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HomeMy WebLinkAboutminutes.council.19740325 ASPEN CITY COUNCIL REGULAR MEETING MARCH 25, 1974 Meeting was called to order at 5:15 pm by Mayor Stacy Standley with Councilmembers James Breasted, Pete DeGregorio, Ramona Markalunas, Jack Walls, Michael Behrendt, City Attorney Sandra Stuller and Manager "Mick" Mahoney. MINUTES Councilwoman Markalunas moved to approve the minutes of March 11, 1974 as prepared and MINUTES imailed by the City Clerk. Seconded by Councilman DeGregorio. All in favor, motion carried CITIZEN PARTICIPATION a. Mr. Rick Farrell voiced his complaint relating to time before the P & Z for review of his project under Ordinance #19; told P & Z would not be reviewing projects under this ordinance until June due to heavy schedule of planning items and pending projects under CITIZEN review. Appeared before P & Z previously and was told to find another site, now ready to PARTICIPATION appear again - feel this should be considered as old business. Attorney Stuller stated P & Z would begin reviewing again at their May 2nd meeting; pre~ sently structuring their agendas in order to consider planning items. It was pointed out the P & Z Commission is doing the conceptual reviews rather than the sub-committee so duplication of some material and information does not exist. Byran Johnson of the P & Z stated the Commissions reason for structuring the agenda in this manner is because many of the recent approvals have had to be conditional approvals. It was felt they should work out the problems of parking and housing prior to review of new projects. Attorney James Moran stated Ordinance 919 has created a terrible burden on the P & Z; prO- cedure for case by case review has been very slow. b. Council was informed the odor from the Aspen Sanitation Plant is very strong again. Sanitarian to check with the district. SECOND READINGS & PUBLIC HEARINGS ORDINANCE 95, SERIES OF 1974 - Mayor Standley opened the public hearing. Mr. Bartel Stated the ordinance includes view planes from the Hotel Jerome, Courthouse, Wheeler Opera House, Rubey Park and the Mall. Background of the ordinance relates to concerns of preserving the view of the mountains, supplement to historic preservation, one SECOND HEARI~S~_ of the goals of Council. This program is one element of maintaining productivity of the A-~-~BL--~ of the community. As an economic consideration relating to the tourist industry, personal HEARINGS income in the community totals $51,000,000, $30,000,000 of that income relates to the tourist industry. All views stem from public places. Ordinance does not'Testablish mono- tonous building heights but sets up a review procedure. Views were established from places where it is felt are high tourist concentration areas, this ordinance would com- pliment the historic Significance of the downtown area, feel the program compliments trans- portation elements, downtown will become more important as a vehicle free zone, extention of the open space concept. Councilman Walls questioned to what degree will building heights be allowed to g~in ~a'view plane. Mr. Bartel explained it would be a matter of degree, no policy has been established Mr. Bartel gave a slide presentation on the view planes. Attorney James Moran was present representing clients whose property fall within the view planes of Rubey Park. Mr. Moran stated the views from the streets running north and south are better than any of the planes proposed. Questioned why the acquisition of view ease- ments has not been considered. If the City wishes to take air space then perhaps acqulsi- tion is the alternative. Other alternatives should be considered. Disagree with the pro- cedure for establishing view planes or corridors - no notice given to property owners ~ whose property is affected by view~planes; no necessity, no notice and no negotiation. Represent a client who has two view planes crossing his property. Rubey Park is not dedi- cated as a park, but has been considered as a location for transportation center. The view from Wagner or Rubey would not be lost because of the largness of public owned land. The last paragraph of the ordinance is in conflict with the subdivision regulations. View Ordinance says "shall proceed according to PUD", whereas PUD regulations say you must have more than 27,000 sq. ft. to go PUD. Also says "shall proceed according to subdivision re- gulations'' which involves another 4% dedication. City is adding two procedures when the person could develop according to existing zoning. Board of Adjustment could hear those exceptions. Question if the view planes from Rubey Park are properly before Council; no recommendations have been submitted by the P & Z. Council agreed to enter City Attorney Stuller's memorandum into the record. ~TO: Aspen City Council FROM: Sandra M. Stuller, City Attorney DATE: March 19, 1974 RE: Validity of Viewplane Ordinance Members of Council: The Planning and Zoning Commission has requested that, before you adopt further viewplanes, I submit my appraisal of their validity. Introduction The viewplane concept was introduced in the Adam Krivatsky report of 1971 ("A Pro- posal for an Urban Design Supplement to the Historic and Zoning Ordinances", Hart, Kri- vatsky, Stubee, December, 1971) in which a series of recommendations were made for regula- tions "to assist us in preserving the community's image, character, and environmental qualities for its residents as well as for its visitors." In reference to preserving view~ of the mountain, the report recommended: 1. We turn the North-South streets into effective view channels by (a) encouraging set backs. (b) '~I!min~tingl signS' that project from buildings and (c) discouraging canopies or arcades over sidewalks; 2. We protect the presence of the mountain in mid-block areas by introducing along East-West streets appropriate planned massing of buildings so as to maintain a low profile toward the center of the northern side of each downtown block; 3. And that we maintain the view of the mountain from public places by establishment of viewplanes and acquisition of view-easements. As to the third, Krivatsky suggested that viewplanes be assured primarily from more fre- quented pedestrian activity areas, more specifically, from nine public places (lots next to City Hall and the Courthouse, etc.), four private places (Hotel Jerome, City Market, etc.) and ten public areas (Wagner Park, Paepcke Park, etc.). The viewplane ordinance Section 24-9 (h) of the Supplementary Regulations of the Zoning Code, is designed to respond to the third recommendation. The View]plane Ordinance to Date Last year the 'fir'st half of the viewplane ordinance was enacted. The rationale of the ordinance was declared in the second ~!~Whereas" clause, which reads: "WHEREAS, the preservation of mountain views from parks and other public places with- in the city will increase the beauty of the City of Aspen and the enjoyment of its residents, will strengthen the city's environmental heritage, enhance its attractive- ness to tourists, will maintain property values, and generally promote the pros- perity and welfare of the community." The ordinance established only one viewplane (Glory Hole Park) but did set up the procedural framework so as to allow designations of more viewplanes in the future. Worthy of note is the fact that the ordinance did provide that citizens could prosecute (as well as the city) for violations of the section. This makes the public aspect of the ordinance clear. The Planning and Zoning Commission has recommended the implementation of a series of additional viewplanes (copy of their more recent resolution is attached) from Wagner Park, Cooper Avenue (between Galena and Hunter), the Wheeler Opera House, the Courthouse, Rubey Park, and Main Street. In addition, they have recommended that Section 24-9(h) be further amended so as to allow for review of buildings to be constructed within a plan as follows: "When any viewplane hereinabove established projects at such an angle so as to reduce the maximum allowable building height to below that otherwise provided for in this Code, all development of areas so affected shall proceed according to the provisions of Section 24-10.1 et. seq., PUD Planned Unit Development, so as to afford maximum flexibility in building design with special COnsideration to building bulk and height, open and pedestrian space, and similarly to permit variations in lot area, lot width, yard and building height~ requirements, including viewplane height limita- tions. Provided, however, the Aspen Planning and Zoning Commission may exempt any applicant from the requirements of Section 24-10.1 when any proposed development satisfies the building design requirements above enumerated." Consequently, if a viewplane would seem to limit bUilding height below that presently allowed by other provisions of the code, an owner may (1) apply for a variance (as always allowed) to the Board of Adjustment, if application of the ordinance would create un- necessary hardship or practical difficulties or (2)~de~elop under PUD which would allow him to build into open space or set back areas, or even into the viewplane itself if the P & Z feels this will enhance the design of the structure. Also worthy of note is that buildings presently in excess of the height limitation imposed by the viewplane ordinance will enjoy non-conforming use status (which means in the event of demolition or destruction they can be restored to the existing height if re- stored within one year of destruction). General Legal Considerations There is no caselaw on the legality or illegality of viewplanes. To my knowledge only two cities have imposed them, San Francisco (down to the bay) and Denver (from various city parks to the mountains). In Crawford. v McLoughlin (1970) Denver anticipated a challenge to their viewplane ordinance, but the issue devolved into one of the interpre- tation of the building code, and never got to the issue of the legality of the viewplane itself. Since there is no Colorado caselaw discussing the issues underlying the contemplated ordinances, nor caselaw from other jurisdictions directly on point (i.e. holding for or against the legality of viewplane ordinances) we can rely and adopt doctrines accepted in other jurisdictions to support the ordinances. Four principals or theories available are the following: 1. We can assert the proposition that ordinances based predomi~ately or solely on aesthetic considerations are a legitimate exercise of the police power. Several jurisdictions have accepted this doctrine. Specifically, five states adopted it. One most recently doing so is New York in Cromwell v Ferrier, Ct. of Appeals of New York, 1968. The Court said: "One important factor in the courts' increasingly permissive treatment of similar zoning laws has been the gradual acceptance of the conclusion that a zoning law is not necessarily invalid because its primary if not its exclusive objective is the esthetic enhancement of the particular area involved, so long as it related only generally to the economic and cultural setting of the regulating community.. (H)owever, this does not mean that any esthetic consideration suffices to justify pro~ibition. The exercise of the police power should not extend to every artistic conformity or nonconformity. Rather, what is involved are those esthetic consi- derations which bear substantially on the economic, social, and cultural patterns of a community ..... The eye is entitled to as much recognition as the other senses ..... " This approach, however, would be the least relied on and only used in conjunction with those proposed in the following paragraphs. 2. This and the following paragraphs concern theories premised on the principal that although few jurisdictions will endorse ordinances based solely on aesthetic considerations, if the aesthetic considerations are only a part of the basis for the ordinance, and the ordinance is also grounded on an exercise of a tradition- ally accepted police power, then there is no objection to the reliance on aesthe- tic considerations as additional grounds for the ordinance. Consequently, we can assert, as one ground, that is a legitimate exercise of the police power to regulate land use to benefit the tourist industry. This assertion has been given judicial approval in Desert Outdoor Advertising v County of San Bernadino, California 1967, 63 Cal. Rpt. 543, in which the ~alifornia Court sai~' that land use can be regulated to provide a favorable environment for a tourist industry. The Hart-Krivatsky-Stubee report can be used as the expert witness evidentiary foundation for this assertion. 3. It can also be argued that the establishment of viewplanes is an exercise 6f the power to zone "to promote the health ..... and general welfare of the community" and "to conserve the value of buildings" "see section 24-1 Aspen Municipal Code). A strong argument can be made that preservation of the mountain views will en- hance public enjoyment, promote well being, and preserve property values, all of which are legitimate objects of the exercise of the police power. As to the last It has been h. ld that an owner whose mountain view has been obstructed by an im- proper zoning procedure can recover damages for the loss. In Frankland v City of Lake Oswego (Oregon 1971) 493 P 2nd. 163, the Court said: "The view a person may have from his home obviously can affect the market value of the property. For these reasons we believe the trial court must consider the testimony the Plaintiffs gave as to the loss of view (of Mount Hood) in determining the remedy on remand." Conversely, the safeguarding of this property interest must be an object of city government. Generally, arguments in support of the above propositions are self evident, but again reliance can be had on the Hart-Krivatsky-Stubee report. 4. Finally, with respect to the mountain views from the city parks, an argument can be made that their enactment is an extension of the recognized power to establish parks, i.e., designed to prevent the defeat of park purposes. In sum, I think that mountain viewplanes are supportable to achieve the following acceptable objectives: 1. to preserve the mountain view to generate civic pride; 2. to preserve the mountain view for the enjoyment and environmental enrichment of Aspen citizens; 3. to preserve the mountain view to enhance the beauty of the city; 4. to preserve the mountain view to enhance the economic vitality and values of the surrounding areas; 5. to preserve the~mountain view to protect and enhance Aspen's attractiveness to tourists and visitors; and 6. to preserve the mountain view to enhance the enjoyment of the city parks. The city works with the benefit of the presumption that a zoning ordinance is valid unless a person in opposition can prove, beyond a reasonable doubt, that it is not, Baum v Denver 147 Colo 104. In addition, the due process and just compensation clauses do not require that a landowner be permitted to make the best, maximum or most profitable use of his property. Ibid. Finally, it is clear that the judiciary cannot interfere with a munici- pality s exercise of its zoning power unless it is clear that there was an abuse of dis- cretion. When there is competent evidence to support an ordinance, the courts will not substitute their judgment ~r that of the municipality, Menker. v Cit~ of Colorado S~rings, 138 Colo 495. With the benefit of these principals, I th~nk we can defend the mountain view ordinances contemplated. The "Taking" Issue I anticipate that any attack against the ordinance will come in the form of a chal- lenge that it constitutes a "taking", i.e., a taking of property rights (to develop to a height allowed to neighboring uses) by the city without compensation. I would like to go into a lengthy discussion of the "taking" issus as I expect several landowners to be pre- sent at the public hearing and make arguments of this nature. My source for the following is The ~akin~ Issue published in 1973 by the U.S. Government Printing Office. The authors conclude that during approximately the first half 6f the Nineteenth Cen- tury, the definition of a taking was based on a physical conception of taking. The great majority of cases held that only actual physical appropriation or divesting of title con- stituted a taking, a theory that has been characterized as "no taking without touching." Indirect, though conseqUential, injuries to property, whether resulting from the acquisi- tion and use of other property or from police power regulations, were exluded from the definition (pg. 106). In the closing years of the Nineteenth and opening years of the Twentieth Century, the U.S. Supreme Court adopted the position that police power regulations (of which zoning is a type) did not constitute compensable takings, but where the government action per- manently appropriated the owner's property, compensation was required, even if the govern- ment's purpose was to abate a nuisance. State courts, at the same time, also construed a taking of property in very tangible terms, i.e., a "taking" occurred only when there was a! actual appropriation of the government for its own use (pages 120, 121, 122). Supreme Court Justice Oliver Wendell Holmes changed the entire direction of the law ii the case of Pe~nsy. lvania Coal v Mahon (U.S. Sup. Ct. 1922). In 1921 Pennsylvania had en- acted legislation' to prohi'bi't tee mining of anthracite coal so as to cause reduction of earth support of any buildings, structures, or transportation systems within municipalitie~ Pennsylvania Coal Company argued that the legislation was not an exercise of the police power, but an exercise of the Power of eminent domain (taking)but without compensation. Holmes agreed. He found that all exercises of human activity are subject to regulation, but when the regulation becomes too severe, it is an exercise of the power of eminent do- main and must be compensated for: "When it (regulation) reaches a certain magnitude, in most if not all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts~ .... The general rule is, that while property may be regulated to a certain~extent, if .~e~qlation go.es too far, it will .be re~.0gnized as a .taking." Consequently, courts have turned to a balancing test, weighing the importance to the publi( of the objects of the regulation against the loss to the individual landowners. In The Taking Issue. The authors review the types of regulations that have been challenged as "takings" (mining prohibitions; flood plain ordinances; wetland and estuary protective regulations; open space, agricultural and large lot zoning regulations; histori( designations; and sign regulations and have itemized the considerations of the courts in these matters. (They also have re~ched a conclusion as to the viability of the taking issue: "Our strongest impression from this survey is that the fear of the taking issue is stronger than the taking clause itself. It is an American fable or myth that a man can use his land any way he pleases, regardless of his neighbors. The myth survives, indeed thrives, even though unsupported by the pattern of court decisions. Thus, attempts to resolve land questions must deal not only with law, but with the myth as well"). In sum- mary the courts have 1. been likely to support a regulation if it will benefit the community as a whole rather than a narrow segment of the community; 2. generally struck down cases in which the regulation will enrich a government in its proprietary capacity at the expense of individual landowners - thus, if the government seeks to use its regulatory powers to reduce its cost of acquiring land (e.g. zoning an area "park" or "greenway") courts will disapprove; 3. required that there be a rational relationship between the governmental objective and the means used to accomplish it; and 4. weighed the difference between the public gain and private loss; attempts to determine how much devaluation in land value the courts will tolerate have been inconclusive, but a loss of about 2/3's of the value is about as far as the courts will go, "Compensable Regulations.for Open Space," Journal of American Institute of Plann.ers, 89 (1963). In response to these criteria, we can see that (1) no viewplanes originate from areas such as to benefit one man's business to the detriment of another's development rights; ~2)~ the viewplanes; al~ho~gk they~do e~hance, oUr pa~k system~, ~onet attempt to acquire land for public purposes; (3) the viewplanes are the only way to preserve mountain views and are designed to have as little effect on the property effected compatible with human enjoyment of the mountains. As for the last requirement, we have attached a map of the proposed ~nd ex~sting) viewplanes, with the lateral figures showing the maximum height allowable under the viewplane. Recall also the (1) possibility of a variance in the event of hardship and (2) the use of open space and set back areas in PUD to compensate for loss in density because of height limitation. Significance of As~.en as a Tourist Center I t~ink 'it of great significance that we are a tourist center, and any enhancement of the enjoyment of the mountains has economic as well as aesthetic consequences. This proposition has been recognized by the courts as a legitimate ground for exercise of the police power. The following statement from 16 Am. Jur. 2d Page 609, Constitutional Law, Section 311, states the proposition: "Indeed, it seems that the police power may be exercised for aesthetic purposes in a situation which it appears that aesthetics are directly related to the general economy, as where it is sought to promote the tourist industry by preservation of natural scenic beauty." The preservation and the promotion of the tourist industry is the basic reason for the enactment of the Viewplane Ordinance. It is hopeful that other goals will be achieved and probably they will but this city and this state are in direct competition with many other beautiful places in this country for the tourist dollar. The preservation of natural beauty as an attraction to the tourist industry has been the subject of much legislation and of much judicial determination. A number of cases have supported the validity of ordinances having the same principles as the purpose of the ordinance. 1. Brouq.h.er..~ Board. of Appeals, Calif 1928, 271 P. 487. Here petitioners owned cer- tain real property in a district permitting hotels and apartment houses. They applied for a permit to erect a ten-story hotel, complying in all respects with municipal ordinances. The application was presented April 18, 1927, on which date the Mayor approved an ordinanc~ designed to protect the view of San Francisco Bay. This ordinance limited buildings within the applicable area to 40 feet in height. Thereupon, the application by petition- ers was denied. Holding that the enactment of the Bay View Ordinance operated to revoke any rights in petitioners the oourt said, at Page 491: "It follows, therefore, from what we have said, that the petitioners were not en- titled to have granted to them the permit applied for by merely showing that they had complied with all the laws and ordinances effective in said municipality at the time of the filing of the application with said board of publio works when the fur- ther fact appeared that before final action had been taken on their application the ordinances under which said application had been made had been amended by the board of supervisors." 2. Opinion of the~ Justices of the Senate, Mass. 1955, 128 N.E. 2d 557. The question involved was a statutory a~end~ent "to promote the general welfare Of the inhabitants of the town of Nantucket through the preservation and protection of historic buildings, places and districts of historic interest; through the development of an appropriate set- ting for these buildings, places and districts; and through the benefits resulting to the economy of Nantucket in developing and maintaining its vacation-travel industry through the promotion of these historic associations." At page 562, the court says: ~' "In the case of City of New Bedford v New Bedford, Woods Hole, Martha's Vineyard & Nantucket Steamship Authority, this court took judicial n~ce of the general charac. teristics of the island ~f Nantucket and of its great interest in the entertainment of summer visitors. We may also take judicial notice that Nantucket is one of the very old towns of the Commonwealth; that for perhaps a century it was a famous seat of the whaling industry and accumulated wealth and culture which made itself mani- fest in some fine examples of early American architecture; and that the sedate and quaint appearance of the old island town has to a large extent still remained un- spoiled and in all probability constitutes a substantial part of the appeal which has enabled it to build up its summer vacation business to take the place of its former means of livelihood. In a general way, much the same can be said of the village of Siasoonset, which is a part of the town of Nantucket. There has been substantial recognition by the courts of the public interest in the preservation of historic buildings, places and districts." "It is not difficult to imagine how the erection of a few wholly incongruous structures might destroy one of the principal assets of the town, and we assume that the boundaries of the districts are so drawn as to include only areas of special value to the public because of possession of those charac- teristics which it is the purpose of the act to preserve." 3. Opinion of the Justices to the Senate, Mass. 1955, 128 N.E. 2d 563, in which virtually the same answers were ~i'~en t6 ~he v~lidity of the statute in its application to the Beacon Hill District in Boston.~ In this case, at page 566, the court said: "The announces purpose of the act is to preserve this historic section for the ed- ucational, cultural, and economic advantage of the public. If the General Court believes that this object would be attained by the restrictions which the act would place upon the introduction into the district of inappropriate forms of construction that would destroy its unique value and associations, a court can hardly take the view that such legislative determination is so arbitrary or unreasonable that it cannot be comprehended within the public-welfare." 4. City of Santa Fev Gamble-Sko.gmo, Inc., 389 P2d 13. The purpose of the act in- volved was to preserve the characteristics of a certain area in the City of Santa Fe. Height limitations were involved as well as structural and architectural features being regulated. In the act it was stated that the purpose was "to promote the economic, cul- tural and general welfare of the people of the City of Santa Fe." Upholding the validity of these various limitations the court states, at Page 18: "New Mexico is particularly dependent upon its scenic beauty to attract the host of visitors, the income from whose visits is a vital factor in our economy. Santa Fe is known throughout the whole country for its historic features and culture. Many of our laws have their origin in that early culture. It must be obvious that the general welfare of the community and of the State is enhanced thereby. Bearing in mind all these factors, we hold that regulation of the size of window panes in the construction or alteration of buildings within the historic area of Santa Fe, as a part 6f the 'Old Santa Fe Style' of architecture, is a valid exercise of the police power granted to the city." 5. Cit~ of New Orleans v Impastato, La. 1941, 3 So. 2d 559, City of New Orleans v Pergament, La. 1941, 5 So. 2d 129, City of Ne~ Orleans v L~vy, La. 1953, 64 So. 2d 798. The foregoing cases all concern the validity of an ordinance of the City of New Orleans regidly limiting and controlling the type of construction which might occur in the Vieux Carre section of the municipality. The validity of the ordinance was sustained and we make only the following quote from the latter of the three cases in which, at Page 802, the court states: "Finally, defendant takes the position that Article XIV, Section 22A of the Louisiana Constitution and the ordinances enacted pursuant thereto are unconstitutional since they are enacted solely for esthetic purposes and are not within the police power. Perhaps esthetic considerations alon~ would not warrant an imposition of the several restrictions contained in the Vieux Carre Commission Ordinance. But, as pointed out in the Pergament case, this legislation is in the interest of and beneficial to the inhabitants of New Orleans generally, the preserving of the Vieux Carre section being not only for its sentimental value but also for its commercial value, and hence it constitutes a valid exercis~-of the policepower. Incidentally, both the constitutional amendment and the ordinance recite that the preservation is for the public welfare." 6. O~i~ion of the Justices, New Hampshire 1961, 169 Atl. 2d 762. The purpose of the legislation in question was to control the location of b~llboards and signs along public highways. Upholding this limitation the court says, at Page 864: "Another consideration bearing on the constitutionality of the bill rests on the fact that New Hampshire is peculiarly dependent upon its scenic beauty to attract the hosts of tourists, the income from whose presence is a~.vi~at factor in our economy. That the general welfare of the State is enhanced when tourist business is good, is obvious. It may thus be found that whatever tends to promote the attractiveness of roadside scenery for visitors relates to 'the benefit and welfare of this state' and may be held subject to the police power." In sum, the determination of importance of the viewplanes to our tourist economy is a recognized legitimate exercise of discretion on the part of the council and one, given ourl status as an exclusive skiing area, which we can and should argue wello The ~Airport" Cases There is a series of cases evolving from another area of the law which may be brought into play in any litigation on the view-planes. Those cases are concerned with regulations promulgated by municipalities or airport authoritie~reducing densities, limiting uses, or restricting the height of structures within the paths of airplanes approaching or taking off from airfields. The physical similarity between a viewplane and a "flight" or "ob- struction'' easement may result in these cases being given more weight than they merit. Consequently, I would like to discuss the rationale behind them. In several instances these regulations have been upheld: Smith v Count~ of Santa Barbara, 52 Cal Rpt (Calif.), Warin~ v Peterson, 137 So 2d 268 (Florida 1962) and Candy Kitchen, Inc. v Sarasota-Manatee Air~.o.~t Authority, 111 So. 2d 439 (Florida 1959), because the limitations merely reflect the airport approach standards of the Civil Aeronautics Board. However, in a majority of the cases courts have held that when such regulations limit heights below 'that allowed Dnder other provisions of the zoning code, they constitute a "taking" of property without compensation and are therefore void (or the landowner must be compensated if the a~thority wishes to continue enforcing the regulation): Hageman v Wayne, 251 NE 2d 501 (Ohio 1969), Village of Wi.llou~hby Hills ~ Conigan, 278 NE 2d 658 (Ohio 1972), Ackerman v Port of Seattle, 348 P2d 664 (Wash. 1960), Ballard v Maraman, 191 So. 2d 126 (Miss. 1966')", ~ohns~ ~ Airport A~thorit~ o~ Omaha, 115 NW 2d 426 .(Neb. 1962), Indiana Toll Board v Jankovick, 193 NE 2d 237 (Indiana 1963), Peacock v County of Sacra- mento, 77 Cal Rpt 391 (Calif. 1969), Roarck v City of Caldwell, 394 P2d 64~ (Idaho 1964). In order t° not over emphasize the 's~n'ificance of these cases or their impact on our viewplane ordinance, let me summarize the reasons given by the courts in support of their holdings. 1. InTPeacock the court said that while height restrictions have long been recognized as valid, courts are reluctant to extend this doctrine as a method to protect ap- proaches to airports. Inasmuch as airport authorities do have the right of con- demnation, courts prefer that they pay compensation to adjacent landowners for the protective zones. 2.~Also in Peacock the court said: "We believe there is a distinction between the commonly accepted and traditional height restrictions in zoning regulations and the zoning of airport approaches in that the latter contemplate actual use of the airspace by aircraft, whereas in the building cases there is no invasion or tres- pass in the area above the restricted zone." 3. In Ha~eman the court considered the airport height limitation not comparable to a zoning regulation but similar to a legislative regulation for highway traffic. The court went further and noted the inherent inequity in requiring a single land- owner to bear a cost that should be absorbed by the airport: "As generally conceived and approved zoning is an exercise of police power for the benefit of an entire community. Each tract must accept its share of reasonable restrictions as they relate to the mutual benefit of all. However, in this case, all the regulations are solely for the benefit of (the airfield base) which is the only land not controlled by the proposed zoning regulations. WPAFB is federally owned. The zoning board has no control over it. Mutuality is not present. While adjoining owners are sought to be restricted, WPAFB has increased its use of the air and its ground concentration of people and buildings." In closing, the court compared the situation to one in which the government would attempt to buy the firing and target areas of a compound, and restrict the land in between because it now was a hazardous area. Finally, the court noted that zoning will not be allowed to impose burdens on a landowner or community, when hazards are created by strangers to the regulated area. 4. In Ackerman, the court again asserted the importance of the fact that airport authorities have the right to condemnation: "Clearly, an adequate approach way is as necessary a part of an airport as is the ground on which the airstrip itself is constructed, if the private air- space of adjacent landowners is not to be invaded by airplanes using the airport. The taking of an approachway is thus reasonably necessary to the maintenance and operation of an airstrip: the taking or damaging of land to the extent reasonably necessary to the ~aintenance and operation of other property devoted to a public use, is a taking ..... " In sum, while I cannot easily estimate what impact these cases might have on any de- cision of the validity of viewplanes, it is clear that they are distinguishable because of (1) the existant right of condemnation of airport authorities (2) the actual use by planes in flight of the airspace (3) the unfairness of awarding a landowner money for land ac- tually used as an airfield but denying compensation to adjoining landowners who may be equally affected (4) benefits of such limitations accrue only to the airport authority rather than the community as a whole. None of these e~ements exist in our situation. Summary and Conslusion As stated, the viewplane ordinance is designed to enhance the city's beauty, the en- joyment of the mountains by residents and tourists, the community's environmental heritage property values, and Aspen's tourist economy. We are joined in such attempts by San Fran- cisco and. Denver. We have attempted to reduce the impact of the ordinance on individual landowners by providing for variances and possible trade-offs in the PUD process. As a home rule city we enjoy the right to enact our own zoning regulations and such regulations can be defeated only by a showing of invalidity beyond a reasonable doubt. Courts have acknowledged the governmental objectives of promoting tourist economies, aesthetic consi- derations, protecting property values, and protection of individual citizens' right to view the mountain and more intensely enjoy their park system. We have seen that the viewplane ordinance does not offend those considerations of the courts as itemized by the authors of The Takin~ Issue. Further, we have seen the courts give special cons~d'eration to tourist oriented areas with historical significance; San Francisco Bay, Nantucket, Beacon Hill District, Santa Fe and the New Orleans' Vieux Carre section have all enjoyed the special patronage of the courts for reasons applicable to our area. A series of cases in possible opposition are the "airport" cases, but, I think, will seem to have more significance than warranted merely because of the physical similarity between a viewplane and an airfield obstruction or flight easement. The theory of these cases has not expanded to other areas but their arguments are viable and I cannot antici- pate how courts would respond to attempt to apply them to a municipal height regulation directed to preserving mountain views for the general benefit to the community. ~ . Although the California court in Brougher seemed to assume the San Francisco view- plane was valid; no court decision discusses the point directly. Consequently, I have to be satisfied under the general principles above discussed that the viewplanes will be up- held. I feel that, unless a particular plan places an enormous burden on a particular landowner, the contemporary caselaw will support our ordinance." Sandy Stuller City Attorney SMS:sd THE ASPEN PLANNING AND ZONING COMMISSION RESOLUTION RECOMMENDING ESTABLISHING VIEW PLANES FROM WAGNER PARK, COOPER AVENUE (BETWEEN GALENA AND HUNTER), THE WHEELER OPERA HOUSE, AND THE COURTHOUSE; RECOMMENDING P.U.D., PLANNED UNIT DEVELOPMENT IN AREAS WHERE THE PERMISSIBLE HEIGHT IS AFFECTED BY THE VIEW PLANES ESTABLISHED UNDER SECTION 24-9(h); AND FURTHER RECOMMENDING THAT BEFORE SUCH VIEW PLANES ORDINANCES ARE ENACTED BY THE CITY COUNCIL IT THOROUGHLY EXAMINE THE LEGAL CONSEQUENCES OF SUCH ACTION AND POSSIBILITY OF COMPENSATION THAT MAY BE REQUIRED BY ESTABLISHMENT OF VIEW CORRIDORS WITHIN THE CITY OF ASPEN. WHEREAS, the Aspen Planning and Zoning Commission undertakes continuing review of the City of Aspen Zoning Code in an effort to provide for the orderly growth and develop- ment of the city, and WHEREAS, view of the surrounding mountains are an essential quality of Aspen and contribute to the prosperity and welfare of the city as a resort community, and WHEREAS, development within the city is threatening to eliminate desirable mountain views and therefore diminish the natural heritage of the city, and WHEREAS, Section 24-9 (h) of the Aspen Municipal Code authorizes the establishment of view planes needed to protect mountain views from obstruction, and WHEREAS, the Aspen Planning and Zoning Commission has considered all arguments both for and against the establishment of Wagner Park, Cooper Avenue (between Galena and Hunter the Wheeler Opera House and the Courthouse concludes that said view planes are in accord- ance with the intent of Section 24-9 (h) of the Aspen Municipal Code and are necessary to protect those specific mountain views from obstruction, and WHEREAS, the Commission is apprised that the concept of view planes is one new both to the planning and legal profession and there exists unanswered questions as to whether the establishment of a view plane may, ih some instances, be considered a "taking"; and the Commission wishes to temper its recommendations to the City Council with a request that the Council direct the city attorney, before adoption by ordinance, to investigate all the legal consequences to the city, of such action, NOW, THEREFORE, BE IT RESOLVED, that the Aspen Planning and Zoning Commission hereby recommends that the City Council establish the following view planes: 1. Wagner Park view plane originating in the North Central part of Wagner Park above which plane no land use or building shall project. The reference point bears N 58o03'11'' E 198.65 feet from the ~N~rthwesterly corner of Block 83 Original Aspen Townsite; elevation of the reference point is 7921.93 feet above mean sea level. The view plane consists of a sector component more particularly described as follows: All that space which is within the projection of a sector of 9°46'18'' and above a plane which passes through the reference point described by two radial lines which bear S 36o05'49'' E and S 45o52'07'' E respectively from the reference point, at an inclination of 3°39'10'' above the horizontal. planes originating from the sidewalk on the Northerly side of Main 2. Courthouse view Street Easterly of Galena Street above which planes no land use or building shall project. View plane number one. The reference point bears S 79o43'29'' E 69.00 feet from the Southwesterly property corner of block 92 Original Aspen Townsite; a plastic survey cap. Elevation of the reference Point is 7914~52 feet above mean sea leve~; The view pla~e cOnSist~ of spa,~ . tial compbnents m0re partiCulariy described as follows: All that space which is within the project of a sector ~f 27°48'40'' described by two (2) radial lines which bear S°16 59'48" E and S 10°58'52" W respectively from the reference point, and above a plane which passes through the reference point at an in- clination of 4o25' above the horizontal. View plane number two. The reference point bears S 74o14, 26" E 131.46 feet from the Southwesterly property corner of block 92, Original Aspen Townsite. Elevation of the reference point is 7915.22 feet above mean sea level. The view plane consists of spatial components more particularly described as follows: All that space which is within the projection of a sector of 26004'38'' described by two (2) radial lines which bear S 03o36'26'' E and S 22°28'12'' W respectively from the reference point, and above a plane which passes through the reference point at an in- clination of 4o48'20'' above the horizontal. 3. Wheeler Opera House view plane originating from the Wheeler Opera House westerly of Mill Street above which plane no land use or building shall project. The Easterly end point of the base line for the view plane bears S 37°31'12'' E 8.06 feet from the South- easterly property corner of Block 81, Original Aspen Townsite. The reference base line bears N 74 30'11" W a distance of 140.45 feet from the Easterly end point of the base line for the view plane at an elevation of 7919.38 feet above mean sea level. The view plane consists of spatial components more particularly described as follows: Ail that space which is within the projection of radial lines from the Easterly and Westerly terminus of the base line which bear S 30°21'11'' E and S 66008'59'' W res- pectively and which is above a plane which passes through the reference point at an inclination of 2050'38'' above horizontal. 4. Cq~er Avenue view plane originating on the Northerly side of Cooper Avenue Easterly of Galena Street above which plane no land use or building shall project. The reference point bears N 75o41'52'' E 147.78 feet from the Northwesterly property corner of Block 96 Original Aspen Townsite, an aluminum cap located in the sidewalk. Elevation of the refer- ence point is 7922.91 feet above mean sea level. The view plane consists of spatial com- ponents more particularly described as follows: All that space which is within the projection of a section of 48000'00'' described by two (2) radial lines which bear S 11o41'08'' E and S 36°18'52" W respectively from the reference point, and above a plane which passes through the reference point at an inclination of 6o20'05'' above the horizontal. BE IT FURTHER RESOLVED, that the Aspen Planning and Zoning Commission recommends that the Municipal Code of the City of Aspen, Colorado, be amended by adding a new section 24-9 (h) (5) which such section shall read as follows: "(5) When any view plane hereinabove established projects at such an an?le so as to reduce the maximum allowable building height to below that otherwise provided for in this Code, all development of areas so affected shall proceed according to the provisions of Section 24-10.1, et. seq., PUD Planned Unit Development, so as to afford maximum flexibility in building design with special considera- tion to building bulk and height, open and pedestrian space, and similarly to permit variations in lot area, lot width, yard and building height requirements including view plane height limitations. Provided, however, the Aspen Planning and Zoning Commission may exempt any applicant from the requirements of Section 24-10.1 when any proposed development satisfies the building design require- ments above enumerated." BE IT FURTHER RESOLVED, that the Aspen City Council request of the city attorney a full summary of the legal principles involved and a recommendation from the city attorney as to validity of the establishment of the view plane, and consider such summary and recommendation prior to adoption by ordinance of the view planes hereinabove enumer- ated.'' Dates this 5 · day of February , 1974. /s/ Bruce M. Gillis Chairman Aspen Planning and Zoning Commission Councilwoman Markalunas questioned utilizing the procedure of transferring development rights. Attorney Stuller stated under this procedure you get involved in things you can- not control, i.e. taxes, recordings etc. Mayor Standley closed the public hearing. Councilman DeGregorio moved to read Ordinance ~5, Series of 1974. Seconded by Council- man Breasted. All in favor, motion carried. ORDINANCE #5, SERIESCOF 1974, AN ORDINANCE AMENDING SECTION 24-9 (h) OF THE MUNICIPAL CODE; ESTABLISHING THE WAGNER PARK, COOPER AVENUE, COURT HOUSE, WHEELER OPERA HOUSE, AND ORDINANCE 95 MAIN STREET VIEW PLANES; AND REQUIRING, IN CERTAIN AREAS AFFECTED BY THE VIEW PLANES, SERIES OF 1974 DEVELOPMENT UNDER SECTION 24-10.1, PLANNED UNIT DEVELOPMENT was read by title by the City -~ Clerk. Councilman DeGregorio moved to adopt ordinance 95, Series of 1974. Seconded by Council- man Breasted. Roll ~all vote - Councilmembers Breasted nay; DeGregorio nay; Markalunas nay; Walls nay; Behrendt nay; and Mayor Standley nay. Motion NOT carried. Councilman Breasted moved to adopt Ordinance ~5, Series of 1974 deleting Section 5 (f) relating to Rubey Park view plane. Seconded by Councilman DeGregorio. Roll call vote - Councilmembers Breasted aye; DeGregorio aye; Markalunas aye; Walls aye; Behrendt aye; Mayor Standley aye. Motion carried. ORDINANCE 96, Series of 1974 - Mayor Standley opened the public hearing. Discussed reasons for recall and rebuttal being printed on the ballot. Councilman De- Gregorio stated he felt it was not necessary, enough publicity. Mayor Standley closed the public hearing. Councilman Behrendt moved to read Ordinance 96, Series of 1974. Seconded by Councilman Breasted. All in favor, motion carried. ORDINANCE ~6, SERIES OF 1974, AN ORDINANCE ESTABLISHING PROCEDURES FOR THE RECALL OF PUBLIC OFFICIALS; DESCRIBING WHEN OFFICIALS OF THE CITY· OF ASPEN ARE SUBJECT TO RECALL; ORDINANCE 96 PROVIDING FOR SUBMISSION OF RECALL PETITIONS, CERTIFICATION THEREOF AND PROTESTS AGAINST; S~RIES OF 1974 AND ESTABLISHING RECALL ELECTION PROCEDURES was read by title by the City Clerk. Councilman Behrendt moved to adopt Ordinance ~6, Series of 1974. Seconded by Councilman Breasted. Roll call vote - Councilmembers Breasted aye; DeGregorio nay; Markalunas aye; Walls aye; Behrendt aye; Mayor Standley aye. Motion carried. ORDINANCE 911, SERIES OF 1974 - Mayor Standley opened the public hearing. It was explained that the PIF for single family and i~d~plex are computed on the point sys- tem for establishing the size of tap only. Points are based on number of fixtures not the size of residence. City Engineer Ellis stated figures show that a multi-family structure will use 50% the capacity that single family will use - no irrigation etc.. The highest consumption is in the summer months. Ellis pointed out there are 325 dwell- ing uHits appro~ed~or~pSnd~ng~a~this time - 12% or 39 units are single family or duplex. ~ Mayor Standley suggested further research be done on value of service. Mayor Standley closed the public hearing, i~ Councilman Breasted moved to read Ordinance 911, Series of 1974 on second reading. Se- conded by Councilwoman Markalunas. All in favor, motion carried. ORDINANCE #11, SERIES OF 1974, AN ORDINANCE AMENDING SECTIONS OF CHAPTER 23~ ARTICLE III, OF THE MUNICIPAL CODE OF THE CITY OF ASPEN CONCERNING WATER SERVICE; PROVIDING THAT THE WATER SUPERINTENDENT SHALL ADMINISTER THE ISSUANCE OF PERMITS FOR WATER TAPS; DESCRIBING ORDINANCE 911 THE CONTENTS OF APPLICATIONS FOR WATER TAPS; ESTABLISHING A PLANT INVESTMENT FEE (PIF) SERIES OF 1974 FOR WATER TAPS AND LISTING THE RATES OF THE CHARGE FOR BOTH IN-CITY AND OUTSIDE-CITY ~ SERVICE; PROVIDING THAT NO PIF WILL BE ASSESSED FOR FIRE PROTECTION SYSTEMS; ESTABLISHING NEW RATES FOR TAP SERVICE FEES; RESTATING THE OBLIGATION OF THE WATER USER TO ASSUME THE COST OF WATER CONNECTION; ESTABLISHING THE MINIMUM DEPTH FOR INSTALLATION OF WATER LINES; AUTHORIZING THE SUPERINTENDENT TO REPAIR LEAKING PIPES AT LANDOWNERS EXPENSE IF, AFTER NO- TICE TO LANDOWNER, KEPAIR IS NOT MADE; PROHIBITING THE REMOVAL OF SERVICE DEVICES IN THE EVENT OF DISCONNECTION; REPEALING SECTIONS 23-75 and 23-85; MAKING THE OWNER OF THE PREMIS- ES SOLELY RESPONSIBLE FOR WATER SERVICE CHARGES; AND INCREASING CHARGES FOR SHUT-OFF AND TURN-ON SERVICE was read by title by the City Clerk. Councilman Walls moved to adopt Ordinance #11, Series of 1974. Seconded by Councilman Behrendt. Roll call vote - Councilmembers Behrendt aye; Walls aye; Markalunas aye; De- Gregorio aye; Breasted aye; Mayor Standley nay; Motion carried. MOUNTAIN BELL Mr. Gene Krill local manager request Councils permission to attach house numbers to resi-'i dences in Aspen per property owners permission. Reason for offering the free service is because the company is losing time and money in locating residences. County has agreed to accept this offer for the County. MOUNTAIN BELL Councilwoman Markalunas moved to accept Mountain Bell offer to number houses in town. Se- conded by Councilman Walls. All in favor, motion carried. Councilman Breasted moved to accept the sign format utilizing black background with white letters. Seconded by Councilman Behrendt. All in favor, except Councilman DeGregorio who voted nay. Motion carried. Councilman Behrendt moved the Mayor be authorized to write a letter to Mountain Bell. re- questing a main emergency number. Seconded by Councilman Breasted. All in favor, motion carried. COUNCILMANBREASTED REQUESTS a. Charter Amendments - Councilman Breasted moved to amend the Charter as follows: Amend Article III, Section 3.1 to read "The City shall be governed by a Council of four (4) COUNCILMAN councilmen and Mayor" and further amend that Section 3.2 be amended to read "In the genera] BREASTED municipal election to be held in 1975, the candidate receiving the highest number of votes REQUESTS shall be elected for a four year term, in the general municipal election to be held in 1977 the two candidates receiving the first and second highest number of votes.shall be elected for four year terms and the candidate receiving the third highest number of votes shall be elected for a two year term. In the general municipal elections to be held thereafter the two candidates receiving the highest number of votes shall be elected for four year terms." i ~ Seconded by Councilman DeGregorio. ! i Councilman Walls stated he disagreed with the motion. Charter convention's feelings for providing for 7 members of Council was to receive wider and broader representation on Council. Do agree the Council meetings could be shorter. Do not think this Coundil has really tried to work together in trying to reach solutions to problems. Councilmembers Breasted and Mayor Standley aye; Councilmembers DeGregorio, Markalunas, Walls and Behrendt nay. Motion NOT carried. b. Salaries - Councilman Breasted moved to raise Council salaries to $200.00 per month and Mayor $250.00. Seconded by Councilman DeGregorio. Councilman Breasted stated at the present salarY, Councilmembers do not even break even for their expenses. Other Councilmembers stated the position on the council is one of service to the Community and not as a paying position. Councilmembers Breasted and DeGregorio and Mayor Standley aye; Councilmembers MarkalUnas, Walls and Behrendt nay. Motion NOT carried. c. Air Quality Progress Report - Sanitarian introduced Steve Arnold from the air quality division of the State. Mr. Arnold reported the City's present system is very ineffective. Stated he was not sure what chemicals etc., the City was thinking of monitoring but in order to be very effective will cost considerable sum of money plus technician to run and read the equipment. Only funds that might be available for this purpose would be the National Public Health Service. Mr. Arnold suggest the City consider hiring an independent consulting firm to come in and do the monitoring during the worst possible situation, this would be less costly than purchasing the equipment. Mayor Standley suggest perhaps COG could put something together that could go from one community to another since most of the ski areas are in the same COG. d. Regional Planning Commission - Council agreed to meet with the County Commissioners on Monday, April 1, 1974 at 5:00 p.m. to discuss this item. e. Urban Design Plan - Bartel reported that because of the size of the study it was felt the City should have cash in hand prior to beginning the study. Manager Mahoney stated the cash flow looks good, feel the City can embark on this program at this time. Mr. Bartel to Submit proposal at the next meeting. Councilman Walls stated he would still like to freeze funds of the planning office for all new studies. Planning office should be concentrating on the criteria involved with Ordin- ance #19. City needs to really do the ground work to have the data and basis for making decisions. Mr. Walls stated he has asked for an accounting as to how much money has been spent on planning since the inception of the planning office. Mr. Bartel eXplained there are only two studies the site plan for the Rio Grande Property and the highway design. Councilman Walls moved that the monies that have been allocated for 1974 in the Planning Department budget or other departments related to planning be frozen until the City gets a situation so that we know we will get all the necessary work done for Ordinance ~19. Se- conded by Councilwoman Markalunas. Mayor Standley stated there are some decisions that are made and made on uncertainty. Some of the same people who are requesting action are also the same people who insist on more studies. Councilman Walls stated he felt some people want to make a decision but want a better basis for making those decisions. Councilmembers Walls and Markalunas aye; Councilmembers Breasted, DeGregorio and Behrendt and Mayor Standley nay. Motion NOT carried. PLANNING OFFICE APPOINTMENT Manager Mahoney submitted resume of Francis Mojo, Jr. who he kecommends to fill this posi- tion. Job description also submitted. Mr. Mahoney stated he would start at $14,700 as · ~/~. NING OFFICE salary and an additional 15% for other office requirements. It is pointed out Mr. Mojo APPOINTMENT would be working for Mr. Bartel - have approval from Mr. Bartel and the Chairman of the P & Z Commission. Mr. Bartel stated this position would be picking up those items that are Planning Office and P & Z considerations. Councilman Behrendt moved to create the position of Assistant Planner till the end of the fiscal period at the given salary structure. Seconded by Councilman Breasted. All in favor, motion carried. MALL COMMISSION RECOMMENDATION Mr. Mahoney reported the Commission is recommending that the City Council lease to res- taurant owners space on the mall for $50.00 per year. Mall Commission will police this activity and review applications. MALL COMMISSION RECOMMENDATION Councilman Breasted moved to approve recommendation from the Mall Commission to lease land to restaurants on the mall at $50.00 per year. Seconded by Councilman DeGregorio. All in favor, motion carried. Council was informed Mr. Michael Kinsley would be gone from the City for three months. Mr. Mahoney recommend Mr. Rich Wilde fill this position (co-ordinator). Mrs. Sue Michael stated she felt more personal contacts with the businessmen on the mall needs to be made. Council informed Mr. Mahoney to fill the position of Mall Co-ordinator using his own dis- cretion. GOLF COURSE Mr. Mahoney informed Council an option has recently come to light and that is Jim Moore's land across the highway. Request permission to discuss this with him. GOLF COURSE Councilman Walls moved to grant permission to discuss golf course expansion, option of land etc., with Mr. Jim Moore. Seconded by Councilwoman Markalunas. All in favor, motion carried. SUMMER BUS Mr. Mahoney~stated San Juan has been notified that at the end of their contract period with the City, their services will no longer be required. Agree the system should be SUMMER BUS continued and propose Mr. Armstrong be in charge and run the City buses from April 15th to June 10th and during the meantime will look into using school buses at $375 per month. Councilman DeGregorio moved to authorize the proceeding with the plan as outlined. Se- conded by Councilman Behrendt. Ail in favor, motion carried. Council pointed out the running of the system is the City Manager's function. POST OFFICE LOCATION Manager Mahoney request Council action on the following three items prior to proceeding with negotiations: (1) do we want a post office in Aspen; (2) located on the Rio Grande property, Schottland property or other; (3) size of building, location, type of building, POST OFFICE employee housing, price, etc.. LOCATION Councilman Walls moved that the City does want a post office in town. Seconded by Council. man Behrendt. All in favor, motion carried. Mr. Bartel explained, due to the large amount of square footage the post office is asking for, the Rio Grande property and Schottland would be the only choices. Further informed Council the post office-would take a larqeamount of the Schottland land, concerned that we have 2 acres for the Sinclair relocation site. On the Schottland land the post office site would be in the back which would not fit into the shuttle system and transportation. On the Rio Gran~ Land the shuttle could serve the post office, parking area etc.. Post office on the Rio Grande land would shift the traffic from the high concentration point of Mill and Main to Original and Main. Post office on the Rio Grande property would pro- vide the activity that this area needs. Feel the Rio Grande property is the best site. Do not feel the City can afford a large luxury and leave the land vacant. Councilman Walls stated his concern in that the post office would be taking the heart out of the property and devoting it to one item. There are other ways to create activity, i.e civic center. Councilman Breasted stated that if the city intends to put the civic center in, this site would be needed for that purpose. Feel activity will be created just by the extension of Spring Street. Councilman Breasted moved that the City not sell to the post office. Seconded by Council- man Behrendt. All in favor with exception of Councilmembers Behrendt and Markalunas who voted nay. Motion carried. RESOLUTION 96, SERIES OF 1974 i Councilman DeGregorio moved to read Resolution #6, Series of 1974. Seconded by Councilman ~~ Walls. All in favor, motion carried. RESOLUTION #6 SERIES 1974 WHEREAS, ~he Aspen City Council has become~ deeply concer~ed with the impact that the energy shortage may have on the tourist industry in Colorado, and more specifi- cally, the impact on the Aspen area itself, and WHEREAS, ~he Council is aware that while Aspen has suffered, to date, no serious consequences from the shortage, prospects for the coming summer and thereafter are uncertain and the Council feels immediate steps should be taken to insure continued RESOLUTION 96 and reliable tourist access to Colorado, and SERIES 1974 WHEREAS~ the Council has been advised that certain train services, below specified would greatly aid this area in its attempts to facilitate tourist travel, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, 1. That AMTRAK be encouraged to provide Kansas City-Denver AMTRAK service under the provisions of Section 403B of the AMTRAK Act which provides that AMTRAK will operate a train when the states through which the train runs agree to cover 2/3 of any loss that may be incurred. Coordinated action by Kansas and Colorado could bring about this rail link which would serve the large tourist market served by Kansas City. 2. That the Denver and Rio Grande Railroad be encouraged to up-grade and in- crease its passenger service, and while fully cognizant of the long standing pro-frei~ anti-passenger policy of the Denver and Rio Grande, the railroad utility has an obli-i gation to serve the public interest in this emergency, and this position should be made known to the local management of the Denver and Rio Grande Railway. was read in full by the City Clerk. Councilman Walls moved to adopt Resolution #6, Series of 1974. Seconded by Councilman DeGregorio. All in favor, motion carried. Councilman DeGregorio moved to read Resolution #7, Series of 1974. Seconded by Council- woman Markalunas. All in favor, motion carried. RESOLUTION #7 SERIES 1974 !' ~ WHEREAS, the State Department of Highways has conducted, in 1973, a traffic signal systems study for Aspen, at the completion of Which it was recommended that (1) the school signal be discontinued and new signal be installed at the corner of ~ Aspen and Main Streets and (2) a left turn phase for eastbound traffic be added to the light at the intersection of Mill and Main, and WHEREAS, the Aspen City Council wishes to recommend these changes and encourage RESOLUTION 97 their implementation at the earliest possible date, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORAD( SERIES 1974 1. That the Colorado State Department of Highways, Division of Highways, be, and hereby is, requested to provide, in its 1975 fiscal budget (if unable to ace sooner), appropriations so as to: a. provide a left turn phase for eastbound traffic for the traffic light presently installed at the corner of Mill and Main Streets, and b. remove the present school signal on Main Street, and, in its stead, install a four-way traffic light at the corner of Aspen and Main Streets. was read in full by the City Clerk. Councilman Walls moved to adopt Resolution 97, Series of 1974. Seconded by Councilwoman Markalunas. Councilmembers DeGregorio, Behrendt and Mayor Standley nay; Councilmembers Breasted, Markalunas and Walls. aye., Motion dies, tie vote. Councilman Breasted moved to have the resolution re-drafted deleting reference to corner signals. Seconded by Councilwoman Markalunas. All in favor with exception of Councilman DeGregorio and Mayor Standley who voted nay. Motion carried. ORDINANCE 912, SERIES OF 1974 Councilwoman Markalunas moved to read Ordinance #12, Series of 1974. Seconded by Council- man Walls. All in favor, motion carried. ORDINANCE 912, SERIES OF 1974, AN ORDINANCE AMENDING ORDINANCE ~19, SERIES OF 1973, DE- SIGNATING CERTAIN DESCRIBED AREAS OF THE ASPEN LAND USE PLAN R-15 RESIDENTIAL AND R-6 RE- SIDENTIAL WITH MANDATORy P.U.D. DEVELOPMENT; AMENDING AND INCREASING THE MINIMUM LOT SIZE FOR DUPLEX DWELLINGS IN THE R-6 DISTRICT; AMENDING ORDINANCE 19 TO ALLOW THE DESIGNATION ORDINANCE 912 OF MANDATORY P.U.D. DISTRICTS; IMPOSING ADDITIONAL REVIEW CRITERIA IN MANDATORY P.U.D. SERIES OF 1974 DISTRICTS; AND DECLARING THAT AN EMERGENCY EXISTS was read by title by the City Clerk. Councilman Breasted moved to adopt Ordinance ~12, Series of 1974. Seconded by Council~~ woman Markalunas. Roll call vote - Councilmembers Breasted aye; DeGregorio aye; Marka- lunas aye; Walls aye; Behrendt aye; Mayor Standley aye. Motion carried. ORDINANCE #13, SERIES OF 1974 Councilman Breasted moved to reconsider Ordinance #13, Series of 1974. Seconded by Councilman Behrendt. Ail in favor with exception of Councilmembers Walls and Markalunas who voted nay. Motion carried. Councilman DeGregorio moved to read Ordinance 913, Series of 1974. Seconded by Council- man Breasted. All in favor with exception of Councilmembers Walls and Markalunas who voted nay. Motion carried. ORDINANCE #13, SERIES OF 1974, AN ORDINANCE REZONING CERTAIN DESCRIBED AREAS IN THE EAST- ORDINANCE #13 ERN PART OF THE CITY OF ASPEN FROM AR-1 ACCOMMODATIONS RECREATION TO R~15 RESIDENTIAL AND SERIES OF 1974 R-6 RESIDENTIAL WITH MANDATORY P.U.D. DEVELOPMENT; AMENDING AND INCREASING THE MINIMUM LOT SIZE FOR DUPLEX DWELLINGS IN THE R-6 DISTRICT; AMENDING SECTION 24-9 OF THE MUNICIPAL CODE (SUPPLEMENTAL REGULATIONS) TO PERMIT THE DESIGNATION OF MANDATORY P.U.D. DISTRICTS ON THE ZONING DISTRICT MAP AND IMPOSING ADDITIONAL REVIEW CRITERIA IN MANDATORY P.U.D. DISTRICTS was read by title by the City Clerk. Councilman Breasted moved to approve Ordinance #13, Series of 1974 on first reading. Se- conded by Councilman DeGregorio. Roll Call vote - Councilmembers Breasted aye; DeGregorl¢ aye; Markalunas nay; Walls nay; Behrendt aye; Mayor Standley aye. Motion carried. Councilman Walls moved to adjourn at 9:45 p.m., seconded by Councilman DeGregorio. All in favor, meeting adjourned. )rralne Graves, City Clerk ASP'EN CIT~ COUNCIL MARCH 25 1974 STUDY SES.~.ION .................................... , Meeting began at 4:25 pm to consider down-zoning proposal for the Ute Avenue Area. Herb Bartel, City/County Planner submitted and stated he would review with Council the in- formation relating to the County's zoning progress and how it relates to this down zoning proposal. Mr. Bartel showed slide of statistical information. Traffic figures relative to the west highway entrance into the City were on an average in 1972, 10,800 cars per day. Based on present averages by 1978 that figure would increase to 27,700 per day. Pointed out land use must balance with transportation. First phase of the airport expansion ($5,500,000) began in 1971. Because of the lack of sufficient capital to really handle the transportation problem, the City Council can best handle the balance by doing something about land uses. One really great problem is to maintain quality while keeping up with growth. The County is working at up-dating the Master Plan in the areas along the highway to the east and west sides of the City limits. The changes in land use are very significant and certainly not piece meal. The County's resolutions giving reasons and justification for the down zoning were many and the same reasons and justifications could be applied to the City' down zoning. City needs to take another look at the down zoning in an economic way con- sidering viability of the community and relationship to transportation. Present zoning classification of the area under consideration is Park AR-1. Adjacent County area is 2 acre minimum district. In substance no difference between Ordinance #12 (amending Ordinance #19) and Ordinance #13 (down zoning). The difference falls in imple- mentation of the Ordinance. Waters Avenue made a good boundary line as it borders single family dwellings the area has developed over the years as single family. The land use map shows this area as mixed re- sidential; the intent of the map was to make reviews and reVisions to the map as each area came up for study. Based on the high costs for transportation, services, etc., the City must take a hard look at the number of accommodations in the community. Councilman Walls pointed out the previous intent was to keep the accommodations along the base of the mountain in order to save on transportation. Questioned what the trade offs were as relates to a growth rate and further stated he would like to know or see how the proposal fits into the entire City and what may be proposed. Feel the City is getting too restrictive. Meeting adjourned 5:00 pm. raves, City Clerk