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HomeMy WebLinkAboutcoa.lu.ca.Code Simplification.1988 ,...., ,...., ~ ... COA11:S REID&WAWRON Rul [stoOl.. _ ._....... I'r_~ M.....S.._n< February 4, l'i88 Sill Stirling Mayor City of Aspen 130 South Galena Aspen, Colorado 81611 Dear Bl1]: I am writing you with so.. serious concerns I h4ve In regards to Ordl~nc. .68 dealing with non-conformIng use. In this regard I have two que.tions: 1. When a multi-ownership building becolu," too old to keep up and it must bll d..troyed and rebuilt, how IS the equity die- tributed it Ie.. total unit. or square footage can be built th4n presently exists? How do.. the ordinance addr... this situation? We ..nag. . multI-unIt complex In Aapen which might have serious foundation proble.. which we have been addr...ing. The building might need ..veral hundred thousand dollars MOrth of repairs and each owner is poesibly taced with several thousand dollar. worth ot expenses. At sOllie cost it would be Ki.er to tear down and rebuild the co.pl_x. allain. How will this ordinance address a probl.. like this whiCh occurrsd through no tault ot ths ownsr.? Can th.y rsbuild wtuat they .lrs.dy have? It not they stand to lose a lot through the high cost to repair or not being .ble to rebuild the sam. square tootage. 2. How will condollliniulll cOlllpleltes and apartment buildings get r.pl.c....nt insuranc. if what th.y have can't be rebuilt? My feeling ie that it would not be ineurable. Haa the COWlcil investigatad thia potential probl.m. We are all concernad with keaping a high ql.l.81ity of living in Aspan, but th..e two i..u.. repre.ent r.al problefll. to u. that need to b. .ddr....d before this ordinance is pa.sed. Sinc.rely, ~ Michael L. Spalding Gen.ral M~ln.ger MS/jc co, John Howard Aspen Ollie". 720 East Hym.n, Asran, ColC>ra<lo81611 . 1:)03)92~1400 Snowmaas Ollie!>. Box 8450, Snowmass Cem"" Sr'I<lwmass Village, ColoradO 81615 . 1303)923-4 75Q ~~r v~ ~ ~jr;;1' BII/sJ-1 V//, p~(2Yjzvy.(JJo4/~Co,jerrvc'7 S+rvC-!-vre5 C\ J, tAA~e ~. {J~ -e yo () ~O oio f -f a tV ~ r J, 1(/0 IOC -= -4-lQ -I-alZ k/5 f r(7t~r +7 ,aWkJev-5 +~ i e-.~C/( () .Jk-elr- Irof~vl'eJ a 5 ;; ~ q ~ fie '( jeC/YeC2~'€.. QOVY Po ~-c:r--Iov<< I;; I r "~ <Tr j ~ s s J /'w ~ <ntUt7 Lt ~o {t/€y +Ze( Y-6'f"d o( lY /Mc~l/:~e C4~~j~:e';1:A7~:;~ ;~~ D .4 R/j I TO;J~;tl Otf/w~~~l /RJU62Js :.r::JL!' /t:/ijke a :2::f7'~"/j6 ~o q s It, "Y <t~ II- d-<; 1. J- IVc~qS;/~ (/~~ P;7co;:::7:tQY?, John R. Werning, Proprietor .905 East Hopkins . Aspen, CO 81611 . (303) 920-2550 ~ ~, t rt .' L I- Il ~e'CCG>"rtfe- cy& ,Y~(/ova' {(nVI C05S I 6 t (j v I d vvo 'f- 0 r vi 56> c1 . ! 3) fie, /d.:;:;q. oj 6Y"Y",c~1 01!:J pShe~ IIL-/ {p I~ ~ (ro !~ r ,j ..f- 0 f" "" '" ev "' a "-- . Co a.. , Q ~J', 'bel ~j/~d// QIl- j q /I 6 ~ -1/ ~ P fO I <? rj/Z~ sU/( 1--4 {IV I ~ / h Ii u e- a' 'r ,d,y' I/o ;;~I;c tV" /, 7y f!~j ~ + 1VQ II 5 kov-IJ t c ; ;l~ecl r~6 ~)r(5 , I , ! ! I I ( ~ .~. ,.- November 25, 1985 I:!.].I:!.QB.A.N.l:J.QM TO: City Council FROM: City Code Task Force Gideon Kaufman, Chairman Perry Harvey Andrew V. Hecht J. Nicholas McGrath, Jr. Michael Otte Spencer Schiffer RE: Report Introduction The Code Simplification Task Force has met every Thursday for the past two and a half months to study and review the zoning and subdivision sections of the Municipal Code of Aspen (hereinafter "the Code"). The Task Force has also sought input from Jim Adamski and Ann Bowman of the Housing Authority, and from Bill Kane, Joe Wells and Sunny Vann, all former City planners. In addition, the Task Force drew upon its own experience of many years of practicing in front of the various City bodies and utilizing the Code. After all this work, it is the unanimous opinion of the Task Force that a major, overhaul of the Code would be desireable. After years of piecemeal changes, the Code lacks continuity and clarity; only a total revamping of the Code can adequately address its numerous problems. The magnitude of this task makes it inappropriate for the Task Force to undertake Code simplification. A number of years ago, the County hired Karen Smith and ROMCOE to revise its Land Use Code. We feel hiring a specific individual is an appropriate step for the City to take, for we anticipate it will take a year to two years of full time work for a competent and qualified person to complete this task. If possible, the consultant be a person familiar with both the Code and the goals and nature of the Aspen community. This person should not be a present employee of the City of Aspen, nor someone with a growth or no growth bias, but rather an individual with an open mind whose primary objective would be Code simplification rather than growth or no growth ideology. The Task Force would be willing to work with the consultant to give additional input if the consultant so desired. The Task Force spent a considerable amount of time exploring the objectives of the community in the early 70's when many of the Code sections were adopted, as well as the philosophy behind those sections. One key problem that we have identified is interpretation of the Code over the passage of time. One of the biggest flaws of the Code is the tremendous lack of continuity and consistency, both in the Code and in the City's - 1 - ""'" .~ interpretation of the Code ONer the last ten to twelve years. So often the original intent behind a Code section is lost to those who, years later, have the task of interpreting it. Because future City officials may have no background as to the intent behind the adoption of a particular Code section, and the compromises and changes which were made in order to reach the final enactment, we feel it advisable to include legislative history and intent as part of all new sections of the Code. This will give the community and City officials an understanding of what the Code section was intended to accomplish, and it would become less likely that a Code section be subject to different, inconsistent interpretations over the passage of time. Many of the original premises which the Growth Management Quota System and other zoning regulations were based were not intended to guide the community ten and fifteen years later, but rather were intended to be reviewed and updated on a regular, if not yearly, basis. While we understand the Planning Office believes it has periodically reexamined GMP assumptions, the Task Force nonetheless feels that many of these early studies and premises need to be re-examined in light of today's reality. The City Council should investigate what lodge, residential and commercial growth has actually occurred since the adoption of the Growth Management Quota System, and evaluate what effect this growth has had on the community in light of the purposes of the GMP. The GMP presently regulates three areas of development; lodge, residential and commercial. The City should determine whether the GMP is the best means to control growth in each of these areas. We are not suggesting eliminating the GMP, but we do recommend you examine it in terms of its relevance and applicability today, and that you re-examine many of the initial premises upon which the GMP was first adopted. The Task Force has compiled for your review a list of the key areas in the Code needing revision along with examples ind~cating the shortcomings of these particular sections. We have also compiled a list of other areas in the Code which need to be reviewed and are items which a consultant should examine for purposes of revision and simplification. We recommend that you include the Planning & Zoning Commission in your deliberations on code simplification and revision. It seems the Council has two options. One is to pay lip service to Code simplification which, while politically expedient, would accomplish nothing. The other is for the Council to take the bull by the horns, hire a consultant, spend the money, and really try to make some improvements to the Code. This involves hard political decision making. The only way to simplify the process effectively may involve eliminating certain controls that the Council and commun~ty are accustomed to having. 1. Reduce the number of zones. The code should be simplified by reducing the number of zones and clarifying the distinctions between them. There are presently some 21 different zones. Do we really need four different commercial zones, three different lodge zones, and seven different residential zones? - 2 - .-, -- Merely reducing the number of zones will result in simplification as the effect of the reduction is reflected in simplified use tables (revise Section 24-3.2), and the elimination of some conditional uses. The proliferation of conditional uses, while allowing individual review, assessment of impacts, and the like, has the distinct disadvantage of requiring a great deal of staff, council, and P & Z time out of proportion to the ends achieved. Conditional uses ought to be reserved for high impact or transitional uses where individual review is warranted. Simplification and greater certainty in the application of the code would be achieved by increasing the permitted and prohibited uses. Finally, the definition sections of the Code need a thorough and consistent rewriting. 2. Interpretation and legislative history. Part of the lack of simplication and the uncertainty with regard to the code, or with regard to any code for that matter, has to do with the interpretation of its language. Different staff members and different councils often interpret the same language differently. Thus, it would be helpful to include legislative history as part of code amendments and at times as part of a land use application itself. For example, the standard for carrying forward past or using next year's allocations in the GMP is most obscure. Having some legislative history as to the setting of the number of units and as to the reasons for carrying forward or using multi-year allocations would at least provide some guidance to parties whose projects need such consideration. For example, 4,000 square feet is too small an allocation as a practical matter for any commercial development in the "0" office zone. With regard to that simple example, the intent must have been to use prior or next year's allocation if a project came along because otherwise one might as well preclude the project from the outset. Another example is that the lodge zone had 18 units as a yearly standard for a long time. That was increased several years ago to 35, its present number. As a practical matter there are few projects that small that are economically feasible. Thus not carrying forward prior year's units results in greater pressure for multi-year allocations. Section 24-11.3(a), which authorizes council to grant an allotment in excess of the number ordinarily permitted, contains no standards whatsoever, so it is particularly susceptible to arbitrary interpretation. That section simply provides that "the city council may authorize construction in excess" of the normal yearly allotments. Normally codes relating to such important rights, ~'K., one's development of one's land, provide guidelines against changing interpretions. Similarly, was a lift tower considered "development" under 8040 when 8040 review was first adopted some 12 years ago, or is that a product solely of recent staff interpretation? Absent some guidelines, at least a compilation of legislative history would provide some assistance. 3. Fees. The fee schedules for applications should be reevaluated. The tendency for any governmental body, since most have budgetary problems, is to "try to make each department pay." However, fees for land use applications are often arbitrary and unfair. Further, fees are often illusory, because of the high - 3 - r-, .~ hourly rates for planning office employees who are not otherwise used to keeping track of their time and are not answerable to those whom they bill. It is the city as a whole through its voters that desires a strict and comprehensive land use plan. In theory at least, that strict plan and its application benefits all of us because it results in less growth, or controlled growth, and sufficient open areas, parks, and other social amenities of benefit to everyone. Thus, to make the planning office pay solely by exacting a fee from the last few people through the door does not spread the burdens equally with the benefits. Golfers do not in fact pay for the entire cost of the golf course, which in part was funded with seventh penny open space money, because the golf course itself is a community wide amenity, keeping open and green and beautiful a large area that we can all enjoy. Similarly, society requires that parties settle many disputes through the court system--civil suits, divorces, and the like. Parties using the courts pay a modest filing fee, but are not assessed a portion of the salary of the judge, the clerk, the court reporter, the bailiff, a percentage of the furniture costs, etc. We think the same reasoning applies with regard to the planning office. Certainly some fees are justified; the high fees that have been in force in the last several years are not. 4. Application dates. The setting of certain dates to govern whether a party may even apply for a land use approval should be reexamined. There may be no public purpose served whatsoever in requiring that a private rezoning application be received only once or twice a year. Originally, that deadline was set because it was thought that the planning office might have to spend too much time on private rezoning applications. One gets around the current regulation by obtaining sponsorship by the Planning and Zoning Commission or City Council for an amendment. Setting arbitrary dates as to whether one can even apply for a land use approval smacks of unfairness. 5. Parking. Section 24-4.5 does not provide a mechanism for reduction in required parking in the L-l, L-2 and L-3 zones. One parking space per bedroom is an absolute requirement. Even the Engineering Department agrees that some type of special review is appropriate. Different standards were developed for the Aspen Mountain Lodge, as well as for some of the smaller L-3 projects. Without flexibility in the one space per bedroom parking requirement of the present Code, additional unneeded parking may be required which would result in a poor site design. Further, the concept of auto disincentive as embodied, ~'R., in the no-parking requirement for the C-C zone, should be reexamined. 6. Slope reduction. Section 24-8.18 deals with slope reduction in mandatory PUDs. It is the committee's feeling that slope reduction may be appropriate in areas other than mandatory PUD, and that an outright prohibition on development based solely on slope is not appropriate. Engineering studies may show that on a given site, development on a 35 degree slope is more desirable than development on a 25 degree slope elsewhere. - 4 - ~. ~ 7. Non-conforming~. The Planning Office, the City Attorney's office, as well as most attorneys who deal with Section 24-13, all agree that this is the most complex and confusing section in the Code. There is a definitive need to clarify the non-conforming uses and non-conforming structures section of the Code. Perhaps the best way to deal with this section would be through a total re-drafting that would take into account our current thinking on non-conforming uses and structures. Most non-conforming use provisions were drafted in order to eliminate the "offending" uses, and that isn't in keeping with current trends. The problem with the section is the result of various re-drafts that have left the section with conflicting goals and confusing language. 8. TDRs. TDRs are currently not allowed in the City. There has been discussion in the County about Transfer Density Rights as a mechanism to preserve some of the scenic qualities of the down valley. A TDR that exists both in the City and the County would be a valuable planning tool for future development in the community. A TDR in one jurisdiction without the benefit of use in the other jurisdiction would greatly inhibit the value of Transfer Density Rights. Preservation of large, open areas down valley might be possible under such a unified scheme, but the relationship to the GMP should be evaluated. 9. GMP Inventory. We believe that a potential pitfall in the GMP is that it does not have a built-in mechanism to compensate for inventory changes. This is true notwithstanding a revised statement of growth management policy which purports to address changing growth priorities. Such revised statement suggests a response to economic needs of the community, but it does not address inventory changes. Specifically, there has been an attrition in the number of condominiums and perhaps lodge units available for tourist use. If this is the case the GMP should allow recapture of these lost beds in addition to the minimal expansion provided for in the plan. It was the intent of City Council to maintain the growth rate of Aspen while at the same time insure the economic viability of our resort oriented economy. It is inconceivable to us that anyone would make the argument that we should not be using our physical plant to its utmost capacity. This includes not only the private sector but the government infrastructure much of which is financed through bonds retired by user fees. Further, it is the view of the Task Force that although the concept that growth should pay for itself is justified, the GMP has been used improperly to impose exactions on development that cause such development to carry more costs than it can sustain. 10. Lodge rooms. Section 24-3.1 describes lodge or hotel as three or more units with no kitchens intended for temporary occupancy. Lodge or hotel is differentiated from residential unit solely on the issue of a kitchen. It is no longer adequate to use this definition. Lodge rooms should in certain cases have - 5 - ,-." ,-." kitchens. Further, many short-term units for temporary occupancy are excluded from lodging inventory counts because they have kitchens. Possible solutions include (a) Short-term could be defined by payment of rental sales tax; and (b) change the three or more units provision to ten or more with common amenities for guests, on-site check-in, central lobby and common space. Perhaps a larger ratio of common space to rooms would mean a lodge, and be given some bonus. 11. GMP exemption for reconstruction. Section 24-ll.2(a) originally ~rovided that there would be a GMP exemption for "the remodeling, restoration or reconstruction of any existing building (providing there is no expansion of commercial floor area nor creation of additional dwelling units)". The exemption was created primarily as an incentive to encourage the remodeling, restoration or reconstruction of existing units and was based upon the rationale that the mere recreation of that which already exists has no growth management impact. Since the section did not specify any limitations on where the reconstruction could take place, a former City Attorney interpreted it to mean that the reconstruction could take place anywhere in the City in the same or less restrictive zone district. Indeed, that would seem logical since there would be no growth management impact. However, in what appeared to be a response to a particular application based upon the interpretation of that City Attorney, the City adopted the recommendation of the Planning Department and amended the section so that exempt reconstruction is now limited to the same site or a contiguous site owned by the same individual. The restriction as to the location of reconstruction under the present subsection does not appear to serve any useful purpose and may even be considered counterproductive in terms of encouraging reconstruction. Reconstruction of existing units anywhere within the same or less restrictive zone district'has no impact and is, in fact, desirable as an incentive, as was originally contemplated. Moreover, the provision can be circumvented by moving a single-family or duplex structure from an existing site and placing it upon any other site within the City in the same or less restrictive zone district owned by the same individual, demolishing the structure, and then reconstructing it on the same, or a contiguous, site. 12. Measuring floor area. Section 24-3.7(e) requires the inclusion in floor areas for calculating F.A.R. of above-grade decks, stairways, balconies and any area under a horizontal projection of a roof or balcony, even though not enclosed, when such areas are necessary for the function of the building. Above-grade decks and balconies are considered necessary for the function of a building if they are used for required access and the principal use of the building is non-residential. However, if the building's principal use is residential, above-grade decks and balconies are not considered necessary for the function of the building if the total area of such ~eatures is less than or equal to fifteen (15%) percent of the maximum allowable floor area. - 6 - t""'\ -,. There are several problems with this subsection: a. There is no specific definition of "residential" versus "non-residential" in the Code other than that implicit in Section 24-3.2. For example, is a condominium project considered residential or non-residential? b. This subsection imposes an artificial constraint on the architecture and design of projects. Decks, stairways, and balconies are often used to create desirable features from an aesthetic as well as functional point of view. The subsection effectively makes the cost of those features prohibitive. If a developer desires to create balconies or decks which exceed fifteen (15%) percent of the building's maximum allowable floor area, he should not. be penalized by having that excess deducted from floor area used to calculate floor area ratio. Moreover, the application of this subsection is subject to interpretation of the phrase "necessary for the function of the building," which is very ambiguous. 13. F.A.R. measurement continued. Section 24-3.7(e)(3) includes in-floor area ratio calculations basement areas and subgrade and sub-basement areas meeting the "minimum requirements for natural light, ventilation, and emergency exit for the applicable occupancy group." It is designed to preclude the possibility that illegal or "bandit" units would be created, the presumption being that at any time a space meets the minimum occupancy requirement, the temptation would be so great as to create a probability that the law will be violated. That is not necessarily true, and this subsection therefore may impose unnecessary restrictions on a developer that may work to the detriment of the project without benefit to the City. 14. E.A.~. and minimum lot size. The provisions for the minimum lot area per dwelling unit for multi-family construction can be criticized. The consensus is that the mix of studios, one, two, and three-bedroom units in a multi-family project should be determined based upon market conditions and economic dictates rather than artificial zoning constraints. The same applies for the size of studios, one, two, and three bedroom units. Moreover, the regulation does not appear to serve any real purpose. For example, given a 12,000 sq. ft. lot, a developer could create 12 studios, 9.6 one bedrooms, 5.7 two bedrooms or 3.3 three bedrooms, or any combination or permutation of the above, calculated by dividing the minimum lot area per dwelling unit into the size of the lot. Having determined the maximum number of units which can be constructed based upon the formula, the developer can then make those units either larger or smaller. This section may be counterproductive in terms of actual impacts in that, theoretically, in the hypothetical for a 12,000 sq. ft. lot, 12 studios could have a much greater impact than 5 or 6 two-bedroom units. This section may also lead to problems when there are proposed mixed uses of residential and lodge units or when a project has existing units with kitchens which are intended to - 7 - 0-0 -, be ultimately demolished and, in the interim, used as short-term rental units. In one specific instance a developer proposed to construct lodge units on a large parcel which already contained a building of approximately 6,000 sq. ft. Since the building consisted of six two-bedroom units the Planning Department determined that the total land area available for development had to be reduced by 12,600 sq. ft. instead of 6,000 sq. ft. since the building was multi-family in nature (each unit had a kitchen) and the minimum lot area per two-bedroom unit was 2,100 sq. ft. (6 X 2,100 = 12,600). It was conceded, however, that if the developer simply removed the kitchens the appropriate deduction would only have been 6,000 sq. ft.! This, of course, also serves to point out the artificial distinction between lodge and multi-family units based on the existence of kitchens. Since it was determined that the building was multi-family in nature, until it was demolished or the kitchens were removed, the amount of lot area to be deducted for it had to be based upon the minimum lot area per dwelling unit for multi-family units. Another criticism has to do with the internal FAR in Ll and L2 for lodge. Under the current regulations the number of lodge units tha~ can be constructed on a given site is strictly a functioh of the size of the units. Thus, the maximum allowable ten tal space is first determined and then divided by the proposed size of each unit to determine the maximum number of ~'nits that can be constructed. However, under the growth m nagement plan the quota is given in units rather than square, footage. As a consequence of this apparent incongruity, the size of units may be determined artificially rather than by thel economy or market conditions. The consensus seems tol be that the economy and market conditions should be the determining factors and the regulations should be amended to permit that to happen. Moreover, the FAR requirements or intentives for the creation of employee housing need to bel reexamined in light of present conditions. I 15. Open spac~. The intent and requirements of open space (Section 24-3.7(d)D need to be reevaluated. Currently, open space must be openl'to the street and not used for "storage, swimming pools and other recreation areas,...rear access area, parking..." The coe allows fencing on the property line which obscures the visua effect of open space. The City in the past has allowed enclosed open space, for example in the Asp!n Athletic Building. Open space ne ds to be redefined as to intent. If the intent is toprovi~e visual relief, then patios, skating rinks, swimming pools andlthe like should be considered open space, as should landscaped parking. Further, stairs and ,below grade spaces should not ~e open space because they do not contribute to the minimizing of ~uilding bulk nor do they provide view lines for pedestrians. I 16. Employee ~ousing. The Task Force reviewed the issue of I I I - 8 - ,-'" - employee housing as it is regulated within the Code. It is our opinion that the Code should be modified to be more flexible in solving the problem of inadequate employee housing. It should respond to market conditions and should be used to implement a long term solution. Specific recommendations of the Task Force in the area of employee housing are as follows: a. The requirements in condominiumization applications that the property not be rented within the employee quidelines for rent for the eighteen (18) months preceding the application is a disincentive to property owners to keep rents affordable. b. The six (6) month minimum lease restriction should not be used to regulate from an employee housing perspective. This was the specific opinion of Mr. Adamski as well. The Task Force believes there is little empirical evidence that would show any beneficial relationship between such restrictions and the creation of affordable employee housing. c. Money in lieu of employee housing seems to be the most effective tool in facilitating the flexibility and creation of employee housing. d. The definition of an employee room should not be tied to 400 square feet, especially in lodges. e. The City should add the development of caretaker units for the elderly as one mechanism for solving problems of elderly housing. 17. Merger. Section 20-3(s) of the Municipal Code of the City of Aspen defines a subdivision as the division of a tract of land into two or more lots. Section 20-4(c) of the Code "merges" lots into one all-encompassing tract of land, so that any attempt to transfer, alienate or convey any of the individual lots would constitute a subdivision. Section 20-4(c) has been applied exclusively to compel the owner of several contiguous lots which do not individually meet zoning requirements, to merge these lots in order to bring their aggregate size into compliance with applicable zoning standards. Such a procedure might be appropriate where the merger and re-subdivision is needed to bring the lots into compliance with applicable zoning standards. But it should be made clear that where each lot already complies with the zoning regulations, this procedure only serves to impose added and unwarranted burdens on the property. This was clearly not the Code's purpose. 18. Miscellaneous suggestions for simplification. The following are miscellaneous suggestions for further review. a. The sign code. - 9 - . ~ ~ b. The PUD provisions. c. The RBO sections are so confusing and unproductive that they should be repealed. d. The viewplane provisions suffer from ambiguities, ~.R', how to measure, buildings in the foreground are apparently ignored, some viewplanes intersect the ground, which is somewhat of a contradiction. e. Mixed used projects are at a severe disadvantage in the GMP--they have to go through separate competitions, ~'R', residential and commercial, at an increase in cost and time. f. Park dedication fees are currently administered by a letter interpretation rather than by a clear code provision. g. Vacated streets should be counted as area for F.A.R. purposes if paid for, and not if received free through gratuitous city vacation action. h. Consideration should be given to the thought that enforcement of the Code should be the responsibility of and occur through the Planning Office. i. Is any public purpose served by subjecting the condominiumization of a duplex to a two step process, when few if any additional impacts are involved. j. Delete Section 24.6 on use square footage limitation (apparently the result of fears over a large Safeway's). pm2/4:mctfl17 " - 10 -