HomeMy WebLinkAboutminutes.council.20171023Regular Meeting Aspen City Council October 23, 2017
1
SCHEDULED PUBLIC APPEARANCES – APA Colorado Planning Award ........................................... 2
CITIZEN COMMENTS ............................................................................................................................... 2
COUNCIL COMMENTS ............................................................................................................................. 3
CITY MANAGERS COMMENTS .............................................................................................................. 3
AGENDA ADDITION ................................................................................................................................. 3
BOARD REPORTS ...................................................................................................................................... 4
CONSENT CALENDAR ............................................................................................................................. 4
Resolution #139, Series of 2017 – Purchase of Woody Creek Parcel .................................................. 4
Resolutions #132, Series of 2017 – A towing services agreement between the City of Aspen and
Shaun’s Towing and Recovery ..................................................................................................................... 4
Minutes – October 9, 2017 .................................................................................................................... 4
NOTICE OF CALL UP ................................................................................................................................ 4
ORDINANCE #26, SERIES OF 2017 – Add alternate member position to the Wheeler Board of
Directors ........................................................................................................................................................ 6
ORDINANCE #25, SERIES OF 2017 – 515 Park Circle, Major Public Project Review ............................ 6
ORDINANCE #24, SERIES OF 2017 – Transferable Development Rights – 119 Neale Avenue .............. 9
ORDINANCE #23, SERIES OF 2017 – Post Moratorium Clean-Up Ordinance ...................................... 12
EXECUTIVE SESSION ............................................................................................................................. 13
Regular Meeting Aspen City Council October 23, 2017
2
At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Hauenstein, Frisch
and Myrin present.
SCHEDULED PUBLIC APPEARANCES – APA Colorado Planning Award
Jessica Garrow and Justin Barker, community development, stated the Colorado chapter of the American
Planning Association gives out awards every year. The city won the award for our design guidelines. We
were one of 27 projects submitted for review. The award is given based on innovation, quality,
promotion of public good and if it is transferable to other communities. Bendon Adams and Rowland
Broughton are also part of the award.
CITIZEN COMMENTS
1. Aliea Howe, Carbondale, wanted to make council aware of the community arts programming at
Justice Snows. It is a vital venue for locally performing artists to cultivate a local arts audience.
It is also a way to help the community and a mentoring program for the arts. She asked if we
could find a way to support Kiley so she is more fiscally viable.
2. Natalie Rae Fuller, Carbondale, said she is a local poet that takes part in the events at Justice
Snows. It gives them an opportunity to perform in a historic building. She would like to see the
arts continue. Kiley always paid and fed us.
3. Kelly Snyder, works at Justice Snows as a bartender. She said she went around the community
and got some signatures to show people do love Justice Snows.
4. Steve Barlochie, Aspen resident for the last 16 years and works for Shamrock foods. He’s
worked with Kiley for the last five years. She has been a great business partner but has had some
bumps in the road. She needs a new business model and needs the two months to figure it out to
pave the way for success in that spot. He would like council to give her a shot.
5. Edward Schmidt, 275 Paepcke Drive said they have a rodent issue. They have caught more than
20 mice in the last 10 days. They are coming in through the infrastructure and believe it is a
building defect. The developer has declined to provide assistance. A major concern is rodents
can take over pretty quickly and are difficult to get rid of. He is looking to get the conversation
going.
Jack Wheeler, asset, said we were notified in mid September. We let them know it was an HOA
and homeowner issue. He went out and looked for himself. Everything behind paint is an HOA
issue. We walked the building and there is no clear area where they are coming in. The original
budget for the HOA included a pest control line item. There are things they could be doing that
they are not. He does not believe it is a construction defect. Suggesting the homeowners and
HOA address the issue. Councilman Frisch asked is it the HOAs official response that it is not an
HOA issue and solely on the city. Colleen said we have not gone to the board themselves and
have only been in touch with Will Rutledge the property manager. Jim True, city attorney, said
his understanding is a pest control expert would come in and evaluate the property and
recommend solutions. Has anyone come in and evaluated. Colleen replied yes, he has only done
a walk around and did not see an entry from the lower level. Mr. True replied what I’m looking
for is someone with the expertise to evaluate this fully and determine if it is an actual defect.
Someone needs to hear from a pest control expert as to the source of the entry. Mr. Wheeler said
the pest control expert said he could not find any construction defect and would set traps outside
the building and see what he comes up with. He said he could not pin point any one thing but all
construction has defects. Mr. True said we don’t have enough information to assume it is a defect
of the construction. Councilman Frisch said it would be helpful if you could have an official
HOA meeting on this issue and get clarity from them. He needs some more clarity on what the
official issue is. Mayor Skadron said the conversation needs to start with the HOA and we need
an evaluation from an expert. Councilman Hauenstein said the first step should be to talk with
the HOA. Councilman Myrin agreed the process is through the HOA first.
6. Michelle Kiley, owner of Justice Snow’s, said she is not a status quo operator but trying to
improve the community at large. She was considered a long shot seven years ago. Since then she
Regular Meeting Aspen City Council October 23, 2017
3
has delivered a beautiful restaurant the community could be proud of. It sometimes has
competing goals. She will do everything in her power to make the restaurant succeed. Currently
she is working on a new pro forma, critical path checklist and refining a P&L. She stands ready
to take the restaurant to a performance where it needs to head to be a benefit to the community.
Councilman Myrin asked what is the planned opening date. Kiley replied she would really
benefit from the time to reorganize. The goal is to reopen as soon as possible, the third week of
November. Councilman Frisch said in hindsight the discussion seven years ago was affordability.
We are in a pickle with the lease as you want a longer time to reconfigure the lease. Is part of the
plan to possibly change the terms of the lease. Kiley replied no, she reexamined the conditions
and asking to change the terms would require an RFP process. Councilman Frisch said there is
rent and staying open and closing for no more than two weeks. Are you aware a longer closure
would be a violation. Kiley stated she is aware the closure runs longer than what is in the lease.
She would like to think they won’t be faced with this in the next five years. Councilman Frisch
said is one of the conditions to reopen the continuation of the lease for the next five years. Kiley
said it would be my preference given we are going to invest considerable resources to improve
the business. She is here at the discretion of the community. Mayor Skadron said regardless of
what one feels about the cost of a hamburger, your commitment to creating a locally serving
venue through the programming is unquestionable. That is a measure of success. Councilman
Hauenstein said a five year lease with a five year extension, he is curious why you did not renew
when it came up. Kiley said we began talking with the city at the appropriate time but there is the
balancing the affordably with the costs. It has been a measure of difficulty to offer quality with
affordability. Councilman Myrin said he does not think I’m the one to make the decision on how
to run a business but if the doors are not open it can’t be locally serving.
COUNCIL COMMENTS
Councilman Hauenstein said the ski swap is truly a social event and it felt more back to the local roots.
This weekend was the fall face off and a great event.
Councilman Frisch said following up on the financial policy discussion. Another one that might be
helpful is when rent is paid to the city it is managed by the department overseeing it. A month late it
should be brought to the manager and over three months brought to Council. It is important for us to
know about it and good policy.
Mayor Skadron said 30 days from today the lifts are scheduled to open. The Murdoch Mind Body series
opens on Thursday and the institute.
Councilman Hauenstein moved that the Council award $2,000 to Simi and Noah to help support their
efforts in pursuit of their Olympic dreams. $1,000 for each coming out of the Council contingency.
Seconded by Mayor Skadron. All in favor, motion carried.
CITY MANAGERS COMMENTS
Steve Barwick said it was not mentioned that Justice Snow’s came in Friday with a rent check and are up
to date as of today.
AGENDA ADDITION
Mr. True would like to add to the executive session a discussion on a personnel matter.
Regular Meeting Aspen City Council October 23, 2017
4
BOARD REPORTS
Councilman Hauenstein said Sister Cities is having a trip to Queenstown. They also made a request for a
memorial plaque for Don Sheeley in Sister City plaza.
Councilman Myrin said he went to the chamber thing last week and they suggested everyone take their
vacation and use their days.
CONSENT CALENDAR
Reso #139 – Woody Creek Parcel purchase
Councilman Frisch said this is an election question but Council direction is this will be purchased. It is
just a matter of how. Bonds if the voters give approval or COPs if they don’t. It is protecting water rights
and potentially moving water storage.
Councilman Myrin said he does not support the dams on Castle and Marron creek and he is not
supportive of the alternative solution at Woody Creek. There are ones that don’t require open water
storage in Woody Creek.
Board Appointments
Mayor Skadron said Nina Gabinelli has been appointed to the Wheeler Opera House board of directors
and Ashley Chod has been appointed to the Next Generation Advisory Commission.
• Resolution #139, Series of 2017 – Purchase of Woody Creek Parcel
• Resolutions #132, Series of 2017 – A towing services agreement between the City of Aspen and
Shaun’s Towing and Recovery
• Minutes – October 9, 2017
Resolution #139, Series of 2017 – Councilman Frisch moved to adopt Resolution #139, Series of 2017;
seconded by Councilman Hauenstein. All in favor except Councilman Myrin. Motion carried.
Councilman Hauenstein moved to adopt Resolution #132, Series of 2017 and the minutes; seconded by
Councilman Frisch. All in favor, motion carried.
NOTICE OF CALL UP – Notice of HPC approval of Minor Development, Commercial Design and
Growth Management Review at 122 W Main Street – HPC Resolution #21, Series of 2017
Amy Simon, community development, stated HPC granted approval for the existing building. It is a
1990s building located in the Main Street historic district. Reviews include exterior remodel, change to
entry, front door and windows, deck added on top of exiting porch and dormers in the back. The board
did find the exterior changes were appropriate. Staff had some concerns. The interior remodel will
convert existing office to lodge units. There will be two units with three bed rooms. It will require
growth management allocations. It will address second tier commercial space standards. HPC also
looked at trash and recycling. They approved the project by a 6 to 0 vote. There was discussion where
the applicant objected to conditions related to lodge use. HPC passed the resolution as written. We
worked with the applicant to improve the solution and it was brought back to HPC and passed by a vote
of 5 to 0.
Councilman Frisch asked is the use a discussion now or is it windows. I have a fundamental concern. Is
this a loophole we are dealing with. It does not seem like they are operating as a lodge. Ms. Simon said
the scope triggered a call up so you can look at all aspects considered. We did recommend in favor of the
project finding it met the lodge standards in place when they applied. Councilman Frisch asked are they
using the lodge because it is most beneficial to them or are they really running a lodge. Ms. Garrow said
this is one of the first projects that has gone through the new code. We did a really through review. The
applicant has stated on the record that they plan on using this as a lodge and would be subject to all the
audit criteria. We feel and HPC felt it met the criteria. Councilman Frisch said he read the minutes and
Regular Meeting Aspen City Council October 23, 2017
5
did not see any discussion of use. The only thing I read about is why the owner needs to house
employees when they come from different regions. I did not read anything about lodging. He is
concerned we have a 2 unit lodge and tonight we will be discussing the minimum number of units for a
hotel and it is a lot more. Ms. Garrow said the lodge use in terms of parking and fees is not really much
different than commercial space, it is based off the MU district. We think the applicant was thinking out
of town staff would stay at this hotel then be used as nightly rentals. It is unique and nothing we have
seen before.
Councilman Myrin said he has the same concerns as Adam. Will it be open to the public when not in use.
It has a different feel than a traditional use. We can’t change this we need to change the code. Mr. True
said we are presenting that discussion tonight to prevent this small lodge. Calling it up would send it to
HPC who are not considering the uses. Representatives have insisted they will treat this as a lodge that
will be available to the city. Councilman Myrin said here we are ahead and realize the code needs
changed and this is simultaneous to this.
Councilman Hauenstein said the basement is second tier space. Two lodging units with a lock off. Ms.
Simon replied correct. Councilman Hauenstein said staff feels this falls within all the zoning and code.
Ms. Garrow said free market residential are not allowed in the MU zone. This proposal is for a mixed use
building with lodging and commercial space. Councilman Frisch said we missed this during the
moratorium period. They need temporary employee housing and are trying to figure out how to
maximize revenue. Ms. Garrow said the code amendment tonight was a response to Hotel Lenado. It
meets the requirements and standards of the code. We can speculate but the applicant has stated they plan
to use this as a lodge. Mr. True said there is a distinction that they are subject to very strict audit
requirements. Councilman Frisch said he has no problem with the model, what he is worried about is the
benefits they are getting in not really running a lodge.
Mayor Skadron asked how many days can the property be used by the owner. Ms. Garrow said the code
allows an entity to stay in a room that they own for 30 consecutive days and no more than 90 per calendar
year.
Sara Adams, representing the applicant, said Timberline Bank plans to run this as a lodge. Out of town
consultants can stay here instead of another lodge in town. There are strict lodge auditing and they are
fully aware of those. They are an honest group of people and we take the representations very seriously.
Mayor Skadron asked what was the intention for this part of town. Ms. Garrow said partially dimensions
and bringing the MU areas to standard. Updating the design guidelines for historic and non historic
structures. Use considerations to continue to allow small lodges, commercial and single family homes.
Remove free market from all commercial zone districts.
Mayor Skadron asked is a loophole being exploited or is it a different product. Ms. Garrow said it is a
new product. In terms of floor area, heights, parking and trash, there is no difference between a lodge and
a commercial building. Mayor Skadron asked why is the bank going in to the lodging business. Ms.
Adams said they saw this as an opportunity to house consultants but also make money when they are not
staying there. Councilman Frisch said it is a loophole but may not have a derogatory term in 5 years. It is
in their economic interest for them to fill it up.
Councilman Myrin said it could also be sold. Ms. Garrow said they could be condominiumized and sold.
The resolution specifically says it is not free market residential. Councilman Frisch said if it does not get
called up and the owner wants to convert the lodge into condos and sell them off to single ownership, they
cannot. Ms. Garrow said there is a difference between ownership and use. They could ask to
condominiumized the units but they would stay as a lodge use. They cannot convert to free market
because that is not allowed in the zone.
Councilman Hauenstein said there are controls over how long the owner can be there but there are no
control over having the unit rented. He sees this as a lodge by name only but there is nothing we can do
about it. Councilman Frisch said a concern would be if a board of director of the bank was living there
for 200 days. As the model is now they are going to want to fill it up. He does not support calling it up
because we can’t change it.
Regular Meeting Aspen City Council October 23, 2017
6
Mayor Skadron said he is skeptical of this. He does not think it will be lodge rooms but a vacation unit.
It does not make sense why Timberline bank would want to be in the lodging business. It appears to be a
residential property disguised as a lodge. This is essentially the hotel Lenado model. It will not be called
up.
ORDINANCE #26, SERIES OF 2017 – Add alternate member position to the Wheeler Board of
Directors
Linda Manning, city clerk, stated one of Councils top 9 goals is to evaluate the role of boards and
commissions. We had a work session on September 5th as part of this goal and Council gave direction to
add an alternate member to the Wheeler board. Shortly after, Council conducted interviews to the board
and once again directed staff to bring this back. This is first reading to add the alternate.
Councilman Myrin asked would this adjust the way alternates are appointed to full members. Ms.
Manning said currently if any regular member resigns or leaves the board for another reason the alternate
is automatically appointed. The issue we had prior, is if a regular members term expires and is up for
renewal it is up to the alternate to apply for that position. The alternate is not atomically appointed to fill
the term of an expired member. Councilman Myrin asked is that the same for all boards. Ms. Manning
replied yes.
Councilman Frisch moved to read Ordinance #26, Series of 2017; seconded by Councilman Hauenstein.
All in favor, motion carried.
ORDINANCE NO. 26
(SERIES OF 2017)
AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, AMENDING ORDINANCE NO. 50,
SERIES OF 2013 TO ADD AN ALTERNATE MEMBER TO THE BOARD OF DIRECTORS OF THE
WHEELER OPERA HOUSE.
Councilman Hauenstein moved to adopt Ordinance #26, Series of 2017 on first reading; seconded by
Councilman Frisch. Roll call vote. Councilmembers Hauenstein, yes; Myrin, yes; Frisch, yes; Mayor
Skadron, yes. Motion carried.
ORDINANCE #25, SERIES OF 2017 – 515 Park Circle, Major Public Project Review
Justin Barker, community development, said this is the first of three affordable housing projects being
submitted by Aspen Housing Partners in conjunction with the city. It is located on Park Circle at the base
of smuggler trail. Currently it is a vacant lot zoned R15 with a PD overlay. It is a 2 lot subdivision
proposed to be rezone to AH. The PD is for 11 affordable housing units with 7-1 bedroom and 4-2
bedroom units. There will be 11 parking spaces. The public process will consolidate all the reviews. The
first step was P&Z. They reviewed and recommended approval with conditions. The intention of the
zone is to be scattered to provide a variety of use and a diverse mix. As a PD, dimensions are established
through the PD. Some dimensions are proposed to be varied by 10% to accommodate flexibility. Floor
area, even with the 10% still falls well below what the zone recommends for a lot of this size. There is a
15 foot set back on the south side and 5 on the remaining sides. Even though only 5 is requested the
development sits 50 feet from the property line. The southwest corner does include some retaining
features in the setback and there is a request for some flexibility to accommodate the retaining features.
For parking, the code requires 15 spaces, 1 per bedroom. The applicant is proposing 11, 1 per unit.
Council can set the parking number. Unmitigated transportation impacts with the 4 spaces promotes a
shift towards different parking options instead of physical spaces. Staff provided 3 alternatives to meet
the requirement; explore shared parking with the Smuggler lot, surplus transportation options or pay cash
in lieu. The applicant could choose the method. Tax credits could have some different requirements in
Regular Meeting Aspen City Council October 23, 2017
7
regard to the parking. A small portion falls in the 8040 greenline area. Sensitive development with
adequate services. There is decent infrastructure and we feel it meets all the criteria. The property sits
within the Smuggler super fund site so additional documentation will be needed to how to mitigate for the
site. Question from first reading is why are there two areas within the superfund site. The EPA notes
unique site features per site. The property does require growth management allotments for 11 affordable
housing units. The unit size all fall within 5 to 10 percent net leasable within APCHA guidelines. They
can reduce that by 20 percent. The application was reviewed and approved by APCHA. It is a fairly
common practice lately for a reduction in unit size. They noted they may look at the numbers in the
future since several projects have come in that way. The applicant would like to hold off designating
categories at this time until all 3 projects have approvals. For voluntary units, the code does not limit the
category. They are required to be rentals for the first 15 years due to the tax credits. The application is
subject to design standards. The street presence and relationship between public and private realm meets
all the standards. The subdivision amendment is mostly clean up. Since first reading the applicant is
requesting waivers of parks and air quality impact fees. Council can waive these fees. The school lands
dedication fee cannot be waived. They are also requesting 5 years vesting, 2 more than typical. This is
up to council to determine.
Staff recommendation is for approval with conditions.
Councilman Myrin said for the waiver of fees, how does it work. If we waive fees we pay less for the
development. Mr. Barker said they go in to specific funds depending on the fee to be used for a specific
use at a later time. Councilman Myrin said he is leaning towards not waiving any fees. Having the
money in the departments that address those things make sense. It belongs in the department to address
the impacts. He is comfortable with the proposed dimensions.
Councilman Frisch asked how will the decision be made on the categories. Adam Roy, applicant, said
the tax credits offset the program so we do not know what they will be yet. Barry Crook, managers
office, said the issue is not so much the general mix for the 3 projects but what they are per development.
Mr. Roy said It will be a mix ranging from 1 to 4, approximately 50/50. One thing we need to understand
better is in the sales scenario in year 16 are we putting the city into a corner in terms of extended use
period. There will be a perpetual deed restriction. We are trying to get a better understanding of how that
scenario changes with the tax credits. Mr. Crook said that it is the flexibility we are seeking. Not to
change the mix in total but on the specific sites. We have had discussion about what the appropriate
categories are. At some point we need to agree on where we are going to start. It would not lock the city
in to the same mix in perpetuity. Councilman Frisch said the mix is an important discussion.
Ms. Garrow said for Burlingame the parks impact fee was waived. They did pay the air quality fee. APD
did pay the air quality fee as well.
Councilman Hauenstein said his biggest concern is the parking and cash in lieu and how to mitigate the
overflow parking. There is a pretty good chance there will be more than 11 cars. Have you spoken with
the county about the smuggler space. Jason Bradshaw, applicant, replied very minimally. We were
waiting to see where that direction is going. There is no sense the county will be receptive for that.
Councilman Hauenstein said he is not generally in favor of cash, it just disappears. He would rather see
the money go toward transportation, car to go. Where will visitors park. Mr. Barker said they checked
with transportation on a car to go and they are not in favor of it. There are already two in the area.
Councilman Hauenstein said there hasn’t been the demand because there has not been an 11 unit
affordable housing project there. Where are the other car to go’s in the area. Ms. Garrow replied she is
not sure. Mr. Bradshaw stated Centennial area and farther down Park Circle to the south. They are
perceived as high demand areas and there has not been a lot of demand. We were open to the idea. We
also proposed bus enhancements and they were not received well either. We would rather see the funds
go to something substantive. Mr. Roy said if there is a choice between paying fees or having the project
directly fund an improvement, impact fees are basis eligible in the tax credit world.
Councilman Frisch said he thinks your time is better spend in discussions other than with the county. 1
parking spot per unit is pretty good.
Regular Meeting Aspen City Council October 23, 2017
8
Mayor Skadron said he finds the review criteria have been satisfied. Why 5 years for vesting. Mr. Roy
said it is more to do with a scattered site staggered time line. If one of the sites were to get hung up, we
are looking at this as a single tax application. Mayor Skadron said we are waiving fees because they are a
transfer between departments or are we failing to deliver a community benefit. Mr. Barker stated it is
partially a transfer. Ms. Garrow said all these fee questions, it is part of Councils job to weigh the
competing community benefits of affordable housing.
Mayor Skadron opened the public comment.
1. Debora Muric, 515 Park Circle, said there is no solar, wind or sustainable qualities. There is
already a parking problem in the area. She watched her home burn down when there was not a
working fire hydrant. They could not split the lot because P&Z said there was not enough room
on the lot and now they say there is room for 11 units. No environmental impact studies have
been done. Where do we ship the waste from the superfund site. How is this making this area
better for the neighbors who are already living there. At the 15 year mark all the units will need
major improvements. There will never be enough housing in Aspen.
2. Torre, current board president for Smuggler Racquet Club, said he agrees with Debra on
sustainability. The team has been very responsive. Their primary concern is about the overall
density, setbacks, screening and an underparked project. What impact will a 100% pet friendly
project have on the area. Maybe dogs only allowed in units with walk out ability. Council has
been responsive on the Main Street project and you listened to the neighbors. This project
doesn’t have that neighbor involvement. We are very sympathetic to the neighbors and extremely
supportive of affordable housing but we feel it should be as compatible with the neighbors and
the land it is on. It is underparked and to think the trail parking can accommodate the residents is
naïve. This parking is maxed out all the time for the trail users and recreators. It could go down
in the unit count which would require less parking. Incentivize non vehicle ownership for
residents. Set backs, directly abutting us are being applied at 5 feet. We don’t feel that allows for
appropriate screening. 10 feet would make us more comfortable. More than anything it should
be compatible with the neighborhood. We all need affordable housing in the community but it is
about what is appropriate for where it will be located.
Mayor Skadron closed the public comment.
Mr. Bradshaw said there has been extensive public outreach, over 5 months, including large scale open
houses. He thinks we made progress on making adjustments. We did not get a lot of comment from
other neighbors. It started with 20 units and 3 floors. It was reduced by 5 units after hearing from the
community. It always had a 1 parking stall per unit count. From a sustainability standpoint, the site is a
bench site to begin with. In the long run it will be a cleaner better site than to begin with. Every unit has
1 bathroom per unit, a mudroom laundry room combo and plenty of storage. The livability factor is quite
high. Comparisons with other housing projects in the area similar to this bedroom count. Some are
significantly underparked but this is on average.
Councilman Frisch said on the environmental stuff, solar sends a message. That is more our work than
asking the applicant to get in to that. As far as the parking we just went through a study and one of our
goals is to try to limit parking. Between all the transportation options this is a nice balance of what we are
trying to do system wide. He is still comfortable with this. We are still on the right track. It is more
density for the neighbors and parking is a density issue.
Councilman Myrin said parking is the most challenging. Would the residents receive a parking permit.
Mr. Crook said they would be entitled to a permit in that zone.
Regular Meeting Aspen City Council October 23, 2017
9
Councilman Hauenstein suggested a long term parking permit at the intercept or buttermilk lots. It is a
good project and he could justify the parking. He does not support waiving the fees. 1 space per unit
could be acceptable.
Mayor Skadron said the reduction in units here is about the same as the reduction on Main Street. Is
Council willing to underpark the project. If we go by unit it is appropriately parked. If we go by
bedroom it is underparked by 4. Mr. Bradshaw said we are code compliant with what we are asking for
not with the fee in lieu. Councilman Frisch asked is there a place to have more parking on the site. Mr.
Roy said we have turned the site every way you can and pursued all options and feel this is the best one.
Other than allowing street parking against the will of engineering.
Councilman Myrin said he is ok approving this as is. He suggested using Benedict commons parking
garage. Suggest modifying the option of the county parking to expand it to the urban growth boundary.
Mayor Skadron said the notion of parking cars remotely should be explored.
Ms. Garrow said if we go the way of a shared parking agreement it is a formal document that is pretty
iron clad. These are the priorities from a planning recommendation and may not match up with
Council’s. Section 5 remove listed in order or priority. In number 1 add either shared parking in the
urban growth boundary. She would not suggest the intercept lot. The question is shared parking with any
entity or just the City of Aspen. Mayor Skadron said he would be open to it. Mr. Bradshaw said the more
ambiguity the harder it is for the financing sources to get their arms around it. He is not trying to duck the
need for parking but unless we have a reliable way to deliver it, having it in an ordinance could prove
problematic.
Mr. True said the language is open but the paragraph gives you the alternative of 3.
Councilman Myrin said he is ready to approve this with the 2 modifications.
Mr. Barker said Section 16 has the wording with parks fees waived. Mayor Skadron said to change it to
shall not be waived.
Councilman Myrin moved to adopt Ordinance #25, Series of 2017 with amendments; seconded by
Councilman Frisch. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Hauenstein, yes; Mayor
Skadron, yes. Motion carried.
ORDINANCE #24, SERIES OF 2017 – Transferable Development Rights – 119 Neale Avenue
Ms. Simon stated this is a hold over from 2016. The request is to sever 3 TDR’s, 250 sq ft each to sell
off the property. In 2012 Council approved a subdivision to create 2 lots. It was a historic landmark lot
split due to the log cabin. It was permitted to take some development pressure off of the historic resource.
The cabin was then sold. 119 is owned by Jeff Shoaf. As a designated property the owner can sell TDRs.
How much square feet allowed versus how much is built. The remainder can be sold in 250 sq ft
increments. There have been a number of hearings to discuss this including complaints from the
neighbors. All that side tracked the conversation. Staff pursued enforcement of the duplex in municipal
court. In July the judge determined the applicant is not in violation of the codes and it is a single family
home. The applicant has returned with a request to wrap this up. We have redone all the calculations and
revisited the slope reduction. It can affect allowable floor area. We asked for updated calculations. We
also removed the disputed area, 785 sq ft, from the calculations. We still conclude there is over 750 sq ft
and enough to cover the 3 TDRs. Staff is supporting the application.
Ms. Garrow said we received a letter from David Harris, neighbor, who is now supporting the application.
Mitch Haas, representing the applicant, said there is a long and colorful history with this application. The
history does not fit in to the request tonight to sever the TDRs. The historic structure is not on the lot but
this request will remove potential development. We remain in the position that until a court of law
concludes otherwise the parcel contains the quick claim deed. We recognize staff has done their analysis
based on new slopes not on the recorded plat. Even without the parcel and increased slope calculations
there is still enough floor area for 3 TDRs. The criteria for issuance is black and white. Historic
Regular Meeting Aspen City Council October 23, 2017
10
landmark, permitted unbuilt development rights in excess of 250 sq ft, will not create a non conformity,
and analysis provided to demonstrate available floor area. All criteria are clearly satisfied.
Mayor Skadron opened the public comment.
1. George Benninghoff, owner of unit 2 urban blight condos, discussed this with Mr. Shoaf and
another co owner of urban blight. My position is that we do not support this application and hope
to postpone it until other conditions are satisfied. There is a history to this process and important
to this discussion. One of the reasons I object to this is the parcel was drawn to include the
disputed part of the urban blight property. Any action here effects our property. The problem
with this is if the application is approved there will be a deed restriction on the property and Jeff
doesn’t own all the property. I don’t want a deed restriction on my property. It needs to be
cleaned up. He would like to see the title cleaned up. To my knowledge nothing has been done
to clean the record up. He is asking council to defer this process until it is cleaned up.
Mr. True said we acknowledge there is a dispute to the one section of the property but I do not
think Council is in the position to adjudicate that. We have taken that portion of the property out
of the calculations when determining if there is enough available development.
Councilman Frisch asked do we have the right to have this discussion regardless of how big and
how many TDRs. Mr. True stated this is different. Lot 1 is described through a subdivision
process. Lot 1 contains a disputed area. The condo association may have the right to assert a
quiet title over that. None of that is affected by Council granting TDRs. It does not impact the
calculation of TDRs tonight. Councilman Frisch said he is not having a math problem.
Regardless of the size you are making judgements. Mr. True said he is not asserting he owns the
lot. We are saying we are not resolving the 785 sq ft out of the 12,000 sq ft. we are not going to
adjudicate that, it is for a court. Mr. Benninghoff said there are 3 owners to lot 1 and there are 2
others who will not support this application.
Councilman Myrin said page 488 has the overview of the 2 lots. The historic structure is not on
the subject lot. If it is not on the subject lot, I’m not convinced the extra lot cannot have the 750
square feet on it. Why does it have to go somewhere else in town. We may grant the TDRs. I
think the lot can handle the 750 sq ft.
Councilman Frisch said a year ago there was a cloud over ownership. People agreed they would
get that cleared up. What I heard from staff is it was taken care off. We removed the disputed
portion and staff is saying it is still above 750. My question was is there a completely clean title
on the ownership and what I’m hearing is nothing has changed in the past year. I’m not sure it
can be severed. Mr. True said part of it was clearly based on if the 750 is required to do the
calculations to get to 3 TDRs we had a problem with the status of the footage. Typically, I say
we are not in the position to adjudicate this type of ownership. What is clear is Mr. Shoaf had a
right to ask. We concluded the 750 did not affect what he was asking. We get these disputes
quite often. Mr. Benninghoff said he disputes he has a right to ask for it and council can grant it.
Councilman Frisch said I’ve never had anyone say they don’t own a piece of property and don’t
have a legal right to anything. Mr. True said this is a bit stronger than what we have heard in the
past.
Mr. Haas said we are going off of what is on the plat. George’s issue is the one that needs to take
it to court. We have cleaned up everything we can. Our answer to your question is this is the
plat. Until a court of law says otherwise that is the plat.
Councilman Frisch asked can we honor the sentences Mr. Benninghoff read. Mr. true said yes
you can. We are not in the position to unravel what Mitch is describing. What we were
concerned about and tried to address is did it effect the calculations. A court would be the final
arbitrator on who owns the 785sq ft. the deed restriction would not translate. You may go
forward if you so choose.
Councilman Frisch said we are being asked to be a legal jury and that is not our position. Mr.
True said he understands his concerns but I disagree it would translate to a deed restriction to his
property. A court would redefine the boundaries of his property. Staff calculated the 3 is still
Regular Meeting Aspen City Council October 23, 2017
11
appropriate even if Jeff loses the property. He suggested Council consider the application on its
merits. I believe all the facts are substantial enough to make a determination on its merits.
Councilman Myrin said he believes the 750 sq ft can be handled and does not need removed.
2. Pete Thomas, legal counsel for Mr. Shoaf, stated we haven’t heard one thing from George about
the merits of the TDRs. We are completely sidetracked. You don’t have the authority to
adjudicate a private legal dispute. It is improper for a neighbor to come forward and hold us
hostage on a different issue. His entire argument assumes he owns the property and is an owner
of lot 1. At most he would be an owner of the 785 sq feet that is disputed. If and when Mr.
Benninghoff decides to pursue a claim, if he is successful all that would happen is the 785 sq ft
gets severed out of lot 1. Nothing you do tonight would affect that parcel. None of this is
relevant. What is important are the standards under the code. You do have discretion but have to
articulate some reasonable basis on why you would not give him TDRs but would someone else.
Refocus on what is here tonight. If Mr. Benninghoff wants to initiate an action he is welcome to
do so and it won’t effect a thing that happens tonight.
Councilman Frisch said he is with Bert that the holding site can support the 750. He is still concerned
we are having the same discussion we were having a year ago. I’m fundamentally concerned about that.
Mayor Skadron closed the public comment.
Ms. Garrow said as part of the 2012 actions the plat specifically designates where a parking space can
go. Mr. Shoaf cannot change that without a P&Z review. It is located in the disputed area. The advice
from the city attorney is good as reviewing this on its merits. We felt this is the best we could do as far
as providing ownership and TDRs. You may establish TDRs based off of the criteria.
Councilman Myrin said page 443 talks about the size of the lot. West end lots are what. Ms. Simon
replied 6,000 is the minimum but there are 3,000 lots. Councilman Myrin said he is not convinced we
need to take the density off this space.
Councilman Hauenstein said lot 1 there is question about ownership. How can we give away some of
the rights if there is a dispute of who owns it. Mr. True said he is clearly not a partial owner of the full
lot. All he ever argued is he has an ownership of 785 sq ft. It is a small portion of the total property that
he asserts an ownership in. Councilman Hauenstein said Bert is suggesting the 750 remain on lot 1.
Councilman Hauenstein said there are places we want to remove the density because it is tight. There is
a lot of land here.
Mayor Skadron said he is compelled with the argument as well that the site is the appropriate landing
space. Councilman Myrin said if we don’t remove them this is where they will be.
Mayor Skadron said we find as the criteria is written that Council may or may not establish the TDRs.
Council is finding may not.
Mr. Haas said lets say we work out the property dispute will Council say sever the TDRs. Councilman
Myrin said he still will not.
Mayor Skadron call for a motion to adopt as presented. Councilman Myrin moved to adopt Ordinance
#24, Series of 2017; seconded by Councilman Frisch. Mr. True said typically we move to deny if an
ordinance will not be supported.
Councilman Myrin moved to deny Ordinance #24, Series of 2017; seconded by Councilman Frisch. Roll
call vote. Councilmembers Frisch, yes; Hauenstein, yes; Myrin, yes; Mayor Skadron, yes. Motion
carried.
Regular Meeting Aspen City Council October 23, 2017
12
ORDINANCE #23, SERIES OF 2017 – Post Moratorium Clean-Up Ordinance
Ms. Garrow said this is the first of at least two clean ups. If passed tonight the ordinance will go into
effect November 22nd. This is the third step of a code amendment. Much of the outreach from the
moratorium was used, we met with P&Z and talked with small lodge operators. The proposed
amendment would add a new category of lodge, boutique lodge, with a minimum of 10 units. At first
reading this number was 6. We analyzed existing lodges and the average with 20 or fewer rooms is 12.5.
Boutique lodge would be any with 10 to 14 units and approved as a conditional use. We added a
requirement that 50% or more units have to be above grade. We updated required amenities in the lodge
definition. They must have three or more amenities. We also added language to clarify rental limitations.
We tried to address LLCs. If two or more interests are owned by separate entities with common owners
then it is considered one entity in terms of rental. We added a growth management review so now it is a
Council level review. We also strengthened the standards in the audit and correctly listed zone districts in
the parking section. We changed pedestrian amenity from public amenity.
Councilman Myrin asked does this stop our concern of Timberline bank. Ms. Garrow said if someone
else wants to do that they could not because it would be a 10 room minimum and need amenities. There
is also a conditional review. Councilman Myrin said without regulating ownership would this address
Adams concern over usage. Ms. Garrow said we can’t restrict ownership.
Councilman Frisch said say someone comes in and wants to by all 8 shares of unit 7. Each LLC has
different registered agents how do we know it is not the same owner. Mr. True said we know this will be
difficult to enforce. We are trying to put in as much info gathering ability as we can. We are not willing
to admit people can blatantly violate our rules with us sitting back and letting that happen. We have to
acknowledge some of this will get pushed back from those trying to skirt our rules. Councilman Frisch
said I don’t want to have condominiumized hotel product. Mr. True said we cannot under State Statute
effect forms of ownership. If someone owns property they can condominiumized it and we cannot
prohibit it. The theory is to try to understand how people intertwine these. Councilman Frisch said the
dividing up of a single structure that leads to less community value. Do you think the state law was set up
to fight against this or are we swept up in state law. Mr. true replied the latter. Councilman Frisch said
Timberline would run in to issues about the amenities. What is the benefit of being a boutique lodge or a
non boutique one. Ms. Garrow said part of why we suggested this is other communities have similar
types of designations. We’ve seen a history of small lodges. We did not want to close the door but there
should be a heightened level of review. Councilman Frisch said if someone wanted to build a different
type of hostel, do some of these amenities get in the way of that. Can someone make a case to Council.
Ms. Garrow said they could do that. It would be a review. The other piece is we tried to beef up the
occupancy auditing section. We plan to audit every lodge in Aspen with the updated criteria.
Councilman Frisch said I know the Sardy House has specific times of year when they have to be rented.
Ms. Garrow said that is why we want to do the auditing and have a more informed policy discussion next
year. Mr. True said at some point I see staff coming to Council and say we want to take enforcement
action. Councilman Frisch asked what should a lodge expect when they get the audit call. Ms. Garrow
said Section 19, page 572 outlines the auditing. We are asking for an occupancy report, who they were,
did they register as an individual or a business, report of all the names of the owners or who has an entity,
how the rooms were reserved, how they are marketed, physical aspects, dimensional characteristics,
inventory and any additional items.
Councilman Hauenstein said if this was adopted Timberline would not be allowed. Ms. Garrow replied
correct. Councilman Hauenstein said he understands it will be difficult to enforce.
Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public
comment.
Councilman Myrin suggested adding business license to section 19, auditing. What Adam said is
important and we can discuss it at a later time when it comes to prime time occupancy.
Regular Meeting Aspen City Council October 23, 2017
13
Councilman Myrin moved to adopt Ordinance #23, Series of 2017 with amendment to Section 19;
seconded by Councilman Hauenstein. Roll call vote. Councilmembers Hauenstein, yes; Myrin, yes;
Frisch, yes; Mayor Skadron, yes. Motion carried.
EXECUTIVE SESSION
Mr. True stated staff recommends going in to executive session pursuant to C.R.S. 24-6-402-4(b)
Conference with an attorney for the purposes of receiving legal advice on specific legal questions, (e)
determining positions relative to matters that may be subject to negotiations; developing strategy for
negotiation; and instructing negotiators and (f)(I) personnel matters.
Councilman Hauenstein moved to go in to executive session at 10:45 p.m.; seconded by Councilman
Frisch. All in favor, motion carried.
Councilman Hauenstein moved to come out of executive session at 11:45 p.m.; seconded by Councilman
Frisch. All in favor, motion carried.
Councilman Hauenstein moved to adjourn; seconded by Councilman Frisch. All in favor, motion carried.
Linda Manning
City Clerk