HomeMy WebLinkAboutcoa.lu.ca.GMQS 1987.24A-87
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MEMORANDUM
FROM:
Aspen City Council
Robert S. Anderson, Jr., City Manager~~~
Alan Richman, Planning and Development Director ~
Ordinance 47-GMQS Code Amendment
TO:
THRU:
RE:
DATE:
November 16, 1987
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SUMMARY: Staff recommends final approval of Ordinance 47, series
of 1987, amending the growth management quota system expiration
provisions.
PREVIOUS COUNCIL ACTION: Council agreed to sponsor the app-
licant's code amendment request earlier in 1987, in order that it
could be submitted outside of the semi-annual submission dates
for rezonings. Council took no position on the request at the
time of its sponsorship. On November 9, at the request of the
City Attorney, Council tabled this Ordinance in order that the
companion Ordinance on vested rights could be prepared.
BACKGROUND: Gideon Kaufman, on behalf of Skip Berhorst and the
1010 Ute Avenue project, has submitted an application for a Code
amendment with respect to the growth management quota system.
The specific section of the GMQS which the applicant wishes to
amend is 24-11.7 (a) regarding expirations. This section states
that:
"All applicants who have been awarded allotments under the
provisions of this growth management system shall comply
with the following provisions or shall have their allotments
automatically expire:
(1) Applicants shall complete all zoning, subdivision and
other development approvals required by the Municipal Code
of the city of Aspen and shall have submitted plans to the
building department sufficient for issuance of a building
permit within a period ending thirty-three (33) months
subsequent to the deadline for submission of the application
for which the allotment was made. The planning office shall
inform the applicant three (3) months in advance of the
expiration date of the pending requirements which must be
completed in order to comply with this provision."
In the attached letter, the applicant contends that this language
did not contemplate a "land subdivision" in which lots are sold
to individuals who will construct their own houses within PUD
guidelines, rather than having the original applicant build all
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of the houses. The applicant feels that the thirty-three month
limitation places an undue burden on the developer and subsequent
lot purchaser, given the fact that an individual may want to buy
the lot but not build for some time.
The applicant's proposed solution to this problem is that the
ci ty adopt an approach similar to that presently in effect in
Pitkin County. This approach provides that once a final plat is
filed for a land subdivision, there are no further time limit-
ations upon the actual development of the units.
PROBLEM DISCUSSION: The City of Aspen has spent consider-
able time identifying and refining the time limits within which
GMQS allotments must be acted upon to avoid expiration. The
City's concern has been that the GMQS was enacted to regulate the
rate of growth in the community. If units are approved and then
their construction is delayed, in effect they have been added to
the inventory of previously approved units over which there is no
rate control mechanism. As this inventory increases, there is a
greater likelihood that in a boom period, the City may be caught
short on infrastructure or may suffer the consequences of severe
construction impacts on our resort community.
In response to this concern, the city enacted time limits on
projects, to ensure that they moved forward from submission to
approval to construction, or the allotment would expire. After
originally setting a rather rigid limit of 24 months from the
date of submission of the application, with no opportunity for
extension, the City then went on to provide for extensions, and
then to increase the time period to 33 months. The problem the
City was trying to avoid was that of "forcing" developers to
build speculative projects in order to avoid losing their
allotments, as happened in several cases in the early 1980's.
From the developer's point of view, I can clearly understand how
difficult are the present Code provisions when applied to land
subdivisions. Developers of subdivisions are typically required
to install a variety of public and private improvements before
they are able to construct dwelling units. The developer needs
to have certainty that after making such expenditures, the right
to build the units will be maintained. Further, purchasers of
lots need to know that they will have sufficient time to make
arrangements to build once they own an individual lot.
From the community's point of view, it does not want to per-
petuate approvals to speculative projects which have no real
chance of being built. Granting approval to a final plat does
not insure that a proj ect will ever be built, as has been
experienced repeatedly in this community. If the City has no
means to have a proj ect expire once a final plat has been
approved, then the units allotted are forever lost to the "pool"
and the City may find itself having to increase its quotas or
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borrow from the future for applicants proposing projects which
are of benefit to the community. Further, if the City approves a
series of these land subdivisions, and all build at once due to
economic or other considerations, the effects on the community
will be substantial.
ALTERNATIVES: While considering the applicant's request and the
staff concerns, it came to our attention that on August 27, 1987,
the Governor signed into law new vested rights legislation. The
law affects the issue raised by the applicant and provides a
clear direction for us to take.
According to the new state law, "A vested property right shall be
deemed established with respect to any property upon the appro-
val, or conditional approval, of a site specific development
plan. . . What constitutes a site specific development plan under
this article that would trigger a vested property right shall be
finally determined by the local government either pursuant to
ordinance or regulation or upon an agreement entered into by the
local government and the landowner...A property right which has
been vested as provided for in this article shall remain vested
for a period of three years...A vested property right, once
established as provided for in this article, precludes any zoning
or land use action by a local government or pursuant to an
initiated measure which would alter, impair, prevent, diminish or
otherwise delay the development or use of the property as set
forth in a site specific development plan..."
Based on analysis of the law by the City Attorney, Code Consul-
tant and Planning Director, and considering what is in the
community's best interests in terms of land use policy, we
recommend that the City consider the site specific development
plan to be the time at which it grants growth management alloc-
ation or final sUbdivision/PUD/SPA approval to a project,
whichever is the later action. This is desirable from the City's
point of view in that it provides us with the most specific
information and the greatest amount of public input before the
vesting decision is made. It is also of benefit to the devel-
oper, in that it puts off the time at which the three year
"clock" starts ticking to as late as possible.
Turning, now to the specific issue raised by the applicant, we
make the following proposal with respect to what happens at the
end of three years. We recommend that single family/duplex
subdivisions be treated differently than mUlti-family, commercial
or lodge projects. The single family/duplex subdivisions would
be provided the right to apply for permanent exemption from the
three year expiration provision if, at the end of the three year
period the landowners could demonstrate that: (1) any conditions
imposed on the subdivision which were due to be met have been
met; and (2) all public and private improvements required to be
installed prior to construction of dwellings have been installed;
3
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and (3) sale of some or all of
stances beyond the developer's
from occurring.
the lots has occurred, or circum-
control have prevented any sales
MUlti-family, commercial and lodge projects would expire at the
end of the three year period unless an extension is requested and
granted. The criteria for this exemption would continue to be
the same as items 1 and 2 with respect to single family lots,
plus a determination that the project has been diligently
pursued, and that extension is in the best interests of the
community.
The City Attorney and I believe that adoption of Ordinance 47,
along with adoption of the companion Ordinance regarding vested
rights will both address the applicant's needs and meet the
requirement of S. B. 219. The provisions of Ordinance 47 will
become part of the GMQS (Article 11 of the current zoning
regulations, Article 8 of the revised Code) while those of the
vested rights Ordinance will create a new Article 15 of the
current zoning regulations, but will be easily accommodated in
Article 6 of the revised Code.
RECOMMENDED MOTION:
"Move to adopt Ordinance 47, Series of 1987".
CITY MANAGER'S COMMENTS:
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ORDINANCE tI '-\'\
(Series of 1987)
AN ORDINANCE OF THE ASPEN CITY COUNCIL AMENDING SECTION 24-
11.7 (a) OF THE MUNICIPAL CODE WITH RESPECT TO GROWTH MANAGEMENT
QUOTA SYSTEM EXPIRATION PROVISIONS
WHEREAS, the 1010 Ute Avenue Corporation (hereinafter "the
Applicant") did submit a privately initiated Code Amendment with
respect to the expiration provisions of the Growth Management
Quota System; and
WHEREAS, the Applicant did request that the expiration
provisions be amended such that once a plat is filed for a
subdivision composed of single-family and duplex lots, its
allotments would never expire; and
WHEREAS, on August 27, 1987 the Governor of the State of
Colorado did sign into law S.B. 219, with respect to vested
property rights; and
WHEREAS, S.B. 219 requires that the City identify the point
at which "vesting" of a development right occurs through approval
of a "site specific development plan", from which time the
developer has three years to pursue a proj ect ' s construction
before its development rights expire; and
WHEREAS, the Aspen Planning and Zoning Commission (herein-
after "The Commission") did hold a public hearing on the Appli-
cant's request on September 8, 1987, which was continued to
september 22, 1987, in order to develop legislation which would
take into account the issues raised by the Applicant in the
context of the legal obligations of the City pursuant to S.B.
219; and
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WHEREAS, the Commission did recommend amendments to section
24-11.7(a) of the Municipal Code to the Aspen City Council at its
regular meeting on September 22; and
WHEREAS, the Aspen City Council, having considered the
recommendations of the Commission, desires to amend section 24-
11.7(a) of the Municipal Code.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO;
Section 1
That section 24-11.7 (a) of the Municipal Code be repealed
and re-enacted to read as follows:
Sec. 24-11.7 Expiration and amendment of allotments
(a) Developments which have been awarded allotments under the
provisions ,of this growth management quota system shall be
considered to have complied with the requirements of approval of
a site specific development plan, as defined herein, on the date
of award of the allotment by City Council, or on the date of
approval of the project's final sUbdivision/PUD/SPA or other
development approval, whichever is the latest date. Development
allotments and all other development approvals shall expire on
the day after the third anniversary of this date, unless a
building permit is obtained and the project is developed, or
unless an exemption from or extension of the approval is obtain-
ed, as provided for below.
(1) Subdivisions composed of single family and/or duplex
units shall be eligible for exemption from these expiration
provisions. To obtain an exemption, an application for exemption
shall be submitted at any time prior to the third anniversary of
the date of approval of a site specific development plan which
shall demonstrate to the satisfaction of City Council that:
(aa) those conditions applied to the project at the
time of its final approval which were to have been met as of the
date of application for exemption have been complied with; and
(bb) any public or private improvements which were
required to be installed by the applicant prior to construction
of any dwelling unit have been installed; and
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(2) Developments of any type other than a subdivision
composed of single family and/or duplex units shall be eligible
for extension of these expiration provisions. To obtain an
extension, an application for extension shall be submitted prior
to the third anniversary of the date of approval of a site
specific development plan which shall demonstrate to the satis-
faction of City Council that:
(aa) those conditions applied to the project at the
time of its final approval which were to have been met as of the
date of application for exemption have been complied with; and
installed
have been
(bb) any improvements
by the applicant prior
installed; and
which were required to be
to construction of the project
(cc) the project has been diligently pursued in all
reasonable respects, and the extension is in the best interests
of the community.
(3) An exemption from these expiration provisions which is
granted to a project shall have no time limit. An extension of
these expiration provisions which is granted to a project shall
be for a period not to exceed six (6) months. Addi tional
extensions shall require repetition of the extension procedures.
Section 2
A public hearing on the Ordinance shall be held on the
day of
1987, at 5:00 P.M. in the city Council
Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days
prior to which hearing notice of the same shall be pUblished once
in a newspaper of general circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by
the City Council of the city of Aspen on the
day of
, 1987.
ATTEST:
william L. Stirling, Mayor
Kathryn S. Koch, city Clerk
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FINALLY adopted, passed
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and approved this
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day of
, 1987.
william L. Stirling, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
ar.ord24
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PUBLIC NOTICE
RE: AMENDMENTS TO CHAPTER 20, SUBDIVISION; AND CHAPTER 24;
ZONING OF THE ASPEN MUNICIPAL CODE REGARDING VESTED
RIGHTS
NOTICE IS HEREBY GIVEN that a public hearing will be held on
Tuesday, December 8, 1987 at a meeting to begin at 5: 00 P.M.
before the Aspen Planning and Zoning Commission, city Hall, 2nd
Floor, Old City Council Chambers, 130 S. Galena street, Aspen,
CO, to consider amendments to Chapter 20, SUbdivision: and
Chapter 24, Zoning, of the Aspen Municipal Code which are
intended to provide hearing and notice procedures to implement
Senate Bill 219, Vested Rights. .
For further information, contact the Aspen/Pitkin Planning
Office, 130 S. Galena Street, Aspen, Colorado 81611 (303) 925-
2020, ext. 225.
sIC. Welton Anderson
Chairman, Aspen Planning and
Zoning commission
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Published in the Aspen Times on Nov. 12, 1987.
City of Aspen Account.
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MEMORANDUM
TO:
Aspen city council
FROM:
Robert S. Anderson, Jr., city Manager
Alan Richman, Planning and Development Director ~
GMQS Code Amendment
THRU:
RE:
DATE:
October 5, 1987
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SUMMARY: Staff recommends first reading approval of the attached
Ordinance, amending the growth management quota system expiration
provisions.
PREVIOUS COUNCIL ACTION: Council agreed to sponsor this applic-
ation earlier in 1987, in order that it could be submitted
outside of the semi-annual submission dates for rezonings.
Council took no position on the request at the time of its
sponsorship.
BACKGROUND: Gideon Kaufman, on behalf of Skip Berhorst and the
1010 Ute Avenue project has submitted an application for a Code
amendment with respect to the growth management quota system.
The specific section of the GMQS which the applicant wishes to
amend is 24-11.7 (a) regarding expirations. This section states
that:
"All applicants who have been awarded allotments under the
provisions of this growth management system shall comply
with the following provisions or shall have their allotments
automatically expire:
(1) Applicants shall complete all zoning, subdivision and
other development approvals required by the Municipal Code
of the City of Aspen and shall have submitted plans to the
building department sufficient for issuance of a building
permit within a period ending thirty-three (33) months
subsequent to the deadline for submission of the application
for which the allotment was made. The planning office shall
inform the applicant three (3) months in advance of the
expiration date of the pending requirements which must be
completed in order to comply with this provision."
In the attached letter, the applicant contends that this language
did not contemplate a "land subdivision" in which lots are sold
to individuals who will construct their own houses within PUD
guidelines, rather than having the original applicant build all
of the houses. The applicant feels that the thirty-three month
limitation places an undue burden on the developer and subsequent
,-
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lot purchaser, given the fact that an individual may want to buy
the lot but not build for some time.
The applicant's proposed solution to this problem is that the
City adopt an approach similar to that presently in effect in
Pitkin County. This approach provides that once a final plat is
filed for a land subdivision, there are no further time limit-
ations upon the actual development of the units.
PROBLEM DISCUSSION: The city of Aspen has spent consider-
able time identifying and refining the time limits within which
GMQS allotments must be acted upon to avoid expiration. The
City's concern has been that the GMQS was enacted to regulate the
rate of growth in the community. If units are approved and then
their construction is delayed, in effect they have been added to
the inventory of previously approved units over which there is no
rate control mechanism. As this inventory increases, there is a
greater likelihood that in a boom period, the City may be caught
short on infrastructure or may suffer the consequences of severe
construction impacts on our resort community.
In response to this concern, the City enacted time limits on
projects, to ensure that they moved forward from submission to
approval to construction, or the allotment would expire. After
originally setting a rather rigid limit of 24 months from the
date of submission of the application, with no opportunity for
extension, the city then went on to provide for extensions, and
then to increase the time period to 33 months. The problem the
City was trying to avoid was that of "forcing" developers to
build speculative projects in order to avoid losing their
allotments, as happened in several cases in the early 1980's.
From the developer's point of view, I can clearly understand how
difficult are the present Code provisions when applied to land
subdivisions. Developers of subdivisions are typically required
to install a variety of public and private improvements before
they are able to construct dwelling units. The developer needs
to have certainty that after making such expenditures, the right
to build the units will be maintained. Further, purchasers of
lots need to know that they will have sufficient time to make
arrangements to build once they own an individual lot.
From the community's point of view, it does not want to per-
petuate approvals to speculative projects which have no real
chance of being built. Granting approval to a final plat does
not insure that a project will ever be built, as has been
experienced repeatedly in this community. If the City has no
means to have a project expire once a final plat has been
approved, then the units allotted are forever lost to the "pool"
and the City may find itself having to increase its quotas or
borrow from the future for applicants proposing projects which
are of benefit to the community. Further, if the City approves a
2
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series of these land subdivisions,
economic or other considerations,
will be substantial.
and all build at once due to
the effects on the community
I have spoken with the City Attorney about the applicant's
proposal, and he suggests that if this procedure is working in
the county, then it should be adopted in the City. However, I
conclude that this procedure is not working in the County. In
support of this finding, I attach a copy of the relevant pages
from the report we just received from our consultant who is
revising the county Land Use Code. He views this provision as
one of the more ineffective ones which we have adopted and
suggests that it be revised.
The County Code consultant suggests that if the improvements
associated with the final plat are not constructed within the
time period specified in the agreement, then the final plat
approval should lapse, unless otherwise extended. He further
suggests that time limits be applied to the allocations, by which
if these are not built within a specified time limit, they too
will lapse.
ALTERNATIVES: While considering the applicant's request and the
staff concerns, it came to our attention that on August 27, 1987,
the Governor signed into law new vested rights legislation. The
law affects the issue raised by the applicant and provides a
clear direction for us to take.
According to the new state law, "A vested property right shall be
deemed established with respect to any property upon the appro-
val, or conditional approval, of a site specific development
plan. . . What constitutes a site specific development plan under
this article that would trigger a vested property right shall be
finally determined by the local government either pursuant to
ordinance or regulation or upon an agreement entered into by the
local government and the landowner...A property right which has
been vested as provided for in this article shall remain vested
for a period of three years...A vested property right, once
established as provided for in this article, precludes any zoning
or land use action by a local government or pursuant to an
initiated measure which would alter, impair, prevent, diminish or
otherwise delay the development or use of the property as set
forth in a site specific development plan..."
Based on analysis of the law by the city Attorney, Code Consul-
tant and Planning Director, and considering what is in the
community's best interests in terms of land use policy, we
recommend that the City consider the site specific development
plan to be the time at which it grants growth management alloc-
ation or final sUbdivision/PUD/SPA approval to a project,
whichever is the later action. This is desirable from the City's
point of view in that it provides us with the most specific
3
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information and the greatest amount of public input before the
vesting decision is made. It is also of benefit to the devel-
oper, in that it puts off the time at which the three year
"clock" starts ticking to as late as possible.
Turning, now to the specific issue raised by the applicant, we
make the following proposal with respect to what happens at the
end of three years. We recommend that single family/duplex
subdivisions be treated differently than mUlti-family, commercial
or lodge projects. The single family/duplex subdivisions would
be provided the right to apply for permanent exemption from the
three year expiration provision if, at the end of the three year
period the landowners could demonstrate that: (1) any conditions
imposed on the subdivision which were due to be met have been
met: and (2) all public and private improvements required to be
installed prior to construction of dwellings have been installed:
and (3) sale of some or all of the lots has occurred, or circum-
stances beyond the developer's control have prevented any sales
from occurring.
Multi-family, commercial and lodge projects would expire at the
end of the three year period unless an extension is requested and
granted. The criteria for this exemption would continue to be
the same as items 1 and 2 with respect to single family lots,
plus a determination that the project has been diligently
pursued, and that extension is in the best interests of the
community.
As a last point for you to consider, I would mention that for the
time being, this amendment will be placed within the growth
management section of the Code, to address this applicant's
specific problems. When the revised Code is presented to you for
adoption, expiration of projects will be handled in the "common
procedures" section of the Code, in Article 6. This approach
will bring us fully into compliance with the provisions of S.B.
219 slightly after it is legally in effect. This means that if
any subdivision is approved after January 1, 1988 which did not
have to compete under GMP, a condition should be placed on the
project identifying what constitutes the site specific develop-
ment plan for that project.
RECOMMENDED MOTION:
"Move to read Ordinance 11- on first reading"
"Move to approve on first reading Ordinance 4* "
CITY MANAGER'S COMMENTS:
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L.AW OFFICES
GIDEON I. KAUFMAN
RICHARD S. LUHMAN
A PROFESSIONAL. CORPORATION
BOX 10001
315 EAST HYMAN AVENUE, SUITE 305
ASPEN. COLORADO 81611
TELEPHONE
AREA CODE 303
925-8166
GIDEON I. KAUFMAN
May 21, 1987
Mr. Glenn Horn
Aspen/Pitkin County Planning Office
130 South Galena Street
Aspen, Colorado 81611
Re: Code Modification
Dear Glenn:
Please consider this letter a request on behalf of Skip
Behrhorst and 1010 Ute Corporation to proceed with the
Planning and Zoning Commission and Planning Office
recommendations concerning the modification of Section
24-11.7 of the Aspen Municipal Code. We request that this
section be amended to eliminate the requirement of obtaining
a building permit on a lot within 33 months from the
submission of a residential GMP application. I believe that
the language in the Code, as presently drafted, did not
contemplate lot subdivisions, and the present language places
an undue burden on a developer, as well as a subsequent lot
purchaser.
I feel that the pitkin County Land Use Code addressed
this issue in a realistic manner, and suggest that the
language used in Section 5-5.108 of the pitkin County Land
Use Code be applied. There it specifically says that, in the
event the applicant shall have received approval for a
subdivision of land only, and proposes to offer lots for sale
for development by individual owners, he needs only to
satisfy this provision (record his plat) with the Pitkin
County Clerk and Recorder within the specified time.
I would appreciate you placing this on the first
available agenda, as the current Code language creates enough
uncertainty so as to create a real hardship in the marketing
of these units. As always, I thank you for your help and
consideration.
very truly yours,
LAW OFFICES OF GIDEON I. KAUFMAN,
a Professional Corporation
By ,iff[:..n
GK/bw
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MEMORANDUM
TO:
Aspen Planning and Zoning Commission
Alan Richman, Planning and Development Direction
FROM:
RE:
Privately Initiated GMQS Code Amendment
DATE:
September 18, 1987
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INTRODUCTION: At your last regular meeting, we presented you
with the description and analysis of a Code Amnendment submitted
by Gideon Kaufman, on behalf of the 1010 Ute Avenue project (see
copy of prior memo, attached for your review). At that time we
recommended continuation of the item for two weeks, to permit us
to finalize an approach to this issue with our Code consultant
and with the city Attorney. We have completed this work, and are
now prepared to recommend an amendment to you.
PRPOSAL: S.B. 219 (attached) requires that the City identify the
point at which "vesting" of a development right occurs through
approval of a "site specific development plan". From that point
foward, the developer has three years to pursue the project's
construction before its development rights expire.
Based on our analysis of the law, and considering what is in the
communi ty' s best intertests in terms of land use policy, we
recommend that the city consider the site specific development
plan to be the time at which it grants growth maangement alloc-
ation or final sUbdivision/PUD/SPA approval to a project,
whichever is the later action. This is desirable from the City's
point of view in that it provides us with the most specific
information and the greatest amount of public input before the
vesting decision is made. It is also of benefit to the devel-
oper, in that it puts off the time at which the three year
"clock" starts ticking to as late as possible.
Turning, now to the specific issue raised by the applicant, we
make the following proposal with respect to what happens at the
end of three years. We recommend that single family/duplex
subdivisions be treated differently than mUlti-family, commercial
or lodge projects. The single family/duplex subdivisions would
be provided the right to apply for permanent exemption from the
three year expiration provision if, at the end of the three year
period the landowners could demonstrate that: (1) any conditions
imposed on the subdivision which were due to be met have been
met: and (2) all public and private improvements required to be
installed prior to construction of dwellings have been installed:
and (3) sale of some or all of the lots has occurred, or circum-
stances beyond the developer's control have prevented any sales
from occurring.
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'-,
MUlti-family, commercial and lodge projects would expire at the
end of the three year period unless an extension is requested and
granted. The criteria for this exemption would continue to be
the same as items 1 and 2 with respect to single family lots,
plus a determination that the project has been diligently
pursued, and that extension is in the best interests of the
community.
As a last point for you to consider, I would mention that for the
time being, this amendment will be placed within the growth
management section of the Code, to address this applicant's
specific problems. When the revised Code is presented to you for
adoption, expiration of projects will be handled in the "common
procedures" section of the Code, in Article 6. This approach
will bring us fully into compliance with the provisions of S.B.
219 slightly after it is legally in effect. This means that if
any subdivision is approved after January 1, 1988 which did not
have to compete under GMP, a condition should be placed on the
project identifying what constitutes the site specific develop-
ment plan for that project.
RECOMMENDED LANGUAGE: If you concur with the concept which we
have proposed above, then we ask you to recommend the following
amended language to City Council:
Sec. 24-11.7 Expiration and amendment of allotments
(a) Developments which have been awarded allotments under the
provisions of this growth management quota system shall be
considered to have complied with the requirements of approval of
a site specific development plan, as defined in 24-68-102,C.R.S.,
on the date of award of the allotment by City Council, or on the
date of approval of the proj ect' s final subdi vision/PUD/SPA or
other development approval, whichever is the latest date.
Development allotments and all other development approvals shall
expire on the day after the third anniversary of this date,
unless a building permit is obtained and the project is devel-
oped, or unless an exemption from or extension of the approval is
obtained, as provided for below.
(1) Subdivisions composed of single family and/or duplex
units shall be eligible for exemption from these expiration
prov1s1ons. To obtain an exemption, an application for exemption
shall be submitted prior to the third anniversary of the date of
approval of a site specific development plan which shall demon-
strate to the satisfaction of City Council that:
(aa) those conditions applied to the project at the
time of its final approval which were to have been met as of the
date of application for exemption have been complied with: and
(bb) any public or private improvements which were
required to be installed by the applicant prior to construction
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of any dwelling unit have been installed: and
(cc) sale of some or all of the lots has occurred, or
that circumstances which could not be controlled have prevented
any sales from taking place.
(2) Developments of any type other than a subdivision
composed of single family and/or duplex units shall be eligible
for extension of these expiration provisions. To obtain an
extension, an application for extension shall be submitted prior
to the third anniversary of the date of approval of a site
specific development plan which shall demonstrate to the satis-
faction of city Council that:
(aa) those conditions applied to the project at the
time of its final approval which were to have been met as of the
date of application for exemption have been complied with: and
(bb) any improvements which were required
installed by the applicant prior to construction of the
have been installed: and
to be
project
(cc) the project has been diligently pursued in all
reasonable respects, and the extension is in the best interests
of the community.
(3) An exemption~ from these expiration provisions which is
granted to a project shall have no time limit. An extension fromoF
these expiration provisions which is granted to a project shall
be for a period not to exceed six (6) months. Additional
extensions shall require repetition of the extension procedures.
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MEMORANDUM
TO:
Aspen Planning and Zoning commission
FROM:
Alan Richman,Planning and Development Director
RE:
Privately Initiated GMQS Code Amendment
DATE:
August 31, 1987
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APPLICANT'S REQUEST: Gideon Kaufman, on behalf of Skip Berhorst
and the 1010 ute Avenue project has submitted an application for
a Code amendment with respect to the growth management quota
system. The specific section of the GMQS which the applicant
wishes to amend is 24-11.7 (a) regarding expirations. This
section states that:
"All applicants who have been awarded allotments under the
provisions of this growth management system shall comply
with the following provisions or shall have their allotments
automatically expire:
(1) Applicants shall complete all zoning, subdivision and
other development approvals required by the Municipal Code
of the city of Aspen and shall have submitted plans to the
building department sufficient for issuance of a building
permit within a period ending thirty-three (33) months
subsequent to the deadline for submission of the application
for which the allotment was made. The planning office shall
inform the applicant three (3) months in advance of the
expiration date of the pending requirements which must be
completed in order to comply with this provision."
In the attached letter, the applicant contends that this language
did not contemplate a "land subdivision" in which lots are sold
to individuals who will construct their own houses within PUD
guidelines, rather than having the original applicant build all
of the houses. The applicant feels that the thirty-three month
limitation places an undue burden on the developer and subsequent
lot purchaser, given the fact that an individual may want to buy
the lot but not build for some time.
The applicant's proposed solution to this problem is that the
city adopt an approach similar to that presently in effect in
Pitkin County. This approach provides that once a final plat is
filed for a land subdivision, there are no further time limit-
ations upon the actual development of the units.
PLANNING OFFICE ANALYSIS: The City of Aspen has spent consider-
able time identifying and refining the time limits within which
GMQS allotments must be acted upon to avoid expiration. The
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city's concern has been that the GMQS was enacted to regulate the
rate of growth in the community. If units are approved and then
their construction is delayed, in effect they have been added to
the inventory of previously approved units over which there is no
rate control mechanism. As this inventory increases, there is a
greater likelihood that in a boom period, the City may be caught
short on infrastructure or may suffer the consequences of severe
construction impacts on our resort community.
In response to this concern, the City enacted time limits on
projects, to ensure that they moved foward from submission to
approval to construction, or the allotment would expire. After
originally setting a rather rigid limit of 24 months from the
date of submission of the application, with no opportunity for
extension, the City then went on to provide for extensions, and
then to increase the time period to 33 months. The problem the
City was trying to avoid was that of "forcing" developers to
build speculative projects in order to avoid losing their
allotments, as happened in several cases in the early 1980's.
From the developer's point of view, I can clearly understand how
difficult are the present Code provisions when applied to land
subdivisions. Developers of subdivisions are typically required
to install a variety of public and private improvements before
they are able to construct dwelling units. The developer needs
to have certainty that after making such expenditures, the right
to build the units will be maintained. Further, purchasers of
lots need to know that they will have sufficient time to make
arrangements to build once they own an individual lot.
From the community's point of view, it does not want to per-
petuate approvals to speculative projects which have no real
chance of being built. Granting approval to a final plat does
not insure that a project will ever be built, as has been
experienced repeatedly in this community. If the City has no
means to have a project expire once a final plat has been
approved, then the units allotted are forever lost to the "pool"
and the city may find itself having to increase its quotas or
borrow from the future for applicants proposing projects which
are of benefit to the community. Further, if the City approves a
series of these land sUbdivisions, and all build at once due to
economic or other considerations, the effects on the community
will be substantial.
I have spoken with the City Attorney about the applicant's
proposal, and he suggests that if this procedure is working in
the County, then it should be adopted in the City. However, I
conclude that this procedure is not working in the County. In
support of this finding, I attach a copy of the relevant pages
from the report we just received from our consultant who is
revising the County Land Use Code. He views this provision as
one of the more ineffective ones which we have adopted and
suggests that it be revised.
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The County Code consul tant suggests that if the improvements
associated with the final plat are not constructed within the
time period specified in the agreement, then the final plat
approval should lapse, unless otherwise extended. He further
suggests that time limits be applied to the allocations, by which
if these are not built within a specified time limit, they too
will lapse.
VESTED RIGHTS LEGISLATION: Based on the above analysis, I felt
that it might be possible to formulate a compromise piece of
legislation intended to address both the applicant's and the
community's concerns. Then, it came to my attention that on
August 27, 1987, the Governor signed into law new vested rights
legislation. This bill states that "A vested property right
shall be deemed established with respect to any property upon the
approval, or conditional approval, of a site specific development
plan.. .What constitutes a site specific development plan under
this article that would trigger a vested property right shall be
finally determined by the local government either pursuant to
ordinance or regulation or upon an agreement entered into by the
local government and the landowner...A property right which has
been vested as provided for in this article shall remain vested
for a period of three years...A vested property right, once
established as provided for in this article, precludes any zoning
or land use action by a local government or pursuant to an
initiated measure which would alter, impair, prevent, diminish or
otherwise delay the development or use of, the property as set
forth in a site specific development plan..."
This bill clearly has far-reaching implications on our Land Use
Regulations, and I have initiated a review, along with our Code
consultant and City Attorney to determine in what manner it will
be necessary to amend our regulations to be consistent with its
terms. until this analysis is complete, the Planning Office
recommends tabling of this request, as any Code Amendment
affecting vesting should be done taking into account the policy
implications of the new State legislation on our community.
RECOMMENDATION: The new state law will be in effect as of
January 1, 1988. The city is required to amend its regulations
to come into compliance with the new state law. The Code
consultant, city Attorney and I have developed an approach to
this issue which we believe will address the applicant's concens
and will respond to the new law, however, we need additional time
to complete our work. We recommend that this application be
tabled for two weeks, to September 22, so that we can propose a
well thought out solution to you.
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SENATE BILL NO. 219.
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BY SENATORS Fenlon, Cole, Dodge, McCauley, Pastore, P. Powers,
Trujillo, Wattenberg, Winkler, Beatty, DeNier, Rizzuto, and
Strickland;
also REPRESENTATIVES Berry, Bowen, Romero, Trujillo,
Carpenter, Hume, Owens, Ratterree, Ulvang, and Tebedo.
CONCERNING THE ESTABLISHMENT OF VESTED REAL PROPERTY RIGHTS.
Be it enacted Qx the General Assembly of the State of Colorado:
SECTION 1. Title 24, Colorado Revised Statutes, 1982
Repl. Vol., as amended, is amended BY THE ADDITION OF A NEW
ARTICLE to read:
ARTICLE 68
Vested Property Rights
24-6B-101. Leqislative declaration.
assembly hereby finds and declares that:
(a) It is necessary and desirable, as a matter of public
policy, to provide for the establishment of vested property
rights in orde~,~o ensure reasonable certainty, sta~ility, and
fairness in the land use planning process and 1n order to
stimulate economic growth, secure the reasonable
investment-backed expectations of landowners, and foster
cooperation between the public and private sectors in the area
of land use planning.
(1) The general
(b) The ability of a landowner to obtain a vested
property right after local governmental approval of a site
specific development plan will preserve the prerogatives and
authority of local government with respect to land use
matters, while promoting those areas of statewide concern
described in paragraph (a) of this subsection (1).
Capital letters indicate new material added to existing statutes;
daShes through words indicate deletions from existing statutes and
such material not part of act.
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(c) The establishment of vested property rights will
promote the goals specified in this subsection (1) in a manner
consistent with section 3 of article II of the state
constitution, which guarantees to each person the inalienable
right to acquire, possess, and orotect property, and is
therefore declared to be a matter of statewide concern.
24-68-102. Definitions. As used in this article, unless
the context otherwise requires:
(1) "Landowner" means any owner of a legal or equitable
interest in real property, and includes the heirs, successors,
and assigns of such ownership interests.
(2) "Local government" means any county, city and
county, city, or town, whether statutory or home rule, acting
through its governing body or any board, commission, or agency
thereof having final approval authority over a site specific
development plan, including without limitation any legally
empowered urban renewal authority.
(3) "Property" means all real property subject to land
use regulation by a local government.
(4) "Site speCific development plan" means a plan which
has been submitted to a local government by a landowner or his
representative describing with reasonable certainty the type
and intensity of use for a specific parcel or parcels of
property. Such plan may be in the form of, but need not be
limited to, any of the following plans or approvals: A
planned unit development plan, a subdivision plat, a specially
planned area, a planned building group, a general submission
plan, a preliminary or general development plan, a conditional
or special use plan, a development agreement, or any other
land use approval designation as may be utilized by a local
government. What constitutes a site speCific development plan
under this article that would trigger a vested property right
shall be finally determined by the local government either
pursuant to ordinance or regulation or upon an agreement
entered into by toe local government and the landowner, and
the document that triggers such vesting shall be so identified
at the time of its approval. A variance shall not constitute a
site specific development plan. "Site specific development
plan" shall not include a "sketch plan" as defined in section
30-28-101 (8), C.R.S., or a "preliminary plan" as defined in
section 30-28-101 (6), C.R.S.
(5) "Vested property right" means the right to undertake
and complete the development and use of property under the
terms and conditions of a site specific development plan.
24-68-103. Vested property right - establishment.
PAGE 2-SENATE BILL NO. 219
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(1) A vested property right shall be deemed established with
respect to any property upon the approval, or conditional
approval. of a site specific development plan, following
notice and public hearing, by the local government in which
the property is situated. Such vested property right shall
attach to and run with the applicable property and shall
confer upon th~ landowner the right to undertake and complete
the development and use of said property under the terms and
conditions of the site specific development plan including any
amendments thereto. A local government may approve a site
specific development plan upon such terms and conditions as
may reasonably be necessary to protect the publ ic health,
safety. and welfare. Such conditional approval shall result
in a vested property right, although failure to abide by such
terms and conditions will result in a forfeiture of vested
property rights. A site specific development plan shall be
deemed approved upon the effective date of the local
government legal action. resolution, or ordinance relating
thereto. Such approval shall be subject to all rights of
referendum and judicial review; except that the period of time
permitted by law for the exercise of such rights shall not
begin to run until the date of pUblication, in a newspaper of
general circulation within the jurisdiction of the local
government granting the approval. of a notice advising the
general public of the site specific development plan approval
and creation of a vested property right pursuant to this
article. Such publication shall occur no later than fourteen
days following approval.
(2) Zoning
development plan
property rights.
24-68-104. Vested property riqht duration
termination. (1) A property right which has been vested as
provided for in this article shall remain vested for a period
of three years. This vesting period shall not be extended by
any amendments to a site specific development plan unless
expressly authorized by the local government.
that is not part of a site specific
shall not result in the creation of vested
~' " ,.
(2) Notwithsfanding the provisions of subsection (1) of
this section, local governments are hereby authorized to enter
into development agreements with landowners providing that
property rights shall be vested for a period exceeding three
years where warranted in light of all relevant circumstances,
including, but not limited to, the size and phasing of the
development, economic cycles, and market conditions. Such
development agreements shall be adopted as legislative acts
subject to referendum.
(3) Following approval or conditional approval of a site
specific development plan, nothing in this article shall
PAGE 3-SENATE BILL NO. 219
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exempt such a plan from subsequent reviews and approvals by
the local government to ensure compliance with the terms and
conditions of the original approval, provided that such
reviews and approvals are not inconsistent with said original
approval.
24-68-105. Subsequent requlation prohibited
exceptions. (1) A vested property right, once established as
provided for in this article, precludes any zoning or land use
action by a local government or pursuant to an initiated
measure which would alter, impair, prevent, diminish, or
otherwise delay the development or use of the property as set
forth in a site specific development plan, except:
(a) With the consent of the affected landowner;
(b) Upon the discovery of natural or man-made hazards on
or in the immediate vicinity of the sUbject property, which
hazards could not reasonably have been discovered at the time
of site specific development plan approval, and which hazards,
if uncorrected. would pose a serious threat to the public
health, safety, and welfare; or
(c) To the extent that the affected landowner receives
just compensation for all costs, expenses, and liabilities
incurred by the landowner, including, but not limited to, all
fees paid in consideration of financing. and all
architectural, planning, marketing, legal, and other
consultants' fees incurred after approval by the governmental
entity, together with interest thereon at the legal rate until
paid. Just compensation shall not include any diminution in
the value of the property which is caused by such action.
(2) The establishment of a vested property right shall
not preclude the application of ordinances or regulations
which are general in nature and are applicable to all property
sUbject to land use regulation by a local government,
including, but not limited to, building, fire, plumbing,
electrical, and mechanical codes.
24-68-106. Miscel'l'a'neous provisions. (1) As used in
this article, the term "development" includes "redevelopment".
(2) A vested property right arising while one local
government has jurisdiction over all or part of the property
included within a site specific development plan shall be
effective against any other local government which may
sUbsequently obtain or assert jurisdiction over such property.
(3) Nothing in this article shall preclude judicial
determination, based on common law principles, that a vested
property right exists in a particular case or that a
PAGE 4-SENATE BILL NO. 219
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compensable taking has occurred.
(4) This article shall apply only to site specific
development plans approved on or after January 1, 1988.
SECTION 2. Effective date. This act shall take effect
January 1, 1988.,._
SECTION 3. Safety clause. The general. assembly hereby
finds, determines, and declares that this act is necessary for
the immediate preservation of the public peace, health, and
safety.
@t~
PRES IDENT OF
THE SENATE
a ?L3~~
~/.. { I
>t., ~
Carl B. 8ledsoe
SPEAKER OF THE HOUSE
OF REPRESENTATIVES
, 'lL'
~~~ ~ u~
arjrie L. Nielson
SEC TARY OF
THE SENATE
c.
Lee C.
CHIEF CLERK OF T HOUSE
OF REPRESENTATIVES
APPROVED
Ck.r.7 ~ J!.3? .:r f':Sd
'1'1'
r
OR OF THE STATE OF COLORADO
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PAGE 5-SENATE BILL NO. 219
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PUBLIC NOTICE
RE: GROWTH MANAGEMENT QUOTA SYSTEM CODE AMENDMENT
NOTICE IS HEREBY GIVEN that a public hearing will be held on
Tuesday, September 8, 1987, at a meeting to begin at 5:00 P.M.
before the Aspen Planning and Zoning commission, in the City
council Chambers on the first floor of City Hall, 130 S. Galena
street, Aspen, Colorado to consider an application submitted by
1010 Ute Corporation, requesting modification of section 24-11.7
of the Municipal Code. The applicant proposes to eliminate the
provision by which a GMP allotment automatically expires unless a
building permit is obtained within 33 months from the date of
submission of a residential GMP application. The applicant
proposes that the filing of a subdivision plat for a land
development be sufficient to avoid expiration, rather than
requiring a building permit to be obtained.
For further information, contact the Aspen/pitkin Planning
Office, 130 S. Galena st., Aspen, Colorado 81611 (303) 925-2020.
sIC. Welton Anderson
Chairman, Aspen Planning
and Zoning commission
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Published in the Aspen Times on August 20, 1987.
City of Aspen Account.
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MEMORANDUM
city Attorney
~lan Richman, planning Office
/GMQS Code Amendment
DATE: ~gust 10, 1987
============~===================================================
Attached for Iyour review and comments is a request submitted by
Gideon Kaufm~n on behalf of his client, Skip Behrhorst to modify
section 24-11.7 of the Municipal Code the applicant proposes to
eliminate the requirements to obtain a building permit on a lot
in a land subdivision within 33 months from the submission'. of a
residential GMP application.
TO:
FROM:
RE:
Please look over this request and return your comments to this
office no later than August 18, 1987 in order for this office to
have adequate time to prepare for its presentation before P&Z.
Thank you.
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ASPEN/PITKIN PLANNING OFFICE
130 S. Galena Street
Aspen, CO 8161l
(3f:lt:25-2020
Date: ' 1./ld<f!lJ--
RE: E-
Dea r t tV f}Yl
This .s to inform you that the Planning Off~ce has completed its
preliminary review of ~ captioned application. We have determined
that your application ~ NOT complete.
Additional items required include:
Disclosure of Ownership (one copy only needed)
Adjacent Property Owners List/Envelopes/Postage (one copy)
Additional copies of entire application
Authorization by owner for representative to submit applica-
tion
Response to list of items (a'ttached/below) demonstrating
compliance with the applicable policies and regulations of the
Code, or other specific materials
A check in the amount of $
Your appl ication ,17;:i cqmpl ete and we hay,e sc,!Jegy,1..ed it for
review by the :::::t:--l--=t;;;;. on LJo{JLTLt/f/K. We will
call you if we need any additional information prior to that
date. Several days prior to your hearing, we will call and
make available a copy of the memorandum., Please note that it
IS NOT your responsibility to post your property with a
sign, which we can provide you for a $3.00 fee.
B., Your application is incomplete, we have not scheduled it
review at this time. When we receive the materials we have
requested, we will place you on tfJfl:e_:t available ag~nda.
If you have any questions, please call ~CA/" ,
the planner assigned to your case.
A.
oLJ.
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PLANNING OFFICE
{)/,;1'1 f
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CASELOAD SUMMARY SHEET
City of Aspen
DATE
DATE
RECEIVED: S/dl/?7
COMPLETE:
PARCEL ID AND CASE NO.
..2'/8 -?7
STAFF MEMBER:" Ak
I} f1/l en. cI /11 e.n /
PROJECT NAME: G 11 ((5 ('t) de..
Project Address:
APPLICANT: SAIj' ~ ehrh()~ + .-.e /0/0
Applicant Addres :
REPRESENTATIVE: r; /d eo rJ /'Ja u -f f>1 a n
Representative Address/Phone:
uf-€- f1rp'
S - 6'>;/, I,
TYPE OF APPLICATION:
PAID: ~ NO AMOUNT:
1 STEP APPLICATION:
Coc/.p fimpnc!Yh f/n I
1/ /;150.00 P UJ)llC
P+-z..
\-\-cu.r\ 1\ GFo...."'"t'""'
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P&Z MEETING DATE: Sc:r-r. "6'
DATE REFERREDX/IO-l-4-
PUBLIC HEARING:~ NO
INITIALS~ ~
2 STEP APPLICATION:
cc
MEETING DATE:
PUBLIC HEARING: YES NO
DATE REFERRED:
INITIALS:
REFERRALS :
Lcity Attorney
city Engineer
Housing Dir.
Aspen Water
City Electric
Envir. Hlth.
Aspen Consolo
S.D.
Mtn. Bell
Parks Dept.
Holy Cross
Fire Marshall
Fire Chief
Roaring Fork
Transit
School District
Rocky Mtn Nat Gas
State Hwy Dept(GW)
State Hwy Dept(GJ)
Bldg:Zon/Inspect
Roaring Fork
Energy Center
Other
FINAL ROUTING:
DATE ROUTED:
INITIAL:
city Atty
city Engineer
Bldg. Dept.
Other:
FILE STATUS AND LOCATION:
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LAW OFFICES
GIDEON I. KAUFMAN
GIDEON I. KAUFMAN
A PROFESSIONAL CORPORATION
BOX 10001
315 EAST HYMAN AVENUE. SUITE 305
ASPEN, COLORADO 811511
TELEPHONE
AREA CODE 303
025-818&
RICHARD S. LUHMAN
May 21, 1987
Mr. Glenn Horn
Aspen/Pitkin County Planning Office
130 South Galena Street
Aspen, Colorado 81611
Re: Code Modification
Dear Glenn:
Please consider this letter a request on behalf of Skip
Behrhorst and 1010 Ute Corporation to proceed with the
Planning and Zoning Commission and Planning Office
recommendations concerning the modification of Section
24-11.7 of the Aspen Municipal Code. We request that this
section be amended to eliminate the requirement of obtaining
a building permit on a lot within 33 months from the
submission of a residential GMP application. I believe that
the language in the Code, as presently drafted, did not
contemplate lot subdivisions, and the present language places
an undue bUrden on a developer, as well as a subsequent lot
purchaser.
*.
I feel that the Pitkin County Land Use Code addressed
this issue in a realistic manner, and suggest that the
language used in Section 5-5.108 of the Pitkin County Land
Use Code be applied. There it specifically says that, in the
event the applicant shall have received approval for a
subdivision of land only, and proposes to offer lots for sale
for development by individual owners, he needs only to
satisfy this provision (record his plat) with the Pitkin
County Clerk and Recorder within the specified time.
I would appreciate you placing this on the first
available agenda, as the current Code language creates enough
uncertainty so as to create a real hardship in the marketing
of these units. As always, I thank you for your help and
consideration.
Very truly yours,
LAW OFFICES OF GIDEON I. KAUFMAN,
a Professional Corporation
By_i!~
GK/bw