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Home My WebLink Aboutlanduse case.AP.620 E Hyman Ave.A44-88620 E. Hyman Appeal 2737-182-12-008 of Code Interpretation 44A-88 ASPEN/PITKIN PLANNING OFFICE 130 South Galena Street vQ Aspen, Colorado 81611 (303) 925-2020 LAND USE APPLICATION FEES City 00113 - 63721 - 47331 GMP/CONCEPTUAL - 63722 - 47332 - 63723 - 47333 - 63724 - 47341 - 63725 - 47342 - 63726 - 47343 - 63727 - 47350 - 63728 - 47360 REFERRAL FEES: 00125 - 63730 -47380 00123 -63730 -47380 00115 - 63730 - 47380 County 00113 - 63711 - 47431 - 63712 - 47432 - 63713 - 47433 - 63714 - 47441 - 63715 - 47442 - 63716 - 47443 - 63717 - 47450 - 63718 - 47460 REFERRAL FEES: 00125 - 63730 47480 00123 - 63730 47480 00113 -63731 -47480 00113 - 63732 -47480 PLANNING OFFICE SALES GMP/PRELIMINARY GMP/FINAL SUB/CONCEPTUAL SUB/PRELIMINARY SUB/FINAL ALL 2-STEP APPLICATIONS ALL 1-STEP APPLICATIONS/ CONSENT AGENDA ITEMS ENVIRONMENTAL HEALTH HOUSING ENGINEERING SUB -TOTAL GMP/GENERAL GMP/DETAILED GMP/FINAL SUB/GENERAL SUB/DETAILED SUB/FINAL ALL 2-STEP APPLICATIONS ALL 1-STEP APPLICATIONS/ CONSENT AGENDA ITEMS ENVIRONMENTAL HEALTH HOUSING ENVIRONMENTAL COORD. ENGINEERING 00113 - 63061 - 09000 COUNTY CODE - 63062 - 09000 COMP. PLAN - 63066 - 09000 COPY FEES - 63069 - 09000 OTHER Name: \ t? C Address: Chec� � a-3 Additional Billing: SUB -TOTAL SUB -TOTAL _ TOTAL i Phone: Projegt: C'a !7v LOClr7C i r Date: ZZ4 # of Hours. CASELOAD SUMMARY SHEET City of Aspen DATE RECEIVED: 8/19/88 DATE COMPLETE: PARCEL ID AND CASE NO. 2737-182-12-008 44A-88 STAFF MEMBER: PROJECT NAME: 620 E. Hyman Appeal of Code Interpretation Project Address: 620 E. Hyman Legal Description: Block 99 Lots P & Q APPLICANT: Frank Woods Applicant Address: 205 S. Mill Suite 301A Aspen REPRESENTATIVE: John R. Wedum Design -Development Representative Address/Phone: 201 N. Mill, Suite 102 5-1961 PAID: YES NO AMOUNT: $50.00 TYPE OF APPLICATION: 1 STEP: -N"/,- 2 STEP: _ P&Z Meeting Date PUBLIC HEARING: YES NO VESTED RIGHTS: YES NO CC Meeting Date 911a/IFF PUBLIC HEARING: YES O VESTED RIGHTS: YES Planning Director Approval: Paid: Insubstantial Amendment or Exemption: Date: REFERRALS: City Attorney City Engineer Housing Dir. Aspen Water City Electric Envir. Hlth. Aspen Consol. S.D. DATE REFERRED: Mtn. Bell Parks Dept. Holy Cross Fire Marshall Fire Chief Roaring Fork Transit INITIALS: School District Rocky Mtn Nat Gas State Hwy Dept(GW) State Hwy Dept(GJ) B1dg:Zon/Inspect Roaring Fork Energy Center Other FINAL ROUTING: DATE ROUTED: INITIAL: City Atty City Engineer Zoning. Other: FILE STATUS AND LOCATION: Case Disposition On September 12, Council unanimously approved the applicant's appeal of the Planning Director's interpretation. Council agreed to allow the applicant to enclose 2' 8" along the length of each of the decks at the front of 620 E. Hyman Avenue. In exchange, the applicant agreed to place a covenant on the property that an area of approximately 300 s.f. at the rear of the building which is covered would never be enclosed. This covenant should be recorded in conjunction with the zoning plan check process for the project. Council also directed staff to develop language to correct this problem in the Code at the time the "correction ordinance" is processed at the end of 1988. Until this problem is corrected, applications to enclose portions of buildings which are nonconforming as to FAR or applications to eliminate areas which no longer meet the definition of open space should be handled on a case -by -case basis. Generally, any such change should only be permitted if there is compensation in the design for the apparent FAR increase or open space decrease. HOLLAND & HART ATTORNEYS AT LAW MEMORANDUM TO: Alan Richman RE: 620 East Hyman Appeal - Overhang Enclosure • FROM: Art Daily DATE: September 12, 1988 I'd like to clarify the applicant's request in this matter, and to propose an even more substantial trade-off. Randy Wedum's appeal letter of August 19 was intended to request an enclosure of the entire 5'8" by 50' overhang area. See the sketch sub- mitted with the letter as Exhibit A. I know from your September 4 Memo to Council that you believed the request was to enclose only the first 20' of the overhang, and to remove the remaining 30 feet of overhang as a trade-off. Apparently this is not an attractive design solution, and the applicant hereby proposes the following compromise which will better serve the intent of the Code as well as aesthetic considerations. 1. The applicant now proposes to extend the wall out only 2'8" (rather than 5'8") along the entire 50' length of the overhang, for a total enclosure of 133 square feet of floor area. All of this square footage was counted against floor area when the building was constructed, and there is no question that it is included in floor area calculations under the new Code as well. 2. The only extension of a nonconforming structure which is prohibited by the Code is one which increases the nonconformity. The nonconformity of the 620 Hyman Building is that it exceeds allowable floor area. Since the proposed 133 square foot enclosure adds no new floor area to the structure, it will have no effect whatever on the structure's nonconformity. The proposed extension is therefore one that is clearly permitted by the express language of Code Section 9-103(c). There really isn't any interpretation question involved, and no offsets are required. 3. Regardless, the applicant is prepared to compensate for the proposed 133 square foot enclosure by delivering to the City a permanent covenant that the existing overhang along the alley in the rear of the building will never be enclosed. This overhang encompasses roughly 300 square feet of floor area, or more than twice the area proposed for enclosure in front. Historically, the area within this alley overhang has always been included in the building's FAR calculations. In fact, less than a year ago 100 square feet of the alley overhang area of this building was allowed to be enclosed on this basis. See Bill Drueding Speed Memo to Cindy Houben of October 29, 1987 (copy enclosed), which reads as follows: "Nature's Storehouse Expansion: During pre- vious dealings with this building, in partic- ular Abetone's, FAR calculations included the overhangs next to the alley. The proposed less than 100 square foot enclosure as far as I am concerned was already counted as stated above and would be permitted." In other words, a strong argument can be made that based on clear historical precedent, the applicant has every right to enclose the remainder of the alley overhang. Hence the trade-off pro- posal represents a true value to the City. We will appreciate your favorable consideration of this com- promise submittal. Orm 5UBJKT SIGNED .e 4S474 SEND PARTS I AND 3 INTACT PART 3 WILL BE RETURNED WITH REPLY. DETACH AND FILE FOR FOLLOW-UP POLY PAK (50 SETS) 4P,4-, MEMORANDUM TO: Aspen City Council THRU: Robert S. Anderson, Jr., City Manager �f� r;— FROM: Alan Richman, Planning Director f�` RE: 620 E. Hyman Appeal of Code Interpretation DATE: September 7, 1988 ------------------------------------------------------ ------------------------------------------------------ SUMMARY: The applicant requests that Council reverse an interpretation of the Code made by the Planning Director. Staff recommends that if Council takes this action, it be done because the applicant compensates for the requested increase to the building by a corresponding decrease elsewhere and be accompanied by direction to staff to further clarify the Code. BACKGROUND: Randy Wedum, on behalf of Frank Woods, submitted a letter to the Planning Office dated August 4, (Attachment 1) requesting interpretation of a provision of the Aspen Land Use Regulations. Section 11-101 C of the Regulations provides that the Planning Director shall make such interpretations within 15 days. On August 17, I sent a letter back to the applicant (Attachment 2) which did not support the applicant's position. On August 19, the applicant submitted a letter (Attachment 3) appealing to Council to reverse my interpretation, as authorized by Section 11-101 F of the Code. PROBLEM DISCUSSION: The situation with respect to this application is as follows. 1. The applicant is the owner of the second floor of 620 E. Hyman Avenue (Abetone's Building). 2. The applicant would like to enclose the space along a 518" overhang which covers an approximately 20 foot long terrace along the front of the building. The applicant offers to remove an overhang of 518" by approximately 2916" if the requested enclosure is permitted. 3. The building already substantially exceeds the allowable floor area of the zone district. 4. Pursuant to the definition of floor area, any area under an overhang which is in excess of 3 feet in width is included in floor area calculations. This would appear to permit the applicant the right to extend the wall out by 21811, since this portion of the terrace is already counted toward FAR. 5. Section 9-103 C of the Regulations, Extensions of Nonconforming Structures states that "A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity". The issue for Council to decide is whether the requested activity increases the nonconformity. The applicant argues that because the area already counts toward FAR, the building may be extended in this manner without increasing its nonconformity. This was the staff's original interpretation of this matter when approached by other designers earlier this spring. We are no longer certain that this was Council's intent when the new FAR definition was developed in conjunction with the R-6 district amendments. Since there are numerous buildings throughout town with circumstances similar to this case, we have had to rethink our position to determine if we are interpreting it correctly and/or if it needs to be further clarified in this regard. ALTERNATIVES: The alternatives available to Council include the following: 1. Confirm the applicant's interpretation of the Code, thereby permitting the extension of this building and of many other buildings in town. 2. Confirm the Planning Director's interpretation, finding that the extension increases the structure's nonconformity. 3. Confirm the applicant's interpretation of the Code but direct the staff to add language to the nonconforming structure provisions which will eliminate the ability for buildings which already exceed FAR to take advantage of the new definition. CONCLUSION: The Planning staff believes that this may be a much bigger problem than it appears at first glance. With changes to the definition of floor area and open space, designers will be looking to use building and site areas which they previously could not. While this seems entirely appropriate for a building which is within FAR or which exceeds minimum open space requirements, it appears inappropriate for nonconforming structures. For example, sticking with the building in question, since the downstairs patio at Abetone no longer meets the definition of open space (more than 2 feet below grade), should the owner be able to eliminate this feature without adding open space elsewhere on the site? It is our opinion that when a structure is already nonconforming with respect to FAR, open space or other dimensional requirements, it should not be given the opportunity to take advantage of changes to the Code after it is built which will increase its apparent nonconformity. However, we recognize that the Code is not clear on this matter. The applicant has provided us with a way of handling this problem for this particular site by offering to compensate for the enclosure of the deck by the removal of an overhang of corresponding size. This approach also avoids the precedential problem for other similarly situated properties by requiring an offset to obtain a building increase. Given the way the Code currently reads, and given the applicant's willingness to eliminate an existing building overhang, the most reasonable position for Council to take would appear to be Alternative 3. This will confirm the applicant's right to proceed under the language of the existing Code but direct the staff, when the "Correction Ordinance" is processed, to clarify this matter for all future applicants. MOTION: "Move to accept alternative 3 as identified in the Planning Office memo dated September 7, 1988." CITY MANAGERS COMMENTS: wedumccappeal L JOHN R. WEDUM Design -Development 201 North Mill, Suite 102 Aspen, Colorado 81611 August 4, 1988 Mr. Alan Richman Planning Director City of Aspen 130 South Galena Aspen, Colorado 81611 Dear Alan: This letter is a formal request for a zoning code interpretation. We would like verification of our interpreta- tion which would allow the owner of 620 East Hyman, second floor, to enclose the space under a 5'8" overhang which currently covers a second floor terrace along 20 feet of building frontage. (Refer to Area "A"). This building was built to code under a 2 to 1 F.A.R., since that time the F.A.R. has been revised to a 1 to 1 ratio allowing for 6,000 square feet of building space. The Aspen Code reads that any overhang over 3'0" covering a deck is encluded in the F.A.R. The building is nonconforming. Enclosing the area under the overhang does not change its nonconformity. When the building was built this area was counted in the F.A.R.; this has not changed. We are not proposing to change the F.A.R., so it should not be a zoning issue. We are willing, however, to remove the overhang to the east side of the building shown as Exhibit "B" which is 5'8" by approximately 29'6". This will actually reduce the F.A.R. and its nonconformity. We are aware of other cases in which a request for a similar change has been approved. An example is in the same building on the first floor where Nature's Storehouse enclosed the space under the second level on the alley for storage. i Mr. Alan Richman Planning Director City of Aspen August 4, 1988 Page Two We have brought this matter to your attention due to the fact that Mr. Drueding of the Building Department wants you to make the final decision. At this point in time we cannot proceed with final plans. It is our feeling that this zoning issue should always be interpreted the same way and that is all we are requesting. By reading the Code I find that this is allowable and I request your verification. JRW:dr Sincerely, c John R. Wedum Design - Development John R. Wedum August 17, 1988 Page 2 Because I know that my determination in this matter will affect many other similarly situated structures, I feel the need to bring this matter to the City Council to obtain a decision on their legislative intent on this matter. I am therefore making the interpretation that the proposal is an extension of a nonconformity which is prohibited by the Code. I am also encouraging you to appeal this decision to City Council, pursuant to Section 11-101 F of the Land Use Regulations, so that a final decision on this matter can be reached for you and other similarly situated individuals. If you decide to appeal this decision, you have 30 days to submit a letter of appeal to me, accompanied by a fee of $50. Once I receive this letter, I can schedule you for the next Council regular meeting, to be held on September 12. Thank you for your patience in addressing this issue. I hope that I can be of assistance to you again in the future. Sincerely, f, A ah Richman Planning Director cc: Bill Drueding Cindy Houben wedumltr r AUG 1 91988 JOHN R. WEDUM DESIGN -DEVELOPMENT 201 North Mill Street, Suite 102 Aspen, Colorado 81611 925-1961 August 19, 1988 Mr. Alan Richman Aspen/Pitkin Planning Office 130 South Galena Aspen, Colorado 81611 Re: 620 East Hyman, Second Floor - Frank Woods' Future Residence Dear Alan: This is a letter of appeal to your letter, dated August 17, 1988, which pertained to the interpretation of the Code, Section 11-101 of the Aspen Land Use Regulations, which you denied. We are requesting approval from City Council to allow the use of all of the space under a 5'8" overhang on the second floor of 620 Hyman Street facing south. We wish to push the exterior wall to the edge of the overhang (refer to Exhibit "A") . We request to be seated on the next City Council regular meeting to be held September 12. Enclosed please find a check in the amount of $50 for the appeal fee. Very truly yours, John R. Wedum Design -Development JRW:dr Enclosure ASPEN/PITRIN PLANNING OFFICE 130 S. Galena Street Aspen, Colorado 81611 (303) 925-2020 Date: August 29, 1988 John R. Wedum Design -Development 201 N. Mill, Suite 102 Aspen, CO 81611 RE: 620 E. Hyman Appeal of Code Interpretation Dear Randy, This is to inform you that the Planning Office has completed its prelimary review of the captioned application. We have determined that your application IS complete. We have scheduled your application for review by the City Council on September 12, 1988. The Friday before the meeting date, we will call to inform you that a copy of the memo pertaining to your application is available at the Planning Office. If you have any other questions, please call Alan Richman the planner assigned to your case. Sincerely, Debbie Skehan Administrative Assistant frm.complete.620 Aspen/Pitkin Planning Office 130 south galena street aspen, colorado 81611 August 17, 1988 John R. Wedum Design -Development 201 N. Mill Street, Suite 102 Aspen, CO, 81611 Dear Randy, I have reviewed your letter dated August 4, 1988, in which you request that I make a Code interpretation pursuant to Section 11- 101 of the Aspen Land Use Regulations. Following is my response to your request. The situation you have described to me is as follows. 620 East Hyman Avenue is a building which currently exceeds its allowable floor area ratio. It contains areas where there are overhangs in excess of 3 feet in width. According to the definition of floor area in Article 3 of the Land Use Regulations, areas under an overhang in excess of 3 feet in width are included in floor area calculations. You request the ability to enclose the deck, stating that this action would not increase the degree to which the building is currently nonconforming. Section 9-103 C of the Land Use Regulations, Extensions of Nonconforming Structures, states that "A nonconforming structure shall not be extended by an enlargement or expansion that increases the nonconformity. A nonconforming structure may be extended or altered in a manner that does not change or that decreases the nonconformity.". The definition of floor area states that the area under the overhang in excess of 3 feet in width (in this case, an additional 2' 811) counts toward the floor area ratio. However, the building is already over the allowable floor area, and moving the wall out an additional 2' 8" could be considered an extension of the nonconformity. There is no question in my mind that a case can be made for either interpretation of this matter. 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