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HomeMy WebLinkAboutcoa.lu.ca.Park Place Comcl Parking.0082.2004 - , "4 " .~ City of Aspen Community Development Dept. CASE NUMBER 0082,2004,ASLU PARCEL ID NUMBER 2737-18-2-27-001 PROJECT ADDRESS 707 E HYMAN AVE PLANNER JAMES LINDT CASE DESCRIPTION APPEAL OF STAFF INTERPRETATION RELATED TO REPRESENTATIVE HERB KLEIN 925-8700 DATE OF FINAL ACTION 3/4/2005 CLOSED BY Denise Driscoll . 4 ~~~ 1_1~lxl : EYe ~dit &ecord tlaVigote FQI'lll Reports Format lob tM> J-_m ,,,,,,>>',' ~, .., -, ',>>' a g : ~ . : ,,,.I '"-' l!J 2J ..: d' . ',I '. ':J ----~----- -----,_._-~~---------_.__._- '''' ,t ' ~ a"'" :7 ..-21.il Il"'~. Rouli-9l;listllll' I ~lions I Subfe..it. I ~ou.tioo PullicCCIMleri I Allocbmenl. Main I ROldIing Sloluo I AlchlEng I p.,coj. I Custom Fjeld. Feei I F.. S~ 8clions PemitType PemitIIOO822004,ASLU 4; Ada... J ApIIS wi ;! ~: :::b- ~- B~~CC~~:=}~- ,,:II'~- ~li P,ojoctl ~ Slolus Jpendi-9 APPfovod I ill J DOSCIPiionl 'i>~ ~~f";'b~I'iI~~d by ~~, (0-. 's;: II !) Submlted IHERB KLEIN 925-8700 Clock JR.mng DOl" j12 EKPi..J1112812OO5 ~t! . r Visible 00 the web7 PllllIIiIlD: I 32265 Ii "ll - ~! .~; J.i44~HITillJ .~. ~ ai. ;[unp I . 'lr,. 0.......__""--'--- , Lost NomelOTY OF ASPEN Phono 119701920,5000 r.; 0_I.Appliconl7 --_.._---~----_._---- ~:_~~,-:":~~.. ':~ ---- ~ F,.I Nomo I 130 S GALENA ST ASPEN CO 81611 I)f Infotum Gold -....' r ' Eudora Pro --"',- Jill ----- ----.---..----------- - ;~! ,.___'_'" ',~,_ . :_', , I ~I "-.,,,- - R,&SQ, (I /t:ppvov-ecJ , bY C-ouIAC I I o VI 2--/ ;?}IO~ ........,-, "~, RESOLUTION NO.6 (Series of 2005) A RESOLUTION OF THE ASPEN CITY COUNCIL, AFFIRMING THE COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL OF A LAND USE CODE INTERPRETATION ISSUED DECEMBER 9, 2004, RELATING TO LAND USE CODE SECTION 26.710.180(C)(5), CONDITIONAL USE FOR COMMERCIAL PARKING LOT. WHEREAS, pursuant to Land Use Code Section 26.306, Interpretations of this Title, the 700 E. Hyman Condominium Association (known herein as the "Appellant") submitted a request for a land use code interpretation on November 29, 2004, requesting an interpretation of Land Use Code Section 26,71 O.l80(C)(5), Conditional use for a commercial parking lot, to determine whether the leasing or selling of any and all off-street parking spaces in the Office (0) zone district to the general public requires conditional use approval; and, WHEREAS, the Community Development Director approved a land use code interpretation on December 9, 2004, in response to the request for interpretation, interpreting that Land Use Code Section 26,710.l80(C)(5) requires the leasing or selling of off-street parking spaces in excess of the required off-street parking for a site in the Office (0) zone district to obtain conditional use approval; and, WHEREAS, pursuant to Land Use Code Section 26.306(F), Interpretations of this Title, and Land Use Code Section 26.316, Appeals, the Appellant submitted a letter requesting an appeal of the December 9th code interpretation; and, WHEREAS, at a public meeting that was noticed by mailing to the appellant and by publication in a newspaper of general circulation, City Council opened and continued the meeting until February 28,2005; and, WHEREAS, at a public meeting on February 28, 2005, pursuant to the procedures set forth in Land Use Code Section 26.314, Appeals, City Council considered the appeal request made by the 700 E. Hyman Condominium Association and by a vote of three to one (3-1), affirmed the Community Development Director's approval of the code interpretation issued December 9,2004; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, THAT: Section 1: In accordance with Land Use Code Section 26.314, Appeals, City Council hereby affirms the Community Development Director's issuance and approval of the land use code interpretation issued December 9,2004, interpreting that Land Use Code Section 26,710.l80(C)(5) requires the ,,-. Resolution No, 6, Series of~ Page 2 " leasing or selling of off-street parking spaces in excess of the required off-street parking for a site in the Office (0) zone district to obtain conditional use approvaL Section 2: This Resolution shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending Wlder or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded Wlder such prior ordinances, Section 3: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof FINALLY, ADOPTED, PASSED, AND ApPROVED on February 28, 2005, at a public meeting before City CounciL APPROVED AS TO FORM: City Attorney Helen Kalin Klanderud, Mayor ATTEST: Kathryn S, Koch, City Clerk MEMORANDUM VIII G THRU: Mayor Klanderud and Aspen City Council JM Y A J Joyce Allgaier, Community Development Deputy Director I V . TTI T'Cfopf? James Lindt, Planner ~ L--- ~'Isi. V'p ,~ Appeal of Land Use Code Interpretation /l/!f:;;1,IIA, g,,,') Section 26.71O.180(C)(S), Conditional use for commercial parking lot 3 _ I c~ 0\ J " - ) Y'ta-rPri Sfa42 ,..1 SUMMARY: k; c~i{C{e Herb Klein of Klein, Cote & Edwards, p,c. submitted an appeal of a code interpretation on cedJe behalf of the 700 E, Hyman Condominium Association (known herein as "Appellants"). The land use code interpretation subject to this appeal relates to the language in Land Use Code Section 26,71O.180(C)(5), Conditional use for commercial parking lot, The request for interpretation asked for clarification on whether conditional use approval is required to lease any and all off-street parking spaces to the general public in the Office (0) zone district pursuant to the language established in Land Use Code Section 26,710.180(C)(5), Conditional use for commercial parking lot, Land Use Code Section 26.710.180(C)(5) reads as follows: DATE: February 28, 2005 TO: FROM: RE: 26.710/180(C)(5), Conditional Use: Commercial parking lot or parking structure- Commercial parking lot or parking structure that is independent of required off- street parking, provided that it is not abutting Main Street. Staff issued a land use code interpretation on December 9, 2004, interpreting that required off-street parking spaces may be rented, leased, or condominiumized and sold to the general public without requiring conditional use approval. Staff further interpreted that conditional use approval is required to lease out off-street parking spaces to the general public that are in excess of the required number of off-street parking spaces for a site in the Office (0) zone district. REVIEW PROCEDURE: Appeal ola Code Interpretation During a public meeting, City Council may affirm, reverse, or modify the Land Use Code Interpretation made by the Community Development Director if Council finds that there was a denial of due process, that the Director exceeded his jurisdiction, or abused his authority pursuant to Land Use Code Section 26,316, Appeals, STAFF COMMENTS: The Appellants have indicated that they believe the leasing or sale of any and all off-street parking spaces in the Office (0) zone district requires conditional use approval for a commercial parking lot and have requested an appeal of Staffs land use code interpretation issued on December 9, 2004, As was discussed above, Staff interprets the language established in Land Use Code Section 26,710.180(C)(5) to require conditional use approval 1 """".~ -"", ;' '" to lease or sell onlv those parking spaces in excess of the required number of off-street parking spaces on a site in the Office (0) zone district. Staff also interprets that required off-street parking spaces may be rented, or condominiumized and sold to the general public, Staff made this interpretation because Land Use Code Section 26.515,020(E), Restrictions on use of off-street parking areas, includes specific restrictions on the use of required off-street parking spaces, but this Section 26,515.020(E) does not contain a prohibition against the leasing or selling of required off- street parking spaces to the general public, Staff is aware that leasing required off-street parking spaces to people that do not conduct business on the property in which the space is located occurs frequently throughout the Commercial Core and Office zone districts (where "commercial parking lots" are conditional uses), That being the case, Staff believes that an opposite interpretation requiring conditional use approval to lease out required off-street parking as suggested by the Appellants would significantly burden the City's ability to enforce such a provision since it is a frequent occurrence, Staff also feels that reversing the Community Development Director's interpretation on this matter may jeopardize previous condominium approvals in all zone districts that allowed for required off-street parking spaces to be condominiwnized as separate condominium units and sold to whoever wished to purchase the spaces without City regulation. Staff is wary that reversing Staff s interpretation will jeopardize the validity of these condominiwn approvals because these projects that condominiwnized their required off-street parking spaces and sold the spaces to the general public are located in zone districts that do not have "commercial parking lot" explicitly listed as a permitted use due to the simple fact that "commercial parking lot" is not explicitly listed as a permitted use in anyone zone district within the code, The aforementioned condominium approvals were allowed to condominiumize parking spaces and sell them to the general public based on the longstanding staff interpretation that Section 26,515,020(E) regulates the use of required off-street parking spaces and there is not a prohibition against leasing or selling required off-street parking spaces to members of the general public included in Section 26,5 I 5,020(E), As was suggested in the interpretation issued by Staff, required off-street parking is not simply intended to mitigate the impact of development on the site where the parking spaces are located. Instead, required off-street parking mitigates that incremental impact of development and the overall demand for parking within the City, Staff recommends that City Council affirm the Community Development Director's code interpretation, PREVIOUS ACTION: City Council has not previously considered this appeal. The Director has made an Interpretation of the Land Use Code in response to the Appellants' request that Staff consider the code language in Land Use Code Section 26,7IOJ80(C)(5) to require conditional use approval to rent or sell any and all off-street parking spaces to the general public in the Office (0) zone district. 2 r " CITVMANAGER'SCOMMENTS: a~ ~~ ~'t7 d. Gn...- ~.eu. ,.i.'). 0 .1S",~ ~ t7.--~ . RECOMMENDED MOTION: "I move to approve Resolution No, 6, Series of 2005, affirming the Community Development Director's Land Use Code Interpretation issued on December 9,2004, finding that, as interpreted, Conditional Use approval is only necessary to rent, lease or sell off-street parking spaces that are in excess of the number of required off-street parking spaces to the general public in the Office (0) zone district" AL TERNA TIVE OPTIONS: Another option available to City Council in reviewing this request would be to affirm the Community Development Director's interpretation of December 9, 2004, and direct Staff to initiate a land use code amendment to require conditional use approval to rent, lease, or sell any and all off-street parking spaces in the Office and Commercial Core zone districts, Alternatively, City Council could deny the above motion, reversing the Community Development Director's interpretation issued on December 9, 2004, thereby interpreting that renting, leasing, or selling any and all off-street parking spaces to the general public requires conditional use approval for a commercial parking lot in the Office and Commercial Core zone districts, A TT ACHMENTS: Exhibit A -- Applicant's Appeal Request Exhibit B Director's Interpretation Issued December 9, 2004 Exhibit C -- Request for Interpretation 3 " -, RESOLUTION NO. b. (Series of 2005) A RESOLUTION OF THE ASPEN CITY COUNCIL, AFFIRMING THE COMMUNITY DEVELOPMENT DIRECTOR'S APPROVAL OF A LAND USE CODE INTERPRET A TION ISSUED DECEMBER 9, 2004, RELATING TO LAND USE CODE SECTION 26.710.180(C)(5), CONDITIONAL USE FOR COMMERCIAL PARKING LOT. WHEREAS, pursuant to Land Use Code Section 26.306, Interpretations of this Title, the 700 E Hyman Condominium Association (known herein as the "Appellant") submitted a request for a land use code interpretation on November 29, 2004, requesting an interpretation of Land Use Code Section 26,710.1 80(C)(5), Conditional use/or a commercial parking lot, to determine whether the leasing or selling of any and all off-street parking spaces in the Office (0) zone district to the general public requires conditional use approval; and, WHEREAS, the Community Development Director approved a land use code interpretation on December 9, 2004, in response to the request for interpretation, interpreting that Land Use Code Section 26,710J80(C)(5) requires the leasing or selling of off-street parking spaces in excess of the required off-street parking for a site in the Office (0) zone district to obtain conditional use approval; and, WHEREAS, pursuant to Land Use Code Section 26.306(F), Interpretations o{this Title, and Land Use Code Section 26.316, Appeals, the Appellant submitted a letter requesting an appeal of the December 9th code interpretation; and, WHEREAS, at a public meeting that was noticed by mailing to the appellant and by publication in a newspaper of general circulation, City Council opened and continued the meeting until February 28,2005; and, WHEREAS, at a public meeting on February 28, 2005, pursuant to the procedures set forth in Land Use Code Section 26,314, Appeals, City Council considered the appeal request made by the 700 E Hyman Condominium Association and by a vote of _ to _ L--->, affirmed the Community Development Director's approval of the code interpretation issued December 9, 2004; and, WHEREAS, the City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare, NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN, COLORADO, THAT: Section 1: In accordance with Land Use Code Section 26.314, Appeals, City Council hereby affirms the Community Development Director's issuance and approval of the land use code interpretation issued December 9, 2004, interpreting that Land Use Code Section 26,71OJ80(C)(5) requires the r"'" Resolution No, _, Series ~:!'I'l05 Page 2 leasing or selling of off-street parking spaces in excess of the required off-street parking for a site in the Office (0) zone district to obtain conditional use approval. Section 2: This Resolution shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof FINALLY, ADOPTED, PASSED, AND ApPROVED on February 28,2005, at a public meeting before City Council. APPROVED AS TO FORM: City Attorney Helen Kalin Klanderud, Mayor ATTEST: Kathryn S, Koch, City Clerk 0h.~\} 11/f KLEIN, COTE & EDWARDS, P.C. HERBERT S. KLEIN LANCE R, COTE' JOSEPH E. EDWARDS, III MACHU B. KRISHNAMURTI hsklein@rof.net cote@rof.net jody@vanion.com madhu@rof.net Attorneys at Law 201 NORTH MILL STREET SUITE 203 ASPEN, COLORADO 81611 Telephone (970) 925-8700 Facsimile (970) 925-3977 * also admitted in California December 15,2004 No (~ if"" <I', ","~ tr) RE. . n~..' ~.; ~1:l~ j!lif!!; ~ . ,.Ji' I!~'''r ',,' 'k ,",'.'b ,~.... Via Hand Deliverv Chris Bendon, Director City of Aspen Community Development Department 130 S. Galena St. Aspen, CO 81611 DEe 1 7 2004 AS,.'EN BUILDlt~G DEPARTMENT Re: Appeal of Community Development Director's Land Use Code Interpretation Regarding Section 26.7IO.180(C)(5) - Conditional Use for Commercial Parking Lot. Dear Chris: This letter is submitted on behalf of my client, 700 E. Hyman Condominium Owners' Association (the "Association") concerning Hyman A venue Holdings, LLC's intended use of its property near the comer of Spring St. and E. Hyman Avenue, for a commercial parking lot and constitutes a notice of appeal of your Code Interpretation decision as the Community Development Director, issued on December 9, 2004, We would appreciate your scheduling this appeal for consideration with the City CounciL Please contact me regarding an available date for the Council's consideration since I will be out of town during the later half of January, The facts, details and basis of this appeal are set forth in my letter to John Worcester of November 4, 2004, and my letter to you seeking your interpretation dated November, 29, 2004, Copies of these letters were attached to your December 9, 2004 interpretation decision and are not attached hereto since you already have them, but please consider them incorporated herein by this reference, Please provide these letters in the Council packet for this matter. Please call me to discuss scheduling the appeal hearing on this matter. Thank you very much for your cooperation, I look forward to hearing from you shortly, Very truly yours, KLEIN, COTE & El)7S' P,C By: ./?r"/L /' Herbert S, Klem N:\700 E Hyman Condo Assn\appeal-council.bendon ltr.wpd [y~\\D \ t \\j?P CITY OF ASPEN A,PPb COMMUNITY DEVELOPMENT DEPARTMENT . 'TQ,,h.,. LAND USE CODE INTERPRETATION b("C "C:D JURISDICTION: CityofAspen ~~~ 91004 ~~ ao~r. APPLICABLE CODE SECTION: Section 26.710.180(C)(5), ~ ~lCit Conditional use for commercial parking lot. Section 26.515.020(E), Restriction on use of off-street parking areas. EFFECTIVE DATE: December 6, 2004 WRITTEN BY: James Lindt, Planner APPROVED BY: Chris Bendon, Community Development Director COPIES TO: John Worcester Sarah Oates SUMMARY: Conditional use approval is required to lease or rent parking spaces to the general public that are in excess of the required number of off-street parking spaces on a site in the Office (0) zone district Land Use Code Section 26,515,020(E), Restrictions on use of off-street parking areas, includes restrictions related to the use of required off-street parking spaces that prohibit required off-street parking to be used for the sale, repair, dismantling, or servicing of vehicles, The land use code does not prohibit required off- street parking spaces from being leased to the general public, condominiumized and sold to the general public or tenants of a property. The land use code also does not establish maximum lease or sale prices for required off-street parking spaces, BACKGROUND AND DISCUSSION: Herb Klein of Klein, Cote & Edwards, p,c. on behalf of the 700 E. Hyman Condominium Owners' Association (referred to as the "Applicants" herein) has submitted a request for a land use code interpretation of the language set forth in City of Aspen Land Use Code Section 26,71 OJ 80(C)(5), Conditional Use: Commercial parking lot or parking structure, The code language subject to this interpretation request reads as follows: /....., '. ...,t 26.710.180(C)(5), Conditional Use: Commercial parking lot or parking structure- Commercial parking lot or parking structure that is independent of required off-street parking, provided that it is not located abutting Main Street. The Applicants have explained in their letter of request that is attached hereto as Exhibit "A", that they are requesting an interpretation of the above-stated code language to determine if leasing of required off-street parking spaces to the general public requires conditional use approval in the Office zone district The Applicants have indicated that they believe the language in Section 26,710.l80(C)(5) establishes that the leasing of any and all off. street parking spaces in the Office zone district to the general public requires conditional use approval by the Planning and Zoning Commission pursuant to the review procedures set forth in Land Use Code Section 26,425, Conditional Uses, In reviewing the code interpretation request, Staff interprets the language "commercial parking lot that is independent of required off-street parking" to mean parking that is not required as off-street parking for development on a particular parcel and is independent of the required off-street parking spaces on a particular site, Staff feels that the language in Section 26,710,180(C)(5) requires conditional use review only for the leasing of those parking spaces to the general public that are in excess of the required off-street parking spaces on a particular parcel. Staff also believes that required off-street parking spaces are not prohibited from being leased to a person or persons that do not have business on a site in which they are leasing parking spaces, Staff has made this interpretation because the land use code defines how required off-street parking areas are to be used in Section 26.5l5,020(E), Restrictions on use of off-street parking areas, Land Use Code Section 26,5l5,020(E) reads as follows: 26.515.020(E), Restrictions on use of off-street parking areas. No off-street parking area shall be usedfor the sale, repair, dismantling or servicing of any vehicles, equipment, materials or supplies, nor shall any such activity adjacent to off-street parking spaces obstruct required access to off-street parking areas. The above language specifies certain prohibitions with respect to the use of required off- street parking spaces, Leasing of required off-street parking spaces is not specified as a prohibition in Section 26,5l5,020(E), Moreover, Staff is aware that many properties within the Commercial Core and Office zone districts, both of which list "commercial parking lots that are independent of required off-street parking" as a conditional use, lease out required off-street parking spaces to the people that do not have business on the site, This practice is not prohibited by the land use code, The request for interpretation states that Staff is not enforcing a prohibition against leasing off-street parking spaces to the general public because it is difficult to enforce, but in reality, Staff is not enforcing the leasing of required off-street parking spaces to the general public because it is not prohibited by the land use code, Nonetheless, Staff does also believe that it would be very difficult to enforce a prohibition of leasing required off- street parking as the Applicants have suggested in their letter of request. Staff also disagrees with the Applicants' statement that required off-street parking spaces are intended solely to mitigate the parking impact of development on the site in which the parking spaces are located. Instead, off-street parking mitigates the incremental impact of development and the overall demand for parking within the City, The land use code does not differentiate whether a required off-street parking space may be occupied by a person that has business on the site in which they parking or whether that same parking space may be occupied by a member of the general public that otherwise would occupy an on-street parking space, APPEAL OF DECISION: As with :my interpretation of the land use code by the Community Development Director, an applicant has the ability to appeal this decision to the Aspen City CounciL This can be done in conjunction with a land use request before City Councilor as a separate agenda item, 26.316.030(A) APPEAL PROCEDURES: Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the City office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed, Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision or determination, Attachments: Exhibit A: Letter of Request for a Code Interpretation ..,____~_^__.___~. _ ""__,_.~.~"_"_'O<'_"_~~ &xl1(~ I) tl/ 1'''''' KLEIN, COTE & EDWARDS, P.C. Attorneys at Law 201 NORTH MILL STREET SUITE 203 ASPEN, COLORADO 81611 Telephone (970) 925-8700 Facsimile (970) 925-3977 HERBERT S. KLEIN LANCE R. COTE' JOSEPH E. EDWARDS, 111 MADHU B. KRlSHNAMURTI hsklein@rof.net cote@rof.net jody@vanion.com madhu@rof.net * also admitted in California November 29, 2004 RECEIVEr Nov U 2 9 2004 8UIiDtNG il8Pl:fV DEPART'/,fcNr Via Hand Deliverv Chris Bendon Community Development Director City of Aspen 130 S, Galena St. Aspen, CO 81611 Re: Park Place Commercial Parking Lot -Request for an Interpretation from the Comdev Director under Section 26.306.010 Dear Chris: I am writing to you on behalf of the 700 E. Hyman Condominium Owners' Association (the "Association") concerning Hyman Avenue Holdings, LLC's ("HAH")) intended use of its property near the corner of Spring St. and E. Hyman Avenue, in Aspen, for a commercial parking lot. The 700 E. Hyman Condominiums are located directly across E. Hyman Avenue from the proposed parking lot and the Association has serious concerns about the adverse impacts that this use will have on the neighborhood and the property of its members, HAH submitted a conditional use application to the City seeking approval for a 20 space commercial parking lot. The property is in the Office zone district and such use is listed as a conditional use, Section 26,710.180 C5 of the City Code, which sets forth the Office (0) zone district regulations, establishes that a conditional use for a commercial parking lot must satisfy the following threshold requirement: Commercial parking lot or parking structure that is independent of required off-street parldng, provided that it is not located abutting Main Street; (Emphasis added,) The parcel involved consists of four townsite lots, These are included in the plat map for the Hannah Dustin Building Condominiums, recorded in 1985, The parking lot is proposed for two of these lots, No parking for the Hannah Dustin Building users was provided in the application and the commercial parking lot use will render the Hannah Dustin Building a non-conforming use, without any Code mandated parking, According to the applicant there is over 5000 square feet of net leasable area for the Hannah Dustin Building, The Code requires 3 spaces for each 1000 square feet. Thus, 16 spaces are required to support the Hannah Dustin Building use. Chris Bendon City of Aspen Community Development Department Director November 29,2004 Page 2 We raised objections to the application at the October 5, 2004, Aspen Planning and Zoning Commission("PZ") hearing on the conditional use application for various reasons, including the failure of the application to comply with the above stated Code requirements and its creation of a non-conformity, During the hearing Comdev staff indicated that although it was correct that there needed to be parking available to support the Hannah Dustin Building, they did not have a mechanism to enforce such a requirement and that generally, the City did not restrict landlords from renting parking spaces required under the zoning to support commercial properties to members of the public. The PZ appeared troubled by this but due to the Vice-Presidential debate scheduled that evening, the hearing was adjourned and continued to October 12th, without further discussion of this Issue, At the October 12, 2004, continued PZ hearing, Mr, Fornell, on behalf ofHAH, withdrew the application stating that he did not believe any City approval was necessary in order for HAH to conduct this activity, It has recently come to our attention that HAH is actively advertising for users of the commercial parking lot On November 4, 2004, I wrote to the City Attorney seeking enforcement of the Code, A copy of my letter to him is attached as Exhibit A. In response I received a letter from James Lindt dated November 16, 2004 (the "StaffInterpretation"), a copy of which is attached as Exhibit B. I believe the interpretation of the Code set forth in the Staff Interpretation is in error and I request an appealable interpretation from you as to the meaning and application of Section 26,710.180 C, in the current context It is our view that the proscription in Section 26,710, I 80 C which states that a commercial parking lot or parking structure must be "independent of required off-street parking" mandates that all parking spaces that are required by the Code to be provided when an office building is constructed ("Required Spaces") must remain available to the tenants and persons having business at the office building and cannot be rented to the general public as part of a commercial parking lot operationO, The policy behind this requirement is a recognition that the Required Spaces are necessary to mitigate the parking impacts of the office building on-site, The legality of the Code's required off-street parking provisions is based on the constitutional principle that restrictions on the free use of property must bear a rational relationship to the purposes to be achieved by the restrictions, If the Required Spaces are not regulated in a manner that assures they mitigate the parking generated by the use for which they were required, there would be no legal basis for the Code's requirement to provide the spaces in the first place, Thus, if the Staff s Interpretation were given effect, the door would be wide open to challenges to the Code's mandatory parking requirements, It is certainly a community goal and policy for development to mitigate its impacts, By not restricting the use of Required Spaces to the tenants, owners and users of an office building, the Staff Interpretation ignores this policy, The StaffInterpretation will allow, by fiat, developers of ~-----"~ Chris Bendon City of Aspen Community Development Department Director November 29,2004 Page 3 office buildings to actually get two separate uses allowed when an office building is developed - one use for offices and a second use as a commercial parking operation in the guise of required off- street parking. The Staff Interpretation renders the "independent of required off-street parking" requirement of Section 26,710.180 C meaningless. It is precisely those 16 required off street parking spaces that HAH is using as its commercial parking facility. So how can the StaffInterpretation possibly be consistent with the plain language of the Code which requires that the commercial spaces be independent of the Required Spaces? The StaffInterpretation turns the Code on its head, Staff says that only the spaces in excess of the 16 Required Spaces need a conditional use approval. While we agree that those spaces would require such an approval, by not recognizing that the Code's language prohibits the Required Spaces from use as a commercial parking facility, the Staff Interpretation allows for the completely unregulated use of the Required Spaces as a commercial parking facility, with all of the attendant impacts on the neighborhood ignored, Clearly, the use and traffic pattern of a commercial parking lot is far different than the impacts of spaces being used by tenants of an office building and their guests. Under the Staff Interpretation, no review of such impacts will occur, What practical meaning or application of Section 26,710,180 Cremains? The Staff rests its interpretation primarily on Section 26,515,020(E) which contains general requirements for off-street parking but does not state in so many words that there is a prohibition on the renting of required parking spaces to the general public. The fact that Section 26,515,020(E) does not affirmatively state that there is a prohibition on renting out Required Spaces to non-tenants or owners of an office building, does not end the inquiry into the proper interpretation of the Code because Section 26,710,180 C, which applies specifically to the matter at hand, makes it clear that if one wishes to rent out spaces for commercial purposes, those spaces must be independent of the Required Spaces and must have the impacts evaluated as a conditional use. Section 26,710,180 Cis, in fact, the prohibition that staff says is lacking in Section 26,515,020(E), We are astounded that staff would chose to ignore the prohibition contained in the Code's section which deals precisely with the matter at hand because similar language is not found in the more general parking standards section of the Code, The Staff Interpretation renders Section 26.425,010 - Conditional Uses, meaningless as it applies to a commercial parking lot in the Office zone district and allows for a parking lot developer to completely by-pass the important review process and standards applicable to conditional uses, As stated in the Code: Conditional uses are those land uses which are generally compatible with the other permitted uses in a zone district, but which require individual review of their location, Chris Bendon City of Aspen Community Development Department Director November 29,2004 Page 4 design, configuration, intensity, and density in order to ensure the appropriateness of the land use in the zone district (Section 26.425,010) It cannot be disputed that the HAH must process this proposed development with the City for review by the Planning Commission: Only those uses which are authorized as a conditional use for each zone district in Chapter 26,710, may be approved as a conditional use. The designation ofa land use as a conditional use in a zone district does not constitute an authorization of such land use or act as an assurance that such land use will be approved as a conditional use; rather, each proposed conditional use shall be evaluated by the Planning and Zoning Commission for compliance with the standards and conditions set forth in this Chapter. (Section 26.425,030) The standards for review of conditional uses must be reviewed by the Planning Commission in order to satisfy the mandate of the Code, These standards, set forth at Section 26.425,040, are relevant to the creation of a commercial parking facility and must not be ignored, The developer must demonstrate that his proposed conditional use: L Is consistent with the purposes, goals, objectives and standards of the Aspen Area Community Plan 2, Is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses. 3, Minimizes adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties, 4. Includes a commitment by the applicant to supply affordable housing to meet the incremental need for increased employees generated by the conditional use, Furthermore, the Planning Commission may impose on any approval, conditions on size, bulk, location, open space, landscaping, buffering, lighting, signage, off-street parking and other similar design features, the construction of public facilities to serve the conditional use, and limitations on the operating characteristics, hours of operation, and duration of the conditional use, It seems to us that the StaffInterpretation is not driven by analysis of the Code, but rather by the lack of enforcement of the Code's parking requirements, by relying on what it states is a common practice for people to rent out parking spaces to persons who have no business on-site, As with most enforcement matters, they are complaint driven, It is one thing for the City to chose not to enforce the Code until someohe complains, It is quite another for the City to deflect the complaint once it is made by ignoring the clear language of the Code, My clients strenuously object to the use of the property as proposed by HAH and they are entitled to have the Code enforced, as written, . -. ,....~,_._._,~._--"--'~~_."'--'.--~-~.~'---. --',,"> Chris Bendon City of Aspen Community Development Department Director November 29, 2004 Page 5 I would appreciate your immediate attention to this matter and please notify me of your decision, so that if you disagree with our position we will be able to make a timely appeal of it to the City Council. Very truly yours, KLEIN, COTE & EDWARDS, p,c. // #~~ By: Herbert S. Klein Attachment cc: Clients with att, (via fax) 700 E Hyman condo assn\bendon-interpltr.wpd .~ II JI KLEIN, COTe & EDWARDS, P.C. HERBERT S, KLEIN LANCE R. CDT~ . JOSEPH E, EDWARDS, III MADHU B, KRlSHNAMURTI hsklein@rof.net cote@rof.net jody@vanion.com madhu@rof.net Attorneys at Law * also admitted In California . 201 NORTH Mill STREET SUITE 203 ASPEN, COLORADO 81611 Telephone (970) 925-8700 Facsimile (970) 925--39n November 4, 2004 Via Hand Deliverv John Worcester, Esq. City of Aspen Attorney 130 S. Galena St. Aspen, CO 81611 Re: Park Place Commercial Parking Lot Dear John: I am writing to you on behalf of the 700 E. Hyman Condominium Owners' Association (the "Association") concerning Hyman Avenue Holdings, LLC's ("HAH")) intended use of its property near the comer of Spring 8t. and E. Hyman Avenue, in Aspen, for a commercial parking lot. The 700 E. Hyman Condominiums are located directly across E. Hyman Avenue from the proposed parking lot and the Association has serious concerns about the adverse impacts that this use will have on the neighborhood and the property of its members. HAH submitted a conditional use application to the City seeking approval for a 20 space commercial parking lot. The property is in the Office zone district and such use is listed as a conditional use. Section 26.710.180 C.5 of the City Code, which sets forth the Office (0) zone district regulations, states with respect to a commercial parking lot as a conditional use as follows: Commercial parking lot or parking structure that is independent of required off-street parking, provided that it is not located abutting Main Street; (Emphasis added,) The parcel involved consists of four townsite lots. These are included in the plat map for the Hannah Dusting Building Condominiums, recorded in 1985. The parking lot is proposed for two of these lots. No parking for the Hannah Dustin Building users was provided in the application and the commercial parking lot use will render the Hannah Dustin Building a non-conforming use, without any Code mandated parking. According to the applicant there is over 5000 square feet of net leasable area for the Hannah Dustin Building. The Code requires 3 spaces for each 1000 square feet. Thus, 16 spaces are required to support the Hannah Dustin Building use. We raised objections to the application at the October 5, 2004, Aspen Planning and Zoning Commission("PZ") hearing on the conditional use application for various reasons, including the failure of the application to comply with the above stated Code requirements and its creation of a non-conformity. During the hearing Comdev staff indicated that although it was correct that there . . z . I . EXHIBIT A John Worcester, Esq. City of Aspen Attorney November 4, 2004 Page 2 needed to be parking available to support the Hannah Dustin Building, they did not have a mechanism to enforce such a requirement and that the City did not restrict landlords from renting parking spaces required under the zoning to support commercial properties to members of the public. The PZ appeared troubled by this but due to the Vice-Presidential debate scheduled that evening, the hearing was adjourned and continued to October 12th, without further discussion of this issue. At the October 12, 2004, continued PZ hearing, Mr. Fomell, on behalf of HAH, withdrew the application stating that he did not believe any City approval was necessary in order for HAH to conduct this activity. It has come to our attention recently that subsequent to the hearing, HAH is actively advertising for users of the commercial parking lot. Since the Code is crystal clear as to its requirements and HAH is blatantly pursuing a use that is in violation of the Code, we request that the City undertake immediate enforcement efforts to prevent this use until all necessary City approvals are obtained. Prompt action is necessary since leases for the spaces are being actively pursued by HAH and further delay will complicate the enforcement efforts and perhaps make it necessary to join tenants in any such action. I would appreciate your immediate attention to this matter and please notify me of your intended course of action. Very truly yours, . KLEIN, COTE & EDWARDS, P.C. By ~~.~ ~~ Attachment cc: Jim Johnson, Esq. wlo att. (via fax) Clients wlo att. (via fax) 700 E Hyman condo assn\worcester-enforcltr.wpd ,-. ....-/ 1IDlb@lbK\W~1ffi 1m NOV 1 7 2004 lW Blinm-m--- November 16, 2004 - 700 E. Hyman Condominium Owners' Association C/o Herb Kline Kline, Cote & Edwards, P,C. 201 W. North Street, ste. 203 Aspen, CO 81611 ASPEN /PITlCIN COMMUNITY DEVELOPMENT DEPARTMENT RE; 707 E. Hyman Commercial Parking Lot Complaint Dear Herb: I am writing this letter in response to the complaint filed by the 700 E. Hyman Condominium Owner's Association, which I understand you represent, related to the parking situation at the Hannah-Dustin Building located at 707 E. Hyman, The CortiIllunity Development Staff has reviewed the complaint that the owner' of the Hannah-Dustin Building is operating a connrrercial parking lot on the vacant land just to the east of the of the Hannah-Dusting Building without obtaining necessary City approvals, ' In researching the situation, Peter Fornell, a representative for the property owner has confirmed that they have not leased out more than the sixteen (16) off-street parking spaces required on the site in conjunction with the development of ,the Harmah-Dustin Building. Additionally, Mr, Fornell indicated that they do not intend to lease out more than the sixteen (16) vequired off-street parking spaces, . City of Aspen Land Use Code Section 26.515,020(E), Restrictions of use of off-street parking areas, includes restrictions and prohibitions 'regulating the use of required off- street parking. However, the above-referenced code section does not prohibit the leasing of off-street parking spaces to the general public,' Moreover, it is cOrnInon practice throughout town including the Office and Commercial Core Zone Districts- for property owners to lease out required off-street parking spaces to people that do not have busi.ness on the site of the parkip.g spaces being leased. Given the above discussion, Staff does not feel that 707 E. Hyman Avenue is in violation of zoning' at this point in that they have not leased out parking spaCes that are in excess of their required off-street parking. It is Staff's opinion that leasing out parking that is in excess of the required off-street parking would constitute a commercial parking facility and would necessitate a conditional use approval in the Office Zone District. Therefore, Staff is not taking enforcement action at this time because leasing required off-street parking is not prohibited by the land use code, Staff will pay attention to the situation to ensure that the owner does not lease out more than the sixteen (16) required -off-street parking spaces, . , . f . EXHIBIT B 130 SOtrTH GALENA STREET' AsPEN, COLORAOO 81611.1975 : PHONE 970.920.5090 . FAX 970.920.5439 Printed on Recycled Paper ..-.. ""'''"''' If you have any questions regarding this matter, please feel free to call me at 920-5102, Regards, James Lindt Planner City of Aspen cc: John Worcester, City Attorney Sarah Oates, Zoning Officer - ""',,..... . ---------<-,,,, ,~,--",~"-'---""---+--' , 130 S, Galena St Aspen CO 81611 (970) 920-5090 (970) 920-5439, fax Aspen Community Development Department Fax To: Herb Klein From: James Lindt Fax: 925-3977 Pages: Phone: Date: 2/23/05 Re: Parking Interp, Appeal Memo CC: o Urgent o For Review o Please Comment 0 Please Reply o Please Recycle . Comments: - "- ,,~' CITY COUNCIL AGENDA February 28, 2005 5:00 P.M. Call to Order Roll Call Scheduled Public Appearances Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) Special Orders of the Day Mayor's Comments Councilmembers' Comments City Manager's Comments Board Reports Consent Calendar (These matters may be adopted together by a single motion) Main Street Banner - Mountain Travel Symposium Spring Jam Core Party Special Event Requests, Little Ajax Footprint Changes Minutes First Reading of Ordinances Ordinance #13, 2005 - Code Amendments - Miscellaneous Land Use Ordinance # 2005 - Charter Amendment - Jurisdiction of Municipal Court Public Hearings Ordinance #50, 2004 - Fox Crossing Subdivision Ordinance #4, 2005 - 701 West Main Street Historic Lot Split (continue PH until March 28t) Ordinance #5, 2005 - Code Amendment - Commercial/Design Pedestrian Amenities Ordinance #7,2005 - Code Amendment - Mixed Use Zone District Ordinance #8, 2005 - Soldner/Burlingame Ranch Initial Zoning Ordinance #9, 2005 - Code Amendment - Lodge Zone District Appeal of Off-street Parking I nterpretation I ,,/ " Action Items Information Items Adjournment Next Regular Meeting March 14.2005 COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. . i (lTY OF ASPEN II I I ~ I -'-;"";1'; '. " , ~,~S POs):: :,." --1c; " '" f:: 11 f'Y- ;.,..~Jb.. - ,<.:.4}==-~,:JJ Z ~;1," ~~.&-~~..,,::;..;;;::;-- :) D<Fy ~~"-",""""" PIlNl.l' BO\r'.rE.$ 02 1.A. $ 04.420 00043634C8 FEe Og 2'J03 MAILED FROM ZIP CODE 81 rJ1 1 loUTH GALENA STREET COLORADO 81611-1975 91 7108 2133 3931 2567 4786 Herb Klein Klein, Cote, & Edwards 201 N. Mill Street, ste 203 Aspen, CO 81611 Track Instant -r- f\f<\QS 1 \',,~-\- Page I of I Pitne Bowes Delivery Status Here is the detailed status of the shipment you are tracking. Check all of the information carefully. If these appears to be a problem with your shipment. contact the carrier directly. Account Number: 11650561 Carrier: USPS Tracking Number: 9171082133393125674786 Slatu.: ELECTRONIC SHIPPING INFO RECEIVED !'riot j c.....j . Complete items 1. 2, and 3. Also t:~'!l'plete item 4 if Restricted Delivery is de4ife.~. ,_~ i . Print your name and address on ~~ reverse so that we can return the card to .ybu.. !.. . Attach this card to the back of the mallplece, or on the front if space pennits. 1. Article Addressed to: He,vlD klet'VI ZOi N.,M,; I( 5+ 6f"- 203 1 AspeV\; {.O 'FI(btl 3. Service Type if Cert~ied Mali o Registared o Insured Mali 0 C,O,D, 4. Restricted Delivery? (Extra Fee) o Express Mall o Return Receipt for Merchandise DYas 2, Arllcla Number -:zrv-,3> 10 I 0 ceo I 43 (rransfe1' from service label) 7 lA/ PS Form 3811. February 2004 Domestic Return Receipt 1025gs..()2-M-1540 l ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE AUO""O"ROPERT" ~~~ ~ ~ ~,v;[J~,~ SCHEDULEDPUBLICHEARIN DATE: ?h --kJ ,200_ STATE OF COLORADO ) ) ". County of Pitkin ) ~ . (df I, \..j La W\'9~ <::, U VI (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304,060 (E) of the Aspen Land Use Code in the following manner: k Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto, _ Posting of notice:. By posting of notice, which form was obtaineC\from the Community Development Department, which was made of suitabll/, waterproof materials, which was not less than twenty-two (22) inclh:s wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the _ day of , 200_, to and including the date and time of the public hearing, A photograph of the posted notice (sign) is attached hereto, _ Mailing of notice, By the mailing of a notice obtained from the Community Development Department, which contains the information descri1i1ed in Section 26.304,060(E)(2) of the Aspen Land Use Code, At least fifteen (\5) days prior to the public hearing, notice was hand delivered or mailed by first cl~s postage prepaid U,S, mail to any federal agency, state, county, municipal government, school, service district or other governmental or quasi-governmental agency that owns property within three hundred (300) feet of the property subject to the development application, The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing, A copy of the owners and governmental agencies so noticed is attached hereto, (continued on next page) Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived, However, the proposed zoning map has been available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments, ~g6~,^-;Jj gnature The f~~g "Affidavit of Notice" w~owledged be~re me this 1 "-' day of ,200~,b~~ ~)~ WITNESS MY HAND AND OFFICIAL SEAL PUBLIC NOTICE RE" APPEAL OF LAND~~ CODE iNTERPRETA- . LAND USE f. CODE SECTION ;~~~~.I80(C)(5), orne . ~~~I~IS~~N~o~g~ TIONAL USE FOR CO M LANGUAGE NOTICE IS HEREBY GIVEN that a public tm" WIll be held 011 Monday, February 28, mee t; 500pm belorethe 2005 at a meehng to beguI at \30 Aspen CIty CouncIl Clty Coundl Chambers 5 G lena 51 Aspen to conSIder an appeal of a landa use code mterpretatlon submitted by the 700 E Hyman Condommlum AssociatIOn The I d use cude mterpretatlOn being appealed re- 1:~les to the language set forth m Land Use Code 26710180(C)(5) QlIlce Zone Dlstnct Se'''dW," "'1 use lor commen:lal parking lot ATTACHMENTS: on 110"u Undtat For lurther mlormatlOn contact JameS th CIty 01 Aspen Commumty Development De- pa:tment 1305 Galena 5~Aspen CO, (970) 429- ~OPY OF THE PUBLICATION 2763Iames]@ClaSpencoif s/Helefll almKlanderud Mayor Aspen CIty CouncIl pubhshed m The Aspe TImes on February 13 ~H OF THE POSTED NOTICE (SIGN) 2005.(2388) My commission expires: <; Notary Public __~"",'H,~nu ~,.) GOVERNMENTAL AGENCIES NOTICED BY MAIL .-..--"~-~.-.-..-..--~...-.~.-.~~.."-..-.--..-- Page 1 of2 X-Spam-Status: No, hits=-2A required=5.5 X-Envelope-From: hsklein@rof.net From: "Herb Klein" <::hsklein@rof.net> To: "James Lindt" <jamesl@ci,aspen.co.us> Subject: Fw: Rescheduling of Code Interp. Appeal Date: TIIU, 27 Jan 2005 10:17:55 -0700 X-Mailer: Microsoft Outlook Express 6.00.2900.2180 X-Spam-Checker- Version: SpamAssassin 3,0.1 (2004-10-22) on mailserv.rof.net X-Qrnail-Scanner-MOVED-X-Spam-Status: No, score=-2A required=5.5 tests=A WL,BA YES _ 00 autolearn=ham version=3.0.1 X-Spam: [F=0.0001089918; B=0.500(0); HS=0,500(-3300); S=O.OIO; MH=0300(2005012701); R=0.024(s34/nI362)] X-MAIL-FROM: <hsklein@rof.net> X-SOURCE-IP: [63.251.184.250] X-MailS canner-Information: Please contact the ISP for more information X-MaiIScanner: Found to be clean ----- Original Message ----- From: "Herb Klein" <hsklein@rof.net> To: "James Lindt" <jamesl@ci.aspen.co.us> Sent: Thursday, January 27, 2005 10:01 AM Subject: Re: Rescheduling of Code Interp. Appeal hi james, i think the 28th will be ok, i am checking with my client group about their availability. at this point assume this date will work. thanks, herb n___ Original Message ----- From: "James Lindt" <jamesl@ci.aspen,co,us> To: "Herb S, Klein" <hsklein@rof.net> Sent: Thursday, January 27, 2005 9:08 AM Subject: Rescheduling of Code Interp. Appeal Hi Herb, I wanted to let you know that the City Manager and Mayor have decided to open and continue the public meeting on the Office Zone District Parking Code Interp. Appeal from 2/14 to 2/28. The need for the continuation is that the 2/14 agenda has become too full with the addition of the Stage Rd. Subdivision public hearing, BarlX Annexation hearing, and the continuation of the Aspen Sanitation District POO hearing to this date. In addition to moving this item we also had to move several others from the 2/14 date, Thank you in advance for your cooperation in this matter. Thanks, James James Lindt Aspen Community Development 920-5102 file://C:IDOCUME-l \jamesl\LOCALS-I \Temp\eudlE.htm 3/4/2005 .___'~C.__ . ...~.~.,,_..#_ Herb S, Klein, 03:22 PM 12" 7/2004, Re: Scheduling for Code Inter .ppeal Page I of I From: "Herb S, Klein" <hsklein@rofnet> To: "James Lindt" <jamesl@ci.aspen.co,us> Subject Re: Scheduling for Code Interp, Appeal Date: Fri, 17 Dec 2004 15:22:04 -0700 X-Mailer: Microsoft Outlook Express 6.00,2800,1437 X-Spam: [F=0,0003038017; B=0,500(0); HS=0,500(-9900); S=O,OIO; MH=0,500(2004121705); R=0,029(s265/n8818)] X-MAIL-FROM: <hsklein@rofnet> X-SOURCE-IP: [66,1l3,LlII] X-MaiIScanner-Information: Please contact the ISP for more information X-MaiIScanner: Found to be clean hi james, thank you for your scheduling this matter on feb 14,2005. that date is acceptable. regards, herb ----- Original Message ----- From: "James Lindt" <jamesl@ci,aspen,co,us> To: "Herb S, Klein" <hsklein@rofnet> Sent: Friday, December 17, 200412:15 PM Subject: Scheduling for Code Interp, Appeal > Hi Herb, > Per our phone conversation this morning, I have scheduled your request for > appeal of the code interpretation related to Land Use Code Section > 26,71 0.1 80(C)(5) for review by City Council on February 14,2005, Given > that the January 10th Council Meeting is extremely full with BarlX and > several other large agenda items and that you are going to be out of town > for the second Council meeting in January, February 14th is the first > practical date to have the hearing. Please send me e-mail confirmation > that the February 14th meeting date is acceptable to you since it is beyond > the 30 day appeal time period. > > Thanks, > James > > Printed for James Lindt <jamesl@cLaspen,co.us> 12/17/2004 Track Instant -r;: -:f;t'Y\ES" .Ll~~+ Page 1 of 1 ~.. ~~ , Delivery Status Here ;s the detailed status of the shipment you are tracking. Check all of the information carefully. If these appears to be a problem with your shipment, contact the carrier directly. Account Number: 11650561 Carrier: USPS Tracking Number: 9171082133393125674724 Status: ELECTRONIC SHiPPING INFO RECEIVED Prim J c-l httn. /Im"",.! nh "nm/""i_hin/nh,dlViso/TrackInstant.do?packageIndex=O&page=TrackInsta.,. 1/19/2005 . 11] II' r- o "r- No ill ~~c'J;;; ;;. . C0 L.lJ : ~"= 0 "OeO.o ~ ,:( U :~'-'~ t. N r5.:,. <i'"' " '" o 0, \\\ 't.. ...~ O-.Y...!INf'I 2: ~ '::- c,: ":jU- "'0 qi0 W ~~;~ ~ II ~..~:'- .;.. . . - ~. . . . ~ :', .,.... ~ , .-'! /Tl IT" /Tl /Tl /Tl .-'! I1J ~ CJ .-'! ['- .-'! 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IT" a '. o . a: c ~ a: o t; ~ o C of jj ~ ~~ o ~ Z , '" g '" ~ ~ .a J' <tc oi ~ ~ <Xl 0') E ~ (j) a. · Complete kems'l, 2, and 3, AJso complete Item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card 10 the back of the mallplece, or on the front if space permits. 1. Article Addressed to: 1-1-<:1> kl<'I"I . . kl~,,\ 6ft'; ..& EcJwcweks 2..01 A), 1/,(/1/ 6f-; Sfe 203 ~e-Y\I (C/ 6'1(:,11 2. Article Number (Transfer from service 18beI) '" PS Form 3811, Febru81y 2004 3. SeJvice Type rg Certified Mail 0 Express Mail o Registered 0 Return Receipt for MerchandIse o InsUred Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 91 7108 2133 3931 2567 4724 Domestic Return Receipt '02595-02-M"540 ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: .4PfJeD./ O?>'d'Q Tt/1~Vfl, SCHEDULED PUBLIC HEARING DATE: ~/9 /rJ5 , Aspen, CO ,200_ STATE OF COLORADO ) ) ss, County of Pitkin ) I, '<:\ a. I/1..1ces / I (VI ("'yl (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26304,060 (E) of the Aspen Land Use Code in the following manner: k' Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (I5) days prior to the public hearing, A copy of the publication is attached hereto, - Posting of notice: By posting of notice, which form was obtained from the ~c Community Development Department, which was made of suitable, ( waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height Said notice was posted at least fifteen (I5) days prior to the public hearing and was continuously visible from the _ day of , 200_, to and including the date and time of the public hearing, A phOtograph of the posted notice (sign) is attached hereto, X Mailing of notice, By the mailing of a notice obtained from the Community . Development Department, which contains the information described in Sect~\m 26,304,060(E)(2) of the Aspen Land Use Code, At least fifteen (I 5) days prior to the public hearing, notice was hand delivered or m.ailed by first class postage\' prepaid U,S, mail to any federal agency, state, county, municipal government, school, service district or other governmental or quasi-governmental agency that owns property within three hundred (300) feet of the property subject to the development application, The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing, A cOPJ: oft~e pwners and I governmental agencies so noticed is attached hereto, - IA,IAI/"::-cY .., .,oke<€--ro . !~eIIQvtl- Ot/l '119/65, (continued on next page) Rezoning or text amendment Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived, However, the proposed zoning map has been available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments, ~.u-, ,__~~ , gnature The foregoing "Affidavit of Notice" was aCknOWledged.b~me this~lj day of -;)er- _ , 200os;, by 30- ~ <.:J-,1 WITNESS MY HAND AND OFFICIAL SEAL Public ~otice I 57 Notary Public PUBLIC NOTICE RE' APPEAL OF LAND USE CODE INTER- PRETATION: LAND USE CODE SECTION 26.710.18O(C)(5), OFFICE ZONE D1STRlCT CONDI- TIONAL USE fOR COMMERCIAL PARKING LOT LANGUAGE . NOTICE [5 HEREBY GIVEN that a public meetmg will be held on Monday, February 14, 2005 at a meeting to begin at 5:00 p.m. belore the Aspen City Council, City CounCIl Chambers, 130 S. Gale- na St., Aspen, to conSIder an appeal of a land use code interpretation submItted by the 700 E. Hy- man Condominium Association. The land use code interpretation belW appealed relates to :he language set forth in~"Land Use Code SectIOn 26.71O.180(C)(5), Ollie ,1Zone Distnct: Conditional use for commercial pa king lot. For lurther inlormatidh, contact James Lindt at the City 01 Aspen C~munity Deve]opment De- partment, ]30 S, Galena St., Aspen, CO, (970) 429- 2763,jamesl@ci.aspen.co,us. sf Helen Kalin Klanderud, Mayor Aspen City Council Published in The Aspen Times on January 23, 2005,(2318) ATTACHMENTS: COPY OF THE PUBLICATION GRAPH OF THE POSTED NOTICE (SIGN) S AND GOVERNMENTAL AGENCIES NOTICED BY MAIL V KLEIN, COTE & EDWARDS,'f(C. -- HERBERT S. KLEIN LANCE R. COTE' JOSEPH E. EDWARDS, III MADHU B. KRISHNAMURTI hsklein@rof.net cote@rof.net jody@Vanion.com madhu@rof.net Attorneys at Law 201 NORTH MILL STREET SUITE 203 ASPEN, COLORADO 81611 Telephone (970) 925-8700 Facsimile (970) 925-3917 . also admitted in California November 29,2004 ~:CEIVED 2 9 2004 BUIlDiNG lii'i?l:/V otii4Rl'MENr Via Hand Deliverv Chris Bendon Community Development Director City of Aspen 130 S, Galena St. Aspen, CO 81611 Re: Park Place Commercial Parking Lot -Request for an Interpretation from the Comdev Director under Section 26.306.010 Dear Chris: I am writing to you on behalf of the 700 E. Hyman Condominium Owners' Association (the "Association") concerning Hyman Avenue Holdings, LLC's CHAR")) intended use of its property near the comer of Spring St, and E. Hyman Avenue, in Aspen, for a commercial parking lot The 700 E. Hyman Condominiums are located directly across E. Hyman Avenue from the proposed parking lot and the Association has serious concerns about the adverse impacts that this use will have on the neighborhood and the property of its members, HAH submitted a conditional use application to the City seeking approval for a 20 space commercial parking lot The property is in the Office zone district and such use is listed as a conditional use, Section 26.710,180 C.S of the City Code, which sets forth the Office (0) zone district regulations, establishes that a conditional use for a commercial parking lot must satisfy the following threshold requirement: Commercial parking lot or parking structure that is independent of required oiJ-street parking, provided that it is not located abutting Main Street; (Emphasis added,) The parcel involved consists of four townsite lots, These are included in the plat map for the Hannah Dustin Building Condominiums, recorded in 1985, The parking lot is proposed for two of these lots. No parking for the Hannah Dustin Building users was provided in the application and the commercial parking lot use will render the Hannah Dustin Building a non-conforming use, without any Code mandated parking. According to the applicant there is over 5000 square feet of net leasable area for the Hannah Dustin Building, The Code requires 3 spaces for each 1000 square feet Thus, 16 spaces are required to support the Hannah Dustin Building use, ,...-'..... - '-' Chris Bendon City of Aspen Community Development Department Director November 29, 2004 Page 2 We raised objections to the application at the October 5, 2004, Aspen Planning and Zoning Commission("PZ") hearing on the conditional use application for various reasons, including the failure of the application to comply with the above stated Code requirements and its creation of a non-conformity, During the hearing Comdev staff indicated that although it was correct that there needed to be parking available to support the Hannah Dustin Building, they did not have a mechanism to enforce such a requirement and that generally, the City did not restrict landlords from renting parking spaces required under the zoning to support commercial properties to members of the public, The PZ appeared troubled by this but due to the Vice-Presidential debate scheduled that evening, the hearing was adjourned and continued to October 12'h, without further discussion of this Issue. At the October 12, 2004, continued PZ hearing, Mr. Fornell, on behalf ofHAH, withdrew the application stating that he did not believe any City approval was necessary in order for HAH to conduct this activity, It has recently come to our attention that HAH is actively advertising for users of the commercial parking lot. On November 4, 2004, I wrote to the City Attorney seeking enforcement of the Code, A copy of my letter to him is attached as Exhibit A In response I received a letter from James Lindt dated November 16, 2004 (the "StaffInterpretation"), a copy of which is attached as Exhibit B. I believe the interpretation of the Code set forth in the Staff Interpretation is in error and I request an appealable interpretation from you as to the meaning and application of Section 26,710.180 C, in the current context. It is our view that the proscription in Section 26,710,180 C which states that a commercial parking lot or parking structure must be "independent a/required off-street parking" mandates that all parking spaces that are required by the Code to be provided when an office building is constructed ("Required Spaces") must remain available to the tenants and persons having business at the office building and cannot be rented to the general public as part of a commercial parking lot operationO, The policy behind this requirement is a recognition that the Required Spaces are necessary to mitigate the parking impacts of the office building on-site. The legality of the Code's required off-street parking provisions is based on the constitutional principle that restrictions on the free use of property must bear a rational relationship to the purposes to be achieved by the restrictions, If the Required Spaces are not regulated in a manner that assures they mitigate the parking generated by the use for which they were required, there would be no legal basis for the Code's requirement to provide the spaces in the first place. Thus, if the Staff's Interpretation were given effect, the door would be wide open to challenges to the Code's mandatory parking requirements, It is certainly a community goal and policy for development to mitigate its impacts, By not restricting the use of Required Spaces to the tenants, owners and users of an office building, the Staff Interpretation ignores this policy. The StaffInterpretation will allow, by fiat, developers of ~"- -',.-..., " , Chris Bendon City of Aspen Community Development Department Director November 29, 2004 Page 3 office buildings to actually get two separate uses allowed when an office building is developed - one use for offices and a second use as a commercial parking operation in the guise of required off- street parking, The Staff Interpretation renders the "independent of required off-street parking" requirement of Section 26.710,180 C meaningless, It is precisely those 16 required off street parking spaces that HAH is using as its commercial parking facility. So how can the Staff Interpretation possibly be consistent with the plain language of the Code which requires that the commercial spaces be independent ofthe Required Spaces? The Staff Interpretation turns the Code on its head. Staff says that only the spaces in excess of the 16 Required Spaces need a conditional use approval. While we agree that those spaces would require such an approval, by not recognizing that the Code's language prohibits the Required Spaces from use as a commercial parking facility, the Staff Interpretation allows for the completely unregulated use of the Required Spaces as a commercial parking facility, with all of the attendant impacts on the neighborhood ignored, Clearly, the use and traffic pattern of a commercial parking lot is far different than the impacts of spaces being used by tenants of an office building and their guests. Under the Staff Interpretation, no review of such impacts will occur, What practical meaning or application of Section 26,710.180 Cremains? The Staff rests its interpretation primarily on Section 26,515.020(E) which contains general requirements for off-street parking but does not state in so many words that there is a prohibition on the renting ofrequired parking spaces to the general public. The fact that Section 26.515,020(E) does not affirmatively state that there is a prohibition on renting out Required Spaces to non-tenants or owners of an office building, does not end the inquiry into the proper interpretation of the Code because Section 26.710.180 C, which applies specifically to the matter at hand, makes it clear that if one wishes to rent out spaces for commercial purposes, those spaces must be independent of the Required Spaces and must have the impacts evaluated as a conditional use, Section 26.710,180 Cis, in fact, the prohibition that staff says is lacking in Section 26,515,020(E). We are astounded that staff would chose to ignore the prohibition contained in the Code's section which deals precisely with the matter at hand because similar language is not found in the more general parking standards section of the Code. The Staff Interpretation renders Section 26.425,010 - Conditional Uses, meaningless as it applies to a commercial parking lot in the Office zone district and allows for a parking lot developer to completely by-pass the important review process and standards applicable to conditional uses, As stated in the Code: Conditional uses are those land uses which are generally compatible with the other permitted uses in a zone district, but which require individual review of their location, "" ./ Chris Bendon City of Aspen Community Development Department Director November 29, 2004 Page 4 design, configuration, intensity, and density in order to ensure the appropriateness of the land use in the zone district (Section 26.425,010) It cannot be disputed that the HAH must process this proposed development with the City for review by the Planning Commission: Only those uses which are authorized as a conditional use for each zone district in Chapter 26,710, may be approved as a conditional use, The designation ofa land use as a conditional use in a zone district does not constitute an authorization of such land use or act as an assurance that such land use will be approved as a conditional use; rather, each proposed conditional use shall be evaluated by the Planrring and Zoning Commission for compliance with the standards and conditions set forth in this Chapter. (Section 26.425.030) The standards for review of conditional uses must be reviewed by the Planning Commission in order to satisfy the mandate of the Code, These standards, set forth at Section 26.425,040, are relevant to the creation of a commercial parking facility and must not be ignored, The developer must demonstrate that his proposed conditional use: 1, Is consistent with the purposes, goals, objectives and standards of the Aspen Area Community Plan 2. Is consistent and compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, 3, Minimizes adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, parking, trash, service delivery, noise, vibrations and odor on surrounding properties, 4. Includes a commitment by the applicant to supply affordable housing to meet the incremental need for increased employees generated by the conditional use, Furthermore, the Planning Commission may impose on any approval, conditions on size, bulk, location, open space, landscaping, buffering, lighting, signage, off-street parking and other similar design features, the construction of public facilities to serve the conditional use, and limitations on the operating characteristics, hours of operation, and duration of the conditional use, It seems to us that the Staff Interpretation is not driven by analysis of the Code, but rather by the lack of enforcement of the Code's parking requirements, by relying on what it states is a common practice for people to rent out parking spaces to persons who have no business on-site, As with most enforcement matters, they are complaint driven, It is one thing for the City to chose not to enforce the Code until someone complains, It is quite another for the City to deflect the complaint once it is made by ignoring the clear language of the Code, My clients strenuously object to the use of the property as proposed by HAH and they are entitled to have the Code enforced, as written, " / Chris Bendon City of Aspen Community Development Department Director November 29, 2004 Page 5 I would appreciate your immediate attention to this matter and please notify me of your decision, so that if you disagree with our position we will be able to make a timely appeal of it to the City Council. Very truly yours, KLEIN, COTE & EDWARDS, P ,CO / ~4---- By: ~/ Herbert S, Klein Attachment cc: Clients with att. (via fax) 700 E Hyman condo assn\bendon-interpltr.wpd .-~......... " II w KLEIN, COT~ & EDWARDS, P.C. HERBERT S, KLEIN lANCE It COTE' JOSEPH E. EDWARDS, III MADHUB.K~SHNAMURn hsklein@rof.net cote@rof.net jody@vanion.com madhu@rof.net Attorneys at Law * also admitted In California ' 201 NORTH MILL STREET SUITE 203 ASPEN, COLORADO 81611 Telephone (970) 92s.s70Q Facslmll. (970) 925-39n November 4, 2004 Via Hand Delivery John Worcester, Esq. City of Aspen Attorney 130 S, Galena St. Aspen, CO 81611 Re: Park Place Commercial Parking Lot Dear John: I am writing to you on behalf of the 700 E. Hyman Condominium Owners' Association (the "Association") concerning Hyman Avenue Holdings, LLC's ("HAH")) intended use of its property near the comer of Spring St. and E. Hyman A venue, in Aspen, for a commercial parking lot. The 700 E. Hyman Condominiums are located directly across E. Hyman A venue from the proposed parking lot and the Association has serious concerns about the adverse impacts that this use will have on the neighborhood and the property of its members. HAH submitted a conditional use application to the City seeking approval for a 20 space commercial parking lot. The property is in the Office zone district and such use is listed as a conditional use. . Section 26.710.180 C.5 of the City Code, which sets forth the Office (0) zone district regulations, states with respect to a commercial parking lot as a conditional use as follows: Commercial parking lot or parking structure that is independent of required off-street parking, provided that it is not located abutting Main Street; (Emphasis added.) The parcel involved consists of four townsite lots. These are included in the plat map for the Hannah Dusting Building Condominiums, recorded in 1985. The parking lot 'is proposed for two of these lots. No parking for the Hannah Dustin Building users was provided in the application and the commercial parking lot use will render the Hannah Dustin Building a non-conforming use, without any Code mandated parking. According to the applicant there is over 5000 square feet of net leasable area for the Hannah Dustin Building. The Code requires 3 spaces for each 1000 square feet. Thus, 16 spaces are required to support the Hannah Dustin Building use. We raised objections to the application at the October 5, 2004, Aspen Planning and Zoning Commission("PZ") hearing on the conditional use application for various reasons, including the failure of the application to comply with the above stated Code requirements and its creation of a non-conformity, During the hearing Comdev staff indicated that although it was correct that there , z EXHIBIT A r i . -" ,....'~, "-,, John Worcester, Esq, City of Aspen Attorney November 4, 2004 Page 2 needed to be parking available to support the Hannah Dustin Building, they did not have a mechanism to enforce such a requirement and that the City did not restrict landlords from renting parking spaces required under the zoning to support commercial properties to members of the public. The PZ appeared troubled by this but due to the Vice-Presidential debate scheduled that evening, the hearing was adjourned and continued to October l2'h, without further discussion of this issue. At the October 12, 2004, continued PZ hearing, Mr. Fornell, on behalf of HAH, withdrew the application stating that he did not believe any City approval was necessary in order for HAH to conduct this activity. It has come to our attention recently that subsequent to the hearing, HAH is actively advertising for users of the commercial parking lot Since the Code is crystal clear as to its requirements and HAH is blatantly pursuing a use that is in violation of the Code, we request that the City undertake immediate enforcement efforts to prevent this use until all necessary City approvals are obtained. Prompt action is necessary since leases for the spaces are being actively pursued by HAH and further delay will complicate the enforcement efforts and perhaps make it necessary to join tenants in any such action. I would appreciate your immediate attention to this matter and please notify me of your intended course of action. Very truly yours, KLEIN, COTE & EDWARDS, P.C. By. ~.~iLu~ Attachment cc: Jim Johnson, Esq, wlo att. (via fax) Clients wlo att. (via fax) 700 E Hyman condo assn\worcester-enforcltr.wpd ,...... ., ,,/ 700 E. Hyman Condominium Owners' Association Clo Herb Kline Kline, Cote & Edwards, p,c. 201 W. North Street, ste, 203 Aspen, CO 81611 IDJ lb@)bTI'Wlb1IT! ml NOV 1 7 2004 l!!l B II---------m November 16, 2004 - ASPEN IPITKIN COMMUN1TY DEvELOPMENT DEPARTMENT RE: 707 E. Hyman Commercial Parking Lot Complaint Dear Herb: I am writing this letter in response to the complaint filed by the 700 E. Hyman Condominium Owner's Association, which I understand you represen~ related to' the parking situation at the Hannah-Dustin Building located at 707 E. Hyman, The COn1munity Development Staff has reviewed the complaint that the owner' of the Hannah-Dustin Building is operating a commercial parking lot on the vacant land just to the east of the of the Hannah-Dusting Building without obtaining necessary City approvals, . In researching the situation, Peter Fornell, a representative for the property owner has confirmed that they have not leased out more than the sixteen (16) off-street parking spaces required on the site in conjunction with the development of the Hannah-Dustin Building. Additionally, Mr, Fornell indicated that they do not intend to lease out more than the sixteen (16) Fequired off-street parking spaces. ' City of Aspen Land Use Code Section 26,515,020(E), Restrictions of use of off-street parking areas, includes restrictions and prohibitions 'regulating the use of required off- street parking. However, the above-referenced code section does not prohibit the leasing of off-street parking spaces to the general public. Moreover, it is cOmlnon practice throughout town including the Office and Commercial Core Zone Districts for property owners to lease out required off-street parking spaces to people that do not have busLness on the site ofthe parking spaces being leased. Given the above discussion, Staff does not feel that 707 E. Hyman A venue is in violation of zoning' at this point in that they have not leased out parking spaces that are in excess of their required off-street parking, It is Staff s opinion that leasing out parking that is in excess of the required off-street parking would constitute a commercial parking facility and would necessitate a conditional use approval in the Office Zone District. Therefore, Staff is not taking enforcement action at this time because leasing required off-street parking is not prohibited by the land use code, Staff will pay attention to the situation to ensure that the owner does not lease out more than the sixteen (16) required -off-street parking spaces. . . , . i ! . EXHIBIT B 130 SOUTI! GALENA STREET' ASPEN, COLORADO 81611-1975 , PHONE 970,920.5090 ' FAX 970,920.5439 Printed on Recyded Paper ?""" /""","". .~. j If you have any questions regarding this matter, please feel free to call me at 920-5102, Regards, James Lindt Planner City of Aspen cc: John Worcester, City Attorney Sarah Oates, Zoning Officer