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agenda.hpc.19920923
AGENDA ASPEN HISTORIC PRESERVATION COMMITTEE SEPTEMBER 23, 1992 REGULAR MEETING SECOND FLOOR MEETING ROOM CITY HALL 5:00 I. Roll call II. Committee and Staff Comments III. Public Comments IV. OLD BUSINESS A. None V. NEW BUSINESS 5:15 A. Landmark Designation - Public Hearing - 529 E. Cooper & 531 E. Cooper 5:25 B. 434 W. Smuggler, Conceptual Development 6:25 VI. COMMUNICATIONS A. Project Monitoring 6:30 VII. Adjourn STATE PRESERVATION WORKSHOP, Golden, Sept 25th. Roxanne and Linda Smisek will be attending National Preservation Conference in Miami from October 6-11. Reminder: Town Meeting for Aspen Area Community Plan, High School commons, 5:00 to 8:00, September 24th. MEMORANDUM To: Aspen Historic Preservation Committee From: Roxanne Eflin, Historic Preservation Officerg.R.* Re: 529 E. Cooper and 531 E. Cooper: Landmark Designation (Public Hearing) Date: September 23, 1992 SUMMARY: The applicant is requesting Landmark Designation for the properties located at 529 E. Cooper (Bowman Block) and 531 E. Cooper (LaFave Block). 531 E. Cooper, the LaFave Block, is listed on the National Register of Historic Places. APPLICANT: Stein Eriksen, represented by Jane Ellen Hamilton of Garfield and Hecht LOCATION: 529 E. Cooper, described as the East 29' 8 3/4" of Lot I, BLock 96, City and Town of Aspen; and 531 E. Cooper, described as the East 5' of Lot G, all of Lot H and the West 3 1/4" of Lot I, Block 96, City and Townsite of Aspen Landmark Designation Local Landmark Designation is necessary in order to receive a number of incentives available to historic properties, including the Federal or State Rehab Income Tax Credits and local incentives. Staff wishes to thank the applicant for preparing a detailed and thorough application, which is attached for reference. LOCAL DESIGNATION STANDARDS: Section 7-702 of the Aspen Land Use Regulations define the six standards for local landmark designation, requiring that the resource under consideration meet at least one of the following standards: A. Historical importance: The structure or site is a principal or secondary structure or site commonly identified or associated with a person or an event of historical significance to the cultural, social or political history of Aspen, the State of Colorado, or the United States. 1 Response: We find that both of these buildings are associated with personages of cultural and social importance to Aspen's heritage. Both Frank LaFave and John Bowman were early Aspen pioneers, associated with the commercial and social growth of the community during the mining era. The LaFave building survived as a restaurant well into the Quiet Years (1920's), and the Bowman Block housed Mr. Bowman's unique collection of museum artifacts of the west. In the 1950's, Fritz Benedict and Herbert Bayer were associated with the buildings, which were purchased by them for studio space (and living space for Bayer). And certainly through association with the building's current owner, Stein Eriksen, this standard could be applied. Eriksen's decades-old fame in the world of skiing, and his early association with the Snowmass/Aspen ski area, helped boost Aspen's fame as the internationally recognized resort it is today. Staff finds that this standard has been met. B. Architectural importance: The structure or site reflects an architectural style that is unique, distinct or of traditional Aspen character. Response: Both buildings meet this architectural standard as they typify traditional Victorian-era commercial storefront architecture in western communities that made the transition from false-fronted mining camp to city. We find that this standard has been met. C. Architectural importance: The structure or site embodies the distinguishing characteristics of a significant or unique architectural type or specimen. Response: We find that the architectural quality of these structure, particularly the corner LaFave Block, is a rare representation of Aspen's early 1890's design era. These commercial buildings are small scale, two story structures, that are more modest than the Webber, Brand, or Collins Blocks. They embody distinguishing characteristics of their time, and previous alterations have been generally compatible. D. Architectural importance: The structure is a significant work of an architect whose individual work has influenced the character of Aspen. Response: Our records do not indicate an architect was involved in the design or construction of these commercial buildings. However, through later association with Wright- schooled architect Fritz Benedict and Bauhaus designer Herbert Bayer, the HPC and P&Z may find this standard has been met. E. Neighborhood character: The structure or site is a significant component of an historically significant neighborhood and the preservation of the structure or site is 2 important for the maintenance of that neighborhood character. Response: The significance of these two buildings to the integrity of the Commercial Core Historic District cannot be underestimated. They are classic in form, pedestrian in nature, and belong to Aspen as a signature of our commercial heritage and unique character. We find that this standard has been met. F. Community character: The structure or site is critical to the preservation of the character of the Aspen community because of its relationship in terms of size, location and architectural similarity to other structures or sites of historical or architectural importance. Response: Aspen's historic commercial storefront buildings are the trademark of our downtown historic district. These buildings anchor a corner of the Commercial Core Historic District closest to the gondola and mountain base, and clearly illustrate Aspen's heritage through architecture. We find that their preservation is critical to the preservation of our character as a resort community. We find this standard has been met. Conclusion: The Planning Office finds that all Landmark Designation Standards have been met. RECOMMENDATION: The Planning Office recommends that the HPC recommend Landmark Designation for 529 E. Cooper and 531 E. Cooper, finding that all Designation Standards have been met. memo.HPC.529.531ec.ld 3 r LAND USE APPLICATION I. Introduction. The Applicant, Stein Eriksen, is the record owner of two buildings located in the City of Aspen, the first of which is legally described as the East 29 feet 8 3/4" of Lot I, Block 96, City and Townsite of Aspen (the "LaFave Building") and the second of which is legally described as the East 5 feet of Lot G, all of Lot H and the West 3 1/4" of Lot I, Block 96, City and Townsite of Aspen (the "Bowman Building") . The Applicant hereby applies for a historic landmark designation for both buildings pursuant to Article 7, Division 7 of the Land Use Regulations of the City of Aspen (the "Code") . II. Background. The buildings are located in the Commercial Code historic overlay district of downtown Aspen, but never received individual historic landmark status. They were both identified as "excellent" structures in the 1986 update of the 1980 Inventory of Historic Sites and Structures prepared by the Aspen/Pitkin Planning Office (in fact, the LaFave Building is featured on the front of the Aspen Area Comprehensive Plan: Historic Preservation Element, which contains the Inventory). The Applicant wishes to have these buildings designated in order to protect the structures and to secure access to the incentives available to these properties for their maintenance. The LaFave Building is listed on the National Register of Historic Places. National Register properties receive their designation from the United States Department of the Interior after having been documented and evaluated according to the Department's uniform and strict standards. III. Conformity With Code. Section 7-702 of the Code provides that a structure may be designated as an historic landmark if it meets one or more of the standards set forth in the Section. Both buildings meet several of the standards set forth in Section 7-702. The LaFave Building qualifies as architecturally important because it reflects an architectural style which is traditional Aspen character. The building is typical of the commercial buildings of the mining community of Aspen in the late 19th century. The corner of the building which faces the intersection of Cooper and Hunter Streets contains a typical feature of the era, a triangular pediment which shows the date of construction of the building (1888). The two story brick building was constructed by Frank LaFave and was primarily used as a restaurant until the 1920's. LaFave was one of Aspen's pioneers who built several buildings between 1885 and 1889. In the 1950's, Fritz Benedict bought the building and made the corner restaurant space into his architectural office. He sold the building to Herbert Bayer in 1955, the creative architect who, with Walter Paepcke, helped develop Aspen into a resort. The Applicant purchased the building from Mr. Bayer. The LaFave Building also qualifies as a building which contributes to both the neighborhood and community character in that it is a significant component of the commercial core historic district and preserves the Aspen community Victorian character because of its architectural features common to buildings of its type built during the late 1800's. In addition to its dated, triangular pediment noted above, the brick building contains two bay store fronts on Cooper, kickplates and clerestories. The building has a primary cornice with large sawn brackets and a secondary cornice with small brackets over the display windows above the first floor painted in a contrasting color from the rest of the building. The second story windows are typical of the era in that they are tall, narrow, evenly spaced and have one-over-one wood sashes and stone sills with brick label molds at the top. A recent renovation of the rear of the building removed non-original rear windows and replaced them with windows more in keeping with the character of the building. The Bowman Building actually looks like two separate buildings. Its architectural importance also lies in the fact that it typifies mining-era commercial buildings constructed in the late 1800's. The original wood frame building located on the site burned in 1892. John Bowman, a saloon keeper, purchased the property in 1892 and built the existing building sometime shortly thereafter. Bowman opened his saloon in the Bowman Building in 1893. He also included a museum to display his collection of mineral samples, guns and other western artifacts. After purchasing the building in the 1950's, Herbert Bayer converted the first floor to his artist studio and living quarters. The Applicant bought the property from Mr. Bayer. Like the LaFave Building, the Bowman Building also qualifies as a building which contributes to both the neighborhood and community character in that it is a significant component of the commercial core historic district and preserves the Aspen community Victorian character because of its architectural features common to buildings of its type built during the late 1800's. The eastern portion of the building is the smaller of the commercial storefronts and contains a dentillated cornice at the parapet, and has three narrow, evenly spaced windows on the second floor with stone lintels and sills. The western portion of the building consists of a first floor with 4-bay wood storefront with a simple bracketed cornice between floors and three one-over-one double hung wood windows with hooded crowns. 2 IV. Conclusion. Because each of the buildings meets at least two of the criteria for historically designated structures in the City of Aspen, both the LaFave Building and the Bowman Building should be granted historic designation status by the City. Such designation would help preserve the integrity of the structures and offer incentives to the Applicant and future owners to maintain them. jehitu\criben.app 3 , .... 1 9,/t. . 6 \18 r . I . + C , 11, 1*.4 ' · · , -1\'tIT'.m·V-:- ·ing ..7 . MEE<331:~30'ir fli - - ./. /4~l-. ' ./.6:; ---,Ill.1 ·· r, 4 14*0': , .i- 3 ' 1. 1 .:.9.4 - 4, I *6444 - C I .... . ·i: t·,• 142465 4 . , iIi ' 1 1 0 · ..9 i · . :142 ":1 .' 1.1 1 3 bl ·.. . " 1 \ 9 1. 2 .14 .I ~:.. - . 1 '*4929 r Y i R·*, ~ 2 3 .'lf -/&- . .L 9 lit 5 't .4 1 , .1 £ r. - U \ 1.\ 4 . ' il .... IMI ·' - : i I :/~Fl#di~ r NO.,- i , ...1. 5 )1 0 -3 . i 4, 19 7 - :11 i " 1 6 I -~D :0 1 0;,u1>' : 4· ' t = Var 1 .,r. % ' 1 . ''03. 4 ! 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IAND USE APPCICA:CION FOilM Thalberg Victorian 1) Project Name 2) Project location 434 West Smuggler, Lots K,L & E.15 Feet o f Lot M, Block 33, Aspen Townsite & Lots 11,12 & E.15 Feet of Lot 13, Block 33, Hallam's (indirate street address,' lot & block amine, 11,gal description rdien, A a crt-C ion, Aspen, Cl appropriate) 3) Present Zoning R-6 4) Iot Size 7,500 Sq . Ft . 5) Applicant's Name, Address & a=,e il Katharine Thal berq 434 West Smug'gler, Aspen, CO 81611 925-7498 6) Bepresmtative's Name, Address & Phone # Gretchen Greenwood & Assoc.. Inc. 201 N. Mill Street, Suite 207, Aspen, CO 81611 925-4502 7) Type of Application (please check all that apply): Conditional Use Concept:ual SPA X Conceptial Historic Dev. Special Review Final SPA Firal Historic Dev. 8040 Gmenline .6-~ Oonoeotual HJD Minor Historic Dev. Stream Margin Final POD Historic Demolition Molmtain View Plane ~ Subdivisirn - I{istoric Designation Condomini~mization Text,map Amendmetit GIN Allot:ment Illt Split/Illt Lire - (2409 Elarption Adjustment 8) Description of Existing Uses (r•mber and type of existing· structures; approximate sq. ft.; number of bedroams; any previous approvals granted to the property). Existing Single Family Victorian Built in the 1880's - Existing House: 2,336 Sq. Ft. with 2 Bedrooms Existing Garage: 672 Sq. Ft. 9) Description of Development Application See Attached Application 10) Have you attached the following? X Response to Attachment 2, Minim= Submission Contents X Response to Attachment 3, Specific Sul,nission ax-rtents X Response to Attachment 4, Review Standards for Your Application .111111.1 THALBERG VICTORIAN CONCEPTUAL HISTORIC DEVELOPMENT PLAN ATTACHMENT 2 - MINIMUM SUBMISSION 1. Letter of Consent by the Applicant is Attached as Exhibit A. 2. Street Address: 434 West Smuggler Aspen, CO 81611 Legal Description: Lots K,L & E.15 Feet of Lot M, Block 33, Aspen Townsite Lots 11,12 & E.15 Feet of Lot 13, Block 33, Hallam's Addition, Aspen, Colorado 3. Disclosure of Ownership is Attached as Exhibit B. 4. An Aspen Townsite Vicinity Map is Attached as Exhibit C. 5. A Written Description of the Historic Development Plan Follows: The Thalberg property located at 434 West Smuggler presently consists of a Victorian residence of 2,336 square feet and a garage/storage area of 672 square feet. The property is located on the northeast corner of Fourth Street and Smuggler with mature evergreens and large deciduous trees and shrubs surrounding the entire property. In addition to the trees that are as old as the house, many of the trees that surround this house were planted by Katharine Thalberg twenty years ago. The original house which began as a modest 15 foot by 20 foot log cabin, was constructed in the 1880's. At the turn of the century, Victorian miner's cabin additions were added to the house changing the house from the old log cabin to the vernacular z style of architecture. These changes included steep gable ends facing the street, small porches, clapboard siding, and double sash windows. When Katharine Thalberg purchased the house in 1973 , she continued the evolution of the miners cabin by adding small gables, porches and decorative elements. The footprint of the original building was not expanded at all since the first miner's cabin additions were built. Katharine maintained the small scale of the building both in size and mass in order to preserve the architectural heritage of Aspen's miners cabins. The interior of the home has also maintained the small nature of the miners cabin with only two existing bedrooms. In addition to the main residence, a garage/storage building was added to the property about ten years ago. This building is located on the northeast portion of the property, along the alley. This building was not designed to compliment the Victorian character of the main house. The roof has one main ridge line running north and south with a shallow roof slope of 20%. A cupola is located in the center of the building at finished height above grade of 22 (twenty-two) feet. The two existing bedrooms in the old main house are inadequate for Katharine Thalberg's family. She has three grown daughters with families of their own and she would like to provide bedrooms for them to visit without having to change and add on to her small house. This development plan proposes only to convert the existing garage/storage area into a guest house with two bedrooms, living/kitchen/dining area and two bathrooms. In addition, a one bedroom deed restricted accessory dwelling unit is planned in this guest house. The existing building will be remodeled to more closely resemble the Victorian architecture of the main building. Steep gables with the same slope of the existing house will be located on the west, south and east elevations. Smaller steep dormers in the same size and proportion of the old Victorian home will be added to the south, west and north side of the guest house. The window proportions and details will match the existing house. It is the intention of this proposed Victorian architecture to become a quiet and sensitive version of the main existing house. While the new building materials and details will match the main house, the Victorian embellishments of the main house will not be applied to the new guest house. The finished height of the new roof will not exceed the height of the existing cupola which is 22 feet. The existing R-6 zoning allows for two detached dwelling units in addition to a deed restricted accessory dwelling unit. The proposed guest house does not increase the footprint of the existing garage building. No setback height or floor area variations are necessary, as the proposed building meets these requirements. A parking variance is being sought for the property, due to the conversion of the garage/storage building into a guest house. The existing Victorian house has two bedrooms and the proposed guest house will have two bedrooms. The parking requirement for a one bedroom accessory dwelling unit is exempt. The justification for granting a four (4) car parking variance for this historic lot are as follows: 1. In keeping with the historic nature of the lot and existing building, Katharine Thalberg chose to maintain the small scale of the old building and not increase the footprint of the miner's cabin to accommodate these additional bedrooms. By eliminating the garage and converting it to a guest house, the HPC's goals and the city planning goals are met two fold. One, the historic structure is not added onto, thus allowing for the preservation of the residence and two, Katharine is able to also give the city a deed restricted dwelling unit on her property. This deed restricted unit is off the alley once again meeting the goals of the city by providing employee housing in an under-utilized area, the back alleys of Aspen. Zoning allows for an additional dwelling unit, thus allowing for the applicant to have two more bedrooms for a total of four (4) bedrooms and an accessory dwelling unit, a reasonable request on a 7,500 square foot lot. Instead of adding onto the historic small main house, and using up the land around the property for additions, the applicant chose to convert the existing garage for the bedrooms and preserve the historic quality of the old house and historic lawn. Legally, another addition of 1,300 square feet could be added to the house and the only place it could be built would be on the east lawn. This type of addition, that we are not proposing, would overwhelm the house, the lawn and the neighborhood with too much visual density. To prevent this, the conversion of the garage to the guest house with a four (4) car parking variance would keep the historic house and lawn to the east exactly as history remembers. The HPC has been empowered directly by the city Council to allow zoning variations in order to accomplish what we are proposing in this application to preserve historic structures and their environments. 2. For one hundred hears, the historic house has been located in the westerly portion of the lot. There has always been a lawn and beautiful gardens to the east of the house. Large trees and shrubs completely encompass the entire lot surrounding the house. The development guidelines clearly state that "traditional landscape patterns should be retained!" Under the HPC Guidelines for new construction it states, "Maintain the street trees and the planting strip between the street and the sidewalk." In order to provide parking on this property, a tremendous amount of trees to the south and the north have to be removed, in addition to the historic lawns surrounding the house. Paved parking areas are not compatible with the Victorian architecture. Gardens and lawns are compatible areas and follows the HPC Guidelines. 3. The existing garage/storage area has never been used by the applicant to house automobiles. The building has been used completely as a storage area. The applicant has always parked on the street. Therefore the pattern of use in the neighborhood will not be changing. 4. The neighborhood houses surrounding the Victorian house are all newly constructed homes. No parking variances have been issued for the homes directly surrounding this Victorian residence. Therefore, there is not a parking problem in this are of town. 5. Katharine Thalberg has allowed this house to become Landmark Designated, giving the HPC the right to review any changes to the property. It is not the intention of Katharine to ever put a garage addition on the property or to have to remove gardens and mature trees for automobiles. If another owner chooses to add a garage or parking areas, the design would be reviewed by the HPC at the time of conceptual development. In summary, this proposal for the development of additional bedrooms is the most sensitive and least impacting development plan to this historic property. The Historic Preservation Guidelines and the City of Aspens' preservation policy has been met with this proposed development. THALBERG RESIDENCE CONCEPTUAL HISTORIC DEVELOPMENT PLAN ATTACHMENT 3A: 1. Attached to the application is a sketch plan of the proposed site development plan showing the property boundaries and predominant site characteristics. Exhibit D. 2. Attached are the building elevation plans showing the major building materials to be used in the proposed development. Exhibit E. 3. A statement of effect of the proposed development on the original design of the historic structure and or character of the neighborhood. The proposed conversion of the garage/storage area to a detached guest house does not effect the historic Victorian residence located on the parcel. In order to preserve the Victorian residence, the addition of two bedrooms to this parcel will be in a guest house behind the existing building. In order to preserve the historic lawn, gardens and trees on the site, we request a parking variance to prevent an incompatible use of a parking space next to the Victorian landmarked house. Therefore, the proposed development maintains the original design of the historic structure and the historic lawn and gardens. 4. A statement as to which of the following categories of significant development. The development application falls under: C. Expansion of a structure wherein the increase of floor area of the structure is more than two hundred and fifty square feet (250 sq. ft.). THALBERG VICTORIAN REVIEW STANDARDS ATTACHMENT 4 A. The proposed development is compatible in character with designated historic structures located on the parcel. . . The development proposal meets this standard. The existing main structure is a Landmarked Designated building. Through the ages the building has maintained the small Victorian style characterized as the Aspen vernacular miner's cabin. The footprint the original historic addition has not been altered. The addition of the bedrooms on the parcel does not change the scale or destroy the landmark designated structure. The conversion of the garage to a guest house utilizes an existing building thereby not affecting the historic main building and lawn. A parking variance is required to maintain the historic character of the house and the lot. B. The proposed development reflects and is consistent with the character of the parcel for development. . . This conversion of the garage to a guest house with the parking variance maintains the character of the existing parcel. No change to the lawn and house are necessary with this proposal. C. The proposed development enhances or does not distract from the cultural value of designated historic structure located on the parcel proposed for development. . . The addition of two bedrooms and an accessory dwelling unit with a parking variance is not being added to the designated historic structure. The cultural value is unaffected. The development enhances the cultural value of the property because the property will have a total of four bedrooms without having to add on a huge addition to the historic house to accomplish this necessary bedroom addition. D. The proposed development enhances or does not diminish or distract from the architectural integrity of a designated historic structure. Since the proposed development is not being built on the designated structure, the architectural integrity of the historic main house is not diminished or affected in any way. The proposed development is on the same parcel as the historic residence, it is the intention to match the existing Victorian proportions but not the decorative elements. This direction allows the proposed building to be sensitive to the older house but not compete with it. Therefore, the architectural integrity has been preserved. REAL EMATE SAW • RENTALS • PROPERTY MANAGEMENT 600 EAST MAIN • ASPEN, COLORADO 81611 • 303/925-5757/0{rrSIDE COLORADO 800/642-4210 September 17, 1992 Historic Preservation Commission c/o City Hall 130 S. Galena St. Aspen, CO 81611 Dear Commission members: When my wife, Katharine Thalburg, submitted the application to remodel her garage, I learned from the Planning staff that it is rare, if not unheard of, that the HPC would waive 100% of a parking requirement. I was a bit surprised to learn this as it was our council's intention in the '80's to create incentives for historic property owners. We made it clear this entailed giving the HPC discretion to give complete relief from certain requirements if, in your analysis, that decision would accomplish preservation of an important historic dwelling. It is critical for you to be aware that the Council's goal was for the HPC to use all flexibility possible to preserve Aspen's Victorian heritage. Completely waiving code requirements for height, set backs, mass, density, change of use and parking are clearly at your disposal. In Katharine's application a fundamental question is: What is in the best long range interest of the community? Is preservation of the house forever, no more expansion of the house 08 garage footprints, maintaining the lu*-iant West End garden, and adding a deed restricted studio to the housing inventory more important then retaining a parking space in the garage or intruding into the garden with a concrete slab. With the Aspen Area Community Plan's emphasis on auto free zones and auto disincentives generally, it seems clear that the neighborhood, community and globe's preference would be for trees over concrete and for affordable housing over cars. Also I will present on Wednesday 9/23, slides showing historic parking patterns in the West End which demonstrably show how much on-street parking is available and how this really enhances the informal parking pattens. When I initiated all these incentives to lure historic property owners to join the inventory, it was supported by the Council with the express purpose of giving the HPC considerable leeway to do your job. Sincerely, »7 / - A . 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HECHT September 17, 1992 Chairperson Historical Preservation Commission Galena Street City of Aspen Aspen, CO 81611 Dear Chair: I am writing to signal my support for Katharine Thalberg's application to convert her garage to a guest house and a deed restricted studio and then 100% exempt the parking. Many of our neighbors park on-street and even during music concerts or church services there is no problem. There is no parking problem in the neighborhood. TO preserve the house, preserve the garden and gain a deed restricted alley studio is well worth waiving any parking requirements. I live 1 block from her house. Sincerely, 15--t'ES>' 5»5=« Andrew V. Hecht 531 West North Aspen, Colorado 81611 AVH/cm hpc.2 601 EAST HYMAN AVE.,ASPEN, COLORADO 81611 September 18, 1992 Aspen Historical Preservation Committee 130 S. Galena Aspen, Colorado 81611 RE: Katherine Thalberg Historical Designation and Variation from Off-Street Parking Requests for Two-Free Market Bedrooms and A Studio Accessory Dwelling Unit Northeast Corner of Fourth & North Streets, Aspen, Colorado Dear Members: In the spirit of encouraging development of housing for local residents that is affordable, dispersed throughout the community, and preserves the community's physical scale, I encourage the Historical Preservation Committee to approve Ms. Thalberg's request for historical designation with a variation for offstreet parking. Her plan to build a studio accessory dwelling unit, preserve the original footprint of her home and the existing trees is commendable and supports the spirit of the proposed Aspen Area Community Plan. I have lived in an affordable 375 square foot free market cottage unit (owned by Jim Salter and Kay Eldredge) in the West End for over eight years, approximately one block from Ms. Thalberg's home. I am fortunate to have this housing arrangement and hope others may too. Regards, Barbara L No,··pie Barbara L. Norris 500 North Street Aspen, Colorado 925-6662 NORTH FOURTH STREET ASSOCIATES P. 0, BOX I.I. ASPEN, COLORADO 81612 September 17.1992 Bill Sterling 434 West Smuggier Aspen, Co. 81611 Dear Bill, This letter will serve to confirm our conversation wherein we discussed an addition to your home on West Smuggler. As the owner of a nearby property, 611 North Fourth Street, I applaud your volunteering to place your home under the protection of historic preservation. If t.he plan you present does not have reasonable room for parking I think the streets can easily accommodate a few more cars. Good luck with your application and let me know if there is anything else I can do to help Sinceryly, 1, f; t J . € f 1141» Michael A. Conviser -3 4 b 1 '1-3 4« ' t,n of-ynef24 1 · 11--r~-n*41 'e 7RLAN 37 °top »*-402.*-»f %*163 (-t ./11.z,14022-(t€t 7R0'rO- 7L~* 3r~Dr r} 0-- Py~f*MLE 49,64-77 11 ~-lle 6-4-/1,--7Ckn~. v w 7*v FV~ 47£ /-/1/~14/1-444%47: P AW »r©,-*43© 416 .n-,~ no -yj~u hz,Ui- 9- L,UVUU 1-u, ~~-hY «t -6 -- 91/ ay,/- 0 ' 4, 42:~ flef 624 W.Hallam St© Aspen, CO 81611 Sept. 19,1992 Historic Preservation Commission Aspeng CO It has come to my attention that Katherine Thalberg and Bill Stirling have agreed to put their house on the Historic Register and are going to apply for a waiver for on spot parking. As a West Ender I wish to show full support for this waiver. From what I have seen of on site parking it just adds ugliness and more pavement to the area while eliminating spaces for on stree-t parking to allow for exit. On street parking has neve-r been a problem in the West Endp and unless you are going to allow huge Condos to be built, it never will be. I am appalled at the size of new houses being built in the neighborhood anyway. I live at 624 W. Hallam. The monstrosity being built next to to us has a two car garage ind two parking spaces on the ally which completely eliminates the back yard. The house, built to the Max on a small lot, destroys the privacy of our back yard haven and blocks views from all sides. The neighbor to the rear of house is so disgusted that he says he is going to move. SO he will probably sell to someone who will knock down that house and build the biggest house that they can, and there goes more of the neighborhood! Please help us keep our houses in proportion to the lots they are on with space around the house and some greenery. Bill and Katherine would lose their garden and some trees for a slab of pavement. Thank you, 7 WCAL 4*14/1 4 - June 17, 1992 Historic Preservation Committee: We would like to see the historic preservation of the Stirling Victorian as well as its garden. There is really no parking problem in our area, and we support the Stirlings' request to waive parking for the proposed remodeling of the garage, especially since such parking would seriously cut into the green space. 944 V -Fo - \~ Peter and Eva Kaus 434 Pearl Court Robert M. Chamberlain, Jr. 420 W. Francis St. Aspen, Co 81611 Sept. 16,1992 Mr. Bill Stirling 434 W. Smuggler Ave. Aspen, CO 81611 Dear Bill; This letter is to record my approval of your plans for remodel and expansion without the necessity of providing off-street parking. Our family has always done quite well without either garage or driveway. In fact, it occurs to me that either might be more nuisance than they're worth, especially in winter. It has been an easy regimen to simply move the cars around the corner a few minutes in advance of the snowplow, and return them afterward. For full-time residents, this should pose no great hardship. Although we do retain a legal parallel parking spot on the alley behind our out-building, due to the peculiarities of its setback, it is only occasionally used, in summer mainly, and does not interfere with access by service vehicles. It is my opinion that off-street parking is not a tradition of very long standing in our neighborhood, and I would much rather retain all the lawn and garden space remaining, as respite against overwhelming resort-oriented use of residentially zoned property. C>-n Yariz f A /1- ~ _J-« il " ' Robert M. Chamberlain, Jr. 09/ it/lz 10.ZO STEWART REX WRIGHT, M.D., INC. SUITE 527 399 EAST HIGHLAND AVENUE SAN BERNARDINO, CALIFORNIA 92404 TELEPHONE (714) 882-5144 1-7- 447.6 91 Crl r.• 1 ght'L, 9 4 1 - 1 9-4 246.J fa-4 i --iy- 464_ cl.0,-.A ON,Wto ¥ 96-7 k blf. 17/La 5« »C,Eac-- 92- -#CLA t''~~P++£'0~_. OUU~C.ALL..0 /ugs,·a VEU-- a.227 . 93* Di/. SL,¤3,164 y- 7£ -f_-'.e )··ca ifF»--/1 __ 7-4="~407 2 is· c m.,0-*A7420.1 Ete,-C,_. 24-y-- OW 94- 1 4-0--te.-ej-. L·w'a-- Yti-~e~-.e n_ 7---4 9.14 l_21*»~- 4-04 _300 Loh»j 151-- -fln-% Cix*·r«·»-'- ~--_-- .' ..' -WI -I -.-I-I-. -. . .~ ..WL ' i. auy joc PAJA 0 Niku. le_,4 113 .~,g~,4-9 - Ai /46 8-opt_ 12It»g~~d_go ___- _ UU j..9 2_0.6 4 . 1 / ~ (32;'TIVU»--£9- d3(23$-~ C W.i,Ud.j -»v ~~~gl - j»,5 2~44.U_. n h di-/ Aa»»du#9 --»/CUL -4- v --- r R i - <3,4,4-0-- FZ- 7 ,-(g- ~/7/Ld --ae©c,ta» 6 23006 - IJ 10« AL<1 -- ,x.» <69--P a~t.12-gr 1 et Jjej aL Jrul 44.01 3-11*(U &-1 , A I 1- 4 -3- 1 - P ._ At ft--, 14. i» BJU.. /1 #p·« .th--j pao~ 071~_ k,5-r- - ,1 1/ ~<ic,fle-ot-,0,4' £:AC,91~ Q Owl ~.36:0-1 9 /Luae*f / Al 41-°f N ,~ 9 ·- u ; Bill Sterling Fourth and Smuggler Aspen, CO 17 September 92 Dear Bill, Concerning your proposal to convert your garage, it seems to us that there would be no problem in waiving the parking restrictions and allowing you to park on the street. The neighborhood really doesn't have parking problems. And, of course, the fact that your house would be historically designated and that you Would be creating a new living unit for a local seem a great plus for the city. We support you and hope your plans work out. Sincerely, #9 ER.- 2 , Lf L % Kay Eldredge and James Salter 500 North Street Aspen, CO 81611 925-8086 NATIONAL CENTER FOR PRESERV . v - 333 CONNECTICUT AVENUE, N.W. 0 SUITE 300 0 WASHINGTON, D.C. 20038 • (202) 338-0892 PRESIDENT ExEcurrvE DIRECTOR PAUL F. MCDONOUGH, JR., ESQ. STEPHEN NEAL DENNIS, ESQ, PRESERVATION LAW UPDATE 1992-22 July 25, 1992 Federal Court Finds Dallas Ordinance "Precise Where Possible" Though several historic preservation ordinances have been attacked in the past as insufficiently precise, American courts have tended to disagree with such arguments. Because most cases involving historic preservation ordinances are brought in state courts, the few federal court decisions on this basic issue assume a particular significance even though they are not binding on subsequent state court cases. The United States Court of Appeals for the Fifth Circuit ruled in Mages v. City of Dallas, 141 P.ld 313 (1984), that a challenged preservation ordinance in Dallas, Texas was as specific is it needed to be (or indeed could be). The Moves case turned largely on federal due process arguments, and it must be remembered that although federal courts can set minimum constitutional thresholds under the federal constitution, state courts are free to set (and do sometime set) more rigorous due process thresholds under state constitutions (see "Updates" 1990-19 and 1991-16), provided such deviating state due process thresholds do not violate other federal constitutional requirements. The Texas property owner in Mayes constructed a walkway with brick pylons across his front lawn without applying for a certificate of appropriateness and requested a certificate of appropriateness in order to paint the exterior of a brick residence in the Swiss Avenue Historic District. The City of Dallas ultimately denied both certificates of appropriateness. Mayes brought his case in federal court and contended " solely that the city's exercise of its zoning power in the interests of historic preservation offended due process, because, as to the denial of the alterations in question, the applicable city ordinances did not provide objective, specific standards that would prevent the arbitrary exercise of this zoning power by city authorities." The Mayes court outlined in some detail the operation of the Dallas historic preservation ordinance: This procedure involves an application to a city department for a certificate authorizing the alteration; a review by its staff, a historical-overlay-district task force committee, and a city Landmark Committee; and recommendation by the latter to the City Planning THE "PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT FROM THE J. M. KAPLAN FUND. Commission. The purpose of the review is to assure that the proposed alteration in the historic district meets preservation and district criteria specified in the Dallas City Code and in the ordinance that created the historic district. The district task force committees ~1 and the Landmark Committee are composed of people with some particular preservation expertise. The City Planning Commission may approve, deny, or conditionally approve the application for a certificate of appropriateness to make the proposed alteration. Any person dissatisfied with the Commission' s final action may appeal within ten days to the City Council, which may decide the issue free of binding effect of the Commission's final action. A federal district court dismissed the Mayes suit, and the Fifth Circuit affirmed this dismissal, resting its decision largely upon its earlier decision in Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), cert. denied, 426 U.S. 905 (1976), and holding that "the city ordinances at issue comport with Fourteenth Amendment due process requirements": A municipality has the constitutional power to regulate the use of private property in the interest of historic preservation. ...On their face, as Mayes concedes, the present municipal historic preservation ordinances satisfy requisite due process criteria as being of general application to well-defined geographic areas, supervised by a regulatory body of professional qualifications, with governing legislative criteria provided, and an administrative procedure adequate to assure that the regulatory powers be exercised in accord with the legislative criteria. Courts which are suspicious of the actions of administrative agencies sometimes find that ~ legislatures have improperly delegated powers to administrative agencies without attaching sufficiently detailed standards. Mayes used the "delegation doctrine" to argue that the standards of the Dallas ordinance should have been more specific: [T-]he plaintiff Mayes contends that [with-] regard to the specific alterations for which he was denjed approval, the Dallas ordinances did not set forth objective, articulated standards sufficient to prevent the arbitrary exercise of governmental power, without legislative direction, by the committees and agencies entrusted with approving certificates of appropriateness. The Mayes court dismissed this argument with little difficulty: The regulations themselves, it is true, do not specifically prohibit the painting of old-brick residences, nor the construction of pylons protruding above the lawn surfaces. Nevertheless, other provisions of the guidelines do provide articulated standards adequate to provide "structure and guidelines["1 to the administrative body charged with enforcing them, as well to prevent unreviewable "unfettered authority," id., to be exercised by that agency with regard to the rulings now questioned by Mayes. The Maves court walked carefully through the Swiss Avenue Historic District ordinance, selecting provisions which might have guided the City of Dallas in reaching its decision: The Swiss Avenue Historic District ordinance... provides, in §5.1, that the color of a building " must harmonize with the structure' s facade as well as complement the overall character of the District. " §5.2 provides, "All building facade material shall be architecturally and historically appropriate. " Under §2.2(2), "the finish texture [of all walkways] shall be compatible with . . . walkways of surrounding structures. " The introduction to §2.2, which provides detailed regulation as to landscaping, notes as a governing principle, " [t]he open expanse of front yards and the quantities of planting within them serves as a transitional area between public and private space permitting easy viewing of the architectural detail and can serve to unify and beautify the streetscape. " Finally, §6.1 requires that " [t]he manner in which materials are used... and the fashion in which elements such as columns... are utilized shall be compatible and harmonize with the existing structures in the block. " The Fifth Circuit held that the Dallas ordinance therefore met federal due process requirements: These legislative principles provide adequate articulation and guidelines that justify the city commission's rulings with regard to the three matters complained of: To satisfy due process, guidelines to aid a commission charged with implementing a public zoning purpose need not be so rigidly drawn as to prejudge the outcome in each case, precluding reasonable administrative discretion. [As] in Maher, the ordinance is precise where possible--such as in delineating the district, and in defining the nature of the alterations that require approval, including the principles and often specific criteria by which alterations are to be determined as appropriate or not-- , while the regulatory process is accomplished through personnel with proper professional qualifications, and an elaborate decisionmaking and appeal process provides for ultimate review by the City Council. In summing up its reasoning, the Mayes court used language that should encourage local historic preservation commissions to rely upon language in their enabling ordinances when reviewing (and potentially denying) applications for projects that might damage the character of a designated historic district: In substance, with many specific exemplars, the Swiss Avenue regulations require that alterations be historically and architecturally appropriate in accordance with the existing character of the district, and that they harmonize with the structure to be altered and with the district itself. With regard to the three rulings here questioned by the plaintiff Mayes, the record shows not only, as previously noted, that they were in accord with guideline principles specified in the historic preservation ordinance, but also that these principles were consistently so applied by the regulatory body. When quoting. please credit the Center. NATIONAL CENTER FOR PRESERVATION LAW 33 CONNECTICUT AVENUE, N.W. I SUITE 300 0 WASHINGTON, D.C. 20038 • (202) 338-0392 PRESIDENT EXECUTIVE DIREOTOR PAUL F. McI)ONOUGH, JR·, ESQ. STEPHEN NEAL DENNIS, ESQ. PRESERVATION LATV UPDATE 1992-17 June 10, 1992 New York's Highest Court Considers "Negative Visual Impact" Environmental groups in New York State have learned to use the State Environmental Quality Review Act (SEQRA) constantly and cleverly. The history of any broad environmental legislation is often, however, a story of incremental advances in the judicial affirmation of powers asserted by parties able to benefit from the proper administration of a statute. Now the New York Court of Appeals has ruled in Matter of WEOK Broadcasting Corporation v. Planning Board of Town ofLloyd (3 No. 32, decided April 3, 1992) that the potential negative visual impact of a proposed project is a valid reason under SEQRA for denying a permit needed for the project, and the WEOK Broadcasting opinion promises to become an important new precedent. Although WEOK Broadcasting was allowed by the Court of Appeals to proceed with plans for an AM radio transmitter facility consisting of five broadcasting towers in Ulster County, New York across the river from the Franklin D. Roosevelt Home, a National Historic Landmark, the Court of Appeals agreed that the Town of Lloyd might have had reasons for denying site plan approval to the broadcaster if the town had been able to substantiate its arguments that the towers would be harmfully visible from the Roosevelt Home. Instead, the court found that the Planning Board's denial had I10l been based on "substailtial evidence" and was therefore properly reversed by a New York trial court. The Planning Board had found that the broadcaster " failed to adequately minimize or avoid adverse environmental effects to the maximum extent practicable" and that "the environmental effects identified in the Environmental Impact Statement cannot be adequately minimized or avoided by mitigation measures identified as practical." The site proposed for the towers is in a Designed Business zone which permits radio and television towers as permitted uses, and the Court of Appeals noted in its opinion that "the inclusion of a permitted use in a local zoning ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the THE "PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT FROM THE J. M. KA-PLAN FUND. 7'm'r Ve' · t. local community. ... [T]he aesthetic visual impact of the towers was, we presume, considered AN at the time that radio and television towers were included as permitted uses in the Designed - "' ~ Business Zone." The Town of Lloyd's Planning Board issued a positive SEQRA declaration in April 1989 that the project might "have a significant effect on the environment." The Board asked the broadcaster to prepare an Environmental Impact Statement (EIS) considering, among other things, "the towers' visual impact from nine locations, one of which was the Franklin D. Roosevelt residence, a national historic landmark in Dutchess county." The portion of the draft EIS that dealt with the possible visual impact of the towers was prepared by landscape architects and proved crucial in the disposition of the case by the Court of Appeals: The analysis concluded there would be minor visual impact from six of the identified viewpoints, moderate visual impact from one, and no visual impact from the remaining two viewpoints, the Franklin D. Roosevelt (FDR) home and the Mid-Hudson Bridge. The visual impact analysis from the FDR viewpoint was conducted in the Spring of 1989 when the trees surrounding the proposed site were leafless. The Planning Board asked for comments about the draft EIS from the U.S. Department of the Interior, the Dutchess County Department of Planning, the Ulster County Planning Board, and several environmental, conservation and historic preservation groups: "Negative comments 1,~ received from the agencies, organizations and local residents focused on the potential visual impact of the towers from the FDR viewpoint." The Planning Board even retained an independent consultant "to critique the DEIS." This consultant opined murkily that "subjective judgments are inextricably involved in any visual assessment." The broadcaster' s final EIS listed extensive mitigation measures already proposed by the broadcaster to lessen the visual impact of the towers: The FEIS indicated that in an effort to mitigate the effect of the towers and their lighting, [the broadcaster], with the approval of the Federal Communications Commission (FCC), substantially reduced the height of the tallest tower from an optimum height of 445 feet to 245 feet, the minimum height that would meet FCC minimum efficiency standards. . . . In further mitigation of the objections articulated in the comments on the DEIS, petitioner noted that a variance from the Federal Aviation Administration (FAA) had been obtained, permitting a reduction in the number of towers required to be lighted from five to two, and allowing petitioner to paint three of the towers gray to minimize their visibility. Additionally, the lighting on the towers was changed from a white strobe to a ~ 'fy . t less visible red and in order to minimize the visual effect of the towers and to blend them in with the surroundings, they were designed as guyed towers with an eighteen-inch open face lattice instead of self-supporting towers tapering from an eighteen to twenty-foot base to two to three feet at the top. The Town of Lloyd's Planning Board denied site plan approval in December 1989. Among its reasons for the denial were that "the Visual Impact Statement was unpersuasive in its analysis and was subject to conflicting interpretations and conclusions; there was a possibility that the towers would be visible from the FDR homestead." The broadcaster challenged the Planning Board's denial, arguing in part that the Town of Lloyd's Zoning Board of Appeals had only months earlier approved a different transmission tower project involving a 400-foot high FM radio transmission tower which "could be seen from both the FDR home and the Hudson River and in respect to which a special use permit was required. " The Court of Appeals began its analysis of the case by noting that the "primary purpose" of SEQRA is "to inject environmental considerations directly into governmental decision-making" in New York State. The court stated that aesthetic considerations are "a proper area of concern" in the "balancing analysis" required by SEQRA "inasmuch as the legislature has declared that the 'maintenance of a quality environment... that all times is healthful and pleasing to the senses' 1, is a matter of statewide concern .... The Court of Appeals ruled that the Planning Board had improperly attempted to base its denial in part on "alleged failure of the plan to conform with various zoning regulations. " The Court of Appeals stated that "except where the purported action is a zoning amendment, SEQRA review may not serve as a vehicle for adjudicating 'legal issues concerning compliance with local government zoning'...." The Court of Appeals found the Planning Board's determination that there might be a negative visual.impact on the FDR home site hopelessly "conclusory": In so concluding, the Board relied on statements from some community members, agencies and other organizations, some of whom stated there might be a visual impact and others who stated that there definitely would be a visual impact. Critical to those views regarding visual impact from the FDR site was the supposition that the visual impact study was conducted under optimal conditions which impacted positively on the results of the study. Thus, the study Was viewed as ambiguous and not establishing that under all conditions and at other times of the year, the condition of the foliage between the FDR site and the radio towers would be the same and would block the view from the FDR site; if the conditions and density of the foliage were less, there would be greater visibility of the towers. This reasoning is flawed, however, because the record demonstrates that at the time the visual impact study was conducted, there were LLQ leaves on the trees. Thus, [the broadcaster's] evidence of the visual impact from the FDR site was based on observations . g, 41*Jr I made under the least desirable conditions--when visibility of a tower radio transmitting ~ facility would be greatest. Moreover, the comments and statements from community - 1 members and agencies do not appear to be supported by any factual data and at best are mere conjecture. [The Planning Board's] finding that there may be a visual impact from the FDR homestead is unsupported by any factual data, scientific authority or any explanatory information such as would constitute substantial evidence. The Court of Appeals was particularly critical about the Planning Board's reliance on insubstantial testimony: To permit SEQRA determinations to be based on no more than generalized, speculative comments and opinions of local residents and other agencies, would authorize agencies conducting SEQRA reviews to exercise unbridled discretion in making their determinations and would not fulfill SEQRA's mandate that a balance be struck between social and economic goals and concerns about the environment.... The Court of Appeals specifically stated that aesthetic considerations could be a " sufficient basis" for SEQRA determinations: We reject petitioner's contention that negative aesthetic impact factors may not constitute ~ a sufficient basis upon which SEQRA determinations may be made. Indeed, as we noted -F earlier, aesthetic impact considerations may constitute an important factor in SEQRA review. Negative aesthetic impact considerations, alone, however, unsupported by substantial evidence, may not serve as a basis for denying approval of a proposed "action" pursuant to SEQRA review. An amicus curiae brief filed in the New York Court of Appeals by Scenic Hudson, Inc. had argued persuasively that negative visual impacts should be a sufficient basis for the denial of a requested permit under SEQRA: Despite the dearth of cases where aesthetics have found their way into the courts under SEQRA, courts have recognized the legislative significance of SEQRA as it affects visual impacts, neighborhood character, and historic resources. The Scenic Hudson brief reviews the reported (and unreported) New York SEQRA cases involving aesthetics, neighborhood character or historic preservation. For this reason alone, the brief may be of interest to other New York State organizations. (Copies of the brief are available from Scenic Hudson at 9 Vassar Street, Poughkeepsie, New York 12601-3091.) When quoting. please credit the Center. NATIONAL CENTER FOR PRESERVATION LAW I~„*3£3 CONNECTICUT AVENUE, N.W. 0 SUITE 300 0 WASHINGTON, D.G. 20036 • (202) 388-0392 PRESIDENT EXECUTIVE DIRECTOR PAUL F. MCDONOUGH, JR.,ESQ. STEPHEN NEAL DENNIS. ESQ. PRESERVATION LAW UPDATE 1992-21 July 2, 1992 New York Court Questions Reduction in Size of Landmark Site by New York City Board of Estimate Very few court cases have involved to date the intriguing questions of how large a landmark designation may be and whether a reviewing city council or other municipal body may change the boundaries of a designation approved initially by a local landmarks commissions. A New York appellate decision offers hints about how courts might deal with the second of these issues in 400 East 64/65th. Street Block Association v. New York City (No. 45766, New York Appellate Division, decided May 19, 1992). The New York Landmarks Preservation Commission had designated a one-block housing project known as the City and Suburban project in May 1990. The project consists in its original form of fourteen separate buildings, and the entire project was designated as a landmark site by the Commission. The city' s Planning Commission "submitted to the Board of Estimate a report which found the designation to be consistent with zoning and development in the area." The New York City Board of Estimate (now replaced by a City Council) modified the designation by removing the four structures at the eastern end of the block facing the East River and confirmed the remainder of the designation. A trial court opinion had affirmed this action by the Board of Estimate. The Appellate Division opinion noted that the Board of Estimate' s action would permit the owner of the eastern end of the site "to erect a high-rise residential tower at the expense of the integrity of the Landmarks Preservation Commission' s designation of the complex, in its entirety, as a landmark. " On appeal, the City o f New York argued that the Board of Estimate' s action had been "a compromise which effectively satisfies the competing concerns of preservation and development." The Appellate Division did not find this argument persuasive and reaffirmed the strong powers of the Landmarks Commission: It is well settled that, in passing upon a designation of landmark status by the Landmarks Preservation Commission, the Board of Estimate performs an administrative function and not one which is legislative or quasi-judicial in nature ....As the Court of Appeals THE "PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT FROM THE J. M. KAPLAN FUND. noted..., upon designation of a structure as a landmark, "New York City's Board of Estimate may then modify or disapprove the designation, and the owner may seek judicial review of the final decision. " The Appellate Division then turned its focus to the question of what standard of review a court should apply and appeared to give the developer in the case a partial (if brief) victory: " [R]eview is limited to whether the administrative determinations were rationally based, or whether they were arbitrary and capricious ....On this point, Kalikow argues that the Board of Estimate is not required to state a reason for its decision and that the failure to provide a reason does not render its action arbitrary and capricious. We agree, and observe that neither does it require the conclusion that the action is supported by substantial evidence in the record, to which we now turn. What Kalikow' s argument fails to recognize is that the Landmarks Preservation Commission designated the complex as a "landmark site" and not 14 individual buildings as 14 different "landmarks" .... It is clear from both the extensive report by the Landmarks Preservation Commission and the report of the City Planning Commission that the significance of the site is that it is one of only two such light-court model developments remaining in the country which comprise an entire block. The position that a part of the complex should be considered worthy of designation as a landmark for its historical, architectural, cultural and aesthetic value and part should not is inherently inconsistent. The failure of the Board of Estimate to advance any reason for removing four of the 14 buildings in the complex from the designated landmark site does not render the action any less arbitrary when viewed in the context of the administrative record. The Appellate Division criticized the Board of Estimate for resting its decision "on factors outside the record": The municipal respondent's assertion that the decision of the Board of Estimate constitutes a legitimate compromise between preservation and development interests rests on the assertion that the Board may base its decision on factors outside the record... . However ... this view has been rejected, and the Board of Estimate's role in the landmark designation process is regarded as entirely administrative. Therefore, even in the absence of any stated rationale j ustifying the Board's decision, its legitimacy is determined by reference to the record compiled in administrative proceedings. The Appellate Division then turned to arguments which the developer had failed to make (and perhaps could not have supported): Finally, we note that Kalikow has made no attempt to demonstrate economic hardship which might support the grant of a variance or waiver .... Neither has Kalikow demonstrated that the landmark designation would deprive him of a reasonable return on the use of his property ....At best, it can be said only that the property will not be put to its most lucrative use, which is not a basis for granting relief ... 0 When quoting, please credit the Center. NATIONAL CENTER FOR PRESERVATION LAW - GONNEOTIOUT AVENUE, N.W. 0 SUITE 300 0 WASHINGTON, D.G. 20036 • (202) 338-0392 PRESIDENT Exmou·rrvE DIRECTOR PAUL F. MCDONOUGH, JR,ESQ. STEPHEN NEAL DENNIS, ESQ. PRESERVATION LAVT UPDATE 1992-24 July 30, 1992 '' New York Court Upho:ds Interior Landmark Designation of Restaurant The New York Appellate Division has upheld the designation of certain interior spaces in New York City's Seagram Building which are now used as the Four Seasons Restaurant. The decision in Teachers Insurance and Annuity Association of America ITIAA] v. New York City (No. 46076, decided July 30, 1992) affirms an earlier trial court decision (see "Update" 1990- 37). The Seagram Building was designed by the famous international architect Mies van de Rohe, and the Four Seasons Restaurant was designed by the noted architect Philip Johnson. Included in the interior landmark designation were certain items belonging to Seagram but left within the restaurant space after the building's sale to TIAA. The Appellate Division had no problem affirming the trial court' s decision on any issue in the case. The Appellate Division noted that the New York Landmarks Preservation Ordinance itself authorizes such designations: Designation of interior architectural features is specifically authorized under the Landmarks Preservation Law .... Such designation may include interior architectural features. The Appellate Division had already upheld certain challenged interior landmark designations jn a case challenging designations of theater interiors, Shubert Organization, Inc. v. New York Landmarks Preservation Commission, 510 N.Y.S.2d 504, appeal dismissed, 515 N.Y.S.2d 456 (1991), appeal denied, 519 N.Y.S.2d 651, cen. denied, 112 S.Ct. 2289 (1992) (see "Updates" 1989-49 and 1991-13): We have rejected challenges to designation of interior elements per se as well as designation of interiors when such designation was argued to restrict use of the property. . . . The testimony before both the Landmarks Preservation Commission and the Board of Estimate in the present case is no less compelling than the evidence adduced for those bodies with respect to the Shubert Organization application. Deferring as we must to the expertise of the Landmarks Preservation Commission and taking into consideration the comprehensive and voluminous record which supports the designation, we cannot conclude that the designation was arbitrary or capricious. THE "PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT PROM THE J. M. KA-PLAN FUND. On the "taking" issue, the Appellate Division concluded that TIAA was "not substantially deprived of the economic value of this space" and had not therefore suffered a taking. on a point that had been heatedly argued before the court, the Appellate Division ruled that the Four Seasons Restaurant has a sufficiently public character to qualify for interior landmark designation: We reject petitioner' s contention that the restaurant interior lacks the public character necessary for landmark designation. This restaurant is not a private club. Rather, it is an interior that is "customarily open or accessible to the public, or to which the public is customarily invited".... Although TIAA had suggested that the interior landmark designation of a space presently occupied by a restaurant lenant might give that tenant art unfair advantage in future rent negotiations by making it less likely that any other tenant could be located for the space, the Appellate Division was not convinced: We also reject petitioner' s contentions that this designation actually protects use and will unnecessarily restrict future occupancy. The fact that occupancy other than that of a restaurant might not constitute optimum commercial utilization of the space does not require a conclusion that the designation is in effect a preservation of prior use. Perhaps the most intriguing aspect of the case had been the designation of certain fixtures that are not the property of either the restaurant tenant or the current landlord owner of the Seagram Building: [P]etitioner's contention that this designation inappropriately included interior features which are not fixtures is without merit. In the present case, each of the features is sufficiently connected to the restaurant interior within the definition of [the Landmarks Law]. Petitioner presently does not occupy the restaurant space, which is leased now to a third-party. When petitioner regains possession, it may apply for a variance so as to remove the sculptures. Until such time as the application is denied, however, this particular claim is premature .... In a concluding paragraph, the Appellate Division agreed with a holding of the trial court in the case and stated that the Landmarks Preservation Commission is not prevented from designating personal property as part of an interior landmark designation: Finally, with respect to certain of the sculptures, the Landmarks Preservation Law in authorizing the designating of interior architectural features does not distinguish between personalty and realty. The 77,4,4 decision suggests that the Landmarks Preservation Commission could include in other interior landmark designations items specifically designed for those spaces but not so physically connected to them that they would constitute real estate "fixtures. " When quoting. please credit the Center. NATIONAL CENTER FOR PRESERVATION LAW 7 CONNECTICUT AVENUE, N.W. 0 SUITE 300 0 WASHINGTON, D.C. 200:38 • (202) 338-0392 PRESIDENT ExnouTIvE D™noTOR PAUL F. MCDONOUGH, JR., ESQ. STEPHEN NEAL DENNIS, ESQ. PRESERVATION LAW UPDATE 1992-18 June 10, 1992 Delaware Trial Court Upholds Regulation of Aluminum Storm Door q An issue which can arise for many local preservation commissions is whether the commission has the power to prevent an alteration that would be incompatible with the character of a historic district but is similar to other alterations previously made to structures in the district before local designation. The New Castle County (Delaware) Superior Court has upheld in Hurley-Heyman v. New Castle Historic Area Commission (C.A. No. 90A-FE-5-1-AP, decided December 23, 1991) the denial of a permit for a previously-attached aluminum storm door in the New Castle historic district. The property owners had purchased a home in the New Castle historic district in late 1987, and attached an aluminum storm door to their house in January 1988. (Several other houses in the immediate neighborhood already had aluminum storm doors, attached before the area became a local historic district.) The Delaware trial court judge stated: I think one should start with the obvious recognition that municipalities may regulate in the interest of historic preservation. The question here is whether the ordinance is sufficiently clear in this case and, further, whether the absence of more specific guidelines is significant. ...Inmy view the goal of interpretation must be to read the ordinance as a whole in an effort to understand the intent and to attempt to read the various sections and paragraphs harmoniously with each other and with the general intent of the legislation. When one does that, I believe the proper construction of the ordinance permits the regulation of storm doors. On the issue of the alleged vagueness of the New Castle ordinance, the judge stated: [Cases-] point out that it' s impossible to draft guidelines that would cover every case and that the procedure itself, namely the composition of the commission, the administrative and j udicial review process, affords adequate protection.... This is not to say that to the extent possible the formulation of guidelines aren't worthwhile. However, they are not essential where the purposes of the ordinance are sufficiently clear. THE "PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT FROM THE J. M. KAPLAN FUND. The judge ruled that "compatibility" should be judged reasonably: [I]t was noted that the ordinance provides in part... that the salient factor to be considered in grandng a historic review certificate is that the result will be compatible with the colonial period of New Castle. ....I think it clear that that reference was not intended to limit the scope exclusively to the colonial period, but merely to provide that compatibility with the colonial period is a salient factor to be considered. The trial court judge found that the New Castle commission's decision had not been arbitrary and capricious. Despite the argument that " many, perhaps a majority, of the houses in the immediate area have aluminum storm doors of one kind or another," the trial court judge suggested that existing aluminum storm doors in the historic district had the status of "non- conforming uses": The explanation was given that aluminum storm doors are not consistent with houses of the age of the house in this particular area. We don't know from the record how many of the aluminum storm doors in the area are on houses of a later period where an aluminum storm door would be compatible, but more fundamentally, one could rationally conclude from the evidence in the record that the other storm doors are non-conforming uses. The court declined to rule that permission for a local town official to attach an aluminum storm door to his house several years previously somehow tainted the New Castle review board's decision: There is evidence in the record that the commission has consistently refused storm doors for this type of house. One exception to that is the testimony that the building inspector himself over 10 years ago obtained permission to put a storm door on a side or rear door of his house. In my view that evidence doesn't establish that the commission's ruling in this case was arbitrary. There are too many factors that could distinguish the cases: Time, nature of structure, location. You presume public officials act from proper motives and there is not sufficient evidence in this record to call that presumption into question. The court ruled also that the City of New Castle's previous interpretation of the ordinance was a significant factor to consider: One [more reason] occurs to me immediately. And that is the fact that the City's interpretation of this ordinance does appear in the notice sent to land owners, which provides as to historic area, in contradistinction to other areas, that properties located in historic zoning districts require Historic Area Commission approval for all--and that's emphasized in the notice--exterior improvements, except painting. This minor case is significant because it addresses clearly a problem likely to arise in many local historic districts. When quoting, please credit the Center. NATIONAL CENTER FOR PRESERVATION LAW -'l~ll CONNECTICUT AVENUE, N.W. 0 SUITE 800 0 WASHINGTON, D.C. 20086 • (202) 338-0392 PRESIDENT ExnourrvE DINEOTOR PAUL F. McI)ONOUGH, JR.,ESQ. STEPHEN NEAL DENNIS, ESQ. PRESERVATION LAW UPDATE 1992-23 July 30, 1992 Center Collects Information for University of Virginia Collection For almost ten years, the University of Virginia Law School Library has been assembling a HISTORIC PRESERVATION LAW COLLECTION (see "Update" 1989-41). Since 1987, much of the material for this collection has been gathered with the assistance and encouragement of the National Center for Preservation Law. The Law School Library prepares annually a catalogue of published information in the COLLECTION. Unpublished items are available on request in the Law School Library' s Rare Book Room. The Law School Library and the National Center are currently expanding the ~ COLLECTION to include major new categories of information about American historic preservation commissions. This material will be used by faculty and law students at the University of Virginia School of Law and by attorneys and researchers from elsewhere in the country. In late July, the Center sent a two-page questionnaire form to 1,900 commission recipients. (For some commissions, the Center had two addresses and used both to increase the chance of reaching the commission.) On each form, the Center indicated whether the HISTORIC PRESERVATION LAW COLLECTION already included a copy of the commission' s local preservation ordinance or not. The questionnaire forms asked for an "official" name and address for each commission. The Center has arranged to forward this information to the National Alliance of Preservation Commissions through the National Park Service, to assist the Alliance in maintaining the nation' s most current and most comprehensive list of commission addresses. In addition to asking for those preservation ordinances not already in the COLLECTION, the questionnaire form requested copies of each commission's rules of procedure, design guidelines, special publications, two recent sets of commission minutes, and a sample copy of any newsletter the commission may publish. The form also asked if each commission would be ~ willing to provide at cost the complete file on "an especially difficult application" which it may have handled during the past year. THE "PRESERVATION LAW UPDATE" SERIES IS MADE POSSIBLE IN PART BY A GRANT PROM THE J. M. KAPLAN FUND. The speed and thoroughness with which American preservation commissions have responded to the National Center's request have been impressive. The variety of materials now available from preservation commissions will Surprise many who are perhaps only familiar with the work of one local commission. It is already obvious that the National Park Service has had a significant impact on the work of local preservation commissions through its important Certified Local Government program. Many special publications funded in part by CLG grant funds are being sent to the Center for the HISTORIC PRESERVATION LAW COLLECTION. Assembling this material for what promises to become the nation's largest collection of commission information should help preservation consultants stay abreast of the latest approaches to drafting design guidelines and developing preservation plans. Attorneys who wish to study the development of the American preservation ordinance will find in the COLLECTION a valuable and growing collection of local ordinances, each dated to indicate when it was received for the COLLECTION. Each local preservation commission will have its own file in the COLLECTION. The National Center will work with library staff to develop a cataloguing system that will list for each American preservation commission the information available in the COLLECTION. It is hoped that this can become an on-line database, but full development of the catalogue may depend on additional funding for the COLLECTION. Law students in the law school's annual Historic Preservation Seminar will now be able to do thorough research when preparing seminar papers. Faculty members will have access to a unique collection that should facilitate the preparation of law review articles and help further the development of American historic preservation law. Individuals wishing to use the HISTORIC PRESERVATION LAW COLLECTION should contact Professor Larry B. Wenger, Law Librarian, Arthur J. Morris Law Library, School of Law, University of Virginia, Charlottesville, Virginia 22901 (804-924-3384). Additional donations of material for the COLLECTION or funds to support the further development of the COLLECTION may also be sent to Professor Wenger' s attention. Published items in the COLLECTION are kept on open shelves in the Law School Library and can be used during normal library hours. Unpublished materials are kept in special files in the library' s Rare Book Room, and it is helpful to library staff if an appointment can be made in advance so that pertinent information will be available when the researcher arrives. Arrangements can be macie to photocopy materials from the COLLECTION at the Law School Library or to have copies of unpublished items sent by FAX. When quoting, please credit the Center. MEMORANDUM To: Aspen Historic Preservation Committee From: Roxanne Eflin, Historic Preservation Officer L Re: 434 W. Smuggler: Conceptual Development and variations (parking and rear yard setback); Public Hearing Date: September 23, 1992 SUMMARY: The applicant is requesting Conceptual Development approval, with variations for on-site parking (four spaces) and a rear yard setback of 5'. The applicant is seeking approval to add - on to and adapt the existing 672 sq._ ft.- non-historic outbuilding (garage) into a combination dwelling unit: one 2-bedroom free market unit and one 350 s€. ft. (net livable) ADU studio. The addition occurs within the new second floor of the outbuilding. No work is proposed to the main structure. Both the second free market dwelling unit and the parking and setback variations require Landmark Designation, which the applicant is currently in the process of receiving. The HPC and P&Z gave unanimous recommendation, and Council passed the Ordinance unanimously on first reading on September 14, 1992. Second reading and public hearing is scheduled before Council on October 26, 1992 (revised from the applicant's previous request for October 13). Should the applicant receive Conceptual Development approval at this HPC meeting, it is anticipated that Final review will occur on October 14, 1992, conditional upon receiving final Landmark Designation by Council on, October 26. A height variation is not necessary as the conversion of this alley (accessory) structure to a free market/ADU use takes it out of the "accessory building" category. The height limit is 25' in the R- 6 zone district for all non-accessory buildings. APPLICANT: Katharine Thalberg, represented by Gretchen Greenwood and Associates LOCATION: 434 W. Smuggler, Lots K, L and the East 15 feet of Lot M, Block 33, Hallam's Addition, Aspen Colorado ABU APPROVAL PROCESS: All ADU's (attached or detached) require conditional use approval by the Planning and Zoning Commission at a public hearing. This is scheduled for September 22. Since this parcel is being processed as a Landmark, it is the HPC who will grant any necessary variations as specified in Ordinance #60, Series of 1990, or as allowed in Sec. 7-601 for designated landmarks. The construction of a second free market unit requires 1 ADU mitigation, either to construct on site, or pay cash-in-lieu which is calculated at a per sq. ft. cost for the new free-market unit. REVIEW STANDARDS: Section 7-601 of the Aspen Land Use Regulations defines the four standards for Development Review. All four of these standards must be met in order for the HPC to grant approval for the proposal. The applicable Guidelines are found in Section VI, beginning on page 47 of the Historic District and Historic Landmark Development Guidelines. Development Review Standards 1. Standard: The proposed development is compatible in character with designated historic structures located on the parcel and with development on adjacent parcels when the subject site is - in an H, Historic Overlay District or is adjacent to an Historic Landmark. For Historic Landmarks where proposed development would extend into front yard, side yard and rear yard setbacks, extend into the minimum distance between buildings on the lot of exceed the allowed floor areas, HPC shall find that such variation is more compatible in character with the historic landmark, than would be development in accord with dimensional requirements. Response: We find that the basic scale and massing of the second floor design is compatible in character with the principal structure. Our primary concern regards the proportion of the openings on all elevations with the exception of the north. (Please see architectural comments in staff's response to Standard #4 below.) We support the rear yard setback variation and the parking variation of four spaces. The dimensional requirements of the R-6 zone district require a 5' rear yard setback for non- habitable structures, 10' for habitable space. We find that the additional 5' setback variation, required due to conversion to habitable space, meets the character compatibility standard above. Permitting ample open space between the principal and secondary structures allows each to retain their own identity without over-crowding. The application includes numerous support letters from neighbors within this immediate neighborhood, none of which oppose the parking variation being requested. These support letters state there is no parking problem in this immediate area, including on popular "tent" days in the summer. The edge of pavement along both Smuggler and 4th streets is well away from the property line, leaving ample room for parking. This application represents the first full reduction request 2 of on-site parking spaces that the HPC has reviewed. After considerable examination of the site specific circumstances, both staff and the Planning Director support this request. Should on-site parking be required, either the ADU or mature vegetation would be lost. In light of the community's desire to reduce auto impacts, we find that by requiring parking and thereby losing an opportunity for a deed-restricted ADU and maintaining mature vegetation, the HPC has significant support from staff, the community and the immediate neighbors to waive all on-site parking, as requested by the applicant. Please refer to the application narrative for a detailed discussion of this parking variation. 2. Standard: The proposed development reflects and is consistent with the character of the neighborhood of the parcel proposed for development. Response: Secondary cottage-style buildings with alley orientation are becoming more desireable in the West End. Small scale structures, adapted to affordable dwelling units, support the "infill" principals supported by the Planning Department and community through the master planning process. The 2nd floor addition and vertical elements of fenestration and roof pitch do produce a structure vastly different in character from the existing one-story garage. We find this addition to be more compatible with the neighborhood character than would be a large addition to the main house. 3. Standard: The proposed development enhances or does not detract from the cultural value of designated historic structures located on the parcel proposed for development or adjacent parcels. Response: We find that the cultural value of this parcel is strengthened by this proposal, and the requested variations. The historic lawn setting is preserved, the principal structure is not being added on to, and more life is brought into this historic neighborhood. 4. Standard: The proposed development enhances or does not diminish or detract from the architectural integrity of a designated historic structure or part thereof. 3 Response: Staff finds the north (alley) elevation compatibly designed in relation to the main structure. We do not support the proportions of the windows on the east, south, and west elevations, finding them to be incompatible and somewhat overwhelming for the secondary structure. They are not designed at cottage scale like the north elevation windows, Staff encourages the HPC to require restudy of these windows prior to Final, with the direction to reduce their overall proportion. In our opinion, they are too tall and too wide to be considered appropriate for this structure. Staff also asks the HPC to consider the number of French doors being proposed (4), and asks that these be restudied in order to reduce their number or (at a minimum) the number of divided panes. We also recommend that the divided transom above the south elevation door be eliminated to retain a cottage look. The cantilever design of the second floor over the first should also be closely studied for compatibility. Staff is not as concerned about this basic design aspect as we are the treatment of the fenestration, which largely defines the character of outbuildings. We find that this standard will be met at Conceptual only with the HPC condition to restudy as stated. ALTERNATIVES: The HPC may consider any of the following alternatives: 1) Approval as proposed, finding the Development Review standards have been met, and finding that the rear yard setback and parking variations are more compatible in character with the designated landmark than would be in accord with dimensional requirements. 2) Approval with conditions, particularly a restudy of the east, west and south elevation fenestration, to be met at Final. 3) Table action and continue the public hearing to a date certain, to allow the applicant time to revise the proposal in order to meet the Development Review standards, as stated in this memo. 4) Deny Conceptual Development approval, finding that the Development Review Standards have not been met. <7 RECOMMENDATION: The Planning Office recommends that the HPC grant 69 Conceptual Development approval, subject to the condition that the east, west and south elevation fenestration be restudied in order 4 -1 to reduce the size of the windows, eliminate the south elevation door transom window, and reconsider the number and design of French doors proposed. These conditions shall be met at Final. AT-Ata W. FA We also recommend that the parking variation for a reduction of 54 06028€. U four on-site spaces be approved, as well as the rear yard setback of 5', finding that such variations are more compatible in character with the historic landmark, than would be development in accord with dimensional requirements. 51-0<14 h 0 1?t~11-'7€£120 48 L}03- 2-5- Additional comments: memo.hpc.434ws.cd 1 ~FLATAG€ 11,%75>:2EP /51©9 il=Lk)· 2 5 -Fodpf 1/1 »tfuvt 7 1 -- "-7 / 1.-/Ill %42 . U (04:26 i Yil #x/, 4uV U my.1.11/7/ U . -1 I - , 'fy - _ Gretchen (,3x Greenwood Val L.-- -27ei-1 ..2-= f & Associates, Inc. I 201 North Mill Street .Ri V -ZA';1\ 11 --. L 1 /te,x/ Suite 207 J \ A\¥- m PW'-1 »aD 0*Lof-T *Ull»Irlor £2*54-*ADIC l.ir-11=2 11*4 2,7 r r ' . € Aspen, Colorado 81611 ' 303-925-4502 // 1 4 i f//~ 1 Ul . I - - J B i 1 4 L. € 4 o flil\\1 2 © 1 ' f --- 01 1- 1971 R JAY.<11 o i - <fo<- - - - -' 0 066 -L ..... 1 4 ~ \14 ---I--2-#. 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