HomeMy WebLinkAboutminutes.apz.19891219
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RECORD OF PROCEEDINGS
PLANNING & ZONING COMMISSION
DECEMBER 19. 1989
Chairman Welton Anderson called meeting to order at 4:30pm.
Answering roll call were Graeme Means,
Kerr, Michael Herron, Mari Peyton, Roger
Welton Anderson.
Richard Compton, Bruce
Hunt, Jasmine Tygre and
COMMISSIONER'S COMMENTS
There were none.
STAFF COMMENTS
Francis Krizmanich: Regarding zoning which came up at the last
Planning Commission meeting regarding the height--the mechanical
bench at Little Nell. I got with the Ski Company. They were
granted a height variance to put their mechanical underneath the
roof and that included the stacks which however are supposed to
have a grate over the turbine like--It is as approved.
Roger: I did not see any mechanical on their renditions on top
of those stacks. We sure have mechanical on top of those stacks.
Francis: I can show you those and that matches what got
approved. The difference is when they put those turbine up the
grate that covers them isn't on yet because they had to modi fy
them to get them to fit but they will be back up there and that
makes it totally match the drawings.
Roger: The things are noisy too. I don't remember seeing those
on the plans and I looked for that sort of thing. I did see some
stacks there and I assumed when they say all the mechanical is
going under the roof that if they utilized those stacks the
mechanical for those stacks were going to be under the roof.
That's why I am irked about the whole thing.
As far as I am concerned at this point still at this point that
is not in accordance with what was represented to us.
Francis: All I can tell you is I can show you the plans and they
show everything that is up there as shown.
Roger: I just don't like this because we were lead to believe
that all of the mechanical was going to be under the roof. And
that was the justification for--Those fans are mechanical. There
is no doubt about it that is mechanical equipment. They are a
high speed turbine. They make noise and they are supposed to be
out of the way. So I am irked.
~,.,..,
Jasmine: I will join you in the irked column.
PZM12.19.89
PUBLIC COMMENTS
There were none.
MINUTES
NOVEMBER 7. 1989
Jasmine made a motion to approve the minutes.
Roger seconded the motion with all in favor.
OBLOCK TOWNHOUSES SUBDIVISION
PUBLIC HEARING
Leslie presented notice of public hearing.
This hearing for conditional use review was
of January 2, 1990.
(attached in record)
continued to meeting
CODE AMENDMENT - SECTION 1-104(B)
PUBLIC HEARING (CONT)
Welton re-opened the public hearing.
Francis: This code provision contains 5 sections. All of those
sections talk about vesting rights and different stages of the
application process. We have had significant discussion so I
have gone into more depth on each section.
The first one is an approved building permit and that section of
the code says that the provisions of the new land use code won't
affect the validity of any project that has a lawfully issued
building permit.
The last time staff indicated that while we don't believe that in
most instances the City council would pull a building permit for
a project that is approved, we do foresee the possibility that we
could have a code amendment and something could be so
significantly out of whack with something that we are proposing
to change the code is that it could conceivably happen. And the
staff opinion is that we don't want to unnecessarily limit the
power to do that if it is necessary.
When I talked to Fred Gannett he was--he didn't mind. In his
opinion the issuing the building permit was pretty significant
expenditure and the Planning Commission discussed. To go through
the whole process and actually get a building permit in hand and
he felt that that was pretty OK, I guess. I don't have a real
great problem with it. But again I see it as a limitation that I
don't think is going to affect most applicants one way or
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another. But I do think it could have significant effect in some
case that I don't know about.
Herron: I
that this
understand
even doing
made my views known
is inappropriate.
what the reasoning
this.
at the last meeting. I just think
I am not quite sure that I
and the logic behind why we are
When we talk about how we are going to affect somebody's rights
who have gone to the point where they have gotten their building
permit in this town which is a very difficult thing to do. Then
to turn around and say that maybe something down then road is
going to come up that is going to be more important than their
expenditure of money--that really concerns me. To be honest with
you I would be very concerned about the criteria that the code
allows to go before city council and ask for relief from that. I
think that leaves it to be a lot of discretion of the City
council and City councils change and different ones come in and I
don't know how comfortably you can feel with one or another but
it certainly wouldn't make me comfortable to have a client with
a building permit to have a building permit myself and know that
city council could then change the rules. I think that is just
unfair and to quote our Mayor "Fundamentally unfair". And I have
a great deal of problem with that.
Welton: I would go a step further and that is application for
building permit.
Roger: I have a problem with the opening sentence that says no
building permit issued pursuant to this chapter shall remain in
force and effect if the use or structure authorized shall become
non-conforming. Well, that means if we pass a land use code that
makes that building non-conforming that automatically makes that
sentence operative.
Francis: Yes. and that part B that you are reading from won't
be affected by this. That is in Article 13 of the City Code. So
I use that for comparison. That is what will remain in the Code
if Item 1 in deleted. B will stay in the Code.
Richard: So as it stands now section 1-104B supercedes 13-102B?
Francis: No.
Richard: They are contradictory regulations it seems to me. So
which one--
Francis: It is not in the sense that #1 just says if you have
got an approved building permit and that is the one that we are
talking about deleting. #2 stays. Rather B. That section 1 is
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just says that if you have a building permit issued, you get to
build what you have--
Richard: I understand what they say.
Francis: You don't necessarily become non-conforming I guess is
the big difference in this.
Richard: But they are both in the Code right now?
Francis: They are.
Richard: So probably one of them ought to go.
Francis: And we are recommending #1 goes. B stays.
Herron: I think there is a third provision in the code that we
adopted that provides that if a non-conforming structure is
destroyed that you have the right to rebuilt it as long as you
didn't cause the destruction. So I think that there is a third
ambiguity and I think at the time that we adopted that we adopted
it on purpose so that somebody who had a non-conforming setback
or something like that wouldn't be penalized because we changed
the rules or dimensions or the house burned down. I know we
spent an awful lot of time nailing down that verbiage so that we
would accomplish that result.
So it seems to me that B is more at odds with everything than the
other provisions.
Francis: In thinking about it I don't see any problem with
including a recommendation for B too. Say that we find that that
is a clumsy section of the Code and that part is dealt with in
other sections too. I would be glad to carry that forward to
Council also. It is rather contradictory.
Francis: section 2 is approved development order. So you have
already go the project that is approved and it is saying that the
new land use code or new amendments to Chapter won't effect
anything that has been lawfully previously approved with the
exception that if the project expires normally then it would have
to come back through the regular process.
Again we fall back to B on the front page and to the vested
rights provision in Article 6 of the Code, we feel that this is
just a basically a redundant section that says the same thing
that that says. Once you have a final development you get a
vested right. Depleting this doesn't change that State
requirement.
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Herron: You get a vested right under the state law if you have
had a public hearing on it. I think you can get a development on
it without a public hearing.
Francis: If you have an approved development--
Herron: If it is published.
Francis: We are supposed to do an ordinance for anything.
Herron: supposed to. But by unrecorded in the state statute if
you didn't--if because of an administrative fowl up they didn't
publish that is one of the requirements of the state vesting
statutes--then you wouldn't have any vested rights. So I think
for the same reasons that I am concerned about the changing the
rules when somebody is applying for a building permit and has one
it is the same thing.
When we talked last time about the considerable expense that goes
into an application to get to a development--we are not talking
about conceptual, we are talking about final and that would
concern me. I would hate to see somebody get messed up because
somebody in the Planning Office forgot to publish. And that
certainly has happened.
Welton: I agree with Mickey.
Richard: On the first one I tend to agree with you and Mickey.
I think that on this one there is more leeway. An approved final
development order can have a long life as we have seen with the
Ritz-Carlton. And I think that this section of the Code tends to
support that kind of thing rather than making things cut and
dried on a proposed project. That is the way I read it.
Francis: Fred Gannett's best understanding is that it was mainly
intended to protect those few projects that were still hanging
out in the time that we were amending the code. Ones that
weren't yet done. This mainly speaks to those that were out
there.
section 3 differs from 1 and 2 in that it discusses both
development applications and building permit applications. It
goes further than items 1 and 2 in that it says if you have an
application in you come under the regulations that are in effect
at the time that you apply. Code amendments that happen during
the process do not affect your application.
This is one of the ones that I strongly support. This says that
if you submit the bare minimum documents required to get an
application in to the Planning Office that you are now vested for
'.;,;>,
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good for the rules that are there. I think it encourages people
when they hear of impending code changes to either submit
building permit application or development application that isn't
well thought out and that it is basically to get in the door
before the code change happens. And I think that if we delete
this section of the code that will prevent that rush to the gate
when people first hear about a code amendment and it may lead to
better projects .
Herron: I would almost have a tendency to agree with you insofar
as developmental applications. I would like to ask the people
who are here tonight what they have spent to get to the point
where they are asking for conceptual review. But I can
understand that if you chose the code during the stage where you
are seeking conceptual that the changes are not that expensive to
incorporate in your plans so long as they are not substantial
changes to zoning rights and things like that.
But a person submitting a building permit--the homeowner who goes
out and buys a lot and goes out to an architect and submits for
the requirements of a building permit, I think spends a
substantial amount of money and reliance on the Code. And it
then take s 4 or 5 months for our Building Dept to issue a
permit. If we change the rules on that I think that is grossly
unfair.
Bruce Kerr: I am even further to the right than Mickey on this
one. When we have our code and we say "These are the rules of
the game. If you are playing the game these are the rules". And
people make their decisions based on what those rules are and
they come in and before they ever get to the point of making
application they are probably spending money and time to even
make the decision whether to play in the game or not.
I just don't think it is fair to change the rules once they have
decided to play the game. We have said these are the rules, they
go in and file their application. They ought to be under those
rules that they filed under because that is what determined their
decision-making process. So I don't see any reason the eliminate
section 3 nor sections 2 or 1.
I would rather see Section 13 or whatever that was deleted than
any of these.
Welton: I am in line with Mickey in that the development
application is one thing and a building permit application is
something else altogether. The argument about how much money is
spent I think is irrelevant. I think the argument is more legal
and that is that you cannot make a building permit application
for something based on what the law miaht be. You can only base
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a building permit application on what the law is and you should
have reliance once the building permit application is made that
if it changes you based it on what the law was at the time.
Lennie Oates: What you are allowing the government authority to
do is make up the rules as you go along. If they don't like what
they see then they change it. So theoretically you are not
playing by any rules other than saying "We will approve it if we
like it. If we don't, we will change the rules to suit
ourselves".
The fact that people may be coming in in anticipation of code
changes and making applications that is no different than it is
in any other legislative situation where people react in
anticipation of proposed changes in the tax laws or anything like
that. The fact of the matter is you have to have a set of fixed
rules that people coming in can work with. You can't go in with
just something that is like trying to pin Jello to a wall where
the guy makes an application and suddenly it all changes. And it
gets bad enough right now that is the way it is in a lot of
situations. But there has got to be some degree of certainty.
Richard: Question on that. What would happen if the code became
more lenient after the application. Does the developer or the
builder have to stick to the code he applied under.
Francis:
applicant
under the
Section 5
can appeal
new rules.
talks about that. Basically it
to the Planning Director to be
says an
reviewed
And you would never expect them to appeal unless the new rule was
more lenient.
Lennie: I have never seen it happen.
discussion.
This is an Ivory Tower
sunny Vann: I understand Francis's concern. It is always
possible that an application comes in and it sparks concern over
changes that should be made in the code. So the applicant is
applying under the regulations that he believes govern
development at that time. The concern is to keep people once
they hear about code amendments from rushing in trying to perfect
their application under the old rule.
There are 2 things that come about. One the Planning Office has
to certify the application is complete and therefore meeting the
standards of the code under submission. And 2 most major
regulatory changes are almost invariably accompanied by an
administrative delay in receipt of applications.
"....
"-
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But there are very application which involve only one review
step. Most of the time and what concerns me is when you are half
way through a major PUD or a minor PUD and under a given set of
regulations money is one of the concerns but the fact that you
have spent the time to go through the process is the other, you
should be able to complete the process under those regulations.
Not simply because at some point we decide that maybe we really
don't want multi family structures in the C-I Zone district so
all the rules are off and you are back to square one.
There has to be some basis on which someone can expect to be
treated fairly once he submits the application. The people who
are normally half way through the process rely in good faith on
the regulations that were in place at the time. There was not
problem as far as they knew. They were relying on what the rules
said.
Roger: When we had the old 3 step process--conceptual,
preliminary and final--I was in favor of setting the rules at the
preliminary because between conceptual and preliminary a lot of
things can change both with application and rules. And not have
a horrible burden on a developer in that period depending upon
how close they are to the preliminary of course.
But now with our 2 step process basically conceptual and final
and I am getting more and more unhappy with that process we have
lost a lot of control of the project by that process. We almost
don't see the product that goes to city council anymore after
conceptual. The problem is from when we see it and when council
sees it there can be significant changes and that I find very
disturbing and it is mostly because we have lost that
intermediate process.
We have in effect widened the gap between the conceptual and the
final to the point that where in that wide gap do we have a place
that you can say this is the place that we should make them
comply with the new rules. Conceptual is too early and final is
too late.
Francis: That is why the state passed the vested rights bill is
to decide what place you do that. It is up to a town to decide
what a final development is. We could have said our final
development order is conceptual approval. The state gave any
community the opportunity to chose at what point in time they
wanted. So we took and wrote a vested rights section that said
"Upon the final development order we will publish and we will
vest your rights". Then we went a step further and that is how
we got to this section and said "We won't even just vest it
there, we will vest it when you submit an application".
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Herron: Obviously some thought went into what
different than what the state did. And what I am
is why we are looking to back off from that now.
reason. We are just looking--
we did that is
concerned about
We don't have a
Francis: I think we are looking to maintain the maximum amount
of flexibility for the city to react to the pressure we are
seeing right now.
Herron: I guess what concerns me is that it is so expensive to
do any of this development and money is a criteria and I think
money has to be considered especially when we have got rules and
you have got to be able to rely on the rules. As a lawyer, you
have got different laws and you have to know that when you go to
court based upon what the laws are-you are not going to get there
and find out that the legislature changed those laws on you and
your whole case is out. And it is the same thing here and people
buy property, they develop property, they go to architects, they
go to planners, they go to lawyers, they spend the money to do
what they are going to do and that is a separate issue from the
people who buy homes who aren't even covered by the vested rights
statute. Single family homes and duplexes and things like that
and they are entitled to rely on what the rules are. I think it
is just scary to think that we are going to change the rules on
them after they have gone that far in the process and that
concerns me.
Roger: And also what concerns me is that there are some people
who feel that making it extremely expensive for a developer to do
something--"Oh, don't worry. Bring him back to the drawing
boards. It is only his expense. Well that ends up falling back
on this community.
I think it is incumbent on us to have the right rules in place
and in effect make it as inexpensive as possible for a developer
to do their thing once they know what the rules are.
MOTION
Herron: I would like to make a motion that we deny this
application. I don't think we are getting any place going
further with it. We have gone through 3 or 4 sections and I
think we can make all the same arguments for the last one. And I
can make a better argument for that. So I would like to move
that we deny the--
Welton asked for further public comment.
,.,,'.......
Sunny Vann: I don't have a problem with the vested rights
process. I think that is fine. It says at a certain point in
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time your rights are vested subject to certain rules and
regulations.
I guess what bothers me the most is the number 3 where you apply
on one set of rules, you still aren't vested once you are in the
process until you complete the process under those rules and then
the vesting--if I submit an application and am allowed to
continue processing under the old regulations even though there
is a new code amendment in place, I am not vested under those old
rules until I get an approval at the final development order
stage. So I am not somehow getting vested. I am just allowed to
complete the process under the rules that were in effect. It is
really difficult to tell someone we can put an application
together that complies with the rules. And we can submit it but
there is not guarantee that the rules won't change. It is hard
enough to tell them that they may not get an approval even with
the rules that are in effect. But to tell them that "Well, half
way through the process, they may decide to change the rules".
That is extremely difficult. And I would ask you if not denying
the whole ordinance at least to give some serious consideration
to sEction 3 which gives somebody the ability to complete the
process based on the regulations in effect at the time they
commenced.
Welton then asked if there was further public comment. There was
none. and he closed the public hearing.
Bruce Kerr seconded the motion.
Graeme: I missed the first meeting on this and I am pretty
confused. But I do think that everybody which is in the
development business needs to have this reliance. It is really
important. And it has to be set at a certain point. It is a
very hard thing to pin down. And I certainly don't feel like I
could support this at the moment. It needs to be decided on at a
certain point so I would hope that maybe it could be looked at
again and it sounds like it needs work. And I couldn't support
it.
Welton: Just to expand on what Graeme said--I think there is
some disagreement on where int he process of making a development
application that some sort of reliance should in fact kick in.
And I think that is the only issue that I would--
Francis: And that goes to the 2 step vs 3 step development
review and where do--
Roger: Yes. Where do you place that.
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Welton: If we could pin down that point so that somebody doesn't
come in with a stream Margin Review or some minor development
application in order to get in under the gun. The only one that
I can think of in my recollection was the victoria Square. They
wanted to stay with their old rules when we were in the process
of changing going into new rules.
And I think that was more or less of a negotiated thing in the
process when the rules changed part way through the process that
Mari: They wanted to mix and match.
Welton: They did want to mix and match and under the PUD they
could unfortunately.
There is a
legislation
second.
motion on
as it is
the floor to leave the wording of the
currently on the books and there is a
"'"'"
Mari: At the last meeting my feeling was that in the case of
projects that require multi-stage reviews that the reliance
should be concurrent with the final development approval. And
with projects that don't require that kind of review with he
granting of a building permit and so this doesn't say that but I
am also I guess I am not in agreement with this document but I am
also not in agreement with not doing anything to put a point in.
A point should be put in somewhere.
Francis: We have points. One point is final development order
vested right. The other point is
Mari: But we are talking now about denying this entire--
Welton: Well, it is not denying the entire piece of--
Francis: Are you basically agreeing with Roger that at some
place--conceptual review, we can change the rules?
Mari: I said what I
development approval
issuance.
thought. I thought it should be at final
or building permit--not application but
All voted in favor of the motion except Mari whose vote was none
of the above.
Welton closed the public hearing on the code amendment.
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LOT 3 - HOAG SUBDIVISION
PUBLIC HEARING
Welton opened the public hearing.
Leslie: Fred did up a memo to you in response to my request
regarding the 2 primary legal issues. Prior approvals on this
lot and the road access.
Welton: Leslie, you know it is against the rules to give us
stuff during the meeting when we don't have a chance to read it.
Leslie: I am doing this per Mr. Gannett. He was supposed to be
here to talk to you about this and he is not.
Herron: I had originally excused myself from consideration of
this application that has been before us on 2 different
occasions. I felt I had a conflict of interest in connection
with one of the parties that was objecting to the application.
Evidently the attorney representing that party and the attorney
for the applicant have gotten together and decided that they
don't think I have a conflict of interest. Neither of them has a
problem with me staying on and considering voting on this. I
just want to make that statement for the record.
,-
commission then took a 5 minute to study the attorney's legal
opinion.
Fred: About a month ago I got a request from Leslie on behalf of
the Planning Dept to write a memo with respect to the
Zaluba/Barber application to focus on 2 issues. One is access
and the other is the development criteria on the 8040 Greenline.
The major issues that I wanted to focus on with you are the 8040
criteria.
Each development application is judged by its own merits against
the criteria set forth in the code. And the way the code is
drafted the applicant must demonstrate that it meets or exceeds
all the standards. If it is deficient in one area, that by
itself is enough to be grounds for disapproval or for approval
with conditions.
The problem, however, in this application is that you do carry
some baggage with you and that is prior to 8040 Greenline review
there are findings of facts that basically said in their approval
of the Verdin application in '76 or '77 that the area was
suitable for development so what that means is that in this
application it doesn't mean that this application is necessarily
by its merit it is passed.
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Jasmine: The Verdin property is below this property although it
is part of the same lot.
Fred: That is correct. But the major issue is that in the making
Marty Pickett: The Verdin building envelope was the identical
building envelope where this is proposed.
Zaluba: The exact same place.
? The difference is the Verdin house had a garage, an attached
garage.
Jasmine: Then there isn't an existing Verdin house?
Zaluba: It was never built.
Fred: In making that determination when that 8040 Greenling was
approved, your predecessors found that there were the 8040
Greenling criteria at that time had been met. In evaluating this
criteria not only do you have to judge the application on it's
own merits but particularly in areas that relate to things like
slope, avalanche issues the kind of criteria that are typically
topographical--that are especial environmental sensitive
conditions I would want you to insure that there are changed
circumstances in the event that you find that this application is
deficient.
Changed circumstances not only between '76 and today so that you
would have the ability to be able to differentiate on the record
between what your predecessors were doing and what you are doing
here.
The concept behind it is essentially that property in Colorado is
developable. Government may set reasonable standards for the
development of the property. The property is in sensitive areas
may have height and levels of development approval. The hoops
can be lengthier and more burdensome that the developer has got
to go through. But the basic premise is that you can develop
that if you can show that you have mitigated the kinds of
concerns that are raised in the 8040 Greenline criteria. And so
it is critical in making findings of facts that you show
particularly if there is a disapproval that there is a reason
that there is a disapproval is that those criteria--those 11
criteria have not been met.
,.""
Because there has been a prior approval on this I would want to
see the record contain information that shows changes in
circumstances that would warrant changed conditions. And that
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there is issues that relate to slope water shed, water quality,
air quality issues that you feel are different today than they
were then.
I would like you to, in your comments, make those part of your
comments so that the record is more complete.
The second issue is the matter of access. Again this subdivision
was approved by the city. While it has problems in terms of how
it identifies access it clearly shows that Lot 3 has got access.
We would not approve a plat without insuring that access was
there and one of the very first things I did when I got to the
City was work with Jack Barker and Brooke Peterson on an access
trail easement that the city accepted which would be further
criteria that there is access to the property.
Now I understand the Commission is also concerned that the access
that goes to Lot 3 not be expanded or that any expansion is
limited to the extent possible. Now as I understand the issue
ont hat that is a part of a civil action between Newfundland Road
and the owners of the Barker Subdivision Lot 3. In my opinion
you do not have the ability to deny access to the Newfundland
Road. But as a condition of approval you can certainly say that
the owners of Lot 3, their successors and their heirs of interest
shall not expand that interest beyond what already exists. They
cannot grant it to fourth parties beyond the Newfundland road or
to anybody to pass through on their up or around. I think that
that is clear.
I think it is also equally clear that there is access. I think
that there are germane issues as to whether you would prefer them
to use the lower access which is identified on the plat or
whether you would prefer them to use a new access route which
mitigates impacts to the adjoining land owners. I think those
are all areas that are right for discussion. But I don['t think
the issue of no access--I think it is clear that the Hoag
subdivision that we insured that Lot 3 was a developable
accessible lot. We did not do it as well as we should have. It
is clear to that too. But it is what we have to work with.
Graeme: I have 2 problems with the application and I haven't
studied the first approval. I have never seen it so I don't know
how to compare that. The nature of one of them is that it has
been represented that there is a concrete retaining wall 400 feet
long averaging 8 feet high which is sort of over a certain
threshold of what I feel is sort of environmentally sensitive for
a single family house. It might be appropriate for a highway but
my standard is it is an awful big scar in the mountain for a
single family house.
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The other problem I have is that this is in a known avalanche
area and there was a child killed in Crested Butte last winter in
an avalanche right behind his condominium. And I understand that
you can protect a house from an avalanche but I don't know as you
can protect someone walking outside the house. So I have those 2
real problems with this application.
Fred: Well the first issue is an issue that clearly you will
have to wrestle with. One of the criteria is whether or not the
proposed development--and this has nothing to do with the Verdin
application because this is where this application succeeds or
dies on its own merits. If you determine that this application
is not sensitive to the treatment of the mountain and the area
that have sought to be protected by virtue of 8040 criteria then
you certainly have the ability to deny i ton that basis and that
single criteria could be enough to deny the application.
In other words you have got to meet all eleven. That alone is
something that you and your piers could not address either in the
formation of criteria or simply by virtue of the application
itself and you could deny on that basis.
with respect to the second issue, the avalanche issue, there have
been reports prepared I believe by Chen & Associates, in response
to the prior applicant or in response to this application because
they have a sense of the area with respect to avalanche control.
And those reports ought to be given the credence of reflecting
that they are experts in the area and are going to address the
issue and unless other competent testimony tot he contrary
creates a doubt in your mind as to the validity of the report.
Graeme: I don't question the report. And I am sure that the
house can be made to withstand and avalanche. But somebody
walking outside the house, it is a whole different matter.
Fred: And if you use the Crested Butte analogy that the house
was built in a steep zone and there was a heavy snow conditions
behind it and a retaining wall and the 2 kids were back walking
in the area triggered an avalanche--one was able to be pulled out
and resuscitated and the other wasn't. And I don't think that
you can insure that any development is going to be 100% child-
proof or avalanche proof. I think that is something you mete
away.
Roger: My problem is in the area of floor area and bulk. I was
I think unfortunately party tot he 1976 approval. And my problem
here is OK that '76 approval was 2,300 or 2, 400sqft and the
interesting thing is that our method of measuring FAR has changed
significantly between 1976 and now to where there is a
significant underground benefit to our rules now. So this figure
15
PZM12.19.89
of 2,840 that they come up with is one heck of a lot larger house
even more than the 22% larger square footage wise as it shows
technically. And I think 22% is not an insignificant amount of
square footage.
So here is my problem. I really don't have too much problems
with the 1976 approval of what a 2,340sqft 1976 square foot house
would have been. But I do have a problem with how much larger
that has gotten through the benefit of different measuring
devices that we use now.
Fred: The Verdin house was in scale and you don't think this one
is.
Roger: Yes. Exactly.
Fred: That is something that you are going to have to wrestle
with. The burden is on the applicant to demonstrate to you that
they are sensitive to the environment and that is their burden.
And on that issue I don't want to tie the Verdin application here
is that the Verdin application that set a precedent of a limited
sort. That is that there has been a determination that it is a
developable lot--a developable area. And that is essentially
what you have to deal with.
What this application has got to re-demonstrate is that there are
no change in conditions that would make this area now
undevelopable. And I think that the are that you all going to
wrestle with at least your major concern is the nature of this
house. That is something that the applicant will have to
address.
Jasmine:
would it
owners of
Road only
The question of the road access--I can understand that
be possible to have as a condition that the current
Lot 3 would be able to allow access to the Newfundland
and that access could be restricted.
Fred: Typically what it is when you have an easement the
easement benefits a particular piece of property. And in this
case the easement burdens Lot 3, benefits Newfundland and it is
not by itself necessarily assignable. The owners of Lot 3 have
the right and privilege to say that you can access for your
personal use but you can't access for commercial use. wi thou t
looking at the easement itself I can't, I don't know about the
specifics. But it is not assignable to adjoining or abutting
piece of property somewhere around it. So I think what you could
do is with a condition of approval simply say that the covenant
running with the land and burdening the land that simply says "No
additional access beyond that granted to the people involved".
And whether they will agree to that is another story. That would
""-
16
PZM12.19.89
be a legitimate request on your part with respect to this 8040
criteria.
What I think would be a problematic request would be to request
them and go back and say to the Newfundlands "You don't have it
anymore. We want it back". It may create a condition of
impossibility where they may not be able to succeed to it and
that is why my advice to you is that if you wish to address that
aspect of it just try to limit future use as opposed to deny use
right now that is a matter of right.
Jasmine: I guess what I am concerned about is that I think of
lot of other people are also is what happens down the line with
the access that Newfundlands have. And of course it is not
really the responsibility of this particular applicant to
determine what Newfundland is going to do with their property.
But it seems to me that access is certainly a significant issue
in the potential development of that property and therefore it
seems to me that there should be some form of addressing that
access.
Fred: The way to do it is just simply restrict them to have what
your abilities are to restrict future accesses. I don't think
until the Newfundland--I don't know if it has been annexed into
the City or if it is in the City--but under 8040 it would come
under the County's 8040 review.
It has got development criteria of it's own that it is going to
have to meet and essentially what you are doing here and I think
it would be incumbent on the County's Commission or if it is
accessed by the City to put the kind of appropriate restrictions
on whatever that development is through that approval process.
Marty Pickett: If I could make a presentation I think I could
save us all a lot of time and get at the heart of the issue.
Welton: Go ahead.
Marty: I have a memo for everybody that outlines the issues of
the things that we have. (attached in record)
Lot 3 contains 133 - 219sqft more than 3 acres. Lot 3 is zoned
Conservation permitting this one single family attached--detached
residence. Lot 3 received 8040 approval for the Verdin residence
in 1976 and received an additional 8040 approval in November 25,
1986 which approved access on that lower road up to this
particular building site but what was left at that approval was
that it was subject still to approval of the actual house design.
17
PZM12.19.89
Then I have gone through each of the criteria for the 8040 and I
have gone through Leslie I s memo and even cindy Houben' s first
memo about how we have met each of those criteria along with the
Planning Staff and the Engineering Department's approval. And we
have mitigated we believe all of this impact.
Number 3 on page 3--the house design: I would like to point out
that we have done a total redesign of the house at Planning staff
and your recommendation. And then we have redesigned the roof
twice. Even once at the very last hearing where Leslie suggested
that we cut up the roof even more and we have some elevations to
show you.
The 2840 floor area ratio, Roger, I understand your concern about
that. And I do have some elevations that you might want to look
through that show you how that calculation was reached. I think
that is in your packet.
Herron: Leslie, in your November 14th memo on your building
design you talk about that the original building had
approximately 98ft wide facade stretching across the hillside and
that as a result of the concerns of the staff the applicant
redesigned that. Was that original design the one that was done
from the first 8040 or was that their original design that they
came in with?
Leslie: You mean the Verdin 8040? It was their original design.
And we have been dealing with Joe Zaluba.
Marty: I went through for you starting at the bottom of page 3
an analysis of all the surrounding properties. The other lots of
the Hoag Subdivision, the Gard Moses property and the Heminer
property which is all gone through City 8040 reviews within the
last 10 years showing an example of how our square footage
compares with their square footage. And the fact that our lot
which is over 3 acres. Obviously the site coverage and the
percentage of the FAR is much less on this property.
The access driveway: I don't believe we need to go into a lot of
discussion about this because we have consensus among all of the
Hoag property owners and Smuggler/Durant now that instead of
using this old motor road and switchback that would cause the
problems with the co-existence of the trail impact to those
properties and just more use on the property. We will make this
upper road buffered. It is on that natural bench which is where
Jim Gibbard originally wanted us to do the road and the Forest
Service has agreed now that we can use all of that 20ft special
use permit as we need to cut off of the Forest Service to go up
to the house.
,...".".
,--
18
PZM12.19.89
We will re--this is not in any of the conditions but the
applicant is offering to revegetate this whole switchback and get
rid of that. I want to point out to you on here that the
avalanche shoot which is in Art Mere's report is this area right
here. By having this road design we will totally eliminate
exposure to that primary shoot. And he talked about the very low
risk possibility of having an avalanche on any of this site. And
you saw that when you did the 8040 reviews on the lower home
sites. There has been avalanche danger but it is a very, very
low risk and it is throughout the mountains of Colorado.
We've prepared a retaining wall as necessary. There is no
courtyard. There are no windows in the back. We don't
anticipate going out the back of the house so we feel that that
is totally protected from avalanche. I would just point out to
you that, Graeme in your concern about someone outside the home.
Obviously that is a concern but the city that has entered into
this trail agreement where people--we are encouraging people by
signage and a trail to have people using that area. So for you
to pin that on this applicant I feel that is not being very fair
in your concern about avalanche. I think Art Meres who is a
national-international expert on avalanche has addressed that and
feels comfortable with how we have mitigated that concern.
One of the things that we would be willing to do with this upper
drive, and I must differ from the City Attorney's legal point
that you have the right to impose that condition. I believe that
the Supreme Court cases have said that you can only extract a
condition that is absolutely proportional to the impacts that we
bring to this property. And I am not sure that going beyond that
and looking at foreseeing possible other property owners using
that is a concern. But nevertheless we will commit to having a
restriction that only Smuggler Durant who are already obligated
to provide through this 1976 access agreement with them use that
and that would really be a very short part of this because their
property goes up here so they will turn off right here. We will
certainly be willing to restrict this driveway only to their use
and to no other party.
My only concern, and I talked to Leslie about this, is that
sometime in the future if there are other mining claims up here
that could go back to the Forest Service and get access through
the Forest Service property and they could somehow create a third
road and none of us want that. If we could somehow word that
condition and I have prepared some preliminary language that
would say that ind the event that happens and we are threatened
with a third road with the consent of all of those other Hoag
Subdivision property owners and Lot 3 we could at some point
allow them to use that in order to prevent that third road.
,,/
19
PZM12.19.89
Graeme: Is the driveway as you are proposing it here in the same
location that it was in the previous time?
Marty: No. It was down on the existing trail. And I think
there have been several concerns about that. One was the co-
existence of the trail and the driveway. And the other is that
on the plat it is only labeled as a utility and trail easement.
It is (coughing) labeled as an access easement. I think it was
intended that way but the property owners down here have a legal
argument that that is not allowable as an access.
Graeme: Do you have any sketches, cross sections, as you
last time of the other road? Of the new proposed road.
retaining wall on the same kind of a scale?
did the
Is the
Marty: Yes. The upper road design as it is presented to you
today is exactly the same as presented in the last 2 hearings.
And at the last meeting I think we added in a condition that we
would work with the Engineering Dept to do whatever proper mix we
need to of a boulder and a vertical tying and retaining wall as
necessary to be the least impactive and the most aesthetic.
Graeme: Am I right in my recollection that it is in the nature
of 400ft long and averaging 8ft high? If it is a vertical wall?
Zaluba: Not averaging. I think the highest point was 10. And
it goes down to like 2. We don't really have an answer. But the
highest extremity--what we were going to do is work with the
Engineering Dept and take the highest parts and make a vertical
tie and then try and blend it in so at the lower parts would be
boulder which we personally feel is more aesthetic than an
vertical tie wall. But I am willing to sit down with the
Engineering Dept and work that out. But that is not the average.
Leslie: There are some places
difference in the slope.. And there
is about 6ft difference between the
for a boulder wall. And that was
our last meeting mumble
where
are some
ram that
where we
there is really no
sections where there
you need to cut back
had talked about in
Bruce: I would be interested to know what staff's recommendation
is at this point. On the November memo we had a recommendation
to approve subject to the 8 conditions. And I would like to know
what staff's recommendation is at this point. The same 8
conditions or do we have revised conditions or what are staff's
position.
.,,,,,,,,,,.
Leslie: I would add one.
the November 14th meeting
and then we got into----
Five new conditions. If you recall at
we had discussed several new conditions
20
PZM12.19.89
Bruce: Do we have those anywhere?
Leslie: I have them written down but I don't--I didn't' include
them in this.
Marty: I think we have agreed to all of those.
Welton: In November you had a problem with condition #3--the
vertical tie in wall being the only type of wall being acceptable
going all the way up.
Amy: According to my notes we worded that condition to say
"Combined vertical tie in wall and boulder retaining wall shall
be constructed by the applicant as agreed upon between applicant
and the Engineering Dept and the Planning staff".
Herron: Is one of the new conditions either that you have
proposed that we haven't seen yet or the applicant is agreeable
to the fact that you are going to re-vegetate the road.
Zaluba: Yes.
Leslie: We discussed that at our site visit also--re-vegetating
that portion.
Marty: Could we just have those 5. I only have 4.
Leslie: The applicant shall sign the utility trail easement to
protect ___mumble___ The applicant shall re-vegetate the upper
road cut and it is not to be used as an access. The access to
the through Hoag Lot 3 shall not be expanded for access
beyond mumble The access road shall be built first to
accommodate excavation and development of the building site.
This was a concern of the buyers down on ute Ave that they didn't
use the existing road during construction. And the re-wording of
#3.
Herron: Does the staff have any problem with the language that
Marty wanted to add to the restriction on the access easement?
Lennie: I spoke to him this afternoon. Not only is he willing
to go along with that subject to that stuff relating to the 3rd
the possibility of a 3rd road where we all re-analyzed it. He is
also willing to limit without any guarantees whatsoever the
Newfundland to a one single family dwelling. He is certainly
willing to do that as a deed restriction now which would take any
doubt out of that in the future.
21
PZM12.19.89
Compton:
what kind
of visual
On the changed access to the Newfundland Road--is that
of engineering problems does that have? And what kind
impacts would that have?
Marty: Smuggler, Durant is in the County. For any development
whatsoever they will have to go through the County. Int he event
that happens and they need that additional offshoot off of Lot 3
that will have to come back to you for 8040 review.
Compton: But if it comes back that can't be done to the East of
the house and has to go back around the house through what has
been re-vegetated and use the trail easement, do we have any
protection against that?
Zaluba: On that point I think that the basic agreement between
the neighbors is that the lower existing road will not be used
for access. It will become what we have felt all along a trail
easement. Now Smuggler, Durant does not have any right to use
that road perse. They have a right to get access through Lot 3
and their access will be limited to the new road.
Marty: I think again it comes back to you for 8040 review.
Leslie: Just that portion.
Zaluba: Our language with Smuggler, Durant indicates that we
have to give them an access. I think it could be structure so
that we would specifically indicate now with Smuggler, Durant
that this was their access and the old road was not. To answer
your question. So that would preclude anything for whatever
reason somebody coming back and saying "Well, I want to go this
way". We could specifically work that and make it a conditional
approval that we would do that with Smuggler, Durant.
Roger: My problem is this Smuggler, Durant or Newfundland or
whatever the thing is called up there in the County right now has
in place an access road going right up to their property line. I
guess they could say that it is a usable access even if they
don't use it. That is my problem. Now what happens in the
future if we approve this high alignment road and there is, in
effect, no possible access to the Newfundland off of that road?
We have go a heck of a problem. Then we are going to end up
right back at the old trail and where it is right now where it
has been re-vegetated. So that is a major problem I have.
Zaluba: Smuggler, Durant has agreed to this scenario. They have
agreed to use the upper road. And to waive any--in lieu of the
other road.
,,,,,-"
22
PZM12.19.89
Roger: OK. Well that is encouraging. Now I only wish I liked
the upper road. But if the majority of the Board seems to like
that upper road I guess my vote won't make much difference.
But my major, major concern is what I see as the size of this
dwelling compared to what was originally approved. And I don't
know how we are going to come to mesh on that. Because I find
the bulk compared to what was originally as I recall what was
originally approved in '76, it is roughly 2 and 1/2 times the
building that I am seeing visually. That is my problem.
Fred: In response to that--the condition says that the house
must blend into the harmony of the mountain. So in using it
Verdin may have set a standard--may have set an example how one
structure did that. But you will have to determine if this
structure either did or didn't. And not compare it with just
what Verdin did. That may be some sort of benchmark in your mind
of the good example. But in looking at the structure the
condition that you have got to (cough) with respect to the bulk
and the density is whether or not it does blend in.
Zaluba: I feel a little bit you know in a previous discussion
about changing the rules here now. We are dealing with FAR and
we are dealing with the rules as they currently exist which shows
that it is 28 whatever feet. And I am not trying to do anything
except follow the rules. And to compare it back--and I
understand what you are saying--back to the Verdin property which
was 20--you know a couple of hundred feet less and then come back
and say--
Roger: 516.
Zaluba: And then come back and say and make me feel like a
criminal because I am following the rules of FAR which are in
force today. And we have made a lot of changes to this building.
We re-designed the whole thing. And I accepted that criticism in
August when we were here about the facade. I think it was
correct. I think that it was too long. So we made every
opportunity--made every effort to fit this into the hill. We
could reduce the square footage more by dropping it down more and
building it more into the hill so that it is less conspicuous.
But I think personally we are at a happy medium now where we have
done what the 8040 criteria indicates we have to do to get this
approved. We have built it into the hill. We have diminished
the amount of impact as much as we can and by the square footage
calculations currently in force we are at under 3,OOOsqft.
"""'.
'''>'
23
PZM12.19.89
MOTION
Bruce: Let me try a motion. Based on the recommendation of
staff I would move to approve 8040 Greenline review for Lot 3 of
the Hoag Subdivision subject tot he 8 conditions outlined in the
November 14 memo (attached in record) as amended. Also including
the conditions that have been outlined here tonight.
Welton: Marty, does that meet with the applicant's--
Marty: Yes.
Welton: Is there a second to that motion?
Herron: I will second it.
Welton: Is there any discussion on the motion?
Mari: I am concerned about the road which would long retaining
wall. And I guess I need some legal advice here. If the only
way that that property can be developed is with a road that
requires this kind of a retaining wall and that retaining wall
does not fit in with the standards of blending in with the open
mountain character, what are we saying? Are we saying that it is
not a developable lot after all? Or what?
Herron: Can I just ask a question before you answer that?
Didn't they come in using the lower road and we pushed them back
up to the upper road? So basically what we are seeing now is
that the applicant has listened to what we have told him. That
is that he couldn't use the lower road. Now he has gone up to
the upper road and we are saying no that you are not going to
approve his development after he did what we asked him to do.
Welton: Actually what we said was that trying to share an
existing road and existing trail in the same physical space with
some idea of using as a Nordic trail wasn't reasonable.
Zaluba: The whole gist of the thing in August was that we wanted
to widen the lower road. And with our neighbors we have worked
this out. They wanted the driveway up higher. And with the
Commission's direction that you gave us,we all came together and
we said "Well, let's do the upper drive". Now granted it created
a retaining wall situation. But we have concurrence with
Smuggler, Durant. We have concurrence with all of our neighbors
down below that this is the way we want to do this access. And I
thin everybody has granted that we have to have access. So if
all the neighbors agree, they are the ones that first the impact
of this retaining wall will not be seen from ute Avenue. It will
be completely covered with trees. You will see it when you come
24
PZM12.19.89
up the drive and when you use the ski trail. So there is an
impact there. I am not discounting that. But every neighbor
agrees that this is the way we want to do it.
When you talk about pure access this is concurrent with every
neighbor. This is what we want to do.
Fred: The property has access. It will have access. The
question i whether or not as a firm condition of approval you
control the quality of the access--the shaping of the access, the
visual minimizing of the impact of the access. Some of it is
unavoidable. Some of it can be mitigated to the extent that you
require mitigation I think that is the way to go. And mitigation
could be--go back to the lower road, change the structure of the
upper. But I think--I can tell you that the lot has access. It
is just a matter of structuring how you mitigate the impact
there.
Mari: So what you are saying is the burden is on the Commission
just to approve which access.
Fred: Yes.
Welton: We have amotion on the floor.
compton: Is it incumbent on the city to grant automobile type
access during the winter months? Could we grant permission to
use some alternative--either snowmobiles or some kind of mini
rail or something like that?
Leslie: I talked to the Fire Marshal and he was adamant that you
have to maintain access for emergency vehicles.
Fred:
body.
That,
might
The conditions of approval to
The question is whether they
if we were to limit approval to
have some troubles.
be placed by
will sustain
snowmobiles I
an approving
a challenge.
would say we
Compton: It is a troublesome lot. I think if they want to
in a place like that, I think they should be compromising.
not saying we should impose that one on them but--
build
I am
Fred: I think we have to understand that when we go back to
this--when the city approved the subdivision in '71, there were
certain assumptions made that it was right for development
subject to this review process. And that, of course, creates
restrictions on the aesthetics of the area.
Welton: There is a motion on the floor and a second. One more
comment--Lennie.
25
PZM12.19.89
Lennie: Regardless of what Fred says I can tell you that it is
our opinion that the lower road is not a vehicular access to this
property and never was intended to be. We believe the applicant-
-maybe not the property owner who has contracted to sell it to
Mr. Zaluba--we believe Mr. Zaluba understands this and
understands the problems he is going to have if he maintains that
position. And that is one of the reasons why he is in agreement
on the upper road.
Roger: I was not enamored originally with the upper road
concept. I am no more so now. And I am going to vote against
this motion because I feel that the bulk of the building that is
displayed here is not fitting for the mountain environment in
that area.
Welton: Is there any further discussion? All of those in favor
of the motion, please signify by saying aye.
Welton, aye, Bruce, aye and Michael, Aye.
Welton: Those against?
Jasmine, no, Roger, no.
Welton: Let's do it again. Would you call the roll.
~..",.'
Roll call vote: Graeme, no, Bruce, yes, Michael, yes, Mari, no,
Roger, no, Jasmine, no, Welton, no.
Motion fails.
Herron: What is the effect now that we have denied this
application--the liability of the City for a taking as a result
of this?
Fred: I don't believe there is a taking issue necessarily as a
consequence of this.
Marty: I have a memo on the taking issue. She passed the memo
to members of the Commission. (attached in record)
Roger: I don't look at this motion failing as a taking issue
quite honestly. As far as I am concerned if forced to, I could
live with that upper road. I don't like it but the primary
problem I have is bulk and that is apparent bulk.
Marty: The problem with that I think is that the code under the
8040 review I think you have all said this before is that you are
not an architectural board. And there are no standards. We keep
26
PZM12.19.89
coming back with this blind effort to meet what we think you may
be thinking as appropriate.
And the only standard we have right now is the Verdin residence
which was 13 years ago. And so for you to just sort of sit here
and say "We don't like it." It is too much. It won't stand up
in court because you have go to have a standard. There has got
to be some kind of criteria that an applicant can say "If we meet
that, it is acceptable". And to blindly say "We don't like it"
doesn't work.
Jasmine: Can I just say one thing about that? I think that when
we talk about fitting into the mountain environment, I think that
that is more of a burden of proof for the applicant. I think
that along with Roger, I feel that massive facades and massive
frontage do not-are not sensitive to the mountain environment.
Now you can say that that is a matter of a personal opinion. But
that is my interpretation of what that criterion is. And I think
that is very much what Roger is addressing. And I don't how much
more specific we can get about this because there is not a
specific definition in there. We have to go on our own best
judgement about what--but I really think the burden i son you
people. We have given you indications as to certain concerns
that we have had and I don't really know what else we can do. I
don't want to be unfair to you, either.
Marty: What I am saying is it is a fault in the code. It does
not have specific standards for the applicant to me. You are
experts. Your Planning Staff said "100 feet was too long". We
reduced it and they said "That's better. We approve this. We
recommend approval".
Fred: Let me back that up a little bit. In any development
application the code sets the parameters for the outside border,
whatever a development can do. In a especially sensitive areas
such as this 8040 criteria there are additional criteria that
have to be met. There is additional criteria a lot less
objective and by their very nature are more subjective than what
is contained in the bulk of the code itself.
My purpose in my memo to you was to insure that if you were to
deny the application or to approve it with conditions that the
record stands the scrutiny--of somebody sitting in an office
reading a piece of paper and tries to determine that each Board
member created a record as to why the criteria had or had not
been met. And I think that as a consequence of your disapproval
if there is a taking I am sure a consequence is going to be that
a lawsuit might be filed as to whether the City is in a position
of peril. That is not capable of being answered in staff
decisions.
27
PZM12.19.89
I think what Marty is trying to point out is is that you will
have as a part of this record the fact that the paid staff
recommended approval. And that sets certain standards with
respect tot he application to the standard. And when the
commission chooses to exercise it['s prerogative to go
differently it is important to have a record that establishes why
they have chosen to take this particular position.
Bruce: I might also just point out that by this motion failing
we have only failed to approve this specific house and this
specific development application. And I would also suggest a
follow up of what Fred has just said that those who voted against
the motion clearly state and perhaps even refer to whichever by
number which one of those conditions they feel like this
application didn't meet so that we do have a clear record that
your vote of "no" was based on.
Fred: The only other thing too is this is something that any
time a Board that has change in composition or that has
alternates that mayor may not vote, it is tough for the
applicant and for the Board to redress issues each new time.
Roger: One problem here was that this was not a motion to deny.
It was a motion to approve the details. So consequently getting
on the record of exactly why the majority--but I think it is
important that each member who voted against this proposal get on
the record exactly why he did it.
Zaluba: It is needless to say that this is so vague that we are-
-I feel like I am getting no where. We worked with Leslie. I
have spent over $50,000 doing this application and I think that
is enough, frankly. I think that we have--I understand what
Roger is saying but I think that this house works. It is logs.
It is in the trees. It is a natural type house. It is not a
geodesic dome.
Jack Barker and I have discussed this situation before. We feel
that we are getting mistreated here by no one giving us direction
and as far as we are concerned I am not speaking for Jack has a
final decision on this but as far as I am concerned I think that
we are going to go ahead and close that ski trail up there
physically until this thing is resolved.
I just can't do this any longer. Now whatever ramifications that
has on the city and what, that is fine, we are willing to accept
that. But this is--I can't handle this any more. We have done
everything possible as Leslie will attest to, to try to make this
acceptable. It is acceptable with the Planning Office and I
don't understand why it can't be acceptable to this Commission.
,.,......
,if
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I personally think it has not been studied thoroughly enough for
people to make a judgement on it correctly. And I think that you
will see that ski trail closed up there in the next couple of
weeks.
Graeme: I would just like
vote was based on the
excavation situation and I
is above the threshold.
to for the record say that my negative
grading the road, the grading and
feel that for a single family house it
Mari: My negative vote was based on 2 things--the road and the
size of the house.
Roger:
apparent
road.
Like Mari, my no vote is predicated primarily on the
bulk of the house and secondarily on the second access
Jasmine: My no vote was based primarily on the apparent bulk and
huge facade of the house.
Michael: I guess what I have trouble understanding is #1, how
you can object to the road when we directed them to go use the
use the road. That was what we did. And #2, when you say and I
think the applicant was frustrated by this, is when you turn
around and say that you are upset by the bulk of the house. But
I don't know that that is something that you can extrapolate into
what somebody can turn around and do. I think if you turn around
and you say that it is 60ft wide and it should be 30ft wide and
you say it is 24ft high and it should be 22ft high, that that
becomes meaningful so that it is a criteria or something that
somebody can follow.
But I don't see how you can expect that people are going to come
here and be able to design what you want if you don't get more
specific about it.
Jasmine: Not to belabor this but we are not in the business of
designing things for applicants. I think that we have indicated
in the past a lot of what our concerns were. And I think that
the applicant took the minimal approach to try to make cosmetic
changes in the appearance of the house which to my view were not
adequate and I don't think that there was a major effort made to
reduce the apparent bulk of the house because I think they want
the house to appear big. And that is not what we want. And I
can't imagine why they misunderstood that because I think that
was pretty clear. And I think there was a direction. And I
don't think we have to give them specific things. That is not
our job.
29
PZM12.19.89
BILLINGS AFFORDABLE HOUSING DEVELOPMENT PLAN
CONCEPTUAL REZONING
Leslie: This is the first step of 5 steps. This is a conceptual
PUD review. Currently the property is on R-6 mandatory PUD. The
applicant is requesting rezoning to RMF mandatory PUD. That is
why we are in a conceptual PUD mode right now. Also attached to
your memo is the GMQS exemption Planning Director signoff that
exempts them from competing for the 4 free market units that are
a part of this proposal. There are 4 legal units on the site so
it is treated as a replacement scenario.
Leslie then made presentation as attached in record.
Jasmine: I got really confused on some of the counts. How many
units are there there now?
Leslie: There are now currently 12 units. Only 4 of those units
are legal units. Bill Drueding was able to find building permits
for 4 of those units.
Jasmine: So there are 12 units now.
total of 11 units ultimately.
There are going to be a
Leslie: Yes. They are going to tear down everything that is
there, redevelop the property to 4 free market units and 7 deed
restricted units.
The applicants are seeking 4 variances in the dimensional
requirements which is allowed under PUD. They are seeking--
Herron:
Ordinance
that?
I thought that the city Council just changed the PUD
so that you can't seek those things. Didn't we just do
Leslie: You cannot vary the internal FAR and density. You can
vary height. They are seeking a variance in the side yard
setback. The maximum side yard is 5ft and they will go to a
minimum of 2ft. But not on the whole side yard.
The rear yard, the side yard required is 10ft and they are
seeking to minimize it to 3ft.
The height requirement in the RMF zone is 25ft. And they are
seeking a variance to increase the height to 30ft for the free
market units in front and for one of the clusters affordable
units to the rear of the property.
The required open space is 35% open to view from the street. And
although the application states that they do have well over 35%
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PZM12.19.89
of the property is open space, it is not viewed from the street
so they are seeking that to be reduced to 29%.
There are 3 primary issues that staff has identified at this
point. We are a little uncomfortable with the 30ft height.
Primarily on the 4 free market units which are right along ute
Avenue. The cluster in the rear that is seeking 30ft height
really has very little impact to surrounding property. But the
free market units along ute Ave would have more of an impact.
And there are certain constraints to the property that are
forcing the applicants to seek a 30ft height variance. I will
let Bill explain that to you.
The parking is a little tight for the affordable units and they
are also seeking a parking reduction overall. But that again is
something--parking reduction is reviewed at the steps 3 and 4 of
this 5 review process. So as far as just the traffic
circulation, pedestrian circulation on the site, I feel that it
is a little tight and I feel that the pedestrian circulation is
really limited and forces people in the affordable units right
out into this parking area instead of directly onto the road.
And then they are short in their parking spaces but again that
would be reviewed at steps 3 and 4.
'<.,.."
corrine DeVore: Our family has lived on this property for 30
years. It was built by Dean Billings who is one of the champions
of affordable housing. It was built often illegally as you can
see. Only 4 units are legal out of 12. On the other 10
residents families and individuals have all been there a minimum
of 10 years.
A year ago Dean Billings, because of health and the reasons
decided to sell the property. All of the tenants came together
to see if we couldn't try to co-op the property. That was not
successful. Nicholas and I then came up with this concept of
trying to re-create 100% affordable housing there. We did get
wonderful direction from Planning Office.
We want to let you know that we appreciate the ordinances that
are allowing our concept--the rebuilding of 100% affordable
housing to have some sort of priority scheduling.
Lipsey, architect for applicants: Using drawings showed
surrounding projects. In looking at this property for potential
development you can see that it is just off the City grid where
everything is quite rectangular and has alleys and streets
surrounding all of the blocks.
We are kind of where the grid meets the mountain and things have
to change to accommodate that. One of the things that is being
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PZM12.19.89
accommodated is an old access road that goes up onto the mountain
and for some reason when the property was bought and subdivided
over the years it ended up being an odd shaped polygon that
tapers back to a triangle.
There is a potential for some single house development right up
in here below these Alps buildings. In trying to figure out how
to plan this it seemed that the--since the free market u its are
driving the entire project making possible replacement housing.
All of the profit from the free market units is going to
basically subsidize the construction of the replacement housing.
It seemed that ute Ave was the logical place to put the free
market units.
So we put 4 free market units there. They are set back 10ft more
than the required front yard setback. 3 of the units are and
then 1 unit is partially on the front yard setback. And then 3
of the units are similar rectangular and one of them is an odd
ball just because of the nature of the shape of the site.
One of the biggest problems to solve is parking and we felt that
when you do a project like this it is best to just come in once
off of a thoroughfare and then to park in an area where we can
kind of pull all of the parking together instead of having lots
of little alleys and accesses to other divided parking areas. So
part of the planning was to put the parking in such a way that it
would serve for the access in such a place that it would serve
both the free market units and the affordable units. So parking
is kind of in the middle.
And then on the rear of the property where it starts to slope up
a little bit and taper down that was the place to put the
affordable units which have less program requirement for square
footage. There is 2 clusters. One is along the periphery here.
These are 3 story units 30ft high. The resident occupied garage
is just an enclosed parking space for the resident occupied unit
which is in the back here.
And then there is a cluster of 2 structures here that are 2
stories high in order to let some light into this courtyard that
formed between these 2 clusters and to allow some view back over
towards the other side of the valley from these structures. So
in a project like this where you have 2 completely different
types of program requirements in terms of housing it seemed that
it would make sense to look at this as a kind of self-contained
area with its own outdoor amenities and that exterior space and
we found that the existing Billings buildings are serv ed by a
water line that comes in here from the Durant mine. The city
doesn't want that water to be used for domestic use because it is
not going through any kind of treatment or anything. But we
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PZM12.19.89
would like to continue use of that water in a landscape amenity
that would trickle the water down this bank and put some
landscaping and maybe a little pool here and everything would be
a very nice feature for the residents.
Then we plan to take that water in a culvert under the parking
lot and over to an existing ditch that goes across the street
here to Glory Hole Park.
Using sketches he pointed out the encroachments that Leslie
mentioned.
Roger asked concerning the Mitchell property.
Lipsey: We received word from Chuck Videl today who is handling
the planning for the Mitchell property. He said that we could
say for him since he couldn't be here tonight that he made his
client aware of this plan and that Mr. Mitchell had absolutely no
objection to either the side or rear yard encroachments that are
on his side of the property or the height of the affordable units
that would be the ones that be the most likely to have an impact
on his property.
Jody Edwards, Attorney: I think the Mitchells aren't too
concerned about that. The property behind here is fairly steep
here but it is not so steep over here as you go around this way.
And I think their intention is if they are going to build they
are going to build over here.
Roger: OK. Now that triangular piece which you are not showing
any contour lines in--what about that triangular piece over
there. What is the potential of building in there?
Jody: I suspect the potential is none. What they do is they
plow their snow off of this road coming down and they just dump
it right there.
DeVore: Presently they plow there. They are also looking at
possibly putting their landscaped trash in that area. It is much
too small and too steep to develop.
Roger: OK. Is the road at that point fairly well above the
ground level of the footprints?
Lipsey: It is the road elevation here is about the same as the
elevation in the back of the property here. The overall
elevation change from here to here is about 12 feet and it is
fairly gradual until the last part and then it goes a little bit
more steeply.
33
PZM12.19.89
Jody: Right now there is a dirt road along back here for about
10ft and then after that it goes up steeply.
Lipsey: Probably a 45 degree bank with lots of trees on it--
Cottonwood trees and bushes.
Roger: My primary concern is the building envelope in that
triangular piece and--
Jody: Well, they have got a 10ft wide road right here.
Lipsey: It wouldn't make any sense at all for him to build a big
house on a tiny little triangle here when he has 2 sites that are
private and have much more area to build in and are much better
sites to build on.
Roger: Is that road the access to those sites?
Lipsey: No. The access to those building sites would probably
be up this road.
Jody:
road.
It comes on the other side of the Black Swan up the Alps
Leslie: I have done pre-ap with Chuck on what they want tot do
with the remaining land on the Alps and they are looking at some
kind of lot split and will do one or two more homes and it is all
off to the other side of the Alps by the Aspen Chance. I will
check into this parcel where that trail and road intercept to see
if there is any potential for development.
Welton: What is the rise between ute Ave and the parking for the
free market units.
Lipsey: I would guess that is about 4ft max.
Lipsey: When we were originally analyzing the site and planning
it we were aware there had been an intermittent history of some
surface drainage coming through this area. Extraordinary runoff
years from the mountain. So our first reaction to that was to
try to avoid any potential problems. Our preliminary
recommendation from Jay Hammond was to avoid subgrade spaces.
Now we have since changed our mind about that having learned a
lot more about the specific plans for drainage of this property
for improvement of this road and some other plans that are being
made up on the mountain to mitigate some of this extra annual
runoff.
Welton: The impression I got was that the extra height was being
34
--
PZM12.19.89
asked for was in some way to offset the fact that you couldn't
use space below grade.
Lipsey: That is correct.
Welton: And height variations in PUDs are something that I don't
feel comfortable with unless there is an awfully good reason--an
awfully short area of building to offset a little bit of area--a
building that is tall. Which is generally the PUD tradeoff. So
I am real hesitant to approve conceptually the PUD application
with a 30ft height on those free market units on the front when
in fact quite likely that extra height is being used to just make
the rooms have higher ceilings and be a bit more up market.
Lipsey: We share your concerns about height. In fact in our
preliminary conversations with the Planning Dept they too were
concerned about height when they saw our plan. We have kind of
gone back to the drawing board and could show you another scheme
that is very similar to this but that addresses the height issue
and hopefully a way that really mitigates the problem in
everybody's mind.
Another thing we did simultaneously with that decision to restudy
height was to change from 4 free market units to 3. And it just
happens to match exactly with affordable housing's ratio of 30%
to 70% whereas before it didn't.
In addition to that we came up with a split level scheme that
lowers the front half of these 2 units--the roof of the front
half and lowers the roof of this odd shaped third unit to 25ft.
And then the part that is over the garage is still at 30ft. So
of this entire footprint the only part not that is over 25ft
which is the legal height for this zone if it got rezoned RMF is
this area here on these 2 townhouses. And I thought of a couple
of things. #1, it reduces the impact mainly to the adjoining
project where it most would impact them which is on this corner.
It also reduces I think since you come down Original st and your
first glimpse of this project is as you turn left on ute. It
takes that entire portion of the structure and lowers it to the
allowable 25ft.
With this scheme it steps back as it goes down ute Ave. The
first part of it is on the 10ft setback and then it steps back
5ft and then finally it steps back a full 10ft from the required
front yard setback.
One last thing that is different about this drawing is that it
explains the roof setback again with a similar diagram to the one
before showing its impact on viewplains from the sidewalk and
cars passing by on ute Ave. And you can see that in fact you
35
PZM12.19.89
couldn't the part of these townhouses starting here and here that
is 5ft above the 25ft height is cut off by the cornice that is
25ft high in the front of it. So you wouldn't really see it from
ute Ave or from the sidewalk.
Jay Hammond: In our initial discussions about the site my
immediate reaction was a concern over drainage in that area
because we have had historically with drainage out of Spar,
problems with drainage out of some miner basins which tend to
come down the Aspen Mountain road and have the impacted the site
in the past. That was very much a part of their thought at that
point of trying to keep habital spaces above grade.
Subsequent to that and very much in response to Bill's concerns
anticipating reactions to the height situation we have looked
quite a bit more closely at what the situation is and what
improvements are on tap right now as far as improving that
situation.
Our firm is working for the City on improvements to Spar
drainage. We will divert that flow and carry runoff and storm
events away from the lower Spar area and keep them from impacting
this site. The Black Swan site which you may recall a few years
ago, they took mud into the living room of the Black Swan when
they had a flood situation coming down out of lower Spar. All of
that from the Spar side is going to be diverted east toward ute
Ave. So Spar is being dealt with through the city and through
cooperation on that improvement.
Also from a specific standpoint the 777 ute project is
constructing storm improvements adjacent to the Mountain road
that will intercept flows from the Mountain Rd, create a storm
line from the south edge of the 777 ute site over to ute Ave and
carry some of that flow away.
So we are looking at off-site opportunities both in terms of
improvements on adjacent sites and eventually improvements on
this site in terms of just being careful with grading and making
sure that we don't encourage flow to come in to the site. Now I
think we can back off on the recommendation that habitable space
be kept above grade. So I no longer am concerned with the
lowering of that building.
Welton: Are you asking for 3 free market units or 4 free market
units?
Lipsey: The 3 free market units was just a development decision
that occurred from the time that we made this drawing and
submitted it to you and put it in the pipe line until the time
that we were back considering the height things. We could have
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PZM12.19.89
had 4 units or 3 units here but it was just strictly a
development decision and looking at what is selling is what is
going to make this whole project possible. The developer made a
decision to go with 3 units instead. It is a still the same
amount of FAR. Same amount of bedrooms, same amount of parking.
Each of these townhouses has a total of 8 cars being parked here
as there was before.
Jody: The back section remains, at least on these 2--30ft.
the reason is if we ramped down into a garage here we would
to eliminate 20ft of this parking space for a ramp. And
would make the parking even more confined.
Mari: The question I have about the parking is as long as we
have the ability to vary the required parking, I feel like there
should be less parking in the free market and more parking for
the affordable because there are plenty of people who have I know
people who buy million dollar townhouses who are just vacation
homes and they don't' even keep cars because they live so close
to town when they are staying here.
And
have
that
But people who are actually living here are going to have to put
their cars somewhere.
--~'
Lipsey: Right now we have 7 units back here. We have 8 parking
spaces. We are required to have 1 parking space per bedroom
here. We are under that requirement. We have 4 bedrooms in each
uni t. We have 3 parking spaces in these 2 units. We have 2
parking spaces in this unit. A lot of that is governed by the
shape of the site and how many spaces you can provide so we are
already under probably--the code requirements at least on the
free market units--providing 1 more car than we have affordable
housing units.
Now we think that because of the location of this property,
people are going to be walking a lot to town for services and are
going to be able to walk to the mountain and ski in and ski out.
And that that justifies the reduction in the total requirements
for the free market units.
Mari: I think it justifies more of a reduction as far as the
free market goes. I think that where you take away the parking
for the free market, you should give it to the affordable
housing.
Welton:
This discussion is appropriate at the conceptual level.
Graeme: I think they have done a really good job on a funny
shaped site in terms of organizing. It is really good and clear.
I think the affordable housing compound is a really desirable
''''-
37
PZM12.19.89
great asset and I think we need to remain flexible and keep this
thing moving.
On the parking maybe you could look into, because people probably
aren't using their cars as frequently, stack parking I would
think would be acceptable. Perhaps you could get some long term
lease on that Mitchell piece of triangle of land that is not
really too useful for him. Then I would agree with MarL I
would personally be willing to reduce in order to get a little
more parking area I would be willing to reduce the free market
parking down to perhaps 2 per unit. Then another approach to
parking, maybe you cant put habital space down there if you could
put parking down there--just have 1 ramp but I kind of feel that
the economics of that would be pretty tough.
Roger: The present garage is under the free market units at
parking lot grade? What you might consider is lowering that
garage grade slightly--you might be able to get it down 2 to 4
feet or something like that down into a garage.
Lipsey: The problem is that we are right at the engineering
minimum here for turning in to the affordable housing parking
spaces. The right radius and the right back up. And likewise it
works in the opposite direction for the free market units. And
if we put a ramp anywhere in this area you could see that you
can't turn on a ramp and fit into a parking space.
Roger: Maybe the whole parking space could be sloped down
slightly.
Welton: There is a condition here on #16, the applicant shall
continue to work with the design of the building to lower
exceeded height. Jasmine made a point and I tend to agree with
it that we are getting too detailed at this stage.
This second site plan that you showed us I think is great. It
has the higher mass away from public rights of way and still
provides more front yard setback and fewer units and I think it
is great.
MOTION
Jasmine: I would like to make a motion that we recommend to
Council conceptual PUD approval of plan #2 with the 3 free market
units based on the conditions mentioned in the Planning Office
memorandum. (attached in record)
Roger seconded the motion.
i-"";>
38
PZM12.19.89
Welton asked the applicant if they had any problems with the
conditions.
DeVore: #4,
Lipsey: #4 is suggesting that the road be 20ft wide here for
access of safety equipment. Right now we have 12ft of pavement.
They would like it increased by 4ft on our side and 4ft on or
just 4 more--I mean on 777.
DeVore:
of their
777 ute.
They have agreed to do that. That has already been part
requirements. So there will be an extra 4ft given from
Lipsey: Which would make a 16ft wide road curb to curb if there
are curbs. Our feeling and concern about that--
,...,
DeVore: Having lived there first of all with the road without
the extra 4ft from 777 ute it seems to have been adequate for
emergency vehicles. We had a fire there a number of years ago
and the fire engines were easily able to get there. We have huge
dump trucks for rubbish, etc. Our main concern first of all is
losing that 4ft. we really can't afford to do this. Our whole
project is down to the line.
-
Welton: The condition was for an easement, not necessarily for
the pavement at this time.
If the motion could include also recommendation that 1 car be
removed from each of the free market units so that you can reduce
the bulk of the free market units to a point where it is not
hugging that property line so tightly so that for the next 5, 10
or more years as long as it is practical in that present
configuration, the City has the easement but you have the use of
that as green buffer space and that portion of the building isn't
just hugging the side of the road as tightly as it is shown on
the site plan.
DeVore: That helps. This road is a terror in the summer. All
of the motorcycles and jeeps and whatnot--it is very frightening
for my children. We have built a fence there to keep them from
that road. They come tearing up around that corner and all of us
do not want to encourage traffic on that road. And we think that
widening the road itself it would encourage that traffic.
Welton: It will be a better project if you do have a little more
space even if that easement is never used.
Graeme:
say "We
It is an easement then the city sooner or later might
want it". So I think maybe it could be handled
39
PZM12.19.89
'''"'' .
differently in that you take a 4ft strip there and not give an
easement but put some kind of condition in the PUD saying that
they could not build anything there or put any rocks there or
anything that would impede a vehicle. They could put a lawn
there and landscape it. Maybe that would be a way around it. I
am talking about not giving the city the easement. You agree
that--and it is still your land but you agree that you won't put
anything in there that would impede the movement of a vehicle.
Leslie: Are you still talking about moving the building 3ft then
you would have a 4ft--
Roger: That access road is basically for Aspen Mountain and the
Ajax isn't it?
?: The Aspen Alps.
Mari: That is also the Aspen Mountain Road, isn't it?
Roger: Yes. That is the Aspen Mountain Road.
vehicular traffic to the Alps?
Is there much
-
?: I think in the winter snow removal seems to be quite an issue
for them and they come screaming down off the hill to get their
Alps guest up which is quite steep and so they come crashing down
and pack all of the snow in against the fence there in that
triangle of the property.
Welton: Are there any other problems you have with the
conditions.?
Jody: #15--it says "Present tenants shall be given first option
for occupancy of the AHUS.
DeVore: Some of the tenants who have been there for as long as
28 years made arrangements to move. Then we came along at the
very last minute so 3 or 4 occupants did move and the people that
replaced them were told that their residency there was temporary
that they had short term. And we would like that not to ge
present tense. It should be displaced tenants.
Lipsey: Then one more clarification. The units shall be leased
a minimum of 6 consecutive months. We are not sure which units
that is referring to. Is that the free market unit or the
affordable units or--
Leslie: It is the affordable units and it should also say that
mumble____ and when you get into condominiumized situation
for either of the units there is a 6 month---
40
PZM12.19.89
Lipsey: While we are on these conditions at the same time that
we changed some of the height things we did make some adjustments
to the parking which we too felt was too constrained originally.
We increased the width of the space as we took out pedestrian
access from the center here and put it off to the side here.
Jasmine: I am sorry, I have to leave. And that is not relative
to what we are talking about.
Mari: Call the question.
Welton: What about the reduction in parking.
Jasmine: I mentioned that.
Jody: I understand them to be with the condition as we have now
amended them.
Jasmine: Yes.
"
Jody: And with the #2 drawing.
parking--
But I didn't understand the
-~
Lipsey: If parking is something that is to be considered later
I would suggest we just drop it.
Jasmine: No. The part about the parking and this may not
necessarily be a condition but I think we should go on the record
now as saying the majority of the members on the Commission favor
a reduction in the parking requirement for the free market units
to possibly reduce the size of the building on the west side so
that you get further away from the road and/or to increase the
amount of parking available to the affordable housing units and/
or the height. And that is advisory.
All voted in favor of the motion.
Meeting was adjourned. Time was 7:1
erk
,-,
41