HomeMy WebLinkAboutlanduse.code amendment.S/C/I Artists Studios.003-850�3 f\ -,LbS
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Artists' studios
Zone, Code Amend
Private S/C/I,
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CASELOAD SUMMARY SHEET
City of Aspen
DATE RECEIVED • 1
DATE. RECEIVED • COMPLETE:
L]
CASE NO. D3 g
STAFF:
PROJECT NAME: _ N/ 5ct COAP. ,
APPLICANT: -y/Z A- MIU- 6WQQ*/NtVM rl3Sn�
Applicant Address/Phone:
REPRESENTATIVE: F.I' S
Representative Addres Phone:
Type of Application:
I. GMP/SUBDIV IS ION/PUD (4 step)
Conceptual Submission ($2,730.00)
Preliminary Plat ($1,640.00)
Final Plat ($ 820.00)
II . SUBDIV IS ION/PUD (4 step)
Conceptual Submission ($1,900.00)
Preliminary Plat ($1,220.00)
Final Plat ($ 820.00)` /
III. EXCEPTION/EXEMPTION/REZONING (2 step) ($1,490.00)v
IV. SPECIAL REVIEW (1 step) ($ 680.00)
Special Review
Use Determination
Conditional Use
Other:
P&Z CC MEETING DATE:
PUBLIC HEARING: YES NO
DATE REFERRED:
IN IT IALS :
REFERRALS
City Atty
Aspen Consol.
S.D. School District
City Engineer
Mtn. Bell
Rocky Mtn. Nat. Gas
Housing Dir.
Parks Dept.
State Hwy Dept (Glenwd)
Aspen Water
Holy Cross _Nlectric State Hwy Dept (Gr.Jtn)
13
City Electric
Fire Marshall
Bldg: Zo�ninn /Inspectn
Envir. Hlth.
Fire Chief
Other:
FINAL ROUTING:
DATE ROUTED 67 83 INITIAL
�Building
City Atty -
City Engineer
Dept . 2 11
Other:
FILE STATUS AND LOCATION:
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MEMORANDUM
TO: Aspen City Council 11")
THRU: Hal Schilling, City Manage
FROM: Alan Richman, Planning Office
RE: 2nd Reading - Ordinance Amending SCI Use List - Artists'
Studios
DATE: June 24, 1985
SUMMARY: The Planning Office recommends second reading approval of the
attached ordinance which adds "artists' studios with optional accessory
dwelling unit" as a permitted use in the SCI zone district.
PREVIOUS COUNCIL ACTION: City Council approved this Ordinance on
first reading at your meeting on June 3. At that time, there appeared
to be a desire on Council's part to amend the Ordinance to grant the
Code amendment as originally proposed by the applicant and the Planning
Office, not as modified by the Planning Commission.
BACKGROUND: Section 24-12.5 of the Code provides that privately
initiated amendments to the zoning map and the text of the zoning
regulations may be submitted on February 15 and August 15 of each
year. This past February, the only private applicant to submit such a
request was the 412 North Mill Condominium Association (Andrews-
McFarlin Building).
PROBLEM DISCUSSION: The zoning text amendment initially submitted by
the applicant was to make "artists' studios with optional accessory
dwelling unit" a permitted use in the SCI zone district. Presently,
artists' studio is not mentioned in the use list for this zone, while
accessory dwelling units are a conditional use in the zone. The
closest use to artists' studio in the zone is "shop -craft industry".
The intent of the SCI zone district is:
"To allow for the use of land and the preservation of limited
commercial purposes and limited industrial purposes, with customary
accessory and institutional uses, which do not require or generate
high customer traffic volumes. In addition, residences for those
employed in this district may be included in the service or
commercial buildings or adjacent thereto as conditional uses".
Both the Planning Office and the Planning Commission found that
artists' studios fit the intent of the zone to have limited commercial/
industrial uses which do not require or generate high customer traffic
volumes. The Planning Office also felt that a dwelling unit in
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conjunction with an artist studio is a natural living/working combination
which should be permitted, and which is not likely to be so popular as
to extensively displace other SCI uses. However, the Planning Commission
felt that accessory residences should continue to be evaluated as
conditional uses to insure that the building in which they are to be
located is compatible with the proposed use. Specifically, the issues
raised at the Commissioner's public hearings on this topic were as
follows:
1. If we allow residences accessory to artists' studios as a
permitted use, to be equitable, we might have to change the
intent of the zone and allow accessory residences to all
permitted uses in the zone. Such an extension of the
residential concept for the zone would limit the amount of
space available for true service -commercial uses in the
Citv. While I doubt that we would have to open this accessory
residential use to all permitted uses in the zone, I think
it is more likely that other uses would have a legitimate
basis to also request that dwelling units be permitted as
accessory to their use, which is not in keeping with our
intent for this zone. Therefore, I suggest that the intent
section be modified to read " . In addition, residences
for those employed in this district may be included in the
service or commercial buildings or adjacent thereto as
conditional uses or if expressly allowed, as permitted
uses. (new language in bold)
2. In buildings with "hazardous" SCI uses, dwellings may not be
a compatible use. Since the SCI zone is the only district
in the City where various hazardous, but necessary uses can
occur (welding, repair, garage, etc.) we should not totally
commit the zone to the softer, shop -craft type uses.
Based on these comments, the Planning Commission and the applicant
came to an agreement that accessory dwelling units should remain as a
conditional use. The applicant requested, however, that the Commis-
sion's record reflect the understanding reached that the Code does
allow a conditional use to pass from one owner to the next, provided
that the basic space arrangement and use of the space does not change.
This finding, which is contained in the attached P&Z Resolution 85-9,
will help the artists to obtain financing for their units on a long-
term basis.
ALTERNATIVES:
1. Adopt the ordinance as written.
2. Adopt the Ordinance with the following changes:
a. In those places where the Ordinance refers to "Artists
Studios" add the words "with optional accessory dwelling
units."
b. Add a new section 2 to the Ordinance amending the SCI intent
section to add the following language at the end "or, if
expressly allowed, as permitted uses."
ADVISORY COMMITTEE VOTE: The vote on P&Z Resolution 85-9 was unanimous
in favor of its adoption (4-0) .
RECOMMENDED MOTION:
Move to adopt on 2nd reading Ordinance 33 Series of 1985 with the
following changes:
a. In those places where the Ordinance refers to "Artists
Studios" add the words "with optional accessory dwelling
units."
b. Add a new section 2 to the Ordinance amending the SCI intent
section to add the following language at the end "or, if
expressly allowed, as permitted uses."
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ME MORANDU M
TO: Aspen City Council
THRU: Hal Schilling, City Manag
FROM: Alan Richman, Planning Office
RE: 1st Reading - Ordinance Amending SCI Use List - Artists'
Studios
DATE : May 28, 1985
SUMMARY: The Planning Office recommends first reading approval of the
attached ordinance which adds "artists' studios" as a permitted use in
the SCI zone district.
PREVIOUS COUNCIL ACTION: None
BACKGROUND: Section 24-12.5 of the Code provides that privately
initiated amendments to the zoning map and the text of the zoning
regulations may be submitted on February 15 and August 15 of each
year. This past February, the only private applicant to submit such a
request was the 412 North Mill Condominium Association (Andrews-
McFarlin Building) .
PROBLEM DISCUSSION: The zoning text amendment initially submitted by
the applicant was to make "artists' studios with optional accessory
dwelling unit" a permitted use in the SCI zone district. Presently,
artists' studio is not mentioned in the use list for this zone, while
accessory dwelling units are a conditional use in the zone. The
closest use to artists' studio in the zone is "shop -craft industry".
The intent of the SCI zone district is:
"To allow for the use of land and the preservation of limited
commercial purposes and limited industrial purposes, with customary
accessory and institutional uses, which do not require or generate
high customer traffic volumes. In addition, residences for those
employed in this district may be included in the service or
commercial buildings or adjacent thereto as conditional uses".
Both the Planning Office and the Planning Commission found that
artists' studios fit the intent of the zone to have limited commercial/
industrial uses which do not require or generate high customer traffic
volumes. However► the Planning Commission felt that accessory residences
should continue to be evaluated as conditional uses to insure that the
building in which they are to be located is compatible with the
proposed use. Specifically, the issues raised at the Commissioner's
public hearings on this topic were as follows:
1. If we allow residences accessory to artists' studios as a
permitted use, to be equitable, we might have to change the
intent of the zone and allow accessory residences to all
permitted uses in the zone. Such an extension of the
residential concept for the zone would limit the amount of
space available for true service -commercial uses in the
City. While I doubt that we would have to open this accessory
residential use to all permitted uses in the zone, I think
it is more likely that other uses would have a legitimate
basis to also request that dwelling units be permitted as
accessory to their use, which is not in keeping with our
intent for this zone.
2. In buildings with "hazardous" S CI uses, dwellings may not be
a compatible use. Since the S CI zone is the only district
in the City where various hazardous, but necessary uses can
occur (welding, repair, garage, etc.) we should not totally
commit the zone to the softer, shop -craft type uses.
Based on these comments, the Planning Commission and the applicant
came to an agreement that accessory dwelling units should remain as a
conditional use. The applicant requested, however, that the Commis-
sion's record reflect the understanding reached that the Code does
allow a conditional use to pass from one owner to the next, provided
that the basic space arrangement and use of the space does not change.
This finding, which is contained in the attached P&Z Resolution 85-9,
will help the artists to obtain financing for their units on a long-
term basis.
ADVISORY COMMITTEE VOTE: The vote on P&Z Resolution 85-9 was unanimous
in favor of its adoption (4-0) .
RECOMMENDED MOTIONS:
"Move to read Ordinance Series of 1985"
" Move to adopt on 1st reading Ordinance Series of 1985"
RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION
RECOMMENDING TO COUNCIL A CODE AMENDMENT TO ADD
"ARTISTS' STUDIOS" AS A PERI4ITTED USE IN THE
SERVICE/COMMERCIAL/INDUSTRIAL (S/C/I) ZONE
Resolution No. 85- 9
WHEREAS, on February 15, 1985, the 412 North Mill Condominium
Association (hereinafter, the "Applicant") initiated an amendment to
Section 24-3.2 of the Municipal Code by submitting a private application
for a zoning change, as provided for by Section 24-12.5 of the Code;
and
WHEREAS, the Planning and Zoning Commission reviewed the Applicant's
request for "artists' studios with optional accessory dwelling unit"
as a permitted use in the S/C/I zone, at public hearings held during
their meetings of April 2 and April 16; and
WHEREAS, the Commission determined that artists' studios fit the
intention of the zone and should be made uses -by right, but that
accessory dwelling units should remain conditional uses and be reviewed
for their appropriateness on a case -by -case basis; and
WHEREAS, during its review the Comm , ssion recognized that once a
Conditional Use Permit is issued for a residential unit, according to
Section 24-3.3 (c) , the use is permitted to continue to be occupied,
even if it is sold to a new owner, provided the space allotments and
nature of the use remain the same.
NOW,
THEREFORE,
BE IT
RESOLVED by the
Planning and Zoning Commission
of Aspen,
Colorado,
that
it does hereby
recommend that City Council
adopt an amendment to Section 24-3.2 of the Municipal Code to add
. "artists' studio" as a permitted use in the S/C/I zone.
APPROVED by the Commission at its regular meeting on May 7, 1985.
ASPEN PLANNING AND ZONING
COMMISSION
II Wdj0.,-
Y
Chairman
ATTEST:
Kim Wilhoit, Deputy City Clerk
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t.11 ". "t ;V%VII�
TO: Aspen Planning and Zoning Commission
FROM: Colette Penne, Planning Ofifce
RE: Artists' Studios in SCI Zone - Code Amendment
DATE: April 16, 1985
At your meeting of April 2, you discussed the Applicants' request to
make artists' studios and accessory residences to those studios a
permitted use in the SCI zone. It was strongly expressed by the
Commission that making residences for artists a permitted use rather
than a conditional use as is currently the case for all other uses in
the zone would be selective and unfair. The language presently in the
Code for the Intention of the SCI zone reads as follows:
"To allow for the use of land and the preservation of limited
commercial purposes and limited industrial purposes, with customary
accessory and institutional uses, which do not require or generate
high customer traffic volumes. In addition, residences for those
employed in this district may be included in the service or
commercial buildings or adjacent thereto as conditional uses. "
The appropriateness of
allowing a residence
is, therefore,
reviewed as
a conditional use in each instance. If the
residence is
proximate to
SCI uses which are noxious
or hazardous in
nature, the review
alerts
the Building Department
and the applicant to
building code
requirements
which assure safe fire
separation, adequate
ingress and egress, etc.
The applicants are willing to amend their request for a Code amendment
to add "artists' studios" as a permitted use in the SCI zone and to net
alter the ability to request an accessory residential use only through
the conditional use process.
This application was the only privately -initiated zoning request
submitted under the terms of the semi-annual limitation for private
zoning actions of Section 24-12.5.
PLANNING OFFICE RECOMMENDATION
The Planning Office recommends that you recommend to Council approval
of a Code Amendment to add "artists' studio" as a permitted use in the
SCI zone through amendment of Section 24-3.2.
TO:
FROM:
RE:
DATE:
MEMORANDUM
Aspen Planning and Zoning Commission
Colette Penne, Planning Office
SCI Zone Code Amendment - Artists' Studios
April 2, 1985
------------------------------------------------------------------------
------------------------------------------------------------------------
LOCATION: 412 N. Mill (although proposed amendment will apply to
all SCI lands and buildings, it is being proposed by
the occupants of the listed address)
ZONING: SCI
APPLICANT'S REQUEST: To amend Section 24-3.2 of the Municipal Code to
add "artists's studios with optional accessory dwelling unit" as a
permitted use in the SCI zone and to change the intention statement
for the zone to also read:
"To allow for employee residences in or adjacent to professional
artists' studios as a permitted use."
This application was the only privately -initiated zoning request
submitted under the terms of the semi-annual limitation for private
zoning actions of Section 24-12.5.
PLANNING OFFICE REVIEW: The present Intention statement for the SCI
zone reads as follows:
"To allow
for the use of land
and the preservation of limited
commercial
purposes and limited industrial
purposes, with
customary
accessory
and institutional uses,
which do not require or
generate
high customer traffic volumes. In addition, residences
for those
employed
in this district may
be included in the s,
rvice or
commercial
buildings or adjacent
thereto as conditional
uses."
Artists' studios basically fit this intention and Sarah Pletts was the
first occupant in this structure to receive Conditional Use approval
for an artists and dance studio as well as an accessory dwelling
unit. Because of the problems associated with proximity to other SCI
uses which may have hazardous or noxious implications, the upgrading
of the property in terms of fire separation and ingress/egress require-
ments was not accomplished by the Andrews. Since that time, other
artists have purchased condominium units and have located in the
building. Terry and Linda Rose have their Get Graphic! studio (permitted
as a printing and publishing use) and Christa Luckemeyer has Aspenique
which is a jewelry design and repair operation (shop -craft industry) .
Michael Martin, who is an architect and designer, is a condominium
owner and Vicki Fuller (a painter) has a studio in another unit. All
the units in this building have been sold.
The property was on the market for over
two (2) years
and did not
attract enough interest from
permitted SCI
uses to allow
the Andrews
to carry it. The concern expressed
by the Planning Office
and the
Planning and Zoning Commission
throughout the
Andrews/Pletts
Conditional
Use reviews for the retention
of SCI space
for purely SCI
uses due to
a short supply seem unfounded
in light of this example.
Space in the SCI zone rents for less than in more intensive commercial
zones and the spaces tend to be suited for use as studio area by
artists. As referred to by Terry Rose in his attached letter of
February 15, 1985, they are often "large, open, industrial type spaces
with easy access." This particular structure and the adjacent building
are especially suited to this proposal because of their proximity to
the Rio Grande property and the Aspen Art Museum.
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We do not feel that the Intention statement needs to be modified as
suggested. If the permitted uses include "artists' studios with
optional accessory dwelling unit," the problem is remedied. Since
other accessory dwelling units are referred to in the Intention
statement as Conditional Uses, an addition should be made at the end of
the Intention statement which reads "except as expressly permitted."
Artists who choose to locate in the SCI zone must be aware that the
Building Code does require additional fire separation between residences
and hazardous or noxious SCI uses and this may be a problem. Depending
on the sequence of occupancy, costs may be incurred by purchasers or
tenants. The Planning Office doubts that the demand by artists for
SCI spaces is so great that a proliferation of these uses will spread
throughout the zone. We do feel that the use is a compatible one in
the zone.
PLANNING OFFICE RECOMMENDATION: The Planning Office recommends that
you recommend to Council approval of a Code Amendment to include
"artists' studios with optional accessory dwelling unit" as a permitted
use in the SCI zone and an addition to the Intention statement such
that the final sentence of that statement reads "in addition, residences
for those employed in this district may be included in the service or
commercial buildings or adjacent thereto as conditional uses, except
as expressly permitted."
2
February 15, 1985
Alan Richmond
Planning Dept.
City of Aspen
Aspen, CO 81611
Dear Alan:
Pursuant to Section 24-12.5 please consider this an application
by private applicants for a change in zoning.
Statement of purpose:
A limited number of the existing buildings such as ours in the
S/C/I zone are ideal for for professional artists' studios, featuring
large, open, industrial type spaces with easy access.
In the case of the condominium units in our building at 412 N. Mill
Street, these units were on the market for two years and during that
time did not attract users as described in the S/C/I zone.
The professional artist has traditionally chosen to live in or
adjacent to his or her studio as the process of creating art works
very often requires working all hours. With this in mind, the five
artist members of 412 N. Mill Street Condominium Association pur-
chased the condominium units in this building, adjacent to the
Rio Grande Property which in the future may be designated as a
center for the applied and performing arts in Aspen.
We believe that by amending the S/C/I zone to allow the professional
artist to live and work within the zone as a permitted use, without
limiting or changing in any way the existing uses in zone, the City
will be supporting a real need in Aspen which can only result in
adding vitality to and the enhancement of our community.
4sidTerM. Roent
412 N. Mill Condominium Association
The proposed amendments to the S/C/I zone are underscored:
INTENTION
To allow for the use of land and the preservation of limited
commercial purposes and limited industrial purposes, with
customary accessory and institutional uses, which do not require
or generate high customer traffic volumes. To allow for employee
residences in or adjacent to professional artists' studios as a
permitted use. In addition, residences for others employed
in this district may be included in the service or commercial
buildings or adjacent thereto as conditional uses.
PERMITTED USES
Limited commercial and industrial uses including the following
and similar uses: vehicle sales; equip -rental storage and repair,
automobile washing facilities; electrical and plumbing service
shops; commercial baker; limited industrial uses including the
following and similar uses: builder's supply; industrial dry
cleaning plant and laundry; fabrication and repair of building
materials and components; lumberyard; manufacture and repair of
sporting goods; printing and publishing plants; warehousing and
storage; artists' studios with optional accessory dwelling unit;
and shop -craft industry; provided that no permitted uses create
an unusual traffic hazard, noise, dust fumes, odors, smoke,
vapor, vibration, glare, or industrial waste disposal problem;
and provided that no permitted uses sell daily or frequently
bought items to the general public.
CONDITIONAL USES
Full -service gas station; dance studio; martial arts studio;
dwelling units accessory to other permitted uses; catalogue sales
store; photography studio; satillite dish antennae.
§ 243.2
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128 1447
C� J
•
CITY OF ASPEN
130 49uth galena street
asp 0, Colorado 81611
303-925 -2020
MEMORANDUM
DATE: March 11, 1985
TO: Colette Penne
FROM: City Attorney
RE: Pletz Rezoning
We have no comments on the substantive aspects of the rezoning
request. `However, you may be interested in knowing that the P&Z
has previously been concerned with maintaining the SCI with regard
to this property. For your information, I am attaching P&Z
minutes dated October 4 and October 18, 1983, and June 5, 1984,
and related correspondence in connection with the Andrews condi-
tional use review wherein P&Z's concern was discussed.
Please feel free to call if you have any questions concerning this
material.
PJT/mc
Attachments
7E
• 1
9
' 6^1 `'°4
RECORD OF PROCEEDINGS 100 Leaves
r O-Y 4 C. r...rr.NrL A. n. D 1. Cn.
REGULAR MEETING PLANNING & ZONING COMMISSION OCTOBER 4th, 1983
PUBLIC HEARING CONT'D - ANDREWS CONDITIONAL USE APPROVAL
Chairman Harvey opened the public hearing on the continued hearing for the Andre
'McFarlin conditional use approval, and said that this hearing had been tabled
'twice already, the first time to give the P & Z conditions that would give them
the ability to treat this as a single finding, and the second time to (jet more
;specifics about the exterior of the building. He asked Colette Penne of the
Planning office to begin her presentation.
i
:Penne said that the first time this approval was tabled was to give Gary Esary,
Assistant City Attorney, time to come up with the amendments to the conditions f(
;approval. He did that and it was discussed at the hearing on September 20th, 191
and at that time the Planning office was recommending denial. Penne said that a
comment was made that if this was coming in as a whole new development plan for
that parcel, and was going to be upgrading and use of additional SCI space, that
.this would be viewed differently by the Planning office. At that time the Andre
said that they had considered upgrading the exterior of the building, and it
seemed to be the Commissioner's feelings that that would change some of the nega-
tive votes to positive because they felt that Andrews establishing a residence it
the building while they built up the business and did visual upgrading was a
;satisfactory option. The Planning office's position hasn't really changed, she
said, but the Andrews had submitted plans for the exterior upgrading for the
Commissioners to look at. Penne added that she wanted the Commissioners to be
aware, as it is part of the visual upgrading, that the next item on the agenda
-is a similar request for same use in the same building.
Harvey said they were aware of that, and also of the Planning off.ice's concern
!about opening the flood -gates on residential use in the SCI zone.
Penne said she didn't know 'if the apnro-�ral hinges on the exterior up -grading.
'iPardee said he could see a big difference in the application now that they can-.
;look at the plans for the up -grading of the exterior. The Commissioners then
examined the plans in detail with the architect, Tom Crews.
;Tygre then said that she didn't think it was the consensus of the Commissioners
that the upgrading of the exterior would have an affect on the conditional use.
.She added that she felt there were two separate issues, and because of that, she
said she felt that the Commission can't accept the up -grading as a trade-off for
the granting of conditional use.
Hunt said he agreed with Tygre on that issue.
Harvey asked applicants if they had agreed to the conditional use permit at the
last hearing? Applicants (Andrews) replied yes. Harvey then asked if the
:Commission had reviewed that and if they had any comments.
Pardee said that as he recalled, the commission had a split vote of 3 to 3 at
the first hearing, and one member had said that taking the ugliest building.in
town and bringing it up to look like the properties acrosss the street (Clark's
Market building) would be atremendous change.
Harvey agreed, but said that he didn't think the Commission could consider up-
grading as a reason to grant the conditional use approval.
Anderson mentioned that it was tabled the first time for documentation, which is
,;now in the packet. Harvey agreed, and said that it obviously did not resolve
everyone's concern. He added that now the question is whether the commission
wants to consider this in light of the document, the restrictions on the resi-
dential use, or whether the Commission wants to look at the up -grading or if it':
'even relevant.
Anderson then said that he thought the documentation was pretty adequate as far
as not creating a blanket policy on al.lowi.ng residential use in the SCI zone. He
continued that the issue today is seeing what kind of upgrading is planned.
2-
PUL'LIC HEARING CONT' D - ANDIA CONDITIONAL USE AI'PItOVAL*
Tygre said that she didn't think that was exactly right. She said there seems to
be a great difference of opinion on this issue, as far as whether the conditional
-use is acceptable under any conditions, some conditions, or with the bonus of
them remodeling the front of the building. She concluded that she didn't think
it was that clear-cut, that there is a wide difference of opinion.
.Harvey asked Pardee if he felt that any motion should tie external improvements
to the approval.
Pardee said that it should be one of the conditions in Esary's document.
Harvey asked Esary if the Board is granting or considering granting a conditional
,use and asking for whatever this building might need in order to grant it?
'Esary replied if Harvey meant is it coercion, and if so, the answer is no. The
Commissioners had struggled with this approval request over 3 meetings, trying to
help the applicant and still balance the planning aspect, he added, and to try
to prevent more encroachments into the SCI zone as the Planning office wishes.
Esary added that he had been asked at the time he was helping to draft the permit
for the Andrews if the improvements to the exterior were acceptable, or if he felt
they were coercion, and Esary stated then that lie did not believe it was. Fie con-
tinued that because the applicants tried to prove their accessory use first by
saying they needed to live there because of the nature of their business, and
secondly because they own the building and it has been vacant for a year, and the -...-
,have a negative cash flow, and the reason it all works is if they could start a
business that is a permitted use, live there as an accessory use, and use the
positive flow generated to improve the building to attract more SCI tenants.
Based on that analysis, Esary concluded, there is a reasonable tie between the
,grant of the conditional use and the exterior upgrading.
Harvey stated that it seemed to him the essence of the request is whether this
business which is a permitted SCI business requires an accessory residence in
'order to function. He then asked the architect to show and discuss the drawings
.of the proposed improvements. The architect is Tom Crews, employed by Mr. and
.Mrs. Andrews.
.Harvey commented that in view of the proposed improvements, the P & Z must do one
.of two things: either make the completion of these improvements a condition, of
;approval, or, grant conditional use approval and conditional use permit and with
a specific time period for these to be completed, and if not completed within the
,time period, then the conditional use approval and permit will no longer be valid.
IHarrvey then opened the public hearing for continents.
'Paul Sheldon of the P & Z Commission asked to make a comment as a member of the
;public. He said that at the last hearing on this request his concern was riot
with the building itself but with the issue of residential use in the SCI zone
and he felt the applicants were caught in an unfortunate bind, wherein there is a
„zone that does not allow residential use, and the problem is not with this appli-
.cation but with the designation of the SCI zone. He continued that if the P & Z
,approves this application they would put themselves in a compromising position
with regards to the next application, and he just wanted to express those concern
Harvey asked for any other comments from the public, and having none, closed the
public hearing. Harvey continued that the Commission had tabled this issue the
first time because of their concern for setting a precedent, and to see if
specific language could be written into the permit avoid setting that precedent.
'He said that now the issue of exterior remodeling is presented with nothing more
than a drawing to go on.
;Esary stated that he thought renderings, budget, and date of completion would be
.sufficient. Andrews' said they did have a budget. Harvey asked Andrews when they,
,could have these improvements completed, and Andrews said in 1 year.
Anderson stated that he is satisfied with they conditions presented by the City
Attorney, and what was presented today. He said he believed it in no way tied th
P & Z into speculative changes in the SCI residential uses. He added that the
language of the permit is very limiting, and that he would be in favor of grantinc
approval for 1 year.
1Fallin stated that she votel no on this issue in the beginning and will continue
to vote: no.
9
0
' RECORD OF PROCEEDINGS 100 Leaves
/ORM Y C. r. Mftff RfL A. I. A 1. CA.
.REGULAR MEETING PLANNING & ZONING COMMISSION OCTOBER 4, 1983
PUBLIC HEARING CONT'D - ANDREWS CONDITIONAL USE APPROVAL
.Pardee stated that he would be in favor of granting approval.
.Tygre said that she agreed with Fallin. She said she felt strongly about allowinc
residential use in SCI zone, and that she felt the need for this business is the
real criteria.
'White stated that he thought the SCI zone in that section was wrong, but because
.he felt it was the wrong zone did not mean that this was the right way to go about
;changing it, and would have to vote against approval.
Hunt said that he would vote in favor of approval. He felt that the uniqueness o
:the operation and the hours, plus the limited scope of the dwelling unit, were
sufficient reasons to approve. He added that the applicants said that they would
.complete these improvemtns in 1 year, but as far as conditional use review, he
-;would favor making it 2 years.
:Harvey said that the only grounds that he could see for considering an accessory
dwelling unit is that the hours of the business, and the nature of the business
,is such that it requires someone to be on hand around the clock. In the condi-
tional use permit drafted by the City Attorney, it states that"the permitted use
shall be a bona fide, for profit, equipment rental storage and repair business
with customary and regular business hours". He continued that customary and
,regular business hours to him were 9 to 5, 8 to 6, or whatever. He said that he
:wasn't sure that this type of business required strange and unusual hours.
F
s • y
RECORD OF PROCEEDINGS 100 Leaves
PO" -. C. F. "OffAfl A. A. A L. C9.
REGULAR MEETING PLANNING & ZONING COMMISSION OCTOBER 18, 1983
'ANDREWS - RECONSIDERATION OF CONDITIONS
jHunt said that he thought both Andrews and Zebra Productions conditional use
;permits would have the same requirements.
:Harvey said the Commission should review the Andrews' case first, then, and Zebra
after that. He continued that it was coming back to the Commission due to the
;onerous condition of the 3-hour fire wall.
!Luke Ferguson, attorney representing the Andrews, said that he appreciated the
time the P & Z had devoted to this case, and that there were 4 reasons for coming,
back to the P & Z at this time. He said that the first reason goes to something
;Hunt raised at the outset, which was 3 hour fire resistant walls and the first
condition imposed on this project. He said that this 3 hour fire wall condition
;was within the Commission's power, in order to preserve the availability of all
permitted uses under the SCI zone. However, he said, he had found a way in this
;instance to accomodate the City's interests, and hopefully to go with something
!Commissioner White had mentioned several hearings ago, which was a question of
rezoning this particular property. The second reason, he continued, is to clarir
for Bob Andrews a 3 hour fire resistant wall and a 1 hour fire resistant wall,
and there is a significant difference not only in terms of cost but in terms of
construction that must take place that would affect the tenancies of existing
tenants and the amount of space they have in the lower floors. Thirdly, he said,
,he didn't know if the Commissioners were aware that Sarah Pletts was purchasing
her unit, and consequently they think that all owners within the same building
should have the same conditions imposed.on them. The fourth reason was to try tc
step back from the rushed nature of this project and try to put into prospective
in light of the city's interest which fluctuates from year to year, and also to
address the Andrews' desires. He said they have come up with a proposal that
hopefully serves the interests of everyone, protecting the City's interests but
also to impose some long range considerations for that whole area. The first par
of the Andrews proposal is to delay the imposition of the 3-hour fire wall con-
.dition until June 1, or until the date that a rezoning application can be filed
.on behalf of the McFarland & Andrews. He digressed, saying that a review of the
Building Code indicates that only one use would be excluded by this delay of the
:3 hour fire wall condition, and this one use is the only one permitted in the SCI
:zone, namely wood -working establishment. He added that the only other potential
;use in the SCI zone would be a dry cleaning plant using flammable liquids, and 1:e
added that they didn't feel that they would be approached during the next 9 month
for a dry cleaning operation. The result of this kind of delay he felt would ham
;a minor impact affecting permitted uses in the SCI zone. All other permitted SCI
:uses may take place in the bui-,,ding as it is currently constructed now. During
;this period of time they would evaluate the property and consider its best and
:highest use in light of several factors, one the zoning in the area. They are
;anticipating a request to rezone teh property in February. This would permit the
;uses in the building, and would also permit uses that in the long range would be
" more compatible, i.e., restaurants or other appropriate uses. The result, he
-said, would be that they would have opportunity to step back and analyze, and
,also consult to determine what would be the best use of the property. Lastly, he
said, the biggest problem is, what happens if they get down to the line, and don'
get rezoned, and they are living in the building. What power does the city have
to impose the fulfillment of the condition of the 3 hour fire wall construction:
Andrew's have come up with 3 devices that they think would give the City the key
.and would impose upon the Andrews the requirement to build this 3 hour fire wall
;in the event the zoning is not changed. The first would be for the Andrews to
provide a performance bond at their own cost or other security, that would assure
,that there is financing to construct the wa-ls, including Sarah Plett's unit.
He added that they do have an estimate on what the construction would cost for
.jsut the Andrews unit, and that figure would be $18,450.00. To do all the units,
,the cost would be approximately $40,000. The second means is that they would re-
quest that the City issue a temporary CO, which would be temporary until such tim
as the rezoning application is favorably approved, and in event that the building_
.as constructed complied with all of the requirements of the new zone, then the
temporary CO would become permanent. In the event the rezoning was not a -proved,
then the temporary CO would expire. The result would be that the City could sue
with penalties.
+ANDREWS - RECONSIDERATION 21 CONDITIONS - CONT'D
The third condition, he con nued, would.be to provide the City with the.names of
the holders of the Deeds of Trust that secure the financing for the property, so
that the City could notify those holders in such instance as they did not receiv,
,the rezoning and did not build the fire resistant walls, and that would automati-
cally declare default and declare all sums due. The reason they have proposed
these 3 conditions is that he didn't want to have to come back in Julv and expla
why his clients, the Andrews, didn't want to do it. He concluded that he felt it
;would protect the City's uses, in that the SCI zone uses are protected except foT
�1 use for 9 months, and after that they would all be protected whether or not the.
;zoning is changed. Secondly, it protects Sarah Pletts and existing tenants, and
:third, it gives the Andrews the time to do appropriate long range ,planning for
!that property, rather than piece -meal. He added that he would provide the neces-
:sary docuemnts to the City Attorney's office for their review.
!Harvey asked Ferguson if they changed the zoning and the P & Z has conditioned th
!..residences on these uses, (for Sarah and the Andrews), would there be a problem
!with creating a non -conforming usage under zoning change for these 2 businesses.
(Ferguson replied that that was why they needed time to look at before they applie
;for the rezoning. He added that since Sarah would be an owner, she would be in-
jvolved in all these plans.
'Harvey said that the reason they had treated Pletts and the Andrews differently
;was that Pletts would have to put in a 3 hour fire wall if and when a tenant came
!into a space next to her that required it. Because the'Andrews own the building,
;they would be the ones coming to Pletts and saying they are putting in this tenar.
.and she has to put the wall in. In the Andrews case, they own the rest of the
building, and if someone came to them and wanted to put in a drycleaning plant,
they can say no because they don't want to put in the fire wall. That was the
reason the P & Z had said the Andrews had to do it.
'Ferguson said they appreciated the P & Z's opinion, but that they felt if the 3
!hour fire wall has to be built, it should all be built at once, and that since
'Pletts would be an owner, they couldn't really make a distinction between the
`conditions imposed on Pletts and those imposed on the Andrews, and in the event
.you impose the same conditions on Pletts as on the Andrews, Pletts isn't going to
want to buy. He added that what they are trying to do is just to see if they can
;get a delay on this condition, with assurances and guarantees that they will com-
ply in the event the rezoning is not successful.
.Harvey said that what he is saying is that Pletts doesn't have the same rights of
!ownership or status that the Andrews have.
.Pardee said that he would be infavor of extending the time they have to install
(the 3 hour wall, and that the guarantees are substantial, but he felt that Harvey
,had brought up a very important problem. He said that he would be in favor to
'extend it, but when it comes back to P & Z for rezcning and they are asked to make
;an exception for a residence, he would be inclined not to do it. If they choose,
to sell it now as a residence and then rezone, he didn't think they could expect
;the P & Z to allow it. 4
;Harvey said what are Andrews consideration if the P & Z was to extend the require-
ment until June '84, if the Andrews go out and sell the remaining condominium
'spaces...
-Ferguson said that they would put those conditions as a matter of record, and
any person that wanted to look at them would be advised of what they are attemp-
ting to do. He added that they were trying to accomodate everyone's interests,
-and the changing nature of the master plan for the Rio Grande property. They are
,simply asking for the time to analyze the situation, and may impose some long
range planning.
Harvey'said that if he were in their position he might look at rezoning in order
to avoid having to put in a 3 hour wall, or rezoning, which would exclude dan-
gerous businesses so he wouldn't have to spend the money.
Ferguson replied that the problem that the P & Z faces is that the SCI zone was
established for a number of uses, for basic purposes to create a core in that
area -for specific uses that are intended to this City.
Harvey said that the dilemna is that the Andrews have empty space, there is a
provision for residences, the P & Z wants to allow that, but as a result of that
they don't want to restrict the potential uses for SCI.
RECORD OF PROCEEDINGS 100 Leaves
•e C. F. MOrrKrl s. 1. • t
EGULAR MEETING PLANNING & ZONING COMMISSION OCTOBER 18, 1983 �-
MREWS - RECONSIDERATION OF CONDITIONS - CONT'D
ant added that it was not only permitted uses, but conditional uses as well.
arveysaid that in the memo from the Andrews is that the would like to have �-
y ve some-
ime period in which to sell some spaces and improve the exterior.
I-
arguson said that he would be a fool to come before the P & Z and suggest that �:•
zey just waive this condition, and he does not want to do that. He added that
zat is why they came with this proposal, they think its a workable proposal, and
iey don't want to put the City in a position of creating precedents that it would
ave to live with either. On the other hand, if they can analyze the rezoning
Dtential, it might make the spaces more attractive to the prospective purchasers,
zd they would have to file someting for rezoning before February anyway.
arvey then said that Ferguson said they would do the two units together, does
ze purchase contract call for Pletts to bear the cost on her unit?
:rguson replied that he didn't know. He said the Andrews would get a performance
Dnd, because they didn't want to lose Pletts as a purchaser. He said that if
Letts knew she was going to have to put in a $20,000 fire wall, Andrews would note
ave a purchaser. F.
't
arvey then asked Gary Esary if the Andrews were to go out and sell the condo-....-
Lniumized units around their unit and restrict in the purchase contract that
iey would never use those spaces for dangerous, hazardous, flammable uses, that
Duld get them out of the requirement. In other words, he said, could they
Dvenant privately between the purchaser and the seller the uses to which the f.
zits could be put, because the Andrews control the condominium association they-,!'
3n write in certain elements in a private document outside of the City's zoning.`
3ary replied that the market takes care of it. He said that the problem with
1e condition on Zebra was that if at some time in the future a dangerous business
ime in, Pletts would have to construct the fire wall. The reason the P & Z had
iid the Andrews had to do it now, and Sarah later was because the Andrews had
Dntrol. If Andrews were to suddenly to get people lining up to buy the condo-
Lnium units who had lawful permitted uses and none involved the 3 hour fire wall
?paration, it would be great. However, if a person requiring the 3 hour fire
ill were to come in and want to rent the bottom space, and would pay high rent,
idrews would be anxious to rent to him. He added that he did not consider it to
a serious problem, and the condition that Ferguson suggested is that either
iey get rezoning by June 184 or they have to put in the fire wall. He concluded
iat Andrews couldn't eliminate that condition simply by selling the units to
;ople that did not require the 3 hour fire wall.
irvey then asked Esary if he was comfortable with the 3 conditions put forward
the Andrews, ie, the performance bond, temporary CO, and names of holders of
:eds of Trust.
;ary.replied that he felt it was pretty good security.
irdee said that the performance bond should be reviewed by the City Attorney, ,
id those funds should be, if not voluntarily done by the applicant, turned over-
) the City and the City can proceed with the construction.
;ary said that one of the things that would have to be determined when the fire I
ill is put in, does it mean separating the first floor from the second floor, or
ie two units from each other, or what. .I
irvey said that the Building.Department would enforce those regulations.
;ary then said the P & Z should also consider that if the Andrews can't get any
)re people with permitted uses in the SCI zone, but do get people with condi- ?
.onal uses, the P & Z will see them and since the Andrews acid Pletts got their
)nditional uses, the Board should consider how far they will. go on that line.
i
ANDREWS - RECONSIDERATION OF CONDITIONS - CONT'D
Iiarvey said the uses are permitted, and the residences are conditional.
Esary said that the P & Z commission has very broad discretion on deciding on
conditional uses in a zone, if the commission's focus is on the compatible con.
ditional uses.
i
Harvey asked Esary if he felt comfortable with what was going on the record, at
with the requirement that the fire wall must be put in if and when the use corr,�
up.
Esary said it could be drafted that way.
Harvey said he was mostly concerned with the difference in control of owners, s
i
i
MmIr��s f
is
505 SANSOME STREET
SAN FRANCISCO 94111
March 5, 1984
Paul Taddune, Esq.
City Attorney
130 South Galena Street
Aspen, CO 81611
Re: Conditional Use Permit for Robert W. and Jane G. Andrews (the
"Andrews") at 412 N. Mill Street
Dear Mr. Taddune:
Pursuant to your suggestion during our telephone discussion of January 17,
1984, I hereby outline for you the points that I believe require clarification in the draft
Conditional Use Permit, copy enclosed (the "Draft"), which was presented to the
Andrews by the City of Aspen (the "City"), specifically, by Mr. Esary as Assistant
City Attorney:
1. The first sentence of numbered paragraph 2 of the Draft states.
"According to the Uniform Building Code a three-hour firewall must separate any
residential occupancy in the S/C/I zone from certain uses that are permitted in the
zone." I believe this statement refers to Tables No. 5-A and 5-B of the Uniform
Building Code, 1979 Edition, which provides, in part, that a Group R-3 Occupancy (i.e.,
dwellings and lodging houses which comprise the Andrews and the Pletts-Garwood
occupancies) may be mixed with a Group H-3 or H-4 Occupancy (including dry
cleaning plants using flammable liquids, paint shops, woodworking establishments and
repair garages) only if there is a three-hour fire -resistive separation. Turning then to
the S/C/I entry in the chart set forth in Section 24-3.2 of the Aspen Municipal Code
(see pp. 1447-1448) and comparing it to Tables 5-A and 5-B, it appears to me that the
following S/C/I uses would be Group H-3 or H-4 Occupancies: (1) an industrial dry
cleaning plant and laundry; (2) a use involving "fabrication and repair of building
materials and components" (e.g., woodworking); and (3) a repair garage where welding
is done or other open flame or highly -flammable liquids are used (although such a use
does not appear to be a permitted use under Section 24-3.2). As such, according to
Table 5-B a three-hour fire -resistive separation would be required when any such
S/C/I use is mixed with a Group R-3 Occupancy.
However, where a Group R-3 Occupancy is mixed with a Group B-1 or B-2
Occupancy (e.g., storage garages where no repair work is done except exchange of
parts and maintenance requiring no open flame, welding, or the use of highly -flam-
mable liquids, wholesale and retail stores, office buildings or printing plants),
according to Table 5-B only a one -hour fire -resistive separation or no fire -resistive
separation at all is required.
-1-
[ 606:84:52:41
Paul Taddune, Esq.
March 5, 1984
Page 2
Presently, approximately twenty-five percent (25%) of the 412 N. Mill
Street building is owned by Sarah Pletts and Janet Garwood, who intend to reside in
one portion and operate a permitted S/C/I use (shop -craft) in the other portion.
Shop -craft industry appears to fall under the Group B-2 Occupancy in Table 5-A.
Similarly, the Andrews propose to reside in and operate their rental equipment
business (the latter also being, I believe, a Group B-2 Occupancy) in fifteen percent
(15%) of the building. Additionally, approximately twenty percent (20%) of the 412
N. Mill Street building is occupied by Creative Printers and ten percent (10%) is
occupied by Aspenique Jewelry, both of which also appear to be Group B-2 Occupan-
cies (retail/shop-craft). All of these Group B-2 Occupancies are permitted S/C/I uses
under Section 24-3.2, which according to Table 5-B, require no fire -resistive separa-
tion from a Group R-3 Occupancy.
Approximately five percent (5%) of the building is used by Mr. George Sells
for restaurant equipment storage, which appears to be a Group B-1 Occupancy,
requiring a one -hour fire -resistive separation from a Group R-3 Occupancy. Such a
one -hour separation presently already exists throughout the entire building. The
remaining twenty-five percent (25%) of the building is unoccupied and is presently,
listed for sale. Therefore, seventy-five percent (75%) of the building is presently
occupied by permitted S/C/I uses requiring either a one -hour fire -resistive separation
or no separation at all, and the building is more than in compliance with the Uniform
Building Code as one -hour separation exists throughout the building.
I find nothing in either the Uniform Building Code or any Chapter of the
Aspen Municipal Code (these two documents hereafter collectively referred to as the
"Codes"), requiring that a three-hour fire -resistive separation must be constructed in
a building seventy-five percent (75%) occupied by permitted S/C/I uses that are mixed
occupancies requiring only a one -hour separation or no separation at all as discussed
above, when the remaining twenty-five percent (25%) of the building is unoccupied but
no Group H Occupancy is anticipated or desired. Therefore, I request that the City
refer me to the code sections requiring, as stated in the second sentence of numbered
paragraph 4 of the Draft, that "as a precondition of this residential occupancy permit",
the City "is requiring the construction of a three-hour firewall separation between all
residential occupancies and the remainder of the building in order to preserve the
future possibility of placing such a certain permitted use on the premises, though the
use requiring the firewall is not currently present." Emphasis added.) I further
request that the City explain why it is apparently requiring three-hour fire -resistive
separation between "all residential occupancies and the remainder of the building"
when the codes only require one -hour or no fire -resistive separation given the present
occupants, as discussed above.
Finally, I request that the City refer me to the code sections giving it the
right to require the owner of an S/C/I building, which owner has already sold or leased
seventy-five percent (75%) of said building to permitted S/C/I uses, to sell or lease the
remaining twenty-five percent (25%) specifically to "a certain permitted [S/C/Il use"
requiring the three-hour fire -resistive separation. [ Empha added.]
-2-
[ 606:84:52:41
•
0
Paul Taddune, Esq.
March 5, 1984
Page 3
If the City purports to have such a right, does this mean that the City can
then specify, in its discretion, whether only portions of an S/C/I building must have the
three-hour fire -resistive separation, and specify which portions, or whether an entire
S/C/I building must have such fire -resistive separation? Surely the City cannot
purport to take such an arbitrary position. And, further, if the basis for the City's
position is to protect the future possibility of such "certain permitted uses" coming in
to an S/C/I building, then, taken to its logical conclusion, I submit that in that case all
S/C/I buildings in Aspen would have to have three-hour fire -resistive separations
throughout each entire building, whether or not they are ever occupied by any "certain
permitted use", in order to preserve "the future possibility" that they might be so
occupied. Only this reasoning can explain why the City is requiring the Andrews to
build three-hour separations between "all residential occupancies and the remainder of
the building". Again, I request that the City refer me to the code sections or any
other authority to support such a purported right.
2. The Draft in numbered paragraph 5 speaks of a "firewall [ which]
shall conform with requirements set forth in current Uniform Building Code and
[ which] shall at least comply with the description stated in the proposal received
from Hansen -Haberman Construction, Inc. dated [O] ctober 28, 1983, in the amount of
$11,360.00...." [ Emphasis added.] It is quite unclear to me from my reading of the
Draft or the codes, exactly what type of "firewall" is referred to in this paragraph. I
seem not to be alone in this confusion. As stated in the minutes of the October 18,
1983 regular meeting of the Planning & Zoning Commission ("the October 18
Minutes"): "Esary said that one of the things that would have to be determined when
the fire wall is put in, does it mean separating the first floor from the second floor, or
the two units from each other, or what." [ Emphasis added.] However, from the
wording in the Draft as well as the description and the above cost estimate in the
Hansen -Haberman proposal, it is apparent that only three-hour fire walls -- not
ceilings -- are contemplated, but it is completely unclear where in the building such
fire walls were to be constructed and the extent of such construction.
From the foregoing, it seems obvious to me that at the time the City
presented the Draft to the Andrews, neither party really understood, and certainly did
not mutually agree upon, exactly what the "firewall" requirement was. As evidenced
by the October 18 Minutes and the cost estimate in the Draft, at no time was a
three-hour fire -resistive separation (i.e., including ceilings) ever contemplated.
Therefore, I submit that the Draft as now worded contains a material mistake of fact
upon which both parties relied, resulting in no meeting of the minds of either party.
The Draft therefore must be revised to reflect the parties' true agreement, if any
agreement has in fact been reached.
3. In the October 4, 1983 minutes of the regular meeting of the Planning
& Zoning Commission ("the October 4 Minutes"), there seems to be major concern on
the part of the Commission regarding "setting a precedent", to wit, "opening the
-3-
[606:84:52:4]
:7
Paul Taddune, Esq.
March 5, 1984
Page 4
flood -gates on residential use in the S/C/I zone." As I pointed out to you during our
telephone discussion, the Pletts-Garwood/Andrews residential uses are not the first
such uses in an S/C/I zone. Rather, the precedent was set in 1980 at 530 East Bleeker
Street (the "Bleeker Building") which presently comprises approximately fifty percent
(50%) residential and fifty percent (50%) purported S/C/I uses. Except for
Mr. Pustolka, the owner who owns the adjacent Welding Co., none of the Bleeker
Building residents operates as accessory uses any of the businesses presently located
there. On the other hand, Ms. Pletts, Mrs. Garwood and the Andrews all intend to
operate permitted S/C/I uses and reside in a dwelling unit accessory to such permitted
uses, as Section 24-3.2 specifically allows. In fact, Ms. Pletts and Mrs. Garwood were
awarded their conditional use permits for their proposed combination
residential/permitted S/C/I uses in November, 1983. I submit, therefore, that
awarding the Andrews a conditional use permit for their proposed combination
residential/permitted S/C/I use would not set a precedent at all, but rather would
follow a precedent already set by the Commission in awarding such permits to the
Bleeker Building (assuming the residents in fact have their required conditional use
permits for accessory uses), Ms. Pletts and Mrs. Garwood.
4. In light of the foregoing discussion, I submit that not to award the
Andrews a conditional use permit on the same terms set by the Planning and Zoning
Commission either in the Bleeker Building situation or the Pletts-Garwood situation
would mean both that: (i) the Planning and Zoning Commission does not follow its own
precedents, therefore rendering them meaningless; and (ii) that the Planning and
Zoning Commission's action with regard to the Andrews is arbitrary and capricious,
and therefore discriminatory. As you know, the Planning and Zoning Commission
is required by the Colorado Constitution evenhandedly to apply the laws of the State
of Colorado and the ordinances of the City of Aspen to the Aspen residents coming
within its jurisdiction; it therefore should be bound to follow its own precedents so as
not to discriminate among similarly situated Aspen residents.
A reading of the Pletts-Garwood conditional use permit discloses in
numbered paragraph 4 thereof that "[p] rior to any future occupancy of Building B and
any S/C/I use requiring it," a three-hour "fire separation wall" will be constructed.
[ Emphasis added.] In other words, as the October 18, 1983 Minutes explain,
". . . Pletts would have to put in a three-hour fire wall if and when a tenant came into
a space next to her that required it." [ Emphasis added.
In the Bleeker Building situation, no three-hour fire separation walls exist
at all. My understanding from a former employee of Intermountain Lumber is that
there were two residential uses (i.e., non -conforming uses), on the second floor of the
Bleeker Building up until the second floor was leased to Intermountain Lumber in 1975,
at which time the residential uses were abandoned and the space was used by the
lessee as office space. Section 24-13.4 of the Municipal Code provides in subsection
(e) that "[ w] hen a nonconforming use of a structure, or structure and premises in
combination, is discontinued or abandoned for a period of more than one year, the
structure, or structure and premises in combination, shall not thereafter be used
-4-
[ 606:84:52:41
•
1J
Paul Taddune, Esq.
March 5, 1984
Page 5
except in conformity with the regulations of the district in which it is located... "
Therefore, since the non -conforming residential use was abandoned for more than one
year, anyone attempting to reinstate such a use must comply with the regulations
governing district 11, the S/C/I zone. As I read Section 24-3.2, the only way a
residential use can legally occur in an S/C/I zone is if it is an accessory use to a
permitted S/C/I use. As pointed out earlier, with the exception of Mr. Pustolka, the
other residential uses in the Bleeker Building, which uses were reinstated pursuant to a
building permit issued to Paul Hanway of Colorado Construction Co. on December 1,
1980, are not accessory uses to the permitted S/C/I uses in the building. Moreover,
the permitted S/C/I uses presently in the Bleeker Building comprise in part a
woodworking shop and The Welding Company, both Group H Occupancies according to
Table 5-A of the Building Code, which if mixed with a Group R-3 Occupancy, require
a three-hour fire -resistive separation (see Table 5-B). My understanding is that no
such three-hour separation presently exists in the Bleeker Building, as required by the
Uniform Building Code.
I conclude that the members of the Planning and Zoning Commission, if
they intend to follow their own precedents in order not to discriminate against the
Andrews, and if they intend to uphold their oath of office*/, either must ignore the
three-hour fire -resistive separation question altogether, as in the Bleeker Building
case, or, as in the Pletts-Garwood case, must require a three-hour fire -resistive
separation if and when a permitted S/C/I use requiring one comes in to the 412 N. Mill
Street building, and at no other time.
5. There is substantial question in my mind as to whether the Planning
and Zoning Commission can require as a condition to the grant of the Andrews'
conditional use permit, any improvements to the exterior of the building, particularly
when such conditions are based on aesthetic judgment rather than Building Code
requirements. My doubts apparently are shared by Mr. Harvey and Ms. Penne (see the
October 4, 1983 Minutes, wherein Ms. Penne states that "she didn't know if the
approval hinges on . the exterior up -grading", and Mr. Harvey states that "he didn't
think the Commission should consider upgrading as a reason to grant the conditional
use approval.") I would agree with Mr. Harvey's innuendo, as stated in those minutes,
that such a condition smacks of coercion, and I therefore request that the City refer
me to the code sections permitting it to condition the grant of conditional use permits
upon the fulfillment of the City's criteria for aesthetic beauty. As I read Section
24-3.3(b) of the Municipal Code, the Planning and Zoning Commission's determination
*1 Refer to ection 3.9 of the Municipal Code, requiring every city officer to take an
oath or affirmation to support the Constitution of the United States, the Constitution
of the State of Colorado, the Aspen City Charter and the Aspen City ordinances.
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[ 606:84:52:41
0
Paul Taddune, Esq.
March 5, 1984
Page 6
of whether or not to grant a conditional use permit has everything to do with zoning
requirements and nothing to do with aesthetics.
Having set forth the major areas of concern, I believe the most reasonable
approach to resolving the current dilemma between the Andrews and the City is for
the City to grant the Andrews a conditional use permit that is identical in all material
respects to the Pletts-Garwood permit. That way, I believe there would be a meeting
of the minds by both parties, the Planning and Zoning Commission will be upholding its
precedent, there would be no discrimination against the Andrews regarding the
three-hour fire -resistive separation or any exterior improvement requirement, the
potential for Group H Occupancies in the building would not be destroyed, as the
three-hour separation would be built if and when such a use comes into the building,
and the Codes would all be complied with.
I look forward to hearing your suggestions for a reasonable outcome of this
matter.
Very truly yours,
&'//� A&4-
Catherine A. Bach
CAB:cfm
Enclosures
cc: RWA
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[ 606:84:52:41
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CITY,,.,OF ASPEN
130 south galena street
aspen, colorado 81611
�303-925 -2020
MEMORANDUM
DATE: May 31, 1984
TO: Planning & Zoning Commission
Planning Director
Jim Wilson
FROM: City Attorney
RE: Andrews Conditional Use
In March my office received a letter from Ms. Catherine Bach, a
San Francisco attorney, contending that the Andrews were being
treated unfairly with regard to the conditions imposed in the
granting of their conditional use permit application. In particu-
lar, the letter asserts that there was a material mistake of fact
with regard to the Andrews' agreement to install the fire wall,
and according to Bob Andrews, the cost of installation has made
the residential use prohibitive. A copy of this letter is
attached. My discussions with City staff suggest that there was
no mistake on their part that the Planning and Zoning Commission
required the installation of a three-hour fire wall to assure that
the residential use approval would not restrict or limit potential
S/C/I uses.
Because ids. Bach alleged a "material mistake of fact" my office
recommended that this matter be placed before the Planning and
Zoning Commission for clarification.
In the meantime, I have learned that the Andrews building is or
will be the subject of a foreclosure proceeding and that the
Andrews are no longer interested in using their condominium for
residential purposes. Therefore, I assume that the Andrews will
announce this at the June 5 meeting and, since the residential use
permit is no longer operative, they will be entitled to a reim-
bursement of their park dedication fee. Unfortunately, this
result still leaves the Sarah Pletts question open, inasmuch as it
is my recollection that the Planning and Zoning Commission
required a three-hour fire wall with regard to her residential use
as well.
In summary, the Andrews' application is being referred to the
Planning and Zoning Commission for purposes of clarifying all
prior proceedings. Further, I am led to believe that Mr. and Mrs.
Andrews are no longer interested in the residential use and their
intent in this regard will become a matter of public record at the
June 5 meeting. If, however, they are still interested in pursu-
ing the conditional use permit, we will then request the Planning
and Zoning Commision to clarify its intent with regard to the
three-hour fire wall requirement.
RECORD OF PROCEEDINGS
Chairman Perry Harvey called the meeting to order at 5:01 p.m. with
commissioners Jasmine Tygre, Pat Fallin, Welton Anderson, Lee
Pardee, and Roger Hunt present.
COMMISSIONERS' COMMENTS
Pardee asked -.chat action Council has taken on the Top of Mill
and 700 South Galena. Alan Richman, planning office, replied
that Council has met t:7ice but there has been few results.
Hunt has been contacted by two citizens who are concerned about
a proposed or3inance to disallow dLp-lexing somewhere in the
city. This has upset someone's sale of a duplex .size lot.
Where is this in the system? How soon can this get through
the system? Richman answered it will be in front of the Commission
July 3rd. Harvey asked if this was put forward to Council by
a west end group. Richman answere3 yes. Harvey asked what
was Council's action. Richman understood that Council discussed
sponsoring it and decided to send. it to the Com;nissien. Paul
Taddune, city attorney, stated that it is the feeling of the
majority of the Council that the west end should be single family
rather than duple: configuration. The Council is responding
to a group of citizens who feel strongly about maintaining the
single family configuration. Harvey noted Turley received permission
to do a lot split on Lake Avenue, for single family units.
Taddune noted that the Turley lot split is what precipitated
this citizen action. There was also a threat to start an initiative
if the Councii did not respond. There is a general resistance
to large duplexes in the west end. Hunt said this is upsetting
a substantial portion of the community. Richman commented that
he is receiving calls every day. Dunaway said he is hesitant
to say it is the consensus of the Council. Richman said Council
does not even knew the issue. Taddune said the Council voted
three to two to send it to the Conmission. Dunaway reported
this action is not sponsored by the West End Association, but
by some private citizens in the west end.
OLD BUSINESS
ANDREt'TS CONDITIONAL USE F'QJL(Y,7-UP
_Taddune.--said the memo dated may 31 is self-explanatory. It
at in as brief of a format as possible to report the frus-
tration encountered by all involved over the Andrews residential
conditional use permit. Mrs. Andrews is present to offer her
r- version of the problem. Essentially, the Jl�ndrews are no longer
1
ME
interested in a residential use of the condominium. The reason
is that the cost of the three-hour fire gall makes the residential
use economically prohibitive. There are other considerations
addressed briefly in his memo that are addressed in the letter
form Kathryn Bach, Bob Andrews' daughter. Prior to the conversation
with Bob Andrews, the Andrews sought clarification and were
interested in the residential use permit. The Andrews are no
longer interested in the residential use.
Mrs. Andrejas, applicant, wished to qP on re - cord __that ,_it.__is not
that the Andrews are not interested in proceeding. There ere hate
been- emendous economic is setbac;Rs because of the fire wall. (Jasmine
Tygre arrives in the chambers.) Ids. Bach did the legal research.
She reported that Bach concluded there was not a meeting of
the -rr,inds because a three-hour fire wall (which Hunt imposed
upon the Andrews and the Commission agreed on last fall) is
very different from the three-hour fire separation. Jim Wilson
did not speak at that meeting. Everything, ceilings and floors,
needs to be encased with the fire separation.
There was originally a $12,000 estimate for a fire wall. The
Andrews agreed to that. Later Chic Collins and Jim Wilson estimated
the increase to be between $40,000 and $80,000 for a separation
which would meet the municipal code. The Andrews are defeated.
The Andrews give up. They are walking away. They are not attempting
to live there anymore.
They want to go on record that _there has been discrimination
a ain_ss em._ She cited 530 Bleeker Street. There are four apartments
wTi one over a welding shop, one over a woodworking shop, and
one over a paint shop. None of the apartments have a three-
hour fire separation as required by the municipal code. She
cited Section 1447-1448, and Tables 5-A and 5-B. Her site is
zoned R-3 occupancy as a lodge and dwelling mired with Table
5-B, a three-hour fire resistance separation which means ceilings,
floors, walls. The four apartments on Bleeker are zoned SCI.
If one ernan- is_tr-eated one way, and one another, there is
�imination.
Harvey asked for clarification between fire wall and fire separa-
tion. Taddune understood that a residential use would occupy
part of the building. In order to tike full advantage of SCI
uses a three-hour fire wall separation has to be installed to
protect the residential uses from the high end of the spectrum
commercial uses, for example, welding. The problem here is
2
0
RECORD OF PROCEEDINGS
• • r 1 r • 1 • • 1 r • •!Pfl • r r 1'
that if a residential use is allowed accessory to the commercial
use, the SCI use would be diminished unless the Andrews encased
the commercial use. Encasing would be done so that welding
or the high end of the spectrum commercial uses would not jeopardize
anyone living adjacent to that other space.
He recalled from reading the minutes of the Commission, that
the Commission was concerned about limiting SCI uses. The Commission
did not want the residential component to restrict the commercial
component. This created problems for the Andrews and for the
people who wanted to occupy the commercial space.
There have been some references made to other areas of the city.
He informed the Commission and the public that these cases are
being investigated to___see 1f . the units are in compliance. Also
/T the Commission and the applicant should be advised that conditional
use applicat;_ons are discretionary, they are based on the facts
of the particular situation. Therefore, the situation that
exists in one part of the city does not necessarily mean that
same situation ought to exist with respect to the application
in front of the Commission. The Commission does has discretion
in conditional use situations.
Hunt added that the building use site is a pre-existing condition.
How does the building relate to the code of its time? That is
what it will be judged on, not that it happens to comply with
'\Tx' the present regulations which will be determined by the building
J' department if in fact they are investigating this. Bill Druedin-q,
i,, •building department, said the building department is investi.ga_ti:1g_
Bleeker and noEcd—there is a pro em..
�add_ur� sympathized with. the layman's viewpoint about the unequal
treatment and with the argument that something is being done
in another part of the city, therefore, why cannot someone else
do it. The staff's response is that may be improper. Two wrongs
pare not going to be allowed. It is a difficult situation.
Th_e_.Andrews�urchased- and__ c-on.d_Qminiumized the property with
the idea of using it --di ferently than is -allowed
.Mrs An yews added that the property is empty now. Across the
street lower rents are offered. Her building has an old fashion
furnace system, the cost of utilities is high. The building
is unoccupied. Sales have fallen through also because of the
SCI zoning. If she could have applied for neighborhood -commercial
and SCI combined she could have sold or leased the space. She
3
RECORD OF PROCEEDING
does not have the money to apply for rezoning.
prueding. said there is a residential unit there which is supposedly
accessory to a business. There has never been an operating
business there yet.
_:�= ,Taddune commented this proceeding is only setting the record
straight that certain conditions were imposed and those conditions
could not be met. The Andrews may be interested in meeting
those conditions but they do not have the economic wherewithal
to persist in residential use of the space. There is the residual
problem of th` Sarah Pletts condominium, but this is not the
subject of the update.
asked for the park dedication fee back. Taddune
said the Andrews are entitled to a reimbursement of the park
dedication fee since they are not pursuing the residential use.
�Harygy_ asked for an explanation of the discrepancy in estimates,
$12,000 to $40,000-$80,000. Drueding said he was part of the
meetings and privy to a number of meetings with Gary Esary.
There is a difference between a three-hour fire wall and a three-
hour fire separation. A three-hour fire wall simply means a
wall. A three-hour fire separation means encasing the entire
space. A three-hour fire separation is much more expensive
than a three-hour fire wall. Jim Wilson was aware the entire
time that a three-hour fire separation was required. It was
never clear to the Commission what was required. There was
a lack of communication.
E{WC' Hunt said the root of the problem is there were nontechnical
people using technical terms. When he used the term fire wall
he envisicned the units being separable by a vertical wall from
the rest of commercial activity. That is a three-hour fire wall.
Is there something different in the. design between a wall and
a separation. Drueding clarified that a three-hour fire separation
includes floor, ceiling and walls. Mrs. Andrews said the Andrews
and Pletts units are located on the top floor, the commercial
space was below which means encasing the ceilings.
,a?, Sct,Anderson reviewed the letter from Bach and the Uniform Building
Code. Ile tried to relate each item in the permitted uses, Section
24-3.2. The "B" occupancy is gas and service stations, wholesale
and retail stores, office buildings, factories and workshops
using materials not highly flammable or combustible... The
4
U
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RECORD OF PROCEEDIOU
"H" occupancy requires a three-hour fire wall. The "B" occupancy
requires a one -hour fire wall or no separation at all. The
permitted use section reads "provided no permitted use creates
unusual traffic hazard, dust, noise, fumes, odor, smoke, vapor,
vibration, glare, or industrial waste disposal problems." It
should have been interpreted in the first place that it was
a separation not a wall. The only real occupancy allowed in
this zone district is "B". _
�i'.tsw's Mfrs. Andrews said when Jim Rose tried to buy the space it was
discovered that an auto mechanic shop (with welding) was not
an allowed use in the zone. Taddune remarked the mechanic needed
the use of welding in order to repair cars; the mechanic wz..s
not allowed to weld in this particular space because the building
code required a three-hour fire separation as opposed to a thre-_-
hour fire wall. Any SCI use that. involves a welding operati-on
or hazardous or flammable material requires a separation.
Anderson argued that hazardous or flammable materials are allowed
in the SCI zone, including welding shops, according to the chart.
Druedinq commented that Jim Wilson, the chief building official,
atrolled the area there and determined there were three uses
fie considered not Perm�ssable uses in that building. Anderson
--- -'rie
said there is no reference to welding as a conditional use.
Drueding said Wilson determined three definite uses that would
Tazardous uses i,n that area that were permitted by the municipal
code. How unusual noise or dust defined is a judgement call
that is hard to enforce. Wil.$ was uui.te _confident .that he
-- -
bac3_someuses_ba,sed_on._t_he building code that there w re hazardous
uses that were being permitted in that building. — �� �¢ �£«<�i� i 7
Taddune said they are also health and safety concerns. The
clarification needed from the Commission was whether or not
the Commission was fundamentally concerned about diminishing
the SCI uses. If the Commission is concerned about diminishing
uses, then the accessory residential use should not be permitted
unless there is a three-hour fire separation as opposed to a
three-hour fire wall. If the Commission is not concerned about
diminishing the SCI uses then the problem goes away.
Drueding explained the Andrei -is are on the second floor. Downstairs
is a commercial space not owned by the Andrews. The Andrews'
unit is a separate residence. A box could be built around the
unit.
5
RECORD OF PROCEEDINGS
?rie✓"vii . Penne explained the Andrews were going to operate an equipment
rental business out of their unit. The commercial space was
going to be part of the residential space. Mrs. Andrews said
that was the original idea, but the design changed, the business
would be in the contiguous space downstairs. But this does not
include the front space where the shop used to be which was
up for sale or lease. The Commission was concerned that in
the future some use might come in requiring a fire wall. Hunt
said that is adjacent space he conceived as one corli-nercial-resi-
dential unit. One commercial -residential unit requires a three-
hour fire wall separating it from the rest of the activities
that could be SCI. Drueding said if the Andrews occupied the
space upstairs and downstairs then they could, but this is nct
the situation.
>>�tf,:).rTi-. Pardee spoke. The issue is does the Commission want to insure
the continued use and availability of SCI uses in the SCI zone.
The SCI uses need to be protected. The SCI uses should not
be diminished by residential accessory uses.
CJ Ange_r---"nt moved to determine whether the Commission wants to
maintain the integrity of the SCI zone by requiring three-hour
fire separation in compliance with code; seconded by Lee Pardee.
Discussion. Anderson said the Commission needs to vote for
this but the code has not been interpreted correctly. Harvey
discouraged code interpretation. Taddune said staff spent much
time trying to make this work. Different scenarios were tried.
It could not be worked out. He had to defer to the building
department to make in the field type Bete ., inations as to what
was hazardous and what was not. Every possible alternative
was explored.
Harvey interpreted the motion as a vote supporting maintaining
SCI at the inconvenience of residential use. All in favor.;
motion carried.
Harvey commented accessory residential use can in certain circum-
stances be of great benefit. There is a lot of SCI space in
this town that is sitting empty. Taddune answered that certain
configurations can accomplish that. This is a situation which
does not work.
Hunt reported for White that there is a definite need for places
for artists to have a place of residence with a shop or studio. What
6
• t• � eti 1• -t• •1 1• •� •t �- ';�
area does this type of zoning belong? Taddune said the horse
occupation zone accommodates that.
Bil Dunaway, publisher for the Aspen TimQs, asked if the residential
and commercial space was on the same floor would the three-hour
fire wall be adequate. Drueding replied if there was a one
story building then three-hour fire walls would be adequate.
But with a second story, fire can burn vertically, therefore
the unit would have to be encased with a fire separation. Dunaway
asked if there was a SCI use on the second floor would the separation
still be required. Drueding explained the fire separation '.s
required between the business and residential unit. The buildin g
in the past has never been used for residential use. A SCI
use does not require a separation. The code is trying to protect
the .safety of the residential use. Anderson noted that between
a less hazardous SCI use and a more hazardous SCI use a separation
is required also. What has happened here is that 90 a of the
SCI uses have been eliminated by mandating the worse possible
scenario. Mrs. Andrews would have signed a condition,&4 if and
when the space was sold to a use rejuiring a fire separation
to build the separation. But could the Andrews be allowed the
conditional use prior to that? But the Andrews were told they
had to pre -construct the fire separation before they would be
allowed their conditional use. The Andrews could not agree
to that. Harvey said the concern was that the Commission was
not protecting the potential for a wide number of SCI uses.
Taddune said there is no need for a motion on the park dedication
fee, the refund will be handled administratively.
OLD BUSINESS
ASPEN MOUNTAIN LODGE EMPLOYEE FOUSING RESOLUTIOId
Hunt addressed Section 1. Identify the year of the dollars ($250
and $200, respectively) in paragraph three and five. Sunny
Vann, planning office, said this is only a conceptual approval.
A PUD agreement will be detailed. A deed restriction which will
have to pass by the housing authority and the city attorney
wi21 be detailed also. Harvey said it is easy to get fired
at $250. The inflation factor has to be dealt with. May be
the $250 should be adjusted in accordance with the housing guide-
lines.
Vann said the condition represents an initial start. The guidelines
will need to be discussed. The conditions of the housing authority
applicable have to be discussed. It is inappropriate at conceptual
7
•
MEMORANDUM
TO: City Attorney
Building Enforcement Officer
FROM: Colette Penne, Planning Office
RE: Pletz Rezoning
DATE: February 20, 1985
Attached for your review is an application submitted by 412 N. Mill
Condominium Association, requesting a change in zoning. The appli-
cant is requesting that the S/C/I zone district be changed to in-
clude as a permitted use, artists' studios with optional accessory
dwelling unit. They also propose that the "INTENTION" be amended
"to allow for employee residences in or adjacent to professional
artists' studios as a permitted use."
Please review this application and return your referral comments to
the Planning Office no later than March 19, 1985, in order for this
Office to have adequate time to prepare for its presentation before
P&Z on April 2nd, at a public hearing.
Thank you.
0
0
PUBLIC NOTICE
RE: Private S/C/I Zone Code Amendment: Artists' Studios
NOTICE IS HEREBY GIVEN that a public hearing will be held on
April 2, 1985, at a meeting to begin at 5:00 P.M., before the
Aspen Planning and Zoning Commission, in City Council Chambers, 130
S. Galena, Aspen, Colorado, to consider an application submitted by
412 N. Mill Street Condominium Association, requesting an amendment
to Section 24-3.2, Zoning, of the Municipal Code of the City of
Aspen, Colorado. Specifically, the applicant proposes to amend the
Intetion and Uses provisions of Section 24-3.2 with respect to the
S/C/I zone to include artists' studios with optional accessory
dwelling units as permitted uses.
For further information, contact the Planning Office, 130 S.
Galena, Aspen, Colorado 81611 (303) 925-2020, ext. 223.
s/Perry Harvey
Chairman, Aspen Planning
and Zoning Commission
Published in the Aspen Times on February 28, 1985.
City of Aspen Account.
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Reviewed by: Asp P&Z City Councio
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Reviewed By: Aspen P&Z City Council
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