cehines(cbmac.com address, that would be best (not ACDS). Please take Tom off. I will send the minutes out a bit later this week. Carolyn On Tuesday, November 24, 2015,<jb(a-)avalanchemitigationservices.com> wrote: Did you guys get the note below? My e-mail has been a bit quirky. JB From: John Brennan/jb@avalanchemitigationservices.com[mailto:ib@avalanchemitigationservices.com] Sent: Friday, November 20, 2015 8:57 AM To: 'Tom Hines'; 'carolynhines@asoencountryday.net' Subject: Hot Tub Tom and Carolyn, I had no intention of being unneighborly or in reducing your quality of life by installing my hot tub. While I attempt to sort through all by obligations in an effort to fully rectify the situation I would like to ask a favor. If you could please tell me when my hot tub use most affects you I will be glad to try to work around those times. For example, if you typically are in your kitchen area from 6 til 7 I will do my best to avoid those times in the tub. Somewhat ironically, I have a number of injuries resulting from a skier colliding into me in early 2014 and the tub is about the only thing that provides some relief from the symptoms. Best wishes, JB Carolyn Hines Director of Communications & Alumni Relations Aspen Country Day School 970-429-3844 direct line Exhibit C Pi John Brennan/jb@avalanchemitigationservices.com From: Carolyn Hines [cehines@mac.com] Sent: Monday, March 28, 2016 10 29 AM To: denis.murray@cityofaspen.com, edgarjmachuca@hotmail.com: jb@avalanchemitigationservices.com; yanibelfunes@hotmail.com; Carolyn Hines Subject: TLCHOA response to email request of 3/14/2015 Regarding a request (via email of 3/14/2015 from John Brennan, 31 Trainors Landing) for the members of the Trainors Landing Condominium Homeowners' Association to consider a hot tub installation on TLCHOA common area property: Two of the four members of the Association, #21 and #41, are on record as opposing this use. Approval, if given by the Association, would require at least three out of four votes in favor, so it is clear that this request lacks the necessary majority. Please accept this email as a formal denial of the request to use HOA property for any hot tub installation. Exhibit D City ®f Aspen Electrical Permit Application (3) 130 South Galeria SLTeet, Aspen, Colorado 81611 O 3-& - 1013. AEW THE CITY OF ASPEN Phone (970) 920-5090 Fax (970) 920-5440 PERMIT No. Job Address , l lh Best CorName/Ph�C�I Phone/E-mail C`ti eeOA-A.\ C'il'�'Q a' '0,4;�r a , 1vw. v Owner l Address Phone No E-mail Electrical Con ctoC ( Phone No. {Eanaq { .City Ucanse No. 1 53C. ln2 d 1v�-.e V\ L- DESCRIPTION OF ORI 1N DETAIL: (For additions, alterations, Indicate type, nu ber and location of urce circuits): j AD � o �,,� Ci swT �4 4 0 lu cvf �4, -,40 < 'zo, $ ELECTRICA V aLUATION: SQUARE FOQj BUILDING PERMIT#� l Use of Building: Commercial EVMUld-Family l single Family Photovoltiac installation: ❑ Yes No Class of Work: LJ Addition ❑ New Other ❑ Alteration ❑Temporary Service WIII any exterior lighting be added? Yes M No ACCEPTED: BY: DATE: r' UTILITIES REVIEW: BY:. DATE: 20 V BY: pA HPCR 1 BY: APPR F ANCE: BY: DATE: ISSU BY: DATE:_ DATE: For aR workdone under thh permit, the permitae aoeepts U responsibft for comphanca with the National ElectrirCode, the GtyofAspen ordinances, andah other couniy - resolutions, city ordinances, state laws, whichever applies. Pe. mit subject to revocation or suspension for violation of any laws governing same. An accepted final electrical lnspectio shall be obtained prior to using the electrical system. A final electrical inspection shall be requested within 4B hours after completing an electrical installation. CONTRACTOR SIGNA RE:. DATE: Owner Applicant: The undersigned applicant to personally perform electrical•work on the described propefty or residence hereby certifies, as a condition of Issuance of iuch permit, that the above described property or residence Is owned by the applicant; that the applicant is not engaged In the business of construction or remodeling; and such property Is not Intended for sale or resale, nor Is R a rental property (occupied or to be occupied by tenants, whether transient or permanent), nor will It be generally open to the public. It Is understood that compliance with these assurances Is a condition of the Issuance of an eiectrlal permitto the applicant pursuant to the provisions of C.R.S. Section 12-23-111(2) (as amended), and that failure to comply herewith will be xrounds for revocation of the electrical permit or arw certificate of occupancy Issued with respect to the property or residence Owner Signature (If Owner Builder): Dom: PAYMENT OF CITY OF'ASPEN AND PITKIN COUNTY USE TAX The General Contractoror Owner Builderls required to pay a UseTax Deposit to both City of Aspen (2.1%) and PitIdn County (.5%) on the building permit at time of Issuance. All PERMIT FEES SUMMARY sub -permits pulled under a building permit are paid by this deposit payment and should not pay Use Tax. Stand Alone Permits are required to pay Use Tax Deposit to both City of Aspen (2.1%) sore Pltkln County (.5%) at time of permit issuance since they are notcovered under building PERMIT FEE TYPE AMOUNT PERMIT FEE //�� permit. Stand Alone Use RED TAG - DOUBLE FEE Tax Payment: El Deposit: CityofAspen:2.1%of50%ofproject valuation (first $100,000 is exempt) USE TAX Pitkin County:.5% of 50% of project valuation. TOTAL DUE Exempt: Exempt Organization RECEIPT HISTORY RECEIPT# DATE TOTAL / g� NOTICE; This permit becomes nun and void ifwork orconstruction authorized is not commenced within 110 days, or if construction or work is suspended or abondonded for a , period of 280 days at any time after work is commenced. G:\NEW G DRIVE FOLD ERS_CITY\MASTER FILES\Building\Applications, Forms & Checklists PAGE\Permit Application Forms\NEW electrical permit 6-13.x1sx UPDATED 6/20/2013 1830 Blake Avenue • at Genwoo Me is AM US Glenwood Springs, co 81601 970.945.8503 Exhibit E www.glenwoodmedical.com infoCa)glenwoodmedical.com /'j, rv'/�j 16 '�' '-- A ; /-), d-� /V 1-1420 7 Jti P / -;2�' , '�/ � 31 The Steadman Clinic 181 W. Meadow Dr. - Suite #400 - Vail, CO 81657 Phone: (970) 476-1100 - Fax: (970) 479-5833 Marc J. Philippon, M.D. Randall W. Viola, M.D. Donald S. Corenman, M.D. Peter J. Millett, M.D. David C. Karli, M.D. Tom R. Hackett, M.D. Thomas O. Clanton, M.D. Robert F. LaPrade, M.D. Steven B. Singleton, M.D. Thos Evans, M.D. Jack Anavian, M.D. Jonathan Backus, M.D. Jonathan Frank, M.D. Travis Menge, M.D. Justin Mitchell, M.D. Scott Montgomery, M.D. Richard Shin, M.D. Alex Vap, M.D. For Brennan, John P Ehrich Bean, P.A.-C. Mike Begg, P.A.-C. Carolyn Chamness, PA.-C. Brian Davis, P.A.-C. Leah Dvorldn, P.A.-C. Sarah %`roman, P.A:C. Jason Kron, P.A.-C. Lindsey Schultz, P.A.-C. Jarod Schoeberl, P.A.-C. Michael Stevenson, PA.-C. Eric L. Strauch, P.A.-C. Heather Viola, P.A.-C. Sussy Gonzalez, ANP-BC Terese Holmquist, ANP-BC DOB 12/15/1962 Address 31 Trainors Landing Aspen CO 81611 PX Mr. Brennan gets pain relief and benefits from hot tub therapy on a daily basis. Quantity Refill times Date 01 /18/2016 Ab Aspen Medical Care 101 Founders Place, Suite 109 Aspen, CO 81611 Phone:970-920-0104 Fax:(970) 920-0124 ASPEN MEDICAL CARE www.aspenmedicalcare.com Wednesday, April 6, 2016 Patient Name: 70HN P BRENNAN Patient #: 5421 Social Security # 7055 Date of Birth: 12/15/1962 (last 4 digits): To Whomever It May Concern, Patient gets a therapeutic benefit from a convient home hot tub. Please take this into consideration. Sincerely, ANNE GOYETTE MD Jennifer Phelan From: jb@avalanchemitigationservices.com Sent: Friday, April 22, 2016 6:54 PM To: Jennifer Phelan Cc: 'Michael Hoffman'; AMS Subject: Brennan hot tub doc Attachments: JB Tub docs 4-22-16.pdf Follow Up Flag: Follow up Flag Status: Flagged I think these drawings show all the dimensions you were looking for. I've also included the document in which all members of our Trainor's community signed off on my deck design in April of 2003. For whatever it is worth, I'll be incommunicado at Lake Powell next week. Best wishes, John Brennan • • EXISTING SITE PLAN BRENNAN RESIDENCE 31 TRAINOR LANDING LOT 9 UNIT B ASPEN CO, 81611 Jeffrey A of fort ydeeign pD om 5m mpen..wwl:.m6f1 97Q90-45M sr, law, r1 i S41KOINV /It GU1TlVC s/ rv, CORNER LOT 8 BEARS N REBAR & CAP PLS ,28E I"v ni 12. 99' 5 00' AS-BUIL T BUILDING UNIT A FOUNDATION (TYP) LOT 81 ADDRESS: 41 F v TRAINOR'S LANDING v S 14050'49" 1!' 810' 38.2890.57'' "w 38.37' 8.00' I UNIT B [LOT 9] w I ! ADDRESS: 31 TRAINOR'S LANDING O G� N 1434'06" E NORM -SOUTH 7.00' 11.01, EXTERIOR WALL BEARING _ . UNI75 A & B (TYP) S 7525,54" E EAST -'WEST BUILDING 77E EXTERIOR. WALL BEARING CORNER/NOR 5' 34 84' — =—"1 UN17S A & B _(TYP) No CORNER LOT �ay �`; N26 59 52 W N 14"50'49" E Xi �a 48.$ ' ��. ��, (j RE86�& CA 1 20.36 o l AS -SUM T BUILDING FOUNDA770AI (TYP) N 14°50'49" E pc� N G o 54.16 G� PROJECT BENCHMARK FOUND REBAR & FOUND REBAR & CAP LS #28643 CAP LS ,�28643 5.10 13 �, '£LEVA770N 1005.30 U1 UT C ^ A iZOT 101 y DAA,SAS': 2f N M ° rRAINf9WS '1,AND..fNC r� BUILDING 77£ CORNF.R/NORTH EAST A' 1 ,1"50#49" .9 roRNLR LOT 10 Dt:ARS N627246"E Gfi. 77' I!1; 4.s' R!,%gAfi' & rAP PIS A?864,Y m i 0 CITY OF ASPEN PRE -APPLICATION CONFERENCE SUMMARY PLANNER: Hillary Seminick, 429.2741 DATE: March 8, 2016 PROJECT: 31 Trainors Landing REPRESENTATIVE: Mike Hoffman DESCRIPTION: The applicant has an existing spa located on a deck facing a street. The hot tub location does not meet requirements of 26.575.020.E.5.(m), Allowed Projections into Setbacks. Specifically, the spa location does not meet the following requirements: (a) that prohibits a spa between the structure and the lot line adjacent to a street. Additionally, the structure appears that it does not meet requirement (b) where the spa shall be located at least double the minimum setback for a primary structure from the front lot line. Furthermore, the spa appears to be within the side yard setback. The spa is not in compliance with requirement (d) as the feature is in excess of 30" above finished grade. The Community Development Director may approve an exception to this prohibition. The Community Development Director must first determine that the visual impact of the exemption is minimal and that no other reasonable option exists. The applicant is requesting an administrative exception from the prohibition. Below is a link to the Land Use Code for your convenience: Land Use Code: httD://www.asK)eni)itkin.com/Departments/Communitv-Develor)menUPlannina-and-Zonina/Title-26-Land-Use-Code/ Relevant Land Use Code Section(s): 26.304 Common Development Review Procedures: 26.575.020 Calculations and Measurements 26.575.020.E.5 Allowed Projections into Setbacks 26.710.090 Affordable Housing/Planned Development (AH/PD) APR 14 2016 Review by: Staff for completeness and review. CITY OF �'`'pN Public Hearing: None. Referral Agencies: None. Planning Fees: $325 for 1 billable hours (additional or less billable hours are at $325 per hour). Total Deposit: $325 To apply, submit one copy of the following information: ❑ Completed Land Use Application and signed fee agreement. ❑ Pre -application Conference Summary (this document). ❑ Street address and legal description of the parcel on which development is proposed to occur, consisting of a current (no older than 6 months) certificate from a title insurance company, an ownership and encumbrance report, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. ❑ Applicant's name, address and telephone number in a letter signed by the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 0 HOA Compliance form (Attached). 0 0 ❑ Site improvement survey including topography and vegetation showing the current status, certified by a registered land surveyor, licensed in the state of Colorado. ❑ Scaled drawings of all proposed structure(s) or addition(s) depicting their form, including their height, massing, scale, proportions and roof plan; and the primary features of all elevations. ❑ A written description of the proposal and an explanation of how the proposed development, complies with the review standards and design guidelines relevant to the application. Once the copy is deemed complete by staff, the following items will then need to be submitted: ❑ Total deposit for review of the application. ❑ A digital copy of the application provided in pdf file format. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. R7--,1r,,F11eTD LAW OFFICES OF E. MICHAEL HOFFMAN, P.c. 200 EAST MAIN STREET P.O. Box EE ASPEN, COLORADO 81612 Hillary Seminick, Planning Technician City of Aspen Community Development Department 130 S. Galena Aspen, Colorado 91611 APR 14 2016 CITY OF KSPEN Crvt* STY T- VELt NT TELEPHONE: (970) 544-3442 FACSIMILE: (866) 929-7870 E-MATT : mboffman r@enihlaw nee April 13, 2016 Re: Request for Exception from Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks Dear Ms. Seminick, We deliver to you the following documents in connection with John Brennan's request for an exception from the application of Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks, for his home located at 31 Trainor's Landing in Aspen: 1. Agreement to Pay signed by Mr. Brennan, and Attachment 2 and 3 from the Community Development Department's Land Use Application packet. 2. Pre -application Conference Summary. 3. Ownership and Encumbrance Report of Stewart Title for 31 Trainor's Landing, Aspen. 4. A letter from Mr. Brennan authorizing me to file this package on his behalf. 5. A full-size copy of the recorded Condominium Map for Trainor's Landing Condominiums, which is an as -built survey of the property, as required by Colorado statute. 6. A written description of the request and an explanation of how the proposed development, complies with the review standards and design guidelines relevant to the application. 7. Mr. Brennan's deposit check of $325 made payable to the City of Aspen, as required by the Pre -Application Conference Summary. For the reasons set forth in the written description of the request, no HOA Compliance Form is included in this package. Thank you for your prompt attention to this request. CJ Ms. Hillary Seminick April 13, 2016 Page 2 Sincerely, v f/ Michael Hoffman Y • • stewart title Stewart Title - Aspen 620 East Hopkins Avenue Aspen, CO 81611 WRITTEN OWNERSHIP AND ENCUMBRANCE REPORT Order No. 01330-77864 - Date: April 13, 2016 Customer Reference: 31 Trainors Landing Unit B Aspen, CO 81611 LEGAL DESCRIPTION: Unit B, TRAINOR'S LANDING CONDOMINIUMS, According to the Plat thereof recorded October 3, 2002 in Plat Book 62 at Page 75 and defined and described in the Condominium Declaration recorded October 3, 2002 as Reception No. 472951. County of Pitkin, State of Colorado APPARENT OWNER OF RECORD: John Patrick Brennan Deeds of Trust, Mortgages and Liens which purport to affect the above described property, as disclosed by the records of the Clerk and Recorder of Pitkin County, Colorado, through the effective date of April 08, 2016: 1. Deed of Trust from John Patrick Brennan for the benefit of Wells Fargo Bank to secure the amount of $150,000.00 recorded October 4, 2012 as Reception No. 592889. NOTE: Vesting Deed recorded October 10, 2008 as Reception No. 553518. The liability of Stewart Title, its affiliates and associates, for any errors or omissions affecting or relating to the information appearing in this report is strictly limited to the amount paid for this report. The aforementioned liability is limited to the customer who ordered this report. There are no expressed or implied warranties assuring or representing that this report is reliable for title information, and therefore, should be verified by a Commitment for Title Insurance. No representation is made as to the completeness, validity, or legal sufficiency of the documents referenced herein, nor have any of such documents been examined to determine whether or not there are any exceptions, reservations, encumbrances or other matters which might be detrimental to Title. No search has been made for any reservations, restrictions, covenants, easements, rights of way, mineral interests, water rights, and any other encumbrances which are not a deed of trust, mortgage or lien. Authorized Countersignature Kurt Beereboom Authorized Representative of Stewart Title Order No.: 01330-77864 Pagel of 2 Written OE Report STCO Order No.: 01330-77864 Page 2 of 2 Written OE Report STCO John Brennan 31 Trainor's Landing Aspen, Colorado 81611 April 11, 2016 Ms. Hillary Seminick, Planning Technician City of Aspen Community Development Department 130 S. Galena Aspen, Colorado 81611 Re: Authorization for Michael Hoffman to File Request for Request for Exception from Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks Dear Ms. Phelan. As the owner of 31 Trainor's Landing in Aspen, I hereby authorize E. Michael Hoffman, P.C. to submit and process the request for Request for Exception from Code Section 26.575.020.E.5.(m), which accompanies this letter. The name and relevant information for the firm is as follows: Michael Hoffman, Esq. E. Michael Hoffman, P.C. 200 East Main Street Aspen, Colorado 81611 Telephone: (970) 544-3442 Thank you for your consideration to the application. If you have any questions or require any additional information, please do not hesitate to contact me. John Brennan LAW OFFICES OF E. MICHAEL HOFFMAN, P.c. 200 EAST MAIN STREET P.O. Box EE ASPEN, COLORADO 81612 TELEPHONE: (970) 544-3442 FACSIMILE: (866) 929-7870 E-MAIL: mhoffman@emhlaw.net April 11, 2016 Hillary Seminick, Planning Technician City of Aspen Community Development Department 130 S. Galena Aspen, Colorado 81611 Re: Request for Exception from Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks Dear Ms. Seminick, This letter constitutes the request of John Brennan, the owner of 31 Trainor's Landing in Aspen, for an exception from the requirements of City of Aspen Land Use Code ("Code") Section 26.575.020.E.5.(m), Allowed Projections into Setbacks (referred to herein as the "Hot Tub Regulation"). According to the Pre -Application Conference Summary, the location of Mr. Brennan's hot tub apparently does not meet the following aspects of the Hot Tub Regulation: (a) The rule "prohibits a spa between the structure and the lot line adjacent to a street." (b) "Additionally, the structure appears that it does not meet requirement (b) where the spa shall be located at least double the minimum setback for a primary structure from the front lot line." (c) "The spa appears to be within the side yard setback." (d) "The spa is not in compliance with requirement (d) as the feature is in excess of 30" above fmished grade." 1. Mr. Brennan's Hot Tub Has No Negative Visual Impacts, Neither Does Use of the Hot Tub. As further stated in the Pre-App, the "Community Development Director may approve an exception to this prohibition. The Community Development Director must first determine that the visual impact of the exemption is minimal and that no other reasonable option exists." The last sentence includes two elements. The Community Development Director must find that (a) the visual impact of the exemption is minimal, and (b) that no other reasonable option exists. As a site visit clearly demonstrates, the hot tub has virtually no visual impact from Trainor's Landing or from any other unit other than the condominium owned by Mr. and Mrs. Hines at 21 Trainor's Landing. Mr. and Mrs. Hines filed a Citizen Complaint Form in October of 2015, in which they stated that the hot tub "is a noisy and unsightly nuisance." Of the seven residents of • Ms. Hillary Seminick April 11, 2016 Page 2 Trainor's Landing only the Hines and Murrays failed to sign a document that states that the Brennan's hot tub has ZERO VISUAL IMPACT to them. A copy of that document is attached hereto as Exhibit A. The City must acknowledge that Mr. Brennan's hot tub has been operating in its current position on the property since December of 2013. He hired a qualified electrical contractor (Ajax Electric) to install the hot tub wiring. The current dispute did not arise until September 16, 2015 — when a disagreement arose between Mr. Brennan and Denis Murray, Plans Examination Manager for the City of Aspen and the president of the Trainor's Landing HOA. Mr. Brennan complained that the Trainor's Landing president was making decisions regarding the subdivision that required a vote by the Board without consulting the Board. Animosity between the Hines and Mr. Brennan has existed for years. Mr. Brennan made many documented complaints to the HOA president (Mr. Murray) and the Hines regarding the Hines' off -leash dog. Those complaints failed to bring compliance to HOA Regulations. Mr. Brennan used his hot tub for almost two years before the Hines filed the complaint in which they claimed that the continued presence and use of the hot tub interferes with the quiet enjoyment of their home. Yet the Hines did sign off on Mr. Brennan's request to build the deck, upon which the hot tub sits, in the spring of 2003. Until the hot tub was installed, a summer deck table was used by the Brennan family for outdoor summer dining and its size and height above grade are almost identical to that of the hot tub. No doubt the dining noises were greater and of longer duration than the 30 to 40 minutes of current hot tub use. In a November 24, 2015 e-mail, Carolyn Hines declared that normal talking is louder than the hot tub. A copy of that email is attached as Exhibit B. In reality, neither the hot tub itself nor its use by Mr. Brennan causes a negative visual impact upon Mr. and Mrs. Hines nor disturbs the quiet enjoyment of their home. We believe their complaint was brought in retaliation for the complaints that Mr. Brennan lodged with the HOA over their off -leash dog and for a complaint that Mr. Brennan lodged with the Hines and the HOA regarding Mr. Hines turning a blaring radio out their kitchen window while Mr. Brennan and his children used the hot tub on a weekend afternoon. 2. As a Matter of Fairness, Mr. Brennan Should Be Granted an Exception from the requirements of the Hot Tub Regulation From the beginning of the City's investigation into the Hines' complaint, Mr. Brennan has offered to abide by reasonable restrictions on his use of the hot tub and to install landscaping or other screening devices to eliminate the Hines' view of the hot tub from their residence. Mr. Brennan's offer has been consistently ignored. Mr. Brennan has never used the tub after 9 p.m. or before 9 a.m., never had music on while in the tub, never had any public displays of affection or nudity while in the tub. Mr. Brennan has explored the idea of moving the hot tub to some other location on the property. • • Ms. Hillary Seminick April 11, 2016 Page 3 Hillary Seminick identified an area on the Brennan property which the City would find acceptable for the hot tub. Mr. Brennan proposed several sites within this area to the Hines and Murrays -- as all other members of the Trainor's community did not care where the hot tub was located nor have a problem with its current location. The Hines and Murrays did not accept either of the proposed alternative sites. As the Trainor's Landing HOA is so small, without an approval from either the Hines or the Murrays Mr. Brennan cannot move his hot tub anywhere. A copy of an email from Mrs. Hines to the other members of the Trainor's Landing Condominium Association is attached as Exhibit C. The preliminary findings are met. The Community Development Director may consider Mr. Brennan's request of an exception from the requirements of the Hot Tub Regulation The Code, as amended by Ordinance No. 46 (Series of 2015), does not provide standards for the Community Development Director's consideration of Mr. Brennan's request for an exception. Therefore, we are assuming that basic concepts of fairness and equity apply to her decision -making in this regard. As a matter of fairness and equity, Mr. Brennan is entitled to keep his hot tub in its current location. The factors important to this determination are listed here. 1. Mr. Brennan received approval from the Trainor's Landing HOA for a deck in its current location in April of 2003. 2. Prior to buying the hot tub, Mr. Brennan sought the approval of the HOA President, Mr. Murray. Mr. Murray voiced no objection to the proposed deck location for the hot tub. 3. Mr. Brennan hired Ajax Electric to work with the City's Community Development Department to acquire all of the permits needed to install the hot tub. As shown on the Electrical Permit,' Chet Feldman of Ajax Electric filed for an electrical permit from the City in December of 2013 and paid all requisite fees in April of 2014. 4. The electrical permit application received Zoning Review on December 5, 2013. The initials "SN" are found in the space provided for Zoning Review. 5. Mr. Brennan was not involved in the City's consideration of the electrical permit request. The City completed its review and issued the permit on April 10, 2014. 6. The hot tub was installed by the contractor in compliance with the permit. 7. Mr. Brennan used the hot tub without incident until the City issued its Correction Notice ("red tag") on January 9, 2016. 8. The red tag was issued on the basis that the work described in the original electrical permit had never received a final inspection. This justification is pretext only. In his over 30 years as an electrician in Aspen, Mr. Feldman had never before had the City revoke an electrical 1 The Electrical Permit is attached to this letter as Exhibit D. • 11 Ms. Hillary Seminick April 11, 2016 Page 4 permit because the job did not receive a final inspection. In all prior cases where the City realized that no final inspection had occurred, the City had allowed the work to be inspected late (up to two years late, in his experience) or, at worst, required that the permit fee be paid again prior to final inspection. Never before had the City revoked the permit and brought a municipal complaint against the homeowner. 9. Despite allegations of the Hines to the contrary, Mr. Brennan, his family and guests always used the hot tub with great consideration of the privacy concerns of his neighbors. 10. MR. BRENNAN DID NOTHING WRONG. He did everything any law-abiding citizen would do prior to installing a hot tub. 11. In multiple locations in the City of Aspen built-in hot tubs are located between the street and the main structure. This includes 411 South Aspen Street, an approximately 13-year- old multi -family housing complex. Trainor's Landing is a 14-year-old development. There is also a front -yard hot tub at the Snow Queen Lodge. Both of these structures are located within two blocks of the Brennan residence. For reasons not stated in the City's complaint, Mr. Brennan has been singled out and treated as a wrongdoer in connection with his ownership and use of the hot tub. Nothing in the current facts justifies this treatment. In this case, we believe the City is being used as the tool of Mr. Brennan's neighbors to retaliate for justified complaints made by Mr. Brennan concerning the neighbors' conduct. That conclusion is reinforced by the fact that the neighbors waited almost two years to make a complaint to the City. A one-year statute of limitations prevents the neighbors or condominium association from suing Mr. Brennan to compel him to remove of the hot tub due to his alleged failure to receive their consent prior to installing the spa.Z The Building Department should not have revoked the electrical permit or brought a municipal complaint in this matter. As a matter of equity, Mr. Brennan is entitled to an exception from the Code provisions cited in the Pre -Application Conference Summary. 3. The Americans with Disabilities Act Provides an Additional Basis for Granting an Exception from the Hot Tub Regulation. The Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12132, invalidates municipal regulations which intentionally discriminate against "qualified persons," as defined by the statute. In addition, the law limits the impact of regulations which have a "disparate impact" on disabled individuals or where the regulation evidences a municipality's "failure to accommodate such individuals."' Zoning regulations have been invalidated under these theories.4 2 See C.R.S. § 38-33.3-123(2). 3 Grider v. City & Cry. of Denver, 2011 WL 721279, at *3 (D. Colo. Feb. 23, 2011). 4 For assembled cases, see Eric M. Larsson, J.D., Challenges to Zoning or Land Use Regulation Under Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12132, 57 Causes of Action 2d 763 (2013, updated March 2016). • C� Ms. Hillary Seminick April 11, 2016 Page 5 The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., prohibits discrimination by public entities based on disability, providing that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Like the [Fair Housing Act Amendments], the ADA requires entities to make reasonable accommodations for the disabled. [ ] Both statutes are applicable to municipal zoning decisions.' A "failure to accommodate claim requires plaintiffs to allege (in addition to the parties' status as qualified individuals with disabilities and public entities): (i) that they are facially entitled to public benefits which are also available to similarly - situated persons without disabilities; (ii) that they require a reasonable accommodation in order for them to meaningfully access those benefits; and (iii) the public entity has refused to provide them with such a reasonable accommodation"' Mr. Brennan has had ulcerative colitis since 2006. He has missed multiple days from work as a result of that condition. "Ulcerative colitis is an inflammatory bowel disease (IBD) that causes long-lasting inflammation and ulcers (sores) in your digestive tract. Ulcerative colitis affects the innermost lining of your large intestine (colon) and rectum. Symptoms usually develop over time, rather than suddenly. Ulcerative colitis can be debilitating and sometimes can lead to life -threatening complications."' Treatment includes surgery and the taking of steroids.$ Hydrotherapy, including spa or hot tub therapy, is helpf il.9 As shown in the "doctors notes" attached hereto as Exhibit E, Dr. Gerald Tomasso of Glenwood Medical Associates endorses the use of hot water treatment for his ulcerative colitis. In addition, in the spring of 2014 Mr. Brennan was hit by a skier while patrolling on Aspen Highlands for the Aspen Skiing Company. That accident caused a tear in one of Mr. Brennan's vertebral disks and compression on a nerve that leave him in constant pain. That pain has not abated despite multiple cortisone injections. The accident also damaged Mr. Brennan's hip, knee 5 Quad Enterprises Co., LLC v. Town of Southold, 369 F. App'x 202, 205 (2d Cir. 2010) (citations omitted). 6 Grider v. City & Cty. of Denver, at *5. 7 Website of Mayo Clinic, accessed on April 11, 2016, at hap: www.ma)oclinic.ory disca;cs- condi6onsiulcerative-col itis /basics/definition con-20043763. 8 Id., at h tp mavoclinic.orL�discases conditions/ulcerative-colitis,basicsitreatment/con-20043763. 9 See, for example, iigps://%-ww.sharecare.com,bealth-inflammatory-bowel-disease-ibd/health-guide/living w'ell- With-. ervdav-tipsuslide-44. Ms. Hillary Seminick April 11, 2016 Page 6 and shoulder joints. These injuries continue to cause him pain. He was out of work for several weeks after the accident and continues to miss work when his back injuries flare up. This happens several times a year. The pain from these injuries is reduced by hydrotherapy. Dr. Donald S. Corenman of The Steadman Clinic in Vail, and Dr. Anne Goyette of Aspen Medical Care both ask that the City take into account the daily benefits Mr. Brennan receives from daily, convenient hydrotherapy at his home. Copies of their recommendations are found in Exhibit E. An individual is considered disabled under the ADA if he or she: "(1) suffers from a physical or mental impairment; that (2) affects a major life activity; and (3) the effect is substantial."10 Mr. Brennan is disabled under this definition. The effects of his ulcerative colitis and back pain substantially affect his abilities to live and work. "Courts have uniformly recognized municipal or city governments as public entities under the" ADA.11 "Zoning decisions by local governments are "activities" performed by public entities, within the meaning of ADA's antidiscrimination provision.12 Further, the City is particularly vulnerable to ADA claims because it is a recipient of federal financial assistance.13 For example, last year the City was awarded $2 million by the Federal Highway Administration for the renovation of Rubey Park. The three tests for "reasonable accommodation" are applied to the current facts as follows: Mr. Brennan is facially entitled to public benefits which are also available to similarly - situated persons without disabilities. Mr. Brennan has a right to a relatively pain free -existence to the extent reasonably possible. Hydrotherapy helps reduce his pain and assists in preventing bouts of colitis. The Hot Tub Regulation permits hot tubs on larger lots within the City of Aspen. If Mr. Brennan was able to afford a home on an Aspen Townsite lot in the West End, for example, he would most likely be able to locate his hot tub in a manner which complies with the Hot Tub Regulation. Because Mr. Brennan lives in a condominium created on a small lot within an affordable housing complex in Aspen, however, he is prohibited from enjoying the benefits (a hot tub on his property) enjoyed by a person without disabilities who owns a more typical lot located in a less -constrained area of the City. 10 See, for example, Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002). 11 Larson, Footnote 3, above, § 10. 12 Id. 13 "Under the ADA and Rehabilitation Act, public entities and entities receiving federal financial assistance are required to make `reasonable modifications' or `reasonable accommodations' in their rules, policies and practices when necessary to avoid discrimination." First Step, Inc. v. City of New London, 247 F. Supp. 2d 135, 154 (D. Conn. 2003) (quoting Innovative Health Systems, Inc. v. City of White Plains, 931 F.Supp. 222, 239 (1996)) • C� Ms. Hillary Seminick April 11, 2016 Page 7 In connection with zoning or land use regulations, this element of a "reasonable accommodation" claim under ADA law is sometimes stated as follows: "A municipality discriminates in violation of the FHA, the ADA, or the Rehabilitation Act if it refuses to make changes to `traditional rules or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling."'14 The City's enforcement of the Hot Tub Regulation diminishes the opportunity of a person with ulcerative colitis and chronic back pain to live in an affordable housing unit in Aspen. 2. Mr. Brennan requires a reasonable accommodation in order to meaningfully access those benefits; and Mr. Brennan needs easy, uncomplicated access to a hot tub. The ability to incorporate hot tub use into his daily routine is essential to Mr. Brennan's quality of life. Having to drive to a remote location to use a hot tub will substantially discourage regular use. The ongoing cost of joining a health club or becoming a member of the Aspen Recreation Center will further discourage Mr. Brennan's access. A reasonable accommodation to Mr. Brennan's disability would be to permit him to keep his hot tub in its current location. The City has refused to provide Mr. Brennan with reasonable accommodation. The City refuses to consider Mr. Brennan's request and has demanded that he comply with the Hot Tub Regulation. The ADA applies to the current request and requires that the City make a reasonable accommodation to the Hot Tub Regulation to permit him to use a hot tub at his home as therapy for his ulcerative colitis and chronic back pain. An exception to the Hot Tub Regulation should be granted under these circumstances. Thank you for your consideration. Sincerely, n � Michael Hof -man 14 Reg7 Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 53 (2d Cir. 2002)(citing Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333 (2d Cir.1995), which included the quotation from H.R.Rep. No. 711, 100th Cong., 2d Sess. 25 (1988), reprinted at 1988 U.S.C.C.A.N. 2173, 2186). Ms. Hillary Seminick April 11, 2016 Page 8 Table of Exhibits Exhibit A — HOA Sign -off Sheet Exhibit B — Carolyn Hines Email of November 24, 2015 Exhibit C — Carolyn Hines Email of March 28, 2016 Exhibit D — Electrical Permit Exhibit E — Recommendations from Physicians Exhibit A 0 0 John Brennan's hot tub has zero visual impact to us: 4.1 #38- #48- #58- Exhibit B 1 0 . John Brennan/jb@avalanchemitigationservices.com From: Carolyn Hines[carolynhines@aspencountryday.net} Sent: Tuesday, November 24, 2015 9:31 AM To: jb@avalanchemitigationservices.com Subject: Re: Hot Tub Hi, John, This is the first I've seen this, so thanks for resending. At this point, while the process we discussed at the meeting is underway, I think.the assumption was that the use would continue as before. Of course any attempt to keep the noise level down would be appreciated; conversations tend to carry over the water noise. In the future, if you would direct any emails for our household to my cehines(crmac.com address, that would be best (not ACDS). Please take Tom off. I will send the minutes out a bit later this week. Carolyn On Tuesday, November 24, 2015, <ib(a a% alanchemitigationservices.com> wrote: Did you guys get the note below'? My e-mail has been a bit quirky. JB From: John Brennan/ib@avalanchemitigationservices.com [mailto:ib aavaianchemitigationservices.com Sent: Friday, November 20, 2015 8:57 AM To: Tom Hines'; 'carolynhines(c�aspencountryday.net' Subject: Hot Tub Tom and Carolyn, I had no intention of being unneighborly or in reducing your quality of life by installing my hot tub. While I attempt to sort through all by obligations in an effort to fully rectify the situation I would like to ask a favor. If you could please tell me when my hot tub use most affects you I will be glad to try to work around those times. For example, if you typically are in your kitchen area from 6 til 7 I will do my best to avoid those times in the tub. Somewhat ironically, I have a number of injuries resulting from a skier colliding into me in early 2014 and the tub is about the only thing that provides some relief from the symptoms. Best wishes, JB Carolyn Hines Director of Communications & Alumni Relations Aspen Country Day School 970-429-3844 direct line Exhibit C • • John Brennan/jb@avalanchemitigationservices.com From: Carolyn Hines [cehines@mac.com] Sent: Monday, March 28, 2016 10:29 AM To: denis.murray@cityofaspen.com; edgarjmachuca@hotmail.com; jb@avalanchemitigationservices.com; yanibelfunes@hotmail.com; Carolyn Hines Subject: TLCHOA response to email request of 3/14/2015 Regarding a request (via email of 3/14/201 S from John Brennan, 31 Trainors Landing) for the members of the Trainors Landing Condominium Homeowners' Association to consider a hot tub installation on TLCHOA common area property: Two of the four members of the Association, #21 and #41, are on record as opposing this use. Approval, if given by the Association, would require at least three out of four votes in favor, so it is clear that this request lacks the necessary majority. Please accept this email as a formal denial of the request to use HOA property for any hot tub installation. Exhibit D:1 City Of Aspen Electrical Permit Application (3) 130 South Galena Street, Aspen, Colorado 81611 0 3 44 _ °>; Rew THE CITY OF Aspw Phone (970) 920-5090 Fax (970) 920-5UO PERRMIT Sao. Job Address j - J L: - Best Cent ct Name/Ph ne{Cell Phone/E-;veil ) C. Owner Address - Phone No E-rrrail vt rn VA_Ct_ V- C 0. �d 1 t� Electrical Coriqactor. Phone No. E-mail City License No. DESCRIPTION Of OR -IN DETAIL (For additions, alterations, indicate type, nu nber and location of ource circuits): ---I (t� A�� C,o AvVL` c,�w:� �- Ef .¢ ,� o '{ fi o o < •2cr ct!a $ ELECTRICA V ALVATION: SQUARE FOQTAG BUILDING PERMIT#- ' r — , �l Use of Building: Commercial M MUlti-Family ❑ Single Family Photovoltiac installation: El Yes © No Class of Work: ❑ NewOther __ Addition El ❑Temporary Service Will any exterior lighting be added? Ya KI No UTILITIES REVIEW: O APPR F ANCE: ISSU [ACCEPTED: :— TE:�i I BY: DATE: BY: i DATA' FATE: BY: DATE BY: j' DATE: J For all work done under this permit, the permitee accepts full responsibility for compliance with the National Electric Code, the City of Aspen ordinances, and all other county -/ resolutions, cityordinances, state laws, whichever applies Permit subject to revocation or suspension for violation of any laws goveming same. An acoepted final electrical ins pectior shall be obtained prior to using the electrical system. A final electrical inspection shall be requested within 48 hours after completing an electrical installation. CONTRACTOR SIGNA RE: j DATE: t Q J 2 2 1 3 Owner Apprrcant: The undersigned applicant to personally perform electrical'work on the described prope or residence hereby certifies, as a condition of issuance of such permit, that the above described property or residence Is owned by the applicant; that the applicant is not engaged In the business of construction or namode8ng; and such property Is not Intended for sale or resale, nor Is it a rental property (occupied or to be occupied by tenants, whether transient or permanent), nor will it be generally open to the public It is understood that compliance with these assurances is a condition of the Issuance of an electrial permit to the applicant pursuant to the provisions of C.R.S. Section 12-23.111 (2) (as amended), and that failure to comply herewith will be ¢rounds for revocation of the electrical permit or am certificate of oecuparcv issued with respect to the orooerty or residerc< Owner Signature (If Owner Builder): Date: PAYMENT OF CITY OF ASPEN AND PITKIN COUNTY USE TAX The General Contractor or Owner Builder Is required to pay a Use Tax Deposit to both City PERMIT FEES SUMMARY of Aspen (2.1%) and Piddn Country (.5%) on the building permit at time of issuatce. AN sub -permits pulled under a building permit are paid by this deposit payment and should not pay Use Tax_ PERMIT FEE TYPE AMOUNT Stand Alone Permits are required to pay Use Tax Deposit to both City of Aspen (21%) and Pitkin County (.5%) at time of permit issuance since they ate not covered under a Mrildim PERMIT FEE / KOO permit. Stand Alone Use RED TAG - DOUBLE FEE Tax Payment ❑ Deposit: City of Aspen: 2.1% of 50°,6 Of project vafuation (first $100,000 is exempt) USE TAX Piddn County:.5% of 50% of project valuation. TOTAL DUE ElExgppt: Exempt Organization RECEIPT HISTORY RECEIPT # TOTAL DATE ,,}} NOTICE: This permit becomes null and void if work or construction authorized is not commenced within 180 days, or if construction or work is suspended or abondonded for a period of 180 days at any time after work is commenced. >0 , r �Ti t O7 1 l� C Z a G:\NEW G DRIVE FOLDERS _CITY\MASTER FILES\Building\Applications, Forms & Checklists PAGE\Permit Application Forms\NEW electrical permit 6-13.xisx UPDATED 6/20/2013 1830 Blake Avenue • Glenwood Medical Assd%teS Glenwood springs, CO 81601 970.945.8503 Exhibit E www.glenwoodmedical.com info@glenwoodmedical.com T' k--� Y-�j A J�� �-VA) A vV / 1/� 1� J !til i' S je?��'j '�/ � I -Al u The Steadman Clinic 181 W. Meadow Dr. Suite #400 - Vail, CO 81657 Phone: (970) 476-1100 - Fag: (970) 479-5833 Marc J. Philippon, M.D. Randall W. Viola, M.D. Donald S. Corenman, M.D. Peter J. Millett, M.D. David C. Karli, M.D. Tom R. Hackett, M.D. Thomas O. Clanton, M.D. Robert F. LaPrade, M.D. Steven B. Singleton, M.D. Thos Evans, M.D. Jack Anavian, M.D. Jonathan Backus, M.D. Jonathan Frank, M.D. Travis Menge, M.D. Justin Mitchell, M.D. Scott Montgomery, M.D. Richard Shin, M.D. Alex Vap, M.D. For Brennan, John P Ehrich Bean, P.A.-C. Mike Begg, P.A.-C. Carolyn Chamness, P.A: C. Brian Davis, P.A.-C. Leah Dvorkin, P.A.-C. Sarah Froman, P.A.-C. Jason Kron, P.A.-C. Lindsey Schultz, P.A.-C. Jarod Schoeberl, P.A.-C. Michael Stevenson, P.A.-C. Eric L. Strauch, P.A.-C. Heather Viola, P.A.-C. Sussy Gonzalez, ANP-BC Terese Holmquist, ANP-BC DOB 12/15/1962 Address 31 Trainors Landing Aspen CO 81611 Mr. Brennan gets pain relief and benefits from hot tub therapy on a daily basis. Quantity Refill times Date 01 /18/2016 .• 0 Aspen Medical Care old 101 Founders Place, Suite 109 Aspen, CO 81611 Phone: 970-920-0104 Fax: (970) 920-0124 ASPEN MEDICAL CARE www.asoenmedicalcare.com Wednesday, April 6, 2016 Patient Name: Social Security # (last 4 digits): JOHN P BRENNAN 7055 To Whomever It May Concern, Patient #: Date of Birth: Patient gets a therapeutic benefit from a convient home hot tub. Please take this into consideration. Sincerely, ANNE GOYETTE MD 5421 12/15/1962 • • Jennifer Phelan From: Jennifer Phelan Sent: Wednesday, April 20, 2016 8:42 AM To: 'jb@avalanchemitigationservices.com' Subject: RE: Brennan Hot Tub Variance Hi John: The hot tub needs to be shown in relation to property lines and the entire lot. It also needs to be to scale. A detail is not sufficient. Please submit a more comprehensive drawing. Thanks. Best regards, Jennifer Jennifer Phelan, AICP Deputy Planning Director Community Development Department City of Aspen 130 S. Galena St. Aspen, CO 81611 970-429-2759 www.aspenpitkin.com Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to the sender that you have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable. the information and opinions contain in the email are based on current zoning, which is subject to change in the future. and upon factual representations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. From: jb@avalanchemitigationservices.com[mailto:jb@avalanchemitigationservices.com] Sent: Wednesday, April 20, 2016 7:52 AM To: Jennifer Phelan <jennifer.phelan@cityofaspen.com> Cc: 'Michael Hoffman' <mhoffman@emhlaw.net>; AMS <jb@avalanchemitigationservices.com> Subject: Brennan Hot Tub Variance Hello Jennifer. Attached please find a site plan for where my hot tub has lived since December of 2013 (within the perimeters of the deck that was ok'd by every member of the Trainor's Landing community and built in 2003). If you require a hard copy please let me know what size and I will deliver one promptly. Best wishes, John Brennan 0 • LIVING AREA CL ENTRY ''� •� "::;' PORCH . .+ - .: • '�:;; � EXISTING SITE PLAN DINING AREA BRENNAN RESIDENCE HOT TUB T-o.. 31 TRAINOR LANDING LOT 9 UNIT B ASPEN CO, 81611 J e f f r e y h a I f e r t y d e s i g n PO BOX 3725 aspen, col orado.81611 970.948-4537 0 • LAW OFFICES OF E. MICHAEL HOFFMAN, P.c. 200 EAST MAIN STREET P.O. Box EE ASPEN, COLORADO 81612 Hillary Seminick, Planning Technician City of Aspen Community Development Department 130 S. Galena Aspen, Colorado 81611 TELEPHONE: (970) 544-3442 FACSIMILE: (866) 929-7870 E-MAIL: mhoffman a emhlaw.net April 11, 2016 Re: Request for Exception from Code Section 26.575.020.E.5.(m), Allowed Projections into Setbacks Dear Ms. Seminick, This letter constitutes the request of John Brennan, the owner of 31 Trainor's Landing in Aspen, for an exception from the requirements of City of Aspen Land Use Code ("Code") Section 26.575.020.E.5.(m), Allowed Projections into Setbacks (referred to herein as the "Hot Tub Regulation"). According to the Pre -Application Conference Summary, the location of Mr. Brennan's hot tub apparently does not meet the following aspects of the Hot Tub Regulation: (a) The rule "prohibits a spa between the structure and the lot line adjacent to a street." (b) "Additionally, the structure appears that it does not meet requirement (b) where the spa shall be located at least double the minimum setback for a primary structure from the front lot line." (c) "The spa appears to be within the side yard setback." (d) "The spa is not in compliance with requirement (d) as the feature is in excess of 30" above finished grade." l . Mr. Brennan's Hot Tub Has No Negative Visual Impacts; Neither Does Use of the Hot Tub. As further stated in the Pre-App, the "Community Development Director may approve an exception to this prohibition. The Community Development Director must first determine that the visual impact of the exemption is minimal and that no other reasonable option exists." The last sentence includes two elements. The Community Development Director must find that (a) the visual impact of the exemption is minimal, and (b) that no other reasonable option exists. As a site visit clearly demonstrates, the hot tub has virtually no visual impact from Trainor's Landing or from any other unit other than the condominium owned by Mr. and Mrs. Hines at 21 Trainor's Landing. Mr. and Mrs. Hines filed a Citizen Complaint Form in October of 2015, in which they stated that the hot tub "is a noisy and unsightly nuisance." Of the seven residents of • C Ms. Hillary Seminick April 11, 2016 Page 2 Trainor's Landing only the Hines and Murrays failed to sign a document that states that the Brennan's hot tub has ZERO VISUAL IMPACT to them. A copy of that document is attached hereto as Exhibit A. The City must acknowledge that Mr. Brennan's hot tub has been operating in its current position on the property since December of 2013. He hired a qualified electrical contractor (Ajax Electric) to install the hot tub wiring. The current dispute did not arise until September 16, 2015 — when a disagreement arose between Mr. Brennan and Denis Murray, Plans Examination Manager for the City of Aspen and the president of the Trainor's Landing HOA. Mr. Brennan complained that the Trainor's Landing president was making decisions regarding the subdivision that required a vote by the Board without consulting the Board. Animosity between the Hines and Mr. Brennan has existed for years. Mr. Brennan made many documented complaints to the HOA president (Mr. Murray) and the Hines regarding the Hines' off -leash dog. Those complaints failed to bring compliance to HOA Regulations. Mr. Brennan used his hot tub for almost two years before the Hines filed the complaint in which they claimed that the continued presence and use of the hot tub interferes with the quiet enjoyment of their home. Yet the Hines did sign off on Mr. Brennan's request to build the deck, upon which the hot tub sits, in the spring of 2003. Until the hot tub was installed, a summer deck table was used by the Brennan family for outdoor summer dining and its size and height above grade are almost identical to that of the hot tub. No doubt the dining noises were greater and of longer duration than the 30 to 40 minutes of current hot tub use. In a November 24, 2015 e-mail, Carolyn Hines declared that normal talking is louder than the hot tub. A copy of that email is attached as Exhibit B. In reality, neither the hot tub itself nor its use by Mr. Brennan causes a negative visual impact upon Mr. and Mrs. Hines nor disturbs the quiet enjoyment of their home. We believe their complaint was brought in retaliation for the complaints that Mr. Brennan lodged with the HOA over their off -leash dog and for a complaint that Mr. Brennan lodged with the Hines and the HOA regarding Mr. Hines turning a blaring radio out their kitchen window while Mr. Brennan and his children used the hot tub on a weekend afternoon. 2. As a Matter of Fairness, Mr. Brennan Should Be Granted an Exception from the requirements of the Hot Tub Regulation From the beginning of the City's investigation into the Hines' complaint, Mr. Brennan has offered to abide by reasonable restrictions on his use of the hot tub and to install landscaping or other screening devices to eliminate the Hines' view of the hot tub from their residence. Mr. Brennan's offer has been consistently ignored. Mr. Brennan has never used the tub after 9 p.m. or before 9 a.m., never had music on while in the tub, never had any public displays of affection or nudity while in the tub. Mr. Brennan has explored the idea of moving the hot tub to some other location on the property. Jennifer Phelan From: Michael Hoffman <mhoffman@emhlaw.net> Sent: Wednesday, April 20, 2016 12:51 PM To: Jennifer Phelan Cc: jb@avalanchemitigationservices.com Subject: RE: Boomerang Attachments: Highlighted Section of Letter dealing with threshhold issue.pdf Jen, In response to your email of Monday, I see that Mr. Brennan has delivered a scaled drawing which shows the location of the hot tub. In response to your second comment. I have attached a copy of the first two pages of the letter submitted with the application. On those two pages I have highlighted what is intended to be Mr. Brennan's response to the prerequisite identified in your email, ``The Community Development Director must First determine that the visual impact of the exemption is minimal and that no other reasonable option exists.- --- Mike Michael Hoffman E. Michael Hoffman, P.C. (970) 544-3442 Phone; (866) 929-7870 Telefax 200 East Main Street P.O. Box EE Aspen, Colorado 81612 This message is intended only for the individual or entity to which it is addressed and may contain information that is attorney work - product, privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address via email or the United States Postal Service. From: Jennifer Phelan [mailto:jennifer.phelan@cityofaspen.com] Sent: Monday, April 18, 2016 1:53 PM To: Michael Hoffman <mhoffman@emhlaw.net> Subject: RE: Boomerang HI Mike: I reviewed the application for Mr. Bennan's request and I still need two items. You need to provide a scaled site plan showing the proposed location of the hot tub. This could be drawn on the condominium plat. Also, can you address the code requirement: "The Community Development Director must first determine that the visual impact of the exemption is minimal and that no other reasonable option exists." Thanks, Jeri Jennifer Phelan, AICP Deputy Planning Director Community Development Department City of Aspen 130 S. Galena St. Aspen, CO 81611 970-429-2759 www.aspenpitkin.com • • Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to the sender that you have received the message in error and then delete it. Further, the information or opinions contained in this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. From: Michael Hoffman [)iailto:mhoffman@emhlaw.net] Sent: Monday, April 18, 2016 11:07 AM To: Jennifer Phelan <Jennifer.phelan@cityofaspen.com> Subject: Boomerang HiJen! I understand that Jim Pomeroy has evaluated the most current Boomerang Lodge plans. Can you call me about that? Thank you. 544-3442. Mike Michael Hoffman E. Michael Hoffman, P.C. (970) 544-3442 Phone; (866) 929-7870 Telefax 200 East Main Street P.O. Box EE Aspen, Colorado 81612 This message is intended only for the individual or entity to which it is addressed and may contain information that is attorney work - product, privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address via email or the United States Postal Service. Jennifer Phelan From: Jennifer Phelan Sent: Monday, April 18, 2016 1:53 PM To: 'Michael Hoffman' Subject: RE: Boomerang HI Mike: I reviewed the application for Mr. Bennan's request and I still need two items. You need to provide a scaled site plan showing the proposed location of the hot tub. This could be drawn on the condominium plat. Also, can you address the code requirement: "The Community Development Director must first determine that the visual impact of the exemption is minimal and that no other reasonable option exists." Thanks, Jen Jennifer Phelan, AICP Deputy Planning Director Community Development Department City of Aspen 130 S. Galena St. 4spen, CO 81611 970-429-2759 www.aspenpitkin.com Notice and Disclaimer: This message is intended only for the individual or entity to which it is addressed and may contain information that is confidential and exempt from disclosure pursuant to applicable law. If you are not the intended recipient, please reply to ,he sender that you have received the message in error and then delete it. Further, the information or opinions contained n this email are advisory in nature only and are not binding on the City of Aspen. If applicable, the information and opinions contain in the email are based on current zoning, which is subject to change in the future, and upon factual ,epresentations that may or may not be accurate. The opinions and information contained herein do not create a legal or vested right or any claim of detrimental reliance. From: Michael Hoffman [mailto:mhoffman@emhlaw.net] Sent: Monday, April 18, 2016 11:07 AM To: Jennifer Phelan <jennifer.phelan@cityofaspen.com> Subject: Boomerang Hi Jen! I understand that Jim Pomeroy has evaluated the most current Boomerang Lodge plans. Can you call me about that? Thank you. 544-3442. --- Mike Michael Hoffman E. Michael Hoffman, P.C. (970) 544-3442 Phone; (866) 929-7870 Telefax 200 East Main Street P.O. Box EE Aspen, Colorado 81612 This message is intended only for the inl idual or entity to which it is addressed and may contain information that is attorney work - product, privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone and return the original message to us at the above address via email or the United States Postal Service. 0 9 THE CITY OF ASPEN Land Use Application Determination of Completeness Date: May 3, 2016 Dear City of Aspen Land Use Review Applicant, We have received your land use application for Exception request —_projections in setbacks and have reviewed it for completeness. *- Your Land Use Application is complete: Please submit the following to begin the land use review process. 1) Digital pdf of the entire application. 2) Review deposit of $325.00. 3) One additional hard copy of the entire application. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 if you have any questions. Thank You, v- nnifer Ian, Deputy Planning Director City of Aspen, Community Development Department For Office Use Only: Mineral Right7No e Required Yes No GMQS Allotments Yes No� Qualifying Applications: New PD Subdivision, or PD (creating more than 1 additional lot) Residential Affordable Housing Commercial E.P.F. Lodging RETA*F©R PLRo�iA : ?jT r i*13 L Agreement to Pay Application Fees MAY 0 5 2016 An agreement between the City of Aspen ("City") and Property Owner ("I"). John Brennan Phone No.: Email: n.� 970-300-8001 : jb@avalanchernit igationservices.com Address of Property. 31 Trainors Landing p �' Billing Address: 31 Trainors landing Aspen, CO 81611 (Subject of (send bills here) Aspen, CO 81611 application) I understand that the City has adopted, via Ordinance No., Series of 2011, review fees for Land Use applications and payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $. flat fee for $. flat fee for flat fee for $. flat fee for For Deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for no -payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render and application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ 325.00 _/ deposit for 1 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. $ deposit for hours of Engineering Department staff time. Additional time above the deposit amount will be billed at $325.00 per hour. City of Aspen: qMV(41_" Community Development Director City Use: _R3 2 Fees Due: $eceived $_V V Property Own Name: John Brennan Title: anuary, 201E City of Apen 1130 S. Galena St. 1 (970) 920 SOS i ATTACHMENT 2 - LAND USE APPLICATION PROJECT: Name: John Brennan Location: 31 Trainors Landing, Aspen, CO 81611 Parcel ID # (REQUIRED) APPLICANT: \lame: John Brennan 4ddress: 31 Trainors Landing, Aspen, CO 81611 Phone #: 970-300-8001 REPRESENTIVATIVE: Name: Michael Hoffman, Esq. Address: 200 East Main, P.O. Box L'E, Aspen, CO 81612 Phone#: (970)544-3442 GMQS Exemption Conceptual PUD Temporary Use GMQS Allotment Final PUD (& PUD Amendment) Special Review Subdivision Conceptual SPA ESA — 8040 Greenline, Stream Subdivision Exemption (includes Margin, Hallam Lake Bluff, Condominiumization) Mountain View Plane Final SPA (&SPA Commercial Design Review Lot Split Amendment) Residential Design Variance Lot Line Adjustment Small Lodge Conversion/ Exception per Code Section 26.575.020.E.5(m) Expansion Conditional Use Other: MISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) A hot tub exists on the deck to the east of and behind the front door. 'ROPOSAL: (Description of proposed buildings, uses, modifications, etc.) Receive land use approval for the hot tub. Have you attached the following? FEES DUE: X Pre -Application Conference Summary X Attachment #1, Signed Fee Agreement X Response to Attachment #3, Dimensional Requirements Form X Response to Attachment #4, Submittal Requirements — including Written Responses to Review Standards 3-D Model for large project All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre -application conference summary will indicate if you must submit a 3-D model. January, 2015 City of Apen 1130 S. Galena St.1(970) 920 5050 0 CITY OF •MMUNITY DEVELOPMENT DEPARTMENT ATTACHMENT 3 DIMENSIONAL REQUIREMENTS FORM Project: John Brennan Hot Tub Applicant: John Brennan Location: 31 Trainoes Landing, Aspen, Colorado 8161 1 Zone District: AHI/Planned Unit Development Lot Size: Lot Area: (For the purpose of calculating Floor Area, Lot Area may be reduced for areas within the high-water mark, easement, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: Proposed: Number of residential units: Existing: Proposed: Number of bedrooms: Existing: Proposed: Proposed % of demolition (Historic properties only): DIMENSIONS: Floor Area: Existing: Allowable: Proposed Principal bldg. height: Existing: Allowable: Proposed Access. Bldg. height: Existing: Allowable: Proposed On -Site parking: Existing: Required: Proposed % Site coverage: Existing: Required: Proposed % Open Space: Existing: Required: Proposed Front Setback: Existing: 27 feet Required 27 feet Proposed 27 feet Rear Setback: Existing: Required: Proposed Combined F/F: Existing: Required Proposed Side Setback: Existing: Required: Proposed Side Setback: Existing: Required Proposed Combined Sides: Existing: Required Proposed Distance between Bldgs. Existing: Required: Proposed Existing: Required: Proposed: Existing non -conformities or encroachments: Exception requested: Exception from Exception per Code Section 26.575.020.E.5(m) ani a y 201 G City of Apen 1130 S. Gale -,a St. {(970i 920 505"