HomeMy WebLinkAboutcoa.lu.ex.Abetone GMP Exemption
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RECORD OF PROCE~DINGS
Reqular Heetinq
Board of Adjustment
June 7. 1984
Paterson asked if those signs are specific to a business. Lavagnino
replied the signs are generic. The signs are red~ndant; the
signs already exis\:: on the staircase. Drueding noted these
two signs Iyel-'" put up in the late vlinter a month before the
season ended.
Herz reminded the Board that the city official recommended the
signs remain so the sign committee could see the violation.
On the otherhand, the applicant is in flagrant violation of
the code. The applicant is probably trying to benefit from
keeping the signs up all SU!i1uer. \'Jhat control does the Board
have? Lava'Jnino responded that the Board is quasi-judicial
and can deny the request.
Drueding argued Mazza's situation is different from Burke's.
There has been a change in nazza's situation. Burke has been
playing games even before the sign COffiI:littee vias forned. llazza
may have tried to do the same thing, but Ilazza has the committee
to fall back on now. The byO violations by Burke should be
taken dovm.
Lavagnino argued the two cases are different. Aspen Grove is
over signed. There are many sign violations on the building. These
tv/o signs were put up recently. Austin agreed the signs should
cor,le down. The applicant has been trying to postpone his case
through the summer.
Lavagnino asked if there is a formal request for tabling by
the applicant. Paterson referred to a letter in the Board's
packet from the applicant's representative to table to August.
Patetson asked if the applicant received notice of this meeting.
Barbara Norris, deputy city clerk, said no. Lavagnino said
noted items are tabled to a date certain to let people Imo\'l
when the Board l'lill discuss a case; the public was informed
and the applicant is part of the public.
John Harz moved to deny the variance for case ii84-8, Ilally Burke,
on the grounds there are no practical difficulties or hardships;
seconded by Josephine nann.
Rick Head steps down. He abstains fron voting because of a possible
conflict of interest. Anne Austin replaces Head.
Lavagnino calls for a roll call vote:
Lavagnino, aye; Paterson, aye; and tlann,
Austin,
aye.
aye; Harz, aye;
CASE 184-10, ABETONE RISTI)RANTE
Rick Head stE.t)S dOVln from this casec1ue to a possible conflict
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RECORD OF PROCEEDINGS
Reqular lieetinq
Board of Adiustment
June 7. 1984
of interest.
Edwards advised the Board that Head can participate as a citizen
on this case but \'Ihen he abstains due to a conflict of interest
with Abetone, Head should not discuss the matter with the Board
as a Board member. The Board must understand that Head Ciln
discuss Abetone from the position of a public citizen but not
from the position of a Board member.
Lavagnino introduces case #84-10:
"The applicant is seeking a reversal of the building depart-
ment's decision regarding the following. The building
is a nonconforming structure as it exceeds the FAR requirements
in the C-l zone category. Section 24-3.4 is area and bulk
requirements. Section 24-13.3 (al is no nonconforming
structure may be enlarged or altered in a way which increases
its nonconformity. Applicant appears to also need a variance
to reduce open space. Section 24-3.4, area and bulk."
Sandy Stuller, attorney for the applicant, presented the ca::;e.
An application was submitted to the planning and zoning commission
under the GIIP regulations to expand an existing commercial space
by fel'ler tha!1 1,000 square feet. There is an item in the code
that allows minor expansions if it can be demonstrated there
is no significant impact on the community. That matter \'lent
half way through the deliberations \'lith planning and zoning
commission, 11hen it became apparent that sone people felt there
was an area and bulk question that had to be resolved and should
be resolved prior to deterl'lination by the planning and zoning
commission under the GIIP section. That is vlhy the application
arrived before the Board. Ilhether or not there is a violation
of the area and bulk requirements, a variance Vlhich is I'lithin
the Board's jurisdiction is required. The only consideration
before the planning and zoning commission was whether there
11as a minor expansion of commercial space such that the space
should be exempted from the GI1P competition. The applicant has
to return to the Commission for consideration of the inpacts
on the Gnp compe ti ti on and demonst rate tha t the impa cts are
so small that the applicant should get the benefit of the exemption.
She has a difference of opinion with the building inspector
about whether or not the proposed construction violates the
area and bulk requirenents of the code. The appeal is two
pronged. First, the applicant is appealing a determination that
thi s is an expansion of a nonconf orming use. Secondly, the appl icant
11111 try to argue for a vadance based on the state's statutory
provision which allows the Board to grant variances for the
purpose of providing solar access to solar devices.
With respect to the first issue she articulated a detailed argumc!1t
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RECORD OF PROCEEDINGS
Reqular ~leetinq
Board of Adjustment
June 7. 1984
in the submission of the application dated April 24th. There
is not much to add to that today. She would 1 ike to use the
Board's time this evening for a presentation by P,aul Rubin,
architect for the project second issue. what is being proposed
is an improvement for an access to a solar energy device. If
this can be established, she argues that under the state statutes
the applicant is entitled to a variance for the purpose of con-
str ucting thi s.
Herz asked if the city attorney agrees that the solar statute
exists. EdHards said the first question before the Board is
does Board I'lant to grant the variance; and second, is the improveLlent
for a solar energy device. The statute encourages the dflv.;-
lopment of solar ener:gy use, and the Board of Adjustment may
vary or modify the regulation for the application for the purpose
of considering access to sunlight for solar energy devices.
Rubin, an architect and designer l'lith tHO architectural licenses,
wi th Ron Shorr presented on January 25, 1975, an energy conservation
paper which subsequently led to the pi tl;in County's and ci.ty
of Aspen's adoption of the energy conservation thermal insulation
Chapter 53 of the building code. The first question of the solar
energy application is I'lhether or not access is a probler.l. The
building as exists (he presents a diagram of the solar angles
during different times of the year) allows, for example, for
a loss of 30% sunshine on December 21st and for a loss of 45-
50% sunshine on narch 21st. A solar device would not block access.
Presently any solar gain to the building is lost, this vlOuld
change with a solar device.
The existing building has conservatively a heat loss of 188,000+
btu's per day. Infiltration, which is astronomical given the
sliding glass doors and based on the crack method used in Chapter
53, conservatively contributes an additional 47,000 btu loss.
The btu loss is over 235,000 per day. The present gain on the
45 degree east of south glazing totals 32,250 btu's; and a gain
of 60,900 on the south facade totals 93,000 btu's. There is
a net loss of a 140,000 btu's per day with the present
situation. l'/ith the addition, conservatively, there ~lould be
a net qain of 95,000 btu's or 232,000 btu's per day depending
on the type of solar device installed.
Rubin proceeds to argue the addition is in fact a solar device.
He reported that Stuller had a meeting Iii th the building department
today to determine what is a solar device. Patsy lJellbury's
descripti.on defined an active system not a passive system.
Rubin argued that the proposed system meets all the criteria
of a solar device. The existing building has an air conditioning
system and a heating syst()[;l in the cei.ling. The proposed plan
collects air at the top of the solar structure. The plan meets
the thxee criteria of solar systems defined by the state of
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RECORD OF PROCEEDINGS
Reqular Heetinq
Board of Adiustment
June 7. 1984
Colorado and Department of Energy. There are solar collecting
surfaces and there is ample thermal storage, although the amount
of \1ater, concrete, or rock (the question of mass), needed is
questionable because it is dependent on the load of the building.
The owners who do not desire to serve meals during the daytime
want to dump the mass into rear storage. This is unique and
in some cases is better than putting the mass into frontal storage.
The third element is the plan is mechanical. He can document
that passive systens have been encouraged, they are more efficient
and cheaper. The plan also meets the criteria for an active
solar system.
Rubin addressed "open space" associated with the area to be
enclosed. There is some precedent here. During the \'linter,
the area to be enclosed is an eyesore. The proposal encloses
the area with glass, and results in a more attractive open space.
The owners will agree to covenant the use of the area to the
same four tables which are located there during the summer.
The owners have already reduced the seating capacity in the
restaurant since this project started. There is currently no
access to that space now.
Lavagnino asked for a definition of solar collectors. Rubin
explained the solar collection area is defined in this case
as the area 11ith glass or glazing area. Solar collectors have
to be south facing windows. He reads: "energy collection surfaces
include south-facing glazing and glazing surfaces like glass
or fiber glass; and include windOlls, skylights, trombe 11a11s,
passive or active solar collectors. The south facing windov/
has to be part of thermal nass, for example, a brick floor.
Head asked if the proposal converts a net loss of 200,000 btu's
to a net gain. Rubin said the gain vlould be 100,000 btu' s.
Lavagnino suggested the sliding glass doors be replaced with
a more efficient door. Rubin agreed some of the heat loss would
be reduced but the replacement of the door would never match
the gain achieved by the proposal. The larger question is the
access to sunlight.
Herz asked if the applicant ever appeared before the plann.ing
and zoning commission since his last appearance before the Board.
Rubin explained that the original application was withdrawn
from the Board of Adjustment for the purpose of seeking legal
counsel. There was a question raised by Paul Taddune, city
attorney, as to whether ,the aDplication should ever have been
before the Board. Lavagnino said in the minutes of the previous
case Rubin stated that he wanted to go back to the Commission.
Rubin clarified he ",anted the ability to go back to the Com;aission
or the Board depending upon the results of legal counsel. Rubin
reported that Taddune agreed with the state resolution on solar.
Rubin I2mphasized he wi thc1re,,! the earl ier apP,lication, he did
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RECORD OF PROCEEDINGS
Reqular I~eetinq
Board of Adjustment
June 7. 1984
not request tabling. The application today is a new submission.
Rubin was advised not to go before the Commission but to return
before the Board. Austin remembered that the applicant I'las
to go before the Commission for a determination as to 11hether
or not the area was open space and as to whether or not the
applicant was increasing the FAR. Rubin responded that he was
advised to come back to the Board for a determination on those
issues, and not to go before the Comnission.
Lavagnino asked for an affidavit verifying posting of the public
notice. Rubin did not have an affidavit. Stuller asked Rubin
if he posted the sign for ten days. Rubin replied that sign
was posted for more than ten days. Stuller said an affid'lvit
can be supplied. She argued that as long as the notice l'las
posted the applicant has the right to be here; there is nothing
that says the applicant has to have an affidavit, method of
proof.
Lavagnino opened the public hearing.
Robin I101ny, concerned member of the public, provided some historical
perspective \:0 this application. He Has on the planning and
zoning commission at the time the open space ordinance was passed
and at the time Ordinance 19 was passed. The application can
be separated into two parts: first, whether the applicant has
a hardship; and second, whether the Board has the ability under
state statute to grant a variance based on solar considerations.
But the real question is intent. He read all the minutes ilnd
ordinances pertinent to this case. First, he corrected the
comments on the Aspen Athletic Club made at the previous Board
meeting. The open space of this building was not enclosed;
the open space Has determined to be outside of the building
based Ordinance 19 under I'/hich that building was built; the
arcade was enclosed; and the planting area outside the building
was the designated as the open space.
Prior to and during the adoption and enforcement of Ordinance
19 open space and FAR stipulations were required. Ordinance
19 encouraged the designing of arcades to accommodate height,
arcades offered a different approach to bulk. There is no reference
in Ordinance 19 that open space or floor area ratio could be
altered. Lavagnino thought there Here five pending buildings
Ilhich were exempt from the ordinance and \'lhose owners were allOl'led
to continue with their, applications. Has this building one
of those? Head listed the buildings: the CDSS building, the
RBll building, 620 B. Ilyman building, Durant naIl, and ------
fourplex. I101ny noted that Ordinance 25, which applied to the
620 E. llyman building, stipulated that Ordinance 19 be e:ctended
to require the applicant to comply \lith the existing zoning
code and the district map.
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RECORD OF PROCEEDINGS
Reqular Heetinq
Board of Adjustment
June 7. 1984
Head referred to the Council minutes of llarch 10, 1975. Fleisher
brought in alternate plans which reduced the number of stories
from three to tl-10 and reduced the mass and bulk.' Lavagnino
said at the time the applicant came in with the revised plan
Ordinance 50 vias in effect. Did the new plan negate the ordinances.
Holny replied no. Stuller explained the intent was to conti:lUe
the immunity the applicant had for any changes during the period
from the original application to final building. The new design
did not effect the inmunity. That was the purpose of the second
ordinance. The applicant Hithdrevl the theatre design becanfle
Council would not accept it. Iiolny explained the applicant
vias directed by Council to come back with a nel'l design which
had to comply with all the limitations that Here imposed on
the original design. Head noted both plans had the same amount
of open Spacl", the space had only been distributed differently.
Holny said that is correct. Head therefore assumed that the
basement floor would be considered open space. llolny remarked
there is a reference in the minutes top open space by Mayor
Standley; the mayor wanted to maintain the expanded service
but 1 iked the idea of open space. lwstin rei tera te-d that StandJ. ey
wanted that area to be open space. Lavagnino quoted from the
minutes that Hayor Standley wanted to see and to give more open
space to the project. He also quoted Yank llojo who said that
the only problem Hojo could foresee was lvith the floor area
ratio \'Ihich \'Iould change under the new zoning code. But this
does not apply to the Hyman building because the building was
exempted from it. Iiolny said correct. Drueding said the building
was exempt at that time but when the new code was enacted &he
building became nonconforming.
Molny continued. He disagreed with Colette Penne who at the
first consideration by the Board on Abetone made the case that
the area in question was not open space because it was 10.3
feet deep. The fact that the open space might be 10.3 feet
deep does not negate its open space status. The depth only defines
the space as nonconforming space. In reality the space is 9.5
feet deep. lIe has measured it off the working dral"ings. He
submits Tom \'Jell's final 110rking dra\'lings of the building into
the record. Rubin argued the 10.3 foot figure was obtained
off the building department drm1ings. He also argued that the
10.3 feet is not a reason for determining whether or not this
is open space.
Holny said he also ran calculations fron the drm1ings furnished
by Tom \'Jells on the open space. He con cl uded that the g r 0 s s
open space is 1,585 square feet. The stairs consume 136 square
feet of that. The balance is 1,459 square feet which is noncon-
forming open space, it falls short by 41 square feet. 25% of
6,000 square feet is 1,500 square feet.
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RECORD OF PROCEEDINGS
Reqular Meetinq
Board of Adiustment
June 7. 1984
The bottom line is the intent. It is 1I01ny's opinion that the
floor area ratio in existence n01'1 is t.he floor area ratio that
applies to the existing building. 'rhis building isdefini tely
over its permitted FAR. Drueding noted the allowed FAR is 1:1.
The estimated existing FAR is 1. 83: 1. Hol ny r emar );ed tha tin
the prior application an argument used is that the floor area
allovled then might be applied n0\1. Open space is a requirenent.
He disagrees \'lith the presumption that .3 foot or the obstruction
of a stair allo\1S one to go ahead build in I'lhat, is open space.
He urges the Board to look at the application in light of ti1e
current zoning laws.
Holny continued. The solar question is a problem. Solar enerqy
is in the same category as mom and apple iJie. The Board needs
to look very seriously at the entire solar question. The Board
must determine if the loss of open space and the loss of floor
area ratio is a legitimate tradeoff for the gain made with the
installation of a solar system. He is not sure t.he Board is
qualified to make that evaluation as far as engineering. There
is Rubin's 110rd. The Board needs to question if it is possible
to achieve the solar gain by a differ Gut method. Are there other
types of nighttime insulation solutions for the l'1indol'ls. Is
the nighttime insulation proposed for covering the glass adequate
to prevent extraordinary heat loss? Ans\'lers to these questions
may not be l'1ithin the Board's pervue. The Board may need another
expert opinion besides Rubin's. llolny's experience in using
passive solar architecture, even thouoh it is not as e;;tensive
as Rubin, is that nighttime insulation is very difficult to
get right, partiCUlarly, on a sloping roof surface. It is a
tough question to ans\'ler. He does not oppose the application
on this basis. However, it vlould be unfortunate to intrude
on the existing open space. On a scale from zero to ten he
\'Iould vote 5.5 against. Based on the information presented
so far he would vote against the application.
Rubin addressed the open space issue. The code clearly states
that open space cannot be blocked by appurtenances. The space
must have access. There has never been access to the questioned
space; that is why the area is not open space. The only access
to that space is through the restaurant. The other important
point ic; that there is no docume'ntation that the area in question
\'Ias counted or not counted in FAR or was considered open space.
~'he applicant is not arguing either Hay. IJe discovered the occupancy
load calculations. Clayton lIeyring's original statement is
dubious, he may have counted it. But ther e Has no rea son to.
The accepted evaluation precluded any reason to calculate it.
In the same minutes nayor Standley never refers to the dining
patio when he talks about open space. In the same minutes Johnson
states that the dining patio area should be included in the
FAR. Rubin argued his client is entitled to the benefit of
the doubt. And Stuller strongly points this out in the pres-ant
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RECORD OF PROCEEDINGS
Reqular ~leetinq
Board of Adjustment
June 7. 1984
application. The Board should consider the absence of documentation
and consider the solar advantages.
Lavagnino expressed his concerns. Heat would be gained at the
expense of open space. Ilany businesses vlith requirements of
open space would like to do this. He does not want to use that
as an argument for granting a variance when the applicant has
usurped a more desirable quality, open space, at the expense
of gaining some heat for a building interior for the convenience
of its OImers.
Rubin responded. First, whether it is open space or not is
in question. But secondly, once the 11inter comes the area is
a mess. Here is an opportunity to change that. The applicant
has shown his willingness to covenant the area as a green spa~e
Vlithin a large portion within the glass. He feels very secuce
in the intent of open space, the proposal produces a much better
open'space.
Lavagnino argued if thermal blankets are put on the inside for
nighttime loss, the translucent quali ty is lost. There would
appear solid structure. Rubin said th'2 restaurant is only open
at night. Lavagnino argued that thermal blankets would ha'!e
to be used at night to retain the heat captured during the daytime.
Rubin argued there are numerous ways to do moveable insulatioil.
One way is to locate the insulation at the sliding glass doors.
The bulk of the energy I.,ill be driven by a mechanical system
into the main building. The location of the thermal mass is
still open to question. Once the restaurant closes at 2: 00
a.m. then the space would be totally closed.
Drueding addressed the documentation of the FAR. He submits
to the record again, that the building inspector made calculations
off the plans provided submitted and used the floor area ratio
definition in effect at the time. The inspector calculated
the floor 2.rea ratio and concluded the courtya-rd was not counted
in FAR. Rubin asked \'Iho calculated that. Rubin stated he asked
asked for the calculations many times but Drueding never provided
them. Drueding disagreed. The point is that the definition
of floor area ratio precluded someone fron counting it. If anyone
did co lint it they ~/ere in error because the space is not unCier
a projection or roof. If it vias required under for floor area
at that time, then why did neyring not count it. He reiterated
be called l1eyring, l1eyring did not hav8 count that in the floor
area ratio because the space was an open yard.
Lavagnino asked hOvl Drueding \'lOuld address the argument of the
stairway. Drueding reads a definition of open space: "...shall
be open from the ground up, unobstructed from ground level to
the sky with the exception of permitted architectural projections
above ground level and which space shall not be used for storage,
swimming pools, other recreational areas, trash area, rear access
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RECORD OF PROCEEDINGS
B.eaular Heetinq
Board of Adjustment
June 7. 1984
3rea..." It is assumed front access is allowed. Lavagnino
reads: ". . . open space must be continuous and not obstructed
with building appurtenances and appendages, stairways will be
considered obstructions..." This space is accessed by a stairway
from the sidewalk. Drueding noted the stairway I'las deducted
in the calculations by nolny and the square footage ~laS short
of the open space requirement. Lavagnino reasoned for open
space to be continuous and not obstructed the opeD space must
be attached to the building. If one thinks of this open spi".ce
as extending from the building outward then the stairs are not
an obstruction to the space, the stairs are an obstruction outsice
the continuous space. Rubin replied that space is accessibJ e
only through the restaurant through the sliding glass doorf'.
There has all'lays been a planted area Vlhich obstructed the space.
The access has a1l1ays been through the restaurant. That is W:1Y
coun9ilman Johnson said that the space should have been included
in FAR.
Austin called the developer of the building. She discussed
'"lith him the intent. She reported that he said the area in
question was definitely intended to be open space, there was
a 25% open space requirement, and that area was never included
in the lease vlhen he OImed the building. The oVlner of the space
downstairs agreed to do the improvements on the open space,
for example, the planting, and that vias it. The area viaS not
included in the FAR.
Drueding reported he received a phone call at 11:00 this morning
from Tom Ilells, a local architect. Drueding reported that Wells
said "that he did the building, and he changed the design at
certain points but it was absolutely not counted in FATI, and
it was counted as open space." And that the space Vias nine
:eet in depth. Drueding asked Hells to be here. Although Hells
could not be here \1ells directed him to pass on the conversation
and to quote him.
Hhen Holny last night received the drawings from Hells, Hells
said the same thing to him. But none of these points are relevant.
:ihat is relevant is the fact that the building is no':/ required
to have 25% open space, and it is nOH required to have a 1:1
:loor area ratio. \1hat \'lent down in the past regardless of
~hether the building \'Ias conforming or not, no matter who said
',;hat, I'lhat the record shows is irrelevant. The building has
to be looked at within today's code. Rubin's argument about
the stairs obstruct the space and therefore obviate the open
;;:)ace is not valid; look around tOl1n, look at Hason and Ilorse
and the latest building, Ilill Street Station. It is not a valid
'~rgument. Hhen there is a stairway simply do not count it as
part of the square footage.
"llbin said what is pertinent is that there is no documentation
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RECORD OF PROCEEDINGS
Reqular Heeting
Board of Adjustment
June 7. 1984
on what was included in FAR at the time. If the space is included
in FAR it does not increase the nonconformity. His applicant
has the right by GNP exemption and the right since ~is client
is not increasing the nonconformity to build. There are too
many "maybe's." Rubin said fley ring said he "might" have. Drueoing
responded that he never used the word "might." Rubin argued
the figures were done by evaluation. There is no record that
ShOl'lS the FAR vIas calculated.
Herz said if the applicant could have proved that this space
was included in FAR he would not be here. The Board does have
to use today's codes and standards. The Board has to determine
if the gain in solar heat offsets the loss of open space. The
Board must look at the tradeoff not the open space issue.
Stuller clarifi~d her client's request. The application is coming
up under a different section of the code that allows the Board
to review interpretations by the building inspector's office;
this has nothing to do with establishing grounds for a variance
or practical difficulty at all. She explained when this project
was approved one condition for approval was that this applicant
comply \'lith the FAR regulation thut 11as in existence prior to
the time any changes were made. That FA..R. ratio was 2:1. Hhen
this building was built this area could have been included and
probably 11as included in determining the FAR of the building.
If that is true then her client should be able to enclose the
space without increasing any nonconformity and without a variance.
Lavagnino asked if the open space requirenent would have been
met at that time. Stuller replied there was no condition that
the applicant comply \'lith open space. Open space at that time
was in a hiatus. Stuller argued the only condition Vias that
the applicant not exceed the 2:1 FAR, this was the only condition
that survived all the ordinance changes.
Austin reported that the developer said because of the overlapping
ordinances that the applicant ,could maximize his FAR if the
applicant met the open space requirement. The applicant 1'laG
suppose to offset the FAR with the open space. Drueding said
at the time there were no rules on open space but there were
negotiations bell-lOen the applicant and the Council that Hhatever
\,las built include open space. Council approved a design I'lhich
indicated the area in question as open space.
(Rubin leaves the conference room.)
Holny took issue Idth Stuller. Ordinance
to vary from the open space requirement.
allow one to increase the floor area ratio
decision by the Councilor ComLlission.
there was an exemption f rom Ordinance 19.
16, 1973, cl ei\rly shows that open space
19 di d not all 011 one
Ordinance 19 did not
based on an arbitrary
Stuller argued that
Head noted Ordinance
requirements on all
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RECORD OF PROCEEDINGS
Reqular l1eetinq
Board of Adiustment
June 7. 1984
construction is not less than 25% open space.
ordinances before Ordinance 19.
That l1as three
Barry Edwards, city attorney, said the question is very simple.
Did the applicant prove to the Board's satisfaction by tipping
the scales in the applicant's favor that this area was included
in the FAR? That is the question. Has enough information been
presented to the Board on this question? The other question
is the solar question.
Herz asked if the space is included in FAR then does the applicant
need an exemption for the solar. Edwards replied no. The Board
is being asked to make an interpretation which the building
inspector will then have to follow.
Lavagnino closes the public hearing.
Herz supplied additional information. Herz spoke to the original
lease holder of that restaurant, Tom Rubin, I1ho 110rks for Harz.
It was Tom Rubin's feeling that the SFace was always open space
even though outside dining Has alloued during the sur.lmer. The
applicant has not proven to Herz that the space is not open
space. On the issue of solar gain versus open space, he feels
the area should be open space.
Edwards advised the Board that information gained by members
in their daily lives is good but the members are not entitled
to consider I/hat people, friends or d,"velopers, say about a
particular application outside of the public hearing. The Board's
consideration must be nade on what the applicant and the public
present before the Board today. The consideration cannot be
based on other discussions.
Herz asked if the information shared by his colleagues from
the developer, Tom Hells, etc., needs to be rejected. Eduards
said the Board is sitting and listening to an applicant and
the public discuss the applicant's position. The Board's decision
must be based on that information; the Board should knock the
information out their heads.
Lavagnino noted that on record the information is qualified
as heresay. Lavagnino said this issue should have been brought
up in the public portion of the meeting not in the closed portion.
Herz said strike the information out of the record.
Lavagnino argued the closed portion of the hearing is not part
of the record. It is a free thinking discussion for members.
This discussion has nothing to do with Eduard's Objection.
If heresay Vias part of the motion then yes it '.'lOuld be out of
order. 'rhis discussion is not part of the public record. It
is not part of a formal motion. He asked to be corrected.
15
l""-""
-
/'",,-
.~.../
RECORD OF PROCEEDINGS
Reqular Meetinq
Board of Adjustment
June 7. 1984
Edvards reiterated the Board must only consider what is presented
today at this meeting by the applicant and the public in this
room. The Board members are not allowed to base their findings
today on infornation which the members gathered from other sources.
Lavagnino agreed.
Austin asked
admissible.
pertinent.
how does she make the information from the developer
Are people to be subpoenaed? The ,information is
Edwards again counselled the Board that it is his legal opinion
that the Board not consider information outside vlhat has been
presented to Board today. It is a problem. It is a problem
11ith the court system also. But the issue here is very simple
for the Board. The applicant is here, the public is here, the
Board listens to the information presented, and then the Boc:rd
makes a determination on that basis. Board members calling people
for their thoughts on an application concerns him.
Lavagnino only asks for comments from Board members on how they
are interpreting the information that has been presented before
the Board. Edwards said that is valid.
nann commented on the 1 ist of twelve items incl uded in the Apr 11
24th document presented by the applicant's representative.
The twelve items pertain to the question on the reversal of
the building inspector's deterr.lination that the construction
would be an illegal expansion of a nonconforming use.
Item one is the occupancy load calculations included the space
in question. Item ti'1O is that this was included in the liquor
license application. Item three is commissioner Johnson's statement
at planning and zoning that the space should be included in
floor area ratio. She agrees all these occurred. But she does
not consider those three items as very definitive or persuasive.
Item four is about Ordinance 11, open space and exterior walls.
This is not very definitive either.
Item five is floor area ratio. She quotes from the next to
the last line: "it may have been an open space requirement,
it may have been calculated as floor area by being included
in the base center garcen level..." The Tilayness of the language
weakens the argument.
Item six, the area is clearly not open space because open space
cannot be more than ten feet deep., Facts presented today cast
doubt on this figure. The second part of the item deals I-lith
appurtenances, the stainlays. 'i'here hasbcen considerable discussion
about this.
16
'"
~.~-~~
,,,",
......,
RECORD OF PROCEEDINGS
Reqular neetinc;l
Board of Adjustment
June 7. 1984
Item seven, she agrees the only access to the space is through
the sliding glass doors. That is a definite part of the applicant's
presentation.
Item eight, Gary Esary states that th'" record is unclear. tlo
one can definitely determine that the area was intended to be
included in FAR. And she agrees it still is unclear.
Item nine lists purposes for the FAR including the space: they
will have no more employees, engineering says parking is all
right, the visual impact is not a cc.m',ideration, and the level
of services is not effected. Those all ar ~ fine, but tha tis
not all what open space is about.
Item' eleven, the building is exempted f rom Ordinance 11 and
the granting of this request vlOulc1 not be precedent setting.
That does not impress her.
Item twelve, the construction vlill improve the area in the I'linter
time. She agrees.
In summary, those items do not add up enough in terns of sureness
and clarity to override the intent of FAR. She is firm abOut
supporting the FAR intent. She would not be in favor of the
first request.
Ilith regards to the solar issue, she would like to support solar
energy. She would like to consider there is a tradeoff. perhaps
in the future this tradeoff can be worked out. But she would
not use this as a basis for granting a variance.
Paterson supported Nann's COffiDents. The clear choice is whether
the solar gain of the system overrides the reasons to eliminate
the space. He reels there may be another \'lay to get the solar
element into the building without losing this valuable space.
He is not willing to give up the space for the solar gain.
rlany of the tl-lelve points have been vleakened by today's presen-
tation.
Austin believes the intent of the space is for open space.
She does not want to change the preseilt determination. As far
as the solar issue, just because one puts a roof up, there is
still an open staircase v/hich will all 01'1 ruin I'later to run down
the stairs. The drainage problel.l has not been mentioned or
addressed at all. l,t night the heat loss is at its maxirauLl,
and if thermal curtains are used the openness of the windows
~lill be lost. \Illy cannot the applicant put insulating curtains
on the sliding glass doors that are there now. They are efficient.
Hcrz supports Mann's comments.
17
,.....,
'.,,",,
/ ,
,",_./
RECORD OF PROCEEDINGS
Reqular f.1eeting
Board of Adiustnejlt
June 7. 1984
Lav agni no cannot support the request either. One minor remarl;,
Stuller counted the sidewall as the exterior wall. He has never
known the Board to consider an exterior wall which was not roofed
as part of FAR. He does not like the idea of sacrificing open
space even though the intent of solar energy is admirable. Everyone
can gain more FAR by the same thinking and by infringing on
open space. He considers the area open space based on the evidence
presented today. He is opposed to the variance.
Lavagnino opens the hearing to the public.
Lavagnino entertained a motion.
Ed~lards clarifies the tl-lO requests by the applicant. First,
there is one request for interpretation that this area 11as not
open- space. Secondly, and the alternative request is for a
variance because of the solar device access.
John Herz Tilakes a motion on case 1184-'10 that the Board follOll
the building inspector's determination that this construction
would be an illegal expansion of a nonconforming use; seconded
by l'.nne Austin. Lavagnino requests a roll call vote: lwstin,
aye; I1erz, aye; Lavagnino, aye; Paterson, aye; and Ilann, aye.
All in favor; motion carried.
John Herz makes a motion on case fc84-10 that the Board deny
a variance to construct the improvements under the authority
to do the same for the purpose of incorporating a solar energy
device in the existing structure; seconded by Josephine llann.
Lavagnino requests a roll call vote: Austin, aye; Herz, aye;
Lavagnino, aye; Paterson, aye; and Ilann, aye. All in favor;
motion carried.
Ed\1ards scheduled a meeting I'lith the Board to discuss the difference
between a "closed hearing" and "executive session" at 3:30 p.m.,
on June 14, 1984. Lavagnino raised the Poppies issue: the Board
made a mistake in not allowing the public to participate in
that meeting. Internally what happened created greater seating
capacity. In the first set of minutes on this case there was
reference to a concern about the parking at the restaurant.
The seating does increase the parking ;?roblem. The Board did
not allow the public to be heard in that arena. Ilolny reiterated
the original variance specifically stipulated that there could
be no increase in the seating capacity. Lavagnino replied the
Board knew that but did not know why. Edwardn 110uld give his
thoughts on that issue at the next premeeting date.
Edwards egplained that Board
body. The Board is making
brought before the Board.
members sit here as a quasi-judicial
a determination based on what in
It is inappropriate for members to
18
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CITY C)F~'ASPEN
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130soutl1 galena sheet
aspen, tolorado 81611
303-925. ~2020
.
AGE N D A
'BOARD OF ZONING ADJUSTMENT
FEBRUARY 9, 1984
CITY COUNCIL CHAMBERS
4:00 P.M.
L
Minutes
II.
Cot ~4\-~
Case #84-2, Abetone Ristorante t::' Pl'5 A~Jl
W~hdn'~^, ~'
Case #84-1, ~ohn Doremus
III.
IV.
Adjourn
"Th 1 24 -11.1 ZONING § 24 -1I2
(b) Within all zone districts, thirty -five (35) lodge units;
(c) Within the CC and C -1 zone districts, ten thousand (10,000)
square feet of commercial and office space;
(d) Within the NC and SCI zone districts, seven thousand
(7,000) square feet of commercial and office space;
(e) Within the 0 zone district, four thousand (4,000) square —
feet of commercial and office space; and
(0 Within the CL and all other zone districts, three thousand
(3,000) square feet of commercial and office space;
provided that these maximums may be deviated from under
those conditions specified in section 24- 11.3(a). No construc-
tion, except for that described in section 24 -11.2, shall pro-
ceed until the project shall have been awarded a development
allotment pursuant to the provisions of this article. (Ord.
No. 48- 1977, § 1; Ord. No. 16 -1980, § 5; Ord. No. 26 -1982, § 1)
Sec. 24 -11.2. Exemptions.
The following development activity shall be exempted from
complying with the allotment procedures hereinafter provided
for, subject to the review of the planning and zoning commission
and/or the Aspen City Council where it is so specifically indicated:
(a) The remodeling, restoration or reconstruction of any build-
ing existing as of November 14, 1977, provided there is no
expansion of commercial floor area nor creation of addi-
tional dwelling units. Applicants proposing to demolish
and then delay the reconstruction of a building shall be
required to verify the commercial floor area and/or num-
ber of dwelling units which comprise the building to be
demolished, and shall be limited to reconstruction of no
more than the verified total within five (5) years of the
date of demolition. Any building which is demolished shall
be limited to reconstruction on the same site or on a con-
tiguous site owned by the same individual. Applicants pro-
posing to demolish single - family or duplex units may verify
the number of units to be demolished through an applica-
tion for a demolition permit through the building depart -
Supp. No. 27
1508.8.1
24 -11.2 ASPEN CODE 4 24-11.2
ment. Applications to verify the number of units contained
within a multifamily or lodge use, or to verify the commer-
cial square footage of an existing building shall be submit-
ted to the planning office and building department so that
a record of -- -at which is to be demolished can be estab-
lished. Failure to verify the existing number of dwelling
units and/or commercial square footage prior to their de-
molition shall result in the loss of credit for their recon-
struction.
(b) The enlargement of, or change of use in a structure which
has received individual historic designation.
(c) The construction of one single - family or duplex structure
on townsite lots or lot subdivided prior to November 14,
1977.
(d) The construction of one single - family residence on a lot
subdivided after November 14, 1977, where the following
conditions are met:
(1) The tract of land which was subdivided had a preexist-
ing dwelling unit;
(2) No more than two (2) lots were created by the subdivision.
(e) All construction of essential governmental projects other
than housing, subject to the special approval of the city
council upon the recommendation of the planning and zon-
ing commission. To be eligible for said exemption, the
applicant shall be required to document that the impacts
of the project will be mitigated, including the employee
housing generation, parking demand and the basic service
provision.
(f) All employee housing units deed restricted in accordance
with the city's adopted employee housing guidelines which
are constructed pursuant to the residential, commercial
and lodge development allotment procedures or pursuant
to the density bonus provisions of this Code, and all units
constructed as part of a pure employee housing project
(that is, one containing all deed restricted and no free
market housing development) subject to the special approval
of the city council, based on the recommendation of the
Supp. No. 27 1508.8.2
24 -11.2 ZONING 4 24 -11.2
planning and zoning commission. The review of any re-
quest for exemption of units from the development allot-
ment procedures shall include a determination of commu-
nity need considering, but not limited to, the project's com-
pliance with any adopted housing plan, including the num-
ber of units proposed and their location and the type of
units proposed, specifically regarding the number of bed-
rooms in each unit and the size of the unit, the rental /sale
mix of the development and the proposed price categories
to which the units are to be deed restricted.
(g) All residential dwelling units constructed in a mixed free
market/deed restricted housing project wherein at Least
seventy (70) percent of the units are constructed and deed
restricted in accordance with the city's adopted employee
housing guidelines (in projects where seventy (70) percent
represents proportions of units, from 0 to .49 are rounded
down, .5 to .99 are rounded up to the next whole dwelling
unit), subject to the special approval of the city council,
based upon the recommendation of the planning and zon-
ing commission which approval shall include a determina-
• tion of community need considering, but not limited to, the
project's compliance with any adopted housing plan, spe-
cifically the number of units to be constructed, unit type,
unit mix, the rental /sale mix of the development, the pro-
posed price and rental categories. Applicants are recom-
mended to submit an application wherein there is main-
tained an average of one and one -half (1') to two (2) bedrooms
per unit within the deed restricted portion of the project (a
studio shall be considered a three - quarter bedroom) and
where at least fifty (50) percent of the residential floor area
is devoted to deed restricted units.
(h) The expansion of an existing commercial or office use in a
building by not more than five hundred (500) square feet,
excluding employee housing, for the purposes of providing
a small addition of space which can be shown to have
minimal or manageable impact upon the community and
can be justified by the benefit which will accrue to the
community. For expansions which involve less than two
Supp. No. 27 1508.8.3
§ 24-11.2 ASPEN CODE p 24 -11.2
hundred fifty (250) square feet and are for the purposes of
providing space which is accessory to or incidental to the
principal use, such as mechanical, storage, corridors and
stairs, the expansion shall be approved jointly by the plan-
ning director and the chief building inspector. For expan-
sions which involve any request for commercial or office
space, or which involve expansions of any type of space of
two hundred fifty (250) to five hundred (500) square feet,
the expansion shall be subject to the special review of the
planning and zoning commission. The review of any re-
quest for the expansion of an existing commercial or office
use shall include a determination of minimal or manage-
able impact on the community, considering but not limited
to findings that a minimal number of additional employees
will be generated by the expansion or the applicant will
provide additional employee housing; that a minimal amount
of additional parking demand will be created or that park-
ing can be accommodated on site; that there will be mini-
mal visual impact on the neighborhood due to the project;
and that minimal new demand is placed on services avail-
able at the site such as water, sewer, roads, drainage and
fire protection. Applications for expansion shall be limited
to a maximum cumulative commercial addition of five hun-
dred (500) square feet within any building in the City of
Aspen, provided that the planning commission shall eval-
uate the cumulative impact of the entire expansion as a
whole.
(i) All development not limited by the provisions of section
24 -11.1.
Provided that the building inspector shall report to the plan-
ning office each month the amount of construction and demoli-
tion of residential and lodge dwelling units and commercial and
office square footage exempted from complying with the devel-
opment allotment procedures hereinafter provided for which has
received building permits. The planning office shall compile these
monthly reports on an annual basis, providing a report summa -
rizing the amount of exempted construction and demolition of
' residential and lodge dwelling units and commercial and office
square footage which has received building permits during the
Supp. No. 27 1508.8.4
1
4 24 -11.2 ZONING 9 24 -11.3
twelve (12) months prior to the date of submission of applications
for development allotments. It shall be the purpose of the report
to summarize the amount of construction which shall be deducted
from the quota of allowable development in succeeding years.
The planning office shall also add any allotments which have
been rescinded or have expired to the quota of allowable devel-
opment in succeeding years. Any expansion of commercial or
office uses which does not increase the computation of floor area
for a building shall not be deducted from the quota of allowable
development in succeeding years. (Ord. No. 48 -1977, § 1; Ord. No.
3 -1978, §§ 1, 2; Ord. No. 3 -1979, § 1; Ord. No. 4 -1980, § 1; Ord.
No. 16 -1980, § 5; Ord. No. 20 -1980, § 1; Ord. No. 8 -1981, § 1; Ord.
No. 69 -1981, § 1; Ord. No. 53 -1982, § 1)
Sec. 24 -11.3. General provisions.
(a) In awarding development allotments in any given
year, the city council may authorize construction in excess
of the maximum number of dwelling units, lodge units or
commercial or office square footage specified in section
24 -11.1 by as much as twenty (20) per cent for dwelling units,
twenty -five (25) per cent for commercial and office square
footage and thirty -three (33) per cent for lodging units (all
to be rounded up to the next whole number) ; provided that
any such excess development be off -set by reduction in suc-
cessive years such that every fifth year the total construc-
tion within the previous five (5) years shall not be in excess
of the cumulative total permitted by section 24 -11.1.
(b) The city council may (but need not) grant a develop-
ment allotment for an entire project to be constructed over
a period of years provided that each year during the sched-
uled construction the annual allotment provided for in sec-
tion 24 -11.1 shall be reduced by the amount of construction
permitted by the approval.
(c) The planning office shall reject any application for de-
velopment allotment which fails to:
(1) Satisfy minimum utility or access requirements,
(2) Comply with any approved master plan for the de-
velopment area, or
Supp. No. 27 1508.9
I'�
§ 24 -11.2 ASPEN CODE § 24 -11.2
ment. Applications to verify the number of units contained
within a multifamily or lodge use, or to verify the commer-
cial square footage of an existing building shall be submit-
ted to the planning office and building department so that
a record of " -at .vhich is to be demolished can be estab-
lished. Failure to verify the existing number of dwelling
units and/or commercial square footage prior to their de-
molition shall result in the loss of credit for their recon-
struction.
(b) The enlargement of, or change of use in a structure which
has received individual historic designation.
(c) The construction of one single - family or duplex structure
on townsite lots or lot subdivided prior to November 14,
1977.
(d) The construction of one single - family residence on a lot
subdivided after November 14, 1977, where the following
conditions are met:
(1) The tract of land which was subdivided had a preexist-
ing dwelling unit;
(2) No more than two (2) lots were created by the subdivision.
(e) All construction of essential governmental projects other
than housing, subject to the special approval of the city
council upon the recommendation of the planning and zon-
ing commission. To be eligible for said exemption, the
applicant shall be required to document that the impacts
of the project will be mitigated, including the employee
housing generation, parking demand and the basic service
provision.
(0 All employee housing units deed restricted in accordance
with the city's adopted employee housing guidelines which
are constructed pursuant to the residential, commercial
and lodge development allotment procedures or pursuant
to the density bonus provisions of this Code, and all units
constructed as part of a pure employee housing project
(that is, one containing all deed restricted and no free
• market housing development) subject to the special approval
of the city council, based on the recommendation of the
Supp. No. 27 1508.8.2
6
4 24 -11.2 ZONING S 24 -11.2
planning and zoning commission. The review of any re-
quest for exemption of units from the development allot-
ment procedures shall include a determination of commu-
nity need considering, but not limited to, the project's com-
pliance with any adopted housing plan, including the num-
ber of units proposed and their location and the type of
units proposed, specifically regarding the number of bed-
rooms in each unit and the size of the unit, the rental /sale
mix of the development and the proposed price categories
to which the units are to be deed restricted.
(g) All residential dwelling units constructed in a mixed free
market/deed restricted housing project wherein at least
seventy (70) percent of the units are constructed and deed
restricted in accordance with the city's adopted employee
housing guidelines (in projects where seventy (70) percent
represents proportions of units, from 0 to .49 are rounded
down, .5 to .99 are rounded up to the next whole dwelling
unit), subject to the special approval of the city council,
based upon the recommendation of the planning and zon-
ing commission which approval shall include a determina-
• tion of community need considering, but not limited to, the
project's compliance with any adopted housing plan, spe-
cifically the number of units to be constructed, unit type,
unit mix, the rental /sale mix of the development, the pro-
posed price and rental categories. Applicants are recom-
mended to submit an application wherein there is main-
tained an average of one and one -half (11/2) to two (2) bedrooms
per unit within the deed restricted portion of the project (a
studio shall be considered a three - quarter bedroom) and .
where at least fifty (50) percent of the residential floor area
is devoted to deed restricted units.
(h) The expansion of an existing commercial or office use in a
building by not more than five hundred (500) square feet,
excluding employee housing, for the purposes of providing
a small addition of space which can be shown to have
minimal or manageable impact upon the community and
can be justified by the benefit which will accrue to the
community. For expansions which involve less than two
Supp. No. 27 1508.8.3
I
1
4 24 -11.2 ASPEN CODE 4 24 -11.2
hundred fifty (250) square feet and are for the purposes of
providing space which is accessory to or incidental to the
principal use, such as mechanical, storage, corridors and
stairs, the expansion shall be approved jointly by the plan-
ning director and the chief building inspector. For expan-
sions which involve any request for commercial or office
space, or which involve expansions of any type of space of
two hundred fifty (250) to five hundred (500) square feet,
the expansion shall be subject to the special review of the
planning and zoning commission. The review of any re-
quest for the expansion of an existing commercial or office
use shall include a determination of minimal or manage-
able impact on the community, considering but not limited
to findings that a minimal number of additional employees
will be generated by the expansion or the applicant will
provide additional employee housing; that a minimal amount
of additional parking demand will be created or that park-
ing can be accommodated on site; that there will be mini-
mal visual impact on the neighborhood due to the project;
and that minimal new demand is placed on services avail-
able at the site such as water, sewer, roads, drainage and
fire protection. Applications for expansion shall be limited
to a maximum cumulative commercial addition of five hun-
dred (500) square feet within any building in the City of
Aspen, provided that the planning commission shall eval-
uate the cumulative impact of the entire expansion as a
whole.
(i) All development not limited by the provisions of section
24 -11.1.
Provided that the building inspector shall report to the plan-
ning office each month the amount of construction and demoli-
tion of residential and lodge dwelling units and commercial and
office square footage exempted from complying with the devel-
opment allotment procedures hereinafter provided for which has
received building permits. The planning office shall compile these
monthly reports on an annual basis, providing a report summa-
rizing the amount of exempted construction and demolition of
residential and lodge dwelling units and commercial and office
square footage which has received building permits during the
Supp. No. 27 1508.8.4
§ 24 -11.2 ZONING - § 24 -11.3
twelve (12) months prior to the date of submission of applications
for development allotments. It shall be the purpose of the report
to summarize the amount of construction which shall be deducted
from the quota of allowable development in succeeding years.
The planning office shall also add any allotments which have
been rescinded or have expired to the quota of allowable devel-
opment in succeeding years. Any expansion of commercial or
office uses which does not increase the computation of floor area
for a building shall not be deducted from the quota of allowable
development in succeeding years. (Ord. No. 48 -1977, § 1; Ord. No.
3 -1978, §§ 1, 2; Ord. No. 3 -1979, § 1; Ord. No. 4 -1980, § 1; Ord.
No. 16 -1980, § 5; Ord. No. 20 -1980, § 1; Ord. No. 8 -1981, § 1; Ord.
No. 69 -1981, § 1; Ord. No. 53 -1982, § 1)
Sec. 24 -11.3. General provisions.
(a) In awarding development allotments in any given
year, the city council may authorize construction in excess
of the maximum number of dwelling units, lodge units or
commercial or office square footage specified in section
24 -11.1 by as much as twenty (20) per cent for dwelling units,
twenty -five (25) per cent for commercial and office square
footage and thirty -three (33) per cent for lodging units (all
to be rounded up to the next whole number) ; provided that
any such excess development be off -set by reduction in suc-
cessive years such that every fifth year the total construc-
tion within the previous five (5) years shall not be in excess
of the cumulative total permitted by section 24 -11.1.
(b) The city council may (but need not) grant a develop-
ment allotment for an entire project to be constructed over
a period of years provided that each year during the sched-
uled construction the annual allotment provided for in sec-
tion 24 -11.1 shall be reduced by the amount of construction
permitted by the approval.
(c) The planning office shall reject any application for de-
velopment allotment which fails to:
(1) Satisfy minimum utility or access requirements,
(2) Comply with any approved master plan for the de-
velopment area, or
Supp. No. 27 1508.9
i
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CASELOAD SUMMARY SHEET
City of Aspen
"-
No.60- 93-
Staff: ('f
PROJECT NAME: flWmr - GmP ~ phfSY\!SOf(IJ I1UlR.W
I
APPLICANT: )nill"} SUfiS l'wiJP 'frmQnno rr1o..sln', Phone: '1(16- (..J_4~
REPRESENTATIVE: 1hJ 1(0 b~ ( ccrdlLkcf ') Phone: 1 d.. 7 - 3b 3(,
TYPE OF APPLICATION:
I. GMP/SUBDIVISION/PUD (4 step)
(Fee)
1. Conceptual Submission
($1,840)
($1,120)
($ 560)
2. Preliminary Plat
3. Final Plat
II. SUBDIVISION/PUD (4 step)
1. Conceptual Submission
2. Preliminary Plat
($1,290)
($ 830)
($ 560)
($1 ,OlD)
($ 465)
3. Final Plat
i
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X
'f..
III. EXCEPTION/EXEMPTION/REZONING (2 step)
IV. SPECIAL REVIEW (1 step)
1. Special Review
2. Use Determination
3. Conditional Use
REFERRALS:
Date Referred:
Attorney
Engineering Dept.
Sanitation District
Schoo 1 Di s tri ct
Mounta i n Be 11
Rocky Mtn. Nat.Gas
Housing
Water
Pa rks
State Hgwy. Dept.
Fire Chief
Holy Cross Electric
City Electric
Fire Marshall/Building Dept.
Other
,
'.-'-
FINAL ROUTING:
~neY
LBuilding
Date Routed: 6/P/E'-/g,J
d
Engineering
Other
)
v/
.
.
.
,.-/"-
'(
~
'........-
DISPOSITION:
CITY P&Z REVIEW: JDh8 ~.3, I.
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CITY COUNCIL REVIEW:
Ordinance No.
CITY P&Z REVIEW:
CITY COUNCIL REVIEW:
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Ordinance No.
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C T T Y 0 F ASP E N
BOARD OF ADJUSTMENT
June 7, 1984
City Council Chambers
4:00 p.m.
AGENDA
I. Minutes
March 29, 1984
April 19, 1984
May 3, 1984
May 24, 1984
II. Old Business
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A. Case #84-9, Ronald and Shirley Nunn
B.. Case #84-8, Wally Burke
C. Case #84-l0/rlbetone Ristorante
New Business
A. Case #84-11/Mill Street Plaza
IV. Adjournment
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Next regular meeting scheduled for June 14, 1984
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Il MAY ~ 1984 '
ASPEN / PITKIN CO,
PlANNING OFFICE
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CW&H p,o. BOX 11748 ASPEN, COWRADO 81612 (303) 925,6256 '
May 23, 1984
The Board of Adjustments
Ci ty of Aspen
130 South Galena
Aspen, CO 81611
RE: Aspen Grove Building Signage
a~&H representing Wally Burke
Dear Sirs:
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At the May 3, 1984 Board of Adjustments meetin.g it was decided by
board members to request a complete review of signage on the Aspen
Grove Building before granting a variance on the application pending
for the two generic directional signs. Review date for the above
was set for May 24, 1984 at 4PM.
We have been notified that our client, Wally Burke, will not be
returning to Aspen lllltil some time in July 1984. We therefore
request a postponement of this review sessionill1til your first
meeting in August 1984.
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WOTICE OF PUBLIC HEARING
Case No. 84-11
BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT
TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE
DESCRIBED BELOW:
Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a
public hearing will be held in the Council Room, City Hall, Aspen, Colo-
rado, (or at such other place as the meeting may be then adjourned).to
consider an application filed with the said Board of Adjustment requesting
authority for variance from the provisions of the Zoning Ordinanee, Chapter
24, Official Code of Aspen. All persons affected by the proposed variance
are invited to appear and state their views, protests or objections. If
you cannot appear personally at such meeting, then you are urged to state.
yo~views by letter, particularly if you have objection to such varianee,
as the Board of Adjustment will give serious consideration to the opinions
of surrounding property owners and others affected in deciding whether to
grant or deny the request for variance.
The particulars of the hearing and of the requested variance are as follows:
Date and Time of Meeting:
Date:
Time:
, Thursday, June 7, 1984
4:00 p.m.
Name and
address of Applicant for Variance:
Owners: Anthony J. Mazza and Frank J. Woods
Mill street Plaza
205 South Mill Street
Aspen, Colora?o 81611
Location or description of property:
Name:
Address:
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Variance Requested: The applicant placed the signs without a building department
permit. The signs exceed the allowable signage by an undertermined amount: in
the CC zone, Section 24-5.10(A) (2), business advertising or identification
signs.
continued below......
Duration of Variance:
Location: L~ts D,E,F,G,H
D ' . . CJ.ty of Aspen
escrl.ptJ.on:
and I, Block 81
(Please cross out one)
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THE CITY OF ASPEN BOARD OF ADJUSTMENT
BY Remo Lavagnino, Chairman
Barbara Norris, Deputy City Clerk
Variance Requested, continued:
The aggregate sign area permitted along anyone street shall not exceed one
square foot of sign ared for each three (3) feet of lot line frontage by or
projected from the building within which the principal use is conducted.
The applicant appears to be"requesting an underterreined amount of excess signage
as well, to allow stores without the required lot line, frontage right to street
level, sign.
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J\PPEtUdlT Mill' Street 'Plaza".. :,,_ADDnESS 206 South Milt Street,' Aspen
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Frank J. Woods, III
AODRESS 434 East Cooper, Aspen,
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lStree~ & ~umber of Sub~jvjsion Blk.' & Lot No.)
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Building Permit'Application and prints or any other pertinent
.~ ~ata must accompany this application. and will be made part of
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RETURN THIS,APP(ICATION IF IT DOES NOT CONTAIN
ilL( THE FACTS IN QUESTION. ".
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DEstRIPTIOil GF PROPOSED EXCEPTION SHOHING JUSTIFICATIOllS:
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. ~he" de;'cription 'arid' propcis'ed exception' is ,to. pernii t.: '. .
sig'ns in excess of one. ~tiare foor'. (1 f/J," ') 'per. th'ree .
lineal feet (3' j of lot line, and also t.o permit .
_ signage to beulsplayed for shops and/or' rest~urants
which are not on. s{;1"eet. level,' namel'y, niile (9), .shops
apd.restaurants in the plaza'level'with three more
contemplated, and a gym and restaurant on'the upstairs
level' of the Mill Street Plaza. This application wil~
further r.equest that the plaza level and.the upsta~rs
level of the MB:l' Street Pla:2;a be computed 'in' terms of
the permissible sQuare fostage of signageon the Mill
Street Plaza bu'il'cl,ing, It 'is requested that ,Applicant
be permitted to keep the signs at Mill S reetas they
;,gpjil~'S~t:lt~d'~tcoullsel ? Yes ....
SIGIIE
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PROVISIONS OF THE ZONING ORDIN;'.;;CE
TO 'ORWARD T~IS APPLICATION TO THE
FOR NOT GRANTING:
REQUIRING THE BUI I~G INSPECTOR
BOARD OF ADJUSTMENT AND REASON
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. ~e applicant plac'ed .the' signs Withollt a B~-ildin~; D~;;r.tment permit, 'The~igtis ", '1
eltc.eed the, .allowabl~ signage by an undetermined ,amou'.'t:: In, the CC zone, Section 24-5 ..lO(A) (2) i
. '.,Busi!le.ss'Ad.v~rti~ing 0: i~entif~ca.tio!!.s~gris. ," .:. ....:. .' ...... ," "",.'. . .,.."',.. (\_
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. The'aggr~'at~ sj,gn an~;a ~ermitted "lortg -,,_ny ~ne'street shall 'n6f exceed 'one sq~ar",' i
fO'lt ,of s~gn area fO,r e.a,ch three {3). feet. of lot ~ine frontage::by or projected from '. I
the building. within which .the. principal use. is .conducted. . .. , I
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'The" appli"cant "appears to be requesting an<l! undeterrnin~d amount ~f exces's :.sigJ'lage' as .'
well,:~o. allow storeswithout. the required lot, line,,'fr.op~age (l!;" right;to street level
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rfRHIT REJECTED. DATE, ~~3\~DrcIsjoN
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ArrLIC^110~ FILED
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the Mill Street Plaza
c/o Anthony J. Mazza
434 East Cooper Avenue
Aspen, Colorado 81611
(303) 925-8648
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May -1, 1984
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William L. Drueding
Zoning Enforcement Officer
Aspen/Pitkin Regional Bldg. Dept.
506 East Main Street
Aspen, CO 81611
Re: Mill Street Plaza signs
Dear Mr. D~ueding:
Enclosed please find original plus eight copies
of an appeal to the Board of Adjustment re signs at
the Mill Street Plaza plus $10.00 for filing fee and
list of adjoining property owners.
I will be on vacation until the end of May and
would request a hearing date in early June.
Thank you for your courtesy and cooperation.
Very truly yours,
MILL STREET PLAZA ASSOCIATES
AJM/og
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A~Ju,.a!Jrw(J ~ '
Managing Partner
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SIGN VARIANCE
The description and proposed exception is to permit
signs in excess of one square foot (1 l<l') per three
lineal feet (3') of lot line, and also to permit
signage to be displayed for shops and/or restaurants
which are not on street level, namely, nine (9) shops
and restaurants in the plaza level with three more
contemplated, and a gym and restaurant on the upstairs
level of the Mill Street Plaza. This application will
further request that the plaza level and the upstairs
level of the Mill Street Plaza be computed in terms of
the permissible square footage of sign age on the Mill
Street Plaza building, It is requested that Applicant
be permitted to keep the signs at Mill Street as they
presently exist.
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MILL STREET PI,AZA
List of neighboring property owners
Ferenc Berko
M&W Associates
City of Aspen - c/o Wheeler Opera House
Mother Lode - c/o Gordon Whitmer
Bank of Aspen - c/o Ron Garfield
Boise Cvscade
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tne Mill Street Plaza -,
c/o Anthony J, Mazza
434 East Cooper Avenue
Aspen, Colorado 81611
(303) 925-8648
May 3, 1984
List of neighboring propertv owners
Ferenc Berko
309 East Hopkins
Aspen, CO 81611
M&W Associates
400 East Hopkins
Aspen, CO 81611
City of Aspen
c/o Wheeler Opera House
328 East Hyman Avenue
Aspen, CO 81611
Mother Lode Restaurant
c/o Gordon Whitmer
314 East Hyman Avenue
Aspen, CO 81611
Bank of Aspen
c/o Ron Garfield
601 East Hyman
Aspen, CO 81611
Boise Cascade
d/b/a Aspen Hardware & Supply
204 South Mill
Aspen, CO 81611
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March 5, 1984
MEMO
Attention: Aspen Planning and Zoning Commission
The Board of Adjustment on February 9, 1984, de-
liberated case #84-2/Abetone Ristorante. The Board
moved to distribute copies of the minutes of that
case to the planning and zoning commission after
lengthy discussion of the case and after the appli-
cant requested to withdraw the application.
Attached please find a copy of those minutes.
Thank you,
1}1"w4t~
Barbara Norris
Deputy City Clerk
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RECORD OF PROCEEDINGS
100 Leaves
fORfll" C, r. ~OrCIC{L ~. B. O!. ~. C,l.
Regular Meeting
Board of Zoning Adjustment
February 9, 1984
vice Chairman Francis Whitaker called the meeting to order at 4:05 p.m. with
members Charles Paterson, Josephine Mann, John Herz, Rick Head, and Anne
Austin, alternate, present.
MINUTES
Charles Paterson moved to approve the minutes of January 19, 1984; seconded
by Rick Head. All in favor, motion carried.
CASE i84-1/JOHN DOREMUS
J.D. Muller, attorney for the applicant, summarized what he asked Barry
Edwards, city attorney, to include in the document. Muller requested that
the Board of Adjustment, in addition to granting the variance for the strip,
determine that the the transfer of the strip to the adjacent landowner
would not be a subdivision. That when so transferred, it would not cause
the lot that is left, namely Mr. Doremus', to be nonconforming under the
minimum lot size. And would not affect the FAR or any other zoning or
subdivision regulation. The city attorney requested that Muller provide
some historical information as to whether or not the Board properly should
exercise jurisdiction in making determiniations about subdivisions.
Edwards told Muller it was not appropriate for the Board to exercise such
authority. Muller requested that the Board not follow his advice. Exercise
jurisdiction. In addition to the varianee granted, Muller requested the
Board grant the applicant the right to divide the strip off without having
to go through any subdivision. When so divided the strip would be so small
as to not affect the minimum lot size, which would bring the applicant a
few feet below minimum lot size or the FAR.
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Edwards commented that what Muller is asking to do has a practical result.
It is good. It is unfortunate that the Board of Adjustment has not been
given the authority to deal with this problem. Edwards presented some
historical information about the Board of Adjustment. Since the early days,
the Board was authorized to grant variances from the requirements of the
zoning laws. The zoniilg laws were in existence from the earliest days of
land use planning. The Board dealt with uses and setbacks. In the late
1960's, there was a movement throughout the country to deal with subdivision.
Aspen's regulations for subdivisions came into effect in 1969, long after
the Board of Adjustment had been set up and granted jurisdiction. The
Board was not given the right to subaivide property. That is a separate
process, it must go before the planning and zoning commission and the city
council. Muller is asking the Board to agree with him, whether it is a
separate process or not. Muller argues that the Board, because it deals with
zoning laws, ought to be able to grant a subdivision without requiring the
applicant to go through the subdivision regulation process. Edwards adamantl~
advised against that. The Board has no authority to deal with the subdivi-
sion.
Can the Board consider this matter to be de minimis and not affect any
other determinations under the zoning laws. Edwards said it is too early
for the Board to determine, if, in the future, this strip is divided out
by plat action, by settlement of the dispute, or by subdivision exception,
to make that lot conforming even though the effect of this would make the
lot less than 6,000 square feet.
Edwards advised Muller of the city attorney's position. The Board
does not have the authority to grant subdivisions. First, the applicant
has to go through the exception process before the P&Z and/or city council.
Second, it is premature for the Board to determine a conformity question
which does not even exist at this point. ~0day, Doremus is the owner of
the seven inch strip. Today the lot conforms. There is 6,000 square feet.
He advlsed the Board to grant the setback variance. The resolution does
not grant the subdivision or the premature nonconformity, it takes care of
Reo;gular Meeting
.. Hoard of Zoning AdjusLm','nt,
-February 9, 1984
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of the setback variance.
Muller questioned what is the Board's jurisdiction in the codes under zoning
laws, what does it mean. Does it include subdivision or not. Muller dis-
agrees with Edwards. Does the jurisdiction tu make determinations unde~
the zoning laws include the jurisdiction to determine that something is
too small to be considered a subdivision within the meaning of the code.
Muller asked if the Board declines to exercise jurisdiction, at what point
would it be timely to come in and request determination on the minimmn
lot size and FAR. At the time a suit was filen or at the time of final judge-
ment under the suit.
Edwards answered until the lot is nonconforming, there is no use to come
before the Board and ask for relief for the nonconformity. The lot is con-
forming. Its status will not change until SOl,leone conveys a piece of it
or it is ordered to be conveyed by court. A subdivision either has to be
affected, or, there has to be some order in the court which makes the lot
nonconforming. It would then be appropriate to come before the Board.
Whitaker asked Bill Drueding, building department, if he had any questions.
Drueding said no.
Whitaker said he is inclined to take the advice of the city attorney. Dur-
ing his years on the Board of Adjustment, he did not recall the Board ever
ruling on a subdivision. He advised the applicant that there is other
administrative relief and it should be sought.
Muller presented the resolution which recited the setback variance request
to the Board.
Edwards noted this is a difficult situation John Doremus, applicant, said
there is no way to remedy the problem without a lawsuit. That is counter
productive. Whitaker agreed, but at the same time he would be poorly
advised to go against counsel.
Prefaced by he is not asking for a commitment which the Board cannot give
in advance, Muller asked should it happen that one proceeds with a suit
and a judgement is reached, and obviously the applicant is not the one pro-
ceeding, he will be sued, would the Board be inclined at that point to
consider a variance from the FAR and the minimum lot size. Whitaker answered
the Board should not give an advance opinion.
Anne Austin asked with the 6" variance that '>las basically agreed upon last
week, where does the lawsuit come in. If the Board grants the variance,
is that not a general lot variance. Muller explained the variance is
appropriate because there is a building encroaching on the land the appli-
cant owns. If Clark brings a lawsuit he takes the land. The applicant then
has less land. That is the basis for the setback, there is obstruction.
Clark can take that land by adverse possession. The applicant loses the
land. The lot is currently 6,000 square feet. Then the applicant loses
his minimum lot size. FAR is lost.
Rick Head asked what is the aggregate of that land that the applicant would
lose. Doremus answered it is 44'x6" which is 22 square feet. Muller
said the minimum lot size is the problem. Head said the loss would make
the lot nonconforming. Muller said yes.
Whitaker asked why there need be a lawsuit. Is the encroachment lost to
the applicant and gained by the other party through adverse possession. Muller
said the applicant does not admit that. It is a contested memory between
two people as to whether it is fifteen or eighteen years. Doremus said
he wants to give Clark a use easement, but that is against the law. Muller
said it has been interpreted as a subdivision and the applicant cannot
give it to Clark.
Rick Head stepped fown from this case (reasons explained at the January 19,
1984, meeting).
Charles Paterson moved to
Whitaker asked for a roll
Herz aye; and Austin aye.
adopt Resolution 84-,1; seconded by John Herz.
call vote. Paterson aye; Mann aye; Whitaker aye;
All in favor, motion carried.
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RECORD OF PROCEEDII'IGS 100 Leaves
'OIIM'I c.~. "(}rC~[l 8. &. & L. C,l.
Regular Meeting
Board of Zoning Adjustment
February 9, 1984
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CASE #84-2/ABETONE RISTORANTE
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Head said he spoke with Paul Taddune, city attorney, last week and discussed
a possible conflict of interest with respect to this application. He is
in another partnership with the owner of the building of the application.
Taddune suggested that Head raise this issue before the Board. Whitaker
advised Head if there is any conflict of interest, he should withdraw. It
is the safest way. There are five members present, the action of the Board
is not hampered by this. Head stepped down.
Whitaker introduced case #84-2, Abetone Ristorante. The application is
a variance request: "the building is a nonconforming structure as it
exceeds the FAR requirement in the C-l zone category, Section 24-3.4 (area
and bulk requirements); Section 24-13.3(a) no nonconforming structure
may be enlarged or altered in a way which increases its nonconformity; appli-
cant appears to also need a variance to reduce open space; Section
24-3.4 (area and bulk)." '
Paul Rubin, representative for Abetone, said the building was originally
passed under Ordinance 50, then Ordinance 25, which exempted it from
Ordinance 11. It was approved under Ordinance 19, the right to build the
building. At that time there was no open space requirement. His rationale
for applying for the variance is under code 2.21, number one. There is no
documentation to support the space in question was in fact included under
-FAR. There is no clear documentation that it wasn't. According to the
City of Aspen's codes, the area in question cannot be open space in that
it has always been obstructed by appurtenances and it has only access
from a dining room. It is more than, 10' below grade, it is 10.3' below
grade. The main contention is that it has never been open space. There
was no calculation at that time. The building department approved it with-
out that criteria.
In the memo from the planning office dated December 20, 1983, the confusion
is pointed out in the planning office's recommendation. It states in the
last paragraph that planning office was unable to reach a conclusion as to
whether it ever was FAR or whether it wasn't. Under today's regulation
the enclosure of the space will increase the degree of nonconformity of
the building in terms of FAR. If the space had been included in FAR, it
in no way increased the nonconformity. This was Colette Penne's, planning
office, contention. At that time, Gary Esary, city attorney, recommended
to the applicant to present these points in front of the Board of Adjust-
ment.
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In all the documentation, the only calculation of floor area was done by
the building department. The occupancy load included it in the square
footage of the building. It has been included in all leases. It has
been included for liquor licenses. At no time is there any place in the
documents that show it was not included.
Rubin continued. In the minutes when the building was originally approved,
Councilman Johnson stated that the dining area obviously should be in-
cluded in the floor area ratio. That was never acted upon. There is no
documenting that the space in fact was included in FAR. ,The confusion
continues.
The confusion creates a hardship for the client. Under the state of
Colorado law, solar energy applications should not be inhibited by zon-
ing and building regulations. It is appropriate that it be reviewed.
Rubin approached the county Board of Appeals several times to improve the
thermal efficiency of the building as well as the thermal comfort.
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Re.gular Meeting
CBOartl of Zoning AdjusLmcnt ~'
February 9, 1984
There is a hardship. The space collects trash in the winter, and standing
water in the spring. It was never an open space. The client proposes to
cut forty seats in the restaurant. The client proposes a green space
all year round. Rubin asked for a variance so he can return to P&Z.
would then be procedural for the client to €.nclose the dining space.
concluded his intro0uctory remarks.
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Rubin
Josephine Mann thought the records needed to show how much of a variance
the applicant is requesting. what is the square footage. Austin said
330 square feet.
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Rubin said there is no place where he can find how the FAR of that building
was calculated in the past. Part of what he wants to build is over an
overhang. The applicant is enclosing a part which is certainly in the
FAR; anything under an overhang is included in FAR. He went to four or
five different people, including Drueding. Everyone calculated a different
figure. At that time ~ubin went back through the original building permits.
The only calculations were done for the occupancy load. He is not sure
how much variance he is requesting. He said there will be no more waiters.
The entry will remain as is. There is a portion by the sliding glass doors
included already in FAR. It would only be the balance. It is not more
than 500 square feet.
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Mann again said when the Board makes a motion, it has to say something
about the amount it is granting or denying. Austin referred again to
the memorandum from the planning office dated October 18, 1983, page
two, first paragraph: 115 square feet of landscaping, 330 square feet of
dining area. Mann said those are approximate figures. Rubin suggested
using the language "plus," or "minus," or "not to exceed." He would sub-
mit detailed plans. Rubin reiterated it is less than 500 square feet.
Paterson referred to the drawings. He commented there are parameters:
window mullions, the stairwell, etc. Rubin noted the addition will be
under the FAR with the overhang. The space was not included in FAR, but it
should have been included. It is not open space.
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Austin questioned when the building was built. She questioned when the
requirement for the 10' depth came into effect with respect to open space.
Rubin explained the building was originally passed in 1975 under Ordinance
50; then Ordinance 25, an extension of Ordinance 50 which exempted it
from Ordinance 11. There ~as no calculation of open space because there
was no open space requirement for the building. The 10' depth came
into effect soon after that. He has no conflict with the 10' or the 10.3'.
The conflict is that the space has an appurtenance, it is blocked, it has
no access, and the city code strictly states that open space cannot be
blocked as such. Austin questioned when the code was written; after the
building was completed. She recalled when the building was originally done,
the area was not closed off from the stairwell, it was open. Rubin said
no. Penne said she reviewed the old codes to see if they divided open
space the same as today. At the time the building was built, the FAR was
2:1. It allowed any area to be considered open space. She believed
the 10' requirement was not defined; For everyone square foot of open
space, two more square feet abmethe 2:1 ratio in the FAR was allowed.
It was a very generous FAR at the time. The building was certainly not
nonconforming when it was built. The building's ratio is about 1.87:1.
Someone corrected it to 1.83:1.
Austin was curious about the intent of the space when it was built.
Was it to be open space even though it does not conform nOW to open space.
Penne said because of the stairway and the depth of 10.3', it is in the
applicant's favor that itwasnot defined as open space. She agreed it is
not usable public open space. She would not take lunch there. Penne's
opinion was that the space does not fit the definition of usable open
space; because of the measurements and because the space is not continuous
and is obstructed with the stairway, the landing, and another stairway.
The question of FAR is a separate question. The space is below grade.
The applicant is proposing an open roof. She is not sure how that is going
to add to the perceived bulk of the building, the thrust of the concern
of FAR.
Penne presented background as to the reasm1 for the memos. Rubin came
with a public inquiry to her office when he started thinking about the
addition to Abetone and wanted to know if it was possible. Penne informed
him that there was a GMP exemption allowed in the code. She reviewed the
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RECORD OF PROCEEDINGS
100 Leaves
",,,'" ~t c.,. MorCll'rL ~. P. .. L. C J.
Regular Meeting
Board of Zoning Adjustment
February 9, 1984
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the case, wrote a memo, and suggested P&Z recommend or approve the GMP
exemption. The planning office went along for a few weeks assuming it
could be built. The building department said it was over allowable FAR.
She proceeded then to check the history of the case. The particular
hardship for the building is the inability to pin down any particular
document or calculation that indicates that indeed the space was counted
or not counted in FAR. It has not been conclusively shown either way.
Whitaker said it is unclear as to the status. But, it is clear that accord-
ing to the building department the floor area ratio is 1.83:1 instead of
1:1. The Board is constantly dealing with nonconforming situations which
have been created by the passages of new ordinances. The Board has to
consider the situations in light of the existing ordinance. penne noted
there is possible bonus. Whitaker said the floor area ratio is 1:1 in the
C-l zone. The fact the building was built under a diffferent ordinance
does create a problem. A good percent of the buildings in town are
nonconforming because of the ordinances.
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Rubin agreed. He reiterated his point. If the space was not included
in FAR origianlly, it should have been. The only access was through glass
doors in the dining room. It is clear in the original plans that the space
was a dining area. A councilman saw tha~. It was in the first lease.
, There is no document stating the space was not included. The applicant
is not increasing the nonconformity.
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Edwards questioned if in the original plans there was a fence. Rubin
said that the original plans did not show the fence. The original did
show the landscape break. Edwards asked if there is something that divides
the walkway from that space. Rubin said the only access was through the
sliding glass doors. Edwards asked if anything in the documentation
granted a subdivision or condominiumization. Is the building deed-
restricted? Is the open space deed-restricted? Penne said there is no
evidence. It was an Ordinance 19, when the GMP was added. There are
no deed-restrictions of any kind specifying employee housing or open
space. There is nothing in the documentation. Rubin said it is stated in
the ordinance that was passed that the 620 Hyman Building construction
project shall be permitted to proceed under the conditions here and after
enumerated on the ordinance that was passed series, and Ordinance 11 of
1975, on the contrary and'not withstanding. Open space was not a require-
ment for that building. Edwards asked if the applicant would not be increas-
ing the nonconformity of the FAR. Rubin said no. Edwards asked if the
open space was in the original lease. Rubin said in the original lease
of the building it was included in the Bacchanal's_lease as dining room
space. Edwards asked if it was in Abetone's lease. Rubin said yes. It
was in the building permit. It was included in the original permit for
occupancy load. It was commercial space. He had the documents.
Bill Drueding, building department, explained the issue is the current
1:1 FAR and 25% open space. He presented to Whitaker a letter he wrote
to the city attorney after P&Z requested him to determine whether the
area was open space or counted as open space by the building department.
The letter is addressed to Gary Esary. Drueding'had others calculate the
open space by the existing FAR ordinance at the time., There is no way
that space can be counted as FAR. He telephoned Clayton Meyring on
November 11, 1983, and asked him what he remembered. He reported that
Meyring said he would not have counted it as floor area, it was just a
yard. Meyring may have counted it in the occupancy load because people
were sitting out there. Drueding presented his notes from the telephone
call. There is no doubt in Drueding' s mind that the space was not counted
as floor area, and it would not be counted today.
Regular Meeting
DOJrd of Zoninq hdjustmcnt
February 9, 1984
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Drueding noted there are six restaurants in town with the same type of
court yard problem. They are exceeding their FAR now or open space, and
could ask for the same request: Toro's, Pablo's, etc.
Drueding addressed open space. There may have not been any open space
requirement,then, but there is now, 25%. The .3' (the difference between
10' and 10.3') is minimal. The open space cannot be reduced less than
25%. If open space is reduced, it is not conforming. That is why the
applicant needs a variance for open space.
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Whitaker expressed the purpose of open space. Generally, it has to be
fronting the street, which means a setback. It has to be open to the
sky. It is to reduce the bulk of the building. It is to provide more
light and open space. He is inclined to overlook the .3' also. He
quoted from the guidelines for the Board.
"It is not merely enough to state, the difficulties
and hardships at present, the applicant must present
facts that prove such difficulties and hardships. The
Board rarely finds practical difficulty or unnecessary
hardship for the applicant whose appeal is a matter of
aesthetics, or design, or economics."
Rubin said Drueding alluded that the area is open space. It cannot be.
Again, it is blocked. The code states that open space cannot be obstructed
by appurtenances. And when the building was passed it was very clear there
was no open space requirement. The applicant proposes a glass enclosure
that will improve the open space. It will provide a year round green
space. It will eliminate the collection and standing water area. Rubin
does not argue that the space was or was not included in FAR. Meyring
included it in the occupancy load. Meyring recognized that it was a
commercial dining area. The initial liquor license recognized that. There
is a hardship. The applicant is not increasing the nonconformity by
law. The applicant is not asking the Board to go beyond its appointed
rights. The addition meets all criteria that the community wants with
regards to the current laws. It enhances the property. It enhances
the open sapce. It enhances a fine establishment that supports the com-
'munity. It does not impact at all. There are no legal grounds to stop
the Board from granting a variance. There is no precedence. There is no
other restaurant that was passed under Ordinance 19 and exempted from
open space. The applicant does not want to set any precedents. Rubin
asked Edwards to address this.
Whitaker was under the impression that in 1975 there was an open space
requirement in the C-l zone. The open space which is being asked to be
enclosed may have been required. Rubin again said it was exempted from
the ordinance. Drueding said even if it was not, it is a requirement now.
There is open space whether the applicant built it because he was suppose
to, or whether he just happened to have it there. When one begins to
reduce the 25%, one is nonconforming. The applicant is increasing the
nonconformity. Drueding read that fences, pathways, fountains, and
landscaping are not considered obstructions.
Mann supported what Whitaker stated about the purpose and the intent of
open space. In a case like this in which there is confusion, the Board
has to look at the intent. What was the city trying to do. The Board
must look at this application in terms of current open space and FAR.
Rubin concurred. The addition improves a very bad situation all winter
long. It makes it visually wonderful. It has no less access than it has
now. The general public cannot get down there. Open space can be viewed
year round, rather than standing water, trash, and snow.
Paterson pointed out that when the Aspen Athletic Building was built it
enclosed open space. It was not open to the sky. The entire court yard
in the front caught the sun with that glass. ' It was considered public
open space. Consider that. '
Whitaker recalled another situation: the revision of the Cowenhaven
Building. That was an existing building. The alterations and improve-
ments were allowed on condition that the court yard be open space. Trere
were gates aeross it at first. Now there are doors. It is still open
space. Open space does not have to be directly accessible to the public.
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RECORD OF PROCEEDINGS
100 Leaves
'01111 II C.,. 1l0[CKrt II. II. .!I ~. 1;.1.
Regular Meeting
Board of Zoning Adjustment
February 9, 1984
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In this application open space serves a function. It opens to the sky. It
is unfortunate that the zoning ordinance has been changed so drastically,
from 2:1 to 1:1. The zoning ordinances were changed to not repeat the nega-
tive effects of structures like the potential Aspen Mountain Lodge. Rubin
emphasized the addition beautifies a bad situation. Whitaker said the space
will not be open space if it is enclosed. Itstill will not be accessible to
the public except through the restaurant. Rubin said it would be enclosed
open space.
Rubin noted P&Z approved the request on Dr. Carlson's Building to prevent
the build up of snow recently. This application is the same thing as that.
Austin responded that it was the only access to that building. It was danger-
ous. Austin said this applicant is closing the area, and again, it is
accessible only from within the restaurant. The cases are not similar.
Whitaker asked if there are any letters in favor or
Norris, the secretary, said no. Whitaker asked for
Whitaker closed the public portion of the hearing.
members' comments. He reopened the hearing.
against this case.
audience comment.
Whitaker asked for
Whitaker asked the perspective drawing be clarified. Explain what the
height is in relation to the present building and wall. Rubin said the
highest point of the glass roof is the planters in front of Nature Store-
house. Rubin repeated that the applicant would have no more than four
tables there. The area will be green and planted.It will be an atrium space.
The client will cut back forty seats. The design will make use of glazing.
It would be open in the SUffiIT,8r. The initial idea was that horizontal
panels would move under a curved panel. The concrete walls would be kept.
The addition would be a glass extension of the existing building.
Whitaker asked Paterson if there should be elevations and cross sections to
articulate the relation to the building, not just an architectural perspec-
tive drawing. Paterson noted the issue is whether the client has a hard-
ship or practical difficulty. The Board cannot grant a variance on
aesthetics. Conceptually the Board can see what the applicant is attempting
to do. The Board can tell whether the applicant has a practical difficulty
or not.
Whitaker closed the public hearing. He asked for members' comments.
John Herz questioned if the area is open space. He did not know if it should
be considered open space. Herz said every case the Board considers is
different. With Dickerson's Building, the Board enclosed the stairwell for
his hardship and practical difficulty with weather, snow and loitering
people. The hardship and practical difficulty in this case seems to be
that the city does not know whether the area was considered open space or
not. The building is 1.83:1 now. It already received one variance for
the atrium. Herz said he does not think that the area will be impacted.
The applicant has cut down the number of tables. The applicant is not impact-
ing the area with employees. The applicant is making the space more open.
Herz cannot suggest the practical difficulty. Maybe it is the people or
the snow or the collected water. Herz is inc~ined to favor granting the
variance.
Mann thinks the applicant has stated clearly that his hardship was the con-
fusion in the FAR and the open space. She ag~ees there is confusion. She
does not agree that because there is confusion that the Board needs to
grant a variance, it ~s just the opposite. T~ere are times when that would
be alright, other times not. This is a time that she believes the
Board would not do a service to the city in granting the variance. The
present"FAR she wants to respect and defend. The same is true for open
Regular Ml?,eting
Board of Zoning Adjustme
February 9, 1984
space however one defines it. She would not be in favor of the variance.
Paterson concurred with Mann that there is a hardship in the confusion.
He likes the project. He would like to see the space enclosed. He would
like to look at it that it is bettering the public safety and welfare.
He feels it is simi~ar to the Athletic Building, the enclosing glass.
It is a solar sink. It is beneficial to the tenants. It is not harmful
to the surrounding. There are no objection~ from any of the neighbors.
However, there does not seem to be enough evidence to support the variance
will relieve a hardship that exists that is so serious that the applicant
cannot live without it; in other words, to alleviate a real difficult
problem. The situation has been there for many years. It has been handled.
Paterson has a problem with the degree of the hardship. The hardship is
mostly due to the confusion with FAR, the 10.3' v.s. the 10', the question
of open space.
Austin agreed with Mann. She does not see how this helps public safety.
The stairs will remain open. Only the dining area will be enclose.d.
It will set a dangerous precedent. The Crandall Building, Toro's, and
pablo's all may want to enclose their patios. She likes the aesthetic
idea of everything not being built right to the street. There is more of
a problem with granting the variance than not.
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Whitaker asked Drueding what the floor area ratio would be if the area is
allowed to be covered. How much would it increase it from 1.83:1.
Drueding said he did not know. Austin asked if the entire building is
taken into consideration. Drueding said yes. Edwards said 'it would
increase the FAR.
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Whitaker believed it would increase the FAR which is already well beyond what
is allowed in the code now. The hardship and practical difficulty is often
hard to differentiate between the applicant's convenience and desire to
make improvements. Reasons for granting variances are that the special
conditions and circumstances did not resvlt from the actions of the applicant.
It is very clear that the action of the applicant created this situation.
,Whitaker does not want to see the loss of open space. The open space and
the setbacks are terribly important to the community. He does not like
to set the precedent of covering open space and increasing floor area ratio.
Whitaker reopened the public hearing.
Rubin said he spoke with his attorney and client this afternoon. He has
the ability to return to P&Z. They only tabled his request. He thinks
given the feeling of the Board he wants to withdraw the application rather
than have it denied. He will return to P&Z. ~hey have the right to deter-
mine that the addition does enhance the space. He does not want the judge-
ment read that it eliminates open space.
Whitaker noted that the applicant has withdrawn. He does not know if P&Z
has the authority to grant variances, in the floor area ratio. Rubin said it
would not be a variance, it would be a decision that it the area should have
been included in FAR.
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Whitaker asked Rubin to provide an affadavit and photograph of the public
notification of the case.
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In light of the fact that the applicant is going back to P&Z, Whitaker asked
if the Board felt that the planning commission should have the benefit of its
thoughtsin the same way the Board had the benefit of the planning commis-
sion's thoughts. He entertained a motion that a copy of the minutes of this
meeting be sent to the planning commission. Austin moved to approve
the motion; seconded by Mann. Mann said it was very important for the
members to have the minutes from the P&Z, it made the meeting go faster.
If the Board's minutes will help P&Z, she supports sending them. All in
favor, motion carried. '
Paterson moved to adjourn the meeting at 5:15 p.m.; seconded by Mann.
All in favor, motion carried.
'!ll.'/d'/f /f;jNM
Barbara Norris, Deputy City Clerk
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NanCE OF PUBLIC HEARING
Case No. 84-2
BEFORE THE CITY OF ASPEN BOARD OF ADJUSTHENT
TO ALL PROPERTY OWNERS AFFECTED BY Tilli REQUESTED ZONING OR USE VARIANCE
DESCRIBED BELOH:
Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a
public hearing will be held in the Council Room, City Hall, Aspen, Colo-
rado, (or at such other place as the meeting may be then adjourned) to
consider an application filed with the said Board of Adjustment requesting
authority for variance from the provisions of the Zoning Ordinance, Chapter
24, Official Code of Aspen. All persons affected by the proposed variance
are invited to appear and state their vie,.,s, protests or objections. If
you cannot appear personally at sueh meeting, then you are urged to state..
yo~views by letter, particularly if you have objection to such variance,
as the Board of Adjustment will give serious consideration to the opinions
of surrounding property o~~ers and others affected in deciding whether to
grant or deny the request for variance.
The particulars of the hearing and of the requested variance are as follows:
Date and Time of Meeting:
Date:
Time:
Thursday, February 9,1984
,'4:00 p.m.
Name and address of Applicant for Variance:
Name:
Address:
Abetone Ristorante
Dan Surin and Ermano Masini represented
620 East Hyman, Aspen, Colorado 81611
deseription of property:
by Paul Rubin, architect
Location or
Location:
Descriotion:
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Abetone Ristorante
620 East Hyman
Aspen, Colorado 81611,
Variance Requested: The building is a non-conforming structure as it
exceeds the F.A.R. requirement in the C-l zone category. section 24-3.4
(area and bulk requirements). Section 24-13.3 (a)-no non-conforming structure
may be enlarged or altered in a way which increases its nonconformity.
Applicant appears to also need a variance to reduce open space. Section
JidiJdolHff'\rBPflaRBJ!<) .(Please cross out one)
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pennanent
THE CITY OF ASPEN BOARD OF ADJUSTMENT
BY Remo Lavagnino, Chairman
Barbara Norris'; Deputy City Clerk
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CITY OF fI';FElI
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AP;E.l'l^~T PA;JL RUBIN/liWIRODESIGN,.'
Alte:ll'fCO'f ,ron. .'. . .J'.
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ABETONE RISTORANTE' " '
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CAse flO.
MonESS
PO BOX 968, BASALT, CO 81621
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DAN SURIN/E!lHANO MASINI
PI/OUE .9'71 3636 .
ADDRESS 620 E. Hyman
bpen, C~ .816n
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.lOcnTIOu OF p~aPERTY
620 E. IInlAN ST
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~Stref:t. & ~lumbcr of Subdivision B1L, & Lot No.)
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Buildin~ Permit'Application and prints or any other pertinent
~ data must a~company this application. and wi~l be made part 9f
CASE NO.
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. THE DIMi!D HILL RETURN THIS ,APPlICATIO/l' IF IT DOES NOT CONTAI/I
All: THE FACTS IN QUESTION."
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DEs:l:RIPTIOil 'CF PROPOSED EXCEPTIOll SHOHH1G JUSTIFICATIOrIS:
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SIGNED: ~ d ',' , '>'
,Appellant
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IHll yo~ be :represented by i:oull!:el
PROVISIONS OF THE ZONING OROINAtlCE REQUIRING THE BUILOING INSPECTOR .
TO !fORI,IARD THIS APtJ.ICATlON TO THE BOARD OF ADJUSHIEIIT AND REASON ,
FOR NOT GRAiH:ilG: e."'L ~ ~a. ~~~ ~ Ov::>.d~:
~ P.(1.R. ~ ~t-i< C,~/'~c-~~, ti!J<<'2Q-J"lj;.
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Signed .
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DECISION
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,rrLICATIDU,FILED
DATE IF flEMIrlG
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". , ,January 17, 1984
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Board of Adjustment .1...," ,.'.1':':" """;""''''',';''', ',',
City of Aspen '." ".; 1 ;\, ,':" ''',,;.:.\~ ""
Aspen, Colorado " ,. '::,:; ~;::.' ", ,,:,';!","'.: ,.."', '\\\-:,','\'
Doar Board "'''or., ' ..' ',..:, k .. i:' ,'( t ..l',\,,""':'\\\\\\'\\'\
I am representing Mr. Dan Surin and' Mr; Ermano 'Masini, . owners of. Abetone . , '
Ristorante located at 620 E. Hyman St. They have. requested the right to ',",'.. \.
enclose an existing outdoor dining area ~ith a permanent structure. A recap
of the process leading to a request for a variance follows: ' '. ' . . .'
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The government process to secure the right to'do so' was officially ,
commenced on October 20, 1983 at the City Planning & Zoning Commission meeting~
. The Planning Office's original recommendation for approval was met by questions ,',
as to the existing FAR for the 620 Hyman Building. These questions pointed out"
confusion regarding the legality of such approval. The attached Memorandum '. '
dated October 18 from Colette Penne, Planning Office, and the minutes of the ., . , ..
above mentioned Planning & Zoning meeting; Oct 20, 1983, are attached'for your ,
perusal and background information.' , .' : .', ." \ ': ':'
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rt At this juncture, I researched the question of the FAR of the property in
question and resubmitted ~ client's request with documentation of ~ findings.
Please review submittal letter dated November 17, 1983 to Alan Richman which
can serve to explain my findings regarding the question of FAR and it's '
ramifications for my client's request. I am including in this submittal 'the
Planning Office Recommendation Memorandum and the minutes of the subsequent
P & Z meeting, both dated December 20, 1983 as 'background'information.
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Mr. Surin and Mr. Masini are requesting a variance relating to'the zoning
laws of the City of Aspen under Sect. 2-2.2 of the Aspen City Code which will .
permit the Planning & Zoning Commission to grant an exemption from GMP and allow',:
the enclosure of the existing outdoor dining area. ::,:,~"\:",
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The attached conceptual plans and documentation l'eferred to above clearly
point out the negligible impact regarding the general purpose, codes and
general plan that the granting of such a variance would affect. The reasons for'
this request are:' ' \ '
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As pointed out by Mr. Gary Esary, City of Aspen Attorney; members
of the City P & Z; and Colette Penne of the Aspen, Pitkin County
Planning Office, no one has been able to prove or substantiate '. .
whether the area in question was FAR or not. The unanimous agreement
that the enclosure presents negligible impacts and the fact that no
other building, to my knowledge, was approved under Ordinance 19 and .
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paul rubin
basalt. colorado 81621 927-3636
. john katzenberger
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Board of AdJustmont,
January 17,1984
Page Two
therefore the question of FAR and ita ramifications became
later clouded and confused, are spelled out clearly in the
attached documentation.
This hardship and the conditions surrounding it are not the
result of my client's actions. The granting of such a
variance is essential to my clients for several reasons.
The existing commercial dining space in question not only
cannot be used a large portion of the year, but creates a
snow and trash catchment during much of the year. The
addition would alleviate this situation as well'as eliminating
a spring standing water and resultant drainage surge qy
handling runoff and drainage in a more timely fashion.
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The area in question as exists represents a visible greens pace
amenity in the summer months. This amenity as pointed out qy
the conceptual plans, would be extended to a year round
situation by the glass enclosure.
This hardship further impacts my clients and their customer's
use of this existing commercial space through their inability
to enhance the thermal properties of the space in question.
The only access to the outdoor dining area is through large
glass doors. The ability to correct this situation through the
addition of the enclosures would not only add to the thermal
comfort of my clients and their patrons but a variance would
afford them the opportunity to passively solar heat not only
the addition but would add between 95,000 to 230,000 BTU's/per
day to the existing space, depending on the economic realities
of moveable insulation.
The following is intended to summarize the fact that the granting of
such a variance will not adversely effect the general purpose of the City
codes, and comprehensive plans. The Planning Office addressed such in their
Memo, October 18,' 1983, which is attached. \
a) Visual impact, if any, would be a positive element as pointed
out above. The addition is on the lower level and will be
virtually unseen from the existing street grade.
b) No new employees are to be generated. The 'addition will only
replace the serving of meals in the exiGting bar, thus alleviating
a congested and negative current situation. I have submitted
changes in the seating at Abetone Ristorante with this request
which have been undertaken since the commencement of this
government process. In their desire to present a quality experience
these seating changes have already diminished the number of seats
within the restaurant. A large portion of the dining courtyard is
to remain landscaped.
envirodesiDt1, Itd" p,o, box 968,
paul rubin
basalt, colorado 81621 927-3636
john katzenberger
"
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Board of Adjustment
January 17, 1984
Page Three
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c)' Given no increase in customer load or employees coupled with
evening service only, parking will not be impacted.
d) The addition will not effect levels of service and as pointed
out, will have a positive effect on the runoff situation.
This addition can only enhance the experience of our citizens and
visitors, both from within and outside.
Should you have arry questions regarding this request, please feel free
to contact me.
Thank you for your consideration.
i._,.sincerelY~r)
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Paul Rubin
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john
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MEMORANDUM
T.: Aspen Planning and Zo~ing Commission
FR.M: Colette Penne, Planning Office
RE:' Abetone - GMP Exemption
>>ATE: October 18, 1983
LOCATION: Garden Level, 620 East Hyman Avenue
ZONING: C-l
APPLICANT'S
REQUEST:
Approval of a GMP exemption per Section 24-11.2(n)
for an expansion of Abetone Ristorante of less than
500 sq. ft.
REFERRAL
COMHENTS:
~
The Engineering Department,made the following state-
ments: '
"1. It would appear that the proposed room will
enclose the existing drain inlet in the outside
area. Some further detail regarding how drainage
and snowmelt in the lower level will be handled
would be appropriate.
2. Some additional evening parking need will be
generated by the enclosure of the outside area
but it should not be significant and will not
conflict with the daytime activity of most
surrounding businesses."
PLANNING
OFFICE
REVIEW:
The development activity which may~e exempted from
complying with GMP allotment procedures by the
Planning and Zoning Commission per Section 24-11.2(h)
is "the expansion of an existing commercial or office,
use in a builidng by not more than five hundred (500)
square feet, sxcluding employee housing, for the pur-
poses of providing a small addition of space which can
be shown to have minimal or manageable impact upon
,the community and can be justified by the benefit
which will accrue to the Community." The determination
of minimal or manageable impact on the community should
consider the following:
(1) A minimal number of additional employees will
be generated by the expansion or the applicant
will provide additional employee housing.
(2) A minimal amount of additional parking demand will
be created or that parking can be accommodated
on-site.
(3) That there will' be minimal visual impact on the
neighborhood due to the project.
(4) Minimal new demand is placed on services available
at the site such as water, sewer, roads, drainage
and fire protection.
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MEMO: Abetone - GMP Exemptio1'1
October 18, '1983
Page Two
PLANNING
OFFICE
RECOM-
MENDATIONS:
The applicant submits that no new employees will be
needed as a result of this expansion. Presently,
meals are being served in the bar area and this will
be eliminated. Also, of the 445 square feet of
area, 115 sq. ft. will be landscaping and 330 sq.
ft. dining area. ,This, same space has historically
been used for a summer season outdoor eating ar~~,
The space accommodates approximately four tables.
Considering that this space has been used for dining
and waiters have been serving meals in the bar area
and will not be serving in the bar area when this
new space is available for winter use, we believe
the case for no new employees is justified.
The Engineering Department agrees with the applicant
concerning parking and considers that any new generated
parkin~ need is not significant. Also, because of
operation only in the evening, there is no conflict
with the daytime activity of mc.;t of the surrounding
area.
The question of visual impact is not a consideration
in this case. First of all, the restauran~is on
the lower level and this roof will not be visible at
street level. Secondly, if the addition is visible,
it is considered by this office to be a positive
element and not one that would be a negative neighbor-
hood impact.
This incremental addition will have no effect on
existing levels of services. It will have a positive
effect on the runoff situation at the site, and will
add a passive solar element for the heating and
cooling of the interior space. 'The project architect
will be present at the meeting, to discuss the
operation of the glazed roof in site drainage and
to answer the concerns of the Engineering Department.
The limitation of Section 24-11.2(h) that the maximum
cumulative additions within any building can be only
500 sq. ft. is not an issue in this case, since this
building has not expanded in this manner previously.
The Planning Office recommends approval of a GMP
exemption per Section 24-11.2(h) for the proposed
expansion of Abetone Ristorante of 445 square feet.
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MEMOHl\NDUM
TO:
Aspen Planning and Zoning Commission
FROM:
Colette Penne, Planning Office
RE:
Abetone - GMP Exemption
DATE:
December 20, 1983
BACKGROUND
Application was made pursuant to Section 24-11.2(h) for an exemption
from Growth Management Competition procedures to enclose the space
which Abetone now uses for outside dining. The Planning Office 8valuated
the request in light of the exemption criteria and recommended that
you find there to be "minimal or manageable impact on the community."
Upon receipt of comments from the Building Department, we discovered
that the 620 Hyman Building (which houses Abetone) is in excess of the
allowed floor area. This information would lead us to the conclusion
that the application should never have been accepted.
The architect for the project, Paul Rubin, feels that the location of
this dining area and the history of approvals for the 620 Hyman Building
should lead us to conclude that this area not be counted as additional
floor area if the proposed enclosure occurs.
PLANNING OFFICE REVIEW
Some of the concerns you expressed when we briefly discussed this
request at your regular meeting on October 18, 1983, were whether this
area was included as FAR when the building permit was issued; if this
area was intended to be open space; and, whether it is considered
additional floor area if enclosed now. The C-l zone allows a 1:1 FAR
and the Building Department calculates the build-out at 1.83:1, and
therefore, non~conforming.
J
This building was exempted from Ordinance 11 (Series of 1975) by
Ordinance 25 (Series of 1975) and Ordinance 50 (Series of 1974). This
exemption allowed a building to proceed to construction which would
not have complied with some provisions of Ordinance 11. Because of
this exemption, or possibly because FAR calculations were not explicit,
the record is unclear as to whether or not this dining area was included
in the floor area calculations. There is evidence that the area was
included in occupancy load calculations and it has always been part of
the commercial lease space of the restaurant.
The Municipal Code requirements in effect prior to Ordinance 11 (Series
of 1975) allowed a 2:1 FAR with provisions for additional square
footagc when a project offered public arcade space at ground level or
open space in excess of that required.
The evidence submitted by Paul Rubin indicates the possibility that
this area was part of thc floor area calculation. There is a statement
made by Commissioner Johnson at the Planning and Zoning Commission
meeting of May 7, 1974, that he "felt the garden level should be
included in the floor area ratio." It is not specific to this particular
patio space, nor was any action taken ,on the statement.
Ordinance 11 (Series of 1975) states that "in measuring floor area for
the purpose of calculating floor area ratio, there shall be included
that area within the surrounding exterior walls . . . The floor area
of a building or portion thereo~ not surrounded by exterior walls
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MEW): Abctonc - GMf' Excmption
December 20, 1983
Page Two
shall include any usable area under a horizontal projection of a roof
or floor above." The interpretation of these statements could lead
to the conclusion that this are~ was counted if the wall at the
sidewalk was considered to be the exterior wall (even though the
space was not roofed).
Further, the Ordinance states that "for purposes of calculated floor
area ratio, there shall be included basement (but not sub-basement)
areas except any such basement area devoted to underground off-street
parking." Since this area could be considered to be surrounded by
exterior walls and does not qualify as open space, it may have been
calculated as floor area by being included in the basement (or garden)
level.
The answer to the question of this space being classified as open
space is more ,clear cut. The area is not open space for two reasons:
1. Open space cannot be more than ten (10) feet below the
existing grade of the street which abuts said open space.
(This space is 10.3 feet below grade.)
~
2. The open space must be continuous and not obstructed with
building appurtenances and appendages. Stairways will be
considered obstructions. (This space is accessed by a
stairway from the sidewalk.)'
The current floor area ratio ordinance (Ordinance 11, Series of 1982)
includes any area under a horizontal projection of a roof and any
question of the inclusion of this space is answered once the roof is
placed over it. Since the area is subgrade and the roof is glass,
the evaluation of the impact of additional bulk is less than a solid
roof above grade, however, an open area will be closed in.
PLANNING OFFICE RECOMMENDATION
We feel that the record is inconclusive concerning the inclusion of
this space in FAR at the time of building permit issuance. We are
convinced that any growth or service impact which may result would be
very minimal. If you feel the arguments made by the applicant are
strong enough to justify issuance of a building permit, you could
make the finding that this area should have been originally included
in the floor area and direct the Building Department to issue a
permit.
We are unable to reach this conclusion based on the evidence presented.
We find that under today's regulations, the enclosure of the space
will increase the degree of non-conformity of the building in terms
of F.A.R. Therefore, we recommend that you move to table this appli-
cation until such time as a variance from the F.A.R. limitations is
obtained from the Board of Adjustments.
,-
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MEMO TO: November 17, 1983
Alan Richman
Aspen, Pitkin Planning Office
Aspen, Colorado
Dear Ala"
The following will delineate the research I have completed and which we
discussed at our meeting of November 15' regarding the Application of Abetone
Ristorante. It should serve the Aspen Planning & Zoning Commission's request
that I document the reasoning and circumstance which leads to ~ conclusion
that my client be eligible for the granting of a building permit by the
appropriate department when they receive the required plans and materials for
enclosing the existing outdoor dining patio.
The real property in question was approved as part of the construction
project known as the 620 Hyman Building. The approval process included the
granting of an ordinance No. 25 series of 1975 which provided that said building
was ex~ended an exemption from Ordinance 11 series 1975. See copy of ordinance
25 attached herein. The intent and result of such was that the 620 Hyman
Building did not comply with the Floor Area Ratio requirements of Ordinance 11.
'In reviewing the minutes of meetings of the Aspen Planning & Zoning
Commission and of the City Counoil in conjunction with'the perusal of granted
permits both prior to and since the construction of the 620 Hyman Building, it
is my contention that the outdoor dining patio has at no time been clearly
calculated as either being included or exempted from a FAR calculation.
I hope the following will provide you with the information necessary to
conclude that the real property in que3tion should have been part of the FAR.
1. Ordinance 11 (e) #1 states that measuring should include floor
area within th~ surrounding exterior walls exclusive of vents,
shafts and courts.
.
The area in question is not a, court or shaft. (support follows)"
The same paragraph goes on to require inclusion of areas such as
grade deck, balconies, et~. when such,areas are necessary for the
function of the building.
Support for such finding can be provided by the fact that Ordinance 11
series 1975 which defines Open Space clearly shows the property in
question not to be a "court" or open space element in Sect D #2
r
Open space cannot be more than 10 feet below grade
Dining patio is 10.3 feet below grade
and even more clearly in Number 4, Sect. D where
Ope, space must be continuous and not obstructed with
building appurtenances and appendages.
The dining area has always been enclosed with access solely
from within the private leased commercial space.
envil'Ooesign, Itd" p,o, box 968
JClul rubil1
basalt, colorado 81621 927-3636
john katzenberger
"
MEMO TO:
November 17, l~83
Page 112
Alan Richman
Such conclusion is further supported by the intent of calculated
commercial floor area provided by the building dcpqrtmont on 7-7-75 which
recognizes tho area in question as being included for the occupancy loads.
Due to the exemption from Ordinance 11, nowhere within the documents and
permits is the area in question not counted as FAR since such a calculation
was not required.
1'ho fact that the araa couldn't bc open space and wns in fact enclosed
by walls and a necessary functioning portion can further be supported by
Ordinance 11, Sect. E # 2
that for calculated floor area ratio there shall be included
basement areas accessory to the principal use of the building.
The dining area clearly fits this description of meeting the
"minimum requirements for natural light, ventilation and
emergency exit for the applicable occupancy group."
Not only was the use and intent of the space in question recognized by
the building department but further support for such can be found in the
following minutes:
The Aspen Planning and Zoning Commission recogni7,ed the intent
of plans and use of space on May 7, 1974 when Commission member
Johnson stated that patio should be included in FAR (see att~ched).
At City Council meeting April 14, 1975 the owner wanted to change
use to a theater but discussion pointed to retaining Restaurant
use.
Such use recognition is consistent throughout the meetings and can be
supported by the designed enclosure and access doors clearly recognized by
the Building Department.
My clients lease as previous leases have shown such area as part of
the rented cOllmercial space. It has, been reiterated as such ,by the inclusion
of area in the Colorado State' Liquor License.,
In summation, I should point out that the intent of the laws and objectives
of the City of Aspen are in no way impacted by ;,rour granting of such a request.
I therefore would welcome your recommendation, that the Building Department,
at the appropriate time, grant my clients a permit to enclose the outdoor
dining room.
Thank you,
envirode~i!:lll, ltd.,
paul rubin
,
p,o, box 968,
bil~dlt. colorado 81621 927-3636
john katzenberger
lildow Mountilin
,meslwre (eont)
Jblic Hearing
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betone GMP
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moratorium resolution. when Council passes the moratorium
ordinilnce Gary will ilsk that the application be tabled for
five additional months. lie is asking that it be tabled
for cne month now because applications have to be tabled
to a "date certain" and it is not known for sure if council
will pass the moratorium ordinance,. Gary also said that
tabling the application for five months is not definite,
though he anticipates that it will be tabled for five months;
at ~he end of the one month period he may only ask that it
be tabled for an additional month depending on Councils'
decision.
Perry Harvey opened the public hearing. Roger Hunt moved
to continue the public hearing and to table action on the
Shadow Mountain timeshare project to November 22, 1983 at
the request and effect of the City Council on the basis of
their action on a resolution for a six month moratorium.
Jasmine Tygre seconded the motion. All in favor. Motion
carried.
Colette Penne of the Planning office informed the Comnlission
that Paul Ruben, representative for the applicant, had come
to h6r at pre-application stage and asked if Abetone Restauranc
would be able to put a glass atrium roof over the space now
used for outside dining. Colette told Mr. Ruben that it was
possible to get an exemption from GMP for a small (under 500
square feet) expansion of floor area ratio(FAR). The exemptio:
criteria were reviewed and it was thought that the applicant
could meet those criteria. Mr. Ruben made the application
and after reviewing the application Colette stated in her
memo to the commission dated October 18, 1983, that the
applicant did substantially meet the criteria for a GMP
exemption. After the memo was written, produced and sent
out to Commission members in ~he packets, Colette Penne
recieved a memo from the Building Department indicating that
the building was over FAR and therefore non-conforming.
Thus, the building cannot be expanded. Colette stated that
she should have checked this out in the pre-application stage
and that it was an oversight on her part. Colette informed
the applicant of the situation saying that the application
should not have been accepted in the first place and offered
to return the application fee. Colette also offered to
explain the situation to the Commission and remove the
application from the adgenda. The applicant is unhappy with
this because he feels that the solution is not detrimental
and has some questions as to whether it is in fact an
increase in floor area ratio. The applicant was at the meetinc
to address the Commission. There is "a light at the end
of the tunnel" from the applicants point of view in that the
Board of Adjustment, last week, took action at the Red Onion
in a case that is not exactly analogous but one in which
the Board allowed some space on the addition to be glassed
over, However the space was not to be used for commercial
square footage.
Paul Ruben told the Commission that he felt that he could
make a compelling case to rebut the fact that it does
extend the floor area ratios. Mr. Ruben told the Commission
that the plans had changed some and pointed out that he had
gone over the FAR with the planning office and was led to
believe that it would not be a problem. Paul Ruben then read
from the Municipal Code section 24-11.2 A. Mr. Ruben said
that if he went back to measuring the floor area ratio under
section 24-3.7 ordinance 11 it states that ventilating
shafts ilnd courtyards arc areas that don't count as FAR.
It is Mr. Rubens' contention that the part of the property
in question which has been leased to Abetone since they have
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PLANNING AND ZONING COMMISSION
OCTOBER 18, 19B3
been there is not in fact a courtyard, a courtyard being
an architectural element of open space. According to
City Code open space can not be more than ten feet below
grade and the property in question is 10.3 feet below grade.
Mr. Ruben said that the property in question is an area that
is enclosed on all sides, the roof is currently open and it
has been used historically as commercial floor area. It
should have been included in FAR to this point. Paul Ruben
pointed out that there were several discrepancies in the
code as in the non-conforming structure portion of the
code and is allowed from the stand point that
it does not add to the non-conformity if in fact it is an
existing commercial, retail area. As far as the project
itself (the FAR) is concerned Mr. Ruben said he could make
a case and show the Commission drawings and data that show
that it will alleviate problems of standing water and snow.
'Mr. Ruben said that it will be kept virtually the way it is nc
with movable glazing. The area in question will not only
meet its own needs passivly, with a passive solar system,
but it will either add 95,000 BTU's a day to the existing
structure or 230,000 BTU's a day depending on whether
movable insulation is desirable on an economic basis.
The,resaurant, which is being remodeled on the inside, will
have 60 fewer seats in the winter when this proposed ~&QjeQt~
is in place. Thus, according to Mr. Ruben, the impact on
parking and the impact of employees is less with the new
design of the resaurant. Mr. Ruben thought that including his
argument in the FAR would save the applicant the money, ,time
and heartache of going to the Board of Adjustment.
Mr. Ruben reiterated that there were a number of discrpancies
in the code as to what commel.cial floor area il'l.:.arHL.vh>:!t
floor area ratio, is!: J:n!:ot:he.rnilo):'din if0tb?~capplican;t,..built.-
part of the project :l under a horizantal protrusion the
applicant would not even have to face the Commission. There
are, accorcing to Paul Ruben, large portions of the building
under horizantal protrusions that could never be expandeded
but which legally could be expanded. Mr. Ruben felt that
in a number of ways the co~~ission had the legal grounds
to grant an exemption from the GMP and that it is a compellinc
argument for the applicant to get the right to do the project,
Perry Harvey asked if the patio was classified as open space
in the original approval of the building. Colette penne
said that it didn't qualify as the definition of open space
states that open space can not be more than 10 feet below
grade. Colette explained that ordinance #19,building,
required 25% (percent) open space in the C-l zone thus
the courtyard under discussion could not be "counted" because
it is farther below grade than the definition allows.
The original plan did not include the courtyard as open space,
Perry then asked if the courtyard was counted as part of
the FAR. Colette said that she didn't know how it could
have counted a's FAR because there is no roof over the area
and it hilS been leased as commercial footage. Colette
also pointed out that the C-l zone allows a 1:1 Fl\R and the
eUHent I'lIIl. on this building ;,s 1,83: 1. Perry then pointed au
th...t building",: btlil t,.befor.e ~197 7 .can, remodel and reco:lstruct
if there is no expunsion of the commercial I'l\R. Perry said
,t1wt he Wil~i trying to detctmil1l' whelt that space was cataloguc.'
as originillly. If it wus not open space and it was not part
of the building what Wil~; it? If the space was originally
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then there are grounds for exemption but if it was originally
part of the 25% open space thell it is questionable whether
or not there are grounds for exemption.
Jim Wilson of the Bui~ding Depdl:tment told the Commission
that there are some areas in the zoning code which are not
clear. Mr. Wilson informed the Commission that it doesn't
have to be either FAR or open space. "This is not an either
or situation" said Mr. Wilson.
Bill Drueding also of the Building Department told the
Commission that they would have to go back to t~e original
building plans and see what information they could come up
with. There is nothing in the plans that show there is
still a maintenance of the 25% open space requirement. If
the area is still regarded as open space than the roof over
the area defeats the word "deck". Mr. Dreuding said that
he would do his best to determine what they can from the
original plans as soon as possible.
Roger Hunt thought that there was a contractual agreement
between Don Fliesher and the City Council. Roger suggested
going back to those agreements.
Perry Harvey stated that the on-site plan had to show
building footprint, and the open s:ace that was figured to
arrive at the 25% requirement. Perry said that he didn't
know whether the Commission could make a deci!,jon on taking
an action. Perry said that the Commission had three choices;
they could act on it, they could table it, or they could
,table it pending Board of Adjustment review.
Paul Ruben stated that the courtyard was tied to the
leasable space of the restaurant and was a dining courtyard.
, said that the Commission cannot increase
the FAR, rather the Commission must determine if the
area was originally zoned FAR, not open space.
Paul Ruben felt that even if, whenever they figured FAR,
the area wasn't included in FAR then the fact that they
didn't include the area in FAR was a mistake.
Lee Pardee thought the question would be determined by
the agreement with the City, on what square footage of
commercial space was allowed, "taking with it plans".
If there is the square footage of the building plus
the courtyard then the Commission knows that it was originally
included as commercial space and "we have a simple answer".
Colette Penne said that if in fact research shows that
the area was part of the FAR then there is no reason to
go through the procedure.
Paur Rubpn said that he would like to point out one other
thing. It seemed to Mr. Ruben that there should be
mechanism that deals with criteria regardless of FAR.
Perry Harvey said that the Commission was not empowered
to give variences to the code.
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Regular Heeting
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Abetone GHP
Exemption
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Planning and Zoning Commission
December 20, 1983
pre::;cnted a geological report showing where the majori ty of
the flooding would happen. Harvey asked about the report
on the utility and icing problem. Crews told P & Z the
applicant would like to extend the awning on the building, it
wculd be a permanent awning and would eliminate icing on
utility meters.
'Assistant City Attorney Gary Esary said he has interpreted
this exemption provision of the Code to be a per building'
exemption. Esary said if the Commission interprets it the
same way, he would request a condition to make it clear this
274.25 square foot exemption out of the 500 square feet
alloted for this building. Harvey agreed it was on a per
building basis so that people do not keep coming in for
exemptions. Harvey asked what the existing FAR on this
building is. Hs. Penne said the staff is not sure as there
is a discrepancy in the ownership ship line. Ms. Penne said
if the P & Z grants approval, they should condition all othe~
calculations will have to be done by the building department
to make sure they are in compliance.
Hunt moved to grant approval of the stream margin review and
GMP exemption of approximately 274.25 square feet for the
Andrews/Pletts building with conditions I and 2 in the plan-
ning office memorahdum dated 20 December 1983, condition 3 _
the project shall comply with zoning and building regulitions
irrespective of this approval; condition 4 this is a granting
of a GMP exemption on a per building basis; seconded by
Anderson. All in favor, motion carried.
Ms. Penne, planning office, said the P & Z had raised concer~:
at their October 18th meeting on how this area was counted on
the original plans; was it open space, was it counted in the
FAR, would it be additional FAR if it were to be roofed over
as in this application. Ms. penne pointed out the C-l zone
allows a 1:1 FAR; this building is 1.83:1, therefore, it is
'non-conforming.
This building was exempt from the FAR in 1975, Ordinance 11,
by Ordinance #25, 1975 and Oxdinance #50, 1974. This
exemption allowed the building to proceed with construction
'although it would not have complied with earlier ordinances.
Ms. Penne said either because of the exemption or the FAR
calculations are not as clear as today, the record is not
clear whether the dining area is included in FAR calculations,
Ms. Penne said there is evidence the area was included in
occupancy load calculations. Ms. Penne said she has not seen
plans that conclusively include it or not include it in the
calculations.
Ms. Penne said the Municipal Code requirements in effect
prior to Ordinance II, 1975, allowed a 2:1 FAR with
provisions for additional square footage when a project
provided public arcade space at ground level or-open space
in excess of that required. Ms. Penne told P & Z, the
applicant Paul Rubin, has submitted evidence this may be
part of the floor area calculation in minutes of }1ay 7, 1974
P & Z minutes. P & Z memb0r Johnson stated he "felt that
garden level should be included in the floor area ration".
This is unclear as no actio,n was taken and it was just part
of the minutes.
Ms. Penne said Ordina~ce 11, 1975, states "in measuring floor
area for the purpose of calculating floor area ratio, there
shall be included that area within the surrounding exterior
wall!C 1 lIthe floor area Ofl building or portion lL'Jreof
not surrounded by exterior walls shall include any usable
area under a horizontal Pl:ojcction of a roof or floor above".
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RECORD OF PROCEEDINGS
100 Loaves
Regular Meeting
Planninq and Z'oning Commission
-5-
December 20, 19,:
Ms. Penne said on interpretation, one could conclude this
area was counted if the wall at the sidewalk was considered
to be the exterior wall even when the space was not roofed.
Ordinance 11, 1975, also states "fot purposes of calculated
floor area ratio, there shall be included basement (but not
sub basement) ,areas except any such basement area devoted to
underground off street parking". This area could be consid-
ered to be surrounded by exterior walls and it does not
qualify as open space, it may have been calculated as floor
area by being included in the basement - garden level.
Ms. Penne said the area cannot be open space for two reasons
it cannot be more than 10 f2et below the abutting street.
This space is 10.3 feet below the street. Ms. Penne said
the open space must be continuous and not obstructed with
building appurtenances and appendages. Stairways are
considered obstructions. The space is accessed by a stair
way which divides it from the sidewalk.
Ms. Penne told P & Z the current floor area ordinance
includes any area under a, horizontal projection of a roof
and any question of the inclusion of ~his space is answered
,once the roof is placed over it. This area is subgrade; th~
proposed roof is glass. Ms. Penne said the evaluation of tt
impact of additional bulk is less than a solid roof above
grade. However, there is an open area that is proposed to
be closed in. Ms. Penne said based on the present FAR
ordinance, the area qould be counted in FAR; however, the
past record is inconclusive as to whether this space was
included in the FAR.
Ms. Penne said the staff feels any growth or servicing
impact resulting from glassing in this area would be minimal
Ms. Penne told the Board if they feel the applicant's
arguments are strong enouch to justify issuance of a buildi~
permit, they could find that this area should have been
originally included in the floor area and request issuance
of a permit. Ms. Penne said the planning office is reluc-
tant to reach that conclusion based on the evidence present,
Under today's regulations, the enclosure of the space would
increase the FAR and will increase the non-conformity in
terms of the FAR.
Ms. Penne recommended P & Z table the applicant and send
the applicant to the Board of Adjustment for a variance for
this space in the FAR. Ms. Penne said if P & Z feels it
is good idea to have this project done, they may send on
a recommendation to the Doard of Adjustment.
Harvey recapped this is not open space, it is an open
it is not clear that it was included in FAR but was
mentioned garden level should be included in the FAR.
Penne questioned if it was not open space and was not
what was it.
area;
Ms.
FAR,
Paul Rubin pointed out not only is this area obstructed by
the stairway, but one has to go ~nto the restaurant and
through the sliding glass door to get to this area. Rubin
saId it was always clear this was intended to be u3cd as a
restaurant. Hubin poinU,d out a copy of the building permL
and in the calculation for occupancy load, this area was
counted. Hubin said the recognition of this-being used as
.,,'.,
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I~~\lar' Mecting
Planning and zoning COMnisslon
December 20, 1983
dining space was very clear. Rubin said at no time is therc
any evident to show that this was not counted as FAR, and
it clearly cannot be open space.
Hunt asked if this open area is within the walls of the
buidling, what would be the FAR. Rubin said there arc
various ways to calculate the FAR because of planters, over
hangs, elevators, etc. Ms. Penne said the issues of GMP
exemption and the impacts of using this as commecial space
were outlined in an earlier memorandum to P & Z. Rubin said
they are rearranging the restaurant and there will be less
seats than there are now.
Hunt said if the walls of the open area are included in the
FAR and that comes out to 2:1, that could be an indication
it was included in the FAR, which at the time for the zone
district was 2:1. Paul Sheldon said when he walks by the
building, all he sees is the edge. Sheldon said the additio~
of a glass roof will not make any impact on the public and
he does not oppose it. White agreed with Sheldon.
Anderson pointed out this stairway is not covered and is
going down into this space. This is not like stairways that
are covered and go up on a building. Anderson said he feels
this was definitely open space in the beginning and should
stay open space. Rubin pointed uut that the open space
should be continues and not obstructed with building appur-
tenances, this area is obstructed and always has been.
Ms. Tygre said no one, at this time, can say conclusively
what this space is or is not. Ms. Tygre said this request
is to cover space that was not previously enclosed and there
will be tables there. Ms. ~ygre said the applicant should
go get a variance. Esary said the Board of Adjustment can
smooth out the rough edges of the zoning code, and this is
within their-jurisdiction. Esary said'no one can prove
whether this is open space or FAR, the record is not clear.
Harvey, White and Sheldon feel the request from the applicant
should be approved. Andersen, Ms. Tygre and Hunt feel it
should remain open space. Hunt pointed out the building is
" already over the FAR.
Anderson moved to table this application until such time as
a variance on floor area limitation is obtained from the
Board of Adjustment with no additional comments from P & Z;
seconded by Ms. Tygre.
Harvey asked the Commission ,if the applicant does get a
variance, would the Commission be willing to short circuit
the process and approve a growth management exemption. The
Commission said no; the applicant should go to the variance
first.
All in favor, with the exception of White and Sheldon.
Motion carried.
Aspen Mountain
Lodge - Additional
Review
Requirements
Sunny Vann, planning direc,tor, said there are some issues on
this project still outsta~ding. One of these are the
conditions of the conceptual PUD/subdivision. The rezoning
issues have either b6en tabled or denied. The employee
housing on Ute avenue has been deferred. The change in use
for employee housing should have some conditions attached.
The P & Z has dealt with the multi year allocation and
decided on 464 units. Vann said he would like to go through
the conditions so that the staff can prepare a resolution.
)
...)
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Y'/-Z-
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ABETONE RISTORANTE
620 E. Hyman
ADJACENT PROPERTY OWNERS
638 E. Hyman - Patio Building
Jack S. & Gesine Crandall
PO Box 1066
Aspen, CO 81612
307 S. Spring St
Mountain States Communications Inc.
PO Box 2238
Aspen, CO 81612
633 E. Hyman
Boris M. & Dora L. Lemos and
Donald M. & Jeannie M. Lemos
PO Box 321
Aspen, CO 81612
616 E. Hyman
.
E. Norris Taylor & Goodrich H. Taylor
# 1 602 E. Hyman
Aspen, CO 81611
610 E. Hyman
Patricia Moore
610 E. Hyman
Aspen, CO 81611
E. Hopkins - Lots D&E - Vacant
Leslie Jean Smith
PO Box 1645
Aspen, CO 81612
623 E. Hopkins
Ann E. Chapman
PO Box 3150
Aspen, CO 81612
629 E. Hopkins
W. R. Walton
PO Box 665
Aspen, CO 81612
RC(Jul.J 1:' tk,'(' Linq
Abetone Gnp
Exemption
,II""'"
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Pld1:1l.Lnq dlld ~:~c;rI.Lr'(:T 1,:(i~-:1IrLL~:;~'J,,'1~'1
rl(_'c(':nlbt~J' :2 0, .\ () 8 3
plc~,C'j1l-.cd lJ (f\..'()}; Ji.c.-]. l.....')<n.'L-. 1, '..Lllq \}llc.r,~ -u~c mi.~lC"'it:.y of
tll(~ flc::odinq \,,:)l}J:J h_~_i_':;(;l'. llnr\',.: ':-l.~:..;kcd ,11)n~lL tlh' c(.port
on the 11tili..l-y ,l!'~d .Lc:;nq :):-cLlc';:~, erc,,!};.; told P & !', t->,.,';
appJ.i,c"Ult v;~_nliJ: Like' t~) C-,',',t':.'nd thc.' ,lVd1.i.llCJ on the bU.i.l(-'inC], it
would be a l-',:;:'_TliJ,r:c:'lt <-n'l'Li.ll(J :_llld v";luld c1imiidtc icinS on.
utili Ly mct"CL:~;.
A;-:;s~t ~:;t;ll1-\-. Cit:.y 1\'~._:-Oj~L.c'~/ C;r._l-:'Y 1~:':;.:.Ll:Y said h,:-; hi~S interpreted
thif; CZC;E~pl__Lol1 I/OY\i.-!.;:;.i()!'l 0;_: 1'.11(; C\JClC: to be ;J per bui16inq
exc'ffijJl:iorl_ }~sur~' !~J.Lll i.I tl~e CO]~1!nis2ioll intcrprcls :~t the
sawe \il~~lY, he wc'..dd rcc:1J.c<--;t a condit.ion to make it clcd:r thi::.:;
274.2~; squaJ:c [Dot ex(~~!)ti_on Ollt of the 500 square feet
allolcd for this l)ui].dj.n~r. HArvey agl~ct'd it was ())1 il per
buil(3i!lS basis so that 9copl.c do not keep comj.~g J,n for
e)(cmpt~j ;)ni3. Ea:L\/cy ,:J_skc,,,1 \.,11i:l:':' t_hc' c~xj. ~)Lir~(} Fi\R on t.l1:~s
building is. ris. Penno !~zlid t:]lC staff is 110t sure 2S there
is a discrepancy J.n tho o~!rlerslljp shj.p lj_lle. Ms. relIne said
if t.hc P & 7., granl:::s Clppl~~"'\"21, tL'(-.:jl shc)uld condit.ion all othe:!..
calculations will hnvc to be dOl~e Ly the building d(:p~lt~enL
to Ina}~c sure they- arc in compl.iance.
Hunt mo~~d to grant appravaJ. of the stream m~rgi;l revi.cw and
GMP exemption of ~pproxi~ately 27~.25 square feet fo~ the
Andrcws/PIE~tts builri:rlg wJ.th conditions 1 and 2 ill the plan-
ning off ice mcmo]~andt-na C:LTL'.cd 2 0 D'~-:'c(~mber 1983, condi t.ion 3 -
th;:~ r):co~j~-:ct shall coupll' \d,t.h zoning c;J1d building rei]llJ.atioD';,
irrespective of thi~~ approvaJ.; conditic)TI 4 this is a grantin9
of a G!,,1P cX(Jmption on (} per builcling b3.~Jis i seconded by
Anderson. All in favor, motion carried.
Ms. Penne, planning office, said the P & z had raised conccr~
at thcir October 18th mecting on how this area was counted O~
the or:i.yina] plans; was it open s[Jacc, was Jot counted in the
FAR, would it be additional FAR if it were to be roofed over
as in this application. Ms. Penne pointed out the C-l zone
allows a 1:1 FAR; this building is 1.83:1, therefore, it is
non-conrorminSJ.
This building \'Ii1S exempt from tJw FI,R in 1975, Ordinance 11,
by Ordinance #25, 1975 and Ordinance #50, 1974. This
exemption allowed the building to proceed with construction
al though it would not, have complied with earli er ordinances.
Ms. Penne said either because of the exemption or the FAR
calculations are not as clear as today, the record is not
clear whether the dining area is included in FAR calculations
Ms. Penne said there is evidence the area was included in
occupancy load calculations. Ms. Penne said she has not seen
plans that conclusively include it or not include it in the
calculations.
Ms. Penne said the Municipal Code requirements in effect
prior to Ordinance 11, 1975, allowed a 2:1 FAR with
provisions for additional square footage when a project
provided public arcade space at ground level or open space
in excess of that required. Ms. Penne told P & Z, the
applicant Paul Rubin, has submitted evidence this may be
part of the floor area calculation in minutes of May 7, 1974
P & Z minutes. P & Z member Johnson stated he "felt that
garden level should be included in the floor area ration".
This is unclear as no action was taken and it was just part
of the minutes.
Ms. Penne said Ordinance II, 1975, states "in measuring floor
area for the purpose of calculating floor area ratio, there
shall be included that area within the surrounding exterior
walls 1 lithe floor area of a building or portion thereof
not surrounded by exterior walls shall include any usable
area under a horizontal projection of a roof or floor above",
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REcOr~t} 0;:- ~_:1i)( ~ G~ .ELH;\jCiS
10n I. ca ve~:.
P-C:.~l\~L a_~~~!~.:_I-; t ~E0).________~_J:.~1 n.~~-.iE~"-:_~~-~_9.__?' 0 ni]-~~J__S;_\~~ 0~h_ .(~:: i.s?.~_____..__. ~.Q_c:..CE~~~?.?~_~Q.!__.~:_~:
-s-
M;:;. Pc.nnc; :3aid on int_crprct;Jti()l1, onc coul{l COlle'] udc this
ilrea Wa~3 count.cd if tl:t(~ \}all at t.hc sidc\',!(J.lk \vas con~)icll::'rc(l
to be the exterior weill eve~ Wh(~rl the space was not ]-oofed.
Ordinance 11, 1975, nJso states Ilfor purposes of cdlcul~tcd
floor ar'e~ ratj.o, there s}lall be il1Cludcd basement (but not
sub bnS(:'.lTI2nt.) ar(~~c:_s C'xcept ':lJ1Y s1.lch DCtSr;nK~nt (lrea c1c.votc:d t()
undC'~(ground ut-f street pdrkingl1. rrhis area could be consid--
ercd to be surrolJnded b~' exterior w3).ls aIId it does not
qunlj.iy as open space, it ffi2Y 11avc been caJ.culatcd as fJ.oor
area by being inc1ud0d J.n the bosemeIlt - garden l_evel.
Ms. Pennc said the area cannot be open space: for .t'VJO re:ason:J;
it cannot bc: more than 10 fc',et t;(;low the:; abutting st:ceet.
Thi.s space J.s 10.3 fe~t below the street. Ms. PenJ1C said
the open spc::.cc must 1::'0 continuous and not obst~ructcd with
bui1di.ng appurtenances 2nd ~:ppcndages. Stairways arc
considcr:ed obstructi()n~::;. 11';:e SpZlC(-; is accessed by a stair
way \.,Thich d.ivicles it from tiH~ slclcwalk.
Ms. Penne told P & z the current floor area ordinance
includes Dny area under ~ 11orizontal projection of a roof
and any question of the inclusion of this space is answered
once the roof is placed over it:. This area is subgrade; the
proposed roof is glass. Ms. Penne said the evaluation of th
impact of additional bulk is less than a solid roof above
grade. However, there is an open area that is proposed to
be closed in. Ms. penne sai,d based on the present FAR
ordinancc, the area qould be counted in FAR; howevcr, the
past record is inconclusive as to whether this spacc was
included in the FAR.
Ms. Penne said the staff feels any growth or servicing
impact resulting from glassing in this area would be minimal
Ms. Penne told the Board if they feel the applicant's
arguments are strong enouch to justify issuance of a buildinr
permit, they could find that this arc a should have been
originally included in the floor area and request issuance
of a permit. Ms. Penne said the planning office is reluc-
tant to reach that conclusion based on the evidence presentc
Under today's regulations, the enclosure of the space would
increase the FAR and will increase the non-conformity in
terms of the FAR.
Ms. Penne recommended P & z table the applicant and send
the applicant to the Board of Adjustment for a variance for
this space in the FAR. Ms. Penne said if P & Z feels it
is good idea to have this project done, they may send on
'a recommendation to the Board of Adjustment.
Harvey recapped this is not open space, it is an open area;
it is not clear that it was included in FAR but was
mentioned garden level should be included in the FAR. Ms.
Penne questioned if it was not open space and was not FAR,
what was it.
Paul Rubin pointed out not only is this area obstructed by
the stairway, but onc has to go into the restaurant and
through the sliding glass door to get to this area. Rubin
sdLd it waS always clear this was intended to be used as a
restaurant. Rubin pointed out a copy of the building permit
and in the calculation for occupancy load, this area was
counted. Rubin said the recognition of this being used as
"""'
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H('CjllL~lr nee.' irHJ
Pl,1nninQ ;lnei. ZOllill'j COli"U"l ::;:il()I'l
Dcccm}Jl:r ~O, 1~)83
d:i.nin'~"T ::-~P~1(:C' \';Ll~~ VC'.!"'}" c_Lt_',~,J'. ;:ZulJin s':n)j.d ,~L no t: im(; i~~ thcr('
i:Jny c",;idcnt. Lo [';}i.O\'l Lhat. "d):i ~', '\",1:.; llot counted O~:; FAl\.; and
iL: clca:l"ly t>.I..i.l110L be 0]:)\.11 .'T'ilCC"
Hunt a.sked if -Lhi::::-i OfJ:I1 ;~'\.rcZl i:"', 'v:il".Jlin thl~ \'li'lll:~. of the
buil11ing 1 \,/l1d[-. vvor:ld 1)" l-.11c: 1'/\1-\. Rubin sdid th.c:rc 1:0
v~r'j()us w~ys t~o COJI~lll(ltC the l~i\R bec~use of plant~crs, over
.}lal)('s, elcv2t:ors, rtc. ~ls. ['(:01)0 said tile issues 0i GMP
eX(:11,,":tiCJl1 ;~nd the ij['nllct~-; of lJ;.-_;j~lCl this (:1.:-; c<..:'lnunu ci.ill SO:lee
-.' '-' '
vIerc olJtlincc] in <lJl C'~l:cli.cr TI,Cn~OcD.naum to P & Z ~ F1.1;J.1.n ~;,~i('i
tJ1C:Y aLe rc.:}r):-'~I.l_CJinq t.h(: rcstdl':Cd:nt und tllcre VIllI b..-.:~ less
SCi:ll:3 -than tlH:rL~ arc nUd.
HUJ11~ saj.d j_f the walls of the o])on area are included i]1 tl~e
Fl-1_E and tIFl t comes out to 2:.1, th(}t~ could :r)(:~ 2D incli cctt.ion
it was ir:cl~1cJcd in the Fj\_R, v.'hich at tl1c"cirn-3 fo}::- th.e zone
di~:;trict WDS 2: 1. Puul Shclclcc:. said. ~d1c;n be v.."(_tlks l~y t}lC
bui~.d.Lng, all be sees is t.he edge ~ Shcldol: sa_ld tL.c~ adc1i tio:
of a 91ass roof will not. make rU1Y .impact on the public and
he does not oppose it. White agreed with Sheldon.
And2rson pointed out this stairv7~Y is not cov8red ilnd is
gOi~19 dovln inLc) this spac8~ This is not. like stCli:cv/i:J:)-'s that
are covcre~ and go up on a buj_]di_ng~ Anderson said he feels
this was definiteJy open space in the beginning arld ShOllld
stay open space. Rubin pointc'() out thiJt the open :';pace
should be continues and not 01Jstrllcted witll buildj_rlg appur-
tenances, tIlis area is oLstrucLod arid 21ways has bccn~
Ms~ Tygre saJ.d no one, at this time, can say conclusively
what this space is or is n9t~ }1s. Tygre said this ~equcst
is to cover space that was not prevj.ously enclosed alld there
will be tables there, Ms. Tygre said the applicant should
go get a variance. Esary said the Board of Adjustmcnt can
smooth out the rough edges of the zoning code, and this is
within their jurisdiction. Esary said no one can prove
whe:her this is open space or FAR, the record is not clear.
Harvey, White and Sheldon feel the request from the applicant
should be approved. Anderson, Ms. Tygre and Hunt feel it
should remain open space. Hunt pointed out the building is
already over the FAR.
Anderson movcd to table this application until such time as
a variance on f)por area limitclticm is obtained from the
Board of Adjustment with no additional cOmI'lents from P & z;
seconded by Ms. Tygre.
Harvey asked the Commission if the applicant does get a
variance, would the Comnission be willing to short_ circuit
the process Clnd approve a grOl'lth managemont exenption. 'rhe
Commission said no; the applicant should go t_o the variance
first.
All in favor, with the exception of White and Sheldon.
Motion carried.
Aspen Mountain
Lodge - Additional
Review SumlY Vann, planning director, said there are some issues on
Requirements this project still outstandinq. One of these are the
conditions of the conceptual PUD/subdivision. The rezoning
issues have either been tabled or denied. The employee
housing on Ute avcnllC llns b(~cn deferred~ The chdngc in use
for employee housing should have some conditions attached.
The P & Z hets dealt with the, multi year allocation 'and .
decided on 4 G 4 uni ts. Vilnn "',1 id he I"ould like to go throuCj]'
the conditio!l'; so tlwt the slaff can prepare a recwlution,.
4.
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MEMORANDUM
TO:
Aspen Planning and Zoning Commission
FROM:
Colette Penne, Planning Office
RE:
Abetone - GMP Exemption
DATE:
December 20, 1983
BACKGROUND
Application was made pursuant to Section 24-11.2(h) for an exemption
from Growth Management Competition procedures to enclose the space
which Abetone now uses for outside dining. The Planning Office evaluated
the request in light of the exemption criteria and recommended that
you find there to be "minimal or manageable impact on the community."
Upon receipt of comments from the Building Department, we discovered
that the 620 Hyman Building (which houses Abetone) is in excess of the
allowed floor area. This information would lead us to the conclusion
that the application should never have been accepted.
The architect for the project, Paul Rubin, feels that the location of
this dining area and the history of approvals for the 620 Hyman Building
should lead us to conclude that this area not be counted as additional
floor area if the proposed enclosure occurs.
PLANNING OFFICE REVIEW
Some of the concerns you expressed when we briefly discussed this
request at your regular meeting on October 18, 1983, were whether this
area was included as FAR when the building permit was issued; if this
area was intended to be open space; and whether it is considered
additional floor area if enclosed now. The C-l zone allows a 1:1 FAR
and the Building Department calculates the build-out at 1.83:1, and
therefore, non-conforming.
This building was exempted from Ordinance 11 (Series of 1975) by
Ordinance 25 (Series of 1975) and Ordinance 50 (Series of 1974). This
exemption allowed a building to proceed to construction which would
not have complied with some provisions of Ordinance 11. Because of
this exemption, or possibly because FAR calculations were not explicit,
the record is unclear as to whether or not this dining area was included
in the floor area calculations. There is evidence that the area was
included in occupancy load calculations and it has always been part of
the commercial lease space of the restaurant.
The Municipal Code requirements in effect prior to Ordinance 11 (Series
of 1975) allowed a 2:1 FAR with provisions for additional square
footage when a project offered public arcade space at ground level or
open space in excess of that required.
The evidence submitted by Paul Rubin indicates the pOSSibility that
this area was part of the floor area calculation. There is a statement
made by Commissioner Johnson at the Planning and Zoning Commission
meeting of May 7, 1974, that he "felt the garden level should be
included in the floor area ratio." It is not specific to this particular
patio space, nor was any action taken on the statement.
Ordinance 11 (Series of 1975) states that "in measuring floor area for
the purpose of calculating floor area ratio, there shall be included
that area within the surrounding exterior walls . The floor area
of a building or portion thereof not surrounded by exterior walls
,Jf'''..
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MEMO: Abetone - GMP
December 20, 1983
Page Two
Exemption
shall include any usable area under a horizontal projection of a roof
or floor above." The interpretation of these statements could lead
to the conclusion that this area was counted if the wall at the
sidewalk was considered to be the exterior wall (even though the
space was not roofed).
Further, the Ordinance states that "for purposes of calculated floor
area ratio, there shall be included basement (but not sub-basement)
areas except any such basement area devoted to underground off-street
parking." Since this area could be considered to be surrounded by
exterior walls and does not qualify as open space, it may have been
calculated as floor area by being included in the basement (or garden)
level.
The answer to the question of this space being classified as open
space is more clear cut. The area is not open space for two reasons:
1. Open space cannot be more than ten (10) feet below the
existing grade of the street which abuts said open space.
(This space is 10.3 feet below grade.)
2. The open space must be continuous and not obstructed with
building appurtenances and appendages. Stairways will be
considered obstructions. (This space is accessed by a
stairway from the sidewalk.)
The current floor area ratio ordinance (Ordinance 11, Series of 1982)
includes any area under a horizontal projection of a roof and any
question of the inclusion of this space is answered once the roof is
placed over it. Since the area is subgrade and the roof is glass,
the evaluation of the impact of additional bulk is less than a solid
roof above grade, however, an open area will be closed in.
PLANNING OFFICE RECOMMENDATION
We feel that the record is inconclusive concerning the inclusion of
this space in FAR at the time of building permit issuance. We are
convinced that any growth or service impact which may result would be
very minimal. If you feel the arguments made by the applicant are
strong enough to justify issuance of a building permit, you could
make the finding that this area should have been originally included
in the floor area and direct the Building Department to issue a
permit.
We are unable to reach this conclusion based on the evidence presented.
We find that under today's regulations, the enclosure of the space
will increase the degree of non-conformity of the building in terms
of F.A.R. Therefore, we recommend that you move to table this appli-
cation until such time as a variance from the F.A.R. limitations is
obtained from the Board of Adjustments.
"-
MEMO TO: November 17, 1983
Alan Richman
Aspen, Pitkin Planning Office
Aspen, Colorado
Dear Alan,
The following will delineate the research I have completed and which we
discussed at our meeting of November 15 regarding the Application of Abetone
Ristorante. It should serve the Aspen Planning & Zoning Commission's request
that I document the reasoning and circumstance which leads to my conclusion
that my client be eligible for the granting of a building permit Qy the
appropriate department when they receive the required plans and materials for
enclosing the existing outdoor dining patio.
The real property in question was approved as part of the construction
project known as the 620 Hyman Building. The approval process included the
granting of an ordinance No. 25 series of 1975 which provided that said rnlilding
was extended an exemption from Ordinance 11 series 1975. See copy of ordinance
25 attached herein. The intent and result of such was that the 620 Hyman
Building did not comply with the Floor Area Ratio requirements of Ordinance 11.
In reviewing the minutes of meetings of the Aspen Planning & Zoning
Commission and of the City Council in conjunction with the perusal of granted
permits both prior to and since the construction of the 620 Hyman Building, it
is my contention that the outdoor dining patio has at no time been clearly
calculated as either being included or exempted from a FAR calculation.
I hope the following will provide you with the information necessary to
conclude that the real property in question should havecbeen part of the FAR.
1. Ordinance 11 (e) #1 states that measuring should include floor
area within the surrounding exterior walls exclusive of vents,
shafts and courts.
The area in question is not a court or shaft. (support follows)
The same paragraph goes on to require inclusion of areas such as
grade deck, balconies, etc. when such areas are necessary for the
function of the building.
Support for such finding can be provided Qy the fact that Ordinance 11
series 1975 which defines Open Space clearly shows the property in
question not to be a "court" or open space element in Sect D # 2
Open space cannot be more than 10 feet below grade
Dining patio is 10.3 feet below grade
and even more clearly in Number 4, Sect. D where
Open space must be continuous and not obstructed with
building appurtenances and appendages.
The dining area has always been enclosed with access solely
from within the private leased commercial space.
envirodesign,
paul rubin
Itd,
,
p,o, box 968,
basalt, colorado
81621 927-3636
john katzenberger
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MEMO TO:
November 17, 1983
Page #2
Alan Richman
Such conclusion is further supported ~ the intent of calculated
commercial floor area provided ~ the building department on 7-7-75 which
recognizes the area in question as being included for the occupancy loads.
Due to the exemption from Ordinance 11, nowhere within the documents and
permits is the area in question not counted as FAR since such a calculation
was not required. -
The fact that the area couldn't be open space and was in fact enclosed
~ walls and a necessary functioning portion can further be supported ~
Ordinance 11, Sect E # 2
that for calculated floor area ratio- there shall be included
basement areas accessory to the principal use of the building.
The dining area clearly fits this description of meeting the
"minimum requirements for natural light, ventilation and
emergency exit for the applicable occupancy group."
Not only was the use and intent of the space in question recognized ~
the building department but further support for such can be found in the
following minutes:
The Aspen Planning and Zoning Commission repognized the intent
of plans and use of space on May 7, 1974 when Commission member
Johnson stated that patio should be included in FAR (see attached).
At City Council meeting April 14, 1975 the owner wanted to change
use to a theater but discussion pointed to retaining Restaurant
use.
Such use recognition is consistent throughout the meetings and can be
supported ~ the designed enclosure and access doors clearly recognized ~
the Building Department.
My clients lease as previous leases have shown such area as part of
the rented commercial space. It has been reiterated as such ~ the inclusion
of area in the Colorado State Liquor License.
In summation, I should point out that the intent of the laws and objectives
of the City of Aspen are in no way impacted ~ your granting of such a request.
I therefore would welcome your recommendation that the Building Department,
at the appropriate time, grant row clients a permit to enclose the outdoor
dining room.
Thank pur-__
;f/~-
~--
r
envirodesign,
paul rubin
Itd,
,
p,o, box 968,
basalt. colorado
81621
john
927-3636
katzenberger
-.I~~
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. Olttl.. c. P. 140(C~ll'. .. . ~. co.
RECORD OF PROCEEDINGS
100 Leaves
ORDINANCE NO. 11
(Series of 1975)
AN ORDINANCE REPEALING CHAPTER 24, "ZONING" OF THE
MUNICIPAL CODE OF THE CITY OF ASPEN, RE-ENACTING OR
AMENDING CERTAIN SECTIONS THEREOF, ADDING PROVISIONS
NOT PREVIOUSLY A PART OF SAID CHAPTER; INCORPORATING
BY REFERENCE A REVISED ZONING DISTRICT MAP AND BY
THE REFERENCE ADOPTING THE SAME; SAVING PROSECUTION
AND PENALTIES FOR VIOLATIONS OF THE PREVIOUS SECTIONS
WHICH VIOLATIONS OCCURRED PRIOR TO THE EFFECTIVE
DATE OF THIS ORDINANCE; AND PROVIDING, IN ADDITION
TO OTHER LEGAL REMEDIES,T~AT FOR VIOLATIONS OF
CHAPTER 24 THERE MAY BE IMPOSED FINES UP TO AND
INCLUDING $300 AND IMPRISONMENT FOR NOT MORE THAN
90 DAYS.
WHEREAS, The Aspen City Council has initiated
the revision of Chapter 24, including the zoning district
map incorporated therein, and on recommendation of the
Planning and Zoning Commission and after public hearing
duly noticed and held, concludes that said Chapter 24
should be substantially revised and put in a form as
contained in detail in the balance of this ordinance.
.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY
COUNCIL OF THE CITY OF ASPEN, COLORADO:
.~c .'",'
Section 1 Adoption
That Chapter 24 "Zoning", including the zoning
district map therein incorporated, of the Municipal
Code of the City of Aspen, is hereby repealed and the
said Chapter 24 is re-enacted to read as follows:
"Chapter 24
ZONING
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RECORD OF PROCEEDINGS
100 Leaves
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grade. Fences visible from the street shall
be constructed of wood, stone, wrought iron, or
masonry. Plans showing proposed construction,
,material, location and height shall be presented
to the Building Inspector before a permit is
issued.
D. Open Space Requirements
For purposes of satisfying this requirement,
open space shall be defined as a portion of
a building site, one side of which shall be,
open to the street unobstructed from ground
level to sky with the exception of permitted
architectural projections above ground level
" and which space shall not be used for storage,
,.swimming pools and other recreation areas, trash area
,rear access area, parking, or' strncturAs Df any nature,
'except foupt~ins. pathwavs, f~ces and landscaping
1. The mlnlmum frontag~ of the open space
which is open to the street shall be one-
half (~) of the dimension of that side of
the building site, or one hundred (100)
feet, whichever is less.
ill.,- .....:.......:....LUoIoH d......,t'LL. ......f ....h.Q nvpl1 .c:.n;:!~""'" ":OR:; 9101
_ i~ nppn ~~ ~ ~trge~ sk-" h~ ~~~ (19) f~9~
Ir"'................on ::lr Y;S1-t! tlu':::llG.... ["-....HL~ Lt....... [_.1M:
lot line.
Required open space shall not be more than
four (4) feet above n (to)
4. ~~i~~'~~~~~;:.L~..::a:h:~:~~='-
'Qh~~.....n...............A p': ,h 18 ililai..'j ......1:"1-"......... L.._....J.....5...._ .....ud.
~FP~-~~J~~ provided that roof overhangs,
balconies, cornices and other architectural
features, not protruding at ground level,
may project into a maximum one-half of the
width of the open space area. lLl:.l.':'..':j /1",,-,,,11 '
- ~l-.._' 1 _ll"",yv ,-Ll~ .t:-".L",~~....Ll......u v~ ~\...a..L.Lwa.Yl:;) cUIU
pu-=-.....'t-.......-g .~.".'lr..Y...A:r.... .....l-...:1-L:Lk ....-i'1 lo-..~ .....~Rs'i1U't!!JlIIi
M!lL....u.\,.;l.luul:;).
In the event that the City of Aspen shall have
adopted a trail plan incorporating mid-block
pedestrian links, any required open space
must, if the City shall so elect, be applied
and dedicated for such use.
Prior to issuance of a building permit, the
Building Inspector shall require site plans
, and drawings of any required open space area,
'including a landscaping plan, to insure
compliance with this section.
Whenever the landscaping required herein is
not maintained, the Building Inspector, after
30 days written notice to the owner or occupant
of the property, may revoke the certificate of
occupancy until said parties comply with the
landscaping requirements of this section.
Measuring Floor Area for Floor Area Ratio
1. In measuring floor area for the purpose of
calculating floor area ratio, there shall be
included that area within the surrounding
exterior walls (measured from their exterior
5.
6.
E.
2.
3.
7.
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RECORD OF PROCEEDINGS
1 00 Leaves
F.
surface) of a building or portion thereof, ex-
clusive of vent shafts and courts. The floor
area of a building or portion thereof not
surrounded bv exterior walls shall include any
, usable area under a horizontal projection of a
roof or floor above.
=... P'IJ!l!iii-Ii== ~ ii::ii~ == ~~ ":~
;::~.~gas;P.lel11:_ A ~~-:..-:::~~~~":~
',noUn.............::! .....- .._~......-g-......"1"'\d off Et.E'e.(.l:-l::'~} k . '.L~. Wl......hl.n
-the CC district, storaqe (ot~er,than co~~ercial
st9ra~e) accessory to the pr~nc~~al use of the
bu~ld~ng ~Dall also be ~xcluded ~n calculatina
Yard eXternaL rLoor area rat~o. '
l'rov~s~ons
,1. Projections into required yards - yards
shall be open from the ground up except tor
the following allowed projections:
building eaves--18 inches, architectural
projections--12 inches, individual balconies
not utilized as a passageway (provided they
do not project more than 1/3 the distance
from the exterior wall to the property line)
-- 4 feet, fire escapes--4 feet, uncovered
porches, slabs, patios, walks and steps--
no re:striction, fences, hedges and walls less
than 6' in height--no restriction on location.
Required yards adjacent to private roaus -
all required yard setbacks under district
regulations are based on distance measured
from the right-of-way line of a dedicated
public way. \'1here there is no public
dedication and the lot line extends to the
centerline of the right-of-way, the required
yard setback shall equal the distance
specified under district regulations plus
an additional distance equal to one-half
of the right-of-way width as if such private
way were dedicated for public use.
Corner lots - on a lot bordered on two sides
by intersecting streets, the owner shall
have a choice as to which yard shall be
considered as the front yard, such yard to
meet minimum setbacks for a front yard in
that district. The remaining yard border-
ing a street may be reduced by one-third
of the required front yard setback distance
for the district.
Yards in developed areas - where an unbuilt
lot is bordered by property developed prior
\ to the effective date of this zoning code,
"one or both of which are non-conforming as to
front yard setback distances for the district,
the required front yard for the unbuilt lot
shall be the average of the setback distances
of the bordering properties; or, if only one
of the adjacent properties has been improved,
the setback of the new construction shall
conform to these regulations.
Transitional yards - where two lots share a
common side lot line and are in different
zone districts, the lot in the more intensive
use district shall observe the required yard
setback distance as established for the less
intensive use district.
2.
2.
3.
4.
5.
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Grcnt Gorge
liquor lie.
3-wi3Y
,20 Hyman
,uilding
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".~c_CJular Meeting
h5p~n C~ty Council
Apd} 14_, 1975
ji
Ii Alan Gordon told Council the Great Gorge was Q full ~ervjce restaurant witll bTf'~~fafit,
!i lunch and dinn02r. 'J'hc'jl arc Op011 [ront 7:00 a.ill. to 11:00 E).m. Gordon cunsiucn,rJ full
I' service restaurant lll)l orlly serving tJl.rec me~ls but alsl) servillg beverages that patrons
;" might require. Mayor St.andley ilsked h'hat tbe seat.ing CLlJ-ldcity of the bar would bej
Gordon allswercd presently eight and at maximum would be 14.
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Councilwoman Markalunas questioned Gordon holding three offices of the
Attorney Stuller said that only three offices wer\.:~ obligDto:::y and only
secretary could not bs the same.
corporation. City
the trcaSllrcr and
Tllcre were no opponents to t]1e iSSllBllce of th~ liquor license.
public hearing.
M~yor Stanley closed the
Councilman Bebrendt mov(~d to approve the liquor license for the Great Groge restaurant;
seconded by Councilwoman Pedersen.
Councilmdl1 De Gregorio questioned whether the needs of the neighborhood have not been
meet, it is his feeling that they have. Councilwoman Markalunas agreed and said there was
no proof tonight t.o show Council that the needs had not been met and thi,,; is cne of the
obligations of the applicant.
Councilman Behrendt pointed out this particular party is not applying for a bal license
but a restallrant which wants to serve drinks to its clients. In thi.s sophisticated taWIl,
one must serve drinks wi,th dirlncr in a good restuurant. Cou!lciJ_man Behrendt questioned if
the needs of the neighborhood had been met in l:crms of good dinin9. Mayor Standley agreed
and added that the Council's role was to marc or less protect the citizens of the
conununity from qUQstionc:ble operators coming in and to question whether the cor:stJ~ai.nts
established by the state are being fulfilled. Mayor Standley said he felt that Gordon
had shm\'n that he could run a good rcstaUl:ant and been conscience and Gordon deserves to
compete on the S<ilne basis as all Uw other "good" rcst.aurants in town.
City Attorney Stuller pointed out that t.he needs of a restaurant are not the cI'Ltcria,
is the needs of the neighborhood. City Attorney Stuller said the Council must .'.>tart
making demands of the applicant -Lo esl:ablish that the needs have not been satisfied or
time will come when the Council will want to start denying and \",i11 have no basis. A
precedent has been set for an open ended policy. Mayor Standley said a \-lork session on
the liquor licensing policy and how to establish criteria has been in order for a long
time.
it
the
Councilman ~valls said past Council met with the State liquor people in order to set up
guidelines. The Council can set up the needs of the neighborhood very easily by having
the state liquor people run a survey on these needs. ~'li.th some fifty-add outlets in the
proximity of the Great Gorge, Ccuncilmun ~valls said it was ludicrous to think the needs
of the neighborhood had not been met.
Alan Gordon s~dd it seemed to him that t_here would never be a definitive answer
the "reasonable requirements of the neighborhood" are. Gordon pointed out that
natures on a petition could be gotten for any project.
to what
sig-
Councilman Behrendt asked Gordon if he did in fact have petitions and how many signatures
were on these. Gordon answered yes, and in excess of 800 signatures.
City Attoreny Stuller said Council can not establish a maximum number of liquor licenses
to be issued, that the needs have not been satisfied. This is an affirmative requirement.
It is not established by showing lack of protest. Because people's need for a drink can
be satisfied off premises, the Great Gorge defeats the argument that the needs of the
neighborhood has not been satisfied. City Attoreny Stuller told Council that they must
get more stringent in their analysis of liquor license applications.
Councilman Behrendt said that due to the Council's inconsistent policy of issuing liquor
licenses they had in effect given a monopoly to a certain number of peopl in town. This
applicant has proven what they can do with a rQstaurant and they should be allowed the
right to complete. If the Council wishes to establish a policy it should he done in the
future.
Councilmembcrs Behrendt,
Pedersen, Markalunas, De
Breasted, Mayor Standley in favor of the motion; Councilmembers
Gregorio, Wallo/ opposed. Motion NOT carried.
CleO-l Ilf/t&lT ~~
~ ~... T'......
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City Attorney Stuller told Council that the condition of the grant of Ordinance #25,
Series of 1975, were that the applicant comply with all recommendations of the P & Z
under Ordinance #19, Series of 1974. This presents some problems because there is a
change of use in the basement.
Don Fleisher told Council under Ordinance #19, Series of 1974, a'restaurant was approved
for the basement, his ne\v design has put a theatre in the basement. Mayor Standley
asked the relative number of seating difference. Fleisher said he thought a restaurant
would have about 150 seats and a theatre 400 seats. Planner John Stanford said a theatre
would generate more traffic. Hayor Standley said based on the leeway the Council had
given given this project, Fleisher told Council this was not a new theatre but was a trans-'
fer of the "lvhecler Opera House. Stanford told Council that theatres were not allowed in
the C-I zone, nor were restaurants, but the P & Z had approved a restaurant use in the
basement. Councilman De Gregorio said he would rather see a restaurant Use here. City
Attorney Stuller told Council that under this Ordinance #25, Series of 1975, Fleisher
was bound to the uses as approved by the P & Z under Ordinance #19, Series of 1974, review..
Fleisher brought up that the minutes reflect a restaurant use in the basement and offices
on the top two floors. He said that was inaeeu -ca to as they \'.'cre to have retai 1 on the
ground level, wnich in on the sidewalk grade, and office on the top. City Attorney
Stuller asked Fleisher if he \",ould put the C-l uses tiS they exist in the zoning code
~"i-O"'~.. Fle.ish,,:;:r said he \vanted the flexibility the desginc.tion "retail" gave him undel-
Ordinance #19, Series of 1974, review. Mayor Stilndley said that the Council was g6ing
to make this building comply with the zoning. City Attorney Stuller reiterated the
,.,.!'t'~~;'''''''''''''''''''''~;<~f,...-.""""",~.......Jt'''l":''''''_~''-'''''-'''""''''''?l''<,'~:r.'f'.''''':_'':'D"'"
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,I d Heeting
Aspen City COUllCil
..April 14, 1975
"'....._""'."".,"'.~-..._-.T.,'
---'----~,--
",u.-ant is allowed, even though it's not a C-l use, the officC'J are allowed, but the
\ l uses will not be all expansive, they will be limited to tlH~ C--I uses listed in tbe
,~()cle .
iJman De Gregorio moved to reild Ordinance #25, Series of 1975i seconded by Council-
:,1': Vilckalunas. 1\11 in favor, motion carried.
'!I(;ilman De Gregorio moved to adopt Ordinance #-25, Series of 1975, on first l.-eadingi
'(,l),J,'d by Councilman Behrendt. Roll cilll vote, Pedersen, nay; h1ulls, nct}'; Motion
l-j cd.
,I ]) _\~~AS~N'rER
'l"il' Ochs, County Engineer, presented some changes ot the Council l.-egarding running the
I', (1) extendi_ng the hours (2) free Sunday (3) consulting with HisllOp. Bishop said
~2ll]d take over the operation for $3,950.00 per month wit]l salvage right or $4,100.00
1'-;(J]ltl1 without salvage rights. Hayor Standley indicated he felt a fyee Sunday was
,11:.,' jmportant as t.here had been evidence of dry gulching.
ior Standley mentioned he felt salvage rights should be for anybody who w<.Jnted to
J_vaqe. 'l'he dump should be a resourceful place and it does belong to the people. George
1" a~:ked Council if they wanted to go to a private contractor and not: give the contractor'
:;:J.lvage rights. Councilwoman ,Harkalunas lIlcnt.ioncd she would like to see the dump
/C~ <-l fn~c Saturday, also.
,1Ilcilman De Gregroio moved to re-negotiate \.;ith a private contractor to take over the
:ljl; seconded by Councilman Breast.ed. All in favo~., motion curried.
,Incilman De Gregorio moved to retain the .salvage ri9hh, for the people and to have
un!ay~; and Sundays ilS free days at the dump; seconded by Councilwomul1 l>1arkalulIas. 1\.11
favor, motion carried.
.'Y MANl\GER
._--"--_.
City I.lanager Mahoney addressed the Council on. the offer from Aspen One to the Mayor to
.de their property. The offer was made on Friday and'discussed at lunch. City Na.nager
loney suggested scheduling a work session to discuss the proposal. City Attorney
11] cr tol d Counci 1 the m.mership of the land was under question and there was <J. lis
:dens on our pr.operty., A work session was sched uled for Monday, l.pr il 21, 1975 at
)0 p.m.
City f1anagcr Mahoney told
:lec1ict hac] written Mahoney,
udy of underground parking.
'.ldy. "
Council he had inquired into undergroun(1 parking. Fritz
"1;'Jc would like to withdraw our name from t_he feasibility
loJe du not have the nec(~ssary da t.a base to do a proper
LY r.:anager !--lahoney presented an agreement with Pizzagalli to do a feasibility study on ::
lc::ground parking. Councilman Behrendt said it was unappropriate to have the person that
dId benefit most from building such a structure do the feasibility study. Councilman '!
,~<lsted agreed and said the City should look into engineering firms to assist. II
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~.y Nanager Mahoney told Council this agreement for the feasibility study was for $2,000
~ just the first go round. Perhaps when the feasibility study was done, the City would
c:.i.de to bring somebody else in. Hayor Standley told Hahoney to get a confirmaiton
~m Pizzagalli that they would do the study for $2,000.
~ncilman Behrendt said he was worried about the market demand factor. City Manager
honey pointed out the City could create that demand. An interest has been generated by
rchants in the downtown area that want to have closer access to the automobile. City
nager Mahoney also pointed out that without a feasibili t), study, the City doesn't know
if many cars can be put in the areas considered or how much steel and concrete would be
c>ded. Councilman Behrendt suggested have an in-house study. Councilman De Gregorio
ld he didn't think an in-house study could be done for $2,000.
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',mcilmc111 Behrendt said there was nothing in the contract yJhich holds Pizzagalli to II
~d~cing figures \-Jhich conform to reality. Councilman 13n"asted pointed out someone Ii
rk.lng for his own self-interest would not want to build and operate an underground ;1
rilgc unless they were sure the site selection was right and would satisfy customers. j!
lll1Cj Imemb2rs Pedersen, Breasted, De Gregorio, Mayor Standley in favor; Councilmembers I
lIs, r.lal-kalunas, Behrendt opposed, motion carried.
GREENS FEEsi
Armstrong, Parks and REcreation Director, presented a proposal to Council for increas- il
> the greens fees. Be did not increase any rates of the season pass, so as not to tax :1
~,local people. The new proposed fees are $3.00 for 9 holes and $5 00 for 18 holes and '
;,;:) i) rGund to go back into the construction holding fund.' II,:
uncih~'omall Markalunas moved to approve the greens fees; seconded by Councilwoman
'lc'rsen. All in favor, motion carried. ii
II
\.iIlci Iman De Gregor io moved
illy is $2,000i seconded by
to accept the proposal from Pizzagalli as outlined, if it
Councilwoman Pedersen.
City Manager Mahoney told Council he needed them to offer $5,000 as a reward for the
t.urn ~~ the,Silver Queen. This is a request of the HPC anci the Centennial Committee in
.'"l]UnctJ_on w~th the Centennial celebration.
ullcilm.J.n Behrendt moved to offer $5,000 reward for the return of the Silver Queen to
:,-',;11; seconded by C0U11ci.lrnan Breasted. All in favor, motion carried.
.l'~~'~ .
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, property
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Golf course -
greens fees
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re\....ard
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- Regular Meeting Aspen City Council Arpil 28, 1975
r :l~~"n~ilm~~- ~e~regOriO moved to adopt or~~~~n:~~:4::-~eries of 197:.~:e~ond:::::~~~:-:l~=:-'--
:1: 1'1, man Behrendt.
.' Councilwoman Marka1unas requested that a copy of this Ordinance be sent to Mary Martin
i: of the Centennial/Bicentennial Committe to call her attention to the provisions of the
1'1'
money.
il
!' Roll call vote; Councilmembers Walls, aye; Pedersen, aye; Markalunas, aye; Behrendt, aye;
Pedersen, aye; De Gregorio, aye; Mayor Standley, aye. All in favor, motion carried.
Mayor Standley opened the public hearing.
the public hearing.
There were no comments.
Mayor Standley closed
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ORDINANCE #25, SERIES OF 1975
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I Councilman Behrendt made a motion to read Ordinance #25, Series of 1975; seconded by
II ]/' Councilman Breasted, All in favor, mO:::;N::;:i::~
(Series of 1975)
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HYMAN BUILDING FROM THE
.:::>ORIGINALL y
WITH ALL 01'HER
1975; SHALL OTHERWISE COM
_DILIGENCE
WI H REASONALBE
was read by the City Clerk.
Councilman Behrendt made a motion. to adopt OrdinClnce #25, Series of 1975; seconded by
Councilman De Gregorio. Roll call vote; Councilmembcrs Pedersen, nay; Narkalunas, aye;
De Gregorio, aye; Walls, nay; Breasted, aye; Behrendt, aye; Mayor Standley, aye.
Motion Carried.
ORDINi\NCE #26, SERIES OF 1975
ORDINANCE #26
(Series of 1975)
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Mayor Standley opened the public hearing. There were no co~ments. Mayor Standley closed
the public hearing.
Councilwoman Pedersen made a motion to read Ordinance #26, Series of 1975; seconded by
Councilman De Gregorio. All in favor, motion carried.
AN ORDINANCE RATIFYI NG A LEASE BETWEEN THE CITY OF ASPEN, COLORADO, AND
PANSING PONTIAC FOR THE USE OF FOUR (4) SA,~B VEHICLES BY THE ASPEN POLICE
DEPARTMENT; PROVIDING FOR THE PAYMENT 01' A RENTAL 01' SIXTY-FIVE ($65,00)
DOLLARS PER l'10NTH PER VEHICLE; AND I<~URTHER PROVIDING FOR A RENTAL PERIOD
OF ONE II) YEAR
was read by the City Clerk.
CounCilwoman Pedersen made a motion to adopt Ordinance #26, Series of 1975; seconded
by Councilman Behrendt. Roll call vote; Counci1members De Gregorio, aye; Pedersen,
aye; Wi111s, aye; lvlarkalunas, aye; Breasted, aye; Behrendt, aye; Hayor Standley, aye.
All jn favor, motion carried.
ORDINANCE #28
(Series of 1975)
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ORDINANCE #28, SERIES OF 1975
Mayor ~tandley opened the public hearing. There were no comments. Mayor Standley closed
the public hearing.
CounCilwoman Pedersen made a motion to read Ordinance #28, Series of 1975; seconded by
Counci,j.man De Gregorio. 2\11 in favor, motion carried.
AN ORDINANCE AUTHORIZING THE ENTRY IN'i'O AN AGREEMEN'l~ BY 'l'llE CI'l'Y OF ASPEN
WITH THE AIRPORT AUTO CENTER FOR TilE pnOVISION OF 'l'mHNG SERVICES; HEQUIRING
TL'ENTY-FOUR (24) HOUR TOIv SERVICE BEGINi'-JING APRIL 14, 1975, REQUIRING
I1'EHIZATION OF BILLING; PRESCHIBING CHAHGES TO BE l\SS.sSSED; REQUIRING
H'DEt1NIFICATION OF THE CI'rY AGAINST CLAIMS FOR l,055E5 INCURRED AS A RESULT
OF THE SERVICES RENDERED
was read by the City Clerk.
Councilman Behrendt made a motion to adopt Ordinance #28, Series of 1975; seconderi by
CounCilwoman Pedersen. Roll. call vote; Councilmembers h'Cllls, aye; Pedc':"scn, aye;
Na~,--kaluna5, aye; De Gregorio, aye; Breasted, .J.yc; Behrel',dt., aY:J; H.'lybr Standlt'?y, aye.
.'..11 in favor. Motion carried.
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RECORD OF PROCEEDINGS
100 Leaves
_,Olt'" M C. ',"OCCUlI, 1.1 l. co.
ORDINANCE NO. c:lS
(Series of 1975)
AN ORDINANCE EXTENDING THE EXEMPTION FOR THE 620 HY~ffiN BUILDING
FROM THE NEW ZONING CODE, ORDINANCE 11, SERIES OF 1975, ALL AS
ORIGINALI,Y PROVIDED BY ORDINANCE 50, SERIES OF 1974; PROVIDED
THAT THE APPLICANT SHALL SUBMIT SUBSTITUTE BUILDING PLANS ON OR
BEFORE JUNE 15, 1975; SHALL OTHERWISl'; COMPLY WITH ALL OTHER
BUILDING REGULATIONS; AND SHALL, ON ISSUANCE OF A BUILDING PER-
MIT, PROCEED WITH CONSTRUCTION OF THE EXEMPTED PROJECT WITH
REASONABLE DILIGENCE
WHEREAS, pursuant to the provisions of Ordinance 50,
Series of 1974, the 620 Hyman construction project received
exemption from the recommended recodification of the City of
Aspen zoning code and district map, contained in Ordinance 11,
Series of 1975, and
WHEREAS, the developer of the project has proposed a
substitute building presenting an exterior design acceptable to
the City Council and preferable to that of the exempted project,
and
WHEREAS, the City Council has determined that the public
welfare would be enhanced if the Ilelvly proposed structure was
built in lieu of the earlier exempted project, and
WHEREAS, the Common Law of the State of Colorado pro-
vides that an amendment to a zoning ordinance applies to all land-
owners unless they have procured a valid building permit and
acted in reliance on the same, in which event they shall be allowed
to proceed with their original application even though in conflict
with the change, Hichae1 Saur v. Tr,e Connt:y Commissioners of Larimer
county, (Colo. Sup. Ct. August 13, 1974), county of Denver V. Denver
Buick, 141 Colo. 121, 347 P2d 919, Cline v. City of Boulder, 168
~, ,0
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RECORD OF PROCEEDINGS
100 Leaves
'011.... (.,."O(CI(("....''''Co.
Colo. 112, 450 P2d 335, Crawford v. ~cLaughlin, 172 Colo. 366,
473 P2d 725, and
~mEREAS, the City Council wishes to extend the exemption
of Ordinance 50, Series of 1974, for a period of approximately
ninety (90) days to allow resubmission of plans and issuance of a
permit, and thus to grant immunity from any zoning code changes
that may be adopted in the interim,
!10>\T, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the 620 Hyman Building construction project shall
be permitted to proceed, under the conditions hereinafter enumerated,
the provisions of Ordinance 45, Series of 1974, Ordinance 50, Series
of 1974, and Ordinance 11, 1975, to the contrary notwithstanding.
Section 2
That as conditions for such grant:
(a) The permit application for the substitute
structure must be submitted, in its entirety, and permit
fees paid, on or before June 15, 1975. The permit applic-
ation shall substantially conform to the working drawings
submitted by the developer to the Aspen City Council at
its continued meeting held March 13, 1975.
(b) The Building Inspector shall issue the permit
hereinabove provided for on July 15, 1975, unless the
plan check is completed ~nd approved, and a permit re-
quested by the applicant prior to July 15, 1975.
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100 Leaves
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(cl The application shall fully comply with the
zoning code and district map provisions in existence
prior to the pending Planning and Zoning Commission
recommendation (unless a variance has been granted by
the Board of Adjustment); i,;ith the requirements of the
Planning and Zoning Commission imposed under Ordinance
19, Series of 1973; ~ith the Uniform Building Code,
Uniform Electric Code, Uniform Housing Code, Uniform
Plumbing Code and Uniform Mechanical Code, as adopted
and approved, or may be adopted or approved by the
City of Aspen.
(d) There shall be made no extensions or exceptions
of this Ordinance for the benefit of the above, and it
shall be of no consequence that financing or other
,
obstructions to the progress of the development, beyond
the control of the City of Aspen, have occurred subsequent
to this grant.
(e) The permit issued pursuant to the provisions
of this Ordinance shall expire by limitation and become
null and void if the building or work authorized by such
permit is not commenced within one hundred twenty (120)
days from the date of such permit, or if the building
or work authorized by such permit is suspended or
abandoned at any time after the work is commenced for a
period of one hundred twenty (120) days. If such permit
shall expire for failure to so proceed, no new permit
shall issue except in conformance with any then pending
or fully adopted zoning code provisions.
Section 3
If any provision of this Ordinance of the application
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1 00 Leaves
JDlIIlIIISI C.'.HOICI((L.....l.CO'
thereof to any person or circumstance is held invalid, such in-
validity shall not affect other provisions or applications of
the Ordinance which can be given effect without the invalid pro-
visions or applications and to this end the provisions or applic-
at ions of this Ordinance are declared to be severable.
Section 4
A public hearing on this ordinance shall be held on the
s1i day of
{1 fJ,"-. ~-'
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, 1975, at 5 P.M. in the City Council
Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED published as provided by
law by the city Council of the City of Aspen, at its regular meet-
ing held (].{J,c...i!..~ /1, 1975.
, I
ATTEST:
Ka:c.hu,/';~) ~~a;;V
Kathryn JIauter, City Clerk
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'startandle~I' Mayo
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FINALLY ADOPTED AND APPROVED ON
~p,,-<~_ -2,f'
1975.
Stacy Stnadley III, Mayor
ATTEST:
C~~
City Clerk
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STATE OF COLORADO
)
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CERTIFICATE
COUNTY OF PITKIN
I"Kathryn S. Hauter, City Clerk of Aspen, Colorado,
do hereby certify that the above and foregoing ordinance was
introduced, read in full, and passed on ~
reading at a regular meeting of the City Council of the
City of Aspen on
r'-2 :t
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ed in the Aspen Times a weekly newspaper of general circul-
ation, published in the City of Aspen, Colorado, in its
issue of
ap~
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regular meeting of
, 197 ~ , and was finally adopted
and approved at a
the City Council on.
~'.L cP%
, 197~, and ordered published as
Ordinance No. =?S-
, Series of 1976 , of said City, as
provided by law.
IN WITNESS WHEREOF, I have hereunto set my hand and
the seal of said City of Aspen, Colorado, this c::2 ~
day of >nA7
, 197~.
A!LL-<=/~~) .d //~-<. /
Kathryn S. ~auter, City Clerk
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Regular Meeting
Main Motion
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100 Leaves
Aspen Planning & Zoning
May 7, 1974
Ms. Baer request that the applicant get for the Commis-
sion the leasable square footage of the Patio Building
and Aspen Furniture.
'Jenkins stated that he did not feel it was appropriate
for the' Commission to make architectural decisions.
vice Chairman Schiffer stated that. he did not feel the
Commission'coulCl Beton precedents unCler Ordinance #19.
Mason'stated that he had studied the <::ommission decisions
before making h:i:s presentation. ,
AOhnson stated that he felt the garden level sho~ld be
""included ;in the floor area ratio. ' '
Ms. Baer stated that it was about the same as the Stevens
Ginn Building.
Applicant stated that they would like conceptual approval
at this time and would look at the gross area'.
Considerations given by the Planning Office included the
following: (1) Use - tourist commercial on street level
is most compatable with district; (2) Parking - If res-
taurant is open for lunch - 90 autos will be generated,
if open for dinner only, approximately 60; commercial wil
probably generate more cars than office use. (3) Employee
generation; Economic needs additional information in the
form of an economic impact study in order to calculate
number of new jobs and resultant additional population;
and (4) Landscaping: detailed plan for court area.
,Jenk;ins made a motion to give the project conceptual ap-
proval under Ordinance #19, seconded by Johnson.
. . ~
Schiffer stated that he felt it, was still. too large and
intense,an,d did not feel the Commission could look at
previous ,approvals underOidinanc,e #19 as precedents.
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Coll.ins statedthC\t he felt the bulk and the'height of
the building were too great also. Felt ,'the building was
out of step with' the other buildings on the block.
Mason stated that, he felt the variance in roof line made
the street more interesting.
,Jenkins stated that he did not feel. the Conimission should
make architectural decisions. Fe,ltthe Commission should
give applicants information on which they could take are'
fusal and come back with something different., Felt that
it would be arbitrary to disapprove this building without
a quantitative answer.
Schiffer pointed out that the ordinance states that the
Commission is supposed to consider lot and yard require-
ments, building heights subject to review and the reduc-
tion of building bulk and lot coverage are considerations
Mason pointed out that the construction costs of the pro-
ject dictate what size the building is.
<Those in favor: Jenkins and
,.,' lins ,Johnson and Schiffer.
, -15'-.
Landry. Those opposed: Col-
Motion NOT carried'. '
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ASPEN CODE
i 24-7
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Distance between buildings-no accessory building shall be
constructed within ten (10) feet from a primary build-
ing or dwelling,
Performance regul4tions for stream margins district. All
permitted and conditional uses of this district within 100 feet
measured horizontally from the high water line of the Roaring
Fork River and its tributary streams are subject to the addi-
tional performance regulations contained in the stream mar-
gins district as set forth in the supplementary regulations
11-1-9 (g) [section 24-9(g)], (Code 1962, ~ 11-1-6; Ord, No,
19-1967, ~~ 4, 5; Ord, No, 25-1969; Ord, No, 9-1970, ~ 4; Ord,
No. 9-1971, ~ 1; Ord, No, 5-1972, S 1)
Amendment note-Ord. No. 9-1971, ~ I, enacfed March 22, 1971, added
a paragraph entitled "Performance regulations 'for stream margins
district" to subsections (a) and (b). Ord. No. 5-1972, ~ 1, added the
paragraph entitled "Standards and regulations for the H, Historic
Overlay DistrictU to subsection (a).
Sec. 24-7. Commercial.
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(a) C-l COMMERCIAL: Intention-to allow the use of
land for retail and service commercial purposes, accommoda-
tions and recreational as well as for residential purposes with
customary accessory uses and institutional uses,
Uses - Permitted:
1. Any permitted use of the AR-l accommodation recrea-
tion district except patio houses subject to all use,
lot area and yard requirements of that district regu-
lation unless otherwise specified below;
2. Retail commercial establishments limited to the follow-
ing and similar uses: antique shop, appliance store,
art supply store, art gallery, bakery, bookstore, ca~era
shop, candy, tobacco or cigarette store, catalog store,
clothing store, decorator shop, department store, drug
store, florist shop, food market, furniture store, gift
shop, hardware store, hobby shop, jewelry shop, job
printing shop, key shop, liquor store, pet shop, paint
and wallpaper store, photography shop, sporting goods
,; store,stationery store, variety store,
Supp, No, 3
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ZONING
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Service commercial establishments limited to the fol-
lowing and similar uses: business office, catering serv-
ice, financial institution, personal service including
barber and beauty shop, custom sewing, dry-cleaning
pick-up station, laundromat, tailoring and shoe repair
shop, parking lot or garage, studio for instruction in
the arts, radio or television broadcasting facility,
Rental repair and wholesaling facilities in conjunction
with any of the above listed uses provided all such
activity is clearly incidental and accessory to the per-
mitted use and conducted within a building,
Storage of' materials accessory to any of the above
listed uses provided all such storage is located within
a structure.
Uses - Conditional:
6. Any conditional use of the AR-1 accommodation recrea-
tion district subject to all use, lot area and yard re-
quirements of that district unless otherwise specified
below.
7. Recreation and entertainment establishments limited to
the following and similar uses: business, fraternal or
social club or hall, billiard parlor, dance hall, ice or
roller skating rink-subject to approval of the board
of adj ustment,
8, Shop-craft industry-subject to approval of the board
of adjustment,
9. Gasoline service station-accessory to a parking garage
or structure, provided all operations are conducted
within the principal building or structure-subject to
approval of the board of adj ustment,
Use square footage limitations, -'----"',
3.
4.
5,
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--Xllpel'miited' and conditional commercial and retail
business be restricted to a maximum gross floor area
of 12,000 square feet excluding any basement area
used exclusively for storage purposes or underground
parking area except that:
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ASPEN CODE
t 24-7
a. Those uses listed in paragraph 11 below of this
subsection (a) shall be limited to 3,000 square feet;
b. Public transportation facilities, city or county
buildings and all uses of AR-l Accommodation!
Recreation District permitted under paragraph
24-7 (a) 1 shall not have a use square footage
limitation,
11. The following retail or retail discount business estab-
lishments shall be restricted to a maximum gross floor
area of 3,000 square feet, excluding any basement area
used exclusively for storage purposes or for under-
ground parking: antique shop, art supply shop, bakery,
bookstore, camera shop, - candy, tobacco or cigarette
store, catalog store, drug store, florist shop, gift shop,
hobby shop, jewelry shop, key shop, liquor store, pet
shop, photography shop and stationery store,
12, Any businesses mentioned in paragraph 11 above of
this subsection (a) of the same use type which occur
individually or jointly in a single structure or combina-
tion of structures situated upon a single tract of land
or contiguous tracts of land shall be restricted to
8,000 square feet,
18. All the above square footage limitations on use shall
not restrict the square footage of the total retail sales
area of the commercial zone districts or of buildings
occupied by any combination of more than one of
the above uses.
Minimum lot area-as provided under the AR-l accom-
modations recreation district regulation, For purposes of
density calculations, for each square foot of public arcade
space created at ground level or open space in addition to the
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1492.2
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ZONING
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A 24-7
required open space, on the building site, credit shall be given
for an additional two square feet of lot area in determining
the allowable number of dwelling units,
Minimum lot widthr-as provided under the AR-l
accommodations recreation district regulation.
Minimum front yard
1. All dwelling units except
those accessory to a more
intensive use um_____________ as provided under the
AR-l accommodations rec-
reation district regulation
2. All other uses _h_____m___U___ no requirement
Minimum side yard
1. All dwelling units except
those accessory to a more
intensive use mmmu__n__hmu as provided under the
AR-l accommodations rec-
reation district regulation
2. All other uses __m______h___u__ no requirement
Minimum rear yard
1. All dwelling units except
those accessory to a more
intensive use ___m_mum____h_ as provided under the
AR-l accommodations rec-
reation district regulation
2. All other uses __m_n ______mn buildings constructed sub-
sequent to the effective
date of this ordinance
[chapter) may extend to
the rear property line pro-
vided th&.t an open area
with a minimum horizon-
tal dimension of 10 feet
and a minimum vertical
clearance of 10 feet and
equal to 10 per cent of the
total lot area is preserved
on the ground level adja-
1493
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ASPEN CODE
f 24-7
cent to the rear lot line
and accessible to the adja-
cent street or alley.
Maximum height of building ____ 37% feet,
/"
/ Further provided that the total floor area of the
structure above ground shall not exceed two (2) times
the total lot area of the building site on which the structure
is located. Further provided that for each square foot of
public arcade space created at ground level or open space
in addition to the required open space on the building site,
credit shall be given for an additional two square feet of
floor area in the structure over the allowable 2:1 ratio,
The 37% foot maximum height limitation shall still be
observed in this latter instance; and further provided that
no building or structure shall be constructed higher than 25
feet above grade within 10 feet of the front or rear lot line,
Minimum off-street pa,-king-as provided under sup-
plementary regulations.
MtWimum sign area
\
1. Business advertising, identification sign in conjunction
with permitted uses, except residences, provided such
signs identify a business occupying the premises, The
aggregate sign area permitted along anyone street
shall not exceed one square foot of sign area for each
three feet of lot line frontage occupied by or projected
from the building within whkh the principal use is
conducted, Uses fronting on an alley shall compute
their sign area allowance by considering the alley as
the lot line frontage, In no case shall the aggregate
sign area for anyone use on anyone frontage exceed
20 square feet, There may be a combination of two of
the following three types of signs: a free-standing
sign, projecting sign and wall sign, including cut-out
letter sign-subject to the following limitations:
a. Free-standing sign-one per use not to exceed 10
square feet in area,
1494
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ZONING
b. Projecting sign~hall not e:x:tend more than 4
feet from the building wall except where such a
sign is an integral part of an approved canopy or
awning, and no projecting sign shall exceed 6
square feet in area where two faces are visible or
10 square feet in area where only one face is
visible,
c. Wall sign--shall not exceed 10 square feet on any
one building wall, exclusive of cut-out letters,
d, Office building registry-a wall sign or freestand-
ing sign identifying included business offices not
to exceed one square foot in area, per 'office. Such
sign shall be excluded from regnlar sign area limi-
tations.
e. Historic sign-a wall sign identifying a structure
of historic interest, not to ex~d 10 square feet
in area. Such sign shall be excluded, from regnlar
sign area limitations and shall be located only on
historic buildings.
Open space requirement-All construction shall be re-
quired to have not less than twenty-five per cent (25%) of
the building site for open space [as defined in section 24-
2(00)], subject to the following:
(1) The minimum frontage of the open space which is
open to a street shall be one-half (1;2) of the dimen-
sion of that side of the building site, or one hun-
dred (100) feet, whichever is less.
(2) The minimum depth of the open space which is
open to a street shall be ten (10) feet measured
at right angles from the front lot line.
Required open space shall not be more than four
~4) feet above nor more than ten (10) feet below
the existing grade of the street which abuts said
open space.
The open space shall be continuous and not ob-
structed with building appurtenances and append-
ages. Stairways and overhead walkways will be
considered obstructions.
Supp, No.7
1495
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/ 620 E,
~ CITY~ O~PEN -COUNTY OF PITKINU,
'~
Hyman Street, Aspen, colorado 81611
COKAUU
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GENERAL
CONSTRUCTION,
PERMIT
1
(LASS OF WORK:
OWNER
NAME
NEW IX ,ADDITION 0
I,
ALTERATION 0
WHEN SIGNED AND VALIDATED 8'( BUILDING INSPECTION DEPARTMENT THIS PERMIT ....UTHORIZES THE WORK, DES.CRIBED'BELOW.
.
REPAI~'015'75 MoJ&fO#w\lH36 5
620 Hyman Street Associates
ADDRESS
Bo".15000
LICENSE
CLASS
A
-r
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g ~AME (AS LICENSED)
U,
<(I
~ I ADDRESS
z '
o I SUPERVISOR
U FOR THIS JOB
Greer Construction Company
81615
PHONE
925-2805
P.O. Box 5698, West Village, Co.
Warren Bodie
NAME
_EG,\L
)ESCRIPTION
LOT HO, P arid Q
BLOCK NO. 9,9 AOD.lnON
ATTACHED 0 DESIGN ' " · ,",. '
ByTho~as Wells & Associqtes
SUI,VEY
BY Tri"Co Management
"flU. '.\.f.)
AT (,;IU,D(
AGENCY
". I
PHONE 925~2122
LICENSE
NUMBER
5733
INSURANCE
rn:
DATE CERTIFIED
A
PE
L,e C -811
NO:
HEIGHT
(HE!) 27:' -411,
NO,
~TOR1ES 2'
TOTAL
UMIJ'S
OCCUPANCY
GROUP 1'\3 & F2
DIY,' ,
3AScMENT
fiN 0
UNflN g]
'4
TYPE fiRE
COHST~, 3 H. T.& 3-1hizoJoi' 1
AUTHORIZED
BY
VALUATION $
OF WORK' ,'~DO)()OO--
pO TOTAL FEE
'.~8'7.00\
DavBli CHECK 0,' "3' \. ., <,/.
,FEE 0 ,CASH ,0$ ~SS'
'BUlL ING. DEPARTMENT
(:
SINGLE 0 ATTACl-'lEt:>O ~OTAI.
DOU~LE: 0: OET ACHED 0 ROOMS
':llzt ?PACING
S}jj":x,'16>;" 5'-4i'o.c.
SPAN
20'-0" '
z
o
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<
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;:l
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FIRST'
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BUilDING
REYIEW
II>
l-
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o
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O',TERlOR
lOOTING
\llf 1011 X 16"
IX H'RIOR CONe. ~
: ON WALL 8"
111lCKNESS MAS'Y_O
CEILING II.
5/0" x 16>0"
5'-4"0.c.
20'-0"
ZONING
PARKING
ROOF
5~" X 12"
5'-4" o.c.
20'-0"
PUBLIC HEALTH
CAISSO~S 0
& GR. BEAMS
ROOF I NG
-MATERIAL
~t~~K 0
Asbestos Built - u RFG.
ENGINEERING
MASONRY ABOVE ABOVE ABOVE
=XTERIO THICKNESS 1ST .FLR. 8" 2ND FLR. 8" 3R(1 FLR.
WALL STUD Sill 6 ABovE ABOVE ABOVE
&- SPACE X 1ST FLR. 2ND FLR, 16"0.c. 3RD FlR.
REMARKS (;:
i NOTES
I
I
'1 .0 0 <=--<L
,'s"<)~
TO APPLICANT:
f<);{ INSPECTIONS OR INFORMATION CAll 'l2S - 733&
1()1i All WORK DONE, -UNDER THIS pERMIT THE PERMITTEE ACCEPTS fULL RESPOHSlllllTY fOR
COMPLIANCE WITH THE, UNIFORM' BUILDING CODE; THE COUNTY -lONING RESOLUTION OR CITY
;~-;:--';ING_ ORDINANCE. AND ALL .otHER COUNTY RiSO(UTl9-NS OR CITY ORDINANCES WHIC.HEVER'
:,PPlIES, " . '- ',' ,.', " '. " ".,
t P AltAYE PUMITS MU'sl' BE OB,TAINED FOR, ELECTRICAL. PL:UM,BING 'AND HEATING, SIGNS,
~'.'IIMMING POOLS AND FENCES. . " , ." . '.
Hktl.!T EXPIRFS 60 DAYS FROM' DATE ISSUED UNLESS:WORK-IS STARTED,
. ' .. " '
PLAN
FILED
H[~UIRED INSPECTIONS SHALL BE RtQUE$TtD:OHE WORKING DAY IN_ADVANCE, , .'
, ' '
ALL fiNAL INSPEctiONS' SHALL BE. MA~~, OMALL I'rEl~.S.-OF .W.O~K 8[fOREO_C~UP,AHCY I~P[R,MlTT.ED~ :'"
; HIS BUILDING SHALL NOT BE OCCUPIED UNTIL ,^ CER!IFIC~i,E..OF OCCUPANC-Y- HASB~EN IS~UE~."O
PfRMIT SUtHCT TO OCATIOH OR S NSION fOR VIOLA..!j>N OF ANYMWS' GOVERNING sAMt,'
SIGNATURE " -r~c:nr;--, ~, ',j,', ",
OF I' " ",'
APPLICANT: '-, ,~
A'P,ROV'AL: IY
,HIS FORM
'NHEN VAL
)
, '
b-lo-l{\j"~';"1 r;j
. DATE '
'ERMi~ NO:
Ll~ENU 11
A PERMIT ONLY
ATEDHERE
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,L\SPEN.PITKIN REGIONAL BUILCING CEPARTMENT\
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--'.....,~
MEMORANDUI1
i'ROi"': ,
Bill Drueding, Zoning Enforcement
vfiJO
[jf::>n~~[ ~
~(I';~:" ~~nn" l
~\ r ::~ 0' 7 1983
II ~'
I~SPE.N I PITKIfof'CQ,
" PLANNING OFFICE
,'0 :
Gary Esary, Asst, City Attorney
JATE:
November 11, 1983
RE: Abetones - GMP ExemDtion
fr,,;,-, , ,i -, c,
- - .'"' . ~ . .
Per ;:he request of P&Z to determine whether the outdoor courtyard ,had
been counted as F.A,R, at the time of the original permit, I have
reviewed our files,
.'\t t"e time of building permit issuance there was a definition to
,alculatc floor area. This department'has calculated the floor area
C\vic: using that definition and cannot see that t'he cour:tyard could
'laVe beell counted as floor area, Also, files indica'teed that Clayton
~eyrlng's calculation done at the time of the original permit ~id not
,nc 1 ude the courtyard as floor area.' However, it, appears ,that he
~ay have counted the courtyard and seating to determine occupanqy
load for the restaurant: I ha~e m~de these files av'ilable to Mr,
raul RubIn,
On November 7, 1983, I spoke with Clayton Meyring via telephone,
Clayton recalled the building and stated "that he would not have
counted the courtyard as floor area. It was 1ust a yard, not a
builc:ing", He further stated "he' may have counted the courtyard
en occupancy calculations because people sitting out there would have
log t up those stepsll.
:'he c;u i Iding currently has a 1. 83: 1 F. A. R. and as indicated in Jim
>ills'!Il's letter of October 13, 1983, is non-conforming in that
respect, Section 24-13,3 states that a non-conforming structure
cannot be enlarged in such a .way ,tha,t increases its non-conformity,
GD/ a"
offices:
110 East Hallam Street
Aspen, Colorado 81611 303/925-5973
mail address:
506 East Main Street
Aspen, Colorado. 81611
r~
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MEMORANDUM
TO: Aspen Planning and Zoning Commission
FROM: Colette Penne, Planning Office
RE: Abetone - GMP Exemption
DATE: October 18, 1983
LOCATION: Garden Level, 620 East Hyman Avenue
ZONING: C-l
APPLICANT'S
REQUEST:
Approval of a GMP exemption per Section 24-11.2(p)
for an expansion of Abetone Ristorante of less than
500 sq. ft.
REFERRAL
COMMENTS:
The Engineering Department made the following state-
ments: '
"1. It would appear that the proposed room will
enclose the existing drain inlet in the outside
area. Some further detail regarding how drainage
and snowmelt in the lower level will be handled
would be appropriate.
2. Some additional evening parking need will be
generated by the enclosure of the outside area
but it should not be significant and will not
conflict with the daytime activity of most
surrounding businesses."
PLANNING
OFFICE
REVIEW:
The development activity which may be exempted from
complying with GMP allotment procedures by the
Planning and Zoning Commission per Section 24-11.2(h)
is "the expansion of an existing commercial or office
use in a builidng by not more than five hundred (500)
square feet, excluding employee housing, for the pur-
poses of providing a small addition of space which can
be shown to have minimal or manageable impact upon
the community and can be justified by the benefit
which will accrue to the Community." The determination
of minimal or manageable impact on the community should
consider the following:
(1) A minimal number of additional employees will
be generated by the expansion or the applicant
will provide additional employee housing.
(2) A minimal amount of additional parking demand will
be created or that parking can be accommodated
on-site.
(3) That there will be minimal visual impact on the
neighborhood due to the project.
(4) Minimal new demand is placed on services available
at the site such as water, sewer, roads, drainage
and fire protection.
"
,"
--
"
""
MEMO: Abetone - GMP Exemption
October 18,'1983
Page Two
PLANNING
OFFICE
RECOM-
MENDATIONS:
The applicant submits that no new employees will be
needed as a result of this expansion. Presently,
meals are being served in the bar area and this will
be eliminated. Also, of the 445 square feet of
area, 115 sq. ft. will be landscaping and 330 sq.
ft. dining area. This ,same space has historically
been used for a summer season outdoor eating area,
The space accommodates approximately four tables.
Considering that this space has been used for dining
and waiters have been serving meals in the bar area
and will not be serving in the bar area when this
new space is available for winter use, we believe
the case for no new employees is justified.
The Engineering Department agrees with the applicant
concerning parking and considers that any new generated
parking need is not significant. Also, because of
operation only in the evening, there is no conflict
with the daytime activity of most of the surrounding
area.
The question of visual impact is not a consideration
in this case. First of all, the restaurant is on
the lower level and this roof will not be visible at
street level. Secondly, if the addition is visible,
it is considered by this office to be a positive
element and not one that would be a negative neighbor-
hood impact.
This incremental addition will have no effect on
existing levels of services. It will have a positive
effect on the runoff situation at the site, and will
add a passive solar element for the heating and
cooling of the interior space. The project architect
will be present at the meeting, to discuss the
operation of the glazed roof in site drainage and
to answer the concerns of the Engineering Department.
The limitation of Section 24-11.2(h) that the maximum
cumulative additions within any building can be only
500 sq. ft. is not an issue in this case, since this
building has not expanded in this manner previously.
The Planning Office recommends approval of a GMP
exemption per Section 24-l1.2(h) for the proposed
expansion of Abetone Ristorante of 445 square feet.
ASPEN.PITKIr.- REGIONAL BUILC..'\iG DEPARTMENT
MEMORANDUM
TO: Colette Penne, Planning Office
FROM: Jim Wilson, Chief Building Official ~
DATE: October 13, 1983
RE: Abetone GMP Exemption
Building Department records indicate the existing building at
620 E. Hyman St. is currently oversized, hence nonconforming.
The building is located in a C-l zone which allows a 1:1 F.A.R.
With its current F.A.R. at 1.83:1, the proposed addition is
an enlargement of a nonconforming structure, prohibited by
Section 24-13.3, Aspen Municipal Code.
JJ/ar
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offices:
110 East Hallam Street
Aspen. Colorado 81811 303/925-5973
mail address:
506 East Main Street
Aspen, Colorado 81611
"....
-
:)
MEMORANDUM
TO: Colette Penne, Planning
FROM: Bill Drueding, Zoning Enforcement Officer
DATE:
October 12, 1983
tALi)
RE: Abetone's GMP Exemption
The property is located in the C-l zone district, requiring 25 percent
open space. The area in question appears to be required open space.
Section 24-3.7(d) (3) states, "Required open space shall not be more
than four (4) feet above grade nor more than ten (10) feet below
existing grade of the street which abuts the open space." However,
other requirements of open space indicate that certain activities
are not permitted in open space. Outside dining is permitted by
Planning & Zoning review. This application would also reduce trail use
capabilities. Section 24-3.7(d) (4) states, "In the event that the City
of Aspen shall have adopted a trail plan incorporating mid-block
pedestrian links, any required open space must, if the city shall so
elect, be applied and dedicated for such use." This application
with a greenhouse-type roof would prohibit any activity in this
current open space. It is my interpretation that open space is not
only visibly open but also usable. This application would decrease
open space, thus causing a non-conforming situation in regards to
open space.
BD/ar
cc: Patsy Newbury
Paul Taddune, City Attorney
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MEMORANDUM
FROM:
Colette Penne, Planning Office
Jay Hammond, City Engineering~
TO:
DATE:
September 30, 1983
RE:
Abetone GMP Exemption
-----------------------------------------------------------
Having reviewed the above application for GMP exemption
of a 445 square foot addition to Abetone, and having made
a site inspection, the Engineering Department has the
following comments:
1. It would appear that the proposed roof will enclose the
existing drain inlet in the outside area. Some further
detail regarding how drainage and snowmelt in the lower
level will be handled would be appropriate.
2. Some additional evening parking need will be generated
by the enclosure of the outside area but it should not be
significant and will not conflict with the daytime activity
of most surrounding businesses.
JH/CO
-cqo9<;? n1
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;.sPEN 1<'" ''':' ,,.,'
" ~N~iNG Qti'l'"t.
,
CIT
MEMORANDUM
DATE: September 14, 1983
TO: Colette Penne
FROM: Paul Taddune
RE: Abetone - GMP Exemption
ree t
1611
We have no comments regarding this application.
PJT/mc
\., ,-c,
September 2, 1983
Planning Office
City of Aspen
130 S. Galena
Aspen, CO 81611
To whom it may concern:
This letter is intended to serve as a request by Dl3' clients, Mr. Daniel Surin'
and Mr. Ermanno Masini, owners -,of Abetone Ristorante for an exemption of the
allotment procedures as delineated in Section 2~11.2 of the Citr of Aspen Code.
The attached conceptual design proposes to enclose the existing outdoor patio,
area. This area is within the legally described real estate leased to WIT clients. ,
The planned enclosure encompasses a total of approximately 445 square, feet. 330
square feet of this area has historically been used as an outdoor eatiJII area.
A large portion of the remaining footage (115 sq. ft.) will c~ntinue it's, preseat '
useage as a green space. Our preliminary conceptual design calls for landscaped
green space in a portion of the area previously used as dining patio sxclusively.
Along with year round use of this space for dining, it will as well replace
a winter snow catchment within greenery. The thermal, mechanical and structural
elements will refine these conceptual studies.
The proposed addition will not necessitate more empla,rees. The seating
capacity therein merely will eliminate the serving of meals to patrons in the
bar area as is often the case currently.
I do not feel that parking represents a problem as Abetone serves only in
the evenings and is located in one of the few areas in town where parking is very
seldom a problem.
The drainage ramifications are nil. The eouth facing glazing will in fact
facilitate a steady runoff as opposed to the current spring surge. The existing
drainage systems should serve the addition well.
Abetone's has developed a worldwide reputation for culinary art and has
retained Dl3' services to design this addition in a,manner that allows the restaurant
to enhance the local and visitor population's s~ial eXperience. The design will
not only be an aesthetic plus but will also deo~ thebuildiug's thermal
requirements; both heating and cooling loads, through a passive solar Il7stell.This
system will not only save energy but will provide a great deal more bw8an comfort., '
" , 1
,
, \
If you have a~ questions or need of further infor_tion ragardilll this
submittal, please feel free to contact me.
"......
envirodesign,
paul rubin
Itd,
,
p,o, box 968,
basalt. colorado
81621 927-3636
john katzenberger
~
,
MEMORANDUM
TO:
c;ity Attorney
Ai ty Engineer
Building Department
FROM:
Colette Penne, Planning Office
RE:
Abetone - GMP Exemption
DATE:
September 8, 1983
Attached is material submitted to the Planning
with an application made by Abetone Ristorante
based on Section 24-11.2(h) of the Aspen Code.
enclose an existing patio of approximately 445
Office in connection
for a GMP exemption
They propose to
sq. ft.
Please review the materials and return your comments to
Planning Office by October 4 , 1983, so
may prepare for its presentation at the Ocrnhpr 18
meeting before the Aspen planninq & Zoninq Commission
the
that we
, 1983,
Thank you.
~WffiRCIAL LEASE
----------------
Aspen, Colorado
Da t e : q I ~ { 8 ~
1. PARTIES AGREEMENT
-----------------
1.1 Parties to this agreement are:
a. 620 Hyman Associates, 620 East Hyman Avenue,
Aspen, Colorado 81611, hereinafter called
"Landlord"; and
b. Masini & Surin, ltd., d/b/a Abetone
Ristorante, Inc.
hereinafter collectively called "Tenant".
1.2 The parties hereto agree to lease the property
hereinafter described for the term and upon the conditions
specified in this Lease.
1.3 Each party, in consideration of the promises of
the other, agrees to do everything herein requi red to be done
by the express provisions or necessary impl ications of this
business Lease.
2. GENERAL DEFINITIONS
-------------------
For the purpose of this agreement the following words
and phrases shall have the meanings assigned to them below:
2.1 ~!:!~i~~!_~!.~.e~!.!:i. means
estate of which the DemIsed Premises is
particularly described as follows:
the Landlord's real
a part, which is more
620 Hyman Building
620 East Hyman Avenue, City of Aspen
Pitkin County, Colorado
2.2 Demised Premises means the Garden
Patio Area of the-S-u-bject-Prope-rty, as indicated in
attached hereto as Exhibit "A" and by this
incorporated herein, consisting of approximately
feet, plus the outside patio area.
Level and
the diagram
reference
4240 square
be made
I imi ted
2.3 g~~!.~~!~!._~!_Q~~!:!.e~~~ means the
of the Demised Premises by the Tenant
to restaurant and bar.
use intended to
which shall be
2.4 Consumer Price Index as used herein in
connection with-Che-provlsTo-ns-regard-ing adjustments to rent
means the publication of the Bureau of Labor Statistics of the
U.S. Department of Labor, 911 Walnut Street, Kansas City,
Missouri, which is published monthly, a sample of which is
attached hereto as Exhibit "B" and by this reference
incorporated herein.
2.5 ~~!.~~~!_g~~~g~_=_~!!_!!~~~ is the figure
supplied in the Consumer Price Index which reflects the index
change for consumer items, U.S. City Average relative to Urban
Wage Earners and Clerical Workers over the twelve month period
immediately preceding the month in which said Percent Change -
All Items is published in the Consumer Price Index. If at any
time of adjustment of the Monthly Rental herein paid, Consumer
Price Index is no longer publ ished, the parties shall use such
other index as is then generally recognized or accepted for the
purpose of making similar determinations of purchasing power.
Other words and phrases used in this agreement shall
have such meanings as shall be assigned to them from time to
time throughout the various provisions of the agreement.
3. TERM OF LEASE AND POSSESSION
----------------------------
3.1 Basic Term means the ini tial term of this Lease
which shall comn,-e-nce-a-f 12:01 p.m. on the 1st day of August,
1983, and shall terminate at 12:00 noon on the 31st day of
December, 1989. Unless otherwise provided, the Tenant's
possession shall commence on the first day of the Term.
3.2 Renewal Term means the period of any extension
of this Lease be-y-oliCi-The-Basic Term on account of the exercise
by Tenant of any Option to Renew this Lease now or hereafter
subscribed by the parties.
4. RENT
The amount payable to Landlord by Tenant in
consideration of Landlord's leasing the SUbject Premises to
Tenant shall be comprised of the following elements subject to
adjustment as herein provided:
4.1 M~~!~l~_~~~!~l means the rental which shall be
payable in advance on the first day of each calendar month
during the Term, in the initial amount of $4,797.00 unti 1
January 1, 1984, when said rent shall increase to $5,653.33 per
month, provided that the amount of such Monthly Rental shall be
adjusted annually to reflect upward changes, if any, in the
Consumer Price Index calculated in accordance with the
provisions of 4.3 hereof.
4.2 ~~~!_~i._E~l~L~~i.!!~!I!!~~!~ means upward
adjustment only, to the Monthly Rental which shall first be
made as of the first day of January, 1985, and annually
thereafter, including any extensions or renewals hereof
(hereinafter called ~~i.!!~!I!!~~! Q~!~~) to reflect upward
changes, if any, in the Consumer Price Index since the month of
January, 1984.
4.3 Calculation - Cost of Living Adjustments shall
be calculated as-roTTows: the Monthly Rental in effect on a
particular Adjustment Date shall be multiplied by the number
appearing under the category "Urban Wage Earners and Clerical
Workers, U.S. City Average, Percent Change From 1 Year Ago, All
Items", which is published in the Consumer Price Index for the
month of the Adjustment Date in question, if, and only if, said
number reflects an increase, i.e., an upward change; provided,
however, in no event shall said Adjustment exceed ten percent
(10%) for anyone annual Adjustment. The product of that
computation shall then be ad(ed to the Monthly Rental and that
figure shall automatically become the new Monthly Rental,
effective until the next succeeding Adjustment Date, at which
time that new Monthly Rental shall be the basis for the
calculation of the next Cost of Living Adjustment. The new
Monthly Rental shall be payable as of the applicable Adjustment
Date. Since the Consumer Price Index is not published until
approximately two months subsequent to the month for which it
is applicable, Tenant's obligation to pay any increase by
virtue of a Cost of Living Adjustment shall not arise until the
next regular rental payment date following notice of the amount
of the new Monthly Rental by Landlord. However, on that
payment date, Tenant must pay the total of any sums due
Landlord by virtue of the Cost of Living Adjustment which was
calculated as of the Adjustment Date in question.
2
4. 4 ~!:!!~!E!:~_.f~!:_~~~!:_~1a l~!:!!L~.f_~!:!!~. 1ft he
Tenant fai Is to pay an installment 0 the minimum rent by the
10th day of the month in which it is due, he must add $100.00
to that installment as additional rent.
4.5 ~~l~!:!!!_~.f_!!:!!~!!!~~_~!!_~~l!l!l~~.
a. Tenant shall be responsible for, and agrees to
promptly pay for, all charges for gas, electricity, telephone,
all of which are separately metered to the Demised Premises,
and shall indemnify Landlord and hold Landlord harmless from
and against any I iabi I i ty or charges on account thereof. In
the event any such utility charges are not paid by Tenant when
due, Landlord may at its sole option pay the same to the
utility company or department furnishing the same, and any
amount so paid by Landlord shall become additional rent due and
payable by Tenant on the first day of the month following the
month in which Landlord made such payment. With regard to all
utilities, whethei' or not supplied by Landlord, it is mutually
agreed that Landlord shal I not be I iable in damages or
otherwise for any interruption or fai lure thereof when such
interruption or failure is not due to the negligence of
Landlord.
b. Tenant further agrees that Tenant wi I I not
install any eqlJipment which will exceed or overload the
capacity of any utility facilities, and that if any equipment
installed by Tenant shall require additional utility
facilities, they shall be installed and maintained at Tenant's
expense in accordance with plans and specifications which have
received prior written approval of the Landlord.
5. SECURITY DEPOSIT AND LAST MONTH'S RENT
--------------------------------------
5.1 ~!:~!:!.!:l!l,..!2!:E~~l!. Ten an t doe s he r e by ag r e e to
post a secur i ty depos 1 tin the amount of $ nla
(receipt of which is hereby acknowledged by-CandTordT;--as
security for the faithful performance by Tenant of the terms
hereof, to be returned to Tenant, on the full and faithful
performance by him of all the terms, provsiions, conditions,
and covenants of this Lease. Such security deposi t shall also
be held to cover any damages, repairs, replacements, non-
payment of utilities, and cleaning when the unit is vacated.
At no time may the Tenant use this deposit in lieu of rent. In
the event this deposit does not cover the proceeding items,
Le., damages, etc., the Tenant shall be liable for all
additional costs and expenses incurred. It is mutually agreed
that Landlord shall have sixty (60) days after the termination
of this Lease to return the full or adjusted security deposit
to Tenant.
5.2 Last Month's Rental. It is hereby agreed that
Tenant shall pay-fhel-a-sTm-onTh's-rental under this Lease, in
the amount of $ nla , (receipt of which is hereby
acknowledged), $-----n/-a-------due on or before nla
19 . In the event-that-the Tenant should breach-any-oI-the
t errris~ pro vis ion s, con d i ti 0 n s, 0 r co v en ant s 0 f t his Lea s e, i t
is mutually agreed that Landlord may retain said .last month's
r en t a I a s I i qui d ate d d am age s for the b rea c h 0 f t his Lea s e by
Tenant, it being mutually agreed that the retention of said
last month's rental shall not preclude Landlord from the right
to recover for any damages done by Tenant to the premises or to
any furnishings which have been provided by Landlord.
6. LANDLORD'S RIGHT TO SUBORDINATE LEASE
Q~_QQ~~~I~I~I~~_I~~~QY~~!~------
This Lease may, at Landlord's option, be subject and
subordinate to the I ien of any trust deed or deeds, mortgages
or liens resulting from any other method of financing or
refinancing herebefore or hereafter placed upon the Demised
Premises, and to all other amounts advanced thereunder or
secured thereby, and all renewals, replacements, modifications,
consolidations and extensions thereof; provided, however, that
in the event of any foreclosure or other suit, sale or
proceeding thereunder, Tenant, if not then in default hereunder
wi 1 1 not be made a party to any such suit or proceeding, and
the same shall not affect the rights of Tenant under this
Lease. Tenant agrees to execute such instruments as may
reasonably be required by any beneficiary or mortgagee to
e v ide n c e and ma k ear e cor d 0 f the fa c t t hat t his Lea s e i s to be
infer i or to any such deed of trus t or mor tgage. Land lord
reserves the right, without the consent of the Tenant, to
execute and record such declarations, restrictive covenants,
maps or other documents for the purpose of subdividing the
Subject Property into condominium units and common elements
pursuant to the Colorado condominium Act, provided, that if any
portion of the Demised Premises shall be included in a
condominiWll unit, the Landlord's right as declarant and owner
thereof shall be subject and subordinate to the possessory and
other rights of the Tenant to the Demised Premises under this
Lease.
7. TENANT AGREES
-------------
7.1 To pay rent promptly in advance as herein
provided, to the address of Landlord shown above or as
hereafter designated by Landlord.
7.2 Tenant, having examined the Demised Premises, is
familiar with the condition thereof, and relying solely on such
examination, will take them in their present condition, unless
otherwise expressly agreed upon in writing. Tenant shall take
good care of the premises and shall, at the Tenant's own cost
and expense, maintain the Demised Premises, including the
stairway to the street level and areas adjacent thereto, make
all repairs thereto, including painting and decorating, shall
del iver up the leased premises in good condition and order,
wear and tear from a reasonable use thereof and damage by the
elements not resulting from the neglect or fault of the Tenant
excepted. The obligation to maintain and repair extends to all
mechanical systems including but not limited to air
conditioning, air handling and sewage ejection system, and to
plWllbing and electrical wiring and the heating plant, although
any repairs or replacements to the..J1eating plant -&flllll, the
total cost of which exceeds $500.00~ADe performed at Landlord's
expense.
7.3 To permit no pets to be kept on the premises and
not to allow any party to remain overnight on the premises.
7.4 Not to ues the premises for any purpose contrary
to applicable law, ordinance or regulation.
7.5 To prevent any disorderly conduct, noise or
nuisance whatever on or about the premises.
7.6 To prevent overloading or abuse of floors, walls
or structure and to prevent any use of the premises which would
render the insurance void or the insurance risk more hazardous.
7.7 To permit Landlord to advertise the premises for
rental a reasonabl e time before the 1 ease expi res or the
tenancy otherwise terminates. Signs or other devices for said
purpose may be placed in or about the premises, and Landlord
and his agents may enter the premises at any reasonable time to
show the premises to prospective tenant, but not sooner than 90
days prior to the expiration of lease.
7.8 To keep the Demised Premises, its appurtenances
and the surrounding pUblic areas in a clean condition, free
from hazard to health or safety to persons and property.
7.9 Not to place any sign, notice, nameplate or any
other device on the subject Premises without first obtaining
the written approval and consent of the Landlord, which may be
given or withheld at Landlord's sole discretion. Landlord
hereby approves of the existing signs which have been installed
by Tenan t .
7.10 To permit Landlord, at all reasonable hours
other than Tenant's normal business hours, access to the
Demised Premises for the purpose of install ing or working on
internal utility lines.
7.11 To permit no concessionaire or licensee to
operate on the Leased Premises without the Landlord's prior
written consent.
8. ADDITIONS AND ALTERATIONS
-------------------------
Tenant sha 11 not make or permi t to be made any
alterations, additions or changes to the Leased Premises
without the prior written consent of Landlord. All work with
respect to permi tted al terations, addi tions and changes shall
be done at Tenant's sole expense in a good and workmanlike
manner by persons approved by Landlord. Upon a termination of
this Lease, Landlord shall have the following options with
respect to any such improvements: (a) all or any part of such
alterations, additions or changes may be considered as
improvements which shall not be removable by Tenant, but shall
become a part of the Leased Premises, and in such event, Tenant
shall not have the right to remove the same; or (b) in his sole
discretion, Landlord may require that any alterations,
additions or changes be removed and the premises restored to
theiroriginal cond,ition, all at Tenant's expense. Any such
alterations, additions or changes shall be made strictly in
accordance wi th all ord i nances and regu I at ions re 1 at i ng
thereto. The parties acknowledge that Tenant is the owner of
all of the furniture, fixtures, kitchen equipment, hood exhaust
system, bar, cabinet work, window coverings, lighting
fixtures, and other personal property situated within the
demised premises, and the air conditioner located upon the roof
of subject property. Notwithstanding anything contained herein
to the contrary, Tenant shall have the right to remove all of
its property, as aforesaid, upon the termination of this lease,
subject to the Landlord's lien provided for in Section 13
hereof, provided that if the removal of any of Tenant's
property causes damage to the walls, floors or ceiling of the
demised premises, or leaves said walls, floors or ceiling in an
unfinished condition, then Tenant shall repair or refinish the
demised premises as may be appropriate.
9. MECHANIC'S LIENS
9.1 Tenant shall not permit any mechanic's,
materialmen's or other lien to stand against the Leased
Property for work or materials furnished to the Tenant;
provided, that Tenant shall have the right to contcst the
validity of any lien or claim if the Tenant shall first have
posted a bond to insure that upon final determination of the
validity of such lien or claim the Tenant shall immediately pay
any judgment rendered against him wi th all proper costs and
charges, and shall have such I ien released without cost to the
Landlord.
9.2 If Tenant shall be in default in paying any
charge for which a mechanic's lien, claim or suit to foreclose
a lien has been recorded or filed, and shall not have given
Landlord security as aforesaid, Landlord may (but without being
required to do so) pay said I ien or claim and any costs, and
the amount s so pa i d, toget her wi th reasonab I eat torneys' fees
incurred in connection therewith, shall be immediately due and
owing from Tenant to Landlord with interest at the rate of
twel ve percent (18%) per annum from the dates of Landlord's
payments.
9.3 Should any claim of I ien be fi led or recorded
against the Leased Property, or any action affecting title
thereto be commenced, Tenant shal I give Landlord written notice
thereof as soon as he has knowledge thereof.
9.4 Landlord shall have the right to go upon and
inspect the Demised Premises at all reasonable times, and shall
have the right to post and keep posted hereon notices such as
those provided f'or by Section 38-22-105, C.R.S. 1973, or which
Landlord may deem to be proper for the protection of Landlord's
interest in the Demised Premises against statutory liens for
labor and materials.
10 . LANDLORD AGREES
10.1 To provide water, sewer service and trash
removal for the leased premises, and uti I i ties for common areas.
10.2 To del i ver to the Tenant the Leased Premises
in their present condition with ~II sewer and drain connection
and lines, plumbing and electrical wiring in good working order
and repair. Landlord shall be responsible for and keep the
structural members of the building and the roof in good repair.
Landlord shall be responsible for all major repairs or
replacements to the heating plant. It is expressly understood
and agreed, however, that Landlord shall have no obligation to
repair or replace interior walls or additions or alterations to
the premises by the Tenant, or to remedy problems caused by any
such additions or alterations except where such repair or
replacement is caused by Landlord's negl igent or wi Ilful acts.
It is further understood and agreed that all other obligations
of maintenance and repair shall be the Tenant's as hereinabove
provided, including, but not by way of limitation, the
replacement of all glass, both interior and exterior, broken
during the term hereof.
11. ASSIGNMENT AND SUBLETTING
-------------------------
The Tenant shall never assign or sublet this Lease or
any portion of the Demised Premises without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld.
If Tenant is a corporation, the transfer of 50
percent or more of the stock of said corporation shal I
constitute an assignment requiring consent of Landlord in
accordance with this section
12. INSURANCE
12.1 Landlord shall insure the structure of the
Leased Premises against fire, normal extended coverage perils,
vandal ism and mal icious mischief. It is understood that
Tenant's use of the Leased Premises for a food service
establ ishment may cause the fire insurance coverage for the
bu i I ding to be grea ter than t he norma I ra tes charged for a
simi lar commercial bui Iding that does not have a restaurant as
a Tenant.
12.2 Tenant shall maintain workmen's compensation
insurance as required by law.
12.3 Throughout the term of this Lease, the Tenant
shall carry and maintain in effect insurance covering his trade
fixtures, equipment, furnishings, leasehold improvements and
plate glass, which insurance shal I protect against fire, normal
extended coverage perils, vandalism, malicious mischief, and
sprinkler malfunction. Such insurance shall provide coverage
to the extent of at least ninety percent (90%) of the insurable
replacement cost of the insured property.
12.4 Both the Land lord
right of subrogation which their
acquire against either of them.
and the Tenant waive
respective insurors
any
may
12.5 The Tenant at his own cost and expense shal I
provide and keep in full force for the benefit of the Tenant
and the Landlord (as named or additional insured) during the
term hereof or any extension or renewal period, general public
liability insurance, insuring against any and all liability, or
claims or liability arising out of, occasioned by or resulting
from an accident or otherwise in or about the Leased Premises,
for injuries to any person or persons, for I imi ts of not less
than Three Hundred Thousand Dollars ($300,000.00) for injuries
to one person and Five Hundred Thousand Dollars ($500,000.00)
for injuries to more than one person, in anyone accident or
occurrence, and for loss or damage to the property of any
person or persons, for not less than One Hundred Thousand
Dollars ($100,000.00). The pol icy or pol icies of insurance (or
certificate of insurance therefor), shall be issued by a
company or companies authorized to do business in this State
and copies thereof shall be del ivered to the Landlord, together
with evidence of the paymentof the premiums therefor, prior to
the commencement of the term hereof or the date when the Tenant
shall enter into possession, whichever occurs sooner. The
Tenant also agrees to and shall save, hold and keep harmless
and idnemnify the Landlord, from and against any and all
payments, expenses, costs, attorneys' fees and from and against
any and all claims and liability for losses or damage to
property or injuries to persons occasioned wholly or in part by
or resulting from any acts or omissions by the Tenant or the
Tenant's agents, employees, guests, licensees, invitees,
subtenants, assignees or successors, or for any cause or reason
whatsoever arising out of or by reason of the occupancy by the
Tenant and the conduct of the Tenant's business.
13. LANDLORD'S LIEN
---------------
The Landlord has a first lien on the rights and
interest of the Tenant under this Lease to secure payment of
all sums at any time becoming due to the Landlord hereunder and
to secure the proper performance and fulfillment by the Tenant
of the Tenant's agreements hereunder. As further secur i ty for
this lien, the Tenant hereby gives to the Landlord a security
interest in all of the personal property which the Tenant shall
place or permit to be placed in the Leased Property, together
with all personal property and fixtures which the Tenant may
from time to time place or permit to be placed in the Leased
Property for any purpose. Tenant shall cooperate with Landlord
by signing, upon Landlord's request, appropriate financing
statements and extensions thereof to perfect this security
interest. Landlord agrees to subordinate the lien provided for
herein to a lien in favor of any institutional lender who may
provide financing to Tenant, so long as the terms and
conditions of said subordination meet with the approval of
Landlord, which approval shall not be unreasonably withheld.
14. HOLDING OVER
------------
If the Tenant shall, with the knowledge and consent
of the Landlord, continue to occupy the Leased Property after
the expiration of the term of said Lease, the Tenant shall
become for such extension per iod a Tenant from month to month
on the same terms as herein stipulated for the last month of
the term.
15. CONDEMNATION OR DAMAGE
----------------------
15.1 If the Demised Premises, or such other portion
'of the subject property, shall be condemned or so damaged by
fire or other casualty as to render the demised premises
untenantable, or unsui table for the character of the occupancy
stated herein, and if such damage shall be so great that a
competent architect in good standing in the City of Aspen,
selected by the Landlord, shall certify in writing to the
Landlord and the Tenant that the demised premises, with the
exercise of reasonable diligence, cannot be made fit for
occupancy within 120 days from the happening of such event,
then either Landlord or Tenant shall have the right to
terminate this lease by giving written notice of termination to
the other within-10 days after receipt of the certificate of
the architect, as aforesaid. In the event of such termination,
Tenant shall pay rent, duly apportioned, up to the time of the
occurrence of such damage or condemnation. In the event that
neither party should so terminate this lease, or in the event
that the damage shall be such that the architect shall have
certified that the demised premises can be rendered tenantable
wi thin 120 days from the occurrence of such damage, then
Landlord shall, at Landlord's expense, restore the premises to
tenantable condition with all reasonable speed, and the rent
shall be abated for the period of time during which Tenant
shall be deprived of the use of such premises by reason of such
damage and the repai r thereof, except that there shall be no
abatement of rent if such damage is caused by the acts or
neglects of Tenant or Tenant's employees, agents, licensees or
invitees. In no event shall Tenant be entitled to compensation
for any consequential damages such as lost profits from
Tenant's business.
16. TENANT'S INDEMNIFICATION OF LANDLORD
------------------------------------
The Tenant agrees to make no claim against the
Landlord for or on account of any loss or damage by reason of
fi re or other casual ty except as is anticipated by thi s Lease
or as may be caused by a breach of any of the Landlord's
agreements hereof. The Landlord shall not be liable for damage
to personal property in or about the Leased Property except as
aforesaid. This indemnification clause shall not be construed
to create any right 'of action or basis of claim on behalf of
any third party against either party hereto.
17. gQy~~~_QLg!:!gI_~~~Q~!IT
So long as the Tenant is not in default hereunder
during the base term hereof and any renewal or extension
hereof, the Landlord covenants t:H.,t the Tenant shall peaceably
and quietly occupy and enjoy the Leased Premises subject to the
terms hereof. The Landlord warrants and agrees to defend the
title to the Leased Property.,
18. WAIVER
------
No assent expressed or implied by the Landlord to any
breach of anyone or more of the covenants or agreements hereof
by the Tenant shall be deemed or construed to be a waiver of
any succeeding or other breach.
19.
LANDLORD'S RIGHTS. TENANT'S DEFAULTS
_________________L__________________
19.1 The occurrence of any of the following shall
constitute an event of default:
B
(a) Delinquency by the Tenant in payment of
rent under this Lease for a period of
five (5) days from the date such rent
became due and payable.
(b) Delinquency by the Tenant in the perfor-
mance of or compliance with any of the
other obligations of tenant contained
in this Lease, for a period of twenty
(20) days after written notice thereof
from Landlord to Tenant.
(c) Filing by or against the Tenant in any
Court pursuant to any statute either of
the United States or of any state, of
a petition in bankruptcy or insolvency,
or for reorganization, or for the
appointment of a receiver or trustee,
of all or a portion of the Tenant's
property, if wi thin ni nety (90) days
after the commencement of any such
proceeding involving the Tenant such
petition shall not have been dismissed.
19.2(a) In the event of defaul t by vi rtue of the
non-payment of rent as defined in Paragraph l(a) above, the
Tenant's right to possession of the premises shall
automatically terminate on the date specified in Landlord's
three (3) day notice for payment of the rent or surrender of
possession of the premises under Section 13-40-104(d) (1973
C.R.S.), if Tenant fails to pay such rent as demanded in said
notice; PROVIDED, HOWEVER, TENANT SHALL NOT BE RELEASED FROM
ANY OBLIGATIONS UNDER THE LEASE AND TENANT SHALL REMAIN LIABLE
FOR THE PAYMENT OF UNACCRUED RENT. (b) In the event of a
default by Tenant under the provisions of Paragraph l(b) or
l(c) above, the Tenant's right to possession of the premises
shall automatically terminate on the date specified in
Landlord's three (3) day notice thereof under Section 13-40-
104(e) (1973 C.R.S.). Any notice referred to herein may be
given in accordance with provisions of Item 20 hereof or any
applicable statutory provision. The delivery of such notice to
terminate in accordance with the provisions of Item 20 hereof
or by any other method authorized by law, shall be deemed to
comply with the requirements of this Lease and any applicable
statutory provisions.
19.3 Upon the termination of the Tenant's right to
possession of the premises pursuant to the preceding
subparagraph, the Tenant sha 11 peaceful 1 y surrender the Leased
Premises to the Landlord, and the Landlord upon or at any time
after any such expiration, may, without further notice, re-
enter the Leased Premises and repossess it by force, summary
proceedings, ejectment or otherwise, and may dispossess the
Tenant and remove the Tenant and all other persons and property
from the Leased Premises, and may have, hold and enjoy the
Leased Premises and the right to receive all rental income
therefrom. Tenant hereby waives any right to seek damages from
Landlord for any such action and releases Landlord from any and
all liability therefor.
19.4 At any time af ter such termi na t i on of the
Tenant's right to possession of the premises, the Landlord may
relet the Leased Premises or any part thereof, in the name of
the Landlord or otherwise for such term (which may be greater
or less than the period which would otherwise have constituted
the balance of the term of this Lease) and on such conditions
as the Landlord, in Landlord's uncontrolled discretion, may
determine, and may collect and receive the rents therefor. The
n
.~ .~ .---
Landlord shall in no way be responsible or liable for any
failure to collect any rent due upon such reletting.
19.5 No such termination of the Tenant's right to
possession of the premises, shall relieve the Tenant from any
liability or obligations under this Lease, and such liability
and obligations shall survive any such termination. In the
event of any termination, the Tenant shall pay to the Landlord
the rent required to be paid by the Tenant up to the time of
such termination, and thereafter the Tenant, unti 1 the end of
what would have been the term of this Lease in the absence of
such termination, shall be liable to the Landlord for, and
shall pay to the Landlord as and for 1 iquidated and agreed
damages for the Tenant's default:
(a) The equivalent of the amount of the
rent which would be payable under this
Lease by the Tenant if the Lease were
still in effect, less
(b) The net proceeds of any reletting
effected pursuant to the provisions
of the preceding subparagraph, after
deducting all of the Landlord's
expenses in connection with such
reletting, including, without limita-
tion, all repossession costs, brokerage
commission, legal expenses, attorneys'
fees, alterations costs and expenses
of preparation for such reletting.
20. NOTICE
------
20.1 All notices to be given with respect to this
Lease shall be in writing. Each notice shall be sent by
registered or certified mail, postage prepaid and return
receipt requested, to the party to be notified at the address
set forth herein or at such other address as either party may
from time to time designate in writing or may be posted
conspicuously on the Demised Premises.
20.2 Every notice shall be deemed to have been given
at the time it shall be deposited in the United States mail in
the manner prescribed herein or at the time of posting. Any
notice required to be given hereunder or by virtue of any
provision of law shall be effective if served in accordance
herewith or in accordance with any applicable provision of law.
21. EXPENSES OF DEFAULT
-------------------
All expenses including attorneys' fees occasioned by
a default of Tenant shall be borne by Tenant.
22. PATIO AREA
Tenant, at Tenant's own expense, shall have the right
to enclose all, or a portion, of the patio area, provided that
the same shall be 4n accordance with all applicable municipal
codes and ordinances and that it shall be Tenant's sole
obI igation to obtain all governmental approvals in connection
therewith. The design of said patio area shall be subject to
the advance approval of the Landlord, which approval shall not
be unreasonably withheld.
23. OPTION TO RENEW
-------------
Landlord hereby grants the Tenant an option to extend
this Lease for two additional consecutive terms of five years
each, upon strict compliance with the following conditions:
10
A. Tenant shall have exercised all options to renew
for all preceding renewal terms.
B. Tenant shall not be in defaul t under any
provision of the Lease.
C. Tenant shall deliver written notice to Landlord
of the exercise of option to renew for each option term on or
be fo r e J u I Y 1 0 f the yea r i mme d i ate I y pre c e din g the
commencement of the next succeeding option term.
Upon exercise as aforesaid, all the terms and
conditions of the Lease shall be extended for one renewal term,
subject to cost of living rental adjustments during the period
of extension in accordance with the provisions of Section 4 of
this Lease.
24 . ~ITQ~~~~_!:gg~
S h 0 u I d' any d i s put ear i sew i t h reg a r d tot his
agreement, the prevailing party shall be entitled to attorneys'
fees and costs as part of any judgment recovered therein.
25. MERGER CLAUSE
This agreement constitutes the total understanding of
the parties with respect to the subject and no modification may
be made except by a written agreement signed by the parties.
26. BINDING EFFECT
This Lease and all agreements herein contained shall
bind the parties hereto and their successors and assigns.
27. ~g~Q~g~~g_~~QYI~IQ~~
If any provision of this Lease shal I be declared
invalid or unenforceable, the remainder of the Lease shall
conOinue in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have
executed this Lease on the day and year first above written.
LANDLORD:
TENANT:
MASINI & SURIN, LTD., d/b/a
:l~~U;~~---
Ermanno Masini ~ rV4SodQl<T
By ~_e-, ~~~! ____
Daniel C. suri~~~i-1
11
PERSONAL GUARANTEE
The undersigned do hereby jointly and severally,
unconditionally promise and guarantee the performance of all
covenants and agreements hereunder, incl uding but not 1 imi ted
to the payment of rent, and interest, attorneys' fees and costs
in connection with any default under the Lease or in connection
with the enforcing of this guarantee. It shall not be
necessary for Landlord to proceed first against Tenant for the
guarantee to be effective and the undersigned guarantors hereby
waive any presentments, demandfor performance, notice of
nonperformance or nonpayment, protests, notice of protest or
notice of dishonor. This guarantee shall inure to the benefit
of Landlord, his heirs, personal representatives, successors
and assigns, and shall be binding upon each guarantor's heirs,
personal representatives, successors~and assi7ns.
Dated this _~_1_ day of ~~~~, 1983.
-~=~~~~------ JJ~J:&~_____
~~~nno Masini, Guarantor Daniel C. Surln, Guarantor
] 2
September 2, 1983
Planning Office
City of Aspen
130 S. Galena
Aspen, CO 81611
To whom it may concern:
This letter is intended to serve as a request by my clients, Mr. Daniel Sur in
and Mr. Ermanno Masini, owners 'of Abetone Ristorante for an exemption of the
allotment procedures as delineated in Section 24-11.2 of the City of Aspen Code.
The attached conceptual design proposes to enclose the existing outdoor patio
area. This area is within the legally described real estate leased to my clients.
The planned enclosure encompasses a total of approximately 445 square feet. 330
square feet of this area has historically been used as an outdoor eating area.
A large portion of the remaining footage (115 sq. ft.) will continue it's present
useage as a green space. Our preliminary conceptual design calls for landscaped
green space in a portion of the area previously used as dining patio exclusively.
Along with year round use of this space for dining, it will as well replace
a winter snow catchment within greenery. The thermal, mechanical and structural
elements will refine these conceptual studies.
The proposed addition will not necessitate more employees. The seating
capacity therein merely will eliminate the serving of meals to patrons in the
bar area as is often the case currently.
I do not feel that parking represents a problem as Abetone serves only in
the evenings and is located in one of the few areas in town where parking is very
seldom a problem.
The drainage ramifications are nil. The south facing glazing will in fact
facilitate a steady runoff as opposed to the current spring surge. The existing
drainage systems should serve the addition well.
Abetone's has developed a worldwide reputation for culinary art and has
retained my services to design this addition in a manner that allows the restaurant
to enhance the local and visitor population's social experience. The design will
not only be an aesthetic plus but will also decrease the building's thermal
requirements; both heating and cooling loads, through a passive solar system. This
system will not only save energy but will provide a great deal more human comfort.
If you have any questions or need of further information regarding this
submittal, please feel free to contact me. ,/)
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basalt, colorado
........
envirodesign,
paul rubin
ltd.
,
p.o. box 968,
81621 927-3636
john katzenberger
.
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