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HomeMy WebLinkAboutminutes.council.20040927Regular Meeting Aspen City Council September 27, 2004 PROCLAMATION American Physical Therapists.i ...... : .................................. 2 CITIZEN PARTICIPATION .................................. 'i'....i.ii....,.~.ii ...... ..~ii.~ ................... 2 COUNCILMEMBER COMMENTS ' . .......... ... 3 CONSENT CALENDAR .............................................................................................. 4 · Resolution #91, 2004 - 2005 CIRSA Property/Casualty Renewal ......................... 4 · Resolution #92, 2004 - Contract water iine- 8th & Francis ................................... 4 · Minutes September 13, 2004 ............................................................................... 4 RESOLUTION #93, 2004 Contract Burlingame Infrastructure Construction Administration ....................................................................................... 5 FIRST READING OF ORDINANCES ................................................................... 5 · Ordinance #32, 2004 - Innsbruck Inn PUD ............................................................ 5 · Ordinance #33, 2004 - Soldner/Burlingame Annexation ....................................... 5 · Ordinance #34, 2004 - Soldner/Burlingame Disconnect ....................................... 5 ORDINANCE #27, SERIES OF 2004 Code Amendment RMF and RMF/A zones .................................................................................................................. 7 ORDINANCE #30, SERIES OF 2004 -Residences at Little Nell Final PUD ORDINANCE #31, SERIES OF 2004 - Supplemental Appropriation ......... 16 RESOLUTION #94, SERIES OF 2004 - Appeal of Code Interpretation related to Timeshare Fi scal Impacts .................................................. i ..................... 17 Regular Meeting Aspen City Council September 27~ 200a Mayor Klanderud called the meeting to order at 5:05 p.m. with Councilmembers Torre, Paulson, Richards and Semrau present. PROCLAMATION- American Physical Therapists Mayor Klanderud and Council acknowledged the significant ContribUtions of these dedicated professionals and proclaimed October 2004 as American Physical Therapists' month. Council presented prOclamations to Tim Reed, B.J. Williams, Jan and Lisa. CITIZEN PARTICIPATION 1. Caroline MacDonald said she is bringing this issue up for the fourth time and she has done everything' she can to bring this to Council's attention. Ms. MacDonald said her complaint, which as been ignored by the city, is that there is different enforcement for different people. MS. MacDonald presented a tree removal permit #2003-001 signed by the parks department showing a mitigation of $12,500 for a blue spruce removed On the property. Ms. MacDonald showed a picture of that tree removed. The tree removal permit requires the tree to be paid for prior to a release of certificate of occupancy. Ms. MacDonald said th'e de~elOper i;~mov~da'~e located in March 2003. Ms. MacDonald said the Council is elected to abide bY guidelines. Ms. MacDonald said this developer gOt aWay with cutting down this tree for free. Steve Barwick, city manager, said he will look into this and report back to Council. 2. Mark Friedberg said many citizens are concerned about the Burlingame project. Friedberg requested Council conduct studies on Burlingame, studies that are commensurate with other larger projects done in the valley, to determine the real cost in terms of impact on the community the residential and the structural impacts. Friedberg said the city should spend monev and hire consultants to give the public and opportunity to see the real costs of this project. 3. Connie Harvey said the private citizens adjacent to the Burlingame project asked to be included in planning for Stage road. They were promised they would be included. The decision was made that the road would be privatized and come under the jurisdiction, of the new homeowners' association. Ms. Harvey said the homeowners would still have the right to use the road but the Zolines would control the zoning. Ms. 2 Regular Meeting Aspen City, Council September 27~ 2004 Harvey stated this is allowing private citizenS to do the zoning for other private citizens. Ms. Harvey asked why' they were excluded from this. Steve B arwick, city manager, said he would have to research the pre- annexation agreement to see what the access arrangements are. Mayor Klanderud noted the land use application on the Zoline parcels has not come to Council. Councilman Semrau asked that the city send Ms. Harvey a copy of the pre-annexation agreement. 4. Scott MacDonald said he has been addressing the city on deficiencies in the tree ordinance since 1998. MacDonald said delay and sandbagging are employed by the city. MacDonald said Council keeps public input to a minimum. MacDonald said it appears that all questions on constitutionality should be directed to the courts. MacDonald said he submitted annotations on the constitution and taking of property. MacDonald stated Council has not addressed these annotations. MacDonald pointed out Council pleads ignorance on issues and CoUncil proposes to spend a lot of money on solar heating for Burlingame and is ill informed on the merits of passive solar heating. MacDonald said when questioned about who owns a property owner's trees, the city attorney replied the escrow company. Mac Donald told Council he talked to the state's expert on home rule cities who told him annotations to the articles of the state constitution are the nuts and bolts of any court. MacDonald asked why the Council cannot interface with the public on constitutionality. 5. Toni Kronberg requested Resolution #93 be pulled from the consent calendar. Ms. Kronberg said this is a contract for Burlingame infrastructure administration. Ms. Kronberg said the Zoline and Burlingame Villages have not gone through the land use approval process, yet there is a road being constructed and infrastrUcture installed. Ms. Kronberg noted there is an article in the paper stating that there are 608 fewer job in the valley in the last 2 years. COUNCILMEMBER COMMENTS 1. Councilwoman Richards stated the deadline to register to vote in the November election is Monday, October 4th. 2. Councilwoman Richards requested staff to look at the recycling center. The road is muddy and it seems like it needs to be graded. Regular Meeting Aspen City Council September 27~ 2004 3. Councilman Torre said he takes citizens comments very seriously and the city should answer these concerns either individually or in the paper. Councilman Torre said there have been comments about the Burlingame process and he would like to see that addressed. 4. Councilman Torre noted this is'Julie Ann Woods last week. Councilman Torre thanked her and stated it has been a pleasure to work with her. 5. Councilman Semrau said there is a lot of information on Burlingame and on the process. Councilman Semrau suggested staff get this all together and list the studies, the approvals, and the meetings so the public can see the work to date. 6. Mayor Klanderud noted a lot of studies on Burlingame have been done. Traffic studies were done, enrollment in the school has been looked at. Steve Barwick, city manager, pointed out affordable'housing does not pay for itself; it does put service burdens on every type of district. Councilman Semrau noted the city is getting development propOsals for Burlingame, which will include transportation mitigation. Friedberg said Council can clear the air by letting citizens feel there is no attempt to hide issues that need to be addressed. 7. Steve Barwick, city manager, thanked Julie Ann Woods for her service. Barwick said she is a great manager and a joy to work with. Barwick introduced Christopher Lee, new planning department employee. CONSENT CALENDAR Councilman Semrau moved to approve the consent calendar as amended; seconded by Councilwoman Richards. The consent calendar is: · Resolution #91, 2004 - 2005 CIRSA Property/Casualty Renewal · Resolution #92, 2004 - Contract water line - 8th & Francis · Minutes - September 13, 2004 All in favor, motion carried. 4 Regular Meeting Aspen City Council September 27, 2004 RESOLUTION #93, 2004 - Contract Burlingame Infrastructure Construction Administration Toni Kronberg said this contract is for surveying for different aspects of the Burlingame project. Ms. Kronberg said this project should not be approved until the land use approval process has been completed and the impacts for Burlingame have been evaluated. Councilman Semrau asked what is the scope of work in this contract. Bed Ludlow, asset manager, told Council issues with developing the scope of work are whether the city wanted construction surveying done and paid for by SGM or by the contractor. The previous contract with SGM is expiring and thiSis the next step. Survey work is $97,000 of this contract; the remainder is for construction administration by SGM including attending construction meetings, approving shop drawings. Councilwoman Richards moved to approve Resolution #93, Series of 2004; seconded by Councilman Semrau. All in favor, with the exception of Councilman Paulson. Motion carried. FIRST READING OF ORDINANCES Ordinance #32, 2004 Innsbruck Inn PUD · Ordinance #33, 2004 Soldner/Burlingame Annexation · Ordinance #34, 2004 - Soldner/Burlingame Disconnect Councilman Semrau moved to read Ordinances 32, 33, and 34, Series of 2004; seconded by Councilwoman Richards. All in favor, motion carried. ORDINANCE NO. 32 (SERIES OF 2004) AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING THE MINOR PLANNED UNIT DEVELOPMENT, SUBDIVISION, TIMESHARE, AND LODGE PRESERVATION AND AFFORDABLE HOUSING GMQS EXEMPTIONS FOR THE INNSBRUCK INN, LOCATED AT 233 WEST MAIN STREET, LOTS A-E, BLOCK 52, CITY AND TOWNSITE OF ASPEN, COLORADO. 5 Regular Meeting Aspen City Council September 27, 2004 ORDINANCE NO. 33 (SERIES OF 2003) AN ORDINANCE OF THE ASPEN CITY COUNCIL VACATING THE ALLEY LOCATED IN BLOCK 11, EAMES ADDITION, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLO~O. ORDINANCE NO. 34 (SERIES OF 2003) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN APPROVING AN AMENDMENT TO CHAPTER 26.480 OF THE CITY OF ASPEN MUNICIPAL CODE, TO ALLOW HISTORiC LANDMAPd( LOT SPLITS ON DESIGNATED PARCELS LOCA~TED~'~THIN SUBDIVISIONS Were read by the city clerk Councilwoman Richards moved to adopt Ordinances 32, 33 and 34, Series of 2004, on first reading; seconded by Councilman Semrau. Councilwoman Richards noted there have been representations made about limits or boundaries of Council's approvals on the forms of ownership based on CIOWA; are there differences between fractional o .wnership and condominiumization. Councilwoman Richards requested for second reading on the Innsbruck Inn Council have information on the different forms of ownership and on what grounds these are approved or denied. Mayor Klanderud noted there are no park dedication fees included in the ordinance. James Lindt, community development department, tOld Council park dedication fees are applied to residential units. Mayor Klanderud noted fractional fee units are residential units. Lindt said he will address this issue at second reading. Councilman Paulson requested separate roll call votes. Ordinance #32 Roll call vote; Councilmembers Semrau, yes; Torre, yes; Richards, yes; Paulson,' yes; Mayor Klanderud, yes. Motion carded. Regular Meeting Aspen City Council September 27, 2004 Ordinance #33 Roll call vote; Councilmembers Torre, yes; Richards, yes; Paulson, no; Semrau, yes; Mayor Klanderud, yes. Motion carded. Ordinance #34 Roll call vote; Councilmembers Richards, yes; Paulson, no; Torre, yes; Semrau, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #27~ SERIES OF 2004 - Code Amendment RMF and RMF/A zones Chris Bendon, community development department, reminded Council these amendments came from the infill proposals and work sessions. Council decided they would like to see higher intensity uses in these zones proximate to downtown. At the public hearing last month, several issues arose. This ordinance increases the development rights for multi-family hoUsing by dimensions and floor area ratios and decreases those for single family and duplexes in these zones. The proposed FAR for single family and duplex is 80% of that allowed in the R-6 zone. One issue is what happens to existing duplexes and single family houses in those zones. Bendon presented two options for existing houses. Option 1 is that those existing structures maintain their 100% FAR and the lower scale is applied at time of demolition and redevelopment. Option 2 is not contingent on demolition; all existing houses are entitled to the 100% FAR and only new houses would be subject to the 80%. Bendon pointed out the second issue is whether existing houses can land TDRs, Which is a permitted option now. Landing a TDR would add 250 square feet of development to the base FAR allotment. The proposal is not to allow any TDRs in this zone. Options are to allow TDRs only on existing structures or to allow them on all houses, new or existing. Bendon recommended against allowing increased density relying on demolition because when one lands a TDR, it becomes attached to the property. Mayor Klanderud opened the public heating. Toni Kronberg stated she supports this ordinance because it intensifies density within. the traditional townsite and focuses growth towards already developed areas. Mayor Klanderud closed the public hearing. Regular Meeting Aspen City Council September 27, 2004 Bendon told Council the TDRs would provide a slight advantage of developing a single family or duplex in the RMF zones. If it is Council's intent to minimize new single family and duplexes in the RMF zones, it is a negative. On the plUs side, it provides more land sites for historic TDRs. Bendon said there are 5 residential zones that allow TDRs, R-6, the R-15 zones and R-30. Mayor Klanderud reopened the public hearing. Herb Klein said if the goal is to encourage new properties to develop at higher density, the preservation of existing properties will not create any disincentives. Klein stated he preferred this ordinance maintain the existing FAR for existing properties even after demolition. Mayor Klanderud closed the public hearing. Councilman Semrau pointed out the FAR schedule is healthy for higher density and he would prefer to have some experience before allowing this to be a TDR landing site. Councilman Semrau said if the city allows 100% for existing structures at demolition he would not favor TDRsas the rationale is limiting single family and duplexes. If CoUncil choOses the 80% option, then it would be appropriate to allow TDRs to land to make up the square footage at demolition. Councilman Semrau said he supports allowing 100% FAR at demolition. Mayor Klanderud and CounCilman 'T6rre agreed. Councilman Semrau moved to adopt Ordinance #27, Series of 2004, on second reading including option 2(a) on the FARs allowing 100% at demolition; seconded by COuncilmanTorre:~ Roil call vote; Councilmembers Paulson, no; Torre, yes; Semrau, yes; RiChards, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #30, SERIES OF 2004 - Residences at Little Nell Final PUD Chris Bendon, community development department; went over the various approvals and pointed out the growth management exemptions are conversions of residential reconstruction credits to lodge development credits, replacement of multi-family units, reconstruction of cOmmercial development and of affordable housing. This prOject inci~idesreconstruction of Dean street, a pedestrian right-of-way owned by the city. There is an 80 8 Regular Meeting Aspen City Council September 27, 2004 foot grade differential on the site from north to south, which is one of the reasons s this a complex site. This project entails demolitions of the Tipple Inn, the Tipple lodge, the Tippler nightclub and the Henn residence. The proposal is 108,000 square foot structure, 24 fractional units of 19 three- bedroom units and 5 four-bedroom units, 16 lock off units, and a total of 40 keys. The fractional fee units are divided into 1/8th interests. There are 8 lodge units included. There are two free market residential units; 8 on-site affordable housing units. Bendon told Council there are 15 affordable housing units at the Obermeyer project and 8 affordable housing units to be developed at the AirPort Business Center. Bendon pointed out there is 8900 square feet of commercial space, 70 parking spaces below ground. The Little Nell ski lift will be moVed to the east to give more room to an outdoor dining and bar area. Bendon reminded Council during conceptual review, the applicants were requested to move the mass of the building uphill and away from the North of Nell. Bendon said the purPose of the zoning at the base of the ski mountain is not for second homes with low usage. Bendon told Council the timeshare concept provides for a mechanism to insure turnover. Bendon noted there is no existing bed base on this property so there is no sales tax issue with conversion. There is a on-site restaurant with outdoor dining along the ski hill. Bendon said this is a positive to provide vibrancv at the base of the mountain. This is open to'the public and provides an interface between the mountain and the town. There is retail space along Dean street, which should improve the pedestrian environment and also add vitality. Bendon said staff feels the design adds an urban edge quality to the streetscape with a mix of building forms. Bendon reminded Council concerns about the height were expressed at first reading. Bendon said the differences in heights have to do with where the measurements were taken. The method of measuring this building has changed. There is an 80-foot grade difference in this property and the applicants and staff have decided to have one control point adjacent to the city with a height plan to be recorded. The height of the building is not substantially differen~ ~fr0~ ~hat'Was approved at conceptual. This can be graphically shown. Bendon said there was some concern on the wholly owned units and that this was a change from conceptual review. There is an explanation for the change, including additional property to the south which has been included 9 Regular Meeting Aspen City Council September 27~ 2004 and'that this property could be developed as a duplex. These units have the same height and massing as the rest of the project. Bendon told Council there is sufficient parking for a short-term project, 70 spaces underground and two surface holding spaces. Bendon told Council the applicants bought down 15 one-bedroom resident occupied units in the Obermeyer project to categories 2 and 3. The 8 three-bedroom units proposed at the ABC will be categories 2 and 3. This meets the affordable housing requirements Council approved at conceptual review, how much was required in-town and how much in the UGB. The housing authority gave a favorable recommendation. Bendon noted there is a significant amount of underlying development right through exemptions for residential and commercial redevelopment and lodge conversion. The project will mitigate for the conversion. The affordable housing plan meets the employee demands. The staffing requirements come from the Little Nell'hotel that will operate the lodge as well as city studies. Bendon said the Little Nell's employee estimates are higher than that of the city's. Bendon told Council the affordable housing project at the ABC has been approved by Pitkin County. There are 8 three-bedrOom units, categories 2 and 3. A total of 60 employees will be housed. COnceptual approval required 60% of these to be housed within the city and 40% within the UGB. The requirement is being met. Staff supports this application; it is basically the same as that approved in conceptual. P&Z supported the application 4 to 0. Sunny Vann, representing the applicant, told Council this is basically the same project.that received conceptual approval. One change is the size of the project site and what is included in it and the architecture. Vann went over the project site, including the Tipple Inn, Tippler night club and Tipple Lodge, the Henn, Anderman, Jacoby and WestPac residences. Prior to conceptual review, 4 of the 8 parcels (D, E, F and G) were eliminated. P&Z recommended the mass of the building be moved to the north and concentrated at Dean Avenue. The applicants moved the building and concentrated the mass on A, B, C and H. Parcel H, west of the. Little Nell lift, will be acquired from the Aspen Skiing Company. The 4 parcels that were eliminated contained 4 single family residences. In the final PUD, parcel D has been added back into the picture. Parcel D contains about 7,000 square feet. This parcel has to be acquired in order to obtain Henn's consent; then the applicants had to purchase parcel G and move Henn into that parcel. 10 Regular Meeting Aspen City Council September 27~ 2004 Parcel E had to be purchased by the applicants. The single family house is being torn down, rebuilt and one of the Tipple Inn owners will be relocated there. This project has been approved by the city as a separate project. Vann told Council the applicants are required to rebuilt the tram, which provides access to these 4 sites. There is no vehicular access to the 4 lots at the south end of the site. As a result of adding parcel D back into the site, the total is now 66,700 square feet. Parcel D is zoned LTR. Vann told Council the plan is to develop two additional units as part of the development program. These units are in a building attached to the main building by a central elevator from the parking garage to these residences. Vann said the proposal is that these will be whole ownership units, which are a permitted use in LTR as well as in a mixed use project. Vann said they will reserve the ability to convert these to fractional units if they do not sell as whole ownership. The gross square footage addition is 9800 square foot; the units being 3500 and 3700. The allowable FAR is 6,000 square feet. Vann noted one condition from Henn is that these units cannot exceed the height of the existing residence as he does not want his view obstructed from his new parcel. This two unit addition on parcel D is no greater than the height on the Henn residence. These units will be operated as part of the Residences. The parking supplied meets the city cOde and no variations are being requested. There is one space for each of the affordable housing units. There are 2 spaces per dwelling units and 1 parking space for each key in the fractional ownerships as well as 8 parking spaces for the hotel units. Vann reminded Council for the Hyatt project, a uniform height measurement was chosen, which was a point adjacent to Dean. Vann said this building does not have a uniform height across the roof. The height exhibit measures the top of the building at various key points to finish at natural grade. Vann said when this project was submitted at conceptual, the highest point was 56', which was halfway up Galena street on the Galena street elevation. When the building was modified to reduce the visual impact on the North of Nell, the height on the Galena elevation was 49', which was what was indicated as the maximum height. Vann stated this was not the maximum height for the entire building but the revised height on this Galena elevation. There are points around the building that are measured at 50'+. Vann stated the height did not change from conceptual approval. Vann said it is very difficult to find land in the city to purchase and make an affordable housing project work. The applicant and Council reached a 11 Regular Meeting Aspen City Council September 27~ 2004 compromise of minimum of 59% affordable housing in the city and 41% within the UGB as well as a minimum of 50% category 2 and no more than 50% category 3 and a combination of buy'downs, conversions and new construction. Vann told Council they looked at many projects and came up with a combination of on-site new construction, off-site new construction and buy downs. The projected employee generation is 75 employees; the 60% requirement equals 45 employees to be mitigated for the Residences as well as 15 employees to be mitigated for under the RMF'replacement program. The total mitigation of 60 employees is based on a staffing plan developed by the Little Nell, who will operate the property. The on-site units will be category 2, rental. The ABC property will be 17 three-bedroom units, designed to category 3 standards, being rented at category 2 and 3. These units are designed to county standards as well as to the ABC requirements. Only 8 of these 17 units will apply to the Residences in order to meet the 41% outside the city limits. Vann went over the model, showed where the project is located, the components of this project, the parcels, where the elevators will be and various elevations, the infrastructure improvements. Kim Weill, architect, told Council they have tried to keep the model as accurate as possible. This model includeS how the elevator works at the top.,The applicants thought they would be able to use new technology to operate the elevators; however, this is not possible. The elevators are the highest points; one is 58', which is measured from the elevator to the ground, inside the existing Tippler. Bill Poss, architect, showed the north elevation, average 37'8"; the ,Galena west elevation is 40' 10" above the new grade of the hotel. The code requires measurements at the more restrictive, the existing topography or finished. Vann reiterated this project has not changed from the conceptual approval except for the additional of the 2 units on the upper portion of the site. Poss showing renderings of the project coming down Dean street and how it relates to the North of Nell. Poss showing a rendering of how the building will look skiing by and the aprbs ski area deck and tying it into the gondola operations. Renderings of the architectural at conceptual and the current design and the differences, with a more horizontal look, different materials. Poss showed the building from the gondola plaza, the Galena elevation with the entrance to the garage, the employee units, and the two new residential units. They have added interest and vitality to the building, stepping the levels, adding balconies. Mayor Klanderud opened the public hearing. 12 Regular Meetin~ Aspen Cit~ Council September 27, 2004 Joe Raczak, North of Nell, stated they support the project and hope the Dean avenue becomes the pedestrian walkway that it has always been envisioned. Raczak asked Council position on the legal and ethical differences from conceptual to final approvals; is an 18% variation too much? Vann stated the height around the perimeter is the same building as represented at conceptual. The numbers changed because of the Way the city measures the height. Vann said the building has been stepped back from the NOrth of Nell and that was represented at conceptual. Mayor Klanderud said her assumption is that what was represented at conceptual was the way the city measures height. Vann said no heights along the Dean avenue right-of-way were memorialized. Bendon said heights along the Dean and Galena facades were discussed at conceptual; there was no heights specified throughout the building. Vann said the applicants continue to refine the individual heights. The 49' was measured in the middle of the Galena street faCade. Vann told Council the applicants never represented the maximum height was 49'; Vann said there were always points of the building that were higher than 49'. Poss presented a drawing illustrating the original conceptual design, the conceptual approval and a green line representing the building in front of Council for final approval. Raczak said the previous project had merit and is needed at the base of the mountain; however, he is still confused about the difference in height measurements. Bendon suggested a drawing with overlays for what was presented at conceptual, approved at conceptual and what is the final plan. Mayor Klanderud Said the difference is having a concept and what is approved at final design. Toni Kronberg said the concept of this is it is a big square mass and does not stick to the AACP description of a ski town. Ms. Kronberg asked what is one more large building. Ms. Kronberg said a big issue is going to be traffic management on Durant. Ms. Kronberg said Council should start moving forward with an aerial transportation system. Mayor Klanderud closed the public hearing. David Hoefer, assistant city attorney, said the rule is whether is project is substantially the same as was approved at conceptual. Hoefer said if Council did not think a project was substantially the same, they should send it back to P&Z. Vann said there are places where the height will be less than 13 Regular Meeting Aspen City Council September 27, 2004 indicated; some places where the height will be more. Councilman Semrau agreed an 18% change from conceptual apprOval would be significant. This is not 18% variation from conceptual approval. Councilwoman Richards said she does not think the hours for the apres ski operation are long enough. Vann told Council they had parameters in the draft PUD agreement. P&Z objected to the high level of specificity and stated that an operator should outline his own plan. Mayor Klanderud stated her concern is that this remain open to the public and not be a private facility for the owners of the units. Councilwoman Richards said one of the items of public benefit for this project is the bar/aprbs ski and she does not want the hours to be a decision of the operator and have it closed or the hours too short. Councilwoman Richards said she would like to see this addressed before final vote. Councilwoman Richards said the changes in facade make this building look more monolithic. Councilman Torre asked the height of the elevator shaft from Dean street and how high the front of the building rises above the North of Nell. Councilman Torre about the decrease in commercial square feet, the decrease in overall keys, the increase in residential units. Vann pointed out the actual commercial square footage did not change; one number is gross, one number is net. Vann reiterated the height has nOt changed. The 49~ number in the chart is only one height in the building. The maximum height of the building did not increase 9'. The building was alreadYhigher than 49'. Vann reminded Council the size of the building decreased after P&Z review. The different numbers reflect the evolution of the Project and an attempt to be more accurate with the measurements. Councilman Torre said his concern is this is locking up the last open space at the base of the ski mountain. Nothing else will be built at the base of the mountain. Councilman Torre said he is concerned about fractional ownership. Councilman Torre said the application notes them will be i44 days of"float time", which will probably not be available in peak season. C6uncilman Torre said this may be taking away the ability for more people to come and enjoy Aspen. Vann said it is not economically possible to build a hotel with the cost of land. The next best thing is fractional ownership. The city is concerned that this program does not get abused and drafted a very strict set of regulations for fractional fee ownership. This project complies with all the mandatory requirements of the fractional program. Vann said owners will occupy the 14 Regular Meeting Aspen City Council September 27, 2004 units and will spend money in town. Brooke Peterson, representing the applicants, stated this building is nearly exactly what was approved at conceptual. Vann said when conceptual was approved, a set of heights around the perimeter was not established. Elevator shafts can exceed the allowed height by 10'.. Councilman Semrau agreed a large part of approving this is as a public amenity. Vann said the applicants represented the restaurant/bar is a public amenity. The applicants are amenable to any reasonable definition of what that might mean. The applicants specified this in their application and P&Z did not agree with the specificity. Peterson stated this has always been intended to be public restaurant space and public aprbs ski space. The definition of that is difficult. Mayor Klanderud said apres ski is not sufficient for her. This should be a year round operation or at least when the weather would allow operation. The underlying concern is that this not become a private club. Peterson noted the management agreement with the Little Nell is that this be open when the Little Nell is open and allow one month closure for maintenance. Peterson said he does not want to hamstring an operator of this space. Peterson said Ski Company events are staged at the bottom of Aspen mountain and this is designed for aprbs ski but not to interfere with Ski Company special events. Councilman Semrau said his concern is that this is open to the public, much as Ajax Tavern is. Mayor Klanderud asked if there will be offices allowed along Dean street. Vann answered there is a prohibition in the PUD agreement. Mayor Klanderud said there is a recommendation by the housing board that Obermeyer tenants be given preference in the Obermeyer units. Bendon said this approval has no effect on the Obermeyer approvals. Vann said that is part of the agreement between Obermeyer and the city. Vann said these applicants are giving Obermeyer money to buy down. these units; it does not affect the city's agreement. These applicants have changed the category of the units from RO to categories 2 and 3. Mayor Klanderud asked if the hours at the rooftop pool are restricted. Vann said this is a water feature surrounded by chairs. The PUD agreement does have a limitation on the uses. There is no restaurant or bar at this pool. The pool will only be available to guests of the Residences. Councilman Torre asked if the 2 surface parking space will be adequate. Vann said there is 15 Regular Meeting Aspen City Council September 27~ 2004 valet parking and this is a space to move the cars if there is waiting. Councilman Torre asked if there is shuttle service from the airport. Vann said yes. Councilman Semrau said he feels this is architecturally more interesting and more handsome than that approved at conceptual. Councilman Semrau said he was concerned about the residential units; however, they will be built whether part of this project or not. CoUncilwoman Richards said fractional fee projects have proven to do a good job taking care of owners but do not pursue rentals. Vann said this is required to be rented, to be listed with central reservations and to be actively promoted by the Little Nell. Vann said besides trying to increase occupancy, this is also try/ng to meet a need for the Little Nell, to have .available larger units that the Little Nell does not have. There is a physical link with the Little Nell as well as an operational agreement. Council agreed to continue this in order to get further information on the differences in the heights between conceptual and final to include overlay elevations, language on the restaurant use, clarifying the language in the Obermeyer agreement. Councilman Torre moved to continue Ordinance #30, Series of 2004, to October 12; seconded by CoUncilman Semrau. All in favor, motion carried. ORDINANCE//31, SERIES OF 2004 - Supplemental Appropriation Paul Menter, finance director, told council this is the third supplemental appropriation of the year and requests approval of $3.5 million, which consists of carry forward projects .from 2003, $60,000 in grants, ARC painting, police equipment rePlacement of $167.000, yellow brick improvements, $300,000 for Cemetery Lane trail, wind power purchases, S- curves. Council has reviewed most of these requests previously. Mayor Klanderud opened the public hearing. There were no comments. Mayor Klanderud closed the public hearing. Councilwoman Richards asked about the $167,000 for the police department equipment; this is needed equipment but not purchased and now it .is coming out of general fund balance. Menter told Council since 1999 the small item capital replacement has been excluded from the budget. At that time, the 16 Regular Meeting Aspen Cit,v Council September 27, 2004 city changed the threshold for items to be funded out of the AMP to be $5,000 or more. The police department funded this for one year in their budget. The exclusion is $40,000 for the last 4 years. Steve Barwick, city manager, said the police department wanted to develop a plan for purchasing this equipment and the money was to be saved; however, it was deleted from the budget. The expenses have not changed. Councilwoman Richards said with an amount this large, she would like to have seen a break down of the major items. Councilwoman Richards noted this money is coming out of general fund balance and has not been anticipated. Councilwoman Richards asked the general fund balance after this ordinance. Menter said the projection for the general fund is $5.8 million. Councilwoman Richards asked how much is above reserves. Menter said it is $750,000. Councilman Torre moved to adopt Ordinance #31, Series of 2004, on second reading; seconded by Councilwoman Richards. Roll call vote; Councilmembers Semrau, yes; Paulson, yes; Richards, yes; Torre, yes; Mayor Klanderud, yes. Motion carried. Councilwoman Richards moved to suspend the rules and extend the meeting to 9:35 p.m.; seconded by Councilman Torre. All in favor, with the exception of Councilman Semrau. Motion carried. RESOLUTION #94, SERIES OF 2004 Appeal of Code Interpretation related to Timeshare Fiscal Impacts David Hoefer, assistant city attorney, reminded Council for an appeal of this type, staff's decision should not be reversed or modified unless there is a finding that there was a denial of due process or staff exceeded its jurisdiction or abused its discretion. James Lindt, community development department, said this is an appeal of a code interpretation; Council may reverse, affirm or amend the interpretation. Lindt said the decision being appealed is an administrative policy related to the way the finance department reviews the fiscal impact analysis for conversion of lodges to timeshare lodges. This establishes two policies. One is that the review of a conversion to timeshare should be reviewed on a tax by tax basis. This is important because tax revenues are limited as to what they can be spent on. If there is a down turn in tax revenues, this could impact city services in specific categories. Secondly, unbuilt but approved lodge units should be taken into account in fiscal impact analysis. Lindt reminded Council the city has been using this methodology since the first timeshare applications. The 17 Regular Meetin~ Aspen City Council September 27, 2004 Grand Aspen started out as a.smaller hotel, got approval as a larger hotel and then received approval to convert to timeshare. The city looked at the difference in revenue between larger, approved hotel and timeshare. Staff feels this is the appropriate way to determine what the negative tax impacts of a conversion to timeshare is. The applicant argues this should have been done through a code amendment rather than a code interpretation. Lindt said if Council wants this in the code, staff will process a code amendment. Staff recommends Council affirm staff's interpretation. Mitch Haas noted he is not telling Council the policies are wrong but that these policies were adopted through interpretation without a public process. Haas said he feels some of these policies are worthy of code amendments. Haas said to amend policies in the code by an interpretation are a denial of due process and beyond jurisdiction of staff. Haas said the interpretation requires a tax to tax comparison rather than a review of overall impacts for taxes generated versus what has been generated in the past 5 years. Haas pointed out the last paragraph of the fiscal impact legislation says an applicant may submit such other information as they believe is relevant to understanding the tax consequences of a conversion and that these are to be considered. Haas said the only way to consider these is the overall impacts of the project. Haas stated if indirect tax benefits of a project cannot be used to offset any tax loses somewhere, why ask for these indirect tax benefits. The code seems to contemplate the ability to offset loses in one area with gains in another area. Haas said legislation should not ignore the benefits of a project and only look at the negatives of a project. Haas said this legislation appears to avoid the appearance of an impact fee. Haas noted staff's memo points out previous applications went through under this interpretation. Haas said that does not mean every applicant should have to follow this mistake; one mistake does not equal precedent. Haas said the larger issue of fairness is to future applicants and to the public for being denied the chance to comment on this through a public process. Haas said another issue is taking a project as it exists plus any approvals and comparing that, even though the approved units have never been built. Haas stated the code states the opposite of this, "the fiscal impact study shall contain at least the following comparison between the existing lodge operation and the proposed timeshare development". The "existing lodge operation" does not include approvals that have never been built nor acted 18 Regular Meeting Aspen Ci,ty Council September 27, 2004 upon. Haas noted an existing approval has never been built and has never generated any revenues. Haas reiterated these should be considered as code amendments through a public process. Haas requested the interpretation be declared null and void or that Council agree these should be code amendments and not interpretations. Mayor Klanderud asked if Haas or his clients have been adversely affected by the code interpretation. Haas said he has clients who are in the process. Mayor Klanderud asked why this is an appeal rather than a request for a code amendment or a specific request. Haas said this interpretation has already been approved and has not gone through a code amendment. Mayor Klanderud said it is difficult to understand why this is .an appeal. Haas told Council he had a land use application in, submitted the fiscal impact analysis pursuant to the existing code. Haas was told there was an interpretation to add other parts to the fiscal impact analysis. Haas asked the city attorney how to appeal this interpretation and was told to submit a request for an interpretation and appeal it because it is denial of due process. Mayor Klanderud said this is not appropriate material for an appeal. Councilman Torre agreed there may be a different way to get this accomplished. Councilman Torre said there has been n° decision for one to file an appeal. Councilwoman Richards said she does not see standing for an appeal. Councilwoman Richards said the issue of tax to tax versus overall indirect tax benefits that may accrue to the city makes it sound like land use decisions are only about tax value when it is about neighborhood compatibility, dimensions, etc. Mayor Klanderudagreed there is no standing for her appeal and she would support staff's decision. Haas said the criteria here is denial of due process or abuse of discretion. Haas pointed out the code does not state an applicant has to be harmed by a deciSion but an affected member of the public can appeal. Haas stated the adoption of this interpretation is a denial of due process. Haas said the adverse decision is that he was asked for an interpretation and it was given to him. Councilwoman Richards said an adverse decision is that an applicant, has to be able to show harm. Hoefer said unless Haas is representing a client or there has been a financial implication, this is an intellectual exercise. Haas told Council he represents the Innsbruck, an existing 33 unit lodge. The fiscal impact was based on a 37 unit lodge. Mayor Klanderud said there 19 Regular Meeting Aspen City Council September 27~ 2004' has not been a final decision by Council on the Innsbruck. Council will have an opportunity to consider this request at second reading of the Innsbruck. Mayor Klanderud stated this appeal is premature. Hoefer said this appeal could be combined with the Innsbruckrev. iew. Paul Me~¢r, finance director, told Council this code interpretation flowed out of the ordinance adopted in 2002 as an effort to make sure the city created a set of standard, rigid rules and guidelines to be followed exactly the same for every calculation for every applicant. Menter said this process went through finance, community development department, city attorney and city manager. Staff determined the interpretation flowed from the language in the code. Menter pointed out the city tax revenues go into different funds with specific uses, it is necessary to evaluate these on a tax by tax basis. An increase in one tax cannot offset a decrease in anoth~rta~ .~.d. Menter read "any applicant proposing to convert an existing lodge to a timeshare lodge development shall be required to demonstrate that the proposed conversion will not have a negative impact for the city". Staff interpreted that prior approvals constitute development rights granted by the city for a development, which presents potential tax benefits for the city and should be considered as part of the base for calculating lost revenue. Mayor Klanderud reiterated an appeal is premature at this time. Councilman Paulson said he would like to continue this and to hear from the city attorney. Mayor Klanderud stated there has been no adverse determination. Councilman Paulson moved to continue Resolution #94, Series of 2004; seconded by Councilman Semrau. Councilwoman Richards said she 'would like to make a decision to uphold staff's interpretation; this would not preclude an applicant from processing a code amendment. Councilwoman Richards said she feels the code is being applied consistently, project to project. Approvals for increase in size create value and run with the property. Councilman Paulson in favor; everyone else opposed. Motion NOT carried. Councilwoman Richards moved to approve Resolution #94, Series of 2004, upholding the community development director's interpretation; seconded by Councilman Torre. 20 Regular Meeting Aspen City Council ~ September 27, 2004 Councilman Semrau said Haas has brought up valid points; however, this is not the venue in which to explore those. Mayor Klanderud said this does not foreclose the applicant's opportunity to bring this up again. Councilwoman Richards said it is more appropriate to discuss this issue in the context of the land use application rather than in a hypothetical. All in favor, with the exception of Councilmembers Paulson and Semrau. Motion carded Councilman Torre moved to continue the Council meting to 4:30 p.m. September 28th; seconded by Councilwoman Richards. All in favor, motion carried. Council left Chambers at 10 p.m. Kat~n ~/f<:och, City Clerk 21 Continued Meeting Aspen City Council September 28, 2004 Mayor Klanderud called the continued meeting to order at 5:05 p.m. with Councilmembers Semrau, Torre, Paulson and Richards present. Councilman Semrau moved to go into executive session at 5:05 p.m. to discuss two items, Kinder/Morgan lawsuit and Smuggler land purchase pursuant to C.R.S. 24-6- 402(4)(a) acquisition of property and (b) conferring with counsel; seconded by Councilman Torre. All in favor, motion carried. Councilwoman Richards moved to come out of executive session at 5:50 p.m.; seconded by Councilman Semrau. All in favor, motion carded. Councilwoman Richards moved to adjourn at 5:50 p.m.; seconded by Councilman Torre. All in favor, motion carri ed. Kathryn S. Koch, City Clerk