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HomeMy WebLinkAboutminutes.apz.20170523Special Meeting Planning & Zoning Commission May 23, 2017 1 Mr. Spencer McKnight, Acting Chair, called the May 23, 2017 meeting to order at 4:30 PM with members Mr. Rally Dupps, Ms. McNicholas Kury, Mr. Keith Goode and Mr. Spencer McKnight. Mr. Jesse Morris, Ms. Jasmine Tygre, Mr. Ryan Walterscheid and Mr. Skippy Mesirow were not present. Also present from City staff; Ms. Andrea Bryan, Assistant City Attorney, Ms. Jennifer Phelan, Deputy Planning Director and Mr. Justin Barker, Senior Planner. COMMISSIONER COMMENTS There were none. STAFF COMMENTS: There were none. PUBLIC COMMENTS: There were none. MINUTES There were none. DECLARATION OF CONFLICT OF INTEREST There were none. Public Hearings – 210 W Main St – Deed Restriction Amendment Mr. McKnight asked about the public notice for the hearing to which Ms. Bryan replied notice was not required. Mr. McKnight then turned the floor over to staff. Mr. Justin Barker, Senior Planner, noted the existing structure on the property was originally developed in the 1960’s. It consisted of eight free market units with six in the front and two in the back. In 1995, the property owner submitted a growth management exemption for a change in use application to allow for a commercial operation in one of the back units. As part of that application, the applicant volunteered to deed restrict the unit adjacent to the one designated as commercial. P&Z approved the request with the deed restriction on unit 8 as the mitigation for the increase in employees associated with the commercial use. He stated this was a bit different from a typical review because this approval allowed for a hybrid type of use and the code doesn’t really address how to deal with this situation. From his review of the minutes from that time, it appears the deed restriction was allowed as a fail-safe in case unit 7 converted to commercial. If the commercial use disappeared, the deed restriction could be lifted. Mr. Barker stated the applicant is asking to modify the deed restriction to reflect what was agreed upon at the time of approval. The deed restriction included a requirement for P&Z to approve the modification to the deed restriction. This was not a condition of approval in the original change of use Special Meeting Planning & Zoning Commission May 23, 2017 2 resolution. He noted the deed restriction was also not signed by the City. The applicant is requesting to change the language of the deed restriction to state if the commercial use is removed in the future, the deed restriction can be lifted and have it go back to the two free market residential units as originally built. Mr. Barker stated in his review of the 1995 land use file for the change in use, it showed the deed restriction was only intended to be there while the commercial use was in operation and not a full-time change. He closed stating staff is recommending approval of the amendment to the deed restriction. He stated the applicant would have to file a new building permit to establish the change in occupancy prior to lifting the deed restriction, but it would not need to come before P&Z in the future. Mr. Barker stated Aspen Pitkin County Housing Authority (APCHA) reviewed the request on May 17th and was in favor of recommending approval of the request. Mr. McKnight asked if there were questions of staff. Ms. McNicholas Kury stated it appears there is a public notice on the front of the building. Mr. Barker stated the posted notice is for a concurrent application being reviewed by the Historic Preservation Commission (HPC) for a 100% affordable housing project. Mr. McKnight asked if this request needs to be approved for the other application to happen. Mr. Barker replied not necessarily. He believes the applicant wanted to accomplish this cleanly as two separate actions. Ms. Phelan believes it also clarifies the unique circumstance for the project because hybrid uses are not allowed today. Mr. Barker noted one addition to the draft resolution in the packet. A statement was added to the end of the first paragraph in Section 1 to allow APCHA to make minor changes to the deed restriction. Mr. Goode asked when the City stopped allowing for hybrid projects. Ms. Phelan noted this is the first one she has seen. She believes it was a unique circumstance negotiated at the P&Z meeting. Mr. McKnight then turned the floor over to the applicant. Ms. Sara Adams, BendonAdams, introduced herself and the owner applicant, Mr. Ted Guy. Ms. Adams stated they wanted to clean this up as a separate action in case the HPC application does not go forward, they still have a strange deed restriction to deal with. Ms. Adams stated the applicant’s attorney, Mr. Rick Neiley and Mr. James True, city of Aspen’s attorney have met to discuss this application along with input from APCHA. Ms. Adams explained after reviewing the project this weekend, they were surprised to see the requirement for a building permit and certificate of occupancy (CO), which is the first they have seen it. The language in the deed restriction states the approval of the Community Development Department when the commercial use is no longer in existence. The applicant team believed these details would be flushed out at a later date and their attorney has not yet viewed this additional language. Special Meeting Planning & Zoning Commission May 23, 2017 3 Ms. Adams noted the resolution and the deed restriction are not totally balanced with each other. Ms. Adams suggested to P&Z to leave the language in the deed restriction and have it be consistent with what is in the resolution by removing the requirement for the building permit and a CO issued. Mr. Guy wants to have additional conversations with the building department to figure out how he can change his occupancy. The applicant team would prefer this to remain open to be determined in the future by working with the Community Development Department instead of having it in the resolution. She stated this is their only concern. Mr. Ted Guy noted when they sought the approval in 1995, he and his ex-wife owned the building. He has negotiated the end of her commercial use in the building in approximately three years. He noted the old deed restriction was in Pitkin County, not the City of Aspen and it requires him to tear down unit 8 if it is no longer needed as affordable housing which he did not catch at the time. To end the commercial use, he needs to remove the barber chairs and sink associated with the hair salon. He feels to go through a building permit for this seems extremely onerous. He feels it is a zoning matter and not a building matter. This is why he would prefer to have some flexibility to work this out in the future without having to back through a hearing process. Mr. McKnight asked staff to respond and also for questions for the applicant. Ms. Phelan answered a change of occupancy requires a building permit which goes back to basic life safety issues being met before conversion of one use to another. Staff does not feel this is negotiable and is standard procedure. She concluded if the applicant is that concerned, then perhaps the hearing should be continued. Mr. Dupps asked if it was within P&Z’s authority to override a building permit. Ms. Phelan did not believe it could be done. Ms. Adams responded for flexibility in the language to be able to continue the conversation which they feel needs to happen. Mr. McKnight asked the applicant which part of the draft resolution concerns them. Ms. Adams replied the second paragraph of Section 1 that was added. Mr. Goode asked if the timing was of concern. Mr. Guy replied he has a legitimate use of residential. He is not going from commercial to residential. There are no life safety issues. He wants to terminate a temporary use as a hair salon and it should not require a building permit. Ms. Adams replied they are not asking P&Z to determine what does or does not require a building permit. They are asking for more flexible language to allow for a conversation. They do not want any life safety issues. They don’t feel they have had the time from Monday morning to this meeting to have a conversation with their attorney. Mr. McKnight stated this is not the first time something has come up before a meeting with not a lot of time. He agrees with Ms. Phelan that the hearing should be continued to allow for more time. Ms. Phelan stated Mr. Mike Metheny, Building Department Field Inspection Manager, is available. Staff had asked Mr. Metheny what would be required to turn it back in to pure residential use. Ms. Adams stated the applicant is not open to continuing the hearing. Special Meeting Planning & Zoning Commission May 23, 2017 4 Ms. McNicholas Kury asked if the project before HPC not subject to a building permit. Ms. Adams stated it is, but this is a separate issue. Ms. Phelan stated this may be a non-issue if the project being reviewed by HPC moves forward, this effort is a backup of clarity for what is exactly the hybrid use. If the project on Main St does not go forward as proposed and the property was sold, there would be clarity on what type of credits would be available for what is existing. The hybrid use creates some uncertainty as to what it is. Mr. Guy stated he has the right to come back with a further modification if his attorney finds the language unacceptable. He has not had a chance to speak with his attorney. He really wants a real deed restriction instead of what is currently in place. No one understands how it happened. Mr. McKnight then closed that portion of the hearing. Mr. McKnight opened the public comment and no one was available so he closed this portion of the hearing. Ms. Bryan reminded him it was not a public hearing. Mr. McKnight then opened for commissioner discussion. Mr. McKnight stated he is hesitant to do anything with the language in the resolution. Ms. McNicholas Kury feels this would have been valid criteria to include in the memo to note a permit was required to be pulled. Ms. Phelan replied they did not build building code requirements. Mr. Goode motioned to approve Resolution 10, Series 2017 with the red line amendments. Ms. McNicholas Kury seconded the motion. Mr. McKnight asked for a roll call. Roll call: Mr. Goode, yes; Ms. McNicholas Kury, yes; Mr. Dupps, yes; and Mr. McKnight, yes for a total of four yes votes and zero no votes (4-0). The motion was approved. Mr. McKnight then closed the hearing. OTHER BUSINESS None. A motion was made to adjourn and seconded. All in favor, motion passed. Cindy Klob City Clerk Department, Records Manager