Loading...
HomeMy WebLinkAboutresolution.council.055-89 RESOLUTION NO. 55 (Series of 1989) RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, REAFFIRMING, WITH CERTAIN EXCEPTIONS, THE FINDING CONTAINED IN RESOLUTION NO. 39 (SERIES OF 1989) THAT SAVANAH LTD. PARTNERSHIP IS IN SUBSTANTIAL NON-COMPLIANCE WITH THE CONDITIONS OF APPROVAL OF THE ASPEN MOUNTAIN SUBDIVISION AND PLANNED UNIT DEVELOPMENT WHEREAS, the Aspen City Council, by Resolution 39 (Series of 1989) approved October 24, 1989, found that Savanah Ltd. Partner- ship (hereinafter "Savanah") was in substantial non-compliance with the conditions of approval for the Aspen Mountain PUD Subdivision (hereinafter "Aspen Mountain PUD"), all as specified in Resolution 39 (Series of 1989); and WHEREAS, Section M of the First Amended and Restated Planned Unit Development/Subdivision Agreement (hereinafter "Amended PUD Agreement") establishes procedures for notification of such findings and, on request, for notice and hearing; and WHEREAS, subsequent to the adoption of Resolution 39 (Series of 1989), notice of its adoption was served, a response thereto received, a hearing date and time established, notice of hearing served, and a hearing conducted by the City Council on Novem- ber 28, 1989; and WHEREAS, subsequent to the hearing, Jay W. Hammond mailed a letter to Mayor Stirling objecting to certain hearsay testimony offered by Savanah as to Hammond's representations while City Engineer which the City Council will include in the record previously made; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN THAT, HAVING HAD THE OPPORTUNITY TO CONSIDER THE EVIDENCE PRESENTED, THE CITY COUNCIL DOES HEREBY FIND: JURISDICTION The City Council has satisfied the requirements for notice and hearing established by Section M of the Amended PUD Agreement and has jurisdiction to proceed as hereinafter provided. ADDENDA TO RESOLUTION Attached hereto and incorporated by this reference are Addenda A through J, described below, which addenda are incor-- porated herein by reference: Addendum A: Addendum B: Addendum C: Addendum D: Addendum E: Addendum F: Addendum G: Addendum H: Addendum I: Addendum J: Council Resolution 39 (Series of 1989) Section M, Amended PUD Agreement Relevant Land Use and Building Code Provisions Documents Constituting the Record Summary of Hearing Testimony Excerpts from Approval Record re: Completion Dates and Assurances of Financing Excerpts from 1987 Amendments to the Aspen Mountain Subdivision Application Excerpts from the Modifications to the 1988 Aspen Mountain Subdivision Excerpts from the Aspen Mountain PUD Agreement (1985) Excerpts from the Amended Aspen Mountain PUD Agreement (1988) The contents of each addendum are a true and accurate representa- tion of the information they purport to contain. RATIFICATION OF EARLIER FINDINGS A preponderance of the evidence presented establishes that, with the two exceptions hereinafter noted, Savanah is in subs tan- 15/SD3 -2- tial non-compliance with the Amended specified in Resolution 39 (Series non-compliance has not been remedied. follows: 1. The evidence supports Savanah's contention that the development schedule described for Summit Place in ~A2(b) of the Amended PUD Agreement was intended to be nonbinding. (Harvey testimony; September 6, 1988 City Council minutes.) 2. There is substantial evidence to support Savanah's contention that some of the work authorized by the June 14, 1989 permit (Le., No. 11908) was begun within 120 days of issuance (Yancey testimony). Consequently, that permit did not expire pursuant to ~7-141(d) of the Aspen Municipal Code. PUD Agreement, all as of 1989) , and the The two exceptions are as REPLY TO SAVANAH'S RESPONSE Savanah offered, in writing and at the hearing, various arguments and evidence in response to the findings contained in Resolution 39 (Series of 1989). rrhe City's reply to each is as follows: Delays Caused by City's Requests Savanah contends that delays in its construction were caused by the City's requests, on two occasions, to cease infrastructure construction within public rights of way because of public events. However, the evidence is undisputed that this disruption caused no delays to work progressing on Lot 1; and Savanah' s street cut permit was extended past the November 1st deadline to 15/SD3 -3- allow it to conclude the work. (Gish, Lyman testimony; ~19-54 of the Municipal Code; notation by Chuck Roth on Permit No. 002630.) Local Amendments to UBC Not Applicable Savanah contends that inasmuch as the City had agreed that the project was to be constructed under the 1988 edition of the UBC, the local amendments to ~303(d) of the UBC (re: expiration of permits and requirement that 10% of the value of the entire project be completed wi thin each 60-day period) did not apply. However: 1. Yancey admitted he knew there were expiration timetables in the local amendments. ny. ) di fferent permit (Yancey testimo- 2. The May 19, 1989 Gish letter states that the hotel is being "designed" under the 1988 UBC and will be reviewed under the 1988 UBC but does not waive any local amendments. (Addendum to Savanah response.) 3. There was no intention by any City staff to waive compliance with the local amendments; and, in fact, in their opinion, they are not authorized to do so. (Gish, Lyman testimo- ny. ) 4. Use of the 1988 edition of the UBC was agreed to only to impose on this project the higher safety standards contained in this edition. (Gish testimony.) 5. A developer can consent to construct according to higher standards than mandated by local regulations, but no City 15/SD3 -4- '4'administrator, by agreement or otherwise, can waive compliance with adopted regulations. The Ten Percent Completion Requirement Savanah argues that the requirement that 10% of the entire value of the work be done in each 60-day period has been sat- isfied, or, in the alternative, is inapplicable because this is a "fast track" project or, if applied, results in an impossible conclusion (i.e., that the entire project must be completed within 20 months). 1. Savanah argues that inasmuch as it has completed 10%, within each 60 days, of the work permitted, it has satisfied the requirement. However, the local amendment clearly requires completion of 10% of the valuation of the entire project (not just work permitted) and Savanah admits that it has not completed 10% of the entire valuation within each 60-day construction period. (Lyman, Yancey testimony.) 2. rrhe local amendment does not distinguish between fast track and other projects. In fact, there are more public policy reasons to impose the requirement on large projects than small. (Lyman testimony.) 3. The fact that permits for the entire project have not issued is not controlling. It is the developer's obligation to procure necessary permits to complete the project timely. (Peters comments.) 4. Savanah has historically represented that the Phase I hotel project would be completed in less than 20 months. The 15/SD3 -5- 1987 and 1988 applications for amendments projected an 18-month construction schedule (Addenda G and H), as did the Amended PUD Agreement itself. (October 1988 - lvlarch 1990; ~ A2(a) of the Amended PUD Agreement; September 6, 1988 Ci ty Council meeting minutes.) Savanah repeatedly, through the review of its application for modifications of the Roberts' plan, stated that the project is slated for completion by Christmas of 1989, or at the latest March 1990 (Addendum F). In fact, Yancey himself told the P&Z, on March 22, 1988, that construction would take only 19 months. (Addendum F.) Delays by Building Officials Savanah indicated that delays were occasioned by failure of the City Building Inspector's office to timely review and issue permits. The contention has not been substantiated: 1. Savanah is incorrect that mechanical/electrical permits were delayed. No such permits have been applied for. The subgrade plumbing permi twas issued wi thin a reasonable time given the nature and complexity of the project. (Lyman testimo- ny. ) 2. Any delay in issuance of the June 14, 1989 permit (No. 11908) was a matter of hours, only. (Stirling comments.) 3. The Ci ty has, in fact, expedited permit issuance to Savanah by use of fast tracking and contracting with an indepen- dent agency for the UBC compliance review. (Peters comments.) 4. Savanah has admitted that none of its construction delays were caused by acts of City staff or administrators. (Hughes testimony.) 15/SD3 -6- Expenditures in Reliance Savanah has argued that it has spent millions in reliance on approvals. However, each act of the City of Aspen authorizing construction activity specifically conditioned authorization such that Savanah was to proceed, if at all, at its own risk and no actions of the City guaranteed that all permits necessary for construction would issue. (Lyman affidavit and attachments): 1. Permits which have issued to date have issued pursuant to ~303(a) of the Uniform Building Code ("fast track") which reads, in part: The building official may issue a permit for the construction of a part of a building or structure before the entire plans and specifications for the whole building or structure have been submitted or approved, provided adequate information and detailed statements have been filed complying with all pertinent requirements of this code. The holder of such permit shall proceed at his own risk without assurance that the permit for the -entire- bUIlding or structure wi 11 be granted. (Emphasis added.) 2. Permit 11907 (excavation only) issued April 15, 1988 contains this notation: "All work at conts'-owner's risk. No warranty given nor implied that further permits will be issued or approvals given." 3. Resolution 11, 1988, Section 2, provides: The applicant may, at its own risk and subject to the foregoing, excavate-rn accordance-with the excavation permit issued by the City of Aspen Building Inspector on April 15, 1988, provided that the applicant comply with all financial assurances with regard to the excavation as set forth in those escrow instructions dated as of April 14, 1988, between the applicant and the Financial Department of the City of Aspen, which instructions are incorporated herein by reference. (Emphasis added.) 4. Permit 11910 (foundation only) issued October 3, 1988 contains this notation: "All work at owner's/conts' risk. No 15/SD3 -7- warranty given nor implied that further permits will be issued or/approvals given." Attached to the permit was a copy of the October 1, 1988 memorandum from the Planning Office that the department was "only signing off on the building footprint in issuing the certificate." 5. Permit 11908 (partial superstructure only) issued June 14, 1989. The contractor, on acceptance of the permit (Yancey letter dated June 14, 1989), acknowledged that: "It is understood that the contractor and owner assume all risk and responsibilities in the acceptance of this permit. By issuance of this permit, the Building Department makes no assurances that additional permits will be approved or issued." Lot 6 Rezoning and Development with respect to Savanah's obligation to begin demolition and pursue development approvals (including rezoning by April 1, 1989) for Lot 6, Savanah admits thi s was not done, but offers various defenses: 1. Savanah argues that the City's only remedy is to initiate the rezoning itself. The Amended PUD Agreement does not so provide. It merely permits the City to initiate the rezoning if it elects to do so. (Amended PUD Agreement, p. 40.) 2. The City did, in fact, initiate proceedings to rezone Lot 6 in August of 1988, but the action was strongly objected to by Savanah. Perry Harvey made it clear that Savanah did not want the land rezoned (with a loss of 42,000 sq. ft. of FAR) unless and until all approvals and permits were received for the Phase I 15/SD3 -8- hotel, especially in light of a threatened referendum. (Au- gust 8, 1988 Council minutes, Addendum F.) 3. Savanah argues that it could not proceed because of the demolition moratorium. In fact, Savanah was excepted from the moratorium in September, 1988. (September 6, 1988 Council minutes. ) 4. Savanah next argues that it did not want to proceed and destroy existing housing. However, the land could have been rezoned, and the uni ts remain as nonconforming uses. ~vi th no abatement provisions in the Code, there was nothing to require their removal; and Savanah was so advised in August of 1988. (August 8, 1988 Council meeting minutes, Addendum F.) 5. Savanah asserts that the deadlines were waived by City Council; and subsequently by Alan Richman. City Council did extend the deadline to May 1, 1988 at Savanah's request. (March 22, 1989 Harvey letter; March 27, 1989 Ri chman memo to City Council; April 10, 1989 Council minutes.) However, the application was in fact not submitted until June, and found incomplete by the Planning Office. (Amy Margerum testimony.) with respect to Harvey's testimony that Richman advised him that the applications for the rezoning and development approvals on Lot 6 need not be processed: (a) the evidence is hearsay only and not corrob- orated; and (b) Richman could not waive this requirement wi thout City Counci 1 approval as acknowledged by the 15/SD3 -9- fact that the matter of an extension to May 1, 1988 had been submitted to the City Council. 6. Savanah argues that the only interest the City has is to see the park facilities are completed at the same time as the Phase I hotel and it may withhold a co if they are not. consequently, when the land is rezoned, other necessary approvals obtained, and the facilities constructed, is of no interest to the City. To the contrary: (a) The City has an interest in having the land zoned Public and the required deed restriction executed (without regard to whether the facilities are constructed) insuring that a major quid pro quo for the overall development approval is in fact received. (Harvey comments, Planning and zoning Commi ssion Minutes, July 12, 1988, Addendum F.) (b) Council, at the time the Amended PUD Agreement was approved, specifically set these deadlines so that approvals were obtained and construction for Lot 6 was timely commenced to avoid "the hotel getting near completion and having the park issue up in the ai r. " (Counci 1 minutes, Augu st 16, 1988, Addendum F.) Construction Schedules Not Mandatory; Waived by City Engineers Savanah contends that the construction schedules established in TLA2(a) were not intended to be mandatory or, in the alterna- tive, were waived by failure of City Engineers to object to 15/SD3 -10- construction schedules showing completion dates outside those contained in the Amended PUD. 1. The Amended PUD Agreement provides that the approved project was "subject to all of the requirements, terms and conditions of the City of Aspen Subdivision and Planned Unit Development Regulations in effect on May 24, 1988, together with such other laws, rules and regu lations as are or may become applicable. . . ." 'l'he Amended PUD Agreement further provides that: "This Agreement shall be subject to and construed in accordance with the laws of the State of Colorado and the Municipal Code of the City of Aspen" (Amended PUD Agreement, pp. 4, 54; Addendum C.) These regulations require establishment of and compliance with construction schedules and diligent pursuit of construction. 2. The Amended PUD Agreement speci fically provided that: "the City intends by its execution of this First Amended PUD Agreement to require Owner to perform or commit to perform its obligations hereunder wi thin the time frame contemplated herein and, otherwi se, as soon hereafter as practical." (Amended PUD Agreement, p. 5.) 3. Section 5 of the Amended PUD Agreement provides that all recitals and written submissions of the applicant are deemed part of the Agreement. (Amended PUD Agreement, p. 55; Adden- dum F.) Savanah has repeatedly asserted that the Phase I hotel would be completed by Christmas 1989, or no later than March 1990. (Hughes testimony; Addenda F, G, H; ~A2 (a) Amended PUD Agreement; September 6, City Council Minutes.) 4. Savanah argues that the schedule was intended to be flexible; and that the reason Savanah has not progressed as 15/SD3 -11- intended is that it has failed to secure financing. (Hughes testimony. ) However, the construction schedules, as drafted, contain enough leeway for contemplated adju stments wi thin the deadlines provided. (September 6, 1989 council minutes.) The Agreement and council did not contemplate noncompliance with the schedules for failure to obtain financin , inasmuch as council had asked and had repeatedly been assured that financing was alread~n place! (Addendum F.) 5. Savanah argues that the construction schedule was intended to be non-binding. The history of the construction schedu Ie elements of the PUD agreements proves otherwi se. The original PUD agreement with Roberts approved in 1985 (Addendum I) had a construction schedule, but provided: "Owner and City mutually acknowledge that exact construction schedules cannot be submitted at this time. Owner anticipates that the several components of the Project will be construed generally in accordance with the following time frames, which time frames shall not constitute binding representations or schedules." (Emphasis added.) As is evident by the city council meeting minutes of September 12, 1988 (Addendum F), the open-endedness of this provisions was objectionable to the council and intended to be eliminated in the Amended PUD Agreement. 6. with respect to the argument that past and present city Engineers have waived the deadlines by virtue of having accepted revised construction schedules: (a) Savanah's own witness acknowledged that each Gish and Hammond stated that, in reviewing the sched- u les , they were only concerned with construction logistics. (Yancey testimony.) 15/SD3 -12- (b) Both Gish and Hammond assert that they waived no construction deadlines and limited their participa- tion to approving construction activity solely in terms of construction logistics. (Gish testimony; Hammond letter of December 12, 1989.) Gish testified that any such extension requested would have been forwarded to the Planning Office. (Gish testimony.) (c) The requ irement that each phase of the PUD Subdivision be completed according to the agreed schedule is di stinct from the requirement that as a -- condition of issuing each permit Savanah submit "a detailed construction schedule" showing, to the satis- faction of the City Engineer, that disruptive con- struction activities are scheduled "to minimize impacts on adjacent properties and lodge uses." The City Engineer' s limited function is clearly delineated in the Amended PUD Agreement. (Amended PUD Agreement, pp. 7, 8, 47, Addendum J.) Savanah's contention that the only binding construction scheduling is that incident to the Engineer's approval of a construction schedule is defeated by a comparison of the original PUD agreement (Addendum I) and the Amended PUD Agreement (Addendum J). The 1985 original agreement contained the same requirement that a detailed construction schedule be submitted to the City Engineer (at the time of permit applications), while at the same time the 1985 agreement provided that the "time frames shall not constitute binding representations or 15/SD3 -13- schedules." Engineer's compliance there was (Page 4, Addendum I.) If the purpose of review and approval was to approve the with the overall construction timetable, no need for such provisions in the 1985 agreement. (d) Savanah itself had an obligation to demon- strate its progress to the Planning Office every six months, which it obviously failed to do. (Amended PUD Agreement, pp. 48, 49). 7. Finally, Savanah contends that only the City Engineer could initiate a review for non-compliance pursuant to a proce- dure described in pp. 8, 9 of the Amended PUD Agreement. The Ci ty Counci 1 di sagrees. Even if applicable (which the Counci 1 disputes), it would not prevent the Council, the final reviewing agency, from initiating an investigation as the beneficiary of the terms and conditions of approval, or pursuant to its general power to enforce compliance with PUD construction schedules as provided in Section 24-8.20 of the Land Use Code. Hammond's Letter The City Council will permit the inclusion of Jay Hammond's December 12, 1989 letter into the record. This correspondence was not solicited by the City of Aspen. It is an independent act by a former employee who objected to the hearsay evidence concerning his actions and statements. Hammond was, in essence, offered by Savanah as its witness; certainly Savanah cannot now object to inclusion of Hammond's statement as to what, in his opinion, in fact occurred. 15/SD3 -14- CONCLUSION The City of Aspen has a legitimate public interest in timely construction of development projects: 1. to minimize disruption in the areas of construction; 2. to insure that owners are not given unlimited immunity from regulatory changes; and 3. to guaranty that owners timely provide those agreed to amenities which directly benefit the public. The cumulative effect of all the delays in the construction schedules established for the Aspen Mountain PUD Subdivision require action by the Aspen City Council. For each of the foregoing reasons, the City Council affirms the findings of non-compliance contained in Resolution 39 (Series of 1989) except as hereinabove noted. Adopted by the Aspen City Council at its meeting held January 17, 1990. I, Kathryn S. Koch, duly appointed and acting City Clerk, do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, at a meeting held January 17, 1990. f!frr~ ' J k_ Kathryn Sf ~h, City Clerk 15/SD3 -15- CERTIFICATE OF MAILING I hereby certify that on this ,,23 day of , 1990, I have served the foregoing Resolution No. 55, ries 0 1989, by placing copies thereof in the United States ma' l, certified mail, postage prepaid, and address as follows: Savanah Ltd. Partnership 1300 17th Street, Suite 1100 Roslyn, VA 22209 Robert W. Hughes, Esq. Oates, Hughes & Knezevich, P.C. 533 East Hopkins Avenue, Third Floor Aspen, CO 81611 Perry A. Harvey Hadid Aspen Holdings, Inc. 600 East Cooper, Suite 200 Aspen, CO 81611 ~ A~ 15/SD3 -16-