Loading...
HomeMy WebLinkAboutlanduse case.AP.Aspen Meadows.1991-AP1kqp�\ —Aspen Meadows - Collins appeal 1991 nnAp intP-rnr-,.;�--ation anneal Ij JJA 24 '91 12:54 MCFLYNN & PICKETT PC F.2/?- THOINUS FT-T01%; SNUrH ATTORNEY AT LAW 320 WEST MAIN STREET, SUITE 5 ASPEN, COLORADO 81611 June 24, 1991 Mayor and City Council City of Aspen 130 So. Galena Aspen, CO 81611 AREA CODE 303 TELEPHONE $25-5004 TELECOPIER 925.2442 Re: June 24, 19910 Agenda - Appeal of Code Interpretation (action Item IX(d)) Dear Mayor and City Council Members: On Thursday, June 20, 1991, Mr. 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, Mr. Collins asked me to represent him in this matter, which is now scheduled to be considered by you this evening. Inasmuch as neither Mr. 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. ver trul yours,. Thomas Fenton Smith TFS/dd cc: Jed Caswall, Esq. Charles T. Collins Mayor.624 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: (a Mayor ATTEST: i City Clerk Mailed to: J Thomas Fenton Smith, Esq. City Clerk {{I THOMAS FENTON SMITH ATTORNEY AT LAW 320 WEST MAIN STREET, SUITE 5 ASPEN, COLORADO 81611 July 8, 1991 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: AREA CODE 303 TELEPHONE 925-5004 TELECOPIER 925.2442 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 Council 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, gym_ Thomas Fenton Smith TFS/kl cc: Charles T. Collins CITY➢ SPEN 110 South Galena eet jr en,Colorado 81 1 300-5055 C' t:` ney 303-920-519 x 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. ell) recycled paper THOMAS FENTON SMITH ATTORNEY AT LAW 320 WEST MAIN STREET, SUITE 5 ASPEN, COLORADO 81611 June 26, 1991 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: AREA CODE 303 TELEPHONE 925-5004 TELECOPIER 925-2442 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 truly ours, Thomas Fenton Smith TFS/dd cc: Jed Caswall, Esq. Charles T. Collins Mayor.626 , �r CITY OFkA,SPEN 130 South Galena Street Aspen, Colorado 81611 303-920-5055 City Attorney 303-920-5197 Fax MEMORANDUM DATE: June 18, 1991 TO: Mayor and City Council FROM: Jed Caswall, City Attorney RE: Land Use Code Interpretation Appeal This matter is on your agenda at the request of Charles T. Collins pursuant to Section 24-11-101F 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 24-11-101A 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 24-11-101F 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 filing. 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. On January 28, 1991, Mr the Planning Director f formities", and Article use code. (See Exhibit written interpretation February 8, 1991. (See Mr. Collins followed up THE COLLINS APPEAL . Collins submitted a written request to or an interpretation of Article 9 "Noncon- 7, Division 10 "Subdivision", of the land 1.) The Planning Director rendered a addressing Mr. Collins' concerns on Exhibit 2.) On or about March 21, 1991, on the Planning Director's interpretation recycledpaper Memorandum to Mayor and City Council June 18, 1991 Page 2 of February 8th with aYotner 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 REQUESTED 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 opportunity 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. EMC/mc Attachments jc618.1 cc: Planning Director Charles T. Collins 1Mr. Collins' appp.q! 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. ' '28 - 531 W. Gillespie Asper., Colorado January 25, 1991 Ms. Amy Maraerum Planning Director City of Aspen ]30 South Galena Street Aspen, Colorado 81611 Re; Land Use Regulations Municipal Code of the City of Aspen Dear Amy: I am writing to you to request interpretations of Chapter 24, Land Use Regulations, as provided in Article 11, Article 9: NONCONFORMITIES Does this article allow the transfer, conveyance or subdivision of interest in a nonconforming lot that would create a new nonconformina lot? If such a transfer, conveyance or subdivision can be considered, please cite the enabling section(s) and authorizing procedure(s). Article 7, Division 10: SUBDIVISION Does this division allow exemptions -or exceptions from the terms of this divisio:_ other than the exemptions listed in Sec. 7-10-03? If other exemptions or exceptions can be considered, please cite what thev are and the enabling section(s) and authorizing procedure(s). Please let me know if you need additional information to complete this request. Thank you very much for your help. Very truly,,,.)4ours , Charles T. Collins Exhibit 1 Aspen/Pit ing Office 130 treet Asp 611 FEB i991 (303) 9 920-5197 CITY A]TOr?i�i[Y,S February 8, 1991 OFFICE Charles T. Collins 531 W. Gillespie Aspen, Colorado Dear Charles: This is in response to your letter dated received in this office on January-28th. January 25, 1991 and You requested an interpretation of Chapter 24 Land Use . Regulations as provided in Article 11 (Interpretations of the Land Use Code). My responses to your questions follow. Article 9: Nonconformities: Nonconforming lots may be 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 dimensional requirements of the zone district must be met or a variance must be obtained from the dimensional requirements pursuant to Article 10. Section 9-107 (A) 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, 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 7-1003 (Exemptions). These are the only exemptions the code allows to be considered. There may be specific or unusual recycled paper Exhibit 2 circumstances associated with your case which I am unable to answer fully without 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 the Master Plan may impact such -an interpretation. I hope the. above information is useful. Please contact me if ypu have any additional questions. Si7yv/�: ely, mArgerum Planni Director cc: Jed Caswall Kim Johnson 531 West Gillespie Aspen, Colorado March 21, 1991 Ms. Amy L. Margerum Planning Director City of Aspen HAND DELIVERED 130 South Galena Street Aspen, Colorado 81611 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. Thant, you for your continued assistance. Very truly yours, w ,riU✓ Charles T. Collins I � Exhibit 3 531 West Gillespie Street Aspen, Colorado April 16, 1991 Ms. Amy Margerum Planning Director City of Aspen 130 South Galena Street Aspen, Colorado 81611 Re: Aspen Meadows Final SPA Development Plan Dear Amy: This is a request for an additional interpretation of Chapter 24, Land Use Regulations, as provided for in Article 11 of the code. These items were brought forth only recently after the Final SPA Development Plan had been submitted by the applicant. Article9: NONCONFORMITIES (Marqusee) Clarification regarding the conveyance of a property right and construction thereon leaving a nonconforming lot in violation of the dimensional requirements of the code. Article 7: SUBDIVISION The code requires R.O.W. dedication for all streets. Clarification is requested for the authority or source which permits retaining the new road in private ownership with a public access easement, as this is not an existing road nor one planned for the future. A_rt_icle_7: SUBDIVISION An interpretation is asked for 'local' vs. 'collector' streets and the qualified party who will evaluate road safety and public health concerns when proposed street designs do not meet the city's design standards. In the West End, streets running north and south to Main and Hallam Streets would generally be considered 'collector' streets feeding into an arterial route, that is, Highway 82. Thanks for your assistance. Please call me at 925-2089 if you have questions. Sincerely i Charles T. Collins Exhibit 4 n lr si A.s en/Pik °P4"Anning Office April 17, 1991 130 ®uth' Galena street Charles T. Collins A Pori. C'616rad ,8A611 531 West Gillespie (J03) 920-5090 ;,Fax :(303) 920-5197 Aspen, Colorado 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 states. 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. nqe �tc� my Merum Planningrector cc: Jed Caswall, City Attorney Chuck Roth, City Engineer Kim Johnson, Planner 161) a recycled paper Exhibit 5 COPV 531 West Gillespie Street Aspen, Colorado May 17, 1991 Honorable Members of the Aspen City Council 130 South Galena Street Aspen, Colorado 31611 HAND DELIVERED Re: Land Use Regulations Aspen Meadows SPA Submittal Dear Council Members: Pursuant to the standards and procedures set forth in Article 11 of Chapter 24, I wish to file this petition to appeal the decision of the planning director with regard to my requests for interpretation of Article 9 (Non Confozmities) and Article 7 ;Develcp^ert Review Standards) of the code. Background information fs presented in the attached copies of our correspondence dated March 21, April 16 and April 17, 1991. Please advise when a hearing date is set and whether additional information will help in considering this petition. :hank you. Sincerely, Charles T. Collins CC: Amy Margerum, Planning Director Exhibit 6