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HomeMy WebLinkAboutcoa.lu.ca.707 Gibson Ave.0006.2011.ASLUCOC7 7o,r-A5L� C4 0006.2011.ASLU Ave CODE INTERPRETATION 2737 07 331 851 A �i . 0 0 %no w PATH: G/DRIVE / MASTER FILES/PLANNING/ THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0006.2011.ASLU PARCEL ID NUMBERS 2737 07 331851 PROJECT ADDRESS 707 GIBSON AVE PLANNER CHRIS BENDON CASE DESCRIPTION APPEAL FROM AN INTERPRETATION REPRESENTATIVE MITCH HAAS DATE OF FINAL ACTION 0!5r.23.2011 CLOSED BY KARLA HENRICHON 7.28.16 0 0 PATH: G/DRIVE I MASTER FILES/PLANNING/ ti.. CJ THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0017.2011.ASLU PARCEL ID NUMBERS 2737073051 PROJECT ADDRESS 707 GIBSON AVE PLANNER CHRIS BENDON CASE DESCRIPTION APPEAL FROM AN INTERPRETATION REPRESENTATIVE MITCH HAAS DATE OF FINAL ACTION 06.23.2011 CLOSED BY KARLA HENRICHON 7.28.16 taw 001 20u - As c- L,4 File Ot Record $oo Form Format It Help k*g,dz !Fm:%5zwi fm—mlpn mwn&t!lAa&Qwm 1!Agm jkdit ilcutwo iswent i1pro* pen Lrdle si rr r ao11 ASLU WE �7 MN AVE F16ii WON& %terpti- - DcQgbaAPRkFRCMMNWFATK)N law FW St&W L!S M UM 0 7819 ad �V* 70 Wa Cwaer Lgrat *FRLYTRUST 5A7 Frtrw AUL YOLNG OW AVE AM C081MI Rn Address Ap*d 0OW64*40 0 cgka* i 440 A name L% Fist m 2 NMLLST SE ice hm oat Aftes ASI) CC Mi I I M-T Last name r'rl name Ad6W DO*the permit 6*-:adiw 0 0 *jaw l4wo 2-7 3'1 61 — 53 2011 - -Ne 71�4. Ek Wit Record Navgate Form Rep" Format Tab Heo A �x It RVMqAuj JIM 4 k Mwlpn enentsIRa&Vjfty 1*9m IMF* Sub P-wM I► Land Use 0006.2011 ASLU . Aspen 30S GALENA � l�� � ® � 271I011 fts endrg Approved Du#bM MERPRIETATION OF TITLE QAWM THE I)EFMTMS OF FLOOR A?EA AND Bud FLOOR RATIO (FAR) qhntW 114TCH HAAS 925 7t19 Riming Dao F Eames Wited vie 1 71 Owner Last we P? HAL Fist name CASTLE CN ASPEN C081611 Phone i) Address APDkent [: 090 i ak&i? 'I cv*a0v it aimt? Last rm LAND PLANNING LL( I First w 201 N MILL ST STE 108 phone 9?0) 925-7819 Cust # 346 Address ASPEN CO 01611 Lender Last name Fist name Phom Address Displays k perms ler&s akim &.# Sig, �50 -c y ",+q i✓ I*MI July 26, 2012 To Whom It May Concern: THE CITY OF ASPEN The Young Family Trust Dated October 15, 1999 and 707 Holding Company, LLC own the property located at 707 Gibson Avenue, Aspen, CO 81611, which is a legally established and conforming lot of record in the City of Aspen (Parcel ID# 2737-073-00-051). William B. Wiener owns the adjacent property to the west, which is known as Hill House, Unit C (Parcel ID# 2737-073-45-003), located at 701 Gibson Ave., Aspen, CO 81611. As background, the previous owner of the property at 707 Gibson Avenue and Mr. Wiener agreed to, and the City approved, a lot line adjustment swapping an even amount of lot area. Mr. Wiener then completed an expansion of his home within the adjusted lot boundaries pursuant to a duly issued building permit and in conformance with City approvals and zoning requirements. A suit was later filed by the owner of the other Hill House Condominiums units to the west contesting the lot line adjustment, which was then voided by the Court. Because of this subsequent court decision voiding the lot line adjustment, a portion of the home on 701 Gibson Ave. now encroaches onto the 707 Gibson Ave. property, although at the time of the expansion that land area was considered to be Mr. Wiener's property. As a result of the cowl's decision to void the lot line adjustment, Mr. Wiener's home is now considered a legally established structure, non -conforming only with regard to the side yard setback. However, the parcel remains an unchanged, legally established and conforming lot of record in the City of Aspen. 1 understand that the parties intend to enter into an easement agreement, attached hereto as Exhibit A, by the terms of which the owners of 707 Gibson Ave. would grant to the owner of 701 Gibson Ave. an easement for the encroachment described above. This letter is meant to provide confirmation that the grant of an easement for the Existing improvemerits as described in Exhibit A will in no way affect the status of the 707 Gibson Ave. property as a legally created, conforming lot of record, nor will it effect or exacerbate the legally -established non-confornng structure status. In short, the grant of easement will not cause any conflict with current City of Aspen land use or zoning regulations. It should be noted that the City of Aspen Municipal Code and its zoning requirements are subject to change from time to time. Therefore, this letter does not guarantee that the property will remain conforming in perpetuity. Sincerely, Chris Bendon, AICP Community Development Director City of Aspen 130 SOUTH GALENA STREET • AviN, COLORAw 81611-1975 • NnNi 970.920.5000 � F.ax 970,9205197 www. aspengov.com NxAed - R—xd "qa r • I R �i`�I• EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (the "Agreement") is made and entered into this _ day of June, 2012, by and between 707 Holding Company, LLC, a Colorado limited liability company ("70711C"), the address of which is 728 East Francis Street, Aspen, CO 81611, and the Young Family Trust Dated October 15, 1999 ("Young"), whose address is P.O. Box 133, Aspen, CO 81612, hereinafter referred to as "707 Gibson Owners," and William B. Wiener, Jr., hereinafter referred to as "Wiener," whose address is 333 Texas Street, Suite 2290, Shreveport, LA 71101. RECITALS A. 707 Gibson Owners are the owners as tenants in common of the property located in the City of Aspen, Colorado, described in Exhibit A hereto ("707 Gibson Owners' Property"). B. Wiener is the owner of the property located in the City of Aspen, Colorado, described in Exhibit B hereto ("Wiener's Property"). C. In 2000, Wiener constructed a single-family residence (the "Existing Improvements") on Wiener's Property. At that time, Wiener owned a portion of 707 Gibson Owners' Property (the "Wiener Sliver"), obtained from a predecessor in title to 707 Gibson Owners, Douglas and Barbara Sheffer (the "Sheffers"), described in a Special Warranty Deed recorded at Reception No. 435725 of the records of Pitkin County, Colorado, (the "Sheffer Sliver"). D. Wiener had obtained the Sheffer Sliver described in the preceding paragraph from the Sheffers in exchange for the Wiener Sliver he conveyed to the Sheffers by Special Warranty Deed recorded at Reception No. 435726, in the records of Pitkin County, Colorado. E. The exchange of deeds described in Recitals C and D above was undertaken in connection with a lot line adjustment between the two adjacent properties described therein. F. The lot line adjustment described in Recital E above was the subject of a lawsuit, Heath, et al v. Wiener, et al, Pitkin County District Court Case No. 2002CV5, wherein the validity of the lot line adjustment was at issue. G. In that lawsuit, the trial court issued its Findings of Fact, Conclusions of Law and Analysis, and Judgment, dated November 28, 2008 (the "Court Judgment"), wherein it declared the conveyances described in Recitals C and D above to be null and void. The Court ordered the parties to execute and record deeds re -conveying to each other the property purportedly exchanged by the conveyances described in Recitals C and D. 1 BUS RE`4364104 4 0 0 %r' NOW H. In compliance with the Court Judgment, Wiener re -conveyed the Sheffer Sliver to the 707 Gibson Owners, as the successor in interest to the Sheffers and the 707 Gibson Owners re -conveyed the Wiener Sliver to Wiener. As a result of this conveyance, a portion of Wiener Existing Improvements are now located on a portion of the 707 Gibson Owners' Property. 1. This Agreement is entered into for the purpose of the 707 Gibson Owners conveying an easement to Wiener for the improvements located on 707 Gibson Owners' property within the area described in the Easement granted herein, on the terms and conditions described below. NOW THEREFORE, for the sum of TEN DOLLARS ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, 707 Gibson Owners have this date bargained, conveyed, transferred, and granted to Wiener, his successors, assigns, and personal representatives, an easement as described in Exhibit C (the "Easement") over a portion of the 707 Gibson Owners' Property as described in Exhibit C for the benefit of and appurtenant to Wiener's Property described in Exhibit B. on the following terms and conditions. 1. PURPOSE AND SCOPE OF EASEMENT. The exclusive use and purpose of the Easement is for the continued existence of the Existing Improvements within the Easement Area for permitted uses associated with a single-family dwelling as defined and permitted by the provisions of the City of Aspen Municipal Code, as it may be amended from time to time. Wiener's rights hereunder may not be expanded to serve more than one single-family dwelling and accessory uses. Additionally, Wiener shall have the right to use the Easement Area for the limited purpose of servicing, maintaining and repairing Wiener's Existing Improvements. 2. RESTRICTIONS ON USE. Neither the 707 Gibson Owners nor Wiener shall have any right to construct a fence on the Easement or to erect any barriers or gates thereon. The low landscape walls, other landscaping and improvements, that now exist on 707 Gibson Owners' land are permitted to remain. No trash, debris, construction materials, bicycles, equipment or other personal property shall be stored, nor shall any temporary structures be located, within the Easement. 3. EASEMENT APPURTENANT. The Easement shall be an easement appurtenant to Wiener's Property and shall inure to the benefit of Wiener and his heirs, successors, assigns, and personal representatives, subject to the conditions and limitations set forth herein. 4. GRANT WITHOUT WARRANTIES — SUBORDINATION. This Easement grant is without warranty of title and without warranties as to fitness for use or any other warranty, and is subject to all prior encumbrances, easements, restrictions and reservations affecting 707 Gibson Owners' Property; provided, however, that within sixty (60) days from the date hereof, 707 Gibson Owners shall obtain from the holder of any 2 BUS_REA354104.4 and all prior liens on 707 Gibson Owners' Property and deliver to Wiener a subordination of any and all such prior liens to the Easement herein granted. Payment of the consideration for this Easement may be withheld by Wiener pending delivery of said subordinations. 5. EXCLUSIVE EASEMENT. Wiener's use of the Easement shall be exclusive so long as the Existing Improvements remain in place and unless the Easement is subsequently terminated, 707 Gibson Owners' and 707 Gibson Owners' heirs, successors, assigns, personal representatives, guests, and invitees shall have no right to the use of the Easement (except as otherwise provided herein) or to interfere with Wiener's rights of use of the Easement. 6. MAINTENANCE. Wiener shall be responsible for maintaining the Existing Improvements so as to keep said improvements in a good condition and state of repair, and for making such repairs to and/or replacements of the Existing Improvements as may be necessary or appropriate from time to time so as to preserve and protect the structural integrity and appearance of the Existing Improvements. Any such work that may be performed by Wiener within the Easement shall be accomplished in a good and workmanlike manner at Wiener's sole cost and expense, and Wiener shall be responsible for promptly restoring the surface of the Easement to its existing condition. 7. COSTS. All costs associated with the Easement and the Existing Improvements located thereon including without limitation surveying, construction, repair, and maintenance shall be borne by Wiener. In addition, upon execution of this Easement, Wiener will reimburse to 707 Holding Company, LLC, the sum of $38,414.00 incurred by 707 Holding Company, LLC subsequent to the entry of the Court Judgment in efforts to negotiate a settlement among the parties to the lawsuit and the Heath litigation. 8. MECHANIC'S LIENS. Wiener does hereby agree to defend, indemnify and hold 707 Gibson Owners harmless from all claims for damages or liens arising from the use, surveying, construction, repair, and maintenance by Wiener of the Easement and any improvements therein. Wiener shall not suffer or permit any mechanic's lien, or other lien, to be filed against 707 Gibson Owners' Property, or any part thereof, by reason of work, labor, services, or materials supplied, or claimed to have been supplied, to Wiener and/or its contractors or agents, or anyone claiming under Wiener and/or its contractors or agents. If any such mechanic's lien, or other lien, shall at any time be filed against 707 Gibson Owners' Property, then Wiener shall cause the same to be discharged of record within thirty (30) days of the date that Wiener receives notice of the same, and if Wiener shall fail to discharge such lien within such period, then 707 Gibson Owners may at their option discharge the same by paying the amount claimed to be due without inquiry into the validity of the same and Wiener shall thereupon reimburse 707 Gibson Owners for any payments so made, together with any costs incurred in such discharge, including reasonable attorneys fees. 3 BUS RFA364104.4 0 9. INDEMNITY. Wiener shall protect, save harmless, defend, and indemnify 707 Gibson Owners from and against any and all liability, loss, damage, claim, demand, suit, action, proceeding, penalty, fine, cost, and expense of whatsoever nature, including court costs and reasonable and necessary attorneys fees, arising out of personal injury to or death of persons whomsoever, or loss or destruction of or damage to property whatsoever, where such personal injury, death, loss, destruction, or damage arise because of or are caused by and in direct connection with the occupation or use of the Easement by Wiener and/or its contractors or agents, their officers, employees, servants, and/or licensees. 10. INSURANCE. Wiener shall at all times hold and maintain adequate comprehensive liability insurance on his property and the Easement in the minimum amount of $2,000,000.00 and the 707 Gibson Owners shall be named as a co -insureds with respect to such insurance policy. 11. RESTRICTION ON FAR INCREASE. If Wiener remodels or rebuilds the Existing Improvements on Wiener's Property or redevelops and makes improvements on Wiener's Property within the Easement granted herein, in no event shall: (i) the square footage of any improvements, enclosed or unenclosed, within the Easement be increased from the square footage of the Existing Improvements within the Easement; (ii) Wiener effect an increase in the floor area or floor area ratio, as defined by the City of Aspen Municipal Code then in effect, applicable to or available for use on the 707 Gibson Owners' Property; or (ii) Wiener take any action or build any subsequent improvements that would result in a nonconformity on the 707 Gibson Owners' Property. In order to ensure compliance with this Section 11, Wiener shall provide 707 Gibson Owners with a copy of all final plans for any improvements on Wiener's Property for approval prior to submission of any application for a building permit for such improvements, which approval shall not be unreasonably withheld or delayed. Such plans shall depict the square footage of any proposed improvements within the Easement, and shall clearly demonstrate any changes in square floor area or floor area ratio, and any changes in the building footprint (including decks and overhangs) or setbacks, from the Existing Improvements. Wiener shall provide 707 Gibson Owners with thirty (30) days written notice of the completion of any such improvements in the Easement, during which time 707 Gibson Owners shall have the right to inspect the Improvements to confirm compliance with this Section 11. 12_ NOTICE. Any notices required or permitted to be sent pursuant to this Agreement shall be in writing and shall be deemed served, given, delivered and received upon the earlier of: (a) when personally received by the party to whom it is addressed; or (b) three (3) business days after being deposited with the United States Postal Service, registered or certified mail, return receipt requested; or (c) one business day after being deposited with a commercial overnight courier for overnight delivery with all required charges prepaid. All notices sent pursuant to clause (b) or (c) above shall be addressed to the party to be served at the appropriate address, as set forth below. In addition, all notices shall be sent via email to the party to be served at the appropriate email address, 4 SUS RE•.4364104.4 `mw `.e as set forth below. Any party may change its address for the purpose of this Section by giving written notice of such change to all other party in the manner provided for in this Section: Young: YOUNG FAMILY TRUST U/AlD OCTOBER 15, 1999 Attn: Dennis Young P.O. Box 133 Aspen, CO 81612 Email: dennisCavoung.biz 707HC: 707 HOLDING COMPANY, LLC Attn: William D. Budinger 728 E. Francis Street Aspen, CO 81611 Email: wdb(a-)rodel.com and zb(c-vzbaird.net With copy to: SHERMAN & HOWARD, L.L.C. Attn: B. Joseph Krabacher 201 N. Mill Street, Suite 201 Aspen CO 81611 Email: ikrabacher(wsah.coin GRANTEE: William B. Wiener, Jr., 333 Texas Street, Suite 2290, Shreveport, LA 71101 With copy to: AUSTn:, PEIRCE & SMITH, P.C. Attn: Thomas F. Smith 600 East Hopkins, Ste 205 Aspen, CO 81611 Email. tsmith anus-pc.com 13. MISCELLANEOUS. This Agreement, the Exhibits hereto and all other documents to be delivered hereunder or annexed hereto contain the entire agreement between the parties relating to the transaction contemplated herein and all other prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein. No change, alteration, amendment, modification or waiver of any of the terms or provisions hereof shall be valid unless the same be in writing and signed by the parties. The parties expressly agree that the terms and conditions hereof and the subsequent performance hereunder shall be construed in accordance with and controlled by the laws of the State of Colorado. The parties expressly acknowledge that each was represented by legal counsel and that this Agreement and the documents executed pursuant hereto were executed and delivered after consultation with their respective legal counsel and after having been advised of their rights. Descriptive headings are for convenience only and shall not control or affect the meaning or 5 BUS RE,4364104.4 `r Noe construction of any provision of this Agreement. This Agreement may be executed in a number of identical counterparts, and a telecopy or facsimile transmission shall be binding on the party or parties whose signatures appear thereon. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one amendment. In the event any one or more of the provisions contained in this Agreement or in any other instrument referred to herein shall, for any reason, be held to be invalid, illegal, or unenforceable, such illegality, invalidity or unenforceability shall not affect any other provisions of this Agreement. The recitals are incorporated herein by this reference. If any suit or action shall be instituted to enforce the rights of a party arising under this Agreement, the prevailing party shall be entitled to recover from the opposing party reasonable attorneys' fees, expert witness fees and any other costs. This Agreement has been freely negotiated by the parties hereto with the advice and assistance of counsel. Accordingly, this Agreement shall not be construed more strictly against any party hereto, regardless of which party drafted all or part of this Agreement. A determination that any provision herein is invalid or unenforceable shall not affect the validity of any of the remaining provisions or in any way render them unenforceable. [Remainder of this page is intentionally blank -signatures appear on following pages ] 31 BUS RE'A364104.4 • 0 lkft►' IN WITNESS WHEREOF, 707 Gibson Owners and Wiener have executed this Easement Agreement on the date set forth.above. GRANTOR: 707 Holding Company, LLC a Colorado limited liability company William D. Budinger, Manager STATE OF COLORADO ) )SS' COUNTY OF PITKIN } On this , day of , 2012, before me personally appeared William D. Budinger as Manager 707 Holding Company, LLC, a Colorado limited liability company, Grantor, known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written. My commission expires: Notary Public [Remainder of this page is intentionally blank -signatures appear on following pages ] 7 BUS KE`•.4364I04 4 u IN WITNESS WHEREOF, 707 Gibson Owners and Wiener have executed this Easement Agreement on the date set forth above. IIn STATE OF COLORADO } )SS. COUNTY OF PITKIN } GRANTOR: The Young Family Trust u/a/d October 15, 1999 Dennis Young, its Co -Trustee The Young Family Trust u/a/d October 15, 1999 Andrea Young, its Co -Trustee On this , day of , 2012, before me personally appeared by Dennis Young and Andrea Young as Co -Trustees of The Young Family Trust u/a/d October 15, 1999, Grantor, known to be the persons described in and who executed the foregoing instrument, and acknowledged that he/she executed the same as his/her free act and deed. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written. My commission expires: Notary Public (Remainder of this page is intentionally blank -signatures appear on following pages ] 8 BUS ItF4364104.4 • • `r+ r.0/ IN WITNESS WHEREOF, 707 Gibson Owners and Wiener have executed this Easement Agreement on the date set forth above. GRANTEE: William B. Wiener, Jr. STATE OF COLORADO ) ) SS. COUNTY OF PITKIN ) On this , day of , 2012, before me personally appeared William B. Wiener, Jr., as Wiener, known to be the person described in and who executed the foregoing instrument, and acknowledged that he executed the same as his free act and deed. IN TESTIMONY WHEREOF, i have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written. My commission expires: 0 BUS REA364104.4 Notary Public Exhibit A (707 Gibson Owners' Property — Legal Description) 10 BUS RFA364104.4 Exhibit B (Wiener's Property — Legal Description) 11 BUS RF-4364104A 0 0 NW ..v Exhibit C (Easement) 12 BUS_R&4364104.4 � wry • *,,, O'w ZOtt i _ __- lh' 041�v lva — a. 6%47 'gam 4 * coxfsw�- f � 14 cL 1%--� refAeiP- QdJ4" 49-4A4 ci�cluty 6T � rn�aa%ts �� E 0 *Amp" • 0 Lod- kW, VW*A 4;:> b(V4f-- N -N*4 bA 5 a te( tol- lf2 $Fie, row :�WA6S W- twlo_ 0 %ftw N%wof ll r • V 4 Vle4Ae4,J• C�4,� f►11h�5 A65 44 we •tom iioa 6�(Ael(c$- alias ajiA*-xc cdt lep+ t CNN cAw, c v,A, rtd ar "C,s f�kW does 4Uave 164M4- ;Is p6KIC6.(� Jolt k6rc 60*6 i 66•�ize /Liw�i k b Z d- tip- << -mot.. Gt^ C- vw af-- As c ro�i— %W CAhud lic'm - Apr( of aw coiact cPWu6cw4 ulat e&& d4 omm io Oki 4r,4�- • �'�— l�s � cowew�- �pli�bl� ? tk� d� OL U rf °4% e� CA J HINESE ligw.fr I airy'/ 7,.• I - • '0 aw f&411,1- - ---------- jo A1511 1 OAA454 ---Df4APf Wt. T A t LJI P Z CD w � 3 J O � 3w �i w _ LL Q LL CL JJ 3© W °LO � 47! i t � it i� t�� •�: /` U I V)cr _CL W y NO 0 Z ! f•'s � 1 4 / t ` 1 r a I g 3 � y � 1 � I (~ n I 7 I i 1 • LE t, •! .l � 11 ��i i iEy !"� ! • i • • 0, I.A )r Ix MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: John Worcester, City Attorney FROM: Chris Bendon, Community Development Director AM RE: Appeal of Land Use Code interpretation — Floor Area DATE: May 23, 2011 (continued from May 9`h UPDATE: At the May 9`h meeting, Council concluded the discussion by asking staff to update the code interpretation to reflect the former text prior to recent changes. A copy of the revised interpretation is attached and has been provided to the appellant. In summary, the revised interpretation confirms that the floor area of a portion of a building is attributed to the lot on which it is physically situated. Council also asked staff to reach -out to the owner of Hill House Lot #1 to see if an amicable resolution to the lot boundary issue was possible. Staff called and sent letters to the owner of Lot #1. Given Bill Weiner's description of the prior mediation, staff is not optimistic that the parties will want a staff -facilitated meeting. Staff will update Council at the May 23`d meeting. Mitch Haas is researching potential easement methods or other methods of curing the encroachment issues that do not require city action or change to the property's rights. He will update Council at the meeting. An administrative fix in an attempt to resolve the neighbor's disagreement, while appealing, may have some legal obstacles. The interpretation is for all properties in town and not for a specific parcel. The owner of Lot 41 is apparently a joint owner of the Hill House Condominiums, but the City does not have an application or representation from the owner and they have not been party to the proceedings. So, taking action to provide a fix represents potential jurisdiction and due process issues. Furthermore, the City does not have a process for land owners to swap development rights in recognition of encroaching structures. So, there could be a challenge of City Council's authority in addition to acting on an application that has not been submitted. Staff sympathizes with the parties affected by the situation but does not feel this leads to re- interpreting the Land Use Code. It is apparent that the parties are potentially diametrically opposed and staff is especially cautious of any City action that may affect development rights of these parcels without the active participation and approval of the property owners. The issue before Council is the integrity of the code interpretation, not a request to resolve the neighbor's disagreement. Staff is recommending the interpretation be upheld. • ! ,too, low Note — No changes to the prior memo below SUMMARY: One of the jobs assigned to the Community Development Director is to provide interpretations of the text of the City's Land Use Code. This is a formal process in which an applicant requests the Director provide a written interpretation and affords an applicant the right to appeal the decision to the City Council. There are three criteria upon which the City Council has to decide an appeal of a code interpretation. Based solely upon the record established by the original decision, the City Council shall consider whether; 1) There was a denial of due process; 2) The administrative body exceeded its jurisdiction; or, 3) The administrative body abused its discretion. These standards ask whether the Director's actions were ethical. The City's code states that the decision or determination made by the administrative officer shall not be reversed or modified unless there is a positive finding on one of these criteria. (Please see Exhibit D for the entire code section.) Staff believes the Director's interpretation was rendered ethically and that an abuse of discretion did not occur. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. If the Council finds the Director abused his discretion in rending this interpretation, the Council may remand the interpretation back to the Director for reconsideration (with or without direction) or may reverse the interpretation in a manner that cures the abuse. CODE INTERPRETATIONVS. CODE AMENDMENT: The question in a code interpretation is what does the code say? On occasion, applicants seek a code interpretation because they believe the code should say something else. The code amendment process is the proper venue for the question what should the code say? BACKGROUND: Some background on the properties is helpful in understanding the code interpretation. Lots 1 and 2 of the Hill House condominiums appear on a condo plat as two distinct separate fee simple parcels. These parcels in fact are owned in a condominium form of ownership possibly requiring the condominium association be the applicant for any land use application. The 707 Associates property is a fee simple property separate from the Hill House Condominiums. Several years ago a lot line adjustment plat was submitted by the owner of Hill House Lot 2 and the owner of 707. This is an administrative process allowing staff to approve minor 2 0%NW 0 changes to lot boundaries. The application was accepted and eventually approved by the City Community Development Department. This moved the lot boundary between these two properties. The owner of Lot 2 then expanded his house by using land recently acquired from the 707 parcel. The owner of Hill House Lot 1 later sued the owner of Lot 2 over the lot line adjustment and prevailed in court. The Court determined that the City should not have accepted the lot line application as it did not include the owner of Hill House Lot 1 and approval or consent from the Hill House home owners association was not represented. ki &� o • t4 i tea ll+�c boF�2 ,o &i A�. r—� Figure 1: Hill House Condominiums The District Court vacated the lot line adjustment plat returning the lot boundaries to where they were previously, The recently expanded house on Lot 2 now straddles the lot line and is partially on the 707 property. This obviously presents some ownership and physical trespass issues between the owners of Lot 2 and 707. This also presents a floor area question as a portion of the Lot 2 house falls on the 707 parcel. INTERPRETATION: This interpretation addresses how Floor Area is attributed when a structure spans a lot boundary. The language of the code under discussion is as follows: D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building or portion thereof. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior -mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) [emphasis added] Staff s interpretation of the language finds that the floor area of a structure is attributed to the parcel upon which it physically exists. In this case, the portion of the Lot 2 house that physically exists on the 707 parcel is counted as floor area for the 707 parcel. The interpretation provided by staff is attached as Exhibit A. The appellant would like the above language to result in the City assessing the floor area of the encroachment to the parcel upon which the majority of the encroaching house exists, not where it physically rests. Alternatively, the appellant requested some administrative swap of development rights. A more detailed explanation from the appellant is in Exhibits B & C. STANDARDS OF REVIEW: 1. Due Process — With respect to due process, staff of the Community Development Department responded to the interpretation request in accordance with the procedure outlined in the Land Use Code. There were some preliminary conversations, as typical with any discussion of the meaning of the Land Use Code. A written interpretation was provided after staff received a formal written request in a compete application, Some delay in issuing the interpretation occurred to accommodate the applicant's request to discuss the matter with staff. As required by the Land Use Code, the appellant was provided notice of tonight's meeting via registered mail and all other affected parties were noticed by publication in the newspaper, as required. Staff believes that proper due process has been provided to the appellant. The appellant is not claiming a procedural defect with the interpretation. 2. Jurisdiction —The Director's jurisdiction to interpret the Land Use Code is established in Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the jurisdiction, authority, and duties allocated to the Community Development Director. One of the Director's duties outlined in the Chapter reads: "To render interpretations of this Title or the boundaries of the Official Zone District Map pursuant to Chapter 26.306, " Staff believes this language is clear and it does not appear that the applicant is questioning this provision of the code or the Director's jurisdiction. 3. Discretion — With respect to abuse of the Director's discretion, the Director did need to use his discretion in rendering the interpretation. The question is whether the Director abused that discretion. The appellant is claiming the Director abused his discretion. 2 [Note: it's helpful to read the staff interpretation, the letter requesting the interpretation, and the appeal letter to provide context to the following discussion — Exhibits A, B. & C.] A decision may be considered an abuse of discretion if the decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority. In other words, when a decision is so baseless that it can only be described as random or made-up. The staff interpretation highlights the first sentence of the Floor Area section of the code — Floor area shall be attributed to the lot or parcel upon which it is developed. The appellant's argument pivots on the word 'developed,' implying that this term is in the past tense and floor area should be attributed to the parcel upon which it was developed. Staff s interpretation explains that floor area depends on where a structure is developed — in the present tense. The appellant highlights this point on page three of the appeal letter: Mr. Haas states, "The code actually says that the floor area shall be attributed to the lot or parcel upon which it is developed. When Mr. Weiner built that addition to his home, all of the floor area was developed on what was then considered his lot/parcel. Due to a Court decision, a portion of Mr. Wiener's house now `rests' on the adjacent property, but it was not developed on that property." [emphasis added by staff] Staff believes the calculation of floor area is a matter of what is and not about what was. The amount of floor area built on these parcels used to be something other than what it is today. The court returning the lot line to its previous location changed the situation. And, the floor area of the parcels today is what it is today, not what it was in the past. The appellant takes issue with staff using the word "rests," stating that using this word was an abuse of discretion. "Rests" was used to help clarify the meaning of the provision in question. Staff used "where it rests" as an equivalent to "where it is developed." The Director considered the meaning of the phrase "where it is developed" within the context of the City's Land Use Code and more specifically within the context of the section of the code that explains how floor area is measured. This section includes the phrase "the building or portion thereof' indicating that a fraction of a building can be measured as floor area. These phrases are cited in the interpretation as foundation. Staff believes "Where it rests" is a suitable approximation of "where it is developed" that addresses any ambiguity of tense. Staff could have also used where it exists, where it sits, where it lies, or where it is situated to illustrate `where it is developed" as a physical position in the present tense. Staff believes this provides a basis in reason. The appeal letter speaks to adversity these neighbors have experienced, the history of the lot line. etc. Again while staff is sympathetic to the situation, staff does not believe the meaning 5 • • 14✓ „1W of the Land Use Code is affected or should be changed through interpretation to accommodate a specific situation. if anything, basing a decision on sympathy for this situation could be considered an abuse of discretion. Likewise, the appeal letter goes on about other odd situations that could occur with buildings partially in alleyways, etc. This is fundamentally an argument about how the code should say something different than it does today. While staff may agree, an interpretation of the code is about what the code actually says, not what it should say. There can be simultaneous agreement on what a code says and that it should be changed. But basing an interpretation on a desire to change the code is tantamount to amending the code through interpretation — something staff believes would be improper and potentially in excess of the Director's jurisdiction. Lastly, the appeal letter raises a new issue — that the interpretation effects a change in the development rights of these two properties. It does not. This is a strange argument in that the applicant originally requested the Director decree a transfer of development rights between the properties by virtue of a structure spanning the lot line. The Director's interpretation provided that an intervening structure does not change the development rights of the properties. The interpretation that the development rights are not affected by a building encroachment generated the appeal. As this is a new issue, staff does not believe the interpretation represents an abuse of discretion on this point. RECOMMENDATION: The background of this situation is unfortunate and staff sympathizes with the parties. Fundamentally, staff sees this as an issue of trespass between two neighbors. This is relatively common in Aspen and a matter for the neighbors to resolve_ There are existing systems to resolve the financial impact of the trespass such as the City's TDR program or a simple monetary exchange. As one of the properties is owned as a condominium, the resolution may require the consent of the condominium association. To the extent the property owners cannot agree on a resolution it could become a civil matter for the Courts to resolve. To the extent that a resolution requires a land use application be submitted to the City, the City will require all affected parties be active applicants — namely the owners of Hill House Lot 1, Hill House Lot 2, and 707 Associates. Furthermore, staff does not support a code amendment to resolve trespass issues. Staff believes private agreements are more effective at resolving these issues than government could ever be. But, to the extent that the code is amended in the future to permit an exchange of development rights between adjacent properties, staff strongly believes the City should require all affected parties be active applicants to ensure rights are observed and due process is provided to the parties affected by such an application. 31 0 • VOW 14EW Staff believes the Director's interpretation was rendered ethically and that an abuse of discretion did not occur. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. If the Council finds the Director abused his discretion in rending this interpretation, the Council may remand the interpretation back to the Director for reconsideration (with or without direction) or may reverse the interpretation in a manner that cures the abuse. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all motions should be made in the positive) "I move to approve Resolution No. 5t, Series of 2011, affirming the Community Development Director's interpretation of the Land Use Code regarding floor area." CURRENT ATTACHMENTS: Exhibit F — Updated and Re -Issued Interpretation date May 12, 2011. PRIOR ATTACHMENTS: Exhibit A — Interpretation dated March 9, 2011 Exhibit B — Request for Code interpretation from Mitch Haas dated February 1, 2011 Exhibit C — Appeal letter from Mitch Haas dated March 28, 2011 Exhibit D — Land Use Code Section Regarding Appeals Exhibit E — Affidavit of notice 7 0 0 %W ..r► CITY OF ASPEN t�x k' 6L f7 COMMUNITY DEVELOPMENT DEPARTMENT LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTION: EFFECTIVE DATE: WRITTEN BY: ! APPROVED BY: City of Aspen 26.575.020.D — Floor Area for a building spanning two lots. March 4, 2011 Amended and re -issued May 12, 2011 Chris Bendon, Community Development Director Chris Bendon, Community Development Director Section 26.575.020 of the City's Land Use Code describes the methodology for measuring various aspects of development within the City. You have requested an interpretation regarding a house that is built partially onto an adjoining lot and the way the City calculates Floor Area in such a situation. Subsection D describes the way floor area is measured and reads as follows: D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it Is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building or portion thereof. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior -mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, c.apboards or other similar exterior veneer treatments. (Also, see setbacks.) [emphasis added] There are several additional subsections (2-1 S) under "measuring floor area," but none of them speak to a building spanning a lot boundary. According to the cited language, the floor area of a structure is attributed to the parcel on which it rests. If only a portion of a structure rests on a property, then that portion is attributed to that Iot. This does present some logistical issues for measuring the improvements. I suggest you use the property boundary as an "exterior wall" to determine the portion of the building lying on each lot. In your letter, you cite various historical issues with the properties owned by Young and Weiner. I understand the ramifications the court decision to vacate the lot line adjustment had on the properties. While I'm sympathetic to the situation, it doesn't effect a change in the meaning of the Land Use Code, Your core request seems to be for the City to permit a swap of development rights between these two properties. While I understand the request, there is no code provision or process that permits such a swap. You also cite various theoretical situations that could occur regarding buildings built partially within rights -of - way. Again, while I understand your points, I don't see how these potential situations change the meaning of the Land Use Code. My approach to the boundary issue is to encourage all owners (including the other condominium owner of the Hill House Condominiums property) to resolve the lot boundary and/or encroachment issue in a manner that all owners can agree to. This may or may not result in a boundary adjustment application to the City or other land use requests. I realize this may be overly simplistic and that all parties seeing eye -to -eye on this issue is a challenge. May 12, 2011 - Amended with the addition of the following. The Code was recently amended and the former code is no longer in effect. The floor area section of the code, Section 26.575.020.A, stated: 1. General. In measuring floor area for the purposes of calculating floor area ratio and allowable floor area, there shall be included that floor area within the surrounding exterior walls (measured from their exterior surface) of a building, or portion thereof. When measuring from exterior walls, the veneer and all exterior treatments shall be included. When calculating areas with stair, each floor -to -floor staircase is counted only once. [emphasis added] The code went on to specify calculation methods for particular aspects of a building, such as garages, decks, and so on. The language did not directly address a structure spanning a lot boundary. The definition of Floor Area Ratio was and is "the total floor area of all structures on a lot divided by the lot area." [emphasis added] It appears that the purpose of measuring floor area and floor area ratio is to determine how much development is on a particular lot_ It also appears that the code foreshadowed the need to calculate a portion of a building. Because the is no specific direction for measuring a building spanning a Lot boundary and the calculation of floor area ratio includes the floor area of all structures and portions of structures on a lot, it appears that the portion of a building that is physically situated on a lot is counted as floor area and floor area ratio for that lot. • • 1%W *.,r LIMITATIONS OF DECISION: This interpretation relies on the City's Land Use Code currently in effect, which is subject to change. This interpretation shall be valid until such time as the Land Use Code is amended. This interpretation does not create a vested right. An interpretation of legislation that has been repealed and has no current applicability does not create a legal or vested right. This interpretation will be maintained in the official record of all 'interpretations as provided under Section 26.3 06.0 10 E. APPEAL OF DECISION: Any person who has requested an interpretation may 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 within fourteen (14) days of the date of the decision being appealed. Failure to file such notice of appeal within the prescribed time shall. constitute a waiver of any rights to appeal the decision. Note: The original issuance of this interpretation was delayed beyond the normal 15-day response at the request of the applicant to allow additional time for discussion between the applicant, the Community Development Director, and the City Attorney. EXHIBITS: A — Request for Code Interpretation from Mitch Haas. Parcel Detail • • Page 1 oftaw 1410 3 Pitkin County Assessor Parcel Detail Information Assessor Property Search I Assessor Subset Query I Assessor Sales Search Clerk & Recorder Reception Search I Treasurer Tax Search Search Basic Building Characteristics I Value Summary Parcel Detail I Value Detail I Sales Detail ; Residential/Commercial Improvement Detail Land Detail Photographs Tax Area Account Number Parcel Number 2010 Mill Levy 001 11 R008923 273707345001 IF 26.708 Owner Name and Address HEATH JESSE B JR & HETTA S 606 N SPRING ST ASPEN, CO 81611 Legal Description Subdivision: HILL HOUSE Unit: B Location Physical Address: 606 SPRING ST ASPEN Subdivision: HILL HOUSE Land Acres: Land S Ft: 0 2011 Property Value Summary Actual Value Assessed Value Land• OIL 01 Improvements: 1,449,4001L 115,3 70 Total: 1,449,400 70 115,3 ii Sale Date: http://wwtiv.pitkinassessor.org/assessor!parcel.asp?AccountNumber=R008923 5/10/2011 Parcel Detail • Page 2 of 3 r.► � I� Sale Price: � Basic Building Characteristics Number of Residential 1 Buildings: Number of Comm/Ind 0 Buildings: Residential Building Occurrence 0 Characteristics FINISHED GARAGE: b75 TOTAL LIVING AREA: 2,880 Total Heated Area: 2,880 Property Class: DUPLEX CONDO IMPS Actual Year Built: 1978 Effective Year Built: 1985 Bedr00ms: 3 Baths: 3 Quality of Construction: 11DUP CONDO 12 Exterior Wall: STONE VEN Interior Wall: DRYWALL Floor: BASE Heat Type: ELE.B/B Heating Fuel: GAS Roof Cover: BUILT-UP Roof Structure: IFSHED Ne' hborhood: 17NORTH EAST ASPEN Super Nbhd.-JIEAST ASPEN Top of Page Assessor Database Search ODtions Pitkin County Home Page The Pitkin County Assessor's Offices make every effort to collect and maintain accurate data. However, Good Turns Software and the Pitkin County Assessor's Offices are unable to warrant any of the hnp://www.pitkinassessor.org/assessor,/parcel.asp?AccountNumber—R008923 5/10/201 l Parcel Detail • Page 1 of 3 Pitkin County Assessor Parcel Detail Information Assessor Property Search J Assessor Subset Query J Assessor Sales Search Clerk & Recorder Reception Search I Treasurer Tax Search Search Basic Building Characteristics I Value Summary Parcel Detail J Value Detail J Sales Detail J Residential/Commercial Improvement Detail Land Detail Photographs Tax Are I Account Number Parcel Number 112010 Mill Levy 001 J1 R008922 773707345002 26.708 Owner Name and Address MCGOWIN FLORENCE M 991 ISLAND PARK DR MEMPHIS, TN 38103-5838 Legal Description Subdivision: HILL HOUSE Unit: A Location Physical Address: IF655 GIBSON AVE ASPEN Subdivision: HILL HOUSE Land Acres: Land S Ft: 0 2011 Property Value Summary Land: Actual 0F I Assessed Value 0 Improvements: 1,715,600 136,560 Total: 1,715,600 136,560 Sale Date: 1/13/1993 http://www.pitkinassessor.org/assessor/parcel.asp?AccountNumber=R008922 5/10/2011 Parcel Detail • • Page 2 of 3 �.r err IL Sale Price: 11835,000 J Basic Building Characteristics Number of, Residential I Buildings: Number of Comm/Ind 0 Buildings: Residential Building Occurrence 0 Characteristics FINISHED 1570 TOTAL LIVING AREA: 2,880 Total Heated Area: I2,880 Property Class: IDUPLEX CONDO IMPS Actual Year Built: 1978 Effective Year Built: 1980 Bedrooms: 3 Baths: 3 Quality of Construction: JEDUP CONDO 12 Exterior Wall: ISTONE VEN Interior Wall: IBASE Floor: BASE Heat Ty e: FORCED AIR Heating Fuel: JIGAS Roof Cover: BUILT-UP Roof Structure: JISHED Neighborhood: JINORTH EAST ASPEN Su er Nbad: EAST ASPEN Top of Page Assessor Database Search Options Pitkin County Home Page The Pitkin County Assessor's Offices make every effort to collect and maintain accurate data. However, Good Turns Software and the Pitkin County Assessor's Offices are unable to warrant any of the http://www.pitkinassessor.org/assessor/parcel.asp?AccountNumber=R008922 5/10/2011 • • V#AW VAMW ,May 10, 2011 THE CRY OF ASPEN Jesse and Hetta Heath 606 North Spring Street Aspen, CO 81611 Re: Bill Weiner's Property Dear Mr. and Mrs. Heath: The City of Aspen is reviewing a request for an interpretation of the City's Land Use Code regarding your neighbor's property, Bill Weiner. His house straddles a lot boundary with his neighbor to the east, Mr. Young. This encroachment has created multiple issues between them including a potential disagreement on how floor area should be calculated. I understand from talking with Mr. Weiner that some mediation took placa between him and you with the intent of resolving this issue. City Council has asked me to discuss the matter with you to see if there is any potential for the City to facilitate a resolution. Our conversation can remain confidential at your request. ' Please let me know if you have an interest in talking with me about this matter. ,I'd like to know prior to May 23rd-as I need to update City Council. Sin e ly, is BP Community Development Director City of Aspen chris.bendon(a'-ci.assM.co.us 970429-2765 Copy: Mitch Haas, Haas Land Planning 130 SOUTH GALENA S-2EV COEDPADO 81611-1975 - PNoNE 970.920.5000 FAx 970.M.5197 www. aspengovxom r"Im m Recy "r.r� • %of • Pagge 1 of 1 ..i Chris Bendon From: HettaHeath@aol.com Sent: Monday, May 23, 2011 10:02 AM To: Chris Bendon Subject: Heath letter Memo to: Chris From: Jesse & Hetta Heath Re: Letter dated May 10, 2011 Date: May 22, 2011 Sent via: Email & US Postal service Chris. we were trave'ing when I received your phone message which was forwarded to my mobile phone. When we returned to Houston on Friday (May 2C) we found your letter dated May 10 which had been forwarded from Aspen. As for the boundary issue with the Youngs, Bill Weiner caused this problem himself when he exchanged jointly owned land, without our consent as required by the documents, for some of Young's property adjacent on the East. The legal case of Heath & Uhlhorr (owners of Hill House Condo unit A and unit B) against Bill Weiner in regard to this matter went to a court trial, where the judge held that the land swap between Weiner and Young to be invalid and ordered that it be undone Before the law suit was filed, we put the City on notice that Weiner had no authority to do the land exchange, file an amended Plat, etc. Tne Heaths and Uhlhorns had put Weiner on notice of our position from the beginning and put the City on notice at that time. Although the City was aware of our position, both Weiner and the City chose to ignore our position and the City allowed Bill Weiner to proceed with his huge addition. It is our experience that Bill Weiner has consistently attempted to maneuver things to his personal benefit We have received no notice from Bill Weiner of this effort to appeal to Aspen City Council for relief from his unauthorized lard exchange which was designed to allow him to build such a large addition to his house using commonly owned land and FAR, again without our consent. We have told Weiner that are willing to work with him to resolve the boundary issues along with some other common issues that need to be resolved, but he has been unwilling to resolve the other issues. We would be glad to discuss this matter with you on the phone or after we return to Aspen next week. Hetta and Jesse Heath mobile phone: 970-948-8732 Hetta Heath, GRI Owner/Broker Hetta Heath & Associates 606 North Spring Street Aspen, Colorado 81611 Phone: (970) 925-1570 Fax: (970) 920-3052 Mobile: (970) 948-8732 Email secured by Check Point 5/23/2011 • New . Page 1 of 1 Chris Bendon From: HettaHeath@aol.com Sent: Monday, May 23, 2011 10:02 AM To: Chris Bendon Subject: Heath letter Memo to: Chris From: Jesse & Hetta Heath Re: Letter dated May 10, 2011 Date: May 22, 2011 Sent via: Email & US Postal service Chris, we were traveling when t received your phone message which was forwarded to my mobile phone. When we returned to Houston on Friday (May 20) we found your letter dated May 10 which had been forwarded from Aspen. As for the boundary issue with the Youngs. Bill Weiner caused this problem himself when he exchanged jointly owned land, without our consent as required by the documents, for some of Young's property adjacent on the East. The legal case of Heath & Uhlhorn (owners of Hill House Condo unit A and unit B) against Bill Weiner in regard to this matter went to a court trial, where the judge held that the land swap between Weiner and Young to be invalid and ordered that it be undone. Before the law suit was fled, we put the City on notice that Weiner had no authority to do the land exchange, file an amended Plat. etc. The Heaths and Uhlhcrns had put Weiner on notice of our position from the beginning and put the City on notice at that time. Although the City was aware of our position, both Weiner and the City chose to ignore our position and the City allowed Bill Weiner to proceed with his huge addition. It is our experience that Bill Weiner has consistently attempted to maneuver things to his personal benefit. We have received no notice from Bill Weiner of this effort to appeal to Aspen City Council for relief from his unauthorized land exchange which was designed to allow him to build such a large addition to his house using commonly owned land and FAR, again without our consent. We have told Weiner that are willing to work with him to resolve the boundary issues along with some other common issues that need to be resolved, but he has been unwilling to resolve the other issues We would be glad to discuss this matter with you on the phone or after we return to Aspen next week Hetta and Jesse Heath mobile phone: 970-948-8732 Hetta Heath, GRI Owner/Broker Hetta Heath & Associates 606 North Spring Street Aspen, Colorado 81611 Phone (970) 925-1570 Fax: (970) 920-3052 Mobile: (970) 948-8732 Email secured by Check Point 5I23'2011 0 %no 0 Page 1 of 1 IVAW Chris Bendon From: HettaHeath@aol.com Sent: Monday, May 23, 2011 10 02 AM To: Chris Bendon Subject: Heath letter Memo to: Chris From: Jesse & Hetta Heath Re: Letter dated May 10, 2011 Date: May 22, 2011 Sent via: Email & US Postal service Chris, we were traveling when I received your phone message which was forwarded to my mobile phone. When we returned to Houston on Friday (May 20) we found your letter dated May 10 which had been forwarded from Aspen. As for the boundary issue with the Youngs, Bill Weiner caused this problem himself when he exchanged jointly owned land, without our consent as required by the documents, for some of Young's property adjacent on the East. The legal case of Heath & Uhlhorn (owners of Hill House Condo unit A and unit B) against Bill Weiner in regard to this matter went to a court trial, where the judge held that the land swap between Weiner and Young to be invalid and ordered that it be undone. Before the law suit was filed, we put the City on notice that Weiner had no authority to do the land exchange, file an amended Plat, etc. The Heaths and Uhlhorns had put Weiner on notice of our position from the beginning and put the City on notice at that time. Although the City was aware of our position, both Weiner and the City chose to ignore our position and the City allowed Bill Weiner to proceed with his huge addition. It is our experience that Bill Weiner has consistently attempted to maneuver things to his personal benefit. We have received no notice front Bill Weiner of this effort to appeal to Aspen City Council for relief from his unauthorized land exchange which was designed to allow him to build such a large addition to his house using commonly owned land and FAR, again without our consent. We have told Weiner that are willing to work with him to resolve the boundary issues along with some other common issues that need to be resolved, but he has been unwilling to resolve the other issues. We would be glad to discuss this matter with you on the phone or after we return to Aspen next week. Hetta and Jesse Heath mobile phone: 970-948-8732 Hetta Heath, GRI Owner/Broker Hetta Heath & Associates 606 North Spring Street Aspen, Colorado 81611 Phone: (970) 925-1570 Fax: (970) 920-3052 Mobile. (970) 948-8732 Email secured by Check Point 5!23!2011 . Page I of 1 1940 Chris Bendon From: HettaHeath@aol.com Sent: Monday, May 23, 2011 10:02 AM To: Chris Bendon Subject: Heath letter Memo to. Chris From: Jesse & Hetta Heath Re, letter dated May 10, 2011 Date: May 22, 2011 Sent via, Email & US Postal service Chris, we were traveling when I received your phone message which was forwarded to my mobile phone. When we returned to Houston on Friday (May 20) we found your letter dated May 10 which had been forwarded from Aspen. As for the boundary issue with the Youngs, Bill Weiner caused this problem himself when he exchanged jointly owned land, without our consent as required by the documents, for some of Young's property adjacent on the East. The legal case of Heath & Uhlhorn (owners of Hill House Condo unit A and unit B) against Bill Weiner in regard to this matter went to a court trial, where the judge held that the land swap between Weiner and Young to be invalid and ordered that it be undone. Before the law suit was filed, we put the City on notice that Weiner had no authority to do the land exchange, file an amended Plat, etc. The Heaths and Uhlhorns had put Weiner on notice of our position from the beginning and put the City on notice at that time. Although the City was aware of our position, both Weiner and the City chose to ignore our position and the City allowed Bill Weiner to proceed with his huge addition. It is our experience that Bill Weiner has consistently attempted to maneuver things to his personal benefit. We have received no notice from Bill Weiner of this effort to appeal to Aspen City Council for relief from his unauthorized land exchange which was designed to allow him to build such a large addition to his house using commonly owned land and FAR, again without our consent. We have told Weiner that are willing to work with him to resolve the boundary issues along with some other common issues that need to be resolved, but he has been unwilling to resolve the other issues. We would be glad to discuss this matter with you on the phone or after we return to Aspen next week Hetta and Jesse Heath mobile phone: 970-948-8732 Hetta Heath, GRI Owner/ Broker Hetta Heath & Associates 606 North Spring Street Aspen, Colorado 81611 Phone: (970) 925-1570 Fax: (970) 920-3052 Mobile: (970) 948-8732 Email secured by Check Point 5/23/2011 0 • %W NW a,. 1W_ The Cllt Ot Aspen Memorandum 011TIMMsIsonin TO: Mayor and Members of Council FROM: John P. Worcester DATE: May 9, 2011 RE: Appeal of Code Interpretation On your agenda for your May 9, 2011, meeting is an appeal from Code Interpretations authored by the Community Development Department. This memo is to clarify your role as the "decision - making body hearing the appeal." Section 26.316.030 of the Aspen Land Use Code sets forth the applicable standard of review that Council should follow in these matters and the actions available to Council following the hearings on the appeals. Standard of Review: Section 26.316.030(E) reads as follows: Standard of review. Unless otherwise specifically stated in this title, the decision -making body authorized to hear the appeal [City Council] shall decide the appeal based solely upon the record established by the body from which the appeal is taken [Community Development Director]. A decision or determination shall not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. The Land Use Code does not define the terms: "a denial of due process", "exceeded its jurisdiction," or "abused its discretion." Court cases, however, have helped define these terms as follows and may be used by Council in its deliberation of the appeal: A denial of due process may be found if some procedural irregularity is determined to have occurred that affected a significant right of the appellant, or the administrative body otherwise acted in violation of the appellant's constitutional or statutory rights. Ad Hoc Executive Committee of Medical Staff of Memorial Hospital v Runyan, 716 P. 2d 465 (Colo. 1986.) 0 NW A decision may be considered to be an abuse of discretion if the "decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority." Ross v Fire and Police Pension Assn., 713 P.2d 1304 (Colo. 1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959). A decision may be considered to be in excess of jurisdiction if the decision being appealed from "is grounded in a misconstruction or misapplication of the law," City of Colorado Springs v Givan, 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not within the authority of the administrative body to make. City of Colorado Springs v SecureCare Self Storage, Inc., 10 A3d 1244 (Colo. 2000). Actions by Council following Appeal Hearing: Section 26.316.030(F) reads as follows: Action by the decision -making body hearing the appeal. The decision -making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by resolution. All appeals shall be public meetings [not public hearings]. If you have any questions regarding the process, please let me know. cc: Community Development Director City Manager t P W -saved : 5 /3111-appeal s. doc U • 7K C N � #may 0 iCaO G� N N IL coo CV W a� V s � �- �311Nn a o i m r ru tv ►n M CO m m rq rLi o- Q Z o'c w c Q � V SU Z E lh leC v 61 fin 0 ru CO 1� 6r7 m m m m ru ro intatzzza r` �.. �9 o- z W � � J C 4 � U U a ■ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ■ Pnnt your name and address on the reverse so that we can return the Card to you. ■ Attach this card to the hack of the rmailpiece, or on the front H space permits. 1. Article Addressed to: c4a � �, n-5 A. Skpv t T ❑ Addressee D. ` Received by'( ted AWne) C. ,[�te�alivery l� r � y1l D. to delivery address dh%rwd from Rom 17 ❑ Yes N YES, enter delivery address below: ❑ No ❑ 13VM M" o Ra*Wred ❑ Return Receipt for Merchrtdtsa ❑ Insured Mail ❑ C.O.D. 4 dad Del ❑ F66 . Restr1 N� (Extra ) Yes 2. ArddeNumber 91 7108 21.33 3934 3805 8273 {rfwmfw frnrn "vim AW) PS Form 3811, February 2004 Domestic Retum Receipt 10v-5e5-02-W1540 ■ Complete items 1, 2, and 3. Also complete Item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Micle Addressed to: r A Slgnd re f X lI� ❑ Agent ❑ Addressee 8.VCdWelrwy by n J C. Dat Delivery D. address 17 ❑ Yes It YES. enter del ivek address bel : ❑ No 1 1111110 3. SerYkM Type Mail ❑ Expreee Mau ❑ Raptstare 1 ❑ Aetum Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. ReSUtCtod DetN P (Extra Fee) ❑ y is 2. Article Number °1 7108 2133 3934 3805 8280 (rnvrsier horn service labeQ PS form 3811, February 2004 Domestic Return Receipt 102SR5-W-,4t540 0 W AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: Aspen, CO SCHEDUL • D t BLIC HEARING DATE: 25: -)o1L STATE OF COLORADO i 1 ss. County of Pitkin ) L56 c (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that 1 have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: i/ Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (1 5) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form wlas obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the _ day of . 20 , to and including the date and time of the public hearing. A photograph of'the posted notice (Sign) is attached hereto. ?vlailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearin�_..4 copy: vfthe oi,�ner_v and governmental agencies so noticed is attached hereto. (Continued on next page) Rezoning or text amendment: Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. �G Signature The fo egoing "Affidavit of Notice'' was cknowled ed before me this < < day of , 20 I l , by FM C RE: Ape" OP�TFD USE CODE INTERPRETATION • FLOOR AREA NOTICE IS NERefly GIVEN that an appeal of an inierPrelabon of the City of AsEr, -- use Code Will be Considered by the CCity Of Aspen City Cola On APril 25. 2011. The me M t @9m at 5 p.rn. in City Hall Council Chambers. 130 So. Galena Stleat; Aspen. CO $1611 The interpreg111 Wes issued on March g, 2011, and regards Section 26.57s.p O - Few Area. The appeal is submitted by Mitch Haas of Naas Land Plamirlg on bwlaa of Den MS Young of 707 Gibson Avenue. Aspen, CO $161 I. The intarpietahon darihad that It" floor area of a RM1011e, Or portion lheraot, is attributed 10 the parcel upon Which a phyaiceey rags. The i n pets ar"the appeal is available for public inspection at the Clly OI Mae. i30 Sao �Ga�lleyiv Strl D°Partmant: City Pen. CO 81611. For flriler 1f d rrrd6,,,, CeraiCt pall Barrdoh at The Cily of Aspen C0r vnity Davelo m t WITNESS MY HAND AND OFFICIAL SEAL e My commission expires: Q� S r N y Public �2y P U B!!(��, JP,��P� • o Q- �, r' C Department. (9701 e20-5090 grat ATTACHMENTS AS APPLICABLE. Sr4.TE of�c°� +is'.�IOrr�,.M. E2fls. �. :AE PUBLICATION PPub'iahad in the Aspen Times Weely Orr April to, ,PH OF THE POSTED NOTICE (SIGN) «751'0) E OWNERS AND GOVERNMENT AGENGIES NOTIED F CERTICICATION OF MINERAL ESTATE OWNERS NOTICE Aa r r vq,lx.ED BY C.R.S. §24-65.5-103.3 • • Naw VA/ HAAS LAND PLANNING, LLG March 28, 2011 RF 4ED Mayor Mick Ireland and Aspen City Council 4w 0 2011 c/o Mr. Chris Bendon, Director C : ASPEN Aspen Community Development Department EVELOP'E' 130 South Galena Street Aspen, CO 81611 RE: Appeal from an Interpretation of Title Regarding the Floor Area Allocation of a Home Encroaching onto a Neighboring Property Dear Council: The applicant is hereby appealing the Interpretation of Title made by the Community Development Director, pursuant to Section 26.306.010(F) of the Land Use Code. Section 26.316.020(B)(1) of the Code gives City Council the authority to hear and decide an appeal to an interpretation of title at a public meeting. The appeal was filed within fourteen (14) days of the date of the Interpretation, as required by Section 26.316.030(A) of the Code. The Community Development Director rendered his decision on March 9, 2011, and the notice of appeal was filed on March 23, 2011. This is a follow up to the notice of appeal in order to provide the necessary background information for Council to make an informed decision on this matter. The Interpretation of Title involved clarifying the definitions of "Floor Area" and "Floor Area Ratio (FAR)." The clarification was sought as a means to determine which lot is assessed the Floor Area of a home (or portion thereof) that encroaches onto a neighboring lot. The applicant, Young Family Trust 501/o Int., owns a home at 707 Gibson Avenue in the City of Aspen. William B. Wiener owns the next -door property to the west, which is known as Hill House, Unit C, and is contiguous to Mr. Young's home. As a result of a lawsuit that nullified a previously approved lot line adjustment, somewhere in the neighborhood of 200 square feet of Floor Area from within Mr. Wiener's home now encroaches onto Mr. Young's property. The Community Development Director (CDD) found that this floor area "is attributed to the parcel on which it now rests." We believe the CDD has made an error and in doing so has, pursuant to Code Section 26.316.030(E), "abused his discretion." The applicant would like to either remodel or tear down and rebuild his existing home at some time in the future, and needs to know the allowable Floor Area effective for his lot. Mr. Young can calculate his lot area pursuant to the Code and determine the resulting allowable Floor Area, but needs to know the effect of his neighbor's encroaching structure. • 201 N. MILLSTREET, SUITE 108 • ASPEN, COLORADO • 81611 - PHONE: PHONE: (970) 925-7819 • FAX: (970) 925-7395 - 0 The following timeline of the events provide necessary background for understanding the current situation: Mr. Wiener bought his property in 1998 with the notion of expanding the existing home. • Mr. Wiener conferred with the Community Development Department about the expansion, and it was suggested by City staff that he consider a lot line adjustment with his neighbor. • The previous owner of the Young Family Trust lot and Mr. Wiener subsequently agreed to a lot line adjustment, swapping an even amount of lot area. This adjustment was duly approved by the City • The house expansion was then completed within Mr. Weiner's adjusted lot boundaries and in conformance with all applicable City regulations. • The Young Family Trust purchased their "adjusted" lot. • A suit was later filed by another neighbor of Mr. Wiener's, namely the owner of the other Hill House condominium unit to the West. • The Court sided with the plaintiff and voided the City -approved lot line adjustment. Because of this subsequent court decision voiding the lot line adjustment, a portion of Mr. Wiener's home (somewhere around 200 square feet of FAR) now encroaches onto Mr. Young's lot, although at the time of the expansion that land area was considered to be Mr. Wiener's property. As such, the expansion was developed pursuant to a duly issued building permit, in conformance with City approvals and zoning requirements, and the floor area was developed on what was considered, at the time of the development, Mr. Wiener's lot. As a result of the court's decision, Mr. Wiener cannot rectify the current encroachment issue by seeking a new lot line adjustment, and some of the Floor Area he developed on his parcel now resides on his neighbor's lot. N r. Wiener developed the Floor Area in question on his own parcel. Section 26.575.020 of the Code describes how the City measures various aspects of development. Subsection D describes the way floor area is measured and reads as follows: D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there .shall be included all areas within the surrounding exterior walls of the building or portion thereof. When measuring from the exterior walls, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior N r.I face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior - mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.)[emphasis added] This Code Section is relevant to the question posed in the applicant's request for an interpretation. In his Interpretation, the CDD says the following: "According to the cited language, the floor area of a structure is attributed to the parcel on which it rests. "[emphasis added] The Code does not, in fact, say that. The Code actually says that the floor area shall be attributed to the lot or parcel upon which it is "developed." When Mr. Wiener built the addition to his home, all of the Floor Area was developed on what was then considered his lot/parcel. Due to a Court decision, a portion of Mr. Wiener's house now "rests" on the adjacent property, but it was not "developed" on that property. Since the approximately 200 square feet of Floor Area that now rests on the applicant's lot was not developed on the applicant's lot, said floor area should be attributed to Mr. Wiener's lot (and not the applicant's). There is another fundamental problem with the Interpretation as it relates to this particular set of circumstances: it is contrary to the City's codified land use regulations governing lot line adjustments. Code Section 26.480.030(A)(1)(d) provides that lot line adjustments are exempt from the subdivision requirements of the Code if "it is demonstrated that the lot line adjustment will not affect development rights, including any increase in FAR... " When Mr. Wiener received approval from the City for his lot line adjustment, neither of the lots' development rights were affected. As an effect of the Court's decision, another lot line adjustment occurred. The above -cited Code section makes it clear that a lot line adjustment cannot affect development rights, including any increase in FAR. The CDD's Interpretation holding that the portion of Mr. Wiener's home that now rests on the applicant's lot counts against the applicant's allowable FAR affects the development rights of both parcels: it effectively increases Mr. Wiener's development rights and proportionately decreases the applicant's development rights. Therefore, the Interpretation is contrary to the regulations applicable to a lot line adjustment, and a lot line adjustment is exactly the effect of the Court decision. Although it is the applicant's position that, in this particular situation, the wording of the Code supports applying the now encroaching Floor Area to Mr. Wiener's lot, there is an underlying problem with this Code section in general. It seems illogical and patently unfair to a property owner who already has been burdened --- by his/her neighbor's home encroaching onto his/her property -- to have that encroaching Floor Area count against what he/she is allowed to build. It would be more logical and appropriate to assess the FAR of the encroaching building to the owner of the building (the encroacher), and not to the property owner whose lot is being encroached upon, through no fault of his/her own. Penalizing the person whose lot is being encroached 3 upon by taking away some of that person's allowable Floor Area, in turn, serves to reward the encroacher by allowing more Floor Area on the encroacher's lot. That is, if some portion of an encroacher's home does not count against his/her allowable Floor Area, then the encroacher would, by default, be rewarded for his/her error by now being allowed that much (i.e., amount of encroaching Floor Area) more Floor Area for additional development elsewhere within his/her lot. To allow such a result makes no sense, and has the potential to create unnecessary litigation amongst neighbors, with the possibility of the City being dragged into such litigation. By the same token, what if a house encroaches into City Right -of --Way? Does the owner of that house not have to count the encroaching space against his/her allowable FAR? Under such a scenario, the encroaching homeowner would then get to again build that amount of Floor Area encroaching into the City ROW within his/her lot for a "conforming" house that actually contains more Floor Area than allowed. That does not sound like something the City of Aspen would look favorably upon, and it would actually serve to encourage the "Oops, well it's already there now" approach to construction. While usually the result of an error, encroaching structures are relatively common throughout the City of Aspen, particularly with historic buildings and outbuildings. The applicant can point to at least four other encroaching structures without even giving it much thought, or actually reviewing the City parcel maps. With an interpretation holding that an owner of a non -historic property loses allowablelotherwise available FAR due to the next door neighbor's encroaching structure, the owner of such non -historic property -- - who is neither under designation nor Historic Preservation Commission (HPC) purview --- would be encouraged to simply demolish the encroaching portion of the structure in order to "get his/her floor area back." After all, it is more often than not the property itself that is historically designated and not necessarily the individual structures, leaving the portion of the structure encroaching onto a non -historic lot at risk. Surely, such partial demolitions are not something the City would want to encourage or see happen. Instead, the owner and user of the Floor Area should have the Floor Area/space they rightfully own count against what they are entitled to build, and not against their neighbor's allowable FAR. The wrongdoer, even when inadvertent, should not be rewarded, nor should an innocent bystander be penalized. In the Interpretation, the CDD suggests that all of the owners (including the other Hill House Condominium owner) resolve the lot boundary and/or encroachment issue in a manner that all can agree to. Although in some situations where a home encroaches onto a neighboring lot the parties involved could consider a lot line adjustment to solve the problem, that is not so in this instance. Mr. Wiener has already received a lot line adjustment from the City which was reversed by the Court's decision on the lawsuit filed by the other owner. In fact, the lot line adjustment that was approved by the City and later undone/re-adjusted by the Court's order actually caused the encroachment. 4 � rrI In closing, given that the language of the Code specifically states that "Floor Area shall be attributed to the lot or parcel upon which it is developed," and not upon which it "rests," the applicant's property should not be assessed that portion of Mr. Wiener's home that now rests on his lot. When said floor area was developed it was on Mr. Wiener's lot. Furthermore, the Interpretation runs contrary to the lot line adjustment regulations of the Code by affecting the development rights of both of these lots. The applicant respectfully requests that the City Council reverse the CDD's Interpretation and attribute all of the Floor Area of Mr. Wiener's home to the lot that it was developed on (Mr. Wiener's). Furthermore, Council may wish to go even further and make the finding that the Floor Area from any encroaching structure be attributed to the encroacher, and not against the property that it encroaches upon. To hold differently may open a proverbial "can of worms", and create more issues and disputes among property owners. However, this finding is not necessary in order to reverse the Interpretation as it applies to this specific instance. If you should have any questions or require any additional information, please do not hesitate to contact me. Yours truly, Haas Land Planning, LLC 7 Owii*/Manager cc: John Worcester and Jim True, City Attorneys 5 • err on HAAS LAND PLANNING, LLC February 1, 2011 RF 'IVED14 Of 201' Mr. Chris Bendon, Director ASPEN Aspen Community Development Department Cr 130 South Galena Street aEVELOPIVEh Aspen, CO 81611 RE: Request for an Interpretation of Title Regarding the Floor Area of a Home Encroaching onto a Neighboring Lot Dear Chris: This letter is a request for a formal Interpretation of Title, pursuant to Section 26.306.010 of the Land Use Code, clarifying the definitions of Floor Area and Floor Area Ratio (FAR). The clarification is sought as a means of determining which lot is assessed the floor area of a home that encroaches onto a neighboring lot. The applicant, Dennis Young, owns a home at 707 Gibson Avenue in the City of Aspen. William B. Wiener owns the property known as Hill House, Unit C, which is contiguous to Mr. Young's home. Approximately 250 square feet of Floor Area from within Mr. Wiener's home encroaches onto Mr. Young's property. The applicant would like to either remodel or tear down and rebuild his existing home at some time in the future, and needs to know the allowable floor area effective for his lot. Mr. Young can calculate his lot area pursuant to the Code and determine the resulting allowable floor area, but remains unclear as to the effect of his neighbor's encroaching structure. While spawned by a specific instance, this request for interpretation is meant to be general in nature and not limited to the case of Mr. Wiener's house and Mr. Young's lot. In 1998, Mr. Wiener bought his property with the notion of expanding the then existing home. Mr. Wiener conferred with the Aspen Community Development Department about the expansion, and it was suggested that he consider a lot line adjustment with his neighbor. The previous owner of Mr. Young's lot and Mr. Wiener subsequently agreed to a lot line adjustment, and said adjustment was approved by the City. The house expansion was then completed within Mr. Wiener's adjusted lot boundaries. A suit was later filed by Mr. Wiener's neighbor who owns the other Hill House condominium unit. The Court sided with the plaintiff and voided the City - approved lot line adjustment. Because of this court judgment, a portion of Mr. Wiener's home now encroaches onto Mr. Young's lot, although at the time of the expansion that land area was considered to be Mr. Wiener's property. As such, the encroachment was developed pursuant to a duly issued building permit and in conformance with City approvals and zoning requirements. Further, due to the court's decision, Mr. Weiner cannot rectify the current encroachment issue by adjusting the lot line. • 201 N. MILL STREET, SUITE 108 • ASPEN, COLORADO 8161 1 • PHONE: (970) 925-7819 • FAX: (970) 925-7395 • RECEIVED CEIVED �. �. =�0 j ZOi1 CITY OF ASPEN COMMUNITY DMOPMENT With the background having been provided above, the code sections requiring interpretation can now be explained. Floor area is defined in the City of Aspen Municipal Code (the "Code") in Section 26.104.100 and further outlined in Section 26.575.020(A). Per Section 26.104.100, Floor Area is defined as, "the sum total of the gross horizontal areas of each story of the building measured from the exterior walls from the center line of the party walls." Similarly, Floor Area Ratio (FAR) is defined as, "the total floor area of all structures on a lot divided by the lot area. " Section 26.575.020(A)(1), Calculations and Measurements further explains that, "in measuring floor area for the purposes of calculating floor area ratio and allowable door area, there shall be included that floor area within the surrounding exterior walls (measured from their exterior surface) of a building or a portion thereof nen measuring from exterior walls, the veneer and all exterior treatments shall be included... " However, the Code does not contain any specific text that addresses the floor area of a home that encroaches onto a neighboring lot, especially when the encroachment is not enclosed within exterior walls on all sides. Does the portion of the floor area that encroaches, count against the lot on which it sits or against the encroaching homeowner's lot? If it is to count against the lot on which it sits, which we feel would be an erroneous interpretation, how/to what wall is it measured? It seems illogical and patently unfair to the property owner who already has been burdened --- by his/her neighbor's home encroaching onto his/her property --- to have that encroaching floor area count against what he/she is allowed to build. And how would one actually calculate the amount of floor area that is encroaching onto the neighboring property when the floor area is measured to the outside walls? In order to determine the amount of floor area that encroaches onto Mr. Young's lot, we would need to draw an imaginary wall along the property line and calculate the floor area on either side of this imaginary wall. It would be more logical and appropriate to assess the FAR of the encroaching building to the owner of the building (the encroacher), and not the property owner whose lot is being encroached upon, through no fault of his own. Penalizing the person whose lot is being encroached upon by taking away some of that person's allowable floor area, in tam, serves to reward the encroacher by allowing more floor area on the encroacher's lot. That is, if some portion of an encroacher's home does not count against his/her allowable floor area, then the encroacher would, by default, be rewarded for his/her error by now being allowed that much (i.e., amount of encroaching floor area) more floor area for additional development elsewhere within his/her lot. To allow such a result makes no sense, and has the potential to create unnecessary litigation amongst neighbors, with the possibility of the City being dragged into such litigation. By the same token, what if a house encroaches into City Right -of -Way? Does the owner of that house not have to count the encroaching space against his/her allowable FAR? And since it is in the City right-of-way, does that portion of the structure's floor area not count against anyone's limit? Under such a scenario, the encroaching homeowner would then get to again build that amount of floor area encroaching into the City ROW within his/her lot for a "conforming" house that actually contains more floor area than allowed. That does not sound like something the City of Aspen would look favorably upon, and it would actually serve to encourage the "Oops, well it's already there now" approach to construction. FA While usually the result of an error, encroaching structures are relatively common throughout the City of Aspen, particularly with historic buildings and outbuildings. The applicant can point to several other encroaching structures without even giving it much thought, or actually reviewing the City parcel maps. With an interpretation holding that an owner of a non -historic property loses allowable/otherwise available FAR due to the next door neighbor's encroaching structure, the owner of such non -historic property -- who is neither under designation nor Historic Preservation Commission (HPQ purview --- would be encouraged to simply demolish the encroaching portion of the structure in order to "get his/her floor area back." After all, it is more often than not the property itself that is historically designated and not necessarily the individual structures, leaving at risk that portion of a structure encroaching onto a non -historic lot. Surely, such partial demolitions are not something the City would want to encourage or see happen. Instead, the owner and user of the floor area should have the floor area/space they rightfully own count against what they are entitled to build, and not against their neighbor's allowable FAR. The wrongdoer, even when inadvertent, should not be rewarded. Although in some situations where a home encroaches onto a neighboring lot the parties involved could consider a lot line adjustment to solve the problem, that is not so in this or many other instances. In fact, the lot line adjustment that was approved by the City and later undone by the Court's order actually caused the encroachment. In closing, given the ambiguous and open -to -interpretation language of the Code as it might apply to the situations described above coupled with the likelihood of issues that could arise from a different interpretation, it is respectfully requested that a formal interpretation be provided confirming that the floor area from that portion of a structure encroaching onto a neighboring property counts against the lot of the encroacher and not against the property that it encroaches on. To hold differently is to unnecessarily open a proverbial can of worms, issues and disputes. If you should have any questions or require any additional information, please do not hesitate to contact me. Yours truly, Haas Land Planning, LLC Itc Haas Owner/Manager cc: John Worcester and Jim True, City Attorneys c:/My DocurnmtsCiry ApphealiansBig Wiener -Dennis Young/Code Interpretation Request 3 CAS AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070 AND CHAPTER 26.306 ASPEN LAND USE CODE ADDRESS OF PROPERTY: Aspen, CO STATE OF COLORADO ) ss. County of Pitkin ) I 24,,qgA(A 5 r (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) or Section 26306.010 (E) of the Aspen Land Use Code in the following manner: `I Publication pf'notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached hereto. Publication of notice: By the publication in the legal notice section of an official Paper or a paper of general circulation in the City of Aspen no later than fifteen (15) days after an Interpretation has been rendered. A copy of the publication is attached hereto. '�'-A cC' �, Signature The foregoing "Affidavit of Notice' was acknowled ed before me this ZZ day of;� , 20LL, by III n RE: CITY 0 A N LAND USE CODE WfERPRETATION NOrICE is wR68y G NEN that an interpretation of the Cily of Aspen Lend Use Code was issued on March & 2011, ppsrdmpp Section 25-575.020. D -Ficor Arse. The ntsrprsTaeorr was repuesled by Mitch Naas of Haas LsnO Planning on benall of Dennis Young of 707 Glbeo n Avenue. Aspen. CO 81811. The interpretation clarifies that the Ilcoi area of a structee. or portion thateof, is attributed to the pared upon which it physically rests. The �nlawetatan is available for pub4ic irKpec ion at the City of Aspen Community Development Dopartnient; City Nall; 130 So. Galena Street; Aspen. CO 81611. For further i rdormirbon, OtirMact Chns 8endon at the City of Aspen Community Devalopment Department. (9701 920-5090 or at cf 1rie.OcrldorlOrA. asnerz coo- s onalopr1sr11 Dieew wI a published in the Aspen runes WN1rfy on parch 2D, 2011. (829016741 WITNESS MY HAND AND OFFICIAL SEAL F mmissionexpires:y Public _nY P t. ATTACHMENTS: COPY OF THE PUBLICATION U�,1:tiGf\ M. : fit= CF my cow Eoes 0V2VNi4 ,-) THE CITY of ASPEN Land Use Application Determination of Completeness Date: March 28, 2011 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number and name assigned to this property is 0017.201 LASLU —707 Gibson Ave. The planner assigned to this case is Chris Bendon. ❑ Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review hearings will be scheduled until all of the submission contents listed above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the land use application. Your Land Use Application is complete: If there are not missing items listed above, then your application has been deemed complete to begin the land use review process. 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. 3Cfe ou, r Phel eputy Director City of Aspen, mmunity Development Departm nt For Office Use Only: Qualifying Applications: Mineral Rights Notice Required SPA PUD COWOP Yes N0719— Subdivision {creating more than ] additional lot) GMQS Allotments Residential Affordable Housing Yes No x Commercial E.P.F. HAAS LAND PLANNING, LLC RECEIVED March 22, 2011 ; . 9 c r 1 0 J N Mayor Mick Ireland and Aspen City Council CITY 0;1- r. V c/o Mr. Chris Bendon, Director COMVX;Y OE `t; ►' "r_NT Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 RE: Appeal from an Interpretation of Title Regarding the Floor Area of a Home Encroaching onto a Neighboring Lot Dear Council: This letter serves as a notice of appeal of an Interpretation of Title made by the Community Development Director, pursuant to Section 26.306.010(F) of the Land Use Code. Section 26.316.020(B)(1) of the Code gives City Council the authority to hear and decide an appeal to an interpretation of title at a public meeting. This notice of appeal is being filed within fourteen (14) days of the date of the decision being appealed, as required by Section 26.316.030(A) of the Code. The Community Development Director rendered his decision on March 9, 2011. The Interpretation of Title involved clarifying the definitions of Floor Area and Floor Area Ratio (FAR). The clarification was sought as a means to determine which lot is assessed the floor area of a home that encroaches onto a neighboring lot. The applicant, Young Family Trust 50% Int., owns a home at 707 Gibson Avenue in the City of Aspen. William B. Wiener owns the property known as Hill House, Unit C, which is contiguous to Mr. Young's home. As a result of a lawsuit that nullified a previously approved lot line adjustment, somewhere around 200 square feet of Floor Area from within Mr. Wiener's home now encroaches onto Mr. Young's property. The Community Development Director (CDD) found that this floor area is attributed to the parcel on which it now rests. We believe the CDD has made an error, and pursuant to Code Section 26.316.030(E), for lack of a better term has "abused his discretion." A letter further explaining our position will be submitted within the next few days. Yours truly, Haas Land Planning, LLC Mit Haas Owner/Manager • 201 N. MILL STREET, SUITE 108 ASPEN, COLORADO • 8161 1 • PHONE: (970) 925.7819 FAX: (970) 925-7395 - 0 Ift. VAW RECEIVED CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of City of Aspen Development Application Fees CITY Or CITY OF ASPEN (hereinafter CITY) and Haas Land Planning, LLC on behalf of Young Family Trust 50% Int. (hereinafter APPLICANT) AGREE AS FOLLOWS: I. APPLICANT has submitted to CITY an application for Appeal of an Interpretation of Title, (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of 2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of S 735 which is for three (3) hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of 5245.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN By: Chris Bendon Community Development Director APPLICA By: Haas Land F04pning, LLC on behalf of*dung Family Trust 50% Int. %urtGFkMit_Y�Tozv-n 5M i rr. �o HS LAND PLANNING, LLC 201 N. MILL STREET SUITE 108 ASPEN, CO 81611 C4�a) 925-fit 9 • CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT ` e LAND USE CODE INTERPRETATION JURISDICTION: APPLICABLE CODE SECTION: EFFECTIVE DATE: City of Aspen 26.575.020.D — Floor Area for a building spanning two lots. March 9. 2011 WRITTEN BY: r, Chris Bendon, Community Development Director APPROVED BY: Chris Bendon, Community Development Director Section 26.575.020 of the City's Land Use Code describes the methodology for measuring various aspects of development within the City. You have requested an interpretation regarding a house that is built partially onto an adjoining lot and the way the City calculates Floor Area in such a situation. Subsection D describes the way floor area is measured and reads as follows: Now, D. Measuring Floor Area. In measuring floor areas for floor area ratio and allowable floor area, the following applies: 1. General. Floor area shall be attributed to the lot or parcel upon which it is developed. In measuring a building for the purposes of calculating floor area ratio and allowable floor area, there shall be included all areas within the surrounding exterior walls of the building or portion thereof. When measuring from the exterior wails, the measurement shall be taken from the exterior face of framing, exterior face of structural block, exterior face of straw bale, or similar exterior surface of the nominal structure excluding sheathing, vapor barrier, weatherproofing membrane, exterior -mounted insulation systems, and excluding all exterior veneer and surface treatments such as stone, stucco, bricks, shingles, clapboards or other similar exterior veneer treatments. (Also, see setbacks.) [emphasis added] There are several additional subsections (2-15) under "measuring floor area." but none of them speak to a building spanning a lot boundary. According to the cited language, the floor area of a structure is attributed to the parcel on which it rests. if only a portion of a structure rests on a property, then that portion is attributed to that lot. This does present some logistical issues for measuring the improvements_ I suggest you use the property boundary as an "exterior wall" to determine the portion of the building lying, on each lot. ,%W In your letter, you cite various historical issues -vith the properties owned by Young and *No Weiner. 1 understand the ramifications the court decision to vacate the lot line adjustment had on the properties. While I'm sympathetic to the situation, it doesn't effect a change in the meaning of the Land Use Code Your core request seems to be for the City to permit a swap of development rights between these two properties. While I understand the request. there is no code provision or process that permits such a swap. You also cite various theoretical situations that could occur regarding buildings built partially within rights -of - way. Again.. while I understand your points, I don't see how these potential situations change the meaning of the Land Use Code. My approach to the boundary issue is to encourage all owners (including the other condominium owner of the Hill House Condominiums property) to resolve the lot boundary and/or encroachment issue in a manner that all owners can agree to. This may or may not result in a boundary adjustment application to the City or other land use requests. I realize this may be overly simplistic and that all parties seeing eye -to -eye on this issue is a challenge. LIMITATIONS OF DECISION: This interpretation relies on the City's Land Use Code currently in effect, which is subject to change. This interpretation shall be valid until such time as the Land Use Code is amended. This interpretation does not create a vested right. This interpretation will be maintained in the official record of all interpretations as provided under Section 26.306.010.E. APPEAL OF DECISION: Any person who has requested an interpretation may 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 within fourteen (14) days of the date of the decision being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights to appeal the decision. Note: The issuance of this interpretation was delayed beyond the normal 15-day response at the request of the applicant to allow additional time for discussion between the applicant, the Community Development Director, and the City Attorney. EXHIBITS: A — Request for Code Interpretation from Mitch Haas. *00 • • Page 1 of 1 Memo to: Chris From: Jesse & Hetta Heath Re: Letter dated May 10, 2011 Date: May 22, 2011 Sent via: Email & US Postal service Chris, we were traveling when I received your phone message which was forwarded to my mobile phone. When we returned to Houston on Friday (May 20) we found your letter dated May 10 which had been forwarded from Aspen. As for the boundary issue with the Youngs, Bill Weiner caused this problem himself when he exchanged jointly owned land, without our consent as required by the documents, for some of Young's property adjacent on the East. The legal case of Heath & Uhlhom (owners of Hill House Condo unit A and unit B) against Bill Weiner in regard to this matter went to a court trial, where the judge held that the land swap between Weiner and Young to be invalid and ordered that it be undone. Before the law suit was filed, we put the City on notice that Weiner had no authority to do the land exchange, file an amended Plat, etc. The Heaths and Uhlhoms had put Weiner on notice of our position from the beginning and put the City on notice at that time. Although the City was aware of our position, both Weiner and the City chose to ignore our position and the City allowed Bill Weiner to proceed with his huge addition. It is our experience that Bill Weiner has consistently attempted to maneuver things to his personal benefit. We have received no notice from Bill Weiner of this effort to appeal to Aspen City Council for relief from his unauthorized land exchange which was designed to allow him to build such a large addition to his house using commonly owned land and FAR, again without our consent. We have told Weiner that are willing to work with him to resolve the boundary issues along with some other common issues that need to be resolved, but he has been unwilling to resolve the other issues. We would be glad to discuss this matter with you on the phone or after we return to Aspen next week. Hetta and Jesse Heath mobile phone: 970-M-8732 Hetta Heath, GRI OwnerfBroker Hetta Heath & Associates 606 North Spring Street Aspen, Colorado 81611 Phone: (970) 925-1570 Fax: (970) 920-3052 Mobile: (970) 948-8732 Monday, May 23, 201 I AOI,: HettaHeath I 1127 • r � ',tll -i 1'tt y f! U 4, 0 ' J, V �J ss r PUBLIC NOTICE RE: CITY OF ASPEN LAND USE CODE INTERPRETATION NOTICE 1S HEREBY GIVEN that an interpretation of the City of Aspen Land Use Code was issued on March 9, 2011, regarding Section 26.575.020.D — Floor Area. The interpretation was requested by Mitch Haas of Haas Land Planning on behalf of Dennis Young of 707 Gibson Avenue, Aspen, CO 81611. The interpretation clarifies that the floor area of a structure, or portion thereof, is attributed to the parcel upon which it physically rests. The interpretation is available for public inspection at the City of Aspen Community Development Department; City Hall; 130 So. Galena Street; Aspen, CO 81611. For further information, contact Chris Bendon at the City of Aspen Community Development Department, (970) 920-5090 or at chris.bendonQci.aspen.co.us. s/Chris Bendon, Community Development Director City of Aspen Published in the Aspen Times on March 20, 2011 City of Aspen Account 0 14 0 C