HomeMy WebLinkAboutminutes.apz.19921215
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RECORD OF PROCEEDINGS
PLANNING , ZONING COMMISSION
DECEMBER 15. 1992
Chairlady Jasmine Tygre called meeting to order at 4:30 pm.
Answering roll call were Tim Mooney, David Brown, Sara Garton,
Bruce Kerr, Roger Hunt and Jasmine Tygre. Richard Compton was
excused.
ZALUBA NON-COMPLIANCE
SHOW CAUSE HEARING
Jasmine: This hearing was continued at the applicant's request
from November 17th.
Leslie made a background presentation and reviewed all conditions
set forth in meeting of November 17, 1992. (attached in record)
Since September 1st staff has been working with Marti Pickett, Mr.
Zaluba's representative. And we have had several meetings with Mr.
Zaluba both in this room and on site. And we have been trying to
keep the P&Z updated.
At this point in time staff finds that the following conditions of
the Finding and Orders Resolution have not been complied with.
Revegetation, the road cut, removal of all spoils from the banks,
the new road cut, the stabilization of the road and proper drainage
mitigation has been attempted and has been completed partially.
Recommendations by Chen Northern regarding stabilization. It is
our opinion that because the road has been partially stabilized
that those recommendations have been partially adhered to, however
we have no confirmation that that Chen Northern has confirmed that
the road stabilization protects the surrounding properties.
Architectural drawings and plans for the tie-in and boulder
retaining wall shall be submitted for approval by the City Engineer
by September 1st. We received plans in our offices on August 27
and we found that not to be satisfactory. Rob Thomson proceeded
to write a letter to Mr. Zaluba indicating more was needed for
plans. Since the applicant has proposed a substantial amendment
to those plans staff has been reviewing those plans. Zoning
commission has not had a chance to look at those plans.
Revegetation of the road cut was to be done by July 1st 1993. And
instead of posting a "Danger. No Trespassing" sign there has been
a chain put across that new access road.
And to this date
financial security
complied with.
staff has not seen any commitment towards
whatsoever in writing and so #8 has not been
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Therefore staff recommends revocation of the 8040 Greenline
approval.
Martha Pickett, attorney for applicant: This has been a mix of
separating the personalities of the owners from their lots after
my involvement hearings included April 4, of 1989, August 8, 1989,
November 14, 1989, December 19, 1989, January 2, 1990 when the
approval was finally granted.
You have been frustrated with this process by all the times that
we were in here and all of the hearings that have been required by
this approval. And that was not necessarily caused by the
applicant nor by his development. This lot was a City approved
subdivided lot as of 1971. And part of the reason we kept coming
back to hearings were because the planner was changed and because
there were continual requests from Board members for us to revise
the plans.
The major one of which was the new access easement or access
alignment to the house. Jack Barker, the previous owner of this
lot, had already approved--for the approval of the lower driveway
which this Board in 1989 did not like because it was in too much
conjunction with the ski trail. So as part of that Mr Zaluba and
Collins went to great expense to re-create a new alignment which
we finally did. But my point is all of those hearings were not
because Mr. Zaluba and Mr. Collins were delinquent in any way or
uncooperative in any way. And we would affirm that they were in
fact very co-operative and accommodating in that entire process.
Most importantly in that approval
there were time requirements.
driveway be constructed prior to
that was granted January 2nd 1990
In fact it required that the
construction of the house.
The building permit was not issued until September of 1990--well
past the building season. During that time the driveway had been
constructed as required under the conditions of approval that it
be constructed prior to any beginning of the house. At that point
when the driveway was not complete and it was too late to begin
construction of the house the driveway was not completed to final
grade either. At that point there was a complaint that September
from Mrs. Susan Rappaport stating that she was concerned that that
driveway was not completed and that there could be some drainage
problems for her property which is also a very steep. The back of
her property is very steep and that is where the landscaping that
she has installed was, from her point of view, perhaps in jeopardy.
At that time Jed and I had several telephone conversations and
correspondence. And Mr. Zaluba and Collins directed their experts,
Chen Northern and High Country Engineering, to not only visit the
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site with Mrs. Rappaport and I believe John Kelly was at that
meeting. And Joe Zaluba too to tell them what needed to be done
to make corrections or final grading to the driveway to correct any
potential problems.
Then it was everyone's understanding that everything had been done
that was necessary for winter stabilization through the 1990-91
winter season. The next correspondence interestingly enough which
apparently lead to this process was from Mrs. Rappaport dated
August 8, 1991.
If you would look in your packet you will see that that was in
response a July 31, 1991 letter from Chen Northern. When you read
that letter it sounds almost as if he is talking about the Hoag
Driveway because of what needs to be done on final grading etc.
But when you look at it carefully the job number references the
Rappaport's property. Chen Northern was retained on behalf of the
Rappaports to review what needed to be done on their property for
grading purposes.
As a final courtesy notice in that letter he said "Oh by the way,
one of the things you need to realize is that the ski trail above
your house has not been completely graded to final grade and when
that is done you will need to insure on our grading on your
property how that needs to tie in".
At that point you can see that that gave rise to looking at, for
some reason, the driveway. That was not Mrs. Rappaport's letter
that was not reference to the Chen report of July 31, 1992. But
in any event that was the triggering mechanism that once again
brought this before you.
There are letters in your packet from Chen Northern. I keep
referring to Exhibit A. It 1S correspondence from all the
applicant's representing over the past since November 9, 1990 when
I wrote my first letter to Jed in response to his first letter
which was in response to the Rappaport's letter.
Then the July 21st letter from Chen Northern to Joe Zaluba he is
quoted that there was no seepage and no indication of massive
mumble cut. The whole amount of rock and gravel from the cut
face had come to rest on the driveway surface. We understand that
the driveway excavation is temporary mainly for construction
access. And the road will be finally graded by additional down
cutting during the residence construction.
This sequence should be acceptable and the applicable
recommendation presented in our previous report should be observed
when completing the driveway grading. I will note for you in here
that there was a July 10, 1992 letter from Chen Northern, noting
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that the temporary grading for the driveway appears to be
performing as expected and there were no indications about the de-
stabilization. Also "No indication of seepage were observed".
Those slopes along the downhill side of the drive appear stable and
no indication of accelerated erosion".
He again wrote the letter on July 21, 1992. We have a letter
September 15th from High Country Engineering with regard to
temporary stabilization that it was not necessary. We have a
letter from Chen Northern again dated September 15th stating that
"The driveway alignment is identical to that described in our July
21st letter of 1992. Additional excavation has been made by
cutting down and into the hillside". The driveway ? has
noticeable ? into the hillside to contain surface runnoff
along the uphill side. And there was no indication that massive
slope instability ___?___' Hydromulching the uphill excavation is
not warranted at this time as the cut is temporary and will be
flattened ___mumble___
October 16, 1992--letter from Chen Northern regarding the retaining
wall details by High Country Engineers. They state that this plan
is in accordance with their recommendation for driveway grading
their report dated June 25, 1989.
November 13, 1992: A letter from Chen Northern to ?
regarding their review of design drawings by High countr~They
suggest that field inspection should be made when the wall area is
cut through up grade and after the wall has been set and back
filled.
The reason I wanted to reiterate is that throughout this process
I am referred many, many times from staff and from various members
we have had no co-operation from the applicant. We have made the
progress and from my perspective in having meetings with the staff
and working on site with the applicant and city Staff members it
is my understanding that there has been a great deal of progress
and a great deal of diligence go into this by the applicant. And
I feel like they are not getting any credit for that whatsoever.
Notice to show cause hearing--the first one after Mrs. Rappaport's
letter occurred July 21st listing the reasons we have read into the
record today. At that point it was pointed out that our position
was that once again there were no time periods or restraints put
into the original conditions. Mr. Zaluba was at that hearing and
he expressed his concern that he had not been able to complete and
follow through the development as originally contemplated. The
original contract that he had in the summer of 1990 with the
building permit was not issued at a timely fashion. And was not
able to meet the __?__ of that contract was terminated. And, yes,
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he ran into financial difficulty. That has been no secret. It has
been? That has been no secret.
Mr. Collins who is a practicing dentist in Chicago, Illinois who
is co-owner, 50% of this property, who is not a developer by trade.
He has been referring many times to these applicants as big time
developers and having to "pull them out of--help them--go into
partnership with them". Whatever those comments have been from
your side of the table on that I believe have been somewhat
misconstrued. His apparent effort to get financial security, once
again, that was not in the original approval. It came up at the
July 21st hearing and he agreed to try and secure was first
required by you as being a performance bond. He presented in a
timely fashion his application for a performance bond. But in that
process realized that that 20-some page document was not intended
for a private single-family developer if you want to call him that.
So we then tried to get a letter of credit. He was not able to
secure that. Over last few weeks--days--since December 3rd when
we have had a contract on this property by a Doctor Jeff and Lonnie
Rush of California who have in excess of 2 million dollars have yet
been able to present us with a letter of credit. It is very close,
and Rick is here to represent them and help explain that.
My point is that getting a letter of credit is not as easy as
calling your bank. Tim and I have been on the phone constantly
since early this morning with the bank. They say "Yes it is here
and it is signed". And we couldn't get it in our hands. We have
a performer that Jed has that shows what is forthcoming from that
bank hopefully in the next day or so. But that what began is not
to be taken lightly when the requirement for financial security was
placed late in the game.
One of the things that has been coming up during this process is
criticism of the applicant for amending their application. I would
like to point out that during this process the City has also
amended, supplemented, added, revised its conditions as well. And
we have stuck to that and tried to work with them. So it has not
been a one-sided kind of transaction here we don't believe. One
of the reasons the new plan for the wall has not even arisen is
that we have been in direct negotiations with the next door
property owners who will share the driveway and expense of the road
pursuant a share of the cost agreement. That has been recorded.
The original proposal by Mr. Zaluba in 1989 contemplated a very
complex, very high-end boulder wall. Once the excavation for that
driveway was completed it was discovered that that was probably
over-kill that there could be a lower, less impactive visually wall
that would allow flow rather than being directly perpendicular to
the driveway.
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If there was a shorter wall this could be sloped back and you could
take that vegetation when you cut out underneath it the older
vegetation takes over and re-grow so that you protect existing
vegetation and it certainly be a more visually pleasing result.
That was the primary reason. Not because--and yes it was less
expensive. But for the first wall to come in at $300,000 as you
can imagine was exorbitant. This wall comes in at $40,000. It is
more reasonable. We would hope that we wouldn't be penalized for
that. We are still waiting to show you those plans because we
haven't gotten to that point yet. Every hearing has been focused
on Mr. Zaluba "not being in compliance--he won't co-operate".
The other things that have come up were one of the items of
compliance was that rock that has sluffed over off of the driveway
and excavating should be removed. Mr. Zaluba agreed to that. When
he was on site his engineer said "You shouldn't do it that way.
There is an easier, better, more successful result. And that is
to sod it and put hydromulch there". He could not get approval
from the City in time to get that done pursuant to the restrictions
of time set out in your earlier meetings. He risked being in non-
compliance with that to come back to get approval. Rob Thomson
had originally said, yes, he thought it was fine. Later said
"Wait, I think the P&Z needs to approve that". So we did. And at
this point our proposal is to do that. Although I think even the
latest proposal said we should pick up the rock, and sod and
hydromulch to provide the most success to that re-vegetation.
Also since it is to be done now in the Spring rather than the Fall
there is a greater chance of it's success. So the Engineering Dept
has said that they would request only a one financial security for
that rather than two.
One of the things I have pointed out in my memo is that after the
September 22nd hearing--and once again I would like to point out
that these hearings that we have had on this non-compliance issue
which began with the hearing as of July 21, 1992 the second hearing
was scheduled for September 22nd which was an update. Staff
requested that there be a fully organized outline of work to be
performed. And staff recommended Commission schedule an October
20th date to review the latest plans. At that point the very next
day, September 23rd, Mr. Zaluba, Randy Weedum, and I met with
Leslie and Ron and the next day following that, September 24, Rob
called me with a very specific list of what should be done. I
wrote them down verbatim, wrote him a letter to confirm, faxed it
out to my clients, to all of their experts to say "Get to work on
this immediately". And on September 29th, five days later, I
received a letter from Ron and Leslie saying "Oh, by the way we
have to change it".
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And that is the kind of thing that I think has been an evolving
process here. And I am not criticizing that because I have said
that before--we are willing to work with the city. But when we are
willing to do that, we would like co-operation in reverse.
Whenever we have left meetings with the staff we have been under
the impression that we are meeting their concerns. And that they
could come to the Board and recommend approval of our proposals.
And yet what would continually get first priorities is a focus on
compliance and an opportunity to revoke the 8040 Review approvals.
One of the issues that I felt was of concern in my paragraph V
revegetation mumble . That was one example that certainly
never had a time restraint on it and in fact the intent from the
very beginning was that reviews the soil for excavation of the
house to revegetate so that there would not be some 15 truckloads
of dirt coming through town. Now somehow we are once again in
conflict with that original intent. I think at this point the
staff has even agreed that that was acceptable and that the new
requirement has been placed that that be done by July 31, 1993.
I reiterate that Bruce Kerr's comment that he felt like he was
getting mixed messages from the staff. I would express that same
concern that we felt like we were working with them and we were
addressing their concerns and we were coming up with timely
answers. Yet they were not the exact time frames that were
originally set out by the Board. But in my letter to Jed as soon
as I read the resolution proposed for the Board to sign, talked
about the fact that we felt like some of those time frames were too
optimistic. They were done in the hearing there was a lot of
pressure on Mr. Zaluba __noise at the mike__ and even in one of
those memos she said she understood that and she would like to work
with us on the time frame. So Leslie and Rob have been very co-
operative in all of this process in working with the applicant.
What I am asking from you at this point is to seriously consider
the consequence of revoking the 8040 Greenline approval. That it
will certainly decrease the value of the property. A letter of
credit on this approval in the first place so you can bet that it
will decrease the value of the property. This time what we have
at risk is the bonified contract on this property and in an amount
which I am not really prepared to disclose because it is not
typically a public __?__ until closing. And it is scheduled to
close February 24th. An agreement by the purchaser is that they
will provide an irrevocable letter of credit to the City in the
amount of $80,000. We had hoped that would be in our hands today.
Rick Head can speak to that. But it will be here forthcoming.
Hopefully tomorrow.
And the agreement between the Rushes and the applicant would be
that if for some reason that closing does not occur on February 24
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and the applicant's have not been able to substitute that letter
of credit with one of exactly the same nature and exactly the same
amount that at that point the applicants would concede that the
approvals should be revoked and they would waive their rights to
a hearing at that point.
So our position tonight is that you are not going to lose anything
by at least accepting this proposal. If you revoke the approval
there is some risk of an appeal. We think we have some pretty good
record as to how we have followed through with this and that some
of the items of non-compliance are created post approval time and
were not of the original approval. And the biggest problem is we
don't have any mechanism to complete the road and the re-vegetation
and the conditions that you want us to complete it.
Lastly that the $8,000 some dollars of the planning fees that have
been incurred would not be repaid. Or at least you would have to
think repayment from these applicants. If they can't sell this
property we will not have the cash to pay it. At this point I
think that concludes my presentation.
Leslie: In their packet their first point is, in Marti's
memorandum, she talked about an August 8th letter in 1991 from the
Rappaports. And subsequent letter to the city to inquire the
status of the ski trail she claims ultimately lead to a show cause
hearing. In your packet there is a September 3, 1991 letter from
Jed to Marti saying "you will recall that we had some
correspondence last Fall concerning drainage runnoff problems. Mr.
Zaluba did undertake some temporary measures regarding the road
last year. It now appears we are headed right back to the same
situation that caused concern in the first place. Apparently Mr.
Zaluba has not followed through on the Engineering grade
recommendations provided him by Chen Northern. will you please
review this with your client. He must put the access road in in
an acceptable and safe condition particularly in regard to the
drainage problems. If you have particular questions concerning the
matter please feel free to contact Jim Gibbard in Engineering."
And we had a September 23rd, 1992 letter from the Building Dept
informing Mr. Zaluba that his building permit application had
expired. "The plan check for a permit application had an
expiration date of 180 days after submission. The expiration date
for this permit was 9/7/90. The extension granted by Gary Lyman,
Chief Building Official, expired 4/18/91. The permit has been
voided and the plans will be destroyed if we do not hear from you
by 10/10/91. Thank you for your attention to this matter."
Then I have a computer message from Rob to Jed dated February 3,
1992 referencing your October 3, 1990 letter to Martha Pickett and
her reply letter of November 9, 1990. "It appears that Zaluba has
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not instituted temporary measures for controlling runnoff. I have
received a call from the property owner of Lot #5 of Rappaport.
At this time it is not a serious condition but she is worried about
the landscaping prOblem".
And then I have another computer generated dated March 5th back and
forth from Jed and Rob and it is basically saying the same thing.
What do we do? I said let's review the file. Rob and I will
inspect the site and let Jed know what we find Friday afternoon
March 9, 1992. Rob and I did a site inspection on Friday. No work
appears to have been done under the auspices of the excavation/
foundation permit that was issued the end of 1990.
"Jed, it also appears that no work has been done on the road.
However everything is covered in snow. As a question about the
8040 Greenline approval whether the approval expires due to the
issuance of permits without following the condition of approval."
So those things were happening the end of '91 and '92. So it
wasn't a letter on August 8th, 1992 that we jumped to our non-
compliance hearing on July 21st.
Rob: And then Jed wrote a letter on March 18, 1992. It goes into
previous efforts.
Leslie: And I would just like to add about the problem with the
letter of credit that I did get a call from Rick Head the day
before Thanksgiving. And Rick was telling me that the Rushes were
getting together a letter of credit. I said "Fine but we need to
review this letter of credit and I don't want to see it at 4:30
Tuesday, December 15th". And we have not obviously received
anything because nothing has happened.
Bruce: This first action what we are doing is just determining
compliance or non-compliance. And once we have made a
determination of that then we decide whether we are going to revoke
or reach some kind of settlement or whatever we do. Correct, Jed?
Jed: That is correct with just one clarification. The reason we
are here is set forth in the notice to show cause which is on page
92 in the packet submitted by the Planning staff.
It is to determine whether or not the applicant has complied with
the terms of the 8040 Greenline approval as amended. It is not
just the original terms of the 8040 Greenline. The notice is very
clear that the 4 specific rounds that are alleged as non-compliance
relate to the July 21, 1992 finding and orders set forth by the P&Z
at that time. Those are the things you should be focusing on.
And as far as yes it is a 2 step process, if after you make a
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determination, on whether or not there has been compliance or non-
compliance with the 8040 then your next move is to what if anything
you should do about it.
Bruce: I would then ask the applicant's counsel--are you alleging
that your client is in compliance or are you willing to admit that
his is not in compliance and then want us to proceed accordingly.
Do you have a position on that.
Pickett: From the very first hearing in July 21, 1992 there was
certainly some of those conditions that he agreed he was not in
compliance with. The one that was most obvious was that some of
the rocks from the excavation from the driveway has spilled over
and needed to be removed. As far as the others on re-vegetation,
completion of the wall, he admitted that those were not completed.
But he was very clear in saying that there was no time restriction
requirement submitted that it had to be.
In co-operating with the staff and Board that he would put some
time restriction on his ? and that he would agree to do the
financial security. That has~een the troublesome area because as
that has progressed he has gotten varying recommendations from
different experts. He has had to negotiate with the next door
neighbor who has to agree to the plans that he can put in. And the
financial security item became a difficult one. Technically he met
the requirement because he indeed supplied an application for a
bond in the time in which he was required. But it was clear that
that was an ? bond because he was ?
So I would have more difficulty saying that we would agree that we
were not in compliance with all of those things only because he
felt like he was working continuously with staff to come up with
a feasible schedule and financial security mechanism. If you will
recall we had an agreement for the performance bond and security
deed of trust which we thought would be recommended by staff.
Understandably that was rejected and now we have a real letter of
credit from people with real money.
Bruce: So do you believe your,client is in compliance. What I am
trying to do is if our initial step here is to make a determination
of facts whether he is or is not in compliance--if you are willing
to agree that he is not in compliance we can deal with this phase
of the hearing and get it over with and then figure out what we are
going to do.
Pickett: He was not in compliance with the
be no spoils over the mumble number
--- ---
approval.
condition that there
8 of the original
Bruce: But as Jed pointed out we are talking about more than just
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the original approval. We are talking about the whole package at
this point including the conditions that he agreed to in July of
this year.
pickett: That's right. And he is not in compliance with those as
they were set forth at that meeting.
Bruce: I am prepared to make a motion.
Jed: Before we do that I would, just so the record is real clear,
perhaps the chairman would like to ask them if they have concluded
the presentation of all the information that they wish to present
before the Board to make the determination on the issue on
compliance or non-compliance.
pickett: Yes.
Jasmine: The question has been answered.
I will then close the public hearing.
MOTION
Bruce: Based on the evidence presented at today' shearing,
December 15, 1992, I move that we make a finding that the applicant
in this case, Joseph S. Zaluba, applicant, is in non-compliance
with the conditions of his 8040 Greenline approval originally
granted January 2nd, 1990 and subsequently amended in July 21, 1992
finding that he is in non-compliance.
Sara seconded the motion.
Bruce: If there is no change in the conditions it would be the
conditions #1 through #4 that are listed in the notice to show
cause (attached in record) which is dated November 4, 1992. I
don't think any of those have been done. That is Exhibit "F" in
the packet and conditions #1 through #4.
Bruce then read into the record these conditions.
record) All to be included in the motion.
I amend my motion in include all of the conditions #1 through #4
as not having been met by Joseph S. Zaluba.
(attached in
Sara amended her second.
Roger: The question I have is #1 because they have done some work
along that line. Is the work they have done so far in effect not
support of finding #1.
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Jasmine I don't understand your question and am not sure what you
are getting at.
Roger: They have removed spoils for example.
Jasmine: You think that some of these have been partially done.
Roger: Yes.
Jasmine: But they have not been done.
Roger: Possibly not completed but acknowledge that there is
possible partial compliance insofar as some of the work they have
done so far.
Jed: It is up to each individual member to determine based upon
the evidence that has been presented today and at the last hearing
on this on the 10th. And also the matter of the packet whether or
not there are sufficient facts to support a finding that there was
a failure to revegetate the road cut and remove all the spoils from
the bank of the new road cut by September 1st, 1992.
The applicant has made a concession on the lead part of that
allegation. But it is up to the individual P&Z members to make in
their own mind a factual determination whether or not that
occurred. If you want to vote issue by issue on that you can do
that.
David: My recollection is that they did submit plans by September
1 of '92 to the Engineer. They weren't necessarily approved but
they were submitted by September 1. Plans for the retaining wall.
That's condition #2. Failure to submit architectural plans. So
according to the city Engineer item #2 was complied with. It
doesn't say "approved". It just says "submit plans". So that was
complied with.
As Roger mentioned there has been some removal of spoils in item
#1.
Thomson: I would say there has been no removal of spoils and no
re-vegetation.
David: So #1 is not in compliance. #2 is in compliance. #3 is
obviously no bond. But there is also no date for compliance.
There is no deadline on that.
Jasmine: Except that it was a condition of the July 21st--that
these be done.
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Pickett: Actually as I recall the order was that we had to apply
for a performance bond by a certain date which we did.
Jasmine: According to the minutes of the July 21st meeting the
Commission found that the applicant was not in compliance with
Resolution #4 of 1990 in regards to conditions #3, #4, #8 and #10.
That was the finding of the Commission at that time based on that
resolution.
However, the recommendation was that revocation not take place at
that time conditioned on the fact of the posting of the bond and
other conditions. But the bond goes back to the July 21st hearing.
This is December. They were already not in compliance at that
time. But instead of revoking at that time the Commission decided
to try to work with the applicant in terms of allowing them to come
up with this bond. That has not been adhered to.
I think that probably it would be better to proceed with--if the
members of the commission do not agree with the 4 factual findings
that were mentioned specifically in Bruce's motion, why don't you
say so at this point. otherwise we will take a vote.
Bruce: If I may be allowed I would like to withdraw my original
motion and re-state a new motion.
Sara agreed.
MOTION
Bruce: I would like to make a motion that we find that the
applicant is not in complete compliance with the requirements of
the original 8040 Greenline approval and the subsequent amended
approval and conditions from the July 21, 1992 amendment including
specifically but not limited to Conditions #1, #3 and #4 itemized
in the Notice To Show Cause dated November 4, 1992. Also described
as "Exhibit F" in our memorandum. (all attached in record)
Roger seconded this motion.
Roll call vote:
Tim, yes, David, yes, Sara, yes, Bruce, yes, Roger, yes, Jasmine,
yes.
MOTION
David: I move that we listen to whatever presentation they might
have towards new terms or variations on this.
Roger: In other words amending 8040 Greenline.
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Roger seconded the motion.
Tim: I don't know in my own mind whether this is the shortest
means to the solution that the City really deserves. I really feel
like maybe the shortest distance that we should consider is to
revoke the 8040 Review, get a new applicant for a new 8040
Greenline Review, a new owner of the property. And basically start
from scratch. I don't see how perpetuating Mr. Zaluba's position
to reconstruct all of the requirements, proposed bonds and
virtually just not do the work but do everything he can do to not
do the work. And then all of a sudden change players and have what
Zaluba is not willing to do fall on the shoulders of somebody else
before they can go in and build their house.
I think that I would prefer to deal with Mr. Zaluba first before
we hear what any other new party is proposing to do. I would like
to clear up with Mr. Zaluba all of our past business and the fact
that he is not in compliance and has not done the work and is not,
as it appears, capable of doing the work.
If he can go out and sell the property and provide us with a new
applicant--someone who wants to build their house, wants to put the
road in their way. They come before us with plans for an 8040
Greenline. That is the shortest distance for us to get what the
City really needs. I think right now the way it stands the entire
neighborhood is devalued because of what Zaluba has not done. And
I just think that there is no mechanism that Zaluba is going to be
in compliance with it. I am sorry that I don't think that Rick
Head has a position here. I think this is a Zaluba hearing and we
should deal with Zaluba.
Sara: I want to remind everyone in the room why there is an 8040
Greenline Review. And then why it is hopefully eventually granted
because it is a piece of property that is very fragile. It is a
very hazardous development. Any kind of application fees,
hearings, all of that are in City Code. Mr. Zaluba was not singled
out above any other applicant that comes in for an 8040 Greenline
Review.
Yes, it was granted subdivision status by the City. It is a lot.
But it is a lot with conditions. And that is that it is submitted
for 8040. Those compliances are very important to the community
and the wellbeing and the health of the community. I take issue
with applicant's counsel that we have a problem with Mr. Zaluba's
personality and that it is a personality issue. It has nothing to
do with his co-operation. It has to do with his erosion of good
faith and of a contract. The contract was the granting of an 8040
approval. And I feel that whenever you take a permit or apply for
14
PZM12.15.92
any kind of a permit with the Building Department that you have
already agreed to a time frame.
Because this is a hearing, because you are here and you have more
proposals, it is difficult on Tim and Marti because this is going
into partnership again that we hate to do. Why do we need to go
into partnership with a developer beyond the original contract?
Once the original contract has been violated why in good faith
should we negotiate another contract? I am going to vote against
this motion to have more hearings, more proposals.
David: I think looking back through some of the documents before
us and the schedules of what has gone on before that we are looking
to help remediate any incomplete construction process in a timely
fashion. To help remediate what is a fragile and dangerous
potentially runnoff situation. Not just for the community at large
but specifically for the immediate neighbors.
We could be looking at a year to a year and a half if we revoke the
8040 Greenline before the situation is remediated before the work
is even started. And then another few months to complete.
From what I heard in the applicant's presentation is that if we
consider and hear a new application where a new set of conditions
that come the closing date of February 24, 1993 which is 2 months
out, they would waive the rights to any hearing and submit to the
immediate revocation of the 8040 Greenline at that time.
If a new owner comes in, if we listen to their proposal, if we
approve that proposal, I could see a way that this whole situation
is remediated by mid summer of 1993. For those reasons I think we
should consider the new proposal.
Roger: Basically in order for me to make a determination of
whether to revoke or not is not strangling the applicant at this
point as far as allowing them to bring a proposal to a solution
with us. I want to hear their proposal.
Bruce: In the minutes of November 17 reflect I have already made
what I think about this matter pretty clear. But one of the things
I did say in that meeting, Roger had made a proposal that there be
an absolute, drop-dead date. If it is not done by that date,
nobody asks any questions, it is automatically revoked. There was
sort of a hint that that may be what is included in this proposal.
So in spite of everything I have said in previous meetings about
being ready to pull the plug I would like to afford the applicant
the opportunity to at least make that presentation.
I would hope that it is a very short presentation because I was
supposed to be at the Snowmass Club at 5:30 to sing, Marti with the
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PZM12.15.92
Aspen/Snowmass Dickens Carollers. And I am not there because I am
here at this hearing.
Jasmine: One of the problems that I have with hearing the proposal
is that it involves another applicant. Marti alluded to in her
testimony was the original 8040 Greenline approval was granted to
Mr. Barker. Mr. Zaluba then bought the property from Mr. Barker.
When you have different owners absorbing the previous 8040
Greenline Reviews, you have more problems. The new owner, if in
fact this contract ever goes through, may not be at all pleased
with the compromise that was made on Mr. Zaluba's behalf or any
conditions that were made on Mr. Zaluba's behalf.
We do not know whether the sale is even going to go through. So
in other words what we are trying to do is work out something that
is going to be binding on somebody who is not even here. And I
find that really disturbing. I don't think we have the right to
do that. I think we have to deal with this particular application
and the particular owner who is before us as the owner of record.
And I feel very uncomfortable about other proceedings.
Roll call vote:
Tim, yes, David, yes, Sara, no, Bruce, yes, Roger, yes, Jasmine,
no.
commission then took a 5 minute recess.
Tim McFlynn, Attorney for Zaluba: (using board) The proposal is
essentially and I want to start with Tim's question about a drop
dead provision in this. The whole idea here is that if any of
this doesn't happen it is like a slow or a delayed revocation.
Revocation occurs upon the failure of these things to occur so that
because we believe that the closing will occur and the Rushes will
perform the work, we believe the city will get the work
accomplished by mid-summer, a date agreed to by the Planning Office
and City Engineering. Whereas if the plug is pulled tonight and
there is no deal on the Rush purchase we don't think the property
will be marketable and therefore who knows when if ever the work
will get done and it certainly won't be done in a way that is
guaranteed by the letter of credit.
So irrevocable letter of credit for $80,000 to the City of Aspen
from Dr. Rush. He is not a developer. He is a physician in
LaJoya. And this is a residence for him that he is building. By
Friday of this week. The original in Aspen approved by your city
Attorney. That is first.
$80,000 is the number of dollars that was calculated by Leslie as
sufficient to do the work, have a 30% fudge factor and __?__ the
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PZM12.15.92
$8,000 plus in Planning fees which will be $10,000 tonight.
#2. If there is no closing by Dr. Rush on the purchase by the date
in the contract--our expectation is that it is going to close--
but if it doesn't close and there is no substitute $80,000 letter
of credit approved by your city Attorney from Zaluba et'al, some
other source, then the 8040 Approval automatically expires and the
applicant waives his rights to any other hearings.
#3. That the approval that the plans for the wall which is the
revised wall that he has worked out with the City Engineer.
#4. Is a retaining wall, removal of spoils, revegetation, etc.
Everything in the 8040 approval as amended July of 1992 with all
those conditions has to be completed by July 31, 1993 or the City
can use the $80,000 letter of credit.
What that gives us is the Spring run off and a little bit of time
basically 2 months to do all the work.
#5. For the benefit of the neighbors represented by John Kelly.
If there is any need, any complaints, any need for emergency
remediation due to the Spring runnoff or otherwise, that that will
be performed or without waiting until July 31, you can draw on the
$80,000 to get it done.
Pickett: The only thing I would add is that the letter of credit
had to have an expiration date by the bank and I suggested that
September 15, 1993 which would give the city plenty of time in the
event work is not completed by this date, the City would have until
September 15 to draw on that letter of credit.
McFlynn: And we actually literally starting at 9:00, 8:00
California time dealt with Imperial Bank in California to get this
letter of credit physically here tonight. Our delay was Dr. Rush
had signed what he thought he had to sign. He then was on a golf
course. We literally couldn't reach him in California. And so
that is why we can't show it to you tonight.
The whole idea here is that it is automatic. There are drop-dead
dates and that rather than having nothing but a plug pulled on a
problem that no one will remedy, you have got some security.
Bruce: The last time we visited the subject there was also the
matter of fees that were not paid to date to the Planning Office.
McFlynn: That is included in there and what that means is that if
the applicant or the new owner doesn't pay them in full, you have
$80,000 which is the cost of the work plus a 30% contingency plus
the $8,000 plus in Planning fees.
17
PZM12.15.92
David: I am curious to know if staff has any comments about how
it might affect the review process if we accept this vs if we don't
accept it.
My first review of this is it would be the quickest way and the
safest way toward remediation especially if under #5 where there
is emergency remedial work needed before or after and if there is
not a letter of credit within 3 days from today the whole thing is
mute anyway.
Leslie: My first comment is that staff has not reviewed any
document. I don't know what we should do about it but I don't want
to be reviewing a document at 4: 30 on December 15th. If the
Commission were to approve this, then go forward and the Rushes buy
the property and they want to build a home, they have the ability
to amend the original 8040 Greenline approval.
There are certain things that can be done that would be
insubstantial amendments that staff would make sure they are in
compliance with the original 8040. Anything that was different
than the original conditions of approval would come back to P&Z for
review. Or another 8040 if you chose not to accept this. If you
accept this and the property is not sold by February 24 and Mr.
Zaluba and Mr. Collins don't come up with a letter of credit
everything is off. That includes Planning Dept fees, the 8040,
there is no 8040 that goes with the property. You still have a
previously subdivided lot and the future purchaser of that property
would go through 8040 approval again by the P&Z.
Tim: How long do you think it would take to get a new 8040? Let's
say that there were circumstances that were different when the
original Zaluba 8040 was granted and that the building permit
process has different circumstances in the city. What is the
estimate now what the circumstances are and how quickly if the
Rushes purchase the property and we deal with their 8040 Greenline
Review process, how long will it take for that?
Leslie: Before I accepted an application I would require pre-
application conference. And I would point out that there is a new
road that has been cut. I would refer to the applicant to go with
a building envelope off of that new road. From what I remember
from what took so long in the Joe Zaluba 8040 approval was we
deducted a lot with that trail and it's easements and we want to
protect that. You have a new road that is cut in there. To me
that was one of the major issues with the original 8040. I would
foresee one P&Z meeting with the new applicant. That is before we
start to schedule probably give or take 2 weeks. That is not for
the building plans.
18
PZM12.15.92
Tim: That is substantially different than a year and a half or
even--
Roger: But that doesn't solve any problem in 4 to 6 weeks.
Tim: It might get someone who will solve the problem because
have a new house and a new 8040 Greenline Review at stake.
they have the money. They are well funded and they are
position to realize what they have at risk.
Bruce: I am concerned about #2 up there. I think there are so
many things that can happen or cannot happen with how we deal with
that. The 24th of February is Ash Wednesday. I don't know if that
is a legal holiday or not. You know how closings are. All it
takes is one document not being there for the day to get put off
to the next day. So I would suggest that we create some kind of
language that gives you a few days beyond what your scheduled
closing date is to deal not only with delayed closing but also give
Mr. Zaluba/Collin the opportunity--although if they can't pull it
off in 6 months I doubt if they can pull it off in 6 days to come
up with the $80,000 in some other format.
they
And
in a
I just think #2 needs some work.
pickett: We have addressed that. We said if they don't purchase
on that date that everything would expire on that date. Our
agreement with the Rushes is that if they see they are not going
to close or if they don't close as of that date they have to give
Zaluba/Collin written notice that they will have 45 days during
which they can substitute their letter of credit. What I am saying
is so long as the Rushes letter of credit is in your hands with you
in good stead then until they revoke it unless it has been
substituted by Zaluba/Collin at that point we understand the
approvals will go away.
Bruce: Yes, but see this whole thing bothers me a little bit. We
are supposedly going to have in here a revokable letter of credit
from a party who is not the actual owner of this property by this
Friday.
Pickett: Right.
Bruce: What is to keep us from going ahead and drawing on that
right now?
Pickett: The letter of credit says that you can't draw
letter of credit until after they close in February.
practicality you wouldn't want to draw on it until next
because there is no work to be done.
on the
Now in
Spring
19
PZM12.15.92
Bruce: What happens to the letter of credit on February 24th if
they don't close?
McFlynn: If they don't close in effect because the letter of
credit if they don't close and if it is not replaced disappears.
You automatically have pulled the 8040 approval and this buyer who
is buying subject to the existing 8040 approval disappears and
there is no 8040 approval we are back to where--
Bruce: So what we are really getting is a contingent irrevocable
letter of credit.
McFlynn: Yes. The idea is that the contract purchaser will today
from Imperial Bank or by Friday give the City a letter of credit.
And if they close you have got $80,000 if these things don't happen
by mid summer.
If they don't close the 8040 instead of being pulled tonight is
pulled the day after they don't close--the 25th. So I don't think
we need any slack time or days because the purchaser knows when
you talk about wiring funds and all the things that can go wrong
in a closing the purchaser knows that a valuable element of the
bundle of rights in that property that they are buying will
disappear if there isn't a closing by a date certain. And that the
City will, by operation of this agreement, have a lot without an
8040 approval. And then we will be into the scenario that Mr.
Mooney has proposed a time or two which is "Let's wait and see when
the next purchaser comes along and applies for 8040 approval". And
I don't know when that will be but I can tell you there is one
right now who is willing to abide by these dates.
Bruce: How do we get the payment from Mr. Zaluba of the $8,000 in
the fees assuming there is not a closing on the 24th?
McFlynn: The same way I suppose everyone in the room needs to get
payment from Mr. Zaluba.
Bruce: But there is no guarantee that we are going to be paid the
$8,000 outside of the letter of credit?
McFlynn: That is one of the things that I suggested was just like
getting the remedial work done was the letter because at least
because we believe this transaction will close it gets the City the
$8,000 for all of Leslie's time.
pickett: Actually what will happen is that the City will be paid
that at closing out of the __?__ proceeds. And then hopefully
there would be a partial release of that letter of credit. As work
is done that letter of credit can be decreased accordingly to how
much has been completed.
20
PZM12.15.92
Bruce: And what mechanism is there in this proposed settlement to
make that happen on the day of closing.
McFlyn: In the agreement we would document that so that the City
just like a lender or anyone else, the city from the proceeds of
closing would get the Planning Office bills paid.
Bruce: When we get to a point where we accept this proposal that
all of the representations that are being made verbally and
hopefully they will be picked up on the tape will be included as
part of the record of the terms of settlement should we reach some
kind of settlement.
(FYI--I took a picture of the agreements on the white board)
McFlynn: Right. And we would document that with Jed.
David: One thing I am concerned about is item #5. If for some
reason there is a small landslide or avalanche or something next
week, the letter of credit is in place on the 18th and the 21st
there is a small avalanche or failure of the existing roadway and
the city immediately needs to act on that letter of credit, what
provisions are there for that to be drawn on before the 24th?
McFlynn: The letter of credit comes in to you in effect--
David: after the 24th--
McFlynn: until they close. When it closes--
David: So if they don't close--it just revokes on the 24th and the
lot is up for sale.
Tim: I am wondering about #3. We have been in constant movement
on what the wall really is. When the original 8040 was approved
there was a wall. And Zaluba realized that he could build less of
a wall with less landscaping, collect less spoils if he changed the
wall and amended the landscaping. He amended collecting the
spoils. So without a wall or without a wall tonight that we know
what we are talking about--
McFlynn: We have one that has been reviewed by the engineers.
Rob: That's where we were the last meeting when Les came and had
agreed on all the conditions. So it would be an amended wall, not
the original wall.
McFlynn: This wall that the architect and the engineer have all
reviewed over the weeks and the sand wall that has been costed out
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PZM12.15.92
to give a comfort level that $80,000 is enough to build a wall,
have a 30% contingency and pay the $8,000 because we had to have
a specific wall to cost it out and that has been done.
Leslie: The point should be made that the thousand is contingent
upon P&Z approving the amended wall plan.
Pickett: The other point we need to make on the $80,000--Stan
Sheffron who represents the owner next door who had signed the
access and cost share agreement with Zaluba/collins can speak to
the fact that they are required to pay half of whatever is done.
He is delighted that the city may be in a position to pay for the
entire road but he is here to tell you that he is obligated to pay
half of that.
Bruce: I have a question regarding condition #1. I think that
needs to be structured in such a way that staff and specifically
the City Attorney has an opportunity to review the letter of
credit, determine the credit worthiness and the reality of this
financial institution. You know this City has taken letters of
credit in the past and they were on banks that hardly even existed
or were in Caymen Islands or who knows where. And I am not sure
that Jed has time to have condition #1 complied with by Friday and
that is assuming that you got everything to him on Friday, I don't
know that staff can get it approved by Friday in a form acceptable
to them.
McFlynn: What I wrote up there was approved by the City and the
original letter of credit we are saying will be in your hands by
Friday. What that requires is that faxes and other information go
back and forth so that the original can be overnited out of
California on Thursday. I don't know what sort of due diligence
the City Attorney will do. I am familiar with this bank since I
lived 20 years in California. Imperial bank is a huge bank based
in California and whatever is needed by the City we will jump
through hoops to do. If there is any date up here that might be
made a day or 2 longer to allow the City to have all of this
comfort level, that is fine with us. If not by Friday we want it
to be as soon as Jed feels that it is an adequate letter of credit.
Bruce: What I am getting at is the conditions need to be either
conditions that you comply with but not necessarily that we comply
with. Or the other way around that it is a fully completed
condition that you have complied with and the city has done
whatever they need to do.
We don't want a position where you guys come in in 2 months and say
"We did our part but the city didn't do their part". Because we
will be back again having another hearing and I don't want that.
22
PZM12.15.92
Roger: I would suggest because #1 was one of my major points here
because I don't quite understand the inability to get the faxes
when I get faxes I don't want that you can't get a letter of credit
up here in fax form that you could at least see was in process.
Not that that means anything but it would lend credence to this
whole thing.
McFlynn: There is one here that came by fax. It hasn't been
signed by the bank. It is specifically the letter of credit from
this bank on this transaction in this amount in favor of this City
for this purpose tonight.
Roger: Number 2 is OK I don't have a problem with you getting the
original letter of credit to the city Attorney by the 18th. But
we must set a date that the City Attorney can either approve or
disapprove by a date certain. And when that occurs is approval,
fine, then we can go on or his disapproval then we start taking the
8040 approval automatically expires at that point.
McFlynn: That's fine.
Roger: And you waive the rights to are-hearing.
McFlynn: That's fine. What we are going to do is right here--
right there we are going to say essentially this. That we are
going to do those 2 things if we don't have it to the city--I don't
know how much time you need, Jed, whether you need a couple of days
or--
Jed: I don't understand that one because that letter of credit
seems to be not only contingent on the closing. But there is also
this last sentence in the first paragraph says "There also has to
be an agreement between Dr. Rush and the City". And I don't
understand that last sentence.
Pickett: That might be referencing the agreement that we have
signed to him on Friday between the Rushes and Zaluba. That if we
couldn't substitute it we would agree to have it waived. And I
think that is what they are referencing.
Jed: Again, I don't understand.
McFlynn:
whatever
one or a
of these
Why don't we give you a period of time to have one
it looks like that you approve. Whether it is the first
revision that you insist on by a date certain where all
things happen.
Why don't we say that we will have in your hands one that you will
take faxes of and you will have the original by Friday and then by
some period of time you will have in your hands the original that
23
PZM12.15.92
you approve of all of the terms. Or 8040 will automatically expire
and waive rights to a hearing.
Jed: If the Commission feels that this is an acceptable way to
proceed I will make time to do this as quickly as possible.
Date of 12.31.92 was decided upon.
Bruce: The problem is if Jed at that time says this letter is no
good--
McFlynn: If we haven't worked it out by then then the 8040
expires.
Bruce: And that is what you are agreeing to?
McFlynn: We are agreeing to that. Either this Dr. Rush's letter
of credit is going to be good enough for Jed or it is not.
Roger: OK. Going down to #3 you have stated there "Approval of
the plans for the wall" which infers that what we do tonight on
this would be approving those plans which we haven't had time to
look at. They may be perfectly good but I have a problem with
that. Do we have to have another hearing for an 8040 amendment to
this process to get those plans approved?
Leslie: The plans that are being proposed are completely different
than the original 8040 Greenline approval.
Sara: They haven't come in with anything.
McFlynn: What is the status of the review by the City Engineer of
these items?
What I am trying to point out is that an architect prepares the
plans and the City Engineer feels they meet the requirements of the
stabilization of that road cut. And so what I think Randy could
speak to you maybe just for a minute or two--
Jasmine: No!
There were other "No" answers here.
Jasmine: We are not going down that path tonight.
McFlynn: Maybe you want to put on here "Approval of plans for a
wall by a date" And then that way in the ordinary course of
business with the City Engineer and the detail of the plan and the
surfaces that their design to be aggregate and the like Commission
can determine whether aesthetically as well as technically they are
24
PZM12.15.92
adequate but not by tonight.
You have to approve the plans whether it is Dr. Rush, Zaluba or
anyone else.
Tim: There were plans that were approved in the original 8040
Greenline. Why don't we take those and accept them?
Leslie: It was for a boulder/tie-in
submitted is a substantial change.
wall.
wall and the plan that was
It is not a bOUlder/tie-in
Roger: I suggest somehow or another we--apparently that has been
submitted but hasn't been through the P&Z approval process. This
would be an amendment to the 8040 so I would suggest re-writing
that amendment with regard to the wall. I assume we will look at
this in January.
Leslie: The $80,000 is tied to these plans. If you don't approve
these plans then the $80,000 __mumble___
McFlynn: The other thing that I would say is just prior to your
last hearing literally over that preceding weekend Leslie, Rob and
Jed and Marti and I came up with an attempted solution. I think
the staff felt that this plan met the requirements of the situation
up there. So what we are probably talking about from the P&Z
decides whether or not to amend the 8040 to allow a different wall
is more aesthetics than engineering.
Part of that was the result of when they graded the road
determining that a lesser wall would retain that area than what
people had projected what they needed before they graded the road.
Roger: That is probably all true but we are having to deal with
getting this amendment approval. And what sort of time frame we
put on here within what that should be accomplished for the
protection of the city and how should that be worded. I want it
done before the closing date because if we don't approve the wall,
then Rush might not want to go through the purchase.
Let's say "Must receive P&Z amendment approval by the 9th of
February.
The other thing I want to address is that if they don't get a
letter of credit satisfactory to the city Attorney then who do we
go after for the fees that the city is incurred already.
David: You lien the property.
25
PZM12.15.92
MOTION
Sara: I move to revoke the 8040 Greenline Review on the Lot #3
Hoag Subdivision.
Tim seconded the motion.
Roll call vote:
Tim, yes, David, no, Sara, yes, Bruce--"with regret, no", Roger,
no, Jasmine, yes.
Motion failed.
MOTION
David: I move that we accept the proposal as outlined on the white
board with all conditions made verbally or in writing that are
adjunct to that proposal and in that all conditions on the white
board are enforced such that if none of those provisions are met
or anyone of those provisions are not met the 8040 Greenline is
revoked immediately.
Roger seconded the motion.
Roll call vote:
Jed: I suggest that you would move to revoke but that the
revocation would be stayed that compliance with all of those
conditions so there is no question that it has already been
revoked. That it is just the implementation of the revocation is
stayed until all those things are met or if all those things are
met.
David: Motion so amended.
Roger: My second is amended.
Rob: I have a problem on item #4. I think that we said that all
the remedial work should be done by July first and that the upper
road cut should be stabilized by the 31st. And that would allow
time to pull a permit and use the spoils from excavation to be
carried up to that upper road cut.
McFlynn: May I make the white board consistent with this new date
which is July 1. And then we will say "Except for the upper road
cut which is July 31."
Jed: You move to revoke the 8040 Greenline and that the
implementation of that revocation be stayed on the condition that
26
PZM12.15.92
all five of those conditions except as set forth on the wall be
complied with by the time specified thereon. So if there is a
failure on any of those automatically there is no further hearing.
The 8040 is done.
David: That will be my motion.
Roger: I agree on the second.
Roll call vote:
Tim, yes, David, yes, Sara, no, Bruce, yes, Roger, yes, Jasmine,
no.
Motion carried.
Bruce made a motion to adjourn.
Roger seconded the motion with all in favor.
Time was 7:20pm.
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