HomeMy WebLinkAboutcoa.lu.ca.214 E Bleeker St.0050-05
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City of Aspen Community Development Dept.
CASE NUMBER
0050.2005.ASLU
PARCEL ID NUMBER 2737-07-3-48-001
PROJECT ADDRESS 214 E BLEEKER ST
PLANNER
CHRIS
BENDON
CASE DESCRIPTION APPEAL OF DIRECTOR'S DECISION
REPRESENTATIVE mUE ANN WOODS 923-9485
DATE OF FINAL ACTION 11/7/2005
CLOSED BY Denise Driscoll
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X-Sender: chrisb@sam
X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.0.58
Date: Mon, 22 Aug 2005 12:03:49 -0600
To: <lmo@okglaw.com>
From: Chris Bendan <chrisb@ci.aspen.co.us>
Subject: Re: Brumder Appeal of Planning Director
Interpretation-Historic Lot Split
Cc: johnw@ci.aspen.co.us, chrisb@ci.aspen.co.us
Lenny: I am in receipt of your email withdrawing your appeal request. I'll enter this into the record tonight. I'll close the
case and have Denise prepare the final billing. Chris.
At 11: 12 AM 8/22/2005 , you wrote:
Chris-After careful consideration, The Brumder Family Trust has concluded
that it wishes to withdraw it appeal scheduled before City Council for this
evening. Please consider this letter to constitute the withdrawra!. While we
feel that under rules of statutory construction our position has merit, the
trustee does not want to bear the expense or put the City to the expense of
having the appeal denied and then litigating the matter where likely the
first meaningful ear would be the Court of Appeals. We would, however
strongly urge that corrective amendments be made to the Historic Lot Split
ordinance to clear up the ambiguities and and uniformly apply defined terms
in a clear manner. Please confirm reciept of and consent to our withdrawral.
L.Oates, attorney for the Brumder Family Trust.
Cheers.
Chris Bendon, AICP
Community Development Director
City of Aspen
429.2765
chrisb@ci.aspen.co.us
www.aspenpitkin.com
Long Range Planning Information: http:'fwww.aspenpitki.Hsom/deDts/41/pjanJongrange.cfm
file://C:\DOCUME-l \CHRISB-l.ASP\LOCALS-l \Temp\eud44.htm
8/22/2005
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130 S. Galena St.
Aspen CO 81611
.(970) 920-5090
(970) 910-5439 FAX
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lllty IIIIBmey's llIIllle
TO:
Mayor and Members of Council
FROM:
John P. Worcester
DATE:
July 25, 2005
RE:
Appeal of Code Interpretation
On your agenda for tonight's meeting is an appeal from a Code Interpretation authored by the
Community Development Director. This memo is to clarify your role as the "decision-making
body hearing the appeal."
Section 26.316.030 of the Aspen Land Use Code sets forth the applicable standard ofreview that
Council should follow in this matter and the actions available to Council following the hearing
on the appeal.
Section 26.3l6.030(E) reads as follows:
Standard ofreview. Unless otherwise specifically stated in this title, the decision-making
body authorized to hear the appeal [City Council] shall decide the appeal based solely
upon the record established by the body from which the appeal is taken [Community
Development Director]. A decision or determination shall not be reversed or modified
unless there is a finding that there was a denial of due process, or the administrative body
has exceeded its jurisdiction or abused its discretion.
The Land Use Code does not define the terms: "a denial of due process", "exceeded its
jurisdiction," or "abused its discretion." Court cases, however, have helped define these terms as
follows and may be used by Council in its deliberation of the appeal:
A denial of due process may be found if some procedural irregularity is determined to have
occurred that affected a significant right ofthe appellant, or the administrative body otherwise
acted in violation of the appellant's constitutional or statutory rights. Ad Hoc Executive
Committee of Medical Staff of Memorial Hospital v Runyan, 716 P. 2d 465 (Colo. 1986.)
A decision may be considered to be an abuse of discretion if the "decision of the administrative
body is so devoid of evidentiary support that it can only be explained as an arbitrary and
,
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capricious exercise of authority." Ross v Fire and Police Pension Ass 'n.. 713 P.2d 1304 (Colo.
1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959).
A decision may be considered to be in excess ofiurisdiction if the decision being appealed from
"is grounded in a misconstruction or misapplication ofthe law," City of Colorado Springs v
Givan, 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not within the
authority of the administrative body to make. City of Colorado Springs v Secure Care Self
Storage, Inc.. 10 P.3d 1244 (Colo. 2000).
Section 26.316.030(F) reads as follows:
Action bv the decision-making bodv hearing the appeal. The decision-making body
hearing the appeal may reverse, affirm, or modify the decision or determination appealed
from, and, ifthe decision is modified, shall be deemed to have all the powers of the
officer, board or commission from whom the appeal is taken, including the power to
impose reasonable conditions to be complied with by the appellant. The decision shall be
approved by resolution. All appeals shall be public meetings.
cc: Community Development Director
City Manager
JPW- saved: 7/21J2005-486-G:~ohn\word\memos\appeals.doc
/..........
MEMORANDUM
TO:
Mayor Helen Klanderud and Aspen City Council
THRU:
John Worcester, City Attorney
FROM:
Chris Bendon, Community Development Director ~W)
Appeal of Land Use Code Interpretation - Historic Lot Split Floor Area
Public Hearing
Resolution No. _' Series of2005.
0~~V\0lJ to %ow
RE:
DATE:
July 25,2005
SUMMARY:
One of the jobs assigned to the Community Development Director is to provide
interpretations of the text of the City's Land Use Code. This is a formal process in which an
applicant requests a written interpretation and, if they don't agree with the interpretation,
affords the applicant the right to appeal the decision to the City Council.
There are three criteria upon which the City Council has to decide an appeal of a code
interpretation. Based solely upon the record established by the original decision, the City
Council shall consider whether 1) there was a denial of due process; 2) the administrative
body exceeded its jurisdiction; or, 3) the administrative body abused its discretion. The
City's code states that the decision or determination made by the administrative office shall
. not be reversed or modified unless there is a positive finding on one of these criteria.
The interpretation rendered by the Community Development Director addresses the manner
in which Floor Area shall be allocated between lots created through a Historic Lot Split. The
Historic Lot Split provision of the Land Use Code is a preservation incentive the City
introduced in 1995 and amended in 2002. The Applicant contends that the Director exceeded
his jurisdiction and abused his discretion in rendering the interpretation.
Staff believes that the interpretation was rendered appropriately and that the Director's
authority was not exceeded and no abuse of discretion occurred.
The attached Resolution finds that the Director either exceeded his jurisdiction or abused his
authority. If the Resolution is adopted, the interpretation will be effectively reversed. If
Council chooses to uphold the interpretation, the Resolution should be not adopted. Staff
recommends the Council not adopt Resolution No. _' Series of 2005.
BACKGROUND:
The applicant is the Bmmder Family Trust, represented by Julie Ann Woods, President, Elk
Mountains Planning Group. The Brumder property is a historically designated property
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located in the West End of Aspen and was the subject of a Historic Lot Split approved by the
City Council, pursuant to Ordinance No. 29, Series of 1998.
The Historic Lot Split provision of the City's Land Use Code was adopted in 1995 as a
preservation tool. There have been dozens of historic landmarks preserved through this tool
and staff considers the provision a successful preservation incentive. In the Brumder's zone
district - R6 - two homes may be developed on one lot by divvying the duplex FAR. The
incentive permits parcels to be subdivided without having to "compete" for new development
allotments in the City's Growth Management process and without having to provide
mitigation of the impacts of such growth - primarily affordable housing mitigation. The
process requires specification of which lot is being allocated which FAR in order to facilitate
the analysis (e.g. is this good or bad if this vacant parcel gets x FAR and the historic
residence FAR is limited to y FAR?). The provision permits fee simple ownership of the
land under each structure, rather than a condominium ownership arrangement, and this seems
to be a preferred situation in the real estate industry.
The Brumder Lot Split created two lots - a 6,000 square foot vacant parcel and a 5,963
square foot parcel containing the historic resource. The Floor Area of each of the newly
created lots was specified, pursuant to the approving Ordinance, by splitting the Floor Area
permitted on the original parcel. These F ARs were also specified on the recorded plat.
In 2000, the City pursued a wholesale rewrite of the Historic Preservation Chapters of the
Land Use Code. These changes were adopted through Ordinance No.1, Series of 2002. The
before and after text regarding the allocation of Floor Area of a Historic Lot Split are as
follows:
Before: The total FAR for both residences shall not exceed the floor area allowed for
a duplex on the original parcel. The total FAR for each lot shall be noted on
the Subdivision Exemption Plat.
After: The total FARfor both residences shall be established by the size of the parcel
and the zone district where the property is located. The total FARfor each lot
shall be noted on the Subdivision Exemption Plat.
The applicant contends that this new language no longer requires the splitting of FAR
calculated on the fathering parcel and that, if a new application were submitted to split the
property, each newly created parcel would enjoy a Floor Area based upon the size of the
newly created parcel. The Director was asked to interpret this revised language.
Because the City's Floor Area schedules are based on a sliding scale, as property size
increases the permitted Floor Area increases at a diminishing ratio. (i.e. a property twice the
size of another does nl'lt enjoy double the floor area, it enjoys only slightly more.)
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The original Brumder lot was entitled an FAR of approximately 4,250 square feet, plus one
potential 500 square foot bonus. When the lot was divided, this FAR was divided and
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allocated to the two new lots. The lots were allocated approximately 2,300 square feet and
1,900 square feet, respectively, The potential 500 square foot bonus was assigned to the lot
allowing 1,900 square feet.
If the lots were to be permitted an FAR based upon the new lots sizes, each parcel would be
developed with approximately 3,240 square feet apiece, a total of 6,480 - roughly a 50%
increase in total FAR.
INTERPRETATION:
The Director analyzed the text of the code and determined that the term "parcel," as it is used
in the particular code section, refers to the parcel subject to the Historic Lot Split application.
The Director states in the interpretation "the total FAR in question is the total FAR of the lot
being split in its singular, pre-split condition - not of the resulting parcels [plural, post-
split]."
This position was arrived upon based on the language of the entire Historic Lot Split section,
not just the one sentence, Following is the text of the entire section, including the provision
in question - subsection b, first sentence,
.,~.......
4. Historic Landmark Lot Split. The split of a lot that is listed on the Aspen Inventory of
Historic Landmark Sites and Structures for the development of one new single-family
dwelling. The Historic Landmark Lot Split shall meet the requirements of section
26.480.030(A)(2) and (4), section 26.470.070(C), and section 26.4l5.l20(A) of this code,
and the following standards:
a, The original parcel shall be a minimum of six thousand (6,000) square feet in
size and be located in the R-6, R-15, R-15A, RMF, or 0 zone district.
b, The total FAR for both residences shall be established by the size of the parcel
and the zone district where the property is located. The total FAR for each lot
shall be noted on the Subdivision Exemption Plat.
In the Office zone district, the following shall apply to the calculation of
maximum floor area for lots created through the historic landmark lot split. Note
that the total FAR shall not be stated on the Subdivision Exemption Plat because
the floor area will be affected by the use established on the property:
If all buildings on what was the fathering parcel remain wholly residential in use,
the maximum floor area will be as stated in the R-6 zone district.
If any portion of a building on a lot created by the historic landmark lot split is in
commercial/office use, then the allowed floor area for that lot shall be the floor
area allowed for all uses other than residential in the zone district. If the adjacent
parcel created by the lot split remains wholly in residential use, then the floor area
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on that parcel shall be limited to the maximum allowd on a lot of its size for
residential use according to the R -6 standards.
If there is commercial/office use on both newly created lots, the maximum floor
area for all uses other than residential in the zone district will be applied.
c. The proposed development meets all dimensional requirements of the underlying
zone district. The variances provided in section 26.4l5.l20(B)(l)(a),(b), and (c)
are only permitted on the parcels that will contain a historic structure. The FAR
bonus will be applied to the maximum FAR allowed on the original parcel.
The Director determined that the reference to "the parcel" in the first paragraph of subsection
b was to the parcel being split. The Director determined this due to the singular or plural
manner in which "parcel" or "parcels" is used throughout the section. The Director
considered the entirety of the section in order to determine the meaning of the particular
subsection. This is common practice in statutory construction - the context of a particular
word, phrase, or sentence is essential in determining the meaning of such word, phrase, or
sentence.
For additional assurance, the Director also investigated the legislative intent of the code
changes - what was the intent of the new code language. Ordinance No.1, series of 2002, is
one of the largest ordinances (66 pages) ever adopted by the City. Consequently, there were
various notes referenced throughout the text of the ordinance describing the purpose of the
particular changes. Of these notes, note number 12 described the change to this particular
historic lot split FAR language. The note explained that the change was to correct a
confusing point regarding duplex FAR. More importantly, the note did not say 'this is a
increase of FAR as an incentive.' In light of house size being an important community issue,
the lack of highlighting a significant increase in FAR indicates that there was no intended
change to the policy. The review of the legislative intent reinforced the Director's
interpretation - clearly there was no intent of changing the policy of splitting the FAR
between the new parcels.
The Director took one additional step in confirming the correctness of the interpretation -
what has been the application of this new code language? The research revealed that some
12 cases had been processed under this revised language. In each of the cases, the Floor Area
of the original parcel was divided and assigned to each of the newly created lots. This
consistency also confirmed the Director's interpretation.
ABUSE OF DISCRETION OR EXCEEDING AUTHORITY?
The Director analyzed the text of the Land Use Code and made a finding. In doing so, the
Director analyzed the context of which the particular provision is a part. It is a common and
legally recognized practice to consider the context of a particular provision in determining the
meaning of the provision. In fact, many phrases in the City's Land Use Code have little or no
meaning absent their context.
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To reinforce that finding, the Director examined the record of the policy discussion that
resulted in the particular code section's adoption. As additional back-up, the Director
examined the consistency of the application of the particular code section. Both of these
additional steps reinforced the interpretation.
The Director considers the extra research on the legislative intent of the code provision and
the application of the code provision to be within the responsibilities of the job and within the
jurisdiction and authority granted to the Director. This is being thorough, covering all the
bases, and ensures that the interpretation is correct and consistent.
RECOMMENDATION:
Staff believes the Director's interpretation was rendered correctly and that no abuse of
authority or exceeding of jurisdiction occurred. Staff recommends City Council not adopt
Resolution No. _' Series of2005.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: (all motions must be in the positive)
"[ move to approve Resolution No. _, Series of2005."
ATTACHMENTS:
Exhibit A - June 1 0 request for appeal letter with attachments lettered A through G
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RESOLUTION NO._,
(SERIES OF 2005)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING AN
APPEAL OF AN INTERPRETATION OF THE LAND USE CODE REGARDING
THE MANNER IN WHICH FLOOR AREA SHALL BE ALLOCATED ON LOTS
OF A HISTORIC LANDMARK LOT SPLIT.
WHEREAS, the Community Development Director received a request for an
interpretation of the City of Aspen Land Use Code regarding the manner in which Floor
Area is allocated between lots of Historic Landmark Lot Split Subdivision Exemption -
Section 26.480.030.4 - from the Brumder Family Trust (Applicant), owner of Lots A and
B, Brumder Historic Lot Split, City and Townsite of Aspen, represented by Julie Ann
Woods, President, Elk Mountains PlanningGroup; and,
WHEREAS, the Director rendered and opinion and the Applicant believes the
Director exceeded his jurisdiction and abused his discretion and sought an appeal based
on such grounds; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may reverse or
modify upon a finding that there was a denial of due process, exceeding of jurisdiction, or
abuse of authority in rendering the interpretation; and,
WHEREAS, the City Council has taken and considered public comments at a
duly noticed public hearing and has found that the Director either exceeded his
jurisdiction or abused his authority in rendering the interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and
is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council approves the appeal of
the Community Development Director's Interpretation of the Land Use Code regarding
Floor Area for Historic Landmark Lot Splits and reverses the decision as follows:
Section 1:
The Floor Area for Lots created through Section 26.480.030.4 - Historic Landmark Lot
Split - shall be derived from the lot size of each of the newly created lots and shall not be
based on the original, fathering parcel.
Section 2:
This Resolution shall not effect any eXlstmg litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
under such prior ordinances.
Resolution No. _, Series of 2005. Page 1
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Section 3:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for
any reason held invalid or unconstitutional in a court of competent jurisdiction, such
pOliion shall be deemed a separate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
APPROVED by the Aspen City Council at its regular meeting on
,2005.
.
ATTEST:
Kathryn S. Koch, City Clerk
Helen Kalin Klanderud, Mayor
APPROVED AS TO FORM:
John Worcester, City Attorney
BendonC:lhomelCurrent PlanningllnterpslBrumder appeal Reso.doc
Resolution No. _, Series of 2005. Page 2
"-'
THE ELK MOUNTAINS PLANNING GROUP, INC.
P. O. Box 11891
Aspen, CO 81612
P.O. Box 2799
Crested Butte, CO 81224
Mayor Klanderud and Aspen City Council
c/o Mr. Chris Bendon, AICP
C?mmunity Development Direct<REr<EIVED
CIty of Aspen' V.
130 S. Galena St. JUN 1 3 Z005
Aspen, CO 81611 N
ASPE
EUILDlNG DEPARTMENT
l/Fox: 970-923-9485 (Aspen)
l/Fox: 970-349-6236 (CB)
Cell: 970-948-0802
E-mail: elkmtnplan@aol.com
June 10,2005
RE: REQUEST FOR APPEAL OF DIRECTOR'S INTERPRETATION:
FAR FOR HISTORIC LOT SPLIT SITES
Dear Mayor Klanderud and Aspen City Council:
My fIrm is working with Lenny Oates of Oates, Knezevich, & Gardenswartz, PC, who
represents the William G. Brumder Family Land Trust. The Brumder Family owns
certain property, described as Lots A and B of the Brumder Historic Lot Split
Subdivision Exemption Plat (recorded at Book 48, Page 37 of the Pitkin County Clerk
and Recorder's office), a.k.a. 214 E. Bleeker St. in Aspen (Exhibits A and B). The
Brumder family has owned this property since the 1950s.
In late April, Mr. Bill Stirling inquired of staff how to interpret the allowable FAR for the
subject property. Staff took the position that the FAR allowed was correctly shown on
the Subdivision Exemption Plat, though Mr. Stirling pointed out that the current code
language indicated otherwise. Staff correctly directed Mr. Stirling to seek an
interpretation of the code to get clarifIcation.
On May 6, 2005 my fIrm submitted a request for interpretation of the land use code to
Mr. Chris Bendon, Community Development Director. The interpretation request was in
regards to the language specifIc to determining FAR for properties listed on the Inventory
of Historic Landmark Sites and Structures (Exhibit F). On May 31,2005 my firm
received a decision notice (Exhibit G) indicating that "The total FAR in question is the
total FAR of the lot being split in its singular, pre-split condition - not of the resulting
parcels [plural, post-split]." In other words, FAR is determined by the entire original
parcel, not by individual lots. However, there is no where stated in the interpretation that
this specifIc qualifIcation regarding "original parcels" or "in its singular, pre-split
condition" is referenced in the code.
One of the statements made in the interpretation is:
Request for Appeal of Interpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Inc
June 9, 2005
1
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"As stated in the request for interpretation submitted by Elk Mountains
Planning Group, Inc., the maximum allowable FAR for the Brumder
Historic Landmark Lot Split was calculated by determining the permissible
FARon the original, or fathering, parcel and dividing it between the new
lots. The FAR figures were noted on the plat."
To be clear, our request for interpretation never mentions "fathering parcel". We do
recognize that previous code language [Section 26.480.030 (4) (b)] of the land use code
in effect at the time (Exhibit C), did read as follows:
"The total FAR for both residences shall not exceed the floor area allowed
for a duplex on the orillinal Darcel. The total FAR for each lot shall be
noted on the Subdivision Exemption Plat. " (emphasis added)
This language was very clear. And, the current code does indicate,
"If all buildings on what was the fatherinll Darcel remain wholly residential
in use, the maximum floor area will be as stated in the R-6 zone district."
(emphasis added)
There is no definition in the land use code for original parcel or fathering parcel. In
fact, 'parcel' is defined simply as:
"An area of land which is capable of being described with such specificity
that its location and boundaries may be established, and which has been or
may be developed as a single unit of land. "
The language in the current code (Exhibit D), presumably added as part ofthe revamping
of Ordinance I, Series of 2000, now reads
"The total FAR for both residences shall be established by the size of the
parcel and the zone district where the property is located. The total FAR
for each lot shall be noted on the Subdivision Exemption Plat. " (emphasis
added)
This revised language does not specify "The total FAR for both residences shall be
established by the size of the orisdnal or fatherinll parcel and the zone district where the
property is located. It simply states that FARis determined by the parcel size and the
zone district in which it is located.
We believe that given the language in the code,
"The total FAR for both residences shall be established by the size of the
parcel and the zone district where the property is located. . .,"
our client has not one parcel, but two parcels (which can be described and located and
could be or is built upon as a single unit), one that is 6,000 s.f in size and one that is
5,963 s.f. in size.
Request for Appeal of Interpretation-Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
2'
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The R-6 zone (Sec. 26.710.040) has a sliding scale to determine FAR based on the lot
size and whether a single family residence or two detached dwellings or one duplex are
proposed for the site. There is an asterisk on the table that goes on to explain that:
"Total external floor area for multiple detached residential dwellings on..!!
lot less than nine-thousand (9,000) square feet listed on the Inventory of
Historic Landmark Sites and Structures shall not exceed the floor area
allowed for one detached residential dwelling. " (emphasis added) (Exhibit
E)
Notice that this language now refers to a 'lot' instead of a 'parcel'. 'Lot' is defined as:
"A defined individual area or unit of land resulting from subdivision and
reflected on a recorded plat approved by the city. . . "
Clearly, the Brumder Historic Lot Split Subdivision Exemption Plat (which was recorded
at Book 48, Page 37 of the Pitkin County Clerk and Recorder's office) is an approved
subdivision exemption and has designated lots as Lot A and Lot B. Because each lot is
less than 9,000 s.f. in size and both are listed on the Inventory of Historic Landmark Sites
and Structures, we believe that each of our client's lots are entitled to "the floor area
allowedfor one detached residential dwelling. "
Using the FAR chart for the R-6 zone (Exhibit E), two detached dwellings or a duplex
on Lot A would be allowed 3,600 s.f. However, the asterisk in the table indicates that the
total external floor area for multiple detached residential dwellings on a lot less than
nine-thousand (9,000) square feet listed on the Inventory of Historic Landmark Sites and
Structures could not exceed the floor area allowed for one detached residential dwelling,
which in this case would be 3,240 s.f. Whether the Brumders build a duplex, two
residences or a single family residence on Lot A, the maximum FAR that should be
allowed would be a total of 3,240 s.f.
We appreciate the fact that this may not have been the 'intent' of the changes in the land
use code as specified in the staff's interpretation, which reads in part:
This amendment was not designed or intended to increase the allowable
floor area on Historic Landmark Lot Splits. The staff memo written to
Council during their deliberation of Ordinance #1, Series of2002 notes that
the amendment to the section under discussion was to address the fact that
"not all properties which will be allowed a Historic Landmark Lot Split will
be able to apply the duplex FAR to the project. Some of the smaller sites
that are incorporated by the inclusion of 6,000 square foot lots will be
restricted to using the single family FAR. The specific restrictions are in the
zone districts. " [note no. 12] It is clear that this amendment intended only
to remedy a confusing point concerning duplex FAR. There is no mention of
the concept that the lots created through the Historic Landmark Lot Split
would receive additional FAR as if they were separate lots of record.
Request for Appeal of Interpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
3
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However, we do not believe this 'intent' is pertinent to the case. We believe that the
interpretation should be based on facts which were lacking in the explanation.
Staff believes that the revised code language is very clear in this case It does not
reference original parcel or fathering parcel. It just says 'parcel' and our client clearly
has two parcels. We believe these are the facts in this case:
1. The code indicates that the total FAR for both residences is determined by the size
of the parcel and the zone district in which it is located.
2. The Brumder's property is located in the R-6 zone district.
3. All buildings on what was the fathering parcel will remain wholly residential in
use, therefore, the maximum floor area is as stated in the R-6 zone district.
4. The Brumder's have two parcels of land capable of being described with such
specificity that its location and boundaries may be established, and which has
been or may be developed as single units of land.
5. The Brumders parcels are also considered two lots of record (Lot A and Lot B).
6. The lots resulted from a recorded plat (recorded at Book 48, Page 37 of the Pitkin
County Clerk and Recorder's office).
7. Each lot is less than 9,000 s.f. (Lot A is 6,000 and Lot B is 5,963 s.f.).
8. Each lot is on the Inventory of Historic Landmark Sites and Structures.
9. The R-6 zone district indicates that !! lot of less than 9,000 s.f. cannot exceed the
floor area for one detached residential building, which in this case is 3,240 s.f.
Based on these facts, we believe our client is entitled to 3,240 s.f. of FAR for each lot,
plus a possible 500 s.f. FAR bonus.
According to Section 26.316.020 (B), City Council has the authority to hear and decide
appeals of "(A)n interpretation to the text of this title or the boundaries of the zone
district map by the Community Development Director. . ." .
This appeal is being filed with the Community Development Director and with the city
office or department rendering the decision or determination (Historic Preservation
Office) within fourteen (14) days of the date of the decision (May 31, 2005) or
determination being appealed.
The code is very clear in regards to the limitations under which City Council can consider
the appeal. Section 26.316.030 (E) Standard of Review reads as follows:
"...the decision-making body authorized to hear the appeal shall decide
the appeal based solely upon the record established by the body from
which the appeal is taken. A decision or determination shall not be
reversed or modified unless there is a finding that there was a denial of
due process, or the administrative body has exceeded its jurisdiction or
abused its discretion. "
Request for Appeal of Interpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
4
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,
We believe that staff exceeded its jurisdiction by not properly interpreting the facts in this
case, and relying on "intent" as outlined in a staff report (which typically is not part of a
final ordinance), resulting in an abuse of its discretion. This is the basis for our appeal.
Mayor Klanderud and City Council, the bottom line for our client is that they would like
to be given the opportunity to vacate their existing historic lot split plat and resubmit a
revised historic lot split plat that will reflect the appropriate FAR that is specified in the
current code. This process will allow our client to secure the FAR they are entitled to
while allowing careful review by the Historic Preservation Commission to ensure a
quality project consistent with preservation policies.
We appreciate your time and consideration and look forward to discussing this appeal
with you soon.
Sincerely, .
~:"""" A1eP/ASLA
President
Elk Mountains Planning Group, Inc.
Cc: Amy Guthrie, Historic Preservation Office
Lenny Oates, Oates, Knezevich, & Gardenswartz, PC
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Brumder Historic Lot Split Subdivision Exemption Plat
Ordinance No. 29, Series of 1998, approving the Lot Split
Section 26.480.030 (4) (b) of the 1997 Land Use Code
Section 26.480.030 (A) (4) (b) of the current Land use Code
R-6 zone FAR Table (Sec. 26.710.040)
Interpretation Request dated May 6, 2005
Staff Decision Notice dated May 31, 2005
Request for Appeal ofInterpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
5
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Ordinance No, 29. Series of 1998
. Page 1
".
ORDINANCE No. 29
(SERIES OF 1998)
AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING A
SUBDIVISION EXEMPTION FORAN HISTORIC LANDMARK LOT SPLlTAT
214 EAST BLEEKER STREET (LOTS N, 0, P, AND Q, BLOCK 72, CITY AND
TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO)
WHEREAS, pursuant to Sections 26.88.030(A)(2) and (5) and 26.72.0 1 O(G) of
the Municipal Code, an Historic Landmark Lot Split is a subdivision exemption subject
to review.and approval by City Council after obtaining a recommendation from the
Historic Preservation Commission (hereinafter HPC); and
WHEREAS, the applicant, W.G. Brumder Florida Land Trust, represented by
Gretchen Greenwood, has requested to split a 11,963 square foot parcel to create one
single-family residential lot of 5,963 square feet and another of 6,000 square feet; and
WHEREAS, pursuant to Section 26.72.0 1 O(G) of the Municipal Code, the HPC
reviewed the request at a properly noticed public hearing on May 27, "1998 and
recommended approval with conditions by a vote of7-0; and
WHEREAS, the Community Development Department has reviewed the
" application and recommended approval of the Historic Landmark Lot Split with
conditions; and
WHEREAS, the Aspen City Council has reviewed and considered the
subdivision exemption under the applicable provisions of Chapters 26.88 of the
Municipal Code as identified herein, has reviewed and considered those
recommendations made by the Community Development Department and the Historic
Preservation Commission and has taken and considered public comment at a public
hearit.tg; and
WHEREAS, the City Council finds that the Historic Landmark Lot Split, with
conditions, meets or exceeds all applicable development standards of the above
referenced Municipal Code sections; and
WHEREAS, the City Council fmdsthat this Ordinance furthers and is necessary
for the public health, safety and welfare.
"
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO, THAT:
Section 1: Pursuant to Sections 26.88.030(A)(2) and (5) and 26.72.oiO(G) of the
Municipal Code, and subject to those conditions of approval as specified herein, the City
Council finds as follows in regard to the subdivision exemption:
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Ordinance No. 29, Series of 199$
Page 2
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1. The applicant's submission is complete and sufficient to afford review and
evaluation for approval; and,
2. The subdivision exemption is consistent with the purposes of subdivision as
outlined in Section 26.88.010 of the Municipal Code, which purposes include:
assist in the orderly and efficient development of the City; ensure the proper
distribution of development; encourage the well-planned subdivision ofland by
establishing standards for the design of a subdivision; improve land records and
survey monuments by establishing standards for surveys and plats; coordinate the
construction of public facilities with the need for public facilities; safeguard the
interests of the public and the subdivider and provide consumer protection for the
purchaser; and, promote the health, safety and general welfare, of the residents of
the City of Aspen.
Section 2: Pursuanlto the findings set forth in Section 1, above, the City Council does
hereby grant an Historic Landmark Lot Split subdivision exemption for 214 East Bleeker
Street with the following conditions:
1. A subdivision plat and subdivision exemption agreement shall be reviewed and
approved by the Community Development and Engineering Departments and
recorded in the office of the Pitkin County clerk and recorder within one hundred
eighty (180) days of final approval by City Council. Failure to record the plat and
subdivision exemption agreement within the specified time limit shall render the plat
invalid and reconsideration of the plat by City Council will be required for a showing
of good cause. As a minimum, the subdivision plat shall:
a. Meet the requirements of Section 26.88.040(D)(2)(a) of the Aspen Municipal
Code; .
b. Contain a plat note stating .that development of the new/easterly lot (Lot A)
created by the lot split shall be required to mitigate for affordable housing
pursuant to Section 26.100.050(A)(2)(c) of the Municipal Code;
c. .Contain a plat note statillg that the lots contained therein shall be prohibited from
applying for further subdivision and any development of the lots will comply
with the applicable provisions of the Land Use Code in effect at the time of
application.
d. The two lots created by this lot split shall have a total allowable base FAR, on
both lots combined, equal to 4,257 square feet of floor area prior to consideration
of potentially applicable lot area reductions (I.e., slopes, access easements, etc.).
The applicant shall verify with the City Zoning Officer the total aJlowable FAR
on each lot, taking into account any and all applicable lot area reductions. The
property shall be subdivided into one parcel (the westerly parcel, Lot B) of 5,963
square feet and a second parcel (the easterly parcel, Lot A) of 6,000 square feet.
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Ordinance No. 29, Series of 199a
Page 3
Provided it is found by the Zoning Officer that no lot area reductions are
required, the maximum allowable FAR on the westerly parcel (Lot B) would be
1,913 square feet of floor area (plus the potential for a 500 square foot floor area
bonus if granted by the HPC), and 2,344 square feet of floor area on the easterly
parcel (Lot A). The infonnation verified by the City Zoning Officer shall be
included on the plat, as a plat note.
e. Contain a plat note stating that any setback nonconformities created by the new
lot line shall be eliminated upon redevelopment or further development, as may
be applicable, of either of the two lots.
2, As a minimum, the subdivision exemption agreement shall include the elements
outlined in Section 26.88.050 of the Aspen Municipal Code, and shall meet the
recording and timing requirements described in Section 26.88.030(A)(2)(e).
3. Prior to issuance of a Certificate of Occupancy on either lot, the applicant shall sign a
sidewalk, curb and gutter construction agreement and pay the applicable recording
fees.
4. All material representations made by the applicant in this application and during
public hearings shall be adhered to and shall be considered conditions of approval,
unless otherwise amended by a decision~making body having the authority to do so.
\. Section 3:. If any section, subsection, sentence, clause, phrase or portion of this ordinance
is for any reason held invalid or unconstitutional by any court of competent jurisdiction,
such provision and such holding shall not affect the validity of the remaining portions
thereof.
Section 4: This Ordinance shall not affect any existing litigation and shall not operate as
an abatement of any action or proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
under such prior ordinances.
Section 5: A public hearing on the Ordinance shalJ"be held on the 10th day of August,
1998 at 5:00 P.M. in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen
(15) days prior to which hearing a public notice of the same shall be published once in a
newspaper of general circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUB~HED as provided by law, by the City
Council of the City of Aspen on the & day of . €..(J..-' , 1998.
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Jo nBennett,May~r
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Ordinance No. 29, Series of 1998
Page 4
"
ATTEST;
" -.
yj~
oCh, City Clerk
APPROVED AS TO FORM:
<Z/!!AtI~
John W cester, City Attorney
FINALLY, adopted, passed and approved this L:i. day of
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ch, City Clerk
g:lplanningiaspenlhpcJcases/lotsplitl2I4ebord.doe
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/1" I . l. V I L U I!J I I . oJ .j"'M
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No, B 322 p. 2/3
~~ 26.480.040
3. A-PJJrCTVed subdivisw7L All subdivisions approved prior to the effective date of this Chapter,
except those lots contained within an approved subdivision which are intended or designed to
be re-subdivided illto\smaller lots, condominium units, or multi-family dwtllings.
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4. H.i..<toric Landmark Lor Split. .The split of a lot thal is a designated historic landmark for the
development of one new single-flllDiJy dwelling. The Historic Landmark Lot Split shall meet
the requirements of section 26.88.030(.A)(2), section 26.100.050(A)(2)(e), section
26.72.010(G) of this Code, and the following staIJd2rds:
a. The original parcel shall be a minimum of nine thousand (9,000) square feet in size
and be located in the R-6 zone disuict or a miniJ11mn of tbirteen thousand (13,000) square
feet and be located in the R-15A zone district.
b. The tow FAR for both residences shall not aceed the floor area allowed for a d
on The original pareel. total FAR be noted on the ~ 'vision Ex~
emption PIaL . -" A< r"'l"/' - -
I$. YieldS "1;<-.j f '1'"',
c. The proposed development meets all diIilensional requirements of the underlying zone
distriCL HPC variances and bonuses are only peronned on the parcel that. contains a his-
toric stIUctare.
26.480.040 Procedures for review.
A development application for a subdivision approvlll, or exemption shall be reviewed punu-
alIt to the procedlms and standards in this Chapler and we Common Development Review Pr0ce-
dures set fonh at Cba~er 26.304. __. _ _'____. ._._____________~__. -.- '---'-- .---- ---"
A. Lot lille adjustment. After an application for a 10t1iDe adjusrment bas been determined com-
plete by The Co=unity Development Director, The r>nector shall approve, approve with condi-
tions, or deny the application.
B. E;s:empt subdivisions.
1. S1f7JS reauired: One - a public he:nmg before City Council.
2.. Notice requirements: None except for an application for a lot split whicb sball require
publication. tILilling and posting (See 26304.060(E)(3)(a),(b) and (c),) ..
3. Standards ofrfNiew: Section 26.480.050.
4. CiTY Council acrion: Ordinance approving~ approving with conditions, or disapproving
application for subdivision exemption. .
643
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f. In the case where an existing single-family dwelling occupies a site which
is eligible for a lot split, the dwelling need not be demolished prior to application
for a lot split
g. Maximum potential buildout for the two (2) parcels created by a lot split
shall not exceed three (3) units, which may be composed of a duplex and a single-
family home.
3. Approved subdivision. All subdivisions approved prior to the effective
date of this chapter, except those lots contained within an approved subdivision which are
intended or designed to be re-subdivided into smaller lots, condominium Wlits, or multi-
family dwellings.
4. Historic Landmark Lot Split. The split of a lot that is listed on the Aspen
Inventory of Historic Landmark Sites and Structures for the development of one new
single-family dwelling. The Historic Landmark Lot Split shall meet the requirements of
section 26.480.030(A)(2) and (4), section 26.470.070(C), and section 26.4]5. ]20(A) of
this code, and the following standards:
a. The original parcel shall be a minimum of six thousand (6,000) square feet
in size and be located in the R-6, R-]5, R-15A, RMF, or 0 zone district.
b. The total FAR for both residences shall be established by the size of the
parcel and the zone district where the property is located. The total FAR for each lot shall
be noted on the Subdivision Exemption Plat
In the Office zone district, the following shall apply to the calculation of
maximum floor area for lots created through the historic landmark lot split Note that the
total FAR shall not be stated on the Subdivision Exemption Plat because the floor area
will be affected by the use established on the property:
If all buildings on what was the fathering parcel remain wholly residential in use,
the maximum floor area will be as stated in the R-6 zone district.
If any portion of a building on a lot created by the historic landmark lot split is in
commercial/office use, then the allowed floor area for that lot shall be the floor area
allowed for all uses other than residential in the zone district If the adjacent parcel
created by the lot split remains wholly in residential use, then the floor area on that parcel
shall be limited to the maximum allowed on a lot of its size for residential use according
to the R-6 standards.
If there is commercial/office use on both newly created lots, the maximum floor
area for all uses other than residential in the zone district will be applied.
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8 Maximum height (feet): 25
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9. Minimum distance between detached buildings on the lot (feet): Five (5).
10. Percent of open space required for building site: No requirement.
11. Floor area ratio (a lies to confonnin and nonconfonnin lots of record):
Lot Size Allowable FJoorArea for A1IQwa.ble FJoorAreafor 1'woDetached
(Square Single-Family Residence" Dwellinl!sorone Duplex.
Feet
0--3,000
3,000--6,000
6,000-9,000
9,000--
15,000-
50,000
50,000+
80 square feet of floor area for
each 100 in lot area, up to a
maximum of 2,400 square feet
of floor area.
2,400 square feet of floor area,
plus 28 square feet of floor
area for each additional 100
square feet in lot area, up to a
maximum of3,240 square feet
..oi!1~~_!""'l. __ ---
90 square feet of floor area for each 100
square feet in lot area, up to a maximum of
2,700 square feet of floor area.
2,700 square feet of floo~ area, plus 30
square feet of floor area for e~ch addi-
tionalloo square feet in lot area, up to a
maximum {)f 3,600 ~quare feet of floor
area.
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3,240squarefeetoffloorarea, 3,600 square feet of floor area, plus 16
plus 14 square feet of floor square feet of floor .area t:or each addi-
area for each additional 100 bonal 100 square feet in -lot aiea, up to a
square feet in lot area, up to a maximum of 4,080 square feet.of floor
maximum of3,660 square feet area.
of floor area.
3,660 square feetoffloor area,
plus 6 square feet {)f floor area
for each additional 1 00 square
feet in lot area, up to a maxi.
mum of 4,020 square feet of
floor area_
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4,080 square feet of floor 'lIfC3, plus 6
square feel of floor area tpr each addi-
tional 100 square feet in lot area, up to a
maximum .of 4,440 square feet of floor
area.
4,020 square feet of floor area, 4,440 square feet. of floor area, plus 5
plus 5 square feet of floor area square feet of floor area for each addi-
for each additional 1 00 square tional 100 square feet in lot area, up to a
feet in lot area, up to a maxi- maximum of 6,190 square feet of floor
mum of 5,770 square feet of area.
floor area.
5,770 square feet offloorarea, 6,190 square feet of floor area, plus 3
plus 2 square feet of floor area square feet of floor area for each addi-
for each additional I 00 square tional 100 square feet in lot area.
feet in lot area.
7
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"Total external floor area for multiple detached residential dwellings on one lot shall not ex-
ceed the floor area allowed for one duplex. Total external floor area for multiple detached resi-
dential dwellings on alot less than nine-thousand (9,000) square feet listed on the Inventory of
Historic Landmark Sites and Structures shall not exceed the floor area allowed for one detached
residential dwelling.
Each City of Aspen Historic Transferable Development Right certificate extinguished, pursuant
to Section 26.535, Transferable Development Rights, shall allow an additional 250 square feet
of Floor Area. Each residence on the parcel, excluding Accessory Dwelling Units and Carriage
Houses, shall be eligible for one Floor Area increase in exchange for the extinguishment of one
Historic IDR. No more than one Floor Area increase shall be allowed per residence, with the
following exception: Properties within the same Subdivision or Planned Unit Development as a
sending site may be specified as eligible for up to two (2) Floor Area increases per residence
pursuant to the Subdivision or Planned Unit Development approval. The properties to be speci-
fied as eligible for up to two (2) Floor Area increases per residence shall be located within the
same Subdivision or Planned Unit Development so as to enhance preservation of the historic
resource, considering a recommendation from the Historic Preservation Commission, shall not
be located adjacent to the sending site, and shall be described and depicted in the Subdivision
or Planned Unit Development approvals granted by City Council. The total number of Floor
Area increases permitted within the Subdivision or Planned Unit Development shall not exceed
an aggregate total of one (1) per non-historic residence within the entire Subdivision or Planned
Unit Development. Properties listed on the Inventory of Historic Sites and Structures shall not
be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligi-
ble for this Floor Area increase.
(Ord. No. 56-2000 991,7 (part), 10; Ord. No 25-2001,99 1,5 (part); Ord. No. 1-2002 920 (part),
2002; Ord. No. 54,2003 - 96; Ord. No. 48-2004 91)
26.710.050 Moderate-Density Residential (R-15).
A. Purpose. The purpose of the Moderate-Density Residential (R-15) zone district is to provide areas
for long term residential purposes with customary accessory uses. Recreational and institutional uses
customarily found in proximity to residential uses are included as conditional uses. Lands in the Mod-
erate-Density Residential (R-15) zone district typically consist of additions to the Aspen Townsite and
subdivisions on the periphery of the City. Lands within the Townsite which border Aspen Mountain are
also included in the Moderate-Density Residential (R-15) zone district.
B. Permitted uses. The following uses are permitted as of right in the Moderate-Density Residential
(R -15) zone distri ct.
1. Detached residential dwelling;
2. Duplex;
8
THE ELK MOUNTAINS P&NNING GROUP, INC.
.,
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.'
Mr. Chris Bendon, AICP
Community Development Director
City of Aspen
130 S. Galena St.
Aspen, CO 81611
P. O. Box 11891
Aspen, CO 81612
P.O. Box 2799
Crested Butte, CO 81224
TIFax: 97G-923-9485 (Aspen)
TlFax: 97G-349'6236 (CB)
Cell: 97G-948-0802
E-mail: elkmlnplan@aol.com
May 6, 2005
Via Fax:
970-920-5439 (bard copy to follow)
RE: REQUEST FOR INTERPRETATION:
FAR FOR mSTORIC LOT SPLIT SITES
Dear Chris:
My firm is working with Lenny Oates of Oates, Knezevich, & Gardenswartz, PC, who
represents the William G. Brumder Family Land Trust. The Brumder Family owns
certain property, described as Lots A and B of the Brumder Historic Lot Split
Subdivision Exemption Plat (recorded at Book 48, Page 37 of the Pitkin County Clerk
and Recorder's office), ak.a 214 E. Bleeker St in Aspen (Exhibit A).
According to City records, the Historic Lot Split was approved Aug. 13, 1998 by the
Aspen City Council. As part of Ordinance No. 29, Series of 1998 (Exhibit B), the
Historic Lot Split was specifically approved with the following:
Lot A LotB
Lot Area 6,000 s.f. 5,963 s.f.
Max. Allowable FAR 2,344 s.f. 1,913 + 500 s.f. Bonus
According to the above-referenced ordinance, the lot split was approved with a total FAR
on both lots combined of 4,257 s.f., prior to any potential lot area reductions or the
granting of an FAR bonus. lbis FAR was determined based on Section 26.480.030 (4)
(b) of the land use code in effect at the time (Exhibit C), which reads as follows:
"The total FAR for both residences shall not exceed the floor area allowed
for a duplex on the original parcel. The total FAR for each lot shall be
noted on the Subdivision Exemption Plat. "
The duplex FAR in the R-6 zone produced for this lot an FAR of 4,257 s.f. which was
divided between the two lots as indicated in the table above. The owner has since
completed a small addition (approximately 155 s.f.) to the existing house located on Lot
Bin 1999. No other development has occurred on either lot.
Request for Interpretation-Brumder Family Land Trust
Elk Mountains Planning Group, Ine
May 6, 2005
1
r.
,
As you know, since this lot split was approved in 1998, the historic preservation program
went through a wholesale revamping based on the direction of City Council. City
Council wanted a program that provided more incentives for the historic properties.so
that owners would want to seek the benefits of being designated. The land use code was .
amended to reflect this new direction, and the historic lot split program was expanded to
include additional properties and benefits (&c. 26.415.110).
In the current version of the land use code, Section 26.480.030 (A) (4) (b) (Exhibit D),
the language regarding total FAR for historic landmark lot splits was amended to allow
the FAR to be determined based specifically on the size of the parcel and the zone district
in which it is located. We believe the amended language was intended as an incentive
within the historic lot split program. This language now reads:
"The total FAR for both residences shall be established by the siz.e of the
parcel and the zone district where the property is located. The total FAR
for each lot shall be noted on the Subdivision Exemption Plat. " (emphasis
added)
The R-6 zone (Sec. 26.710.040) has a sliding scale to determine FAR based on the lot
size and whether a single family residence or two detached dwellings or one duplex are
proposed for the site. There is an asterisk on the table that goes on to explain that:
"Total external floor area for multiple detached residential dwellings on a
lot less than nine-thousand (9,000) square feet listed on the Inventory of
Historic Landmark Sites and Structures shall not exceed the floor area
allowedfor one detached residential dwelling. " (Exhibit E)
This would indicate to me that because each of the lots (A and B) are less than 9,000 s.f.
in size (6,000 s.f. and 5,963 s.f. respectively), and each is listed on the Inventory of
Historic Landmark Sites and Structures, that each lot is eligible for the floor area
designated for a single family residence. In this case, based on lot sizes indicated above,
the FAR for both Lot A and Lot B would be 3,240 s.f., which is the maximum FAR
allowed for lots up to 6,000 s.f. in size.
I believe this is correct because the minimum lot size for a Historic Landmark property is
now 3,000 s.f. The original parcel was Il,963 s.f. which could have produced three
3,000 s.f. + lots. However, the historic lot split process only allows the creation of one
additional lot, which can contain either a single family residence or two detached
dwellings or one duplex.
Presuming the Brumder Historic Lot Split were processed today, I believe the Brumders
could maintain their existing residence on Lot B (with an increase in FAR from 1,913 s.f.
to 3,240 s.f. plus a potential 500 s.f. FAR bonus) and create two detached units or a
duplex on Lot A, similar to the process used by the Aspen Historic Cottages.
Request for lnterpretation-Brumder Family Land Trust
Elk Mountains Planning Group, Ine
Mav 6. 2005
2
Using the FAR chart for the R-6 zone, two detached dwellings or a duplex on Lot A
would be allowed 3,600 s.f. However, the asterisk in the table indicates that the total
external floor area for multiple detached residential dwellings on a lot less than nine-
thousand (9,000) square feet listed on the Irrventory of Historic Landmark Sites and
Structures could not exceed the floor area allowed for one detached residential dwelling,
which in this case would be 3,240 s.f. Whether the Brumders build a duplex, two
residences or a single family residence on Lot A, the maximum FAR that would be
allowed would be a total of 3,240 s.f. This increase in FAR from the current 2,344 s.f. is
consistent with the Council's direction to provide incentives for the Historic Landmark
properties. We are asking for an interpretation from you, as Director, that this is
correct in accordance with Chapter 26.306 Interpretations of Title.
Presuming you agree with this interpretation, we will need direction from your office as
to how to proceed. We believe the easiest approach would be to amend the Brumder
Historic Lot Split Subdivision Exemption Plat to indicate that the new allowable FAR's
for each lot are as follows:
Lot A LotB
Lot Area 6,000 s.f. 5,963 s.f.
Max. Allowable FAR 3,240 s.f. 3,240 s.f. + 500 s.f. Bonus
We hope that this could be handled administratively through your office, in accordance
with Section 26.480.080 A. Insubstantial Amendment, which reads in part, "any other
minor change to a plat which the Community Development Director finds has no effect
on the conditions and representations limiting the approved plat."
As an alternative to this, we could request a formal vacation of the plat and reapply for
the historic lot split under the current regulations, seeking the F ARs outlined above. (Of
course, we would only agree to vacate the current plat if the new historic lot split and
F ARs were approved.) I do not see the benefit of a vacation of the plat and a formal
hearing process if we can end up at the same place in less time through an insubstantial
amendment to the subdivision development order.
In accordance with Chapter 26.306 Interpretations of Title, we understand that you as the
director will render an interpretation within fifteen (15) days upon receipt of a complete
request for interpretation. If you do not fmd this request complete, please let me know
immediately.
Request for Interpretation-Brumder Family Land Trust
Elk Mountains Planning Group, lne
May 6, 2005
3
,....
.-.
Chris, I appreciate your time and consideration and look forward to hearing from you
soon.
Sincerely,
~d-
JUlie Ann Woods, AlCP/ASLA
President
Elk Mountains Planning Group, Inc.
Cc: Lenny Oates, Oates, Knezevich, & Gardenswartz, PC
Request for Interpretation-Brumder Family Land Trust
Elk Mountains Planning Group, IDe
May 6, 2005
4
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~
ASPEN/PITKIN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
CODE INTERPRETATION
JURISDICTION:
City of Aspen
APPLICABLE CODE SECTION:
26.480.030.4
Subdivision Exemptions, Historic
Landmark Lot Split
EFFECTIVE DATE:
May 31, 2005
WRITTEN BY: M.n
APPROVED BY: ~ \ttX.J
Chris Bendon,
Conununity Development Director
Chris Bendon,
Conununity Development Director
Date:
1:5 ....,. . or:;
II'
SUMMARY:
The Historic Landmark Lot Split does not and has never permitted an overall increase in
allowable floor on a subject site - the provision merely permits separate fee simple
ownership. The criteria for a historic lot split speak to the minimum qualifications of the
property being split. For example, the parcel must be of a certain size in order to be split.
Throughout this section, the 'parcel' is referred to in a singular, pre-split disposition.
TIle following language of the Code specifies how the allowable floor area ofthe parcel shall
be allocated and goes on to require that plat notes be used to document the decision:
"The total FARfor both residences shall be established by the size of the parcel and the zone
district where the property is located The total FAR for each lot shall be noted on the
Subdivision Exemption Plat. "
The total FAR in question is the total FAR of the lot being split in its singular, pre-split
condition - not of the resulting parcels [plural, post-split]. Lots created through this program
shall be entitled FAR which is limited by this language. This limiting text exists in the Code
today and would be applied to a new historic lot split application, or resubmission, of the
Brumder property.
TIle F ARs noted on the Brumder Lot Split plat are very specific and clearly an effective
limitation of the properties. Removing this limitation is not eligible for an administrative
amendment.
,.
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..
DISCUSSION:
The Historic Landmark Lot Split was adopted as a historic preservation incentive in 1995.
Up until that time, landmark properties of a certain size and zoning were permitted to be
developed with a duplex or two detached residential structures. Ownership was typically
divided through a condominium regime. HPC's strong preference was for two detached
structures in order to encourage new development to be freestanding of the designated
building. In order to give property owners an incentive to follow this model, the historic
landmark lot split allowed two detached structures to be in fee simple, rather than
condominium ownership.
At the time of the Brumder Historic Landmark Lot Split approval, the language at Section
26.480.030.4 read:
"The total FAR for both residences shall not exceed the floor area allowed for a duplex on
the original parcel. The total FAR for each lot shall be noted on the Subdivision Exemption
Plat. "
As stated in the request for interpretation submitted by Elk Mountains Planning Group, Inc.,
the maximum allowable FAR for the Brumder Historic Landmark Lot Split was calculated
by detennining the permissible FAR on the original, or fathering, parcel and dividing it
between the new lots. The FAR figures were noted on the plat.
As part of an overhaul of Aspen's historic preservation regulations, City Council adopted
Ordinance #1, Series of 2002. Associated areas of the land use code were anlended,
I" including Section 26.480.030.4, which canle to read:
"The total FARfor both residences shall be established by the size of the parcel and the zone
district where the property is located. The total FAR for each lot shall be noted on the
Subdivision Exemption Plat. "
This amendment was not designed or intended to increase the allowable floor area on
Historic Landmark Lot Splits. The staff memo written to Council during their deliberation of
Ordinance # 1, Series of 2002 notes that the amendment to the section under discussion was
to address the fact that "not all properties which will be allowed a Historic Landmark Lot
Split will be able to apply the duplex FAR to the project. Some of the smaller sites that are
incorporated by the inclusion of 6,000 square foot lots will be restricted to using the single
family FAR. The specific restrictions are in the zone districts." [note no. 12] It is clear that.
this amendment intended only to remedy a confusing point concerning duplex FAR. There is
no mention of the concept that the Jots created through the Historic Landmark Lot Split
would receive additional FAR as if they were separate lots of record.
Since the adoption of Ordinance # l, Series of 2002, at least 12 more Historic Landmark Lot
Splits have been approved in residential zone districts. In each case the maximum allowable
floor area for each new lot was established by dividing the FAR of the the original, fathering
parcel. If the language had been intended to provide a new preservation incentive, the
Commw1ity Development Department would have promoted tillS to applicants. Additionally,
,..
..
,
,.
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this incentive would be listed in the "Historic Benefits" Chapter of the Land Use Code - it is
not.
APPEAL OF DECISION
Pursuant to Section 26.306 of the Land Use Code, an interpretation of the Land Use Code
made by the Director may be appealed to the Aspen City Council pursuant to Section 26.316.
This can be done in conjunction with a land use request before City Councilor as a separate
agenda item.
'M-~ ~'ttl ..k- ::l<:.\I\. ~ 't=Z.
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b. The total FAR for both residences shall Ret exeees the floor area
llllElwea for a SUflleJ( OR the original pareel shall be established bv the size ofthe parcel
and the zone district where the property is located. The total FAR for each lot shall be
noted on the Subdivision Exemption Plat.12
In the Office zone district. the following shall applv to the calculation of maximum floor
area for lots created through the historic landmark lot split. Note that the total FAR shall
not be stated on the Subdivision Exemption Plat because the floor area will be affected bv
the use established on the propertv:
If all buildings on what was the fathering parcel remain whollv residential in use. the
maximum floor area will be as stated in the R-6 zone district.
If anv portion of a building on a lot created bv the historic landmark lot split is in
commerciaVoffice use. then the allowed floor area for that lot shall be the floor area
allowed for all uses other than residential in the zone district. If the adiacent parcel
created bv the lot split remains whollv in residential use. then the floor area on that parcel
shall be limited to the maximum allowed on a lot of its size for residential use according
to the R-6 standards.
If there is commercial/office use on both newlv created lots. the maximum floor area for
all uses other than residential in the zone district will be applied.13
c. The proposed development meets all dimensional requirements of the
underlying zone district. HPC yarianees and BOflltSeS The variances provided in Section
26.4l5.l20(B)(l )(a),(b), and (c) are only permitted on the parcel~that will contains a
historic structure. The FAR bonus will be applied to the maximum FAR allowed on the
original parcel. 14
26.500 DEVELOPMENT REASONABLY NECESSARY FOR THE
CONVENIENCE AND WELFARE OF THE PUBLIC
26.500.050 Procedure.
B. City Council Determination of Eligibility. Following a public
hearing in accordance with Section 26.304.060(C), the City Council shall by resolution
(a) make a determination whether the proposed development is reasonably necessary for
the convenience and welfare of the public by applying the standards of Section
26.500.040; (b) establish a procedure for review of the proposed project to include
standards of review; (c) establish a Task Force Team to review the development proposal
and identify members of City boards, commissions, and other interested parties,
(including at least two (2) members of the public at large) to be included as members of
the Task Force. Team, which shall include representation by the Planning and Zoning
Commission; and, (d) establish a timeframe for the procedures to be used to review the
47
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informed of the issue and what action will be taken. A clear process is laid out in the new
ordinance, including a hearing before a third party to determine if a violation has
occurred. The proposed "benefit package" includes new financial awards, such as grants,
to be made available to address any building neglect that is caused by financial need. ~
This provision is very important to the overall success of the program. It is unfair to
allow someone to circumvent the preservation process by allowing a structure to fall
down. These "minimum maintenance" standards will be enforced when deterioration is
of a nature that threatens the building.
Benefits- The City already has a good package of "incentives" for historic properties. We
intend to change this term to "benefits," as suggested by a property owner, and have
discussed new ideas with Council, P&Z, and HPC that will even more clearly
demonstrate the City's commitment to assisting private property owners whose property
is listed on the Inventory. We believe it has become more important than ever before that
we make historic designation attractive to a property owner, particularly if we wish to
protect any properties from beyond the Victorian period.
Section.26.415 includes a statement of the City's intent to provide benefits, but the details
of those benefits are being reviewed by Council as a separate ordinance.
Appeals, Notice to City Council and Call-Up- This section has not substantially
changed other than. a clarification that building permits will not be issued during the time
when Council may call up a. decision ofHPC (up to 30 days after the hearing date.)
Variances- This section has not changed other than that the criteria for the granting of
variances includes consideration of adjacent historic properties.
Penalties- This section has not changed, however, the penalty for undertaking a
demolition without approval has increased from a 5 year moratorium on construction on
the affected property, to 10 years. This is the time frame that is used in Telluride and may
serve as a better deterrent to prevent problems like those which developed with the
Schellings, given our high property values.
T
EXPLANATION OF SUBSTANTIVE CHANGES TO OTHER CODE SECTIONS
(numbers correspond to notations made on "Attachment 1":
IThe concept of historic significance is addressed in Chapter 26.415 and a general
definition is not needed.
2The Planning and Zoning Commission will no longer be involved in the review of any
properties being considered for historic designation.
3 A procedure for the Historic Preservation Commission to adopt and update the design
guidelines is provided in Chapter 26.415. Council will be asked to ratify the HPC's
recommendation.
5
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--7
4The Planning and Zoning Commission will no longer be involved in the review of any
properties being considered for historic designation.
5The HPC purpose statement has been moved to Chapter 26.415.
6A new process has been created in Chapter 26.415 to place a temporary stay on.the
issuance of permits to demolish or relocate a building under consideration for listing on
the inventory. HPC is given the authority to deny issuance of permits under these
circumstances.
7The HPC will discuss additions and deletions to the inventory on a more regular basis
and will not hold the "periodic review" of the list envisioned in the current code
language, which required a mass review every five years.
8P&Z has been given the authority to approve variances under an earlier code
amendment. When considering variances on any historic property, P&Z must receive a
recommendation by HPC.
9HPC is given the authority to create and adopt design guidelines.
IOHPC is given the authority to petition the Chief Building Official to enforce on cases of
"Demolition by Neglect."
IICurrently, the Historic Landmark Lot Split is only allowed in the R-6 and R-15A zone
districts, and the minimum lot size is 9,000 and 13,000 square feet respectively. Staff,
HPC, P&Z, and many owners of historic properties view the lot split as a very valuable
benefit of designation, and one of the most successful aspects of our current program.
The lot split has the effect of creating smaller additions to historic structures and
appropriately scaled infill development. The message that has been clearly conveyed
during the year long process of updating this ordinance is that the City needs to offer
significant benefits to assist private property owners in the preservation of their buildings.
The lot split needs to be extended to the other residential zone districts where this kind of
development would be appropriate and it needs to be available to a variety of property
sizes. With that in mind, the amendment to this particular code citation, and other
locations to be discussed below, allows the Historic Landmark Lot Split within the R-6,
R-15, R-15A, RMF, and 0 zone districts. This covers all of the residential zone districts
where historic resources have presently been identified. Because several of these districts
already allow the possibility of two detached units on a parcel as small as 6,000 square
feet, that will be the minimum lot size to be eligible for the benefit.
12Not all properties which will be allowed a Historic Landmark Lot Split will be able to
apply the duplex FAR to the project. Some of the smaller sites that are incorporated by
the inclusion of 6,000 square foot lots will be restricted to using the single family FAR.
The specific restrictions are identified in the zone districts.
I3Recently, Council reviewed and denied a privately sponsored code amendment to allow
the Historic Landmark Lot Split in the Office zone district. The code amendment failed
because Council wanted to see it discussed as part of the overall update to the program.
14This language has been confusing in the past and was recently the subject of a Planning
Director's Interpretation. When a lot split project is granted an HPC floor area bonus,
that bonus may be allocated to the proj ect as a whole and does not have to be specifically
assigned to the historic structure.
15Currently, HPC has the authority to waive the requirement to provide parking associated
with residential development, and can waive the parking and cash-in-lieu fees for any
6
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MEMORANDUM
,,~~
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TO:
Mayor Klanderud and Aspen City Council
Chris Bendon, Community Development Director QJAltv1
FROM:
RE:
Appeal of Land Use Code Interpretation - Historic Lot Split Floor Area
Public Hearing - Continue to July 25th
DATE:
July 11, 2005
SUMMARY:
The applicant for this appeal, Brumder Family Trust, has requested a continuation of
the hearing to July 25th. This is a noticed hearing and must be continued to a date
certain. Staff recommends City Council continue the public hearing to July 25th
RECOMMENDED MOTION:
"I move to continue the appeal of the Land Use Code Interpretation for Historic Lot
Split Floor Area to July 25, 2005."
!
......
',N'
Elkmtnplan@aol.com, 04:24 PM 6/27/2005 , Re: Request for Continuation of Brumder Appeal
To: Elkmtnplan@aol.com
From: Chris Bendon <chrisb@ci.aspen.co.us>
Subject: Re: Request for Continuation of Brumder Appeal
Cc:
Bcc:
Attached:
Got it. No problem. Chris.
At 05:14 PM 6/27/2005 , you wrote:
Chris and Amy--
We need to request a continuation of the hearing for the Brumder appeal to July 25th as I have a
conflict with hearings scheduled on this side of the mountain on July 11th. Please let me know if
there will be any issue with continuing this to July 25th. Thanks.
Julie Ann Woods, AICP/ASLA
Elk Mountains Planning Group, Inc.
Planning'Historic Preservation'Landscape Architecture & Community Decision-Making
elkmtnplan@aol.com
PO Box 11891
Aspen, CO 81612
T/Fax: 970-923-9485
Cell: 970-948-0802
or
PO Box 2799
Crested Butte, CO 81224
T IF ax: 970-349-6236
Printed for Chris Bendon <chrisb@ci.aspen.co.us>
1
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ATTACHMENT 7
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
Lel
rt" I t?itJ
I t ~~prn, lto'
ADDRESS OF PROPERTY:
,200_
STATE OF COLORADO )
) ss.
County of Pitkin )
1, ,,\ e./M'-lI e,,' Lf'V1d I (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
4. Publication of notice. By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least filleen (15)
days prior to the public hearing. A copy of the publication is attacheJvzereto.
_PtJJti'ng of notice: By posting of notice, which form was obtained froJthe
Community Development Department, which was made of suitable,
waterproof111aterials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed ofletters not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the _ day of
,200_, to and including the date and time ofthF public
hearing. A photograph of the posted notice (sign) is attached hereto.~,
_ Mailing of notice. By the mailing of a notice obtained from the Com~unity
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid u.S. mail to any federal agency, state, county, municipal government,
school, service district or other governmental or quasi-governmental agency that
owns property within three hundred (300) feet ofthe property subject to the
development application. The names and addresses of property owners shall be
those on the current tax records of Pitkin County as they appeared no more than
sixty (60) days prior to the date of the public hearing. A copy of the owners and
governmental agencies so noticed is attached hereto.
(continued on next page)
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Rezoning or text amendment. Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map has been available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments.
~~
The foregoing "Affidavit of Notice" was acknowledged before me t i_day
of~~ ,200S,by ~ h,.......
- plJBUC NOTICE COMMUNITY DE"
OF eTV OF ASPEN RPRETATION
RE: APP~ D1RlXTOR CODE 'r;J; SPLIT PROP.
VELOPMt.l~ FClR~TORlC L
- FLOOR that a public
ERTIESNOTlCE IS H BMY G:a;.NjU1Y ll, 2005, at
. et,e\ non, retheAspen
hearin~ W1~ob begin t 5:(}\} p..m'C~~~bers 01 City
a .me~~nJndl, in e coun(:l~ Colorado. to c?n-
CIty 30 S Galena St" Aspe Code Interpretation
H.all.1 . alolaUlndUse ment Director.
sIder an a~re Community Develo~e manner 1f1
made by tation addresSes lots created
The lnterpre Area Is allocated ~o 26480,030.4.
which Floorh. (oric lot split, sedl~n 'fhe appeal
through an o;"ll,spen LandYse Co ~~umder Fami-
01 the CIty b ilted by W\lHam ? t Lots A and
has been su tm214 East Bleeker Stre~~ Julie Ann
ly Land T~U~ . Historic Lot Split. p~anning Group,
~o=~pr:sldenl, Elk r;u;I~~~~ 910.923,948~h is
POBox 11891. Aspen: lormation, contact r.
For further \n
. Development
Bend- " o~pen Comm\l[1lty As n CO.
on at the cr.y 13' S, Galena St., m~' at
Department,: , (or by e
910.429,2"!6l e 'o.us). . derud.Maynr
chrisb@cJ.3SP " slHelen Kahn ~\~~ln City CounCIl
._ Weeklyon]une26.
Published ill the Aspen1nnes
2005_(28\4)
WITNESS MY HAND AND OFFICIAL SEAL
Notary Public
ATTACHMENTS:
;:OPY OF THE PUBLICATION
PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BY MAIL
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THE ELK MOUNTAINS PL~NING GROUP, INC.
-.
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Mayor Klanderud and Aspen City Council
c/o Mr. Chris Bendon, AICP
C?mmunity Development DirectcOEr-EIVED
CIty of Aspen n._.\I
130 S. Galena St. JUN 1 3 2005
Aspen, CO 81611 ASPEN
BUILDING DEPARTMENT
P. O. Box 11891
Aspen, CO 81612
P.O. Box 2799
Crested Butte, CO 81224
T/Fax: 970-923-9485 (Aspen)
TIFax: 970-349-6236 (CB)
Cell: 970-948-0802
E.-mail: elkmtnplan@aol.com
June 10, 2005
RE: REQUEST FOR APPEAL OF DIRECTOR'S INTERPRETATION:
FAR FOR HISTORIC LOT SPLIT SITES
Dear Mayor Klanderud and Aspen City Council:
My firm is working with Lenny Oates of Oates, Knezevich, & Gardenswartz, PC, who
represents the William G, Brumder Family Land Trust. The Brumder Family owns
certain property, described as Lots A and B of the Brumder Historic Lot Split
Subdivision Exemption Plat (recorded at Book 48, Page 37 of the Pitkin County Clerk
and Recorder's office), a,k.a. 214 E. Bleeker St. in Aspen (Exhibits A and B). The
Brumder family has owned this property since the 1950s.
In late April, Mr. Bill Stirling inquired of staff how to interpret the allowable FAR for the
subject property. Staff took the p,osition that the FAR allowed was correctly shown on
the Subdivision Exemption Plat, though Mr. Stirling pointed out that the current code
language indicated otherwise. Staff correctly directed Mr. Stirling to seek an
interpretation of the code to get clarification.
On May 6, 2005 my firm submitted a request for interpretation of the land use code to
Mr. Chris Bendon, Community Development Director. The interpretation request was in
regards to the language specific to determining FAR for properties listed on the Inventory
of Historic Landmark Sites and Structures (Exhibit F). On May 31, 2005 my firm
received a decision notice (Exhibit G) indicating that "The total FAR in question is the
total FAR of the lot being split in its singular, pre-split condition - not of the resulting
parcels [plural, post-split]." In other words, FARis determined by the entire original
parcel, not by individual lots. However, there is no where stated in the interpretation that
this specific qualification regarding "original parcels" or "in its singular, pre-split
condition" is referenced in the code.
One of the statements made in the interpretation is:
Request for Appeal of Interpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
1
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'-
~
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"As stated in the request for interpretation submitted by Elk Mountains
Planning Group, Inc., the maximum allowable FAR for the Brumder
Historic Landmark Lot Split was calculated by determining the permissible
FAR on the original, or fathering, parcel and dividing it between the new
lots. The FAR figures were noted on the plat."
To be clear, our request for interpretation never mentions "fathering parcel". We do
recognize that previous code language [Section 26.480.030 (4) (b)] of the land use code
in effect at the time (Exhibit C), did read as follows:
"The total FAR for both residences shall not exceed the floor area allowed
for a duplex on the orieinal Darcel. The total FAR for each lot shall be
noted on the Subdivision Exemption Plat. " (emphasis added)
This language was very clear. And, the current code does indicate,
"If all buildings on what was the fatherine Darcel remain wholly residential
in use, the maximum floor area will be as stated in the R-6 zone district. "
(emphasis added)
There is no definition in the land use code for original parcel or fathering parcel. In
fact, 'parcel' is defined simply as:
"An area of land which is capable of being described with such specificity
that its location and boundaries may be established, and which has been or
may be developed as a single unit of land. "
The language in the current code (Exhibit D), presumably added as part of the revamping
of Ordinance I, Series of 2000, now reads
"The total FAR for both residences shall be established by the size of the
parcel and the zone district where the property is located. The total FAR
for each lot shall be noted on the Subdivision Exemption Plat." (emphasis
added)
This revised language does not specify "The total FAR for both residences shall be
established by the size of the orieinal or fatherine parcel and the zone district where the
property is located. It simply states that FARis determined by the parcel size and the
zone district in which it is located.
We believe that given the language in the code,
"The total FAR for both residences shall be established by the size of the
parcel and the zone district where the property is located. . .,"
our client has not one parcel, but two parcels (which can be described and located and
could be or is built upon as a single unit), one that is 6,000 s.f in size and one that is
5,963 s.f. in size.
Request for Appeal of Interpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
2
('
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-,
The R-6 zone (Sec. 26.710.040) has a sliding scale to determine FAR based on the lot
size and whether a single family residence or two detached dwellings or one duplex are
proposed for the site. There is an asterisk on the table that goes on to explain that:
"Total external floor area for multiple detached residential dwellings on..!!
lot less than nine-thousand (9,000) square feet listed on the Inventory of
HistoriC Landmark Sites and Structures shall not exceed the floor area
allowed for one detached residential dwelling. " (emphasis added) (Exhibit
E)
Notice that this language now refers to a 'lot' instead of a 'parcel'. 'Lot' is defined as:
"A defined individual area or unit of land resulting from subdivision and
reflected on a recorded plat approved by the city. . . "
Clearly, the Brumder Historic Lot Split Subdivision Exemption Plat (which was recorded
at Book 48, Page 37 of the Pitkin County Clerk and Recorder's office) is an approved
subdivision exemption and has designated lots as Lot A and Lot B. Because each lot is
less than 9,000 s.f. in size and both are listed on the Inventory of Historic Landmark Sites
and Structures, we believe that each of our client's lots are entitled to "the floor area
allowedfor one detached residential dwelling. "
Using the FAR chart for the R-6 zone (Exhibit E), two detached dwellings or a duplex
on Lot A would be allowed 3,600 s.f. However, the asterisk in the table indicates that the
total external floor area for multiple detached residential dwellings on a lot less than
nine-thousand (9,000) square feet listed on the Inventory of Historic Landmark Sites and
Structures could not exceed the floor area allowed for one detached residential dwelling,
which in this case would be 3,240 s.f. Whether the Brumders build a duplex, two
residences or a single family residence on Lot A, the maximum FAR that should be
allowed would be a total of3,240 s.f.
We appreciate the fact that this may not have been the 'intent' of the changes in the land
use code as specified in the staff's interpretation, which reads in part:
This amendment was not designed or intended to increase the allowable
floor area on Historic Landmark Lot Splits. The staff memo written to
Council during their deliberation of Ordinance #1, Series of2002 notes that
the amendment to the section under discussion was to address the fact that
"not all properties which will be allowed a Historic Landmark Lot Split will
be able to apply the duplex FAR to the project. Some of the smaller sites
that are incorporated by the inclusion of 6,000 square foot lots will be
restricted to using the single family FAR. The specific restrictions are in the
zone districts. " [note no. 12] It is clear that this amendment intended only
to remedy a confusing point concerning duplex FAR. There is no mention of
the concept that the lots created through the Historic Landmark Lot Split
would receive additional FAR as if they were separate lots of record.
Request for Appeal of Interpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Inc
June 9. 2005
3
c
However, we do not believe this 'intent' is pertinent to the case. We believe that the
interpretation should be based on facts which were lacking in the explanation.
Staff believes that the revised code language is very clear in this case It does not
reference original parcel or fathering parcel. It just says 'parcel' and our client clearly
has two parcels. We believe these are the facts in this case:
1. The code indicates that the total FAR for both residences is determined by the size
of the parcel and the zone district in which it is located.
2. The Brumder's property is located in the R-6 zone district.
3. All buildings on what was the fathering parcel will remain wholly residential in
use, therefore, the maximum floor area is as stated in the R-6 zone district.
4. The Brumder's have two parcels of land capable of being described with such
specificity that its location and boundaries may be established, and which has
been or may be developed as single units ofland.
5. The Brumders parcels are also considered two lots of record (Lot A and Lot B).
6. The lots resulted from a recorded plat (recorded at Book 48, Page 37 of the Pitkin
County Clerk and Recorder's office).
7. Each lot is less than 9,000 s.f. (Lot A is 6,000 and Lot B is 5,963 s.f.).
8. Each lot is on the Inventory of Historic Landmark Sites and Structures.
9. The R-6 zone district indicates that!! lot ofless than 9,000 s.f. cannot exceed the
floor area for one detached residential building, which in this case is 3,240 s.f.
Based on these facts, we believe our client is entitled to 3,240 s.f. of FAR for each lot,
plus a possible 500 s.f. FAR bonus.
According to Section 26.316.020 (B), City Council has the authority to hear and decide
appeals of "(A)n interpretation to the text of this title or the boundaries of the zone
district map by the Community Development Director. . ."
This appeal is being filed with the Community Development Director and with the city
office or department rendering the decision or determination (Historic Preservation
Office) within fourteen (14) days of the date of the decision (May 31, 2005) or
determination being appealed.
The code is very clear in regards to the limitations under which City Council can consider
the appeal. Section 26.316.030 (E) Standard of Review reads as follows:
"...the decision-making body authorized to hear the appeal shall decide
the appeal based solely upon the record established by the body from
which the appeal is taken. . A decision or determination shall not be
reversed or modified unless there is a finding that there was a denial of
due process, or the administrative body has exceeded its jurisdiction or
abused its discretion. "
Request for Appeal of Interpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
4
We believe that staff exceeded its jurisdiction by not properly interpreting the facts in this
case, and relying on "intent" as outlined in a staff report (which typically is not part of a
final ordinance), resulting in an abuse of its discretion. This is the basis for our appeal.
Mayor Klanderud and City Council, the bottom line for our client is that they would like
to be given the opportunity to vacate their existing historic lot split plat and resubmit a
revised historic lot split plat that will reflect the appropriate FAR that is specified in the
current code. This process will allow our client to secure the FAR they are entitled to
while allowing careful review by the Historic Preservation Commission to ensure a
quality project consistent with preservation policies.
We appreciate your time and consideration and look forward to discussing this appeal
with you soon.
Sincerely,
r-{A-
Jiulie Ann Woods, AICP/ASLA
President
Elk Mountains Planning Group, Inc.
Cc: Amy Guthrie, Historic Preservation Office
Lenny Oates, Oates, Knezevich, & Gardenswartz, PC
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Brwnder Historic Lot Split Subdivision Exemption Plat
Ordinance No. 29, Series of 1998, approving the Lot Split
Section 26.480.030 (4) (b) of the 1997 Land Use Code
Section 26.480.030 (A) (4) (b) of the current Land use Code
R-6 zone FAR Table (Sec. 26.710.040)
Interpretation Request dated May 6, 2005
Staff Decision Notice dated May 31, 2005
Request for Appeal ofInterpretation--Brumder Family Land Trust
Elk Mountains Planning Group, Ine
June 9, 2005
5
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Ordinance No. 29, Series of 1998
. Page 1
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ORDINANCE No. 29
(SERIES OF 1998)
AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING A
SUBDIVISION EXEMPTION FOR AN HISTORIC LANDMARK LOT SPLIT AT
214 EAST BLEEKER STREET (LOTS N, 0, P, AND Q, BLOCK 72, CITY AND
TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO)
WHEREAS, pursuant to Sections 26.88.030(A)(2) and (5) and 26.12.010(0) of
the Municipal Code, an Historic Landmark Lot Split is a subdivision exemption subject
to review and approval by City Council after obtaining a recommendation from the
Historic Preservation Commission (hereinafter HPC); and
WHEREAS, the applicant, W.O. Brumder Florida Land Trust, represented by
Gretchen Greenwood, has requested to split a 11,963 square foot parcel to create one
single-family residential lot of 5,963 square feet and another of 6,000 square feet; and
WHEREAS, pursuant to Section 26.72.010(0) of the Municipal Code, the HPC
reviewed the request at a properly noticed public hearing on May 27, 1998 and
recommended approval with conditions by a vote of 7-0; and
WHEREAS, the Community Development Department has reviewed the
--.. application and recommended approval of the Historic Landmark Lot Split with
conditions; and
WHEREAS, the Aspen City Council has reviewed and considered the
subdivision exemption under the applicable provisions of Chapters 26.88 of the
Municipal Code as identified herein, has reviewed and considered those
recommendations made by the Community Development Department and the Historic
Preservation Commission and has taken and considered public comment at a public
heariJ?g; and
WHEREAS, the City Council finds that the Historic Landmark Lot Split, with
conditions, meets or exceeds all applicable development standards of the above
referenced Municipal Code sections; and
WHEREAS, the City Council fmdsthat this Ordinance furthers and is necessary
for the public health, safety and welfare,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO, THAT:
.-...,
Section 1: Pursuantto Sections 26.88.030(A)(2) and (5) and 26.n.oio(0) of the
Municipal Code, and subject to those conditions of approval as specified herein, the City
Council fmds as follows in regard to the subdivision exemption:
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Ordinance No. 29, Series of 199*
Page 2
./,
...........,
1. The applicant's submission is complete and sufficient to afford review and
evaluation for approval; and,
2. The subdivision exemption is consistent with the purposes of subdivision as
outlined in Section 26.88,010 of the Municipal Code, which purposes include:
assist in the orderly and efficient development of the City; ensure the proper
distribution of development; encourage the well-planned subdivision ofland by
establishing standards for the design of a: subdivision; improve land records and
survey monuments by establishing standards for surveys and plats; coordinate the
construction of public facilities with the need for public facilities; safeguard the
interests of the public and the subdivider and provide consumer protection for the
purchaser; and, promote the health, safety and general welfare, of the residents of
the City of Aspen.
Section 2: Pursuant to the findings set forth in Section 1, above, the City Council does
hereby grant an Historic Landmark Lot Split subdivision exemption for 214 East Bleeker
Street with the following conditions:
-.
,
1. A subdivision plat and subdivision exemption agreement shall be reviewed and
approved by the Community Development and Engineering Departments and
recorded in the office of the Pitkin County clerk and recorder within one hundred
eighty (180) days of final approval by City Council. Failure to record the plat and
subdivision exemption agreement within the specified time limit shaH render the plat
invalid and reconsideration of the plat by City Council will be required for a showing
of good cause. As a minimum, the subdivision plat shall:
a. Meet the requirements of Section 26.88.040(O)(2)(a) of the Aspen Municipal
C~~ .
b. Contain a plat note stating .that development of the new/easterly lot (Lot A)
created by the lot split shall be required to mitigate for affordable housing
pursuant to Section 26.l00.050(A)(2)(c) of the Municipal Code;
c. . Contain a plat note stati~g that the lots contained therein shall. be prohibited from
applying for further subdivision and any development of the lots will comply
with the applicable provisions of the Land Use Code in effect at the time of
application.
-,
d. The two lots created by this lot split shall have a total allowable base FAR, on
both lots combined, equal to 4,257 square feet of floor area prior to consideration
of potentially applicable lot area reductions (Le., slopes, access easements, etc.).
The applicant shall verify with the City Zoning Officer the total allowable FAR
on each lot, taking into account any and all applicable lot area reductions. The
property shall be subdivided into one parcel (the westerly parcel, Lot B) of 5,963
square feet and a second parcel (the easterly parcel, Lot A) of 6,000 square feet.
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.'. Ordinance No. 29, Series of 1998
Page 3
..........., Provided it is found by the Zoning Officer that no lot area reductions are
required, the maXimum allowable FAR on the westerly parcel (Lot B) would be
1,913 square feet of floor area (plus the potential for a 500 square foot floor area
bonus if granted by the HPC), and 2,344 square feet of floor area on the eas~r1y
parcel (Lot A). The information verified by the City Zoning Officer shall be
included on the plat, as a plat note.
e. Contain a plat note stating that any setback nonconformities created by the new
lot line shall be eliminated upon redevelopment or further development, as may
be applicable, of either of the two lots.
2. As a minimum, the subdivision exemption agreement shall include the elements
outlined in Section 26.88.050 of the Aspen Municipal Code, and shall meet the
recording and timing requirements described in Section 26.88.030(A)(2)(e).
3. Prior to issuance of a Certificate of Occupancy on either lot, the applicant shall sign a
sidewalk, curb and gutter construction agreement and pay the applicable recording
fees.
4. All material representations made by the applicant in this application and during
public hearings shall be adhered to and shall be considered conditions of approval,
unless otherwise. amended by a decision-making body having the authority to do so.
--.., Section 3:. If any section, subsection, sentence, clause, phrase or portion of this ordinance
is for any reason held invalid or unconstitutional by any court of competent jurisdiction,
such provision and such holding shall .not affect the validity of the remaining portions
thereof.
Section 4: This Ordinance shall not affect any existing litigation and shall not operate as
an abatement of any action or proceeding now pending under or by virtue .of the ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
nnder such prior ordinances.
Section 5: A public hearing on the Ordinance shall be held on the 10th day of August,
1998 at 5:00 P.M. in the City Council Chambers, Aspen City Hall, Aspen Colorado, fifteen
(15) days prior to which hearing a public notice of the same shall be published once in a
newspaper of general circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUB~HED as provided by law, by the City
Council of the City of Aspen on the & day of ~ €..ij'''' , 1998.
-..,
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Jo n Bennett, Mayor
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Ordinance No. 29, Series of 19~8 .
Page 4
,.....
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ArrEST:
yj~
ocb, City Clerk
APPROVED AS TO FORM:
<i!L/!!!1t/~
John Wester, City Attorney
FINALLY, adopted, passed and approved this L::i.- day of
~{7~
John ennett, Mayor . .
ATfEST:
- \ #.,'.
:0 I!n.~
th, City Clerk
g:Jplanningiaspenlhpc:JcasesllotsplitJ214ebord.doc
04-16-05:09:55AM:
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No, B 322 p. 2/3
~~ - 26.480.040
3. J'J.PTJroved S!/bdivision. All subdivisions approvedpriOrlO the effective date of this Chapter,
except those lots contained within an approved subdivision which are intended or designed to
be re-subdivided illtolsmaller lots, condominium units, or multi-family dwillibgs.
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4. H.istoric Landmark Lor S/:llit. .The split of a lot thal is a designated historic landmlll.'k for the
development of one new single-family dwelling. The Historic Landmazk Lot Split shall meet
the requirements of section Z6.88.030(A){2), section 26.100.050(A)(2)(e). section
26.72.010(0) of this Code, and the following srandafds:
a. The onginal parcel shall be a minimum of Dine thousand (9,000) square feet in size
and be located in the R-6 zone disuicr or a mini1JllllD of thirteen thousand (13,000) square
feet and be located in the R-15A zone district. .
b. The tow FAR for both residences shall not w;eed the floor area allowed for a d
on the original pareel. total FAR be noted on the ~ 'vision Ex-
emption Plat. . - I' /r. r-; ~. -
.5, YJ~ leiS "7, "2- -" , .",
c. The proposed development meets all dimensional requirements of the underlying zone
district. HPC variances and bonuses are only petmitted on the parcel that. contains a his-
toric strUcture.
26.480.040 Procedures for review.
A development application for a subdivision approvllI, or exemption shall be reviewed pursu-
ant to the procedun:s and standm:ds in this Chapler and we Common Development Review Prece-
dw-es set fonh at Chapter 26.304. .
__.., _ _.H___" _-..--H.--------------.-~..~-...-..--.--~-... ....
A. Lot Wle adjustment. After an application for a lot line adjustment has been determined com-
plete by the Community Development Director, the ~ctor shall approve, approve With condi-
tions, or deny me application.
B. E;rempt suJxJivisions.
1. Sums reouired: One - a public hC3Iillg before City Council.
2.. Nonce requiremcnrs: None except for an application for a lot split which shall require
publication. mailing and posting (See 26.304.060(E)(3)(a),(b) and (c),) ..
3. Standards ofrwiew: Section 26.480,050.
4. CiTY Council aaion: Ordinance approving', approving with conditions, or disapproving
application fOr subdivision exemption. .
643
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f. In the case where an existing single-family dwelling occupies a site which
is eligible for a lot split, the dwelling need not be demolished prior to application
for a lot split.
g. Maximwn potential buildout for the two (2) parcels created by a lot split
shall not exceed three (3) units, which may be composed of a duplex and a single-
family home.
3. Approved subdivision. All subdivisions approved prior to the effective
date of this chapter, except those lots contained within an approved subdivision which are
intended or designed to be re-subdivided into smaller lots, condominiwn lll1its, or multi-
family dwellings.
4. Historic Landmark Lot Split. The split of a lot that is listed on the Aspen
Inventory of Historic Landmark Sites and Structures for the development of one new
single-family dwelling. The Historic Landmark Lot Split shall meet the requirements of
section 26.480030(A)(2) and (4), section 26.470.070(C), and section 26.4I5.I20(A) of
this code, and the following standards:
a. The original parcel shall be a minimwn of six thousand (6,000) square feet
in size and be located in the R-6, R-I5, R-I5A, RMF, or 0 zone district.
b. The total FAR for both residences shall be established by the size of the
parcel and the zone district where the property is located. The total FAR for each lot shall
be noted on the Subdivision Exemption Plat.
In the Office zone district, the following shall apply to the calculation of
maximwn floor area for lots created through the historic landmark lot split. Note that the
total FAR shall not be stated on the Subdivision Exemption Plat because the floor area
will be affected by the use established on the property:
If all buildings on what was the fathering parcel remain wholly residential in use,
the maximwn floor area will be as stated in the R-6 zone district.
If any portion of a building on a lot created by the historic landmark lot split is in
commercial/office use, then the allowed floor area for that lot shall be the floor area
allowed for all uses other than residential in the zone district. If the adjacent parcel
created by the lot split remains wholly in residential use, then the floor area on that parcel
shall be limited to the maximwn allowed on a lot of its size for residential use according
to the R-6 standards.
If there is commercial/office use on both newly created lots, the maximwn floor
area for all uses other than residential in the zone district will be applied.
c
8 Maximum height (feet): 25
,.........
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9. Minimum distance between detached buildings on the lot (feet): Five (5).
10. Percent of open space required for building site: No requirement.
II. Floor area ratio (a lies to conformin and nonconformin lots of record):
Lot . Size AllOWllbl~F1()(Jt.Areaf~r A1lowalJleFloorAreafoJ"1'woDetached
(Square SinglecFatnilyResidence" DlVellin2soroneDuJ)Jex'"
Feet
15,000-
50,000
50,000+
.,-:--.'i'<::<".-............-.,--:.::-..- ......-..'.:::-. -.._ - ......_.,'-,-::i"-'.::'-"-'-:..:'....";:,"-'".}--;:;->:,_,_0:;_-';',,-
3,240 square feet offloor area, 3,600 square feet of floor area, plus .16
plus 14 square feet of floor square feet of floor area for eaCh addi-
area for each additional 100 tional 100 square feet iniot area, up.to a
square feet in lot area, up to a maximum of 4,08Qsquare feetof:l1Oor
maximum of3,66O square feet area. . .
of floor area.
3,660squarefeetoffloorarea, 4,080 square feet of.f100r area, plus 6
plus 6 square feet of floor area square feet of floor 'area fOT each ddi-
for each additional 100 square tional 100 square feet in lot area, up to a
feet in lot area, up to a maxi- maximum of 4;440 s.quare feet of floor
mum of 4,020 square feet of area.
floor area.
80 square feet of floor area for
each 100 in iotarea, up to a
maximum on,400 square feet
of floor area.
2,400 square feet of floor area,
plus 28 square feet of floor
area for each additional 100
square feet in, lot area, up to a
maximum of3,240 square feet
of floor area.
-~.~.--,-.-",:-"","-,--~~~:-'-"---~"'-'--~
4,020 square feet of floor area,
plus 5 square feet of floor area
for each additiouallOO square
feet in lot area, up to a maxi-
mum of 5,770 square. feet of
floor area.
5,770 square feet of floor area,
plus 2 square feet of floor area
for each additional 1 00 square
feet in lot area.
90 square feet of floor area for each 100
square feet in lot area, up to a maximum of
2,700 square feet of floor area.
,',.:"",-:;:",,'-, ,,-','-"
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,', ,..-....:. ._.....-.,'...:..,-.:..::<...._..-::..:'-.::.-..:.:'...>........:....
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2,700 square feel of floor area, plus 30
square feet of floor area for each addi-
tionallOO square feet in lot area, lip to a
maximum of 3,600. square feet of. floor
area.
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..,..-.,....,........... . .................-,:-',':'..,,-..-".'-:.....'.:--,.-,..-':..,.-,.,-
~~~_4..-'-e---o~"'---'-'-~~''''''.
:<...:..-_.:......;.::':..:."-....:."..,'....:.--';.,.:'.:.,...'...:'...:.......:....::;
4,440 square feet of floor area, plus 5
square feet of floor area for each addi.
lional 100 square feet in lot area, up to a
maximum of 6,190 square feet of floor
area.
6,190 square feet offloor area, plus 3
square feet of floor area for each addi-
tionallOO square feet in lot area.
7
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.Total external floor area for multiple detached residential dwellings on one lot shall not ex-
ceed the floor area allowed for one duplex. Total external floor area for multiple detached resi-
dential dwellings on a lot less than nine-thousand (9,000) square feet listed on the Inventory of
Historic Landmark Sites and Structures shall not exceed the floor area allowed for one detached
residential dwelling.
Each City of Aspen Historic Transferable Development Right certificate extinguished, pursuant
to Section 26.535, Transferable Development Rights, shall allow an additional 250 square feet
of Floor Area. Each residence on the parcel, excluding Accessory Dwelling Units and Caniage
Houses, shall be eligible for one Floor Area increase in exchange for the extinguishment of one
Historic TDR. No more than one Floor Area increase shall be allowed per residence, with the
following exception: Properties ",~thin the same Subdivision or Planned Unit Development as a
sending site may be specified as eligible for up to two (2) Floor Area increases per residence
pursuant to the Subdivision or Planned Unit Development approval. The properties to be speci-
fied as eligible for up to two (2) Floor Area increases per residence shall be located within the
same Subdivision or Planned Unit Development so as to enhance preservation of the historic
resource, considering a recommendation from the Historic Preservation Commission, shall not
be located adjacent to the sending site, and shall be described and depicted in the Subdivision
or Planned Unit Development approvals granted by City Council. The total number of Floor
Area increases permitted within the Subdivision or Planned Unit Development shall not exceed
an aggregate total of one (1) pernon-historic residence within the entire Subdivision or Planned
Unit Development. Properties listed on the Inventory of Historic Sites and Structures shall not
be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligi-
ble for this Floor Area increase.
(Ord. No. 56-2000 991,7 (part), 10; Ord. No. 25-2001, 99 1,5 (part); Ord. No. 1-2002 920 (part),
2002; Ord. No. 54,2003 - 96; Ord. No. 48-2004 91)
26.710.050 Moderate-Density Residential (R-t5).
A Purpose. The purpose of the Moderate-Density Residential (R-I5) zone district is to provide areas
for long term residential purposes with customary accessory uses. Recreational and institutional uses
customarily found in proximity to residential uses are included as conditional uses. Lands in the Mod-
erate-Density Residential (R-15) zone district typically consist of additions to the Aspen Townsite and
subdivisions on the periphery of the City. Lands within the Townsite which border Aspen Mountain are
also included in the Moderate-Density Residential (R-15) z~me district.
B. Permitted uses. The following uses are permitted as of right in the Moderate-Density Residential
(R -15) zone distri ct.
I. Detached residential dwelling;
2. Duplex;
8
THE ELK MOUNTAINS PL,QNING GROUP, INC.
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Ntt.ChrisBendon,AICP
Community Development Director
City of Aspen
130 S. Galena St.
Aspen, CO 8161I
P. O. Box 11891
Aspen, CO 81612
P.O. Box 2799
Crested Butte, CO 81224
T/Fax: 970-923-9485 (Aspen)
TIFax: 970-34!J:.6236 (CB)
Cell: 97G-948-0802
E-mail: ekmlnplan@aol.com
May 6, 2005
Via Fax:
970.920-5439 (hard copy to follow)
RE: REQUEST FOR INTERPRETATION:
FAR FOR mSTORIC LOT SPLIT SITES
Dear Chris:
My firm is working with Lenny Oates of Oates, Knezevich, & Gardenswartz, PC, who
represents the William G. Brurnder Family Land Trust. The Brurnder Family owns
certain property, described as Lots A and B of the Brurnder Historic Lot Split
Subdivision Exemption Plat (recorded at Book 48, Page 37 of the Pitkin County Clerk
and Recorder's office), aka 214 E. Bleeker S1. in Aspen (Exhibit A).
According to City records, the Historic Lot Split was approved Aug. 13, 1998 by the
Aspen City Council. As part of Ordinance No. 29, Series of 1998 (Exhibit B), the
Historic Lot Split was specifically approved with the following:
Lot A LotB
Lot Area 6,000 s.t: 5,963 s.f.
Max. Allowable FAR 2,344 s.t: 1,913 + 500 s.f. Bonus
According to the above-referenced ordinance, the lot split was approved with a total FAR
on both lots combined of 4,257 s.f., prior to any potential lot area reductions or the
granting of an FAR bonus. This FAR was determined based on Section 26.480.030 (4)
(b) of the land use code in effect at the time (Exhibit C), which reads as follows:
"The total FAR for both residences shall not exceed the floor area allowed
for a duplex on the original parcel. The total FAR for each lot shall be
noted on the Subdivision Exemption Plat. "
The duplex FAR in the R-6 zone produced for this lot an FAR of 4,257 s.f. which was
divided between the two lots as indicated in the table above. The owner has since
completed a small addition (approximately 155 s.f.) to the existing house located on Lot
Bin 1999. No other development has occurred on either lot.
Request for InteqJretation-Brumder Family Land Trust
Elk Mountains Planning Group, Ine
May 6, 2005
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As you know, since this lot split was approved in 1998, the historic preservation program
went through a wholesale revamping based on the direction of City Council. City
Council wanted a program that provided more incentives for the historic properties'so
that owners would want to seek the benefits of being designated. The land use code was
amended to reflect this new direction, and the historic lot split program was expanded to
include additional properties and benefits (Sec. 26.415.110).
In the current version of the land use code, Section 26.480.030 (A) (4) (b) (Exhibit D),
the language regarding total FAR for historic landmark lot splits was amended to allow
the FAR to be determined based specifically on the size of the parcel and the zone district
in which it is located. We believe the amended language was intended as an incentive
within the historic lot split program. This language now reads:
"The total FAR for both residences shall be established by the size of the
parcel and the zone district where the property is located. The total FAR
for each lot shall be noted on the Subdivision Exemption Plat. " (emphasis
added)
The R-6 zone (Sec. 26.710.040) has a sliding scale to determine FAR based on the lot
size and whether a single family residence or two detached dwellings or one duplex are
proposed for the site. There is an asterisk on the table that goes on to explain that:
"Total external floor areafor multiple detached residential dwellings on a
lot less than nine-thousand (9,000) square feet listed on the Inventory of
Historic Landmark Sites and Structures shall not exceed the floor area
allowedfor one detached residential dwelling. " (Exhibit E)
This would indicate to me that because each of the lots (A and B) are less than 9,000 s.f.
in size (6,000 s.t: and 5,963 s.f. respectively), and each is listed on the Inventory of
Historic Landmark Sites and Structures, that each lot is eligible for the floor area
designated for a single family residence. In this case, based on lot sizes indicated above,
the FAR for both Lot A and Lot B would be 3,240 s.t:, which is the maximum FAR
allowed for lots up to 6,000 s.t: in size.
I believe this is correct because the minimum lot size for a Historic Landmark property is
now 3,000 s.f. The original parcel was 11,963 s.f. which could have produced three
3,000 s.f. + lots. However, the historic lot split process only allows the creation of one
additional lot, which can contain either a single family residence or two detached
dwellings or one duplex.
Presuming the Brumder Historic Lot Split were processed today, I believe the Brumders
could maintain their existing residence on Lot B (with an increase in FAR from 1,913 s.f.
to 3,240 s.f. plus a potential 500 s.f. FAR bonus) and create two detached units or a
duplex on Lot A, similar to the process used by the Aspen Historic Cottages.
Request for Inlerpretation-Brumder Family Land Trust
Elk Mountains Planning Group, IDe
Mav 6. 2005
2
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Using the FAR chart for the R-6 zone, two detached dwellings or a duplex on Lot A
would be allowed 3,600 s.f. However, the asterisk in the table indicates that the total
external floor area for multiple detached residential dwellings on a lot less than nine-
thousand (9,000) square feet listed on the Inventory of Historic Landmark Sites and
Structures could not exceed the floor area allowed for one detached residential dwelling,
which in this case would be 3,240 s.f. Whether the Brumders build a duplex, two
residences or a single family residence on Lot A, the maximwn FAR that would be
allowed would be a total of 3,240 s.f. This increase in FAR from the current 2,344 s.f. is
consistent with the Council's direction to provide incentives for the Historic Landmark
properties. We are asking for an interpretation from you, as Director, that this is
correct in accordance with Chapter 26.306 Interpretations of Title.
Presuming you agree with this interpretation, we will need direction from your office as
to how to proceed. We believe the easiest approach would be to amend the Brumder
Historic Lot Split Subdivision Exemption Plat to indicate that the new allowable FAR's
for each lot are as follows:
Lot A LotB
Lot Area 6,000 s.f. 5,963 s.f.
Max. Allowable FAR 3,240 s.f. 3,240 s.f. + 500 s.f. Bonus
We hope that this could be handled administratively through your office, in accordance
with Section 26.480.080 A. Insubstantial Amendment, which reads in part, "any other
minor change to a plat which the Community Development Director finds has no effect
on the conditions and representations limiting the approved plat."
As an alternative to this, we could request a formal vacation of the plat and reapply for
the historic lot split under the current regulations, seeking the F ARs outlined above. (Of
course, we would only agree to vacate the current plat if the new historic lot split and
F ARs were approved.) I do not see the benefit of a vacation of the plat and a formal
hearing process if we can end up at the same place in less time through an insubstantial
amendment to the subdivision development order.
In accordance with Chapter 26.306 Interpretations of Title, we understand that you as the
director will render an interpretation within fifteen (15) days upon receipt of a complete
request for interpretation. If you do not find this request complete, please let me know
immediately.
Request for Interpretation-Brumder Family Land Trust
Elk Mountains Planning Group, lnc
May 6, 2005
3
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Chris, I appreciate your time and consideration and look forward to hearing from you
soon.
Sincerely,
~tL-
JUlie Ann Woods, AlCP/ASLA
President
Elk Mountains Planning Group, Inc.
Cc: Lenny Oates, Oates, Knezevich, & Gardenswartz, PC
Request for Interpretation-Brumder Family Land Trust
Elk Mountains Planning Group, Ioe
May 6, 2005
4
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ASPEN/PITKIN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
CODE INTERPRETATION
JURISDICTION:
City of Aspen
APPLICABLE CODE SECTION:
26.480.030.4
Subdivision Exemptions, Historic
Landmark Lot Split
EFFECTIVE DATE:
May 31, 2005
vnuTTENBY: M.n
APPROVED BY: ~ \l1XJ
Chris Bendon,
Community Development Director
Chris Bendon,
Community Development Director
t::5 .~ ,or:;
Date:
SUMMARY:
The Historic Landmark Lot Split does not and has never permitted an overall increas.e in
allowable floor on a subject site - the provision merely permits separate fee simple
ownership. The criteria for a historic lot split speak to the minimum qualifications of the
property being split. For example, the parcel must be of a certain size in order to be split.
Throughout this section, the 'parcel' is referred to in a singular, pre-split disposition.
The following language of the Code specifies how the allowable floor area of the parcel shall
be allocated and goes on to require that plat notes be used to document the decision:
"The total FARfor both residences shall be established by the size of the parcel and the zone
district where the property is located. The total FAR for each lot shall be noted on the
Subdivision Exemption Plat. "
The total FAR in question is the total FAR of the lot being split in its singular, pre-split
condition - not of the resulting parcels [plural, post-split). Lots created through this program
shall be entitled FAR which is limited by this language. This limiting text exists in the Code
today and would be applied to a new historic lot split application, or resubmission, of the
Brumder property.
The F ARs noted on the Brumder Lot Split plat are very specific and clearly an effective
limitation of the properties. Removing this limitation is not eligible for an administrative
amendment.
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DISCUSSION:
The Historic Landmark Lot Split was adopted as a historic preservation incentive in 1995.
Up until that time, landmark properties of a certain size and zoning were permitted to be
developed with a duplex or two detached residential structures. Ownership was typically
divided through a condominium regime. HPC's strong preference was for two detached
structmes in order to encourage new development to be freestanding of the designated
building. In order to give property owners an incentive to follow this model, the historic
landmark lot split allowed two detached structures to be in fee simple, rather than
condominium ownership.
At the time of the Brumder Historic Landmark Lot Split approval, the language at Section
26.480.030.4 read:
"The total FAR for both residences shall not exceed the floor area allowed for a duplex on
the original parcel. The total FARfor each lot shall be noted on the Subdivision Exemption
Plat. "
As stated in the request for interpretation submitted by Elk Mountains Planning Group, Inc"
the maximum allowable FAR for the Brumder Historic Landmark Lot Split was calculated
by determining the permissible FAR on the original, or fathering, parcel and dividing it
between the new lots. The FAR figures were noted on the plat.
As part of an overhaul of Aspen's historic preservation regulations, City Council adopted
Ordinance #1, Series of 2002. Associated areas of the land use code were amended,
including Section 26.480.030.4, which came to read:
"The total FARfor both residences shall be established by the size of the parcel and the zone
district where the property is located. The total FAR for each lot shall be noted on the
Subdivision Exemption Plat. "
This amendment was not designed or intended to increase the allowable floor area on
Historic Landmark Lot Splits, The staff memo written to Council during their deliberation of
Ordinance # 1, Series of 2002 notes that the amendment to the section under discussion was
to address the fact that "not all properties which will be allowed a Historic Landmark Lot
Split will be able to apply the duplex FAR to the project. Some of the smaller sites that are
incorporated by the inclusion of 6,000 square foot lots will be restricted to using the single
family FAR. The specific restrictions are in the zone districts." [note no. 12] It is clear that'
this amendment intended only to remedy a confusing point concerning duplex FAR. There is
no mention of the concept that the lots created through the Historic Landmark Lot Split
would receive additional FAR as if they were separate lots of record.
Since the adoption of Ordinance # 1, Series of 2002, at least 12 more Historic Landmark Lot
Splits have been approved in residential zone districts, In each case the maximum allowable
floor area for each new lot was established by dividing the FAR of the the original, fathering
parceL If the language had been intended to provide a new preservation incentive, the
Community Development Department would have promoted this to applicants. Additionally,
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this incentive would be listed in the "Historic Benefits" Chapter of the Land Use Code - it is
not.
APPEAL OF DECISION .
Pursuant to Section 26.306 of the Land Use Code, an interpretation of the Land Use Code
made by the Director may be appealed to the Aspen City Council pursuant to Section 26.316.
This can be done in conjunction with a land use request before City Councilor as a separate
agenda item.
.,
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
Al!reement for Pavment of Citv of Asnen Development Application Fees
CITYOFASPEN(hereinafterCITY)and 'l.JXt.-.l....r/{M b ' BRNi(V\l)tJL.r:.M~I--~ '''!If-,JI) IRU"Sr
(hereinafter APPLICANT) AGREE AS FOLLOWS:
for
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\1~1Az~QJ
(hereinafter, THE PROJECT),
2. APPLICANT understands and agrees that City of Aspen Ordinance No, 57 (Series of
2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a
condition precedent to a determination of application completeness.
3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed
project, it is not possible at this time to ascertain the full extent of the costs involved in processing the
application, APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT
make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on
a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or
approvals, APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make
additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY
agrees it will be benefited through the greater certainty of recovering its full costs to process
APPLICANT'S application.
4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete
processing or present sufficient infonnation to the Planning Commission and/or City Council to enable the
Planning Commission and/or City Council to make legally required findings for project consideration,
unless current billings are paid in full prior to decision.
5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to
collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial
deposit in the amount of s;0 bD which is for..3 hours of Community Development staff
time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly
billings to CITY to reimburse the CITY for the processing of the application mentioned above, including
post approval review at a rate of $220.00 per planner hour over the initial deposit. Such periodic payments
shall be made within 30 days of the billing date, APPLICANT further agrees that failure to pay such
accrued costs shall be grounds for suspension of processing, and in no case will building penn its be issued
until all costs associated with case processing have been paid.
::~y OF ASPEN ~t~
Chris Bendon
Community Development Director
mUCA", ~ J;
By: ~l!fj ~~
Date:
,~ECORD
Billing Address and Telephone Number:
Ri5uired
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RETAIN j'(...,. t..,.' .,
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g: Isupportlformslagrpayas.doc
11/30/04
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Page 1 of 1
Lennie Oates
From: Chris Bendon [chrisb@cLaspen.co.us]
Sent: Tuesday, June 14, 2005 1 :59 PM
To: Elkmtnplan@aol.com
Subject: Re: Brumder Appeal
Julie Ann: Got it. We need a $660 deposit on this, we charge for appeals now just like any other case.
l'l1look into the noticing. We are probably looking at the July 11 th Council meeting. If that doesn't
work, we go to the 25th. Chris. Attached is a payment form.
At 08: 16 PM 6/13/2005 , you wrote:
Just wanted you to be aware that I dropped off copies of the appeal request to you both today. Please let me
know when you might be able to get this scheduled.
By the way, Chris, after reading the appeal section more thoroughly, it appears that it is a public hearing with
a notice requirement, though it doesn't specify how. FYI. Thanks for your help on this.
Julie Ann Woods, AICP/ASLA
Elk Mountains Planning Group, Inc.
Planning*Historic Preservation*Landscape Architecture & Community Decision-Making
elkmtnplan@aol.com
PO Box 11891
Aspen, CO 81612
T/Fax: 970-923-9485
Cell: 970-948-0802
or
PO Box 2799
Crested Butte, CO 81224
T/Fax: 970-349-6236
6/14/2005
Jun 01 05 09:33a
Cind~ Kenne~ Agenc~
.'!"J'....
i
970-927-3990
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CERTIFICATE OF LIABILITY INSURANCE
American Family Insurance Company 0
American Family Mutual Insurance Company if selectIon box is not checked.
6000 American Pky Madison, Wisconsin 537B3~OO01
Insured's Name and Address
Harry and Jer" Mayer
0300 Spring Park Ct
Carbondale, CO 81623
Agent's Name, Address and Phone Number (Agt./Dist.)
Cindy Kenney (970) 927-6596
207 Basalt Center Circle Ste 103
PO Box 3950
Basalt, CO 81621 (164/307)
This certificate laissued as a matter of Information only and confers no rights upon the Certificate Holder.
This certificate does not amend, extend or alter the coverage afforded by the policies listed below.
COVERAGES
. .
.
This is 10 cenHy lhat policies of Insurance fisted belo.... haVlI bean issued to ~ insured named above for tho policy periOd Indlca1ad, notwithslandlng any requirement, term or c:ondition of any r:onlfacl or olher
doCUment.,.,;lh respgct 10 which Ihis certl/lcate may boissued orrnay penain. the iflsumnce atlDl'ded by the polities descriDedherain issubJecllo all the tenns. elCeluslortS, and conlitlons of SlJCh policies.
,
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,.,. ,......,.. .i> 2i':=',<
C61TlFICATE ' ,. CANCE;LLATlON . . ...
C.ty I A d P C I ~__ Shoukf any of the above described policies be cancelled before the
. I 0 spen an itkin ounty eXl?iration date thereof, the company' will endeavor to mail -( days)
130 S. Galena wntten notice to the Certificate HOlljer named, but failure to mail such
Aspen, CO 81611 notice shall impose no obligation or Ilabilitv of any kind upqn the
company, Its agents or representatives. .1'0 days unless different
number of days Shown.
!Xl Th,is certi~e~ coverage. on the date i?f j~sue only,. The, above
described pohCI8S are subject to cancellation In conformIty With their
tenns and by the laws ot the state ot issue.
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St_ 06668 Rev. 7/02
TYPE OF INSURANCE
POUCY NUMBER
~bif.1l~)
fiZ'~J'~~
HomeownersJ
Mobllehomeowners Liability
Boatowners Uabillty
Personal Umbrella Liability
FarmlRanc~ llablllty
Workers Compensation and
Employers Liability t
05-XY0573-90-00
6/812005
6/812006
General liability
00 Commercial General
Liability (occurrence)
o
o
05-XD631 0-03-00
5/15/2006
5/15/2005
Buslnessowners Liability
Liquor Liability
Automobile Liability
o Any Auto
o All av",ed Autos
o Scheduled Autos
o Hired Auto
o Nonowned Aulos
o
~p~';,,~~:::r Bla~k.tExces~ :', . ' · -.. ., . ,.
p.. ... ... .1" .. :'> ..,
Other IMlscelJaneous Coveraaes)
:
IvATE IS::.ut:l)
611/2005
U-201 Ed. 5/00
Certificate Holder
LIMITS OF UABllrry
Bodily Injury and Property Damaga
Each Occurrnn<:o $ ,000
Bodily Injury and Property Damage
Each Occurrence $ ,000
Bodilylf'turyillldProper1yDll.magll
Each Occurrence $ ,000
Farm Liability &. Pe~ooal Uabl~1y
Each OccuIJonce $ ,000
Farm Employer's Uabitity
Each Occurranco $ 000
Statutory **'IInt********
Each Accldenl $ 100 ,000
Disease - Each Employee $ 100 ,000
Disease. Policy Umit $ 500 ,000
General AggregalB $ 4,000 000
PradUCI$. CompkJtad ()pe'alions AQQrIl' ala $ 4,000 000
Perno"al and Adl'ertlsillll In.urv $ 0.000
Each Occurrence $ 2.000 000
Dama e 10 Premises Renled to You $ 000
Medical E>cpense (Any Ono Parson) $ 05 000
Each Occurrencet t S ,000
AllQrlilgalatt $ ,000
Common Cause Umi! $ ,000
AggregaleUmlt $ ,000
6odilylr1ury. Each Parson $ ,000
Bodily Injury - Each Acclderll $ ,000
PropertyOarnage $ ,000
Badily Injury and Proporty Oll.lTlilge Combined $ ,000
Each Occurrence/Aggregate $ ,000
t Tho inlividuaJ or panne/'Sshown as insured 0 Have 0 Have "ot
alectedlO be cQ<lsred as emplayees under this poncy,
t t PlfJducts-Completecl Operations aggregate is equal to each
... _:':.'.: occ:urrence limit and Is Included in policy aggregate.
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ATTACHMENT 2 -LAND USE APPLICATION
ApPLICANT:
Parcel ill # (REQUIRED)
William G. Brumder Family Land Trust
214 E. Bleeker St. (Lots A and B Brumder Historic Lot Split)
(Indicate street address, lot & block number, legal description where appropriate)
273707348001 and 273707348002
Name:
Location:
REPRESENTATIVE:
Address:
Phone #:
Julie Ann Woods
P.O. Box 11891 Aspen, CO 81612
970-923-9485 or 970-948-0802 (cell)
Name:
PROJECT:
Name:
Appeal of Director' s lnterpretation
Address:
Phone #:
TYPE OF APPLICATION: (please check all that apply):
0 Conditional Use 0 Conceptual PUD 0 Conceptual Historic Devt.
0 Special Review 0 Final PUD (& PUD Amendment) 0 Final Historic Development
0 Design Review Appeal 0 Conceptual SPA 0 Minor Historic Devt.
0 GMQS Allotment 0 Final SPA (& SPA Amendment) 0 Historic Demolition
0 GMQS Exemption 0 Subdivision 0 Historic Designation
0 ESA - 8040 Greenline, Stream 0 Subdivision Exemption (includes 0 Small Lodge Conversion!
Margin, Hallam Lake Bluff, condominiumization) Expansion
Mountain View Plane
0 Lot Split 0 Temporary Use X Other:--AppealofDirector's
0 Lot Line Adiustment 0 Text/Map Amendment lnteroretation
EXISTING CONDITIONS: (descri tion of existin buildings, uses,
Lot split approved Aug. 13, 1998
PROPOSAL: (description of proposed buildin s, uses, modifications, etc.)
A eal of Director' s lnt
Will reflect the appropriate FAR
historic lot s lit lat and resubmit a lat that
Have you attached the following? FEES DUE: $_660.00
o Pre-Application Conference Summary
X Attachment #1, Signed Fee Agreement
o Response to Attachment #3, Dimensional Requirements Form
o Response to Attachment #4, Submittal Requirements- lncluding Written Responses to Review Standards
RETAiN roR PERMANENT REcoRD