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HomeMy WebLinkAboutlanduse case.AP.Aspen Meadows.1991-AP1 Ji.J'I24 '91 12:54 MCFLYNN 8. PICKETT PC P.2/2 THOMAS FENTON SMITH ATTORNEV AT LAW 320 weST MAIN STREEY,SUIT! 5 ASPEN, COLORADO 81611 AREA CODE 303 TELEPHONE S2S-S004 TEL.ECOPiEtt 125-024(2 June 24, 1991 Mayor and City Council city of Aspen 130 So. Galena Aspen, CO 81611 lite: June 24, 1991, Agen4a - Appeal of 004e Interpretation (Action Item IX(4)) Dear Mayor and City Counoil Members: On Thursday, June 20, 1991, Hr. Charles T. Collins received the city Attorney's memorandum dated June 18, 1991, responding to his appeal of the request for interpretations of Chapter 24, Land Use Regulations. Just . today, Hr. Collins asked me to represent him in this lllatter, which is now scheduled to be considered by you this eveninq. Inasmuch as neither Hr. Collins nor I have had an adequate opportunity to review the city Attorney's position on the Code interpretation appeal, we would request that this matter be tabled for consideration at the August 8, 1991, City Council meeting. Thank you for your consideration. Ve ThOmas Fenton Smith TFS/dd cc: Jed caswall, Esq. Charles T. Collins Kayor.624 1"""'-. ~ BEFORE THE CITY COUNCIL FOR THE CITY OF ASPEN, COLORADO IN RE THE MATTER OF THE LAND USE CODE INTERPRETATION APPEAL OF CHARLES COLLINS THIS MATTER came before the City Council on July 8, 1991, upon the appeal of Charles Collins pursuant to section 24-11-101F of the Municipal Code from a land use code interpretation made by the Planning Director. section 24-11-101F provides that any person who has made a request to the Planning Director for a code interpretation may appeal the interpretation to the City Council. Thereafter, City council shall hear the appeal and affirm or modify the Planning Director's interpretation. By letter dated July 8, 1991, and hand-delivered to the City Council on that date, Mr. Collins, through his legal counsel, withdrew his prior request to appear and be heard before the City Council on this matter and asked that Council render its decision based upon the documents in the record before it. WHEREFORE, the City Council having reviewed the documents placed before it concerning the Planning Director's code inter- pretation as challenged by Mr. Collins and, specifically, Mr. Collins' letter dated April 16, 1991, and the Planning Director's written code interpretation in response thereto dated April 17, 1991, and being fully apprised of the circumstances and provi- sions of the land use code relevant hereto: CITY COUNCIL FINDS the Planning Director's interpretations to be consistent with the intent and purposes of the land use code and does hereby affirm the interpretations entered by the Planning Director as illustrated in her written opinion dated April 17, 1991, and the appeal therefrom by Charles Collins is hereby denied and dismissed. DONE this 8th day of July, 1991. ASPEN CITY COUNCIL By: ~f. (J~- Mayor r.., "-', ATTEST: irf&UJc;;::--~~ city Clerk (~~) Mailed to: Thomas Fenton Smith, Esq. 7- / j- q'/ ~~~~ City Clerk 2 . !""'\ .~ L ( ~-~-'11 ~~ ..,,. " THOMAS FENTON SMITII ATTORNEY AT LAW 320 WEST MAIN STREET, SUITE 5 ASPEN, COLORADO 81611 July 8, 1991 AREA CODE 303 TELEPHONE 925-5004 TELECOPIER 925-2442 HAND DELIVERY Mayor John Bennett and City Council City of Aspen 130 South Galena Street Aspen, CO 81611 RE: Collins Land Use Code Interpretation Appeal Dear Mayor and city Council: This letter is being written on behalf of Charles T. Collins regarding his Land Use Code interpretation appeal, which is scheduled to be heard before you on July 8, 1991. Initially, we appreciate your willingness to provide us with an opportunity for a hearing and for granting an extension of the hearing date. However, we hereby withdraw our request for a hearing before you, and ask that you rule on this matter as submitted to you in writing, including the memorandum from Jed Caswall dated June 18, 1991, the exhibits thereto, and this letter. We ask that you consider the following additional information regarding this appeal: 1. As section 24-11-101(F) of the Land Use Code does not specify a standard for review of the Planning Directors' interpretation, we believe that you should consider the matter, de novo, i.e., that you review the matter on its merits based upon the information submitted to you and that the Planning Director's interpretation should not be given any presumption of validity. 2. with respect to the interpretation of Article 9, Nonconformities, section 9-107 (A), we request that you consider the interpretation of this provision in its proper context. The Code should be read as a whole when making interpretations of individual provisions, so as to avoid inconsistencies. Accordingly, we request that you consider the requirements of section 3-101, which provides that the conveyance of an easement or right of way divides a property into two or more separate interests for street use and constitutes a subdivision, which subdivision approval cannot be granted for a nonconforming lot. 3. In addition, section 7-1004 (A) (3), precludes the conveyance of an easement or right of way which extends the existing nonconformity of a nonconforming lot. That occurs where the lot area of a property for density or FAR purposes is reduced ./ ~ ~. . Mayor John Bennett and City Cbuhcil July 8, 1991 Page 2 by the conveyance of an easement or right of way. Accordingly, Article 9, section 107(A) should not be interpreted to require in all cases the creation of an entirely new nonconforming lot. The interpretation should be that a "new nonconforming lot" exists where the nonconformity of an existing lot is increased by the transfer, conveyance, sale or subdivision. Finally, I am informed by Amy Margerum that your crowded agenda for tonight's meeting may preclude consideration of this issue until July 22, 1991. We have no objection to the two-week delay, but we would request that there be no further delay in disposition of this appeal beyond July 22. Thank you for your consideration. Very truly yours, -- i~ Thomas Fenton smith TFS/kl cc: Charles T. Collins ,........, 1& f,6) , . CITY, ~ 30 MEMORANDUM DATE: JUly 3, 1991 TO: Mayor and City Council FROM: Jed Caswall, City Attorney~ RE: Charles Collins Land Use Code Interpretation Appeal The above-noted action item was tabled at your last meeting and continued to July 8th at the request of Mr. Collins so as to allow his legal counsel adequate time to prepare (see attach- ment). My previous memo to you adequately explains the issues involved in this matter (see attachment). EMC/mc Attachments jc73.3 cc: Thomas Fenton Smith, Esq. @ rec'Ic!ed paper / ~ .'-', THOMAS FENTON SMITH ATTORNEY AT LAW 320 WEst MAIN STREET,5U1TE 5 ASPEN, COLORADO 81611 AREA CODE 303 TELEPHONE 925.5004 TELECOPIER 925.2442 June 26, 1991 /114' c ; B /Pp/ I, j' . "li7. O a,.,. '/'rJ 'Ii", "',et T "$ -~, Mayor and city council City of Aspen 130 So. Galena Aspen, CO 81611 Re: Collins Appeal of Code Interpretation Dear Mayor and city council Members: Enclosed is my letter dated June 24, 1991, which was faxed to Jed Caswall on the afternoon of your June 24 meeting. Jed correctly pointed out that I erroneously requested tabling for consideration of the August 8, 1991, meeting. The date has been correctly noted as July 8, 1991, and we should be present to address the issue at that time. Thank you for your consideration. Very Thomas Fenton smith TFSjdd cc: Jed Caswall, Esq. Charles T. Collins Mayor. 626 r". ~ 30 MEMORANDUM DATE: June 18, 1991 TO: Mayor and City Council FROM: Jed Caswall, city Attorney ~ RE: Land Use Code Interpretation Appeal . h. This matter is on your agenda at the request of Charles T. Collins pursuant to section 24-ll-l0lF of the Municipal Code, which allows a person to pursue an appeal to city Council of a land use code interpretation as entered by the Planning Director. PROCEDURAL FRAMEWORK section 24-l1-l01A of the Municipal Code vests the Planning Director with authority to make all interpretations of the land use code. A code interpretation may be sought by any interested person. Upon receipt of a proper request for an interpretation, the Planning Director shall have fifteen days to render a written opinion. section 24-ll-10lF provides that any person who has made a request for an interpretation may appeal the interpreta- tion as made by the Planning Director to the city Council by filing a petition within thirty days of the Planning Director's decision. The appeal shall be considered by city Council within thirty days of its fhing, No standard for review is set forth in the code, hence, I would advise that you apply an "arbitrary and/or capricious" standard, i.e., the Planning Director's interpretation shall be affirmed unless there is no competent evidence supporting the interpretation and the interpretation is unjust and not in accordance with the code. THE COLLINS APPEAL On January 28, 1991, Mr. Collins submitted a written request to the Planning Director for an interpretation of Article 9 "Noncon- formities", and Article 7, Division 10 "Subdivision", of the land use code. (See Exhibit 1.) The Planning Director rendered a written interpretation addressing Mr. Collins' concerns on February 8, 1991. (See Exhibit 2.) On or about March 21, 1991, Mr. Collins fOllowed up on the Planning Director's interpretation @ recycled paper ~ ,-., Memorandum to Mayor and city Council June 18, 1991 Page 2 of February 8th with another letter seeking additional clarifica- tion. (See Exhibit 3.) A meeting involving the Planning Direc- tor, the City Engineer, the City Attorney and Mr. Collins result- ed at which Mr. Collins' questions were discussed in detail. On April 16, 1991, Mr. Collins submitted another request for a code interpretation. (See Exhibit 4.) The Planning Director respond- ed on April 17th with a written opinion. (See Exhibit 5.) It is this April 17th written interpretation that Mr. Collins is now appealing to City Council. (See Exhibit 6.)1 REOUESTED ACTION Council is to determine whether the Planning Director's code interpretations as set forth in her April 17, 1991, letter are to be affirmed or modified. While the code provisions delineating the appeal process do not call for a hearing, it is my advice to Council that it afford Mr. Collins the opportunity to argue his case verbally before you if he so desires, affording the Planning Director an opportunit~ to respond as she deems appropriate. Mr. Collins would then be allowed a final closing statement or argument. You may then render your decision at the conclusion of the presentation or take the matter under advisement for further deliberation. I will be happy to prepare a written document reflecting your decision should you so direct. EMCjmc Attachments jc618.1 cc: Planning Director Charles T. Collins lMr. Collins' appp~l is dated May 17, 1991, and while Mr. Collins states he hand"delivered the appeal on that date to the City Manager's office with a copy to the Planning Department, no record of such delivery has been found. It was not until June 10, 1991, that the staff first became formally aware of Mr. Collins' appeal when he presented a copy of same directly to City Council at the conclusion of the proceedings on the Aspen Meadows development approvals. Staff has no reason to doubt Mr. Collins' assertion that he originally delivered the appeal to the City on May 17th, it is just that no record can be found of same. .r-.. r-. - "Aspen/Pit 130 Asp (303) 9 j " ;. t. !' .~,) ~ " ' ""1 v," ~,. I'~\\" 'II . . - Co ..t\' , 't, 'I' ,Co. ......" ~ ing Office oJ) :. treet - 611 FER I < J991 920-5197 -~ ~ -.. ;.::- .~.! ~ ,.'f.,. . -- ....::......... .,- .. February 8, 1991 C/iy ATTORNey'S . '-_ OFFICE Charles T. Collins 531 W. Gillespie Aspen, Colorado '. near Charles: .' This is in response to your letter dated January ~5, .1993. and received ih this office on January,28th. You requested an interpretation of Chapter 24 Land Use R.egulations as provided in Article 3.3. (Interpretations of the Land Use Code). My-responses to your questions follow. Article 9: Nonconformities: Nonconforming lots may he transferred or conveyed but may not be subdivided if the nonconformity is increased. '.It is the intent of the article to permit nonconforming uses to continue to exist, , but not to allow nonconformities to be enlarged or expanded. If subdivision resulted in creation of.a new nonconforming lot, it would not be allowed. If it is an - existing non-conforming lot of record, a single family dwelling may' be. developed on such lot if the lot is. in separate ownership and not contiguous to lots' in the same ownership. All d.imensional requirements of. the zone district must be met or a variance mus~ be obtained from the dimensional requ~rements pursuant to Article 3.0. Section 9-107 (A) states that:., , No lot 'or interest therein shall be transferred, conveyed, sold or subdivided so as to create a new nonconform~ng lot, to avoid, circumvent or subvert any provision of this chapter, or to leave remaining any lot in violation of the dimensional requirements of this chapter. ' Article 7, Division 10: Subdivision: The exemptions from the full subdivision review are outlined in Section ~-1003 (Exemptions).' These are the only exemptions the code.allows to be considered. There may be specific or unusual @ recycled paper . I ~ I , - Exhibit 2 ,-,.. ,-,. circumstances associated witb your case which I am unable to answer fully witbout more .complete information. Without specifics as to why you are requesting a code interpretation, it is impossible to give you a complete answer and may lead to mis-interpretation on your part: I encourage you to be more specific with respect to the exact case or property you are'. referring to so I can respond to the specifics of your case. If you are referring to the Meadows proposal, the specifics of the SPA overlay and ~he Master Plan ~ay impact such an interpretation. I hope the. above information is useful. Please contact me if ypu hav~ any additionai questions. cc: Jed Caswall Kim Johnson " -. ~. /""'11\ 531 West Gillespie Aspen, Colorado March 21, 1991 ~~8~ ~~ ~ifW , Ms. Amy L. Margerum Planning Director City of Aspen 130 South Galena Street Aspen, Colorado 81611 .HAND DELIVERE.P- Re: Land Use Regulations Aspen Meadows SPA Submittal Dear Amy: Thank you for your letter dated February 8, 1991 in response to my earlier request for certain interpretations of Chapter 24. Specifically, my request is directed to several items in the Aspen Meadows proposal which appear to be in conflict with the conditions set forth in Chapter 24. Article 9: NONCONFORMITIES The proposed new access road from 7th Street and the access to existing residences are shown cutting across Lots D, E, F, G, H and I, Block 7 of the original Aspen Townsite. This is presently a nonconforming lot of 6755 square feet in the R-15 zone. A reduction in its size would create a new nonconforming lot which is clearly prohibited. Please confirm that a variance request following the standards applicable under Article 10 is the one way to create such a new nonconforming lot. Article 7, Division 10: SUBDIVISION The proposed new access road from 7th Street and related improvements do not appear to conform to a number of the design standards required for subdiv- isions in Sec. 7-1004(C) (4)(a), including but not limited to paragraphs (1), (2), (3), (6), (9), (10), (12), (13) and (14). Because these standards relate directly to road safety and public health, I request an an interpretation as to their immutability to exemp- tions or exceptions from the subdivision regulations. I hope this additional information will help you to answer these questions on code interpretation. Thank you for your continued assistance. Very truly yours, ~ Charles T. Collins ,. - Exhibit 3 ; 1'""\ 1'""\ Charles T. Collins 531 West Gillespie Aspen, Colorado April 17, 1991 Dear Chic: I am writing in response to your letter dated April 16, 1991 regarding a request for interpretation of the Land Use Code. First, I want to thank you for your input and interest throughout the Meadows review process. We have ensured that all valid concerns raised by you throughout the process are followed through via the conditions of approval we proposed. You asked about Article 9 as it relates to nonconforming lots and in particular the Marquese lot. section 9-107A of the Land Use Code states that "no lot or interest therein shall be transferred, conveyed, sold or subdivided so as to create a new nonconforming lot, to avoid, circumvent or subvert any provision of this chapter." The fact that a pUblic road easement will be crossing the Marquese lot does not "create a new nonconforming lot." The City Attorney agrees with this interpretation. Article 7 dealing with Subdivision does require Right of way dedication for all streets. The approval is conditioned upon ROW to be dedicated upon review by the City Engineer and will comply with this section of the code. The new road will be a public road, not a private road as your letter s.tates. The City Engineer will evaluate road safety concerns. The determination of whether a road is a "local" or a "collector" is made by the city Engineer based on traffic counts and the number of other roads feeding into a road. There is no requirement in the code for making this determination. In addition, the code amendment allowing for an SPA proposal to vary from Subdivision requirements will allow this and other SPA projects to vary from the requirements laid out in the Land Use Code for things such as right-of-way width and maximum percent grade. Please feel free to contact me if you have any additional questions or require clarification on the above items. a7~t~~~~~,,-. Planningablrector cc: Jed Caswall, City Attorney Chuck Roth, City Engineer Kim Johnson, Planner i~ recycled paper - - Exhibit 5 1""'"1. .,-" opr 531 West Gillespie Street Aspe:r:..f Colorado May 17, 1991 Honorable Members of the Aspen City Council 130 South Galena Street Aspen, Colorado 81611 ~~bJJJ2.__12.~:;'l VEB.~ Re; Land Use Regulations Aspen ~eadows SPA Submittal Dear Council Members: P~rsuant to the standards and procedures set forth in Article 11 of Chapter 24, I y{ish to file this petition to appeal the decis~on of the planning director with regard to illY requests fo= interpretation of Article 9 (Nonconformities) and Article 7 (Devel~?ment Review Standards) of the code. Background information is presented in the attached copies of our cor~espondence dated March 21, April 16 and April 17, 1991. Please advise when a hea:i"'ing date is set and Nhethe::::, addi~ional information will help in considering this petitio~. Thank you. ? Charles T. Collins , / cc: Amy Margerum, Planning Director .. - Exhibit 6