HomeMy WebLinkAboutcoa.lu.ex.TippleInn.1979
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Recorded 1:34 PM Oct 29 l~,a Reception#
219100
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SUBDIVISION EXEMPTION AGREEMENT
llOOI\378 atE294
1. Parties. The parties to this agreement are The Tipple
Lodge, a joint venture ("the Owner") and the City of Aspen,
Colorado, a municipal corporation ("the City").
2. Recitations. The Owner holds fee title to the
following described property ("the subject property") in the
City of Aspen, pitkin County, Colorado:
Lot 2, Tipple Woods Subdivision, according to
the recorded plat for Tipple Woods Subdivision
recorded as Document No. 107798 in Ditch Book
2A at Page 250 of the records of Pitkin County,
Colorado.
The subject property is improved with a three-story building
containing two studio apartments, ten bed- and bathroom units
("lodge units"), and enclosed area used for interior circulation,
lounge, reception room, laundry room, and mechanical and
storage purposes. The Owner desires to condominiumize the
building into ten lodge units and two studio units, all of
which may be held in separate ownerships, and the remainder
into common elements. Pursuant to Section 20-l9(b) of the
Municipal Code of the City of Aspen, Colorado, the Owner
requested that the above described condominiumization be exempted
from the definition of a subdivision set forth in Section 20-3(s)
of the Municipal Code. Concerned that the condominiumization
might reduce the supply of short-term housing in the L-2 zone
district of the City of Aspen by virtue of lodge condominium
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unit owners' use of the units as residences and/or withholding
the lodge units from the rental market, the City Council
required, as a condition of its approval of the exemption
application, that the Owner enter into an agreement with the
City restricting the use of the subject property and the
condominium units created therefrom as follows.
(a) the ten lodge units shall be made available for
short-term rental at market rates and shall be registered with
a central reservations entity in pitkin County, Colorado: and,
(b) no kitchen shall be constructed in any of the lodge
units without the owner thereof having obtained a building
permit therefor, it being specifically understood that the
Growth Management Plan (Article X of the Municipal Code) precludes
the issue of a building permit for such construction without
the owner obtaining a residential allocation within the terms of
the Growth Management Plan: and,
(c) the lodge units shall have local management which may
be different for different units.
3. A<jreement and covenant. In consideration of the City's
approval of the exemption from subdivision of the said condo-
miniumization, the Owner hereby agrees with the City that the
provisions of subparagraphs (a), (b) and (c) of the above par-
agraph numbered 2 shall encumber the subject property and the
condominium units created therefrom, shall run with the land
and shall be enforceable against all subsequent owners thereof,
including the Owner, its joint venturers, its successors and
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OOOK378 l'uE296
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and assigns. Should the subject property not be condominiumized
and conveyed as such, this agreement shall be null and void and
the subject property may be conveyed free and clear of any
restrictions imposed by this agreement, but subject to all
applicable laws and ordinances in force on the date of the
conveyance.
4. Subdivision exemption. The City, in consideration of
this agreement, exempts the condominiumization described herein
from the definition of subdivision, such that condorniniumization
may occur without further action or approval by the City.
5. Perpetuities. The covenants contained herein are to
run with the land and shall be binding on all parties and all
persons claiming under them for a period of twenty (20) years
from the date these covenants are recorded, after which time,
the covenants, as contained in paragraph three (3), shall be
automatically extended for successive periods of ten (10)
years, unless an instrument signed by the record owners of
the property and the Mayor of the City of Aspen pursuant to a
vote taken by the City Council has been recorded which changes
said covenants, in whole or in part, or which releases the same.
IN WITNESS WHEREOF, the parties have executed this
agreement in Aspen, Colorado, this c15
day of ~
,
1979.
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BOOK378 fAGE297
THE CITY OF ASPEN, COLORADO,'
a municipal corporation,
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ayor
ATTEST:
by
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. ci ty C rk
(MUNICIPAL SEAL)
THE TIPPLE LODGE,
a joint venture,
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f.i Joint venturer
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oi ven urer
STATE OF COLORADO
COUNTY OF PITKIN
ss.
The foregoing instrument was acknowledged before me ~y
Herman Edel and Kathryn S. Koch, mayor and city clerk,,', .
respecti v7ly ~.9J the Ci ty o~~ Colorado, for thEl,.i.i(;:itX"Of'
Aspen, th1s~day of {il ' 1979. ,""~'.J:""'"
wi tness my hand and 0 [~cr'1l_ seal. ,_- /" J ~ 0.;, .....
My commission expires: (;X!XXJer 19, "8;;J- }' <s'. ....'" ".
,0 "\ \ (1 f) .~.,
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(NOTARIAL SEAL)
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STATE OF C?40RADO
COUNTY OF~~
ss.
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The foregoing instrument was acknowledged before
~qh,rj,~r..,~a~lkner, . joint senturer of ...7'he~ipple Lodge,
JQ.i.l).t::~~t'l.>J;e, th1S /7"ti1day of fl.t.~./
. ".' ',W.it<<l.~s:S my hand and official seal.
,,:;' .;;~.':.:'~..'IlUtl. ,:'.~S$iOn expires:01..-I'7'f3 /J ;;
". (NOT~.S~7i) ~ h. &~
'. . ,', ";,t;.;:t' .: Notary Public
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me by
for the
, 1979.
STATE',tlF..'COLORADO
COUNTY OF p~
)
) ss.
The foregoing instrument was acknowledged before
Mary.... it. .~.).F....au.lkner, joiM ,vilnturer of ~e~l?le Lodge,
jo,;Urt'",~~'~,ure, this I/C[l:.day of . (L!f~"
':'~,p..~'~t\t:f~~ my hand and official seal.
/,~~'iNJ.~W~?o:~~ion expires:;2-ILf-f3 ~ th, ~
: "; ',f '.: c';,' Notary Public
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me by
for the
, 1979.
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TO: Aspen City Council
Ron Stock, City Attorney
FROM: Richard Grice and Karen Smith, Planning Office
RE: Report of Lodge Preservation Clause
DATE: September 18, 1979
Early this summer, the new owners of the Smuggler Lodge on Main Street
petitioned the Board of Adjustment for a variance from Section 24-12.5,
Repairs and Maintenance,for the purpose of permitting renovation of that
structure. The lodge is a non-conforming use and as such, is not permitted
more than "ordinary repairs not to exceed 10% of the replacement value of
the structure in anyone year". The variance was granted on the basis that
it was in the public interest and in light of testimony from the Planning
Office and City Attorney regarding intent of the Main'Street zoning.
Prior to the Main Street Office zoning in 1975, the Planning Office
supported making lodges an allowed use in that zone district. We felt that
the existing use mix (office, lodg~, residential) was one that should be
preserved in order to maintain the residential scale and character of Main
Street. Limited crnnmercial uses were'allowed only to preserve hlstoric
structures within the existing residential scale and character. City Council
at the time felt that there was no way to prevent expansion of the existing
lodges without makilg all of the lodges non-conforming uses.
The Board of Ajjustment, P and Z and Council have all expressed interest
in a code amendment to allow up-grading. We propose the following as a way
to allow the up-grading of those lodges without allowing the construction of
new lodges or the expansion of old lodges. This could be accomplished by
adding a new Section 24-12.10 entitled "Lodge Preservation. Clause". Suggested
language would be as follows: '
"All lodge uses that were 1a\~fully established and continually
so used thereafter shall be entitled to continue and be deemed
allowed uses; provided, however, that they may not change,
replace, alter or repair, extend, restore, ,or resume after
discontinuance without having obtained approval thereof pursuant
to the conditional use provisions of ~iection 24-3.3. Notwith-
standi ns the. provi s ions of thi s Section, there s~a 11 be no
increasE in numbers of units."
Lodges are an important facet' of Asp"en as we have a touri st based economy.
While the Planning ,Office recommends the retaining of the present rate of
growth in lodge un~ts, we support the up-grading of those lodge facilities.
Recently, there ha~ been support from a broad spectrum of the community for
the up-grading of our lodges. ' The Chamber of Commerce has participated in
nationwide surveys which indicate that Aspen's image is deteriorating because
of lodge conditions.
. .
Features of this proposal needing additional input include:
1. ' This review as a conditional use involves only the P and Z, not
Council, thus shortening the process, but Council must be sure they
wish to delegate that authority.
2. The provision could also be extended to non-conforming residential
uses. We would reconmend it for the same reasons--to allow up-grading
(including expansion of square footage), provided the units are
limited to six-month rentals, i.e., long term.
.
3. ,As proposed this applies to all non-conforming lodges--not just
those on Main Street. This nlay be some~lhat contrary to the land
use policy of encouraging lodges in the lodge district and
discouraging them elsewhere. 'Realistically, however, existing
non-conforming lodges al'e unlikely to relocate, so again our
remaining concern should be to prevent proliferation of lodges
outside lodge districts and to discourage conversion of lodges
1n lodge districts.
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Memo to COllllcil
Re: lodge Prl~S"l'Vilt ion
September lU, 1979
Page Two
The last point relates somewhat to the issues of lodge condominiumization
and allowing residential uses in the Lodge 1 zone. Those issues are now
before the P and Z and will be reported to you separately.
cc: Aspen Planning and Zoning Commission
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MEMORANDUM
TO:
FROM:
RE:
DATE:
Aspen City Council
Richard Grice, Planning Office
Tipple Lodge - Subdivision Exemption
September 13, 1979
The attached application requests subdivision exemption for the purpose of
condominiumization of the Tipple Lodge. The Lodge, which is located at 620 South
Galena, directly west of the Little Nell ski run, consists of ten bed and bathroom
units and two studio units. The bed and bathroom units do not contain kitchens.
All of the units with the exception of one studio have historically been used for
short term occupancy. The applicant proposes deed covenants which would guarantee
the property to continue being used as a short term facility.
The application was referred to Dave Ellis, City Engineer, who recommends
as follows: "After review of this application for subdivision exemption and a
site inspection of the existing improvements, the Engineering Department recommends
that the exemption be granted without condition."
The Planning Office has made additional referrals to the Ski Corporation's
Marketing Department, the Association of Condominium Managers and in addition, has
discussed the problem with several individual realtors. Dick Mabius, whose
experience mainly evolves around the West Village, is of the opinion that the
condominiumization of lodge units results in the continuation of the use of the
unit as a short term unit and furthermore it often results in upgrading individual
units. Mr. Mabius did indicate that he was aware of the fact that two out of
94 units in the Stonebridge Inn, which was condominiumized in November of 1976
are no longer available for short term rental.
The Condominium Managers Association has stated that they would be willing
to support the concept provided guarantees, relating to short term rental, are
written into the covenants and/or declarations of a particular complex considering
condominization (i.e., no cooking facilities, limited owner usage).
Don Helmich, manager of Aspen Square, has given us quite another viewpoint.
Mr. Helmich has observed a tendency in the market place among particularly
affluent owners to remove their units from the market for short term use. Apparently,
this tendency is a direct result of the price point which the units are bringing.
Conversations with a variety of realtors have convinced the Planning Office
that it is an established fact that at some time in the value spiral which results
from condominiumization and from normal market pressures, the type buyer attracted
is no longer in a position of having to rent his unit at all.
The Planning and Zoning Commission has been reviewing this application at
various meetings throughout the summer. On September 4, 1979, the Commission
acted recommending denial of the subdivision exemption for the Tipple Lodge,
primarily for the reason that they felt the condominiumization' would constitute
a change in use which would be uncontrollable and have a wide range of negative
repercussions. While the covenants proposed by the applicants may have made
every effort to guarantee a continuation of the short term use, the documents are
not self-enforcing and the City does not have the manpower to guarantee their
enforcement,
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Tipple Ladge
Box 147
Aspen, Colorado 81611
(303) 925N1V 3764
Aspen Planning and Zoning Commission
130 South Galena
Aspen, CO 81611
28 AUG 79
Dear Commissioners:
Due to the earlier start of our hearing scheduled for 7 p.m. August 21,
neither my attorney nor myself was present when the discussion regarding
Joanie Klar's visit to a lodge room with cooking facilities took place.
We understood from the summary given that she had merely visited ~ lodge
room located somewhere in town and did not realize she waS referring to
the Tipple Lodge until it came out in the Aspen Times. August 23.
Shocked when I read the account in the paper, I telephoned Ms. Klar to
determine which of our lodge guests could have violated our rules.
Upon laarning the name of the guest Ms. Klar visited, I checked with the
front desk and learned that she had, in fact, visited a tenant in unit
#11, a two-bedroom condominium apartment in the Tipple Inn, not the
Tipple Lodge. Kitchens are quite legal in the Tipple Inn.
The mistake was quite understandable due to the similarity of the names
of the two buildings, and I am completely convinced that Ms. Klar
meant no ill-will when she reported to the APZ what she thought to be the
truth. Moreover, I am confident that she will set the record straight at
the next APZ meeting. Her apologies to me for her honest mistake were
most adequate.
However, and this is why I am writing at this time, we do find it necessary
to present a letter to the editor of the Times in order to inform the
general public and our colleagues that the Tipple Lodge does not have
illegal kitchens and that a mistake was made. Wetre sure you understand
that we have a reputation to protect.
Sincerely,
i41~U: ~-"< 1/.IU4--'
Mary I. Faulkner
Owner, Tipple Lodge
CONDOMINIUM RENTAL MANAGEMENT, INC.
Box 1750 Aspen, Colorado 81611
(303) 925.2260
Managing Agent For
. Fasching Haus
. Alpenblick
August 28, 1979
Ms. Joan Klar
Aspen Planning & Zoning Commission
130 S. Galena
Aspen, Colo. 81611
Dear Ms. Klar:
Mary Faulkner, owner of the Tipple Lodge, has asked me to
write this letter pursuant to a recent conversation the
two of you had concerning illegal kitchens in the Tipple
Lodge. 1 understand that you visited a guest named Bob
Jarman and found what you thought was an illegal kitchen.
Since Mary obtained her information to clarify this matter
via a telephone call to my front desk, she wanted me to
follow up with a written assurance to set your mind at
ease.
Please be advised that Mr. Bob Jarman resides in unit #11
of the Tipple Inn, not the Tipple Lodge. Unit #11 is a
two-bedroom condominium apartment which has always had a
fully authorized kitchen.
I would like to add that as managing agent for many pro-
perties, including the Tipple Lodge, I do not permit ill-
egal kitchens. My staff is ever-present and is instructed
to report all such irregularities to me immediately. Fur-
thermore, I could not, from an ethical standpoint, work
with either an owner or a tenant who asked me to overlook
the law whether regarding illegal kitchens or any other
point.
SinCplY,'
101 ~~
Leel1:. M;'ll er
Managing Agent
cc: Mary Faulkner
J.D. Muller
Condominium Rental Management, Inc., is the Agent for Fasching Haus Condominium Association, Box 8606, Aspen,
and the Alpenblick Condominium Association
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MEMORANDUM
TO:
FROM:
RE:
DATE:
Aspen City Council
Richard Grice, Planning Office
Tipple Lodge - Subdivision Exemption
September 17, 1979
~
The attached application requests subdivision exemption for the purpose of I ,
condominiumization of the Tipple Lodge. The Lodge, which is located at 620 South 0;,
Galena directly west of the Little Nell ski run, consists of 10 bed and bathroom
units and two studio units. The bed and bathroom units do not contain kitchens.
All of the units with the exception of one studio have historically been used for
short term occupancy. The applicant proposed deed covenant which would guarantee
the property to continue being used as a short term facility.
,
\
The application was referred to Dave Ellis, City Engineer, who recommends
as follows, "After review of this application for subdivision exemption and a
site inspection of the existing improvements, the Engineering Department recommends
that the exemption be granted without condition."
The Planning Office has made additional referrals to the Ski Corporation
Marketing Department, the Association of Condominium Managers, and in addition
has discussed the problem with several individual realtors. We were largely
disappointed with the results of our referral efforts.
The Condominiumization Managers Association stated that they would be willing
to support the concept provided guarantees, relating to short term rental, are
written into the covenants and/or declarations of a particular complex considering
condominiumization (i.e., no cooking facilities, limited owner usage). The
Planning Office had hoped that the Association could suggest some workable guarantees.
The Ski Corporation likewise felt that short term accommodations should be
maintained at the base of Aspen Mountain in order to guarantee the continues
viability of the economy. They went on the explain that they philosophically
resist the attitude that government action alone can solve all the ills of the
community. Noticeably missing from their comments were suggestions for solving
the problem.
Dick Moebius, whose experience mainly evolves around the West Village, is
of the opinion that the condominiumization of lodge units results in the continuation
of the use of the unit as a short term unit and furthermore, it often results in
up-grading of individual units.
We received a letter from the general manager of the Stonebridge Inn, David'
Spence, in which he indicated that the Stonbridge continues to be run like a hotel
with only two units removed permanently from the short term market by their new
owners.
Don Helmich, manager of Aspen Square, has observed a tendency in the market
place among particularly affluent owners to remove their units from the market
for short term use. Apparently, this tendency is a direct result of price point
which the units are bringing.
Conversations with a variety of other realtors including Perry Harvey who
is on the Aspen Planning and Zoning Commission, have convinced the Planning Office
that it is an established fact that at some point in the value,sRiri3.1 which results
from condominiumization and from normal market pressures, the type buyer attracted
is no longer in a positi~n-9f having to rent his unit at all. The Planning and
Z<n1fng Commission has been reviewing this application at various meetings throughout
the summer. On September 4, 1979, the Commission acted, recommending denial of the
subdivision exemption for the Tipple Lodge, primarily for the reason that they felt
the condominiumization would constitute~i3.Dge in use which would be uncontrollable
and have a wide range of negative repercussions. While the covenant proposed by
the applicants may have made every effort to guarantee a continuation of the short
term use, the documents are not self-enforcing and the City does not have the
manpower to guarantee their enforcement.
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J,D, MULLER
ATTORNEY AT LAW
THE WHEELER OF>ERA HOUSE
F>. o. BOX 4361
ASPEN, COLORADO 8t611
303 926-1923
13 August 1979
Ron Stock, City Attorney
130 S. Galena
Aspen, Colorado
RE: Tipple Lodge, application for subdivision exemption
Dear Ron:
Enclosed is a draft covering the concerns of P&Z expressed
at my clients' appearance before the commission August 7.
I also enclosed are originals and copies of two letters
from my clients to the P&Z which I failed to give to the
commission on August 7. Would you see that they get into
the P&Z packets.
Our position continues to be that we,'wish to cooperate 'with
P&Z and for that reason we have discussed possible agreement
on restrictions on the subject property. However, our
position on our need to satisfy Growth Management, i.e., that
we are covered by it, continues to be that expressed in
my letter to you dated July 24, 1979.
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Enclosures
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HAND DELIVERED 8/13/79
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RESOLUTION OF TilE r\sP[i~ PLANNING
AND ZONING COI'I~lISSJON RECOffi,I'lENDHlG
DENIAL OF '[liE CONDOMINIUMIZATION
OF THE TI PPLE LODGE
IJ
Reso'lution No. 79"-1..1._
WHEREAS, the owners of the Tipple Lodge which is located in the L-2 zone
district have filed an application which requests subdivision exemption for the
condominiumization of said Lodge, and
fJHEREAS, the Planning and Zoning Commission has heard evidence of the trend
among particularly affluent condominium owners to l'emove their units from the
short..term market an,J the Commission feels that it is imperative that all units
in the Lodge zone cO,lti nue to be ava il ab 1 e for short-term occupancy, and
WHEREAS, the Commission is concerned that condominiumization would result
in an undes'irable clnnge in the char'acter of the Lodge zones by the el imirration
of the personal touch of a wi de range of on-si te rental and management servi ces,
and
WHEREAS, the Cc.mrission is very definitely ir favor of upgrading quality of
Aspen's lodges which are located in the Lodge district or in other districts
and have fOrJm"d a ccmmittee to investigate methods for accomplishing this
goal, and
I-IHEREAS, the CCllrunission is of the unanimous <pinion that the condonliniumiz,l-
tion of lodges is not in the community interest and are therefore in favor of
a prohibition again~t the condominiumization of l"dges.
NOlv, THEREFORE,. BE IT RESOLVED that the Aspel1 Pl ann i ng and Zoni ng COImni ss ion
does hereby, recommend deni a 1 of the subdi vi sian e:<empti on for the condomi umi zati on
of the Tipple Lodge for the following reasons:
1. The Commi ,sion believes condominiumization vlOuld be detrimental to the
tourist hJusing supply in that it opens the possibility for l'educing
that supply, and
2. Disintegrated ownership through conclominiumization would increase the
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possibility of abuses such as the installation of illegal kitchens, and
The insta]lation of kitchens into lodge units would change those units
fran lodge units into dwellhlg units th;>reby violating the Growth
Managemert Plan, and
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4, Condominiumization vlOuld rcduC(~ the lodge aspects of the property by
disintegrilting 111ilnageml'nt, 1""'S(~rvat'ic'ns, l1Iailltenance, and other
,
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benefi ci a 1 servi ces, imd
5. The COlTlmission believes thilt condOlniniumization would create immediate
pressures for the different owners to go in different directions with
or restrictive covEnant which is a sufficient guarantee against the
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regard to rental price, use, management, and
6,
The Commission believes it to be impossible to create an agreement
possible Dbuses envisioned, an~
7, A potential reduction in the supply of lodge units in the Lodge
district place additional pressure on surrounding residential zones
for lodge development,
Adopted thi s 4th day of September, 1979, by the Aspen Pl anni ng and Zoni ng
ATTEST:
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Aspen J-'1 anni ng
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and Zonin9 Commission
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Tipple Ladge
Box 147
Aspen, Colorado 81611
(303) 925-rw; 6812
Aspen Planning And Zoning Commission
130 South Galena
Aspen, CO 81611
31 JUL 79
Dear Commissioners:
As you know, wa dasire exemption from subdivision for the purposa of
condominiumizing our hotel. We appeared before you on June 19, and our
request was tabled until July 31. During this period, you and we set about
to gather facts to aid in determining whether granting our request would
have an impact on the community and, if so, whether that impact would be
negative.
We have talked with a good many people and have received both written and
oral replies which convince us that condominiumizing our hotel will have
little effect, if any, on the nature of our tourist hotel operation.
We understand that your largest concern is that affluent purchasers will
be likely to take their units off the short term rental market to either
cut down on wear and tear or to reserve the units for themselves. We firmly
believe that this will not be the case and base our conclusion on the
following:
1. That has clearly not been the experience of other condo-hotels in
the vicinity (Stonebridge Inn, The Pokolodi).
2. Although there are exceptions to every rule, in general affluent
purchasers are not likely to make such an unwise economic de-
cision; they did not become affluent by doing so. Purchasers of
income-producing property generally want that income to continue,
to pay the mortgage and to provide a rental "track record" which
is desirable should the purchaser later decide to sell his unit.
3. The tax advantages availabla to owners of rental income proparty
are considerable. The owner of such property, providing he does
not reside in it for more than 14 daye a year, can deduct
depreciation, maintenance and repairs, utilitie8~ management fees
_ in short, all expenses of the business. He would lose these
advantages if he took the unit off the rental market. While it is
possible to cheat the IRS, we cannot assume that a purchaser would
attempt to do this either by charging impossible rates or by some
other method. Condominiums of all kinds are currently under close
scrutiny by the IRS, and such a purchaser would eventually be caught.
4. Common sense dictates that a hotel located at the basa of a ski
mountain should continue to be a hotel. This is clearly the best
use of bed and bath property so located. We have owned the building
for eight years and could have, without asking anyone, turned it
into long tarm rental property. Moreovar, due to an extremely
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favorable mortgage situation, we could have let the building lie
fallow while we took outside jobe and watched the property
appreciate. However, we quite easily SaW that we could earn more
money by operating a hotel at the site in question. We believs
that other purchasers would reach the same conclusions.
Also discussed at the June 19 meeting was the fear that tourist rental rates
would skyrocket due to ever-increasing unit purchase prices. This may be the
case with the more luxurious condominium apartments in town, but a condo-hotel
has to operate under the eame rate guidelines as a single-owner hotel. A hotel
is a hotel, and the tourist neither knows nor cares what the mortgage payments
are; he compares rates and shops around. Optimal ratas are detsrmined by many
factors, among them are location, amenities, degree of luxury, and the rates of
comparable facilities. No hotel can afford to price itself out of the market.
Rates will inevitably rise, but as any successful innkeeper knows, they must
correlate with value and the rates of similar establishments in the community.
This is a fact of innkeeping, regardless of the type of ownership.
We appreciate the fact that the concept of the condo-hotel is new in Aspen
and thet the Commission quite properly wants to weigh all the facts. Our
studies of condo-hotels in other communities convince us there is nothing to
fear, but if you desire knowledge of the facts in this community, we would like
to point out that, in this case, only 10 hotel rooms are in question (The two
studios are used by us for housing). Even if your worst fears were realized,
our small building could not have a serious impact on Aspen. Our experience
could provide you with valuable information for future decision-making.
Finally, we would like to state that, as residents of Aspen, we very strongly
support vigorous and attentive planning in our community. The very designation
of our neighborhood as tourist/residential with an emphasis on tourist indicates
that the planning thus far has been based on logic and common sense. We do
not feel that our request to change the ownership of our building is in conflict
with our mutual concern in this community. If we did, we would not ask.
Sincerely, ~
~ ~ulkner, Owner
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and Mar~ I. Faulkner, Owner
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July 27, 1979
Richard Grice
Aspen/Pitkin Planning Office
130 South Galena Street
Aspen, Colorado 81611
Dear Mr. Grice:
The Condominium Manager's Association is concerned
about condominiumization of lodge units in Aspen.
We would be willing to support this concept pro-
viding certain guarantees, relating to short term
rentals, be written into the covenants and/or
declarations of a particular complex considering
condominiumization (i.e., no cooking facilities,
limited owner usage) .
We feel this approach will eliminate the potential
shortage of tourist facilities in the core area.
Sincerely, ~
(;)tV:~~~,__ ,;/
William E. Burwell, President
Condominium Manager's Association
WEB/cl
cc: C.M.A. Members
Condominium Managers' Association
aspen colorado
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ASPEN SKIING CORPORATION
406 SOU T H MIL L . BOX 1 248 . ASP EN, CO LOR A 0 0 81611 . PH 0 N E 303/925,1220
July 24, 1979
Mr. Richard Grice
Aspen/Pitkin Planning Office
130 South Galena Street
Aspen, Colorado 816ll
Dear My. Grice:
Your July 13 letter to our Jack Brendlinger concerning
condominiumization of lodge units presents a very real concern
to us. It should also be of major concern to all Aspen-area
residents since it relates directly to the continued viability
of Aspen as a major destination resort which is the source of
the community's economy. From our standpoint, the problem has
two facets.
First: we philosophically resist the attitude that
governmental action alone can solve all the ills of any commu-
nity. As a private business, the TippIe Lodge should have
reasonable control of its own destiny.
Second: however, since the Tipple Lodge is located in
the Lodge I Zone District, we feel it's originally intended
purpose of being a short-term rental facility, regardless of the
type of ownership of its units, should be maintained.
We believe that maintenance of Aspen as a major destination
resort is essential to the economy of the community, from the
standpoint of the Aspen Skiing Corporation as well as the restau-
rants, shops and other businesses which can only remain viable
in direct relationship to how satisfied our guests are with
their vacation experience in Aspen.
ASPEN MOUNTAIN
BUTTERM ILK/TlEHACK
SNOWMASS
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ASPEN SKIING CORPORATION ~"BOX 1248, ASPEN, COLORAOO -,16110 PHONE 303/925,1220
Page 2
Richard Grice
July 24, 1979
To put it simply, Aspen must provide lodging for guests
if it expects to earn its livelihood from guests.
Siowoly, /;
< !~'(L</tl-j-
6Q1ihv. Madsen, Jr.
ice President, Marketing
GWM:sd
cc: Herman Edel
Tom Richardson
Larry Beidleman
Jack Brendlinger
t/
,J, D. MULLER
ATTORNEY AT LAW
TtiE WHEELER OPERA HOUSE
P. O. BOX 4361
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ASPEN, COLORADO 81611
303 925.1923
24 July 1979
Ron stock, City Attorney
130 s. Galena
Aspen, Colorado
RE: Tipple Lodge application for exemption
from subdivision
Dear Ron:
On May II, 1979, the owners of the Tipple Lodge filed an
application for exemption from the definition of subdivision
pursuant to subsection 20-19(b) of the code. Subsubsection
20-3 (s) (2) includes as a subdivision "A tract of land including
land to be used for condominiums" and subsubsection 20-19(b)
provides that the city council may "exempt a particular
division of land from the definition of subdivision ...when...
such a division of land is not within the intent and purpose
of this chapter" (ch.20,Subdivision). With respect to condo-
miniums, the subdivision chapter addresses three areas:
suitability (20-9), design standards (20-17), and long-term
low and moderate income housing (20-22). The city engineer,
by memorandum dated June 7, has recommended exemption based
on his review of the premises; and, the provisions on housing
are inapplicable as the property has been used as short-term
tourist accommodations and has no tenants. This leaves the
suitability section which includes in subsection 20-9(c) a
requirement that all code provisions relating to zoning and
other matters be conformed to. Parking requirements are
satisfied under the code as noted in the application. The zone
district, L-2, allows the use by right. This leaves only GMP.
It is apparently your position that subsection 24-3.I(o) which
defines "hotel" and "lodge" contains by implication a definition
of lodge unit which is twofold. The unit must not contain
a kitchen and it must be intended for temporary occupancy of guests.
, 1"
Ron Stock, C1tY\. /ttorney, 24 July 1979, pa~, 2.
You then take the intention aspect of the definition and say
that'a room without a kitchen may be changed without construction
or alteration from a lodge unit into a residential dwelling
unit by a change in intention of the owner, or any subsequent
owner at any time. This is then used in section 24-10.1 to
say that when that intention is changed, new units are created
for purposes of the Growth Management Plan. Apparently,
condominiumization is to be taken as conclusive evidence of
that change of intent. Section 24-l0.1 uses the words "constructed"
and "construction". "Change of use" was available to the
drafters for they used it in the following section with
reference to exceptions.
If you seek help in construing from P&Z or administrators of
the code, the evidence from the June 19 meeting of P&Z is
that there is no policy concerning condominiumization of lodge
units, that is, whether it should be allowed or not. It
was actually phrased as determining whether or not it was to
be allowed, as the creation of a "policy".
Reasonably interpreted, GMP applies to new construction and
not the creation of new units through the mental processes
of the owner or subsequent owner.
We will submit evidence that condominiumization does not adversely
affect tourist accommodations. If the P&Z wishes to use that
information to suggest legisl&tion to cover the subject, that
is legitimate: however, no code section covers the subject
now, and that includes the provisions of the subdivision chapter.
We have satisfied all the intents and purposes of the subdivision
chapter which appear in the form of ordinances. We cannot be
required to satisfy unwritten, inchoate concerns or "policies"--
only ordinances.
On July 31 we are scheduled for a hearing before P&Z on our
exemption application. If you will not be present, please
<rive P&Z a written memorandum to which I can respond. without
one, the matter will again be delayed through no fault of the
applicant. I appreciate your attention to this matter.
JDMcc
HAND DELIVERED 7-24-79
".....
"-"
MEMORANDUM
TO:
FROM:
RE:
DATE:
Aspen Planning and Zoning Commission
Richard Grice, Planning Office
Tipple Inn - Subdivision Exemption
July 23, 1979
The attached application requests subdivision exemption for the purpose of
condominiumization of the Tipple Inn. The Inn, which is located at 620 South
Galena, directly west of the Little Nell ski run, consists of ten bed and bathroom
units and two studio units. The bed and bathroom units do not contain kitchens.
All of the units with the exception of one studio have historically been used
for short term occupancy.
The application was referred to Dave Ellis, City Engineer, who recommends
as follows: "After review of this application for subdivision exemption and a
site inspection of the existing improvements, the Engineering Department recommends
that the exemption be granted without condition."
The Planning Office and the City Attorney wonder if the condominiumization
of a lodge does not change that lodge unit into a dwelling unit. Lodge units are
intended for "the temporary occupancy of guests". We are concerned that a
situation might develop where the owner of a lodge unit may reserve that unit for
himself, perhaps bring in portable appliances, and use the unit for other than its
intended short term use. It is for this reason that the application before you
was tabled at its initial review before this Commission on June 19, 1979.
The Planning Office has made additional referrals to the Ski Corporation's
marketing department, the Association of Condominium Managers and in addition
has discussed the problem with several realtors. Dick Moebius, who experience
mainly evolves around the West Village, is of the opinion that the condominiumization
of lodge units results in the continuation of the use of the unit as a short term
unit and furthermore, that it often results in up-grading of the individual units.
While the original owner of the entire building may not have had the capital to
refurbish every unit, the owner of a single unit can usually afford to up-grade
that one unit.
Don Helmich, manager of Aspen Square, has given us quite another viewpoint.
Mr. Helmich has observed a tendency in the marketplace among particularly affluent
owners to remove their units from the market for short term use. Apparently this
tendency is a direct result of the price point which the units are bringing. It
seems an established fact that at some point in the value spiral which results
from condomiumization and from normal market pressures, the type buyer attracted
no longer is in a position of having to rent his unit at all.
The Planning Office feels that Mr. Helmich's comments constitute sufficient
evidence to believe that at least one of the proposed condominiumized lodge units
could be expected to be removed from the market by an affluent buyer. Assuming
this is the case, we must recommend denial of this condominiumization application
and all future condominiumization applications for units within the lodge zone.
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Aspen/Pitkin l~ran,ning Office
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TO: Mr. Jack Brendlinger
Aspen Ski Corp., Marketing Department
P.O. Box 1248
Aspen, Colorado 81611
FROM: Richard Grice, Planning Office
RE: Condominiumization of Lodge Units
...
DATE: July 13, 1979
The Planning Office has received an application for condominiumization of the
Tipple Lodge which is located in the Lodge 1 zone district. The Lodge consists of
10 bed and bath room units and two studio units. ' The bed and bath room units do
not contain kitchens. All of the units with the exception of one studio have his-
torically been used for short term occupancy'.
The Planning Office has some concerns regarding the potential impacts on the
condominiumization of lodge units. Specifically, we envision a situation where
an owner of a lodge unit would no longer use that unit for short term rental
purposes but rather reserve use of that unit for himself. We are aware of the
fact that tr.ere is a tendency among particularly affluent condominium owners to
remove those units from the short term rental market.
"
The Planning and Zoning Corrnnission will be discw;sing lodge condominiumizatio;l
and particularly the Tipple Lodge on July 31, 1979, at 5:00 P.M. in the City
Council Chambers, 2nd Floor, City Hall, 130 South Galena. We would like to include
a written opinion from the Ski Corp in the Commission's packet of written materials
for that day. In order to do so we wi 11 need your ~iritteri corrrnents.' returned to the
Planning Office no later than July 25, 1979. In addition, we hope that you will be
able to attend the public hearing in order to express your opinions verbally.
We consider this to be a fairly important item in that this is the first
application we have seen for the condominiumizatton of a lodge in the lodge zone
and at th~ present time there is no established policy.
,.
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stonebridqe inn
and conference center
July 9, 1979
ASPEN PLANNING & ZONING COMMISSION
130 South Galena
Aspen, Colorado 81611
Dear Commissioners:
The owners of the Tipple Lodge have asked me to share with
you facts regarding the condominiumization of the Stonebridge
Inn and any effect that it might have had on the tourist
rental business.
The Stonebridge was condominiumized in November, 1976.
the 94 units, two are not available for . a third
by the~eA or the summer o~ A fourth owner
live in her unit but gave up after two months.
Of
is used
ry to
The Stonebridge continues to be run like a hotel, and most
guests are not aware that they are staying in condominium
units. Due to some substantial upgrading (about $3,000 per
room), the rates have gone up slightly but not significantly
and certainly not, in my opinion, because of the change in
ownership. The winter rates are comparable to other lodges
in Snowrnass Village - $68 per night. The rooms average 109
days of rental in the winter. In the summer, our aggressive
conference bookings and our conference facilities enable us
to charge more than other Snowrnass lodges ($44/night as
opposed to approximately $32/night for most lodges during the
peak summer period), and we enjoy a better than average
occupancy (75 days of summer occupancy as opposed to about 35
days for most lodges in Snowrnass Village).
I would be happy to answer any questions you might have.
Call 923-2420.
Sincerely,
~.~~
David F Spence
General Manager
DFS/ft
Stonebridge Inn, P,O, Box 5008, Snowmass Village, .colorado 81615, (303) 923.2420
DICK MDEBIUS
m LAND
l..I:! EXCHANGES
REAlm'. DEVELOPMENT
INVESTMENTS
June 27, 1979
Aspen Planning & Zoning Commission
130 South Galena
Aspen, CO 81611
Dear Commissioners:
In regard to the Tipple Lodge request for sub-division exemption
in order to condominiumize, it is my experience and observation in
Snowmass that condominiumization of lodge units merely changes
ownership, not use. Management companies generally set the rates
and manage the lodge condominiums like hotels. It is impractical
for an owner to live in a single room without cooking facilities.
Most of the condo-rooms are purchased for investment purposes and
enjoyment during visits to Aspen. It does not make economic sense
to let a unit lie vacant during the absence of the owner. As for
rates, an owner cannot charge more than the market will bear.
If he tries to, he will lose rentals.
I have noticed that condominiumization usually results in upgrading
of the individual units. Often refurbishing is part of the purchase
package. Even when it isn't, owners generally want to do it; and,
while the original owner of the entire building may not have had
the capital to refurbish every unit, the owner of a single unit
can usually afford to upgrade that one unit.
Si ncere ly,
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Di ck Moebi us
DM/mw
BOX 5640. WEST VILLAGE. ASPEN, COLORADO 81615 - (303) 923.3584 (HOME 923,2334
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TO:
COlldominium Managers AS~G(:ia'li'on
c/o Don Helmich
FROI'l:
Richard Grice, Planning Office
\J\,~.
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RE:
Condonrini I:mi zati 0:1 of Lodge Uni ts
DfiTE:
June 26, 1979
The Planning Office has received an application for condominiumi?~tion of the
Tipple lodge, The lodge consists of 10 bed and bath room units and two studio
units. The bed and bath room units do not contain kitchens. All of the units
with the exception of one studio have historically been used for shDrt ten"
occuparlCY. ,1
The Planning Office has some concerns reSc'rding the potential ilJpac~s on tile
condD:niniumizat'!on (,f lodge units, Specificillly, \'Ie envision a situation where
an owner of a lodge unit would no longer use that unit for short ten" rental
purposes but rather reserve use of that unit tor, himself. ~!e are ava\'c of the
fact that there is (, tendency among pal'ticularly affluent condol1liwiulll Q\.me)'s tc
remOl'l' those uni ts 'rom the short term rental market.
The Planning ar,d Zoning Cominiss'ion \'Jill be discuss'ing lodge condo\1:iniumization
and pa:^ticularly thl; Tipple Lodge on July 31, 1979, at 5:00, P.I~. in the City
Council Chambel's, 2/,d Floor, City Hal'!, 130 South Galena. \Je would like to include
a written opinion fJ'om the Association in the CO:TII'lission's packet of \'witten
materials for that day. In order to do so vie \'ril'i need your written comments
returned to the Plai'ning Office no late)' than Jul.' 25, 1979, In addition, Ive
hope that as many OC you as possible will be able to attend the public hearing
in order to express your opinions verbally.
We consider th:s to be a fairly important it~m in that this is the first
app 1 i cat i on we have seen for the condomi ni urni zat iJn of a 'lodge and at the
present time there is no estab'iished policy.
c
CITY OF ASPEN ..
MEMO FROM RICHARD GRICE
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MEMORANDUM
TO:
FRCJl.l:
RE:
DATE:
Aspen Planning and Zoning Commission
Richard Grice, Planning Office
Tipple Inn - Subdivision Exemption
June 13, 1979
The attached application requests subdivision exemption for the purpose
of condominiumization of the Tipple Inn. The Inn which is located at 620 South
Galena, directly west of the Little Nell ski run, consists of 10 bed and bathroom
units and two studio units. The bed and batnroom units do not contain kitchens.
All the units with the exception of one studio have historically been used for
short term occupancy.
The application was referred to Dave Ellis, City Engineer, who' recommends
as follows: "After review of this application for subdivision exemption and a
site inspection of the existing improvements, the Engineering Department recommends
that the exemption be granted without condition."
Ron Stock, City Attorney, initially recommended approval of this application.
However, further discussion of the potential impacts of the condominiumization of
lodge units have given both the City Attorney and the Planning Office some doubts.
The definition section of the City Code defines "dwelling unit" as follows:
"One or more rooms, in addition to a kitchen and/or bath facilities
intended or designed for occupancy by a family or guests independent
of other family or gues ts. "
The definition of "lodge units" appears in the' ,same section as follows:
"A building containing three or more units, none of which units
contain kitchen facilities, intended for temporary occupancy of
guests."
"
,
"
Since lodges are intanded for the "temporary occupancy of guests", we wonder
if the condominiumization of a lodge does not chang~ that lodge unit into a
dwelling unit. We envision a situa~ion where an Qwner'of a lodge unit would
reserve the use of that unit for himself, bring in portable appliances and use
the unit for other than its intended use. There is, therefore, some validity
to the position that condominiumized lodge units are residential units and cannot
, be subdivided without a GMP allocation.
The fact is that the Aspen Code does not address this particular type of
conversion. We feel that this proposed conversion requires a policy determination
by the Planning and Zoning Commission and City Council. '
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MEMORANDUM
TO:
FROM:
RE:
DATE:
Aspen Planning and Zoning Commission
Richard Grice, Planning Office
Tipple Inn - Subdivision Exemption
June 13, 1979
The attached application requests subdivision exemption for the purpose
of condominiumization of the Tipple Inn. The Inn which is located at 620 South
Galena, directly west of the Little Nell ski run, consists of 10 bed and bathroom
units and two studio units. The bed and bathroom units do not contain kitchens.
All the units with the exception of one studio have historically been used for
short term occupancy.
The application was referred to Dave Ellis, City Engineer, who recommends
as follows: "After review of this application for subdivision exemption and a
site inspection of the existing improvements, the Engineering Department recommends
that the exemption be granted without condition."
Ron Stock, City Attorney, initially recommended approval of this application.
However, further discussion of the potential impacts of the condominiumization of
lodge units have given both the City Attorney and the Planning Office some doubts.
The definition section of the City Code defines "dwelling unit" as follows:
"One or more rooms, in addition to a kitchen and/or bath facilities
intended or designed for occupancy by a family or guests independent
of other family or guests."
The definition of "lodge units" appears in the same section as follows:
"A building containing three or more units, none of which units
contain kitchen facilities, intended for temporary occupancy of
guests."
Since lodges are intended for the "temporary occupancy of guests", we wonder
if the condominiumization of a lodge does not change that lodge unit into a
dwelling unit. We envision a situation where an owner of a lodge unit would
reserve the use of that unit for himself, bring in portable appliances and use
the unit for other than its intended use. There is, therefore, some validity
to the position that condominiumized lodge units are residential units and cannot
be subdivided without a GMP allocation.
The fact is that the Aspen Code does not address this particular type of
conversion. We feel that this proposed conversion requires a policy determination
by the Planning and Zoning Commission and City Council.
,......
-
... ..'
M E M 0 RAN DUM
TO:
RICHARD GRICE, PLANNING OFFICE
DAVE ELLIS, CITY ENGINEER ~
June 7, 1979
FROM:
DATE:
RE:
Subdivision Exemption Request (Tipple Inn) -
Lot 2, Tipplewoods Subdivision
After a review of this application for subdivision exemption and
a site inspection of the existing improvements, the engineering
department recommends that the exemption be granted without con-
ditions.
jk
cc: J.D. Muller
,.....~,
MEMORANDUM
TO: Ron Stock, City Attorney
Dave Ellis, City Engineer
FROM: Richard Grice, Planning Office
RE: Tipple Inn - Subdivision Exemption
DATE: May 22, 1979
Attached please find application for Subdivision Exemption of the Tipple
Lodge. This item is tentatively scheduled to come before the Aspen Planning
and Zoning Commission on Tuesday, June 19, 1979. Therefore, may I have your
comments concerning this application by Monday, June 11, 1979. If you cannot
meet this schedule please contact me immediately. Thank you.
,........
<
MEMORANDUM
FROM:
RE:
DATE:
'tR6i1 Stock, Ci ty Attorney
Dave Ellis, City Engineer
Richard Grice, Planning Office
TO:
Tipple Inn - Subdivision Exemption
May 22, 1979
Attached please find application for Subdivision Exemption of the Tipple
Lodge. This item is tentatively scheduled to come before the Aspen Planning
and Zoning Commission on Tuesday, June 19, 1979. Therefore, may I have your
comments concerning this application by Monday, June 11, 1979. If you cannot
meet this schedule please contact me immediately. Thank you.
? ]/1 /2-~
..j, 0, MULLER
ATTORNEY AT LAW
THE WHEELER OPERA HOUSE
P. 0, 150X 4361
ASPEN, COLORADO 81611
303 925-1923
11 May 1979
planning & Zoning Commission and
City Engineer of the City of Aspen
130 S. Galena
Aspen, Colorado
Re: The Tipple Lodge
Request for Exemption from Subdivision
To the Commission and the City Engineer:
I represent the Tipple Lodge, a joint venture, John L. Faulkner
and Mary I. Faulkner, joint venturers. The venture owns the
Tipple Lodge, a three-story stucco and masonry structure
containing ten hotel type rooms (bed- and bathroom, no kitchen)
and two studio apartments totaling about 3992 square feet of
floor area: there are an additional 2100 square feet enclosed,
used for interior circulation, and as lounge area, reception
room, laundry room, and mechanical and storage areas. The
building is located at 620 S. Galena, directly west of the Little
Nell ski run, on Lot 2 of the five-lot Tipple Woods Subdivision,
in the L-2 zone district of the City of Aspen.
The building was constructed in 1968 and purchased in 1971 by
the Tipple Lodge, a limited partnership, the partners being
the present joint venturers and John R. Faulkner, father of
John L. Faulkner. The ownership was transferred to John and
Mary Faulkner as joint tenants in 1973, and to the present joint
venture in 1978 in connection with a property settlement between
the present joint venturers.
Since 1971, the Faulkners have operated the Tipple Lodge as a
short-term tourist accommodation. One studio apartment with
adjoining bedroom and bath was used by the Faulkners as a residence
prior to 1978, and is presently used as a residence by Mary I.
Faulkner.
The Faulkners wish to condominiumize the Tipple Lodge building
just as it exists, into common elements, ten bed- and bathroom
units and two studio units.
;'......
P&z and City En~er, II May 1979, page 2.
This condominiumization will not adversely affect the supply of
low and moderate income housing addressed in Code section 20-22(c)
as amended by Ordinance 39. Rarely and only in the summer has
the Tipple Lodge ever been rented in excess of one month: no
long-term tenants would be displaced by condominiumization for
there are none. The hotel type units are "lodge units" under the
Code and would (by virtue of being condominiurnized without
kitchens) remain the same short-term housing after condominium-
ization as they were before. Any change would require future
review.
All available surface area of the subject property, (see attached
improvements survey with dimensions), was encumbered with
easements for parking spaces by an agreement and restatement of
the PDQtective Covenants of the Tipple Woods Subdivision, dated
October 4, 1971. (Restated paragraph I is attached.) The
eight off-street parking spaces for the property were established
and actually used and occupied as such prior to the enactment of
the present Code section 24-4.I(b) in 1975. The existing parking
is validated by that section as lawful and sufficient under
the Code.
A current title policy and improvements survey covering the
subject property is submitted with this letter.
As no construction or alteration of the subject property is
involved, the Subdivision Regulations' design and improvements
evaluation--a detailed planning process for prospective development--
is inappropriate. This letter speaks to the housing and
parking requirements of the Code. The proposed condominium would
be a use allowed by right in the L-2 zone district. And, as no
new units of any type would be created, Code Article X, the
Growth Management Quota System, does not apply. We believe that
the impact of condominiumizing the Tipple Lodge can be evaluated
without going through the subdivision process, that it is con-
sistent with present land use policies, and that it is thus not
within the intent and purpose of subdivision regulation.
Pursuant to Code section 20-19(b), the Faulkners request a
recommendation to the City Council that the condominiumization
of the existing Tipple Lodge be exempted from ,'the definition of
a subdivision set forth in section 20-3(s) of the Code.
c:p)
Attachments: OWners' policy No. 06 005 04 04924, Colo. West Title
Ins. Co., a/o 3-28-79: Improvements survey, Job.
No. 79.57, Alpine Surveys, 4-27-79: Restated 111
(in part),Prot.Cov. Tipple Woods Subdv.
AMERICAN LAND TITLE ASSOCIATION
OWNER'S POLICY FORM B-I970
(Amended 10-17-70)
06 005 04 04924
CHICAGO TITLE INSURANCE COMPANY
SUBJECf TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN
SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF,
CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation, herein called the Company,
insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of
insurance stated in Schedule A, and costs, attorneys' fees and expenses which the Company may become
obligated to pay hereunder, sustained or incurred by the insured by reason of:
I, Title to the estate or interest described in Schedule A being vested otherwise than as stated
therein;
2, Any defect in or lien or encumbrance on such title;
3, Lack of a right of access to and from the land; or
4, UnmarketabiIity of such title,
Tn Witness Whereof, CmCAGO TITLE INSURANCE COMPANY has caused this policy to be signed
and sealed as of the date of policy shown in Schedule A, the policy to become valid when countersigned
by an authorized signatory,
CHICAGO TITLE INSURANCE COMPANY
Issued by:
COLORADO WEST TITLE INSURANCE
COMPANY
818 Colorado Avenue, Suite 101
p, 0, Box 925
Glenwood Springs, Colorado 81601
(303) 945-5545
ATTEST:
~ -e 9Jt..-e t'~ ,;1:.
Secretary,
IMPORTANT
This policy necessarily relates solely to the title as of tbe date of the policy. In order tbat a purchaser
of the real estate described herein may be insured against defects, liens or encumbrances, tbis policy
sbould be reissued in the name of such purchaser.
Copyright 1969 American Land Title Association
EXClUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy:
I, Any law, ordinance or governmental regulation (including but not limited to building and zoning
ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land,
or regulating the character, dimensions or location of any improvement now or hereafter erected
on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area
of the land, or the effect of any violation of any such law, ordinance or governmental regulation,
2, Rights of eminent domain or governmental rights of police power unless notice of the exercise
of such rights appears in the public records at Date of Policy,
3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed
or agreed to by the insured claimant; (b) not known to the Company and not shown by the
public records but known to the insured claimant either at Date of Policy or at the date such
claimant acquired an estate or interest insured by this policy and not disclosed in writing by the
insured claimant to the Company prior to the date such insured claimant became an insured
hereunder; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created
subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been
sustained if the insured claimant had paid value for the estate or interest insured by this policy,
...-
~
CONDITIONS AND STIPULATIONS
'~
,. Definition of Term.
The following terms when used in this policy mean:
(a) "insured"; the insured named in Schedule A, and, subject to
any rights or defenses the Company may have had against the named
insured. those who succeed to the interest of such insured by operation
of law as distinguished from purchase including, but not limited to,
heirs, distributees, devisees, survivors, personal representatives, next of
kin, or corporate or fiduciary successors.
(b) "insured claimant": an insured claiming loss or damage here-
under.
(c) "knowledge": actual knowledge, not constructive knowledge or
notice which may be imputed to an insured by reason of any public
records.
(d) "land": the land described, specifically or by reference in Schedule
A, and improvements affixed thereto which by law constitute real prop-
erty; provided, however, the term "land" does not include any property
beyond the lines of the area specifically described or referred to in
Schedule A, nor any right, title, interest, estate or easemen~ in abutting
streets, roads, avenues, alleys, lanes, ways or waterways, but nothing
herein shall modify or limit the extent to which a right of access to
and from the land is insured by this policy.
(e) "mortgage": mortgage, deed of trust, trust deed, or other security
instrument.
(f) "public records": those records which by law impart constructive
notice of matters relating to said land_
2. Continuation of In.urance after Conveyance of Title
The coverage of this policy shall continue in force as of Date of
Policy in favor of an insured so long as such insured retains an estate
or interest in the land, or holds an indebtedness secured by a purchase
money mortgage given by a purchaser from such insured, or so long
as such insured shall have liability by reason of covenants of warranty
made by such insured in any transfer or conveyance of such estate or
interest; provided, however, this policy shall not continue in force in
favor of any purchaser from such insured of either said estate or
interest or the indebtedness secured by a purchase money mortgage
given to such insured.
policy, the Company may pursue any such litigation to final determi-
nation by a court of competent jurisdiction and expressly reserves the
right, in its sole discretion, to appeal from any adverse judgment or
order.
(e) In all cases where this policy permits or requires the (;ompany
to prosecute or provide for the defense of any action or proceeding,
the insured hereunder shall secure to the Company the right to so
prosecute or provide defense in such action or proceeding, and all
appeals therein, and permit the Company to use, at its option, the name
of such insured for such purpose. Whenever requested by the Com-
pany, such insured shall give the Company all reasonable aid in any
such action or proceeding, in effecting settlement, securing evidence,
obtaining witnesses, or prosecuting or defending such action or pro-
ceeding, and the Company shall reimburse such insured for any
expense so incurred.
4. Notice of Lo..........lmltatlon of Adlon
In addition to the notices required under paragraph 3(b) of these
Conditions and Stipulations, a statement in writing of any loss or dam-
age for which it is claimed the Company is liable under this policy
shall be furnished to the Company within 90 days after such loss or
damage shall have been determined and no right of action shall accrue
to an insured claimant until 30 days after such statement shall have
been furnished. Failure to furnish such statement of loss or damage
shall terminate any liability of the Company under this policy as to
such loss or damage.
S. Option. to Pay or Otherwl.e Settle Claim.
The Company shall have the option to payor otherwise settle for
or in the name of an insured claimant any claim insured against or to
terminate all liability and obligations of the Company hereunder by
paying or tendering payment of the amount of insurance under this
policy together with any costs, attorneys' fees and expenses incurred
up to the time of such payment or tender of payment, by the insured
claimant and authorized by the Company.
6. Determination and Payment of Lo..
(a) The liability of the Company under this policy shall in no case
exceed the least of:
(i) the actual loss of the insured claimant; or
3. Defen.. and Pro.ecutlon of Actlona--Notlce of Claim
to be given by an In.urecl Claimant (ii) the amount of insurance stated in Schedule A.
(8) The Company, at its own cost and without undue delay, shall (b) The Company will pay, in addition to any loss insured against
provide for the defense of an insured in all litigation consisting of by this policy, all costs imposed upon an insured in litigation carried
actions or proceedings commenced. against such insured, or a' defense on by the Company for such insured, and all costs, attorneys' fees and
interposed against an insured in an action to enforce a contract for a expenses in litigation carried on by such insured with the written
sale of the estate or interest in said land, to the extent that such litigaR authorization of the Company.
tion is founded upon an alleged defect, lien, encumbrance. or other (e) When liability has been definitely fixed in accordance with the
matter insured against by this policy. conditions of this policy, the loss or damage shall be payable within
(b) The insured shall notify the Company promptly in writing (i) in 30 days thereafter,
case any action or proceeding is begun or defense is interposed as set 7. Limitation of Liability
forth in (a) above, (ii) in case knowledge shall come to an insured No claim shall arise or be maintainable under this policy (a) if the
hereunder of any claim of title or interest which is adverse to the Company, after having received notice of an alleged defect, lien or
title to the estate or interest, as insured, and which might cause loss encumbrance insured against hereunder, by litigation or otherwise,
or damage for which the Company may be liable by virtue of this removes such defect, lien or encumbrance or establishes the title, as
policy, or (iii) if title to the estate or interest, as insured, is rejected as insured, within a reasonable time after receipt of such notice; (b) in
unmarketable. If such prompt notice shall not be given to the Com- the event of litigation until there has been a final determination by a
pany, then as to such insured all liability of the Company shall cease court of competent jurisdiction, and disposition of all appeals there-
and terminate in regard to the matter or matters for which such
from, adverse to the title, as insured, as provided in paragraph 3
prompt notice is required; provided, however, that failure to notify hereof; or (c) for liability voluntarily assumed by an insured in settling
shall in no case prejudice the rights of any such insured under this any claim or suit without prior written consent of the Company.
policy unless the Company shall be prejudiced by such failure and
then only to the extent of such prejudice. 8. Reduction of Liability
(c) The Company shall have the right at its own cost to institute All payments under this policy, except payments made for costs,
and without undue delay prosecute any action or proceeding or to do attorneys' fees and expenses, shall reduce the amount of the insurance
any other act which in its opinion may be necessary or desirable to pro tanto. No payment shall be made without producing this policy
establish the title to the estate or interest as insured, and the Company for endorsement of such payment unless the policy be lost or destroyed,
may take any appropriate action under the terms of this policy, whether in which case proof of such loss or destruction shall be furnished to
or not it shall be liable thereunder, and shall not thereby concede the satisfaction of the Company.
liability or waive any provision of this policy. 9. Liability Noncumulative
(d) Whenever the Company shall have brought any action or inter- It is expressly understood that the amount of insurance under this
posed a defense as required or permitted by the provisions of this policy shall be reduced by any amount the Company may pay under
CONDITIONS AND STIPULATIONS (Continued on Reverse Sidel
AMERICAN LAND TITLE ASSOCIATION
OWNER'S POLICY FORM B-I970
(Amended 10-17-70)
06 005 04 04924
CHICAGO TITLE INSURANCE COMPANY
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN
SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF,
CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation, herein caIled the Company,
insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of
insurance stated in Schedule A, and costs, attorneys' fees and expenses which the Company may become
obligated to pay hereunder, sustained or incurred by the insured by reason of:
I, Title to the estate or interest described in Schedule A being vested otherwise than as stated
therein;
2, Any defect in or lien or encumbrance on such title;
3, Lack of a right of access to and from the land; or
4, Unmarketability of such title,
In Witness Whereof, CHICAGO TITLE INSURANCE COMPANY has caused this policy to be signed
and sealed as of the date of policy shown in Schedule A, the policy to become valid when countersigned
by an authorized signatory,
CHICAGO TITLE INSURANCE COMPANY
Issued by:
COLORADO WEST TITLE INSURANCE
COMPANY
818 Colorado Avenue, Suite 101
p, 0, Box 925
Glenwood Springs, Colorado 8160 I
(303) 945-5545
President.
ATTEST:
~ -e9n..-e~s! J~
Secretary,
IMPORTANT
This policy necessarily relates solely to the title as of the date of tbe policy. In order that a purchaser
of the real estate described herein may be insured against defects, liens or encumbrances, this policy
should be reissued in the name of such purchaser.
Copyright 1969 American Land Title Association
SCHEDULE A
..-",,;
Number
06 005 04 04924
p-04-117-79
Date of Policy
March 28, 1979
8:00 A.M.
Amount of Insurance
$130,000.00
1. Name of Insured:
Tipple Lodge, a Joint Venture
2. The estate or interest in the land described herein and which is covered by this policy is:
Fee simple
3, The estate or interest referred to herein is at Date of Policy vested in the insured,
4, The land herein described is encumbered by the following mortgage or trust deed, and assignments:
and the mortgages or trust deeds, if any, shown in Schedule B hereof.
5, The land referred to in this policy is described as follows:
Lot 2, Tipple Woods Subdivision, according to the recorded plat for
Tipple Woods Subdivision recorded as Document No. 107798 in Ditch
Book 2A at Page 250 of the records of ritkin County, Colorado,
Together with
(I) a non-exclusive right of access over Tracts 2 and 3 as described
in that certain Deed dated August I, 1966 between Tipple Inn
Corporation and The Kettle Corporation recorded in Book 222 at
Page 520:
(2) and a non-exclusive right of access over the real property
described in the Private Access Road Easement recorded in
Book 220 at Page 306 of the records of ritkin County, Colorado:
(3) and a non-exclusive right of access and the right to the non-
exclusive use of four parking spaces on Lot 1, Tipple Woods
Subdivision, more fully described in the Amendment of Release
and Grant recorded in Book 259 at Page 232.
County of Pitkin
State of Colorado
This policy valid only if Schedule B is attached.
,
. ' . .
FORM 3566 R-8.70
SCHEDULE B
Policy Number 06 005 04 04924
p-04-117-79 Own...
This policy does not insure against loss or damage by reason of the following exceptions:
General Exceptions:
(1) Rights or claims of parties in possession not shown by the public records.
(2) Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an
accurate survey and inspection of the premises.
(3) Easements or claims of easements not shown by the public records,
(4) Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed
by law and not shown by the public records,
(5) Taxes or special assessments which are not shown as existing liens by the public records,
Special Exceptions: The mortgage. if any. referred to in Item 4 of Schedule A.
6. Reservations as contained in the United States Patent recorded in
Book 175 at Page 298.
7. Exception of Minerals contained in the Document recorded in Book
184 at Page 7.
8. Restrictive Covenants for Tipple Woods Subdivision as described in
Book 187 at Page 236 and as amended in instrument recorded in Book
188 at Page 123 and as amended and restated by the terms of the
Agreement of Amendment and Restatement of Protective Covenants of
Tipple Woods Subdivision recorded in Book 213 at Page 20, and Agreement
of Second Amendment and Restatement of Protective Covenants recorded
in Book 259 at Page 245.
9. Terms of Release and Grant recorded in Book 213 at Page 40 and
amendment recorded in Book 259 at Page 232.
10. Access and utility easement as shown on the Plat of Tipple Woods
Subdivision as amended by the Release and Grant recorded in Book
213 at Page 40 and in Book 259 at P~ge 232.
II. Deed of Trust from John L. Faulkner and Mary I. faulkner to the
Public Trustee of Pitkin County securing John R. faulkner in the
amount of $59,079.46, said deed dated February 17, 1976 and recorded
february 17, 1976 as Document No. 181600 in Book 308 at Page 871.
12. Any unpaid taxes and 1979 taxes, a lien, not yet due and payable.
~ed
!&2%.
~atorY
Schedule B of this Palicy consists of I pages,
-::J <4J~q Ara'l
March 29, 2000
REceIVED
MAti 2 9 2000
.' AS~"'N/PITKIN '
I.IMUNITY DEVaOl'UENT'
THE CITY OF AsPEN
Mayor and Council
City Manager
City of Aspen
130 South Galena
Aspen, CO 81611
RE: Tipple Inn #12 vs. City of Aspen and Kettle Corporation
Court of Appeals Case
(Commonly Referred to as Gary Jacobs vs. the Tippler)
Dear Mayor, City Manager, and Council Members,
As you will recall, the Kettle Corporation applied to the City of Aspen for
approval of a new subdivision to construct Tippler T ownhomes, a building
with eight multi-family units, including four affordable housing units, The
townhomes from replace the Tippler restaurant and bar,
The neighbor Gary Jacobs objected and filed a rule 106 action in Pitkin
County District Court, Judge Craven ruled that the City had not exceeded
its jurisdiction or abused its discretion in approving the Tippler Townhomes,
Jacobs then appealed to the Colorado Court of Appeals, A few weeks ago
I argued the City's position before the court in Denver. The Court has now
ruled, see the attached opinion, in favor of the City, affirming Judge Craven's
opinion,
Sincerely,
.[H.2~ .Lid-
Assistant City Attorney
ee. John Worcester
130 SoUTH GALENA STREET. AsPEN, COLORADO 81611 . PHONE 970,920.5000 . FAX 970.920.5197
I'rinted"nR..cvdedpaper
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COLORADO COURT O. APPEALS
No. 99CA0geS
., '~._-.._------
Mareh 23, 2000
NO! SIL&C%'BD i'OR PUBLICATION
:~?ple Inn '12, Ltc, a Colorado limited
liability company,
----
"
< ,
Plaintiff-Appellan~.
~hu City of Aspen C 1 d
counc~l of the Ci~y :fo~: 0, ach?me rule m~~ieipality; the C~t/
~ ' pen, o.orado, ac~~ng in ics ottieia'
-apac~tYI and the Kettle CorporatIon a Colorado ,.
- , corporec1on,
...-------
Defendants-App@llees,
Appeal frOm the District Court of Pitkin County
Honorable r, Peter Craven, Judge
No. 98CV145
-Gi.'Jision II
Opinion by JUDGE DAILEY
~l~nk and Erickson., JJ.,
JUDGMENT AFFIRMED
concur
whitsitt' Gross, P,C" Timothy E. Whitsitt, Eric J. Gross,
:arbondale, Colorado, for Plaintiff-Appellant
John Worchester, City Attorney, David Hoefer, Assiscant City
;:torney, Aspen, Colorado, for Defendants-Appellees, City of
~t?en and the City Council of the City of Aspen, COlorado
John H. Case, Aspen, Colorado, for Defendant-Appellee, Kettle
Corporation
*Sitting by assignment' of the Chief 3uBtice under provisions of
th3 Colo. Con~t. art. VI, Sec, 5(3), and S24-51-110S, C.R.S.
],999,
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Tipple Inn t12, LLC (plaintiff) appeal~ the di~trict
'~'",urt' S denial of C.R.C.p, 106(.0) (4) relief in fa"or of the City
~f Aspen. Colorado; the City COuncil of the City of Aspen; end
the Kettle Corporation (COllectively defendants), concerning a
"and use matter. ~9 affirm.
The Kettle Corporation applied to the City of Aspen for
";pro"al of a new subdivision to construct Tippler Townhomes, ~
':'OJ :lding wi th eight multi family dwelling uni t:l, inclUding fOur
~ffordable housing units. The proposed subdivision encompassed
7,,;C adj acent lots of land which Kettle owned but whiCh were
:~=atGd in contiguous subdivisions, Kettle proposed to p:ace
:~s townhomes building across the boundary line between the twe
i~~s, Previously the s~ta had been devoted to a one-story
rescaurant and nightclub on one lot and its parking lot on the
.: her,
After the Planning CommiSSion recommended approval of the
opplication, the City Council of the City of A$pen (Council)
bl h' At the hearings. Gary .Jacobs, a
f~Qld two pu ic ear1ngs.
"'nghbor W!lose view would be blocked by Tippler Townhomes,
~~Jected to Kettle Corporation's application.
The Council
~pp=cved the application, and 3acobs sought district court
<.,view of che Council's decision under C.R.C.P. 106(a) (4).
The plaintiff entered the case in the district court,
";bSC~tuting in for 3acobs after it purchased his property,
The
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:
'ii~t=1ct COurt upheld the Council's approval of Kettle
C~r?oration's application.
1.
(nitially, the plaintiff argues the City failed to apply
mQnd~tory subdivision regulations of the Land Use Regulat10ns at
~he City of Aspen (Code) to Kettle Corporation's applicatio~,
~o ,e speCifically, the plaintiff argues that the Council did
~c =, as required by Code 526.89.060, either find that the
,~oposed change was consistent with the existing subdivision
~~~t or amend the existing plat.
Significantly, this was not the argument the plaintiff m~d~
t~fore the Councilor the district court. The plaintiff neitne:
-ited S26.SB.060 nor otherwise alerted the Councilor the
~l3trict court to any alleged need to amend an eX1sting
subdivision plat or to find that the proposed use was consistQnt
'bd' and for that reason we decline to
with the exist~n9 su 1visio~.
, al Dove v. Delgado, 808 ~.2d 1270
=~nsider this ~ssue on appe . _
~Cclo. 1991).
II.
, 'ff contends that a s1ngle parcel of land
The pla~nt~ ~
canno'\:
=onsist of two lots in two separate subdivisions, or,
that a building cannot be located in ~wo lo~s in
-:t....ternativ91y,
t-,..JC
, Th City Planner, the Council, and
separate subdivis1ons. e
district court all rejected these olaim., concluding that
':he
2
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1
t,ere was no requirement fOr review of vacation of a lot l~"e
"-,"n that 11n. was under common ownership.
On appeal in a C.R.C.t'. 106(a) (4) matter, we are not boun"
~, tho trial COurt's determinations. Denargo Market N~9hb~~
c' o31ition v. Visser Real Estate Investments, 956 P.2d 630 (Colc:.
'\1')::'. 19 9i:
We do, however, review the SAme reCOrd. Krupp v~
~'~C~idge Sanitation District,
?2d ___ (Colc, App. No.
,7CA1996, Apr. 1, 1999) (1999 WL 179013). We a1:\0 apply the
"~~Q standard of review, Denargo Market Neighbors Coalition v~
~'~ser Real Estate Investments, supra, as the trial Court did.
:onsequently, we consider only the rQcord before the Counc1l,
"'>pp v. Breckenridge Sanitation Distr~, supra, &:'ld must
","-old the CounC1.l'. decision unless it is grounded in a
,'", qconstruction or misapplication of law, City of Colo~ado
,::2':'''-09s v. Givan, 897 P.2d 753 (Colo. 1995), or is tJnsuppo"ced
id Board of County Commissioners v. O'Dell,
~! competent 8v ence. _
J2(! t',2d 48 (Colo. 1996).
plaintiff claims that the City Council and trial cour~
The
k d C d "'26.BB.040(AJ (4), which provides:
':. c'applied or overloo e 0 e :7
Pronib1ted development. All structures ~hall oe
located on a subdivision lot. The lot l~nes
established in a subdivision shall not be altered by
conveyance of a part of a lot, nOr shall any part of a
lot be joined with a part of any other lot for, has
conveyance or construction, unless the appl~cat~on
ceen made pursuant to the terms of this chapter.
3
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According to the plaintiff, thi$ provision require$ either
~ne vacating of lots lines or at least a variance granted by the
~Qard of Adjustment, before Kettle Could do as it prOpo$es to
d'~J .
In our view, the plaintiff reads too much ~nto this
""ovision. The provision does not consist, as the plaintiff
~ .ntends, of two unrelated sentences. The sentences are relat~a
,~ one another, and the prOhibition on the use of, or building
c~, different lots in different subdivisions is qualified by a~
~mportant exception. That exceptIon is contained in the last
'clause of the second sentence, L.!..:., "unless th" application hilS
'09n ~ade pursuant to the terms of this chapter."
Here, Kettle appropriately requested permission to use, a~J
~ild upon, the two lot$ at issue pursuant to the subdivision
"terms of this chapter." Accordingly, we conclude that the
:ouncil did not exceed its jurisdiction or abuse it5 discretion
-, approving Kettle Corporation's application.
The judgment is affirmed.
JUDG! PLANK and JUSTICE ERICKSON concur.
4