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HomeMy WebLinkAboutminutes.boa.20050929 ASPEN BOARD OF ADJUSTMENT MEETING MINUTES September 29, 2005 Rick Head opened the Special Board of Adjustment Meeting in Council Chambers at 4:05 pm. Members Elizabeth Atkins, Charles Paterson, Jag Pagnucco, Mark Hesselschwerdt and Rick Head were present. Peter McClain was excused. Staff in attendance were: David Hoefer, Assistant City Attorney; Sarah Oates and Chris Bendon, Community Development; Jackie Lothian, Deputy City Clerk. MINUTES MOTION: Liz Atkins moved to approve the minutes from 09/15/05 with amendment deleting "Mark" infrant of Elizabeth; seconded by Jag Pagnucco. All infavor, APPROVED. CONTINUED PUBLIC HEARING: CASE #05-04. APPEAL OF AN ADMINISTRATIVE DECISION REGARDING THE SETBACK FOR LOT 1, BLOCK 3, ASPEN GROVE SUBDIVISION Rick Head opened the appeal hearing. David Hoefer noted that 4 affirmative votes were required to approve the appeal. Head asked how the attorneys resolved the issue as to who was vested in requesting the interpretation. Hoefer responded that two issues were raised: Herb Klein raised the issue as to if the appellant had the right to appeal the director's decision and was questing if the Board of Adjustment had the jurisdiction to hear this appeal. Joe Edwards raised a second issue, which is the proper form for the appeal to City Council as opposed to the Board of Adjustment. John Worcester and David Hoefer reviewed the land use code language and even though the land use code language may not be as clear as they would like but the attorneys interpretation is that the appeal has to be to the Board of Adjustment. Hoefer said that Chris Bendon received a number ofletters and the time to join the appeal has passed; that will not be permitted. Hoefer clarified that this was an appeal and the only parties that were permitted to speak were the affected parties that is Chris Bendon, the Community Development Director; Joe Edwards, the appellant; and Herb Klein, the affected property owner's attorney; so there will be . no public comment. Hoefer stated the order in which the appeal would be heard was Chris Bendon, Joe Edwards and Herb Klein. Chris Bendon said that this was noticed as a public hearing and was confused about that point. Hoefer responded that it was a public hearing in the sense that the public was permitted to be here and the affected parties were permitted to proceed but it wasn't a public hearing in the sense that public comment may be given. 1 ASPEN BOARD OF ADJUSTMENT MEETING MINUTES September 29, 2005 Hoefer stated for the record public notice has been provided, which meets the jurisdictional requirements of the board; the board may proceed. Bendon stated that this case concerns Lot 1, Block 3, Aspen Grove Subdivision; he explained the lot was long and skinny on switchbacks on McSkimming Road and affected by easements. Bendon utilized a colored map to show the utility easements and a right-of-way easement. The land use code addressed lots with more that one street presence having a choice as to which lot line would be the front lot line from which you would measure the front yard. Liz Atkins asked if the code 26.575.040C was what he was relying on, which talks about 2 intersecting streets. Bendon said that was what was applied here and in similar circumstances and gives guidance for the rear yard having to align with other rear yards. Bendon said it was up to the property owner to decide what was the front line to measure the front setback. Bendon said based on the language of the code the north line must be the rear yard and there was a formal process for the land use code interpretation, which was provided. The land owners asking for the interpretation has a right to appeal that interpretation if they don't like it and that was why the process was formalized in that way and legitimizes the process for asking interpretation and gives the person asking for interpretation the right to appeal; those appeals go to City Council. Bendon said the land owner did not appeal so this was an administrative decision basically accepting the landowner's choices to what was their front yard and the reason that they were here tonight was the appeal was about the landowner's decision on an administrative decision by a third party. Bendon stated there were 3 standards upon which could be modified if that was an administrative decision. The denial of review process; the administrative body has exceeded its jurisdiction or the administrative body has abused its discretion. Bendon said that Joe Edwards claimed that the director exceeded his jurisdiction as saying "recognizing the authority to explain the meaning of the text of the land use code but he does not have the authority to construe the effect that such meaning may have in this particular case". Bendon stated that the land use code has a section that sets out who was authorized to do what and in that section it grants the director the authority to enforce any provision of the title in the land use code or any other provision of the municipal code of the city of Aspen; so the enforcement of the land use code really gives the ability to construe the effect of such meaning in a particular case. Bendon said that was what they do; enforce the land use code on a day to day basis even with the review of building permits. Bendon said that exceeding authority did not have a lot of merit because that was what they were authorized to do and the code required them to do and what they were expected to 2 ASPEN BOARD OF ADJUSTMENT MEETING MINUTES September 29, 2005 do. Bendon said that they recommended that the Board would uphold the Directors decision and not adopt Resolution #004-05. Bendon described Resolution #004-06 as adopted reverses the Directors decision. Bendon said the Board should discuss whether or not there was a due process. Rick Head said what the Board was here to do was to determine whether Chris Bendon has exceeded his authority or abused your authority. Joe Edwards said that he was the attorney for Rufus Crockett and Block 3 Homeowners Association ofthis subdivision, which there were 15 lots. Edwards said that he raised the question if it was proper to file this appeal before this Board and initially sought the appeal to the City Council but the Community Development Department rejected that appeal. Edwards cited Chapter 26.316 dealing with appeals says that the City Council has the authority to hear and decide the following appeals: an interpretation of the text of this title and the Board of Adjustment Authority in 26.2l6(b) it says that the Board of Adjustment has the authority to hear and decide appeals and review any order of any administrative official except for appeals of the interpretation of the text of this title. Edwards said their point was that in both of those sections it seems pretty clear to him that the code is saying that when you are asking for an appeal of interpretation of the text for the land use code you are taking it to city council who wrote the land use code. Edwards said there was no better board than the city council to determine the meaning of the text language of the land use; apparently they ended up with the Board of Adjustment because of a provision that has to do with 26.306 that says in appealing an interpretation of the title it says the person requesting the interpretation may appeal to the city council and is silent on other affected parties. Edwards said that their point was that you can appeal to city council any other appeal for which specific authority was not granted. Edwards said combining those together even though it failed to mention other affected parties and only said that the person requesting the interpretation could appeal to city council never the less it was their position that broad catch all language of any other appeal for which specific authority isn't granted can appeal to city council would include that and obviously if you take the position that Mr. Bendon has taken that only the person requesting an interpretation can appeal it and no other affected neighbors can, and they can be significantly affected by an interpretation like the one in this case that would be a denial of due process. Edwards said whoever heard of a situation where one side could appeal but the parties affected couldn't; it's just unheard of. Atkins said that Mr. Crockett would have to ask for an interpretation according to the statute; he was a resident in the city of Aspen. Atkins asked why he didn't do that. Edwards replied it wasn't his property and isn't his issue; he is 3 ASPEN BOARD OF ADJUSTMENT MEETING MINUTES September 29, 2005 affected by the interpretation that was given regarding somebody else's property and Edwards submitted that was not the way to go. Edwards said in another words for him to go out and say I would like you to have an interpretation of my neighbor's property rights would be weird. Atkins said the code says that. Edwards said that anybody can ask for an interpretation but we already had an interpretation by Mr. Bendon on this very property on this very issue and it would be futile if we ask for the same interpretation on that same piece of property. Edwards said there was already the interpretation, which they disagree with so they appeal it because they were an affected party; so it seemed to them that it would have been proper to process this to the city council and not to the board of adjustment. Edwards said they ended up here and they will proceed. Edwards stated with respect to the argument that Mr. Klein had made that they were not an affected party, the code was silent as to other affected parties appealing but it doesn't mean that they can't. Edwards cited subparagraph 4 of the appeals section that says "any other appeal from which civic authority is not granted encompasses an appeal by another affected party" and it would be a due process denial not to allow other affected parties to appeal. Edwards said then the question becomes and under Mr. Klein's original interpretation nobody could appeal except one side of the case and that's unreasonable interpretation of any kind of procedure. Edwards said then the question was he an affected party; he lives up the street and drives by it every time he leaves his residence. Edwards disagreed with Mr. Bendon's statement that they don't have the right to appeal because we were not named as the person who requested it that they don't have the right to appeal it. Edwards said if that interpretation was adopted then that was due process denial if you say that other affected parties have no recourse, no avenue of appeal. Edwards said that if the written word was not followed then there was the law of arbitrary decisions by whoever happens to be in power and that could change with anybody in power; so the words in ordinances mean what they say and are not to be avoided but given an ordinary meaning as reflected in dictionaries. Edwards stated in this case there were a couple of definitions from the land use code; 26.104.100 the lot line front defined as the line normally closest to and or dividing a lot from a street. Edwards stated that the line dividing this lot from the one continuous street was one continuous line and that is the line that divides the lot from the street; the other definition that was relevant here was a yard front defined as the yard extending the full width of a parcel, the depth of which is measured by a horizontal distance between the front lot line and the nearest principal building. Edwards said those definitions were pretty clear and unambiguous and he did not see a lot of need for interpretation of them. Edwards distributed copies of dictionary pages regarding the word interpretation. 4 ASPEN BOARD OF ADJUSTMENT MEETING MINUTES September 29, 2005 Jag Pagnucco asked who was appealing. Edwards replied that it was Rufus Crockett but a lot of the other lot owners agreed. Pagnucco said this was not a traditional subdivision. Edwards provided the history of the Aspen Grove Subdivision and stated that this applicant owned more than just one of the lots. Edwards said that given the shape of this lot was intended that any residence be placed on the north. Edwards presented his own drawings ofthe property showing where he thought the building should be located and his calculations of floor area. Herb Klein stated that he was the attorney for the lot owners, Warren Maple LLC and David Maple LLC. Klein said that this was a simple case dealing with a day to day decision that the Planning Director has the authority to make; this was a very unusual lot. Klein said that the code does not give Mr. Crockett the right to appeal at an administrative level but always has the right to appeal to court; the only time there would be a denial of due process was if it could not appeal to court. Klein said there were administrative appeals that had to be exhausted before you get to go to court. Klein said that he read the code to say that the person who sought the interpretation has the right to appeal it and anybody else has to go to court. Klein said in his letter of September 15, 2005 he questioned whether or not Mr. Crockett was an affected party; if this did go to court the question would come up whether he had standing and he would have to demonstrate to a judge why he was experiencing a special harm to his property that the general public does not. Klein submitted that McSkimming Road was a public road and people who live in the neighborhood or don't live in the neighborhood drive up and down the road and the only harm that was alleged was seeing a house built out on the extension of this lot just like every other member of the public gets to see it. Klein said the front lot line is normally closest to the road and that was where the planning director makes these kinds of determinations and there were a number of examples on McSkimming Road of similar lot configurations. Klein said that Fritz Benedict created the lots and strict building restrictions but there was not a "no build restriction." on the end of this lot; this lot was totally buildable with setback restrictions. Klein said that in his September lih letter there were cases cited that deal with the scope of this board's review of Chris's decision. Klein said that the scope of the review by the board had to uphold the decision unless there was no evidence to support it; that you have to give the zoning administrator's decision great deference and you cannot substitute your judgment for that of the administrator. Klein asked the board to uphold the decision. 5 ASPEN BOARD OF ADJUSTMENT MEETING MINUTES September 29, 2005 Rick Head said simply the board was being charged with determining whether Chris exceeded his authority on this matter. Mark Hesselschwerdt said there was an assumption by Chris to facilitate the request that came before him and that was to assume that the north boundary was the backyard ofthe neighbor. Hesselschwerdt said that the tip wouldn't be the front yard; normally there would be a front and a back on the peninsula. Liz Atkins said this goes more to the standard of review; she said that she may disagree with the interpretation of calling this a corner lot because it doesn't have two intersecting streets but it appears that determination has been made in similar cases with similar geography where the one street goes around a lot. Atkins said it doesn't seem to be an abuse of discretion and looking at 26.3l6.030E, it spells out how the interpretation can be overturned but discretio)1 was not abused. Atkins also agreed with Herb's interpretation. Charlie Paterson agreed with Elizabeth and what was before the board was the rounded part of the lot and the lot was squared off there wouldn't be a discussion. Jag Pagnucco agreed with Charlie and Liz. Peter McClain agreed with Liz and Charlie. MOTION: Mark Hesselschwerdt moved to approve Resolution #004series of 2005; seconded by Elizabeth Atkins. Roll call vote: Pagnucco, no; Atkins, no; Hesselschwerdt, yes; Paterson, no; Head, no. DENIED 4-1. David Hoefer clarified that the decision of the Community Development Director was upheld by this motion. Adjourned at 5:30 p.m. \ ckie Lothian, Deputy City Clerk 6