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HomeMy WebLinkAboutminutes.council.20060214 Continued Meetin1!: Aspen City Council February 14. 2006 Mayor Klanderud called the continued meeting to order at 4: 1 0 p.m. with Councilmembers Johnson, Torre and DeVilbiss present. "- Mayor Klanderud said at the beginning of yesterday's regular meeting, Councilman DeVilbiss wanted to offer proof to Council regarding a request to reconsider the Limelite proposal. Council continued the meeting so this offer of proof can be presented. Councilman DeVilbiss stated he is concerned that applicants for development make reference to their need to have certain things because the financial viability of the project depends on those things. There is no way for Council to test those representations. Councilman DeVilbiss said he has copies of minutes of two P&Z meetings with statements by Steve Szymanski that he had opened the books to the city manager and the finance director. Councilman DeVilbiss asserted pursuant to section 32 of Ordinance #1, Series of 2006, "all material representations and commitments made by the applicant pursuant to this application whether in public hearings or documentations presented before the Historic Preservation Commission, Planning & Zoning Commission or City Council are hereby incorporated in such plan approvals and the same shall be complied with as if fully set forth herein unless amended by an authorized entity". Councilman DeVilbiss asserted this section brings into the record of proceedings whatever it was that Szymanski showed to staff. Councilman DeVilbiss said it is not an issue that city staff did see something. Steve Barwick, city manager, told Conncil staff was shown and had explained to them a financial pro forma of the Limelite proposal. Councilman DeVilbiss said he had asked from the beginning that there was an agreement reached between Szymanski and staff these would be held confidential. Barwick said representatives of the Limelite team made statements that a certain percentage of free market was necessary to the financial driver behind the lodge redevelopment. Council asked if they could see those; the city attorney pointed out when Council sees documents, they become public documents. The Limelite withdrew the offer and said they would show these pro formas to staff, who could report back to Council a maximum percentage to put in the infill ordinance. Councilman DeVilbiss said there is a difference between the information provided to establish how much free market development there could be per development, which was established at 25% in the infill ordinance. Councilman DeVilbiss said financial information was presented to arrive at that 25% figure. Councilman DeVilbiss asked if the applicant asked for 40% and that is what was in the PUD. Barwick told Conncil the representation made to staff was not that this was a PUD application; it was a pro forma to help influence the percentage in the infill ordinance. Barwick said that number was 35 or 40% and staff came back with a recommendation it should be 20 to 25% in the ordinance and anything in excess of that would require review by Council. Councilman DeVilbiss said it was represented to him that whatever was presented to staff was returned to the developers. Councilman DeVilbiss said he discovered the Chris Bendon, community development department, has a copy of that information. Councilman DeVilbiss asked if that copy could be marked as an exhibit. Mayor I Continued Meetin1!: Aspen City Council February 14. 2006 '..... Klanderud stated once that is an exhibit, it has the potential to become public record. John Worcester, city attorney, said ifit is only being marked for identification and not be introduced into the record, it is not part of the record. Councilman DeVilbiss said he needs to establish what staff saw. Worcester said it can be identified and until the Mayor decides it is part of the record, it is not part of the record. Councilman Torre said he disagrees with this line of hearing; the hearing is under no formal rules of what is being established. Councilman Torre said the proofCouncihnan DeVilbiss wants to show seems to be offbase from the issue. Councilman Torre said he would like this to be a session that works and this seems to be going about it the wrong way. Councilman Torre said there are no ground rules for this quasi-hearing. Councilman Torre asked what the process should be because there is no formality to this hearing and he does not know what the burden of proof is. Councilman Torre stated regardless of what staff saw, regardless of whether a copy still exists had no bearing on the application before Council. Councilman Torre said he does not see how proving this influenced the issue and that the decision should be reconsidered. Councilman DeVilbiss said he is trying to establish that financial information was provided to staff, which financial information formed the basis for some decision-making and he would like that information included in the record. Mayor Klanderud agreed it makes sense for Council to know where this hearing is going. Mayor Klanderud stated she is opposed to this document becoming part of the record. That decision was made months ago. Mayor Klanderud said that information was not pertinent to her decision on the issue. Conncilman DeVilbiss reiterated he would like to get the document identified. Worcester said having the exhibit identified is not the same as entering it into the record. Councilman Johnson said he attended a meeting when the previous Council was considering the incentive lodge code amendments and the Limelite application had not yet been presented. Councilman Johnson said the then Council asked the owner of the Limelite to help figure out what percentage of free market should be part of the ordinance to make projects work so the community could get incentive lodge development. Councilman Johnson said if the document was offered to Council for the purpose of writing an ordinance and not in the context of a specific application, then the document is not important in the context of an application. Councilman Johnson said he does not think the pro forma information has anything to do with the Limelite application. That information may have changed from when it was presented to staff and when a specific application was presented. This is about two different things, showing evidence for the gathering of information or showing evidence in the context of the actual PUD application. Councilman Torre said Council made sure during the writing of the lodge code amendments that were was no consultation by a pending applicant to influence the outcome ofthe code amendment. Councilman Torre agreed lodge owners gave their input during work sessions and Council meetings; however, it is not up to them to tell Council what works for them. Councilman Torre agreed that the document being referred to did not influence Council's decision on the Limelite; it was not even offered 2 Continued Meetin1!: Aspen City Council February 14. 2006- '.,..- as part neither of their application nor as a representation or commitment. Mayor Klanderud said the financial pro formas were never presented to HPC, P&Z or City Council. Councilman Torre said he cannot see a reason to have these documents entered into the record. Councilman Torre said he would like to look at having an outside body help Council with the financial side of an application in the future. Councilman Johnson said when the city is writing major amendments to the land use code, gathering as much information as possible from knowledgeable sources seems to be reasonable. Councilman Johnson said he does not feel financial information offered during the time the land use code amendment was being written has anything to do with the particular PUD. Councilman Johnson noted the applicant mentioned finances several times. Councilman Johnson stated every PUD application he has reviewed, applicants make claims about finances. Because there is no language in the code regarding finances, this has never been a consideration. Councilman Johnson stated a project is either a good land use decision or not; profit is not P&Z or Council concern. Councilman Johnson said he will not consider reopening the Limelite PUD because it is not right to hold them to a standard to which other applicants have not been held. Councilman Johnson said he would be willing to consider anything Council can do to not allow this in the future; either tell applicants if they use a financial argument, they have to produce something or to hire an outside consultant to advise Council. Councilman DeVilbiss said he is not being allowed to make an offer of proof and he feels he can make a record and an offer of proof. Worcester said the Mayor is the presiding officer and can decide how to conduct a meeting and can be overruled by an appeal from a Councilperson. Worcester asked under what context is the record being offered, a record of Council, and a record of the Limelite. Councilman DeVilbiss said it is the record of this meeting. Worcester reiterated the Mayor is the presiding officer and she can allow Councilmembers to make whatever record is necessary or appropriate. Worcester told Council an offer of proof is usually provided by an attorney who has been overruled by a judge and the attorney wants to present evidence which the judge has determined is inappropriate, the attorney asks for an opportunity to make a proffer of what the evidence would have been, which is typically done away from the jury, but it is preserved on the record in case the case goes up to an appeal. Mayor Klanderud said this is not a court oflaw; this is the Aspen City Council. Mayor Klanderud said she has problems with discussing subpoenas, offers of proof, witnesses; Council is being asked to treat this as if it is a court of law. Mayor Klanderud stated this is not an appropriate venue. Mayor Klanderud said it was decided previously the financial pro forma was not part of the record and she is not inclined to identify it for building the record. Councilman DeVilbiss said he is asking for a fair hearing. Councilman DeVilbiss quoted from the P&Z minutes of May 3, 2005, "they took their books and opened them to the city manager and finance director to show their underlying needs" and the minutes from June 14, 2005, "Steve Szymanski they opened their books to the city finance department 3 Continued Meetin1!: Aspen City Council February 14. 2006 '....""oF and city manager". Councilman DeVilbiss stated this is in the context of the PUD and the pro formas have been represented to support the PUD. Mayor Klanderud said she takes this as a statement that staff has seen the financial information; Council is aware staff has seen this information. The financial pro forms were not presented to the P&Z, and had he done that, according to Section 32 of the ordinance, it would have been part of the record. Councilman DeVilbiss said he would like to make a record to show that eventually pro formas should have been a part of the record and that they were used to influence the process. Councilman DeVilbiss said this is a part of the record that some other body may review. Councilman DeVilbiss said he is faced with a pro growth Council and he is a slow growth advocate. Mayor Klanderud suggested what might be more profitable for Council and the community to have a broader discussion on either land use code amendments or what the city's philosophy on growth should be. Councilman DeVilbiss reiterated he wants to make a record of what was excluded. Councilman DeVilbiss asked what could have been done to make this financial information part of the record. Worcester said he would have asked the applicants to put this in the record or to stop referring to it; it the applicant refused to do so, that would be taken into account. This is the applicant's document. In a court oflaw, a jury can take into account that a witness refused to back up their statement. This does not make the document part of the record. Mayor Klanderud, Councilmembers Torre and Johnson agreed they did not feel the pro form as nor the statements at P&Z make this fall under Section 32 of Ordinance #1 and should be made part of the record. Councilman DeVilbiss said he feels they should be part ofthe record. No Councilmember ofthe prevailing side was interested in reconsidering Ordinance #1, Series of 2006. Councilman Torre moved to adjourn at 4:55 p.m.; seconded by Councilman Johnson. All in favor, motion carried. S. Koch, City Clerk - 4