HomeMy WebLinkAboutcoa.lu.ca.Citywide.0001.2017.ASLU130 S GALENA ST 0001.2017.ASLU
AN APPEAL OF INTERPRETATION OF LODGE KEY
end
130 S GALENA ST 0001.2017.ASLU
AN APPEAL OF INTERPRETATION OF LODGE KEY
MARK HUNT
5
PATH: G/DRIVE /AOINISTRATIVE/ADMIN/LANDUSE SE DOCS
THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER 0001. 2017.ASLU
PROJECT ADDRESS 130 S GALENA ST
PARCEL ID
PLANNER JESSICA GARROW
CASE DESCRIPTION AN APPEAL OF LODGE KEY
REPRESENTATIVE BENDONADAMS, LLC
DATE OF FINAL ACTION 02.27.17
CLOSED BY ANGIE SCOREY 8.1.17
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Description APPLICATION FORANAPEALTOAFi Pt-ERPRE-A-1ON OF LOCGE KEIssued
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RESOLUTION NO.25
(SERIES OF 2017)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING THE DEFINITION OF LOCK -OFF UNITS
OR KEYS
WHEREAS, the Community Development Director received a request for an interpretation
of the Land Use Code regarding the definition of a Lodge Key from BendonAdams, LLC.
WHEREAS, pursuant to Chapter 26.306 — Interpretations of Title, the Community
Development Director rendered a decision, and a separate party, 312 East Hyman Avenue, LLC,
managed by Mark Hunt and represented by Joseph E. Edwards, 111, PC, sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of
the Director or modify or reverse the Interpretation upon a finding that there was a denial of due
process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and oral argument from
Attorney Mr. Joseph E. Edwards, 1I1, representing the appellant, and the Community Development
Director, and has found that the Director provided due process and neither exceeded her jurisdiction
or abused her authority. in rendering the Interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary
for the promotion of public health, safety, and welfare; and,
WHEREAS, at a regular meeting on February 27, 2017, City Council voted five to zero (5-0) to
affirm the Interpretation issued by the Community Development Director.
NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community
Development -Director's Interpretation of the Land Use Code regarding the definition of a Lock -off
Unit or Key.
This Resolution shall not affect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein
provided, and the same shall be conducted and concluded under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional. in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining portions
thereof.
APPROVED by the Aspen City Council at its regular meeting on February 27, 2017.
APPROVED AS TO FORM: AP O A -TO TENT:
Names R. True, City Attorney Steven Skadro ,Mayor
ATTEST:
Linda Manning, City Clerk
Resolution No.25, Series of 2017. Page ]
E�j
49
MEMORANDUM
TO: City of Aspen's Mayor and Council
FROM: Jessica Garrow, Community Development Director
Ben Anderson, Planner
RE: Appeal of Land Use Code Interpretation - Definition, Lock -off Unit or Key
DATE: February 27, 2017
APPLICANT:
312 East Hyman Avenue, LLC
Mark Hunt, Manager
REPRESENTED BY:
Joseph E. Edwards, III, PC
Klein Cote Edwards Citron, LLC
ORIGINAL INTERPRETATION REQUESTED BY:
Chris Bendon, AICP, and Sara Adams, AICP
Bendon Adams, LLC
STAFF RECOMMENDATION:
Staff recommends the City Council Affirm the Interpretation of the definition of a lock -off unit or
distinct key, issued by the Community Development Director on December 13, 2016.
SUMMARY:
The Land Use Code (LUC) assigns responsibility to the Community Development Director to
provide interpretations of the text and Title of the Code. This is a formal process in which an
applicant requests a written interpretation and, if the applicant for the interpretation or any other
affected entity do not agree with the issued interpretation, affords the right to appeal the decision
to the City Council.
The Applicant is appealing an Interpretation of the Land Use Code (LUC) issued by the
Community Development Director on December 13, 2016. An application for an interpretation of
the definition of a lodge key was received from BendonAdams, LLC, on November 15, 2016, in
response to an earlier informal inquiry of this same term. Specifically, the initial inquiry asked if
a lock -off unit/lodge key requires an in -unit bathroom to qualify as a key. Staff s response was that
a key requires an in -unit bathroom. The Interpretation was issued according to procedures specified
by the LUC (Chapter 26.306) and is attached as Exhibit A.
The Interpretation as issued on December 13`h stated:
"Staff finds that the definition of Hotel (a.k.a. Lodge) as presented in the Aspen Land Use
Code, which provides a description of lock -off units and keys, shall be interpreted such
Appeal of Lodge Key Definition
Page 1 of 6
that a lock -off unit must contain an in -unit bath if it is to qualify as a distinct key. It is clear
that the typical functioning of lock -off units includes an in -unit bathroom so that amenities
are consistent with the other keys connected to the lock -off unit. Staff can see no practical
reason to create a unit without an in -unit bath, other than as an inappropriate mechanism
to take advantage of Growth Management and dimensional standard incentives. This is
clearly not intended by the Code. Thus, lock -off units that do not include an in -unit
bathroom shall not be counted as a key and shall not be considered a distinct unit in
calculating average unit sizes for the purpose of Growth Management or dimensional
standard incentives."
BACKGROUND:
The term lodge key is not an independently defined term within Aspen's LUC. The discussion of
this topic within the Definitions section (26.104.100) of the code is found under the term, Hotel
(a.k.a Lodge). The applicable language defining Hotel is as follows:
"Hotel (a.k.a. Lodge). A building or parcel containing individual units used for overnight
lodging by the general public on a short-term basis for a fee, with or without kitchens
within individual units, with or without meals provided and which has common
reservation and cleaning services, combined utilities and on -site management and
reception services. Timeshare (a.k.a. fractional) units and timeshare developments are
considered hotels for the purposes of this Title. For hotels with flexible unit
configurations, also known as "lock -off units," each rentable division or "key" shall
constitute a lodge unit for the purposes of this Title."
As the terms lock -off units and keys are discussed by other sections of the LUC, and in the day-to-
day practice of City Planning Staff and the development community, lock -off units and keys are
used interchangeably in discussions of hotel or lodge projects that contain flexible unit
configurations.
The LUC offers encouragement to the use of lock -off units or keys and to flexible unit
configurations in two important ways. First, in the Growth Management chapter (26.470.070),
affordable housing mitigation for lodge development provides incentive, through a reduced
percentage housing mitigation, for creating smaller average unit sizes. This can be accomplished
by creating lock -off units that both add to the number of total units and reduce unit sizes to create
a smaller average for the project. Second, in the Zone District chapter, projects with smaller unit
sizes are granted height and FAR incentives in CC, C-1, L, and CL zones.
This definition is important. A finding that a key or lock -off need not have an in -unit bathroom
would likely lead to the design of lodge/timeshare units that create lock -off bedrooms allowing a
project access to the incentives described above, but that would likely never be utilized as
independent units. This is certainly not the intent of flexible unit configurations and the incentives.
BASIS FOR INTERPRETATION:
Staff acknowledges that the LUC does not give direct definition of either a key or lock -off unit.
Ideally, the LUC will be as descriptive as possible in responding to development scenarios that
may emerge. In this case, the Code did not foresee the question raised by the Request for
Appeal of Lodge Key Definition
Page 2 of 6
40
49
Interpretation. In the absence of a formal, and specific definition in the LUC, staff looked to
guidance from the following sources in drafting the Interpretation:
1. The definition of Dwelling Unit (from the LUC; 26.100.104)
While this definition is more closely aligned with residential uses, it does give guidance to
the necessary components of "independent living facilities". In the Interpretation, staff
argues that a Dwelling Unit, which requires "permanent provision for... sanitation" serves
as an umbrella term for many types of housing, including hotels and lodges. The specific
definition for Hotel a.k.a Lodge allows that in -unit kitchen facilities are optional, but does
not discuss bathroom facilities.
2. Precedent from Aspen Development
Staff is unaware of any lodge projects in recent Aspen history utilizing flexible unit
configurations (lock -off units) that did not include in -unit bathroom facilities. The
Interpretation provides several examples of recent projects that include in -unit bath
facilities within lock -off units.
Industry Norms
The term "lock -off unit" is jargon confined to the timeshare/resort industry. This is not a
term that is defined by typical dictionaries of the English language. In drafting the
Interpretation, staff referenced several industry websites, the International Encyclopedia
of Hospitality Management, and a textbook, Hotel Design, Planning and Development.
Consistently, across these sources, a "lock -off unit" was described as containing in -unit
bathrooms. While staff s research was certainly not an exhaustive analysis, the referenced
sources identify the inclusion of an in -unit bathroom in lock -off units as an industry
standard.
4. Peer Communities
Numerous land use codes across the country reference lock -off units. While many include
a requirement of an in -unit bathroom, others were silent on the topic (similar to Aspen's
definition). The Interpretation references the land use codes from peer communities in
Colorado (Frisco and Mountain Village) that address the requirement for an in -unit
bathroom within the definition for a "Lock -Off' or "Lock -off Unit".
Together, these sources establish the basis for the Interpretation. Staff argues that applicable (yet
indirect) LUC language, local precedent, industry norms, and support from the code language of
peer communities provide ample support for the Interpretation.
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
Appeal of Lodge Key Definition
Page 3 of 6
ft
r
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.)
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
P.3d 1244 (Colo. 2000).
STAFF COMMENT:
1) Due Process — The Applicant's appeal is a response to an Interpretation issued to satisfy a
request from a different party. The original request for interpretation was submitted through a
Land Use Application. The timelines specified by Code in determining completeness of the
application, issuing the Interpretation, and providing public notice were met. A separate
application for appeal was filed in a timely manner consistent with Code, and the public hearing
for the appeal is being held "as soon thereafter as is practical under the circumstances." Proper
notice of the hearing has been provided to the public and the Applicant. Assuming the public
hearing does not contain any procedural flaws, staff believes that proper procedural due process
has been provided.
In providing an interpretation, the Director relied on the facts presented and the language within
the Land Use Code. Definitions within the code such as Dwelling Unit and the intent of provisions
regarding flexible unit configurations were used in evaluating whether a key or lock -off unit require
an in -unit bathroom to be considered as such. Additionally, although key and lock -off are not
defined in the Land Use Code, staff applied Aspen precedent, industry definition of the words, and
the land use codes of peer communities in evaluating the code language and rendering an
interpretation. The Interpretation was not arbitrary and provided substantive due process. The
appeal does not raise questions of due process.
2) Discretion — With respect to abuse of the Director's discretion, the Director did use her
discretion in rendering the interpretation. The question raised by the appeal is whether the Director
Appeal of Lodge Key Definition
Page 4 of 6
40 0
abused that discretion. The Director is required to interpret specific text of the code to provide
explanation and clarity. In rendering the Interpretation, the Director considered adopted definitions
and issues of intent in the land use code, Aspen precedent, industry definition of the words, and
definitions within the land use codes of peer communities.
The Land Use Code does not predict every type of circumstance. Staff considers the text of the
code as well as the effects that would be expected with different interpretations. The Director
believes that her discretion was applied appropriately and the Interpretation was rendered ethically.
The concerns raised by the appeal, center on the question of discretion.
Staff disagrees that the Interpretation is an abuse of discretion. Again, ideally, the definition of
these terms in the LUC would contain more specific language that includes discussion of in -unit
bathrooms. In the absence of more specific language, it is a reasonable approach to use the limited,
but applicable language within the Code for guidance, and then go beyond the Code to local
precedent, industry norms, and peer communities in issuing an interpretation. From staff s
perspective, this approach provides technical clarity to a term within the LUC that already has an
existing, established working definition within the Aspen development community and in the
larger timeshare/resort industry.
3) 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 disagrees with the appeal's premise that the Interpretation was "in excess of jurisdiction.
ACTIONS BY COUNCIL FOLLOWING APPEAL HEARING:
Section 26.316.030(F) reads as follows:
Action by the decision -making body hearingthe he 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.
TWO RESOLUTIONS:
Attached are two Resolutions. One finds that the Director acted correctly and affirms the
interpretation. The second finds that the Director exceeded her jurisdiction, abused her authority,
or failed to provide due process and reverses the interpretation.
CONCLUSION:
Staff believes the Director's Interpretation was rendered ethically and did not exceed jurisdiction
or abuse discretion. Staff recommends City Council affirm the Director's interpretation by
adopting the proposed Resolution affirming the interpretation.
Appeal of Lodge Key Definition
Page 5 of 6
ft
r
EXHIBITS:
Exhibit A
— Interpretation, including Exhibits
Exhibit B —
Application, Request for Interpretation
Exhibit C
— Application, Appeal of Interpretation
Exhibit D
— Instruments of Notice for the Appeal
Appeal of Lodge Key Definition
Page 6 of 6
so
V
MEMORANDUM
TO: City of Aspen's Mayor and Council
FROM: Jessica Garrow, Community Development Director
Ben Anderson, Planner
RE: Appeal of Land Use Code Interpretation - Definition, Lock -off Unit or Key
DATE: February 27, 2017
APPLICANT:
312 East Hyman Avenue, LLC
Mark Hunt, Manager
REPRESENTED BY:
Joseph E. Edwards, III, PC
Klein Cote Edwards Citron, LLC
ORIGINAL INTERPRETATION REQUESTED BY:
Chris Bendon, AICP, and Sara Adams, AICP
Bendon Adams, LLC
STAFF RECOMMENDATION:
Staff recommends the City Council Affirm the Interpretation of the definition of a lock -off unit or
distinct key, issued by the Community Development Director on December 13, 2016.
SUMMARY:
The Land Use Code (LUC) assigns responsibility to the Community Development Director to
provide interpretations of the text and Title of the Code. This is a formal process in which an
applicant requests a written interpretation and, if the applicant for the interpretation or any other
affected entity do not agree with the issued interpretation, affords the right to appeal the decision
to the City Council.
The Applicant is appealing an Interpretation of the Land Use Code (LUC) issued by the
Community Development Director on December 13, 2016. An application for an interpretation of
the definition of a lodge key was received from BendonAdams, LLC, on November 15, 2016, in
response to an earlier informal inquiry of this same term. Specifically, the initial inquiry asked if
a lock -off unit/lodge key requires an in -unit bathroom to qualify as a key. Staff's response was that
a key requires an in -unit bathroom. The Interpretation was issued according to procedures specified
by the LUC (Chapter 26.306) and is attached as Exhibit A.
The Interpretation as issued on December 13t' stated:
"Staff finds that the definition of Hotel (a. k.a. Lodge) as presented in the Aspen Land Use
Code, which provides a description of lock -off units and keys, shall be interpreted such
Appeal of Lodge Key Definition
Page 1 of 6
that a lock -off unit must contain an in -unit bath if it is to qualify as a distinct key. It is clear
that the typical functioning of lock -off units includes an in -unit bathroom so that amenities
are consistent with the other keys connected to the lock -off unit. Staff can see no practical
reason to create a unit without an in -unit bath, other than as an inappropriate mechanism
to take advantage of Growth Management and dimensional standard incentives. This is
clearly not intended by the Code. Thus, lock -off units that do not include an in -unit
bathroom shall not be counted as a key and shall not be considered a distinct unit in
calculating average unit sizes for the purpose of Growth Management or dimensional
standard incentives."
BACKGROUND:
The term lodge key is not an independently defined term within Aspen's LUC. The discussion of
this topic within the Definitions section (26.104.100) of the code is found under the term, Hotel
(a.k.a Lodge). The applicable language defining Hotel is as follows:
"Hotel (a.k.a. Lodge). A building or parcel containing individual units used for overnight
lodging by the general public on a short-term basis for a fee, with or without kitchens
within individual units, with or without meals provided and which has common
reservation and cleaning services, combined utilities and on -site management and
reception services. Timeshare (a.k.a. fractional) units and timeshare developments are
considered hotels for the purposes of this Title. For hotels with flexible unit
configurations, also known as "lock -off units," each rentable division or "key" shall
constitute a lodge unit for the purposes of this Title."
As the terms lock -off units and keys are discussed by other sections of the LUC, and in the day-to-
day practice of City Planning Staff and the development community, lock -off units and keys are
used interchangeably in discussions of hotel or lodge projects that contain flexible unit
configurations.
The LUC offers encouragement to the use of lock -off units or keys and to flexible unit
configurations in two important ways. First, in the Growth Management chapter (26.470.070),
affordable housing mitigation for lodge development provides incentive, through a reduced
percentage housing mitigation, for creating smaller average unit sizes. This can be accomplished
by creating lock -off units that both add to the number of total units and reduce unit sizes to create
a smaller average for the project. Second, in the Zone District chapter, projects with smaller unit
sizes are granted height and FAR incentives in CC, C-1, L, and CL zones.
This definition is important. A finding that a key or lock -off need not have an in -unit bathroom
would likely lead to the design of lodge/timeshare units that create lock -off bedrooms allowing a
project access to the incentives described above, but that would likely never be utilized as
independent units. This is certainly not the intent of flexible unit configurations and the incentives.
BASIS FOR INTERPRETATION:
Staff acknowledges that the LUC does not give direct definition of either a key or lock -off unit.
Ideally, the LUC will be as descriptive as possible in responding to development scenarios that
may emerge. In this case, the Code did not foresee the question raised by the Request for
Appeal of Lodge Key Definition
Page 2 of 6
•
M
Interpretation. In the absence of a formal, and specific definition in the LUC, staff looked to
guidance from the following sources in drafting the Interpretation:
The definition of Dwelling Unit (from the LUC; 26.100.104)
While this definition is more closely aligned with residential uses, it does give guidance to
the necessary components of "independent living facilities". In the Interpretation, staff
argues that a Dwelling Unit, which requires "permanent provision for... sanitation" serves
as an umbrella term for many types of housing, including hotels and lodges. The specific
definition for Hotel a.k.a Lodge allows that in -unit kitchen facilities are optional, but does
not discuss bathroom facilities.
2. Precedent from Aspen Development
Staff is unaware of any lodge projects in recent Aspen history utilizing flexible unit
configurations (lock -off units) that did not include in -unit bathroom facilities. The
Interpretation provides several examples of recent projects that include in -unit bath
facilities within lock -off units.
Industry Norms
The term "lock -off unit" is jargon confined to the timeshare/resort industry. This is not a
term that is defined by typical dictionaries of the English language. In drafting the
Interpretation, staff referenced several industry websites, the International Encyclopedia
of Hospitality Management, and a textbook, Hotel Design, Planning and Development.
Consistently, across these sources, a "lock -off unit" was described as containing in -unit
bathrooms. While staff s research was certainly not an exhaustive analysis, the referenced
sources identify the inclusion of an in -unit bathroom in lock -off units as an industry
standard.
4. Peer Communities
Numerous land use codes across the country reference lock -off units. While many include
a requirement of an in -unit bathroom, others were silent on the topic (similar to Aspen's
definition). The Interpretation references the land use codes from peer communities in
Colorado (Frisco and Mountain Village) that address the requirement for an in -unit
bathroom within the definition for a "Lock -Off' or "Lock -off Unit".
Together, these sources establish the basis for the Interpretation. Staff argues that applicable (yet
indirect) LUC language, local precedent, industry norms, and support from the code language of
peer communities provide ample support for the Interpretation.
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
Appeal of Lodge Key Definition
Page 3 of 6
ft
ft
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.)
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
P.3d 1244 (Colo. 2000).
STAFF COMMENT:
1) Due Process — The Applicant's appeal is a response to an Interpretation issued to satisfy a
request from a different party. The original request for interpretation was submitted through a
Land Use Application. The timelines specified by Code in determining completeness of the
application, issuing the Interpretation, and providing public notice were met. A separate
application for appeal was fled in a timely manner consistent with Code, and the public hearing
for the appeal is being held "as soon thereafter as is practical under the circumstances." Proper
notice of the hearing has been provided to the public and the Applicant. Assuming the public
hearing does not contain any procedural flaws, staff believes that proper procedural due process
has been provided.
In providing an interpretation, the Director relied on the facts presented and the language within
the Land Use Code. Definitions within the code such as Dwelling Unit and the intent of provisions
regarding flexible unit configurations were used in evaluating whether a key or lock -off unit require
an in -unit bathroom to be considered as such. Additionally, although key and lock -off are not
defined in the Land Use Code, staff applied Aspen precedent, industry definition of the words, and
the land use codes of peer communities in evaluating the code language and rendering an
interpretation. The Interpretation was not arbitrary and provided substantive due process. The
appeal does not raise questions of due process.
2) Discretion — With respect to abuse of the Director's discretion, the Director did use her
discretion in rendering the interpretation. The question raised by the appeal is whether the Director
Appeal of Lodge Key Definition
Page 4 of 6
M so
abused that discretion. The Director is required to interpret specific text of the code to provide
explanation and clarity. In rendering the Interpretation, the Director considered adopted definitions
and issues of intent in the land use code, Aspen precedent, industry definition of the words, and
definitions within the land use codes of peer communities.
The Land Use Code does not predict every type of circumstance. Staff considers the text of the
code as well as the effects that would be expected with different interpretations. The Director
believes that her discretion was applied appropriately and the Interpretation was rendered ethically.
The concerns raised by the appeal, center on the question of discretion.
Staff disagrees that the Interpretation is an abuse of discretion. Again, ideally, the definition of
these terms in the LUC would contain more specific language that includes discussion of in -unit
bathrooms. In the absence of more specific language, it is a reasonable approach to use the limited,
but applicable language within the Code for guidance, and then go beyond the Code to local
precedent, industry norms, and peer communities in issuing an interpretation. From staff s
perspective, this approach provides technical clarity to a term within the LUC that already has an
existing, established working definition within the Aspen development community and in the
larger timeshare/resort industry.
3) 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 disagrees with the appeal's premise that the Interpretation was "in excess of jurisdiction.
ACTIONS BY COUNCIL FOLLOWING APPEAL HEARING:
Section 26.316.030(F) reads as follows:
Action by the decision -making body hearingthe he 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.
TWO RESOLUTIONS:
Attached are two Resolutions. One finds that the Director acted correctly and affirms the
interpretation. The second finds that the Director exceeded her jurisdiction, abused her authority,
or failed to provide due process and reverses the interpretation.
CONCLUSION:
Staff believes the Director's Interpretation was rendered ethically and did not exceed jurisdiction
or abuse discretion. Staff recommends City Council affirm the Director's interpretation by
adopting the proposed Resolution affirming the interpretation.
Appeal of Lodge Key Definition
Page 5 of 6
40
r
EXHIBITS:
Exhibit A
— Interpretation, including Exhibits
Exhibit B —
Application, Request for Interpretation
Exhibit C
— Application, Appeal of Interpretation
Exhibit D
— Instruments of Notice for the Appeal
Appeal of Lodge Key Definition
Page 6 of 6
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M
February 7, 2017
THE CITY OF ASPEN
Mr. Mark Hunt; Manager
312 East Hyman, LLC
2001 N. Halstead St.; Suite 304
Chicago, IL 60614
RE: Appeal of an Interpretation, definitions of Hotel (a.k.a. Lodge), lodge key and lock -off unit
Dear Mark,
As required per Section 26.316.030.D; Notice Requirements, of the City of Aspen Land Use Code,
this letter serves as notice that a public hearing will be held on Monday, February 27, 2017, to
begin at 5:00 p.m., before the Aspen City Council, City Council Chambers, City Hall, 130 S.
Galena St., Aspen. The purpose of the, hearing is to consider an appeal of an Interpretation that you
submitted.
The Interpretation was issued in response to a Request for a Land Use Code Interpretation,
originally submitted by BendonAdams, LLC. The Interpretation determined that a Lodge Key, or.
Lock -off Unit must include an in -unit bathroom if it is to qualify as 'a distinct key. For further
information, please feel free to . contact me at 970.429.2780 or by email at
Jessica.Garrow@cityofaspen.com. A memo that details the staff response to your appeal will be
emailed to you in advance of the City Council meeting..
Regards,
.p
essica Garrow '
Community Development Director
Cc: Mr. Joseph E. Edwards, III, P.C.
Klein Cote Edwards Citron, LLC
101 South Mill Street
Aspen, CO 81611
130 SOUTH GALENA STREET . ASPEN, COLORADO 81611-1975 • PHONE 970.920.5000 • FAX 970.920.5197
www.aspenpitkin.com
Printed on Recycled Paper.
�P ap M
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY:
?212 Aspen, CO
SCHEDULED PUBLIC HEARING DATE:
�e 2? (d,5 ' One on , 20t -7
STATE OF COLORADO )
ss.
County of Pitkin )
I, _ S C -1 e±:: _ (name, please print)
being or repr senting an Applicant to e ity of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
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 (15)
days prior to the public hearing. A copy of the publication is attached hereto.
Posting of notice: By posting of notice, which form was 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
on 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.
Mailing 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 hearing. A
copy of the owners and governmental agencies so noticed is attached hereto.
Neighborhood Outreach: Applicant attests that neighborhood outreach,
summarized and attached, was conducted prior to the first public hearing as
required in Section 26.304.035, Neighborhood Outreach. A copy of the
neighborhood outreach summary, including the method of public notification and
a copy of any documentation that was presented to the public is attached hereto.
(continued on next page)
N y
Mineral Estate Owner Notice. By the certified mailing of notice, return receipt
requested, to affected mineral estate owners by at least thirty (30) days prior to the
date scheduled for the initial public hearing on the application of development.
The names and addresses of mineral estate owners shall be those on the current
tax records of Pitkin County. At a minimum, Subdivisions, SPAs or PUDs that
create more than one lot, new Planned Unit Developments, and. new Specially
Planned Areas, are subject to this notice requirement.
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.
Signs e
Thepregoing "Affidavit of Notice" was acknowledged before me this 10 day
of `t plo_(g , 201:?-, byAine3etoli;, �y
NOTICE OF PUBLIC HEARING WITNESS W HAND AND OFFICIAL SEAL
RE: Appeal, Interpretation of Title
Public Hearing: February 27, 2017, 5:00 PM
Meetin Location: City Hall, Council Chambers My commission expires:
130 S. Galena St., Aspen, CO 81611
Description: City Council shall hear and de-
cide an appeal of an interpretation of the Aspen
Land Use Code issued by the Director of Commu-
nity Development on December 13, 2016, and no-
ticed in the Aspen Times on December 29, 2016.
The interpretation relates to Section 26.104.100; Wle
Definilions, specifically, the definition of 'Hotel, Notary Public
(a.k.a. Lodge)".
Land Use Reviews Req: Appeal, Interpretation
of Title
Decision Making Body: City Council KAREN REED PATTERSON
Applicant: 312 East Hyman Avenue, LLC; Mark Hunt, MaNOTARY PUBLIC nger
2001 N. Halstead St. Suite 304; Chicago, IL 60s14 STATE OF COLORiADO
More Information: For further information regal- NOTARY ID #19964002767
ed to the project, Community
D Ben Anderson at the cm ACHMENTS AS APPLIC E
of Aspen Community Development Department,
130 S. Galena St., Aspen, CO, (970) 429.2765, ;ICATION my Comm"On Exphs February 16, 2020
Ben.Anderson O cityofaspen.com.
( Published the Aspen Times on February 9, 2017 THE POSTED NOTICE (SIGN)
• LISI ' Ur Mr, V rr i vERS AND GOVERNMENTAL AGENCIES NOTICED
BY MAIL
• APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE
AS REQUIRED BY C.R.S. §24-65.5-I03.3
1�' P N M
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY:
3T Z E 44� Qr, — , Aspen, CO
SCHEDULED PUBLIC HEARING DATE:
22 , 5' ODo ✓vim 120 t=I
STATE OF COLORADO )
ss.
County of Pitkin )
I, " S C (name, please print)
being" repr senting an Applicant to the Ny of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
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 (15)
days prior to the public hearing. A copy of the publication is attached hereto.
Posting of notice: By posting of notice, which form was 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
on 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.
_ Mailing 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 hearing. A
COPY of the owners and governmental agencies so noticed is attached hereto.
Neighborhood Outreach: Applicant attests that neighborhood outreach,
summarized and attached, was conducted prior to the first public hearing as
required in Section 26.304.035, Neighborhood Outreach. A copy of the
neighborhood outreach summary, including the method of public notification and
a copy of any documentation that was presented to the public is attached hereto.
(continued on next page)
M M
Mineral Estate Owner Notice. By the certified mailing of notice, return receipt
requested, to affected mineral estate owners by at least thirty (30) days prior to the
date scheduled for the initial public hearing on the application of development.
The names and addresses of mineral estate owners shall be those on the current
tax records of Pitkin County. At a minimum, Subdivisions, SPAS or PUDs that
create more than one lot, new Planned Unit Developments, and. new Specially
Planned Areas, are subject to this notice requirement.
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.
Signa e
The�rejoing "Affidavit of Notice" was acknowledged before me this 10 day
of 2 . (Z.(o m , 20 ! �- , by AMC::,
NOTICE OF PUBLIC HEARING
RE: Appeal, Interpretation of Title
Public Hearing: February 27, 2017, 5:00 PM
Meeting Location: City Hall, Council Chambers
130 S. Galena St., Aspen, CO 81611
Description: City Council shall hear and de-
cide an appeal of an interpretation of the Aspen
Land Use Code issued by the Director of Commu.
nity Development on December 13, 2016, and no-
Nced in the Aspen Times on December 29, 2016.
The interpretation relates to Section 26.104."
Definitions, specifically, the definition of 'Hotel,
(a.k.a. Lodge) .
Lend Use Reviews Req: Appeal, Interpretation
of Title
Decision Making Body: City Council
Applicant: 312 East Hyman Avenue, LLC; Mark
Hunt, Manager
2001 N. Halstead St. Sul. 304; Chicago, IL 60614
More Information: For further information relat-
ed to ptthe project, contact Ben Anderson at the City
of As
artment
130 S. Galena Sen t., pen, CO (970)ent e429 2765,
Ben.Anderson • cltyofaspen. com.
Published in the Aspen Times on February 9, 2017
(12641400)
• LIST Ul+ ivp- uvvz
BY MAIL
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires:
Notary Public
KAREN REED PATTERSON
NOTARY PUBLIC
STATE OF COLORADO
CHMENTS AS APPLICAB E:NOTARY ID #19964002767
CATION My Commission Expires February 15, 2020
.-POSTED NOTICE (SIGN)
AND GOVERNMENTAL AGENCIES NOTICED
• APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE
AS REQUIRED BY C.R.S. §24-65.5-103.3
■ Complete items 1, 2, and 3.
■ 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.
Mr. Joseph E Edwards, III, P.C.
Klein Cot'e Edwards Citron, LLC
101 South Mill Street
Aspen, CO 81611
A. -Signature
X Agent
Addre
B. Received by (Printed Name) C. Date of geli
6eclOvill AhAh
Is delivery address different from tern VY 0 Yes
If YES, enter delivery address below. ❑ No
'Ilrrrlrll'�I'I��I�rl�l�l�rrlrrr�rrll'�I��Illllr��l�rllllr
3. Service Type
El Priority Mail Express®
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II III
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11111111111111111
❑ Adult Signature
❑Registered MallTM
❑ Adult Signature Restricted Delivery
❑ Registered Mail Restricted
9590 9402 1247 5246 9320 34
Certified Mail®
Delivery
❑ Certified Mail Restricted Delivery
❑ Return Receipt for
❑ Collect on Delivery
Merchandise
2. Article Nu ,er (Transfer from service labep
❑ Collect on Delivery Restricted Delivery 13 Signature ConfirrnatlonT
nsured Mail
❑ Signature tion
1 7199 9 9 9 y 70 1491
rsured Mail Restricted Delivery
ver 500
Restricted
PS Form 3811, July 2015 PSN 7530-02-ODO-9053
Domestic Return Receipt
USPS TRACKING #
First -Class Mail
Postage & Fees -Paid
USPS
Permit No. G-10
9590 9402 1247 5246 9320 34
United States • Sender. Please print your name, address, and ZIP+4® in this box*
Postal Service
City of Aspen
Attn: Ben Anderson
130 S. Galena Street
Aspen, Co 81611
0
so
K C KLEIN COTE EDWARDS CITRON LLC
E C ATTORNEYS
HERBERT S. KLEIN*
hsk@kceclaw.com
LANCE R. COTE, PC**
cote@kceclaw.com
JOSEPH E. EDWARDS, III, PC*
jee@kceclaw.com
KENNETH E. CITRON*** .
kcitron@kceclaw.com
MADHU B. KRISHNAMURTI
mbk@kceclaw.com
*also admitted in Hawaii
**also admitted in California
***also admitted in New York and Massachusetts
December 29, 2016
VIA HAND DELIVERY
Jessica Garrow, AICP, Director
Aspen Community Development Department
130 South Galena St., 3rd Floor
Aspen, CO 81611
101 SOUTH MILL STREET
SUITE 200
ASPEN, COLORADO 81611
TELEPHONE: (970) 925-8700
www.kceclaw.com
DEC 29 2016
Re: Notice of Appeal Concerning Code Interpretation of the Definition of "Lodge
Unit" or "Lodge Key"
Dear Jessica:
This letter constitutes a Notice of Appeal pursuant to Section 26.316.030A of the Aspen
Municipal Code ("Code"). This office represents 312 East Hyman Avenue, LLC, the owner of the
property commonly known as the Crystal Palace. At the request of BendonAdams LLC you issued
an Interpretation dated December 13, 2016 concerning the definitions of "lock -off' units, "lodge
keys" and "lodge unit" (the "Interpretation"). Due to a scanning and delivery error not all of the
Interpretation was delivered to BendonAdams in a timely manner. Consequently, staff determined
the 14-day appeal period commenced on December 15, 2016. While my client is probably not
required to file this Appeal until 14 days after official publication of the Interpretation, we are
filing it within the time allowed for BendonAdams. See Pre -Application Summary attached.
We believe there are two grounds for the appeal:
The Interpretation was in excess of your jurisdiction and an abuse of your discretion
because it goes beyond interpreting the text of the existing Code to establishing policy —
that is, the Interpretation determines what the Code should say, rather than what the Code
does say; and
2. The Interpretation was in excess of your jurisdiction and an abuse of your discretion
because to reach the conclusion of the Interpretation you relied on sources other than the
"text" of the existing Code such as recent development proposals, "industry norms" as
M
r
Jessica Garrow
December 29, 2016
Page 2
shown by the Internet, and the Town of Frisco and Mountain Village regulations
concerning lock -off units.
The question to be reviewed is whether staff exceeded its jurisdiction or abused its
discretion in issuing the Interpretation. The courts will give the City discretion to interpret the
Code provided the interpretation of the Code is reasonable based on the text of the Code; but if the
interpretation is inconsistent with the plain meaning of the text of the Code, then the courts will
not give deference to the City's interpretation of the Code. BOCC of San Miguel v. Colorado
Public Utilities Commission, 157 P.3`d 1083, 1089 (Colo. 2007). In this case, the Interpretation
issued by staff adds words to the Code that do not exist and is therefore inconsistent with the plain
meaning of the Code. Moreover, in the process of adding words to the Code, staff relied on
questionable sources well beyond the "text" of the Code.
1. Text of the Code — Policy.
According to Code, "The Community Development Director shall have the authority to
make all interpretations ofthe text of this Title and the boundaries ofthe zone district map." Code
§26.306.010A, emphasis added. The Interpretation concludes that "the definition of Hotel (a.k.a.
Lodge) as presented in the Aspen Land Use Code, which provides [a] description of lock -off units
and keys, shall be interpreted such that a lock -off unit must contain an in -unit bath if it is to
qualify as a distinct key." Interpretation at page 3 of 4, emphasis added.
The Code does not provide a definition for a Lodge Unit, a Lodge Key or a Lock -Off Unit.
The text of the Code definition of a "Lodge" is as follows:
Hotel (a.k.a. Lodge). A building or parcel containing individual units used
for overnight lodging by the general public on a short-term basis for a fee,
with or without kitchens within individual units, with or without meals
provided and which has common reservation and cleaning services,
combined utilities and on -site management and reception services.
Timeshare (a. k. a. fractional) units and timeshare developments are
considered hotels for the purposes of this Title. For hotels with flexible unit
configurations, also known as "lock -off units, " each rentable division or
"key" shall constitute a lodge unit for the purposes of this Title.
Unless otherwise approved pursuant to Chapter 26.590 — Timeshare
Development, occupancy periods of a hotel or unit thereof, by any one (1)
person or entity with an ownership interest in the hotel or units thereof,
shall not exceed thirty (30) consecutive days or exceed ninety (90) days
within any calendar year, regardless of the form of ownership. Occupancy
periods for person or entities with no ownership interested (e.g.
Jessica Garrow
December 29, 2016
Page 3
vacationers) shall be limited only by the ninety -days per calendar year
requirement.
Nothing in that definition discusses an "in -unit bath" or requires that a lodge unit, much
less a lock off unit or a key, contain a bathroom. Moreover, nothing in the definition states or even
implies that a lodge unit "is a type of dwelling" but the Interpretation (at the top of page 2 of 4)
makes that leap of faith. The Interpretation, without a single word of text in the Code to support
it, makes the leap from Lodge Unit to Residential Dwelling Unit. Based on this leap, the
Interpretation concludes that an in -unit bathroom facility is required in a lodge unit because it is
required in a dwelling unit. The Code makes a very clear distinction between residential units and
lodging facilities. In fact, the City has gone to great effort to ensure that lodge units are not used
as residences.
The Code defines Residence as a Dwelling Unit and provides several types of dwelling
unit definitions based on physical configuration. See Appendix A for the Code definitions for:
Dwelling, attached residential; Dwelling, detached residential; Dwelling, duplex; Dwelling, multi-
family; and Dwelling unit. The above definition of a Lodge requires that the individual lodge units
are used for overnight lodging by the general public on a short-term basis. Kitchens are optional,
but they are required for a Dwelling Unit. There is no requirement for "complete independent
living facilities" as required to be considered a Dwelling Unit. On the contrary, a Lodge requires
common reservation and cleaning services, combined utilities and on -site management and
reception services — the opposite of independent living facilities. The definition of a Lodge does
not refer to a Dwelling Unit or reference that a lodge room is required to qualify as a dwelling unit.
The two types of land use are distinctly different.
The Interpretation involves establishing policy, which is beyond staff s jurisdiction. The
Interpretation hypothesizes that "Staff can see no practical reason to create a unit without an in -
unit bath, other than as an inappropriate mechanism to take advantage of Growth Management
and dimensional standard incentives. " Interpretation at Page 3 of 4. To avoid what staff deemed
an inappropriate mechanism (in other words, to establish a policy to avoid this mechanism), staff
concludes that the definition of a Lodge should include a requirement that each lodge unit and lock
off unit contain an "in -unit bath" despite the fact those words do not exist in the definition of
Lodge. If staff was really concerned about the policy (that is, the "practical reason"), then staff
should consider that most of the individuals renting lodge rooms in Aspen will be unwilling to rent
a lodge room without an in -unit bathroom. A lodge room without an in -unit bathroom (that is,
hostel -style or dormitory -style) is necessarily going to rent for considerably less than a lodge room
with an in -unit bathroom and will help to satisfy the City's articulated goal of having affordable
lodging, as described in the AACP. Such an interpretation will be consistent with Aspen's goals,
rather than the inconsistent goals of the other resorts cited by Staff.
The question "what should the code say? " is reserved for City Council. As the City's
legislative body, the City Council is charged with developing new policy and changing the City's
a
qP
Jessica Garrow
December 29, 2016
Page 4
Code to implement policy. See City Charter §3.4 and Code §26.208.010. The Council must follow
a set of procedural steps, with public hearings and opportunities for public input. In order to avoid
a perceived "inappropriate mechanism," the Community Development Director attempted to
develop and implement policy through this Interpretation. This power is reserved for City Council
and the Community Development Director exceeded her jurisdiction to implement policy through
the Interpretation.
2. Sources Beyond the Text of the Code.
After discussing the definition of a Lodge, the Interpretation considers precedent of
development projects in Aspen, the internet, and definitions from other Colorado communities.
Each of these is a stretch well beyond the text of the Code. It is one thing to consult a dictionary
for definitions of words used in the Code, it is quite another to base the Interpretation on these
sources.
The Interpretation briefly discusses precedent for development in Aspen to support the
conclusion that lodge rooms require bathrooms. A short list of hotels that have lock -off units with
bathrooms in the units is provided. These are almost exclusively high -end lodges and the list only
demonstrates that these hotels did not request to develop units with shared bathing facilities. The
Interpretation fails to acknowledge that Aspen has in the past had lodges with shared bathing
facilities — both the Little Red Ski Haus and the Snow Queen Lodge once had communal bathing
facilities for many of their rooms — and the City never amended its Code to prohibit this lodge unit
style. Since these types of facilities have existed in the past and were never expressly prohibited
this precedent shows a policy or an intention to allow this style of lodge unit to be built.
Next, the Interpretation turns to the "International Encyclopedia of Hospitality
Management," a website called "sell my timeshare now," a website called "redweek.com," and
commentary on a blog called "hotel design, planning, and development." The interpretation
outlines an Internet search that produced a treasure trove of fascinating information — none of
which answers the question: what does the Code actually say? The Google search results from
"hotel design and planning" turned up a site called "sell my timeshare now" which opines on lock -
off units. While the Internet can uncover information helpful for a discussion of land use policy,
it also rationalizes totally weird theories.
Finally, the Interpretation states staff researched the regulations of several other Colorado
communities, many of which had language similar to the Code. The Interpretation specifically
cites to the codes from the Town of Frisco and the Town of Mountain Village which have language
very different from the City of Aspen. The Frisco and Mountain Village codes specify that a lodge
unit and specifically a lock -off lodge unit must have an in -unit bathroom. If anything this
demonstrates that it is a simple matter to require in -unit bathrooms and Aspen has chosen not to
' The website http://www.eivis-is-alive.com/ establishes that Elvis is not only alive but serves as a Special Agent for
the Drug Enforcement Agency. He was appointed by President Nixon.
M
Jessica Garrow
December 29, 2016
Page 5
do so because it is not in the Code. Utilizing an Internet search to create an enforceable doctrine
is a severe stretch of reason and sends a clear signal that the Staff is grasping for a pathway to
support the answer that staff wishes the code provided. An interpretation of the Land Use Code
should be based on the actual text of the Code. Adding language to the Code that does not exist
based on an Internet search is an abuse of discretion.
The disposition of other communities may be helpful information during a discussion of
new policy but it is not relevant to the question of whether Aspen's Code enables lodging to utilize
common bathrooms. Chapter 26.306 enables (and requires) the Community Development Director
to provide an interpretation of the text of this Title of the Aspen Land Use Code— not Frisco's code
or Mountain Village's code. We believe utilizing codes from other communities to regulate land
use in Aspen, while putting aside Aspen's own code and the City's articulated goal of providing
affordable lodging, is an abuse of discretion.
Summary.
It is our position that an interpretation must be based on the adopted text of the City's Code.
An interpretation cannot be based on prospective policy, community sentiment, codes from other
communities, the Internet, or an internet blog. An interpretation answers the question what does
the City of Aspen Land Use Code say? — Not, what should the Code say, what does the Internet
say, what does Frisco 's code say?
A Lodge is a defined land use in the Code. The definition is clear, unambiguous. A Lodge
is distinctly and intentionally defined different from a dwelling unit. A Lodge provides for short-
term stays and prohibits anything that could be perceived as a dwelling unit. There is no text of
the Land Use Code to support staff s position. The Lodge definition simply does not require
bathing facilities within individual units. The code does not prohibit a series of lodge units from
utilizing a common bathroom. The code does not prohibit a hostel -type or dormitory -type
operation with a bathroom down the hall. The words simply aren't there.
We respectfully request City Council find that the Community Development Director
abused her discretion and exceeded her jurisdiction by issuing the Interpretation and confirm that
the Code does not preclude multiple lodge units utilizing a common bathroom. We believe that
NOT requiring an in -unit bathroom for a lodge unit is both consistent with the text of the Code
and advances the existing City policy of promoting small, affordable lodge units.
Jessica Garrow
December 29, 2016
Page 6
Enclosed are our (1) Land Use Application Form, (2) Agreement to Pay Fees, (3) Pre -
Application Conference Summary and (4) the required fee in the amount $1,300.00. If there is
anything additional required in order to pursue this Appeal of this interpretation or if you need
additional information from me, please contact me. It is my understanding that the City will be
responsible for publishing notice of the hearing date for the Appeal.
Very truly yours,
KLEIN COTktDWARDS CITRON LLC
13
Edwards, III
•
so
Jessica Garrow
December 29, 2016
Page 7
APPENDIX A — Dwelling Definitions
Dwelling, attached residential. A residential Dwelling Unit which is physically connected
to one or more other dwellings in either an over -and -under or side -by -side configuration
with common unpierced demising walls or floors/ceilings as applicable.
Dwelling, detached residential. A residential structure consisting of a single Dwelling Unit
with open yards on all sides, excluding mobile homes. Also known as a Single -Family Home
or a Single -Family Residence.
Dwelling, duplex. A residential building on a single lot or parcel comprised of two (2)
attached Dwelling Units in either an over -and -under or side -by -side configuration having
a common unpierced above -grade wall of at least one (1) story in height and ten (10) feet
in length, or a common unpierced wall or floor/ceiling as applicable. Each unit in the
duplex shall contain no less than twenty-five percent (25%) of the total floor area of the
duplex structure.
Dwelling, multi family. A residential structure containing three (3) or more attached
Dwelling Units in either an over -and -under or side -by -side configuration with common
unpierced demising walls or floors/ceilings as applicable, not including hotels and lodges,
but including townhomes, that may include accessory use facilities limited to an office,
laundry, recreation facilities and off-street parking used by the occupants. One (1) or more
Dwelling Units located within a Mixed -Use building shall also be considered a multi -family
dwelling. The term "multi family dwelling" also includes properties listed on the Aspen
Inventory of Historic Landmark Sites and Structures consisting of three (3) or more
Detached Residential Dwellings.
Dwelling unit. A structure or portion thereof, providing complete, independent
living facilities for one or more persons, including, but not limited to, permanent
provisions for living, sleeping, eating, cooking, and sanitation, and which shall not
have an internal connection to any other residential or non-residential unit or use.
Also known as a Dwelling or a Residence.
M
CITY OF ASPEN
PRE -APPLICATION CONFERENCE SUMMARY
PLANNER: Ben Anderson, 429-2765 DATE: 12/21/16
PROJECT: Interpretation, "Lodge Key"
APPLICANT/
REPRESENTATIVE: BendonAdams, LLC; Chris Bendon and Sara Adams
DESCRIPTION:
The applicant submitted a Land Use Code Interpretation request for the definition of a
"Lodge Key". The application for the interpretation was received by Community
Development on November 15, 2016. Staff emailed the completed interpretation to the
applicant on December 13, 2016. Due to a scanning error, at least one page of the
interpretation was not submitted electronically to the applicant. This was corrected on
December 14, 2016. In response to applicants' emails questioning the interpretation and
possible next steps, staff responded with two potential options in moving forward on
December 15, 2016. It was conveyed in this same e-mail that the 14-day period to
pursue an appeal of the interpretation began with the sending of this e-mail on December
15, 2016. The public notice of staff's interpretation will appear in the Aspen Times on
December 26, 2016.
The applicant is considering an appeal of this interpretation. Section 26.316.020.13
indicates that City Council has the authority to hear and decide an appeal of "An
interpretation to the text of this Title... by the Community Development Director...". An
appeal of this nature shall be a public meeting.
The complete application for this appeal would need to be submitted to the Community
Development Department by 4.30 pm on December 29, 2016.
Land Use Code Section(s)
26.316 Appeals
Link to the Land Use Code:
http://www.aspenpitkin.com/Departments/Community-
Development/Planning-and-Zoning/Title-26-Land-Use-Code/
Review by: City Council
Public Hearing: Yes
Planning Fees: Deposit of $1,300 for an Appeal of an Administrative
Decision. This deposit will cover 4 hours of staff time (additional planning hours
over deposit amount are billed at a rate of $325/hour).
•
C�
To apply, submit the following information:
1. Total fee for review of the application.
2. Completed sections of the Land Use Application Form.
o Agreement to Pay Application Fees
o Attachment 2 — Land Use Application
http://www.aspenpitkin.com/Departments/Community-
Deve lopment/P Ian n i ng-a nd-Zon i ng/App I ications-a nd- Fees/
3. A Pre -Application Conference Summary (This document).
4. A cover letter that explains the basis for appeal.
5. 2 Copies of the complete application packet.
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on
the City. The summary is based on current zoning, which is subject to
change in the future, and upon factual representations that may or may
not be accurate. The summary does not create a legal or vested right.
•
M
ATTACHMENT 2 - LAND USE APPLICATION
PROJECT:
Name: Appeal of Code Interpretation: Lodge Unit
Location: n/a (appeal of code interpretation)
Parcel ID # (REQUIRED)
APPI Ir4NT-
Name:
312 East Hyman Avenue LLC; Mark Hunt, Manager
Address:
2001 No. Halsted St. Ste. 304; Chicago, IL 60614
Phone #:
312.850.1680
REPRESENTIVATIVE:
Name:
BendonAdams
Address:
300 So. Spring St. Ste. 202; Aspen, CO 81611
Phone#:
970.925.2855
0 GMQS Exemption
GMQS Allotment
Special Review
ESA — 8040 Greenline, Stream
Margin, Hallam Lake Bluff,
(] Mountain View Plane
0 Commercial Design Review
Residential Design Variance
= Conditional Use
0 Conceptual PUD Temporary Use
0 Final PUD (& PUD Amendment)
Subdivision
Conceptual SPA
Subdivision Exemption (includes
Condominiumization)
Lot Split
0 Lot Line Adjustment
EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.)
see letter
PROPOSAL: (Description of proposed buildings, uses, modifications, etc.)
see letter
Final SPA (&SPA
Amendment)
Small Lodge Conversion/
Expansion
Other: Appeal
Ha a you attached the following? FEES DUE: $
Pre -Application Conference Summary
Attachment #1, Signed Fee Agreement
0 Response to Attachment #3, Dimensional Requirements Form
0 Response to Attachment #4, Submittal Requirements — including Written Responses to Review Standards
0 3-D Model for large project
All plans that are larger than 8.5" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be
submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre -application conference
summary will indicate if you must submit a 3-D model.
40 a
COMMUNITYCITY OF AsPEN • 'DEPARTMENT
ATTACHMENT 3
DIMENSIONAL REQUIREMENTS FORM
Project: Appeal of Code Interpretation: Lodge Unit
Applicant: 312 East Hyman Avenue LLC; Mark Hunt, Manager
Location: n/a
Zone District: n/a
Lot Size: n/a
Lot Area: n/a
(For the purpose of calculating Floor Area, Lot Area may be reduced for areas within the high-water
mark, easement, and steep slopes. Please refer to the definition of Lot Area in the Municipal
Code.)
Commercial net leasable: Existing: n/a Proposed: n/a
Number of residential units: Existing: Proposed:
Number of bedrooms: Existing: Proposed:
Proposed % of demolition (Historic properties only):
DIMENSIONS:
Floor Area:
Existing: n/a
Allowable: n/a
Proposed n/a
Principal bldg. height:
Existing:
Allowable:
Proposed
Access. Bldg. height:
Existing:
Allowable:
Proposed
On -Site parking:
Existing:
Required:
Proposed
Site coverage:
Existing:
Required:
Proposed
Open Space:
Existing:
Required:
Proposed
Front Setback:
Existing:
Required
Proposed
Rear Setback:
Existing:
Required:
Proposed
Combined F/F:
Existing:
Required
Proposed
Side Setback:
Existing:
Required:
Proposed
Side Setback:
Existing:
Required
Proposed
Combined Sides:
Existing:
Required _
Proposed
Distance between Bldgs.
Existing:
Required:
Proposed
Existing:
Required:
Proposed:
Existing non -conformities or encroachments:
Variations requested:
a
31.2 East Hyman Avenue LLC
2001 North Halsted Road #304
Chicago, IL 60614
July 5, 2016
Ms. Jessica Garrow, AICP
Community Development Director
City of Aspen
130 So. Galena St.
Aspen, Colorado 81611
RE: 300- 312 E. Hyman Avenue, Crystal Palace Redevelopment
Ms. Garrow:
Please accept this letter authorizing BendonAdams, LLC to represent our ownership
interests in the 300 and 312 East Hyman Avenue property and act on our behalf on matters
regarding the property.
If there are any questions about the foregoing or if I can assist, please do not hesitate to
call.
Property: Lots K, L, M, Block 81, City and Townsite of Aspen.
Owner: 312 East Hyman Avenue, LLC;
Kind gards,
Mark Hunt, Manager
312 East Hyman Avneue, LLC
2001 North Halsted Road #304
Chicago, IL 60614
(312) 850-1680
a
a
Agreement to Pay Application Fees
An agreement between the City of Aspen ("City") and
Property
312 East Hyman Avenue LLC.
Phone No.:
312.850.1680
Owner ("I"):
Mark Hunt, Manager
Email:
mhunt@rndevco.com
Address of
Billing
2001 N. Halsted St. Suite 304
Property:
312 East Hyman Avenue
Address:
Chicago, Illinois 60614
(Subject of
Aspen, CO 81611
(send bills here)
application)
I understand that the City has adopted, via Ordinance No., Series of 2011, review fees for Land Use applications and payment
of these fees is a condition precedent to determining application completeness. I understand that as the property owner that
I am responsible for paying all fees for this development application.
For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are
non-refundable,
$. flat fee for $, flat fee for
$. flat fee for $. flat fee for
For Deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not
possible at this time to know the full extent or total costs involved in processing the application. I understand that additional
costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete
processing, review and presentation of sufficient information to enable legally required findings to be made for project
consideration, unless invoices are paid in full.
The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to
the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of
an invoice by the City for such services.
I have read, understood, and agree to the Land Use Review Fee Policy including consequences for no -payment. I agree to pay
the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not
render and application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I
agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly
rates hereinafter stated.
$_1 :too deposit for 4 hours of Community Development Department staff time. Additional time
above the deposit amount will be billed at $325.00 per hour.
$ deposit for hours of Engineerinre
tment staff time. dditional time above the
deposit amount will be billed at $325.00 per hour.
City of Aspen: Property Ow
Jessica Garrow
Community Development Director Name: Mark Hunt
City Use:
Fees Due: $_Received $ Title: Manager, 414 422 East Cooper Avenue LLC.
January, 2016 City of Apen 1 130 S. Galena St. 1 (970) 920 5050
a
•
February 7, 2017
Mr. Mark Hunt, Manager
312 East Hyman, LLC
2001 N. Halstead St.; Suite 304
Chicago, IL 60614
RE: Appeal of an Interpretation, definitions of Hotel (a.k.a. Lodge), lodge key and lock -off unit
Dear Mark,
As required per Section 26.316.030.D; Notice Requirements, of the City of Aspen Land Use Code,
this letter serves as notice that a public hearing will be held on Monday, February 27, 2017, to
begin at 5:00 p.m., before the Aspen City Council, City Council Chambers, City Hall, 130 S.
Galena St., Aspen. The purpose of the hearing is to consider an appeal of an Interpretation that you
submitted.
The Interpretation was issued in response to a Request for a Land Use Code Interpretation,
originally submitted by BendonAdams, LLC. The Interpretation determined that a Lodge Key, or
Lock -off Unit must include an in -unit bathroom if it is to qualify as a distinct key. For further
information, please feel free to contact me at 970.429.2780 or by email at
Jessica.Garrow@cityofaspen.com. A memo that details the staff response to your appeal will be
emailed to you in advance of the City Council meeting..
Regards,
Jessica Garrow
Community Development Director
Cc: Mr. Joseph E. Edwards, III, P.C.
Klein Cot6 Edwards Citron, LLC
101 South Mill Street
Aspen, CO 81611
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CITY OF ASPEN
COMMMI 11 D ZLOWE tl I THE CITY OF ASPEN
Land Use Application
Determination of Completeness
Date: January 3 2017 d co i • 2-o 1-7 - A5 L L4
Dear City of Aspen Land Use Review Applicant,
We have received your land use application for Interpretation of Lodge Key, Appeal and have
reviewed it for completeness.
Your Land Use Application is complete:
Please submit the following to begin the lan,�l use review process.
1) Digital pdf of the entire application. t/
2) Review deposit of $1,300.00 V
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.
Tha You,
ennifer PUan, Deputy Planning Director
City of Aspen, Community Development Department
For Office Use Only:
Mineral Rights Notice Required
Yes No7-
GMQS Allotments
Yes Now _
Qualifying Applications:
New PD
Subdivision, or PD (creating more than I additional lot)
Residential Affordable Housing
Commercial E.P.F. Lodging
•
Agreement to Pay Application Fees
An agreement between the City of Aspen ("City") and QOO l • 2O)
Property
312 East Hyman Avenue LLC.
Phone No.:
312.850.1680
Owner ("I"):
Mark Hunt, Manager
Email:
mhunt@mdevco.com
Address of
Billing
2001 N. Halsted St. Suite 304
Property:
312 East Hyman Avenue
Address:
Chicago, Illinois 60614
(Subject of
Aspen, CO 81611
(send bills here)
application)
EM
Fr'.
I understand that the City has adopted, via Ordinance No., Series of 2011, review fees for Land Use applications and pay
of these fees is a condition precedent to determining application completeness. I understand that as the property own
I am responsible for paying all fees for this development application. T
n
For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fefarp
non-refundable. SIP
r�
ry
f cm
$. flat fee for $. flat fee for _
$. flat fee for $. flat fee for
For Deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not
possible at this time to know the full extent or total costs involved in processing the application. I understand that additional
costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete
processing, review and presentation of sufficient information to enable legally required findings to be made for project
consideration, unless invoices are paid in full.
The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to
the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of
an invoice by the City for such services.
I have read, understood, and agree to the Land Use Review Fee Policy including consequences for no -payment. I agree to pay
the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not
render and application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I
agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly
rates hereinafter stated.
$_1 300 V deposit for 4 hours of Community Development Department staff time. Additional time
above the deposit amount will be billed at $325.00 per hour.
$ deposit for hours of Engineering r
tment staff time. f�dditional time above the
deposit amount will be billed at $325.00 per hour.
City of Aspen:
Jessica Garrow
Communitv Development Director_ /
City Use: / V
Fees Due: $ v Received $
Property Owoer:
Name: Mark Hunt
Title: Manager, 414 422 East Cooper Avenue LLC.
January, 2016 City of Apen 1 130 S. Galena St. 1 (970) 920 5050