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RESOLUTION NO. 94
(Series of 2004)
A RESOLUTION OF THE ASPEN CITY COUNCIL, AFFIRMING THE COMMUNITY
DEVELOPMENT DIRECTOR'S APPROVAL OF A LAND USE CODE
INTERPRETATION DATED APRIL 23, 2003, RELATING TO LAND USE CODE
SECTION 26.590.070(A), TIMESHARE FISCAL IMPACT ANALYSIS.
WHEREAS, pursuant to Land Use Code Section 26.306, Interpretations of this Title, the
City of Aspen Finance Department requested a land use code interpretation in February of 2003
related to how the administration of the timeshare fiscal impact analysis was to be administered
related to Land Use Code Section 26,590,070(A), Timeshare Fiscal Impact Analysis; and,
WHEREAS, the Community Development Director approved a land use code
interpretation on April 23, 2003 in response to the City Finance Department's request for
interpretation; and,
WHEREAS, pursuant to Land Use Code Section 26.306, Interpretations of this Title,
Haas Land Planning, LLC, requested a land use code interpretation on July 26, 2004, related to
how the administration of the timeshare fiscal impact analysis was to be administered related to
Land Use Code Section 26.590.070(A), Timeshare Fiscal Impact Analysis; and,
WHEREAS, the Community Development Director reissued the land use code
interpretation that was originally approved on April 23, 2003; and,
WHEREAS, pursuant to Land Use Code Section 26.306(F), Interpretations of this Title,
and Land Use Code Section 26.316, Appeals, Haas Land Planning, LLC. submitted a letter
requesting appeal of the reissued April 23, 2003 code interpretation; and,
WHEREAS, at a public meeting that was noticed by mailing to the appellant and by
publication in a newspaper of general circulation, pursuant to the procedures set forth in Land
Use Code Section 26.314, Appeals, City Council considered the appeal request made by Haas
Land Planning, LLC. and by a vote of three to two (3-2), affirmed the Community Development
Director's approval of the reissued code interpretation dated April 23, 2003; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary for the
promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF ASPEN,
COLORADO, THAT:
Section 1:
In accordance with Land Use Code Section 26.314, Appeals, City Council hereby affirms the
Community Development Director's re-issuance and approval of the land use code interpretation
dated April 23, 2003, relating to the administration of Land Use Code Section 26.590.070(A),
Timeshare Fiscal Impact Analysis.
Resolution No, 94, Series otL.1104
Page 2
Section 2:
This Resolution shall not effect any existing litigation and shall not operate as an abatement of any
action or proceeding now pending under or by virtue of the ordinances repealed or amended as
herein provided, and the same shall be construed and concluded under such prior ordinances.
Section 3:
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason
held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a
separate, distinct and independent provision and shall not affect the validity of the remaining
portions thereof.
FINALLY, ADOPTED, PASSED, AND ApPROVED on September 27, 2004, at a public meeting
before City Council.
APPROVED AS TO FORM:
City Attorney
Helen Kalin Klanderud, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
MEMORANDUM
\X a..
FROM:
Mayor Klanderud and City Council TJ,.,\ t--e...V'p,
Julie Ann Woods, Community Development Director ~ I+-r~ v v<-'\d
James Lindt, Planner 3l- :.:3 - L
TO:
THRU:
RE:
Appeal of Code Interpretation related to Land Use Code Section
26.590.070(A), Timeshare Fiscal Impact Analysis- Resolution No.~, Series of
2004
DATE:
September 27, 2004
REVIEW PROCEDURE:
City Council may affirm the Community Development Director's interpretation, reverse the
interpretation, or modify the interpretation pursuant to Land Use Code Section 26.316,
Appeals. In order to affirm the Community Development Director's interpretation, City
Council needs only to approve the attached resolution,
SUMMARY:
Haas Land Planning, LLC. has requested an appeal of a land use code interpretation related to
how the Community Development and Finance Department administer the land use code
requirements pertaining to the review of a timeshare fiscal impact analysis and making a
determination as to whether a timeshare development owes a timeshare mitigation fee for
converting a lodge to a timeshare lodge pursuant to Land Use Code Section 26.590.070(A),
Timeshare Fiscal Impact Analysis.
Ordinance No, 21, Series of 2002 was approved by City Council on October 15, 2002,
establishing new timeshare and fractional ownership regulations within the City of Aspen.
Included in this ordinance was a provision that requires a timeshare conversion mitigation fee
for lodges that convert to timeshare lodge developments and as a result of such a conversion
have a negative impact on tax revenues collected by the City of Aspen.
Subsequent to the approval of Ordinance No. 21, the City Finance Department expressed that
even if an overall increase in tax revenues was expected from a conversion of a lodge to a
timeshare development, a tax-by-tax review is needed to determine the real tax revenue
implications of such a conversion, That being the case, a land use code interpretation
(attached as Exhibit "B") was drafted and administratively approved in April of 2003,
which established that the conversion of a lodge to a timeshare lodge would require
analysis of the conversion on a tax-by-tax basis, and any shortfall in expected tax
revenues in any specific category would require mitigation by the developer.
Additionallv. the interpretation established that existinl!: approvals that have not been
acted upon for a development would be considered in determininl!: the tax revenue
impacts of a conversion from a traditional Iodl!:e to a timeshare lodl!:e.
I
The April 2003 interpretation was reissued by Staff as a response to Haas Land Planning's
request for interpretation of the policy dated July 26, 2004. Haas Land Planning then
submitted an appeal request within the required fourteen (14) days as is required by the land
use code,
ApPEAL REQUEST:
The letter of appeal (attached as Exhibit "A") alleges that the Community Development
Director abused her discretion in approving a land use code interpretation that had policy
decisions that the Appellant feels should have been completed through an amendcoent to the
land use code, The Appellant believes that the interpretation represents substantive changes
to the regulations. The Appellant further expresses that he does not feel that the code
interpretation that was issued works within the scope of the approved land use code language.
STAFF COMMENTS:
Staff believes that the attached code interpretation primarily discusses how the land use
code language related to the timeshare mitigation fee is to be administered and does not
substantively change the land use code and thus believes that the Community
Development Director was acting within her authority in approving such a code
interpretation. Moreover, several timeshare lodge applications have been reviewed under
the administration techniques established in the code interpretation, including the St. Regis
and the Little Red Ski Haus conversions to timeshare.
In reviewing the aforementioned developments, the Finance Department applied the methods
established in the land Use code interpretation to determine the tax revenue impacts of
fractionalizing the ownership. Therefore, Staff feels that there would also be a fairness issue
associated with reversing the code interpretation given that several development applications
have already been evaluated based on the interpretation.
Finally, Staff believes that the administration techniques established in the code
interpretation that was issued are the most complete and comprehensive methods of
evaluating whether fractionalizing the ownership of a lodge development will have a
negative impact on tax revenues collected by the City.
ST AFF RECOMMENDATION:
Staff recommends that the City Council approve the proposed resolution affirming the
Community Development Director's land use code interpretation.
RECOMMENDED MOTION: (ALL MOTIONS ARE MADE IN THE AFFIRMATIVE)
"I move to approve Resolution No. CjL./ , Series of 2004, affirming the Community
Development Director's land use code interpretation related to Land Use Code Section
26.590.070(A), Timeshare Fiscal Impact Analysis.
CITY,MANAGER'SCOMMENTS: ~~~ 1 ~
->>..(~Ol:h"",:' .l(JJ ~ Cu~_:fj?~------,--
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2
ATTACHMENTS:
Exhibit A n Letter of Appeal
Exhibit B -- 4/23/03 Code Interpretation
Exhibit C n Land Use Code Section 26.590.070(A), Fiscal Impact Analysis
3
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6-xhl'/(JJ't \AII
HAAS LAND PLANNING. LLC
August 20, 2004
Mrs. Julie Ann Woods, Director
Mr, James Lindt, Planner
Aspen Community Development Department
130 South Galena Street
Aspen, CO 81611
RE: Notice of Appeal
Dear Julie Ann and James:
This letter requests an appeal to City Council regarding the formal Interpretation
of Title made official on August 17, 2004 with respect to Section 26.590.070(A),
[Timeshare] Fiscal Impact Analysis (hereinafter "the Interpretation"). This request for
appeal is filed pursuant to and in accordance with Section 26.306.01O(F) of the Code.
It is felt that the Interpretation in question effects a denial of due process, and
constitutes a position beyond the jurisdiction of the Community Development Director.
That is, the effect of the Interpretation is an amendment to the Code without a public
process, and only City Council is empowered to make decisions ofthe level contained in
the Interpretation. In accordance with Section 26,316.030(E) of the Code, the
Interpretation should be nullified as a whole,
To the extent that Council feels any part of the Interpretation represents prudent
legislation, such parte s) should be brought through the public process as a Code
Amendment. To the extent that Council feels any portion (but not the whole) of the
Interpretation is appropriate material for the administrative interpretation process, a new
interpretation should be written to include only the appropriate portions, Any remaining
portions ofthe Interpretation would, by default, have been considered inappropriate for
either interpretation or legislation/code amendment.
It is respectfully requested pursuant to Section 26,316.030(C) of the Code that an
appeal hearing be scheduled in as timely a manner as practicable. If you should have any
questions, please do not hesitate to contact me,
Yours truly,
~Ianning, LLC
Mitch Haas, AICP
Owner/Manager
c:/my documents/administrative/cityfFiscal Analysis Interp - Appeal
. 201 N, MILL STREET, SUITE 108' ASPEN, COLORADO' 81611
. PHONE: (970) 925-7819 . FAX: (970) 925-7395 .
("..} '} ,/ \IID 1/
L::./t"fll } ltz./) I T D
CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
APPLICABLE CODE SECTION:
Section 26.590.070 (A) [Timeshare]
Fiscal Impact Analysis and
Mitigation
EFFECTIVE DATE:
April 23, 2003
APPLICANT:
Paul Menter, Finance Director
WRITTEN BY:
Joyce Allgaier Ohlson,
Deputy Director
APPROVED BY:
~.., ~vS)
.p I-
t>. , ~
. PRO,,/ t:U
Julie Ann Woods,
Community Development Director
COPIES TO:
APR 2 3 2003
John Worcester, Steve Barwick
(
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SUMMARY
This code interpretation sets forth statements as to how the City of Aspen will approach
and evaluate fiscal impact studies that are submitted as part of a timeshare development
proposal. The specific statements are found below.
COMMII~ITY D~.
'-- ..~I-r',' Uk1' "'i,h-;
CITY OF ASPEN' Cv I "
PURPOSE
The purpose of this code interpretation is to further clarify the language in Land Use
Code Section 26.590.070 (A), [Timeshare] Fiscal Impact Analysis and Mitigation for the
purposes of analyzing and objectively evaluating the financial analysis required of the
applicant, and applying a recommended mitigation program as provided by the code,
based upon the provisions of this section.
BACKGROUND
Section 26,590.070 (A) of the Land Use Code requires that any developer proposing to
convert an existing lodge to a timeshare lodge development shall be required to
demonstrate that the proposed conversion will not have a negative tax consequence for
the City. In order to demonstrate the tax consequences of the proposed conversion, the
applicant shall prepare a detailed fiscal impact study as part of the final PUD application,
. - If tneaniilysis. demonstratesa: negative-tax impact -to the Citybf Aspef1~ ilien the applicanr
shall be required to propose a mitigation program, Such mitigation programs must meet
with the approval of the Aspen City Council. If the fiscal impact study demonstrates a
positive impact to the City of Aspen, then no mitigation program is required. In order to
clarify the submittal requirements and the intent of the fiscal impact study so as to fairly
and objectively evaluate fiscal impacts caused by lodge to timeshare conversions, the
following statements will serve as guidelines in this process,
1, The code requires that the applicant compile a tax analysis that compares the prior 5-
year and projected 5-year tax collections for the project. These 5-year totals should be
converted to net present value for comparison using reasonable and consistent financial
criteria to perform the net value calculations. The average annual difference between the
previous 5-years and the future 5 years is the annual amount that is used as the basis for
determining for the life of the project the appropriate fee due from the applicant, if any.
Exhibit A shows the methodology used in preparing this calculation.
2, The code requires that the applicant compile a tax impact analysis for sales and lodging
taxes, property taxes and real estate transfer taxes. This tax impact analysis should be
completed on a tax-to-tax basis, as opposed to an overall basis, For example, increases
in Real Estate Transfer Taxes in comparison to prior year collections do not serve to
offset a reduction in sales tax collections for purposes of calculating any fee that might be
owed. The mitigation program authorized by this section should be calculated for each
individual tax, not as a whole of the identified taxes identified in the section. The reason
for segregating the fee calculation is because the taxing sources are not interchangeable
in terms of their applicability to providing City services.
(~
3, The code requires that projects should be evaluated by comparing the tax impact of
existing facilities plus existing approvals (in combination, the "total project") to the
total project plus the proposed timeshare. Where any previous approvals have been
granted but not yet developed, the "existing facilities" should include what has been
approved thus far, So for example, in the case of an application, which has an existing
approval for 20 new hotel rooms that is independent of their new timeshare proposal, the
comparison would be between what exists plus what is approved but not yet built and the
net number of units after timeshare conversion.
4, The 5-year comparison (most recent previous 5 years of operation v. projected first 5
years of operation with the timeshare or fractional ownership element operational)
required by this section of the code is for determining an average annual tax impact of the
project, and is for comparison purposes only to provide a basis for determining an
appropriate fee, which shall be based upon the estimated life of the project, and is not
intended to mean that the total tax impact provided by the ordinance is limited to 5 years.
The estimated life of the project shall be based upon a reasonable number of years
representing the expected useful life of the improvements,
APPEAL OF DECISION
As with any interpretation of the land use code by the Community Development Director,
an applicant has the ability to appeal this decision to the Aspen City Council. This can be
done in conjunction with a land use request before City Councilor as a separate agenda
item,
26.316.030(A) APPEAL PROCEDURES
Any person with a right to appeal an adverse decision or determination shall initiate an
appeal by filing a notice of appeal on a form prescribed by the Community Development
Director. The notice of appeal shall be filed with the Community Development Director
and with the City office or department rendering the decision or determination within
fourteen (14) days of the date of the decision or determination being appealed, Failure to
file such notice of appeal within the prescribed time shall constitute a waiver of any
rights under this Title to appeal any decision or determination.
l
~XI11\b,\-I 1'( 1/
I. Timeshare lodge developments that subdivide each unit into a larger number of estates
(more than ten (10) estates per unit) are preferred to those which subdivide each unit into a smaller
number of estates (less than ten (10) estates per unit).
2. Applicants may formulate their timeshare use plan such that the purchaser would not ex-
pect to occupy the same unit each visit; instead the purchaser would purchase the right to occupy a
certain type of unit for a certain period of time. Applicants may also include provisions in the
homeowners association documents prohibiting owners from personalizing the unit they have pur-
chased.
3, Applicants may design their development as a mixed project, which includes not only
timeshare units, but also some units that would continue to be owned and operated by the applicant
and his successors or assigns as traditional lodge units. Another type of use plan that is encouraged
would be for the applicant to agree not to sell all of the shares in every unit, but to instead keep
some time reserved for rental to the public at market rates during both the high seasons and the off-
seasons.
4. Applicants may decide to sell on and off-season estates as a package,
5. Applicants may include in their use plan provisions that allow for a wide range of ex-
change opportunities for owners, which will promote new Aspen trials. (Ord. No. 21-2002 ~ I
(part), 2002)
26.590.070 Review standards for timeshare lodge development.
An applicant for timeshare lodge development shall demonstrate compliance with each of the
following standards, as applicable to the proposed development. These standards are in addition to
those standards applicable to the review ofthe PUD and Subdivision applications.
A, Fiscal Impact Analysis and Mitigation. Any applicant proposing to convert an existing lodge
to a timeshare lodge development shall be required to demonstrate that the proposed conversion
will not have a negative tax consequence for the city. In order to demonstrate the tax consequences
of the proposed conversion, the applicant shall prepare a detailed fiscal impact study as part of the
final PUD application, The fiscal impact study shall contain at least the following comparisons be-
tween the existing lodge operation and the proposed timeshare lodge development:
I. A summary of the sales taxes paid to the city for rental of lodge rooms during the prior
five years of its operation, If the lodge has stopped renting rooms prior to the time of submission of
the application, then the summary shall reflect the final five years the lodge was in operation. The
summary of past taxes paid shall be compared to a projection of the sales taxes the proposed time-
share lodge development will pay to the city over the first five (5) years of its operation. As part of
this projection, the applicant shall specify the number of nights the applicant anticipates each time-
share lodge unit will be available for daily rental to visitors (that is, the annual number of nights
when the unit will not be occupied by the owner or the owner's guests), the expected visitor occu-
96
pancy rate for these units, the expected average daily cost to rent the unit, and the resulting amount
of sales tax that will be paid to the city.
2. An estimation of the real estate transfer taxes that would be paid to the city if the existing
lodge were to be sold, If an actual sale of the property has occurred within the last twelve (12)
months, then the real estate taxes paid for that sale shall be used. This estimation shall be compared
to a projection of the real estate transfer taxes the proposed timeshare lodge development will pay
to the city over the first five (5) years of its operation. This projection shall include a statement of
the expected sales prices for the timeshare estates, and the applicable tax rate that will be applied to
each sale.
3, A summary of the city-portion of the property taxes paid for the lodge for the prior five (5)
years of its operation, and a projection of the property taxes the proposed timeshare lodge devel-
opment will pay to the city over the first five (5) years of its operation. This projection shall include
a statement of the expected value that will be assigned to the property by the Tax Assessor, and the
applicable tax rate.
The fiscal impact study may also contain such other information that the applicant believes is
relevant to understanding the tax consequences of the proposed development. For example, the ap-
plicant may provide information demonstrating there will be "secondary", or "indirect" tax benefits
to the city from the occupancy of the timeshare units, in terms of increased retail sales and other
economic activity in the community as compared to the existing lodge development. The applicant
shall be expected to prove definitively why the timeshare units would cause such economic advan-
tages that would not be achieved by a traditional lodge development. Any such additional informa-
tion provided shall compare the taxes paid during the prior five (5) years of the lodge's operation to
the first five (5) years ofthe proposed timeshare lodge's operation.
If the fiscal impact study demonstrates there will be an annual tax loss to the city from the
conversion of an existing lodge to a timeshare lodge, then the applicant shall be required to propose
a mitigation program that resolves the problem, to the satisfaction of the Aspen City Council. The
accepted mitigation program shall be documented in the PUD Agreement for the project that is en-
tered into between the applicant and the Aspen City Council.
B. Upgrading of Existing Projects. Any existing project that is proposed to be converted to a
timeshare lodge development shall be physically upgraded and modernized. The extent of the up-
grading that is to be accomplished shall be determined as part of the PUD review, considering the
condition of the existing facilities, with the intent being to make the development compatible in
character with surrounding properties and to extend the useful life of the building.
I, To the extent that it would be practical and reasonable, existing structures shall be brought
into compliance with the city's adopted fire, health, and building codes.
2, No sale of any interest in a timeshare lodge development shall be closed until a certificate
of occupancy has been issued for the upgrading.
97
ADDRESS OF PROPERTY:
ATTACHMENT 7
AFFIDAVIT OF PUBLIC NOTICE
HEQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
I (;a J( 0 V1,Clsi,J;;J~tfJ
(/
,200_
STATE OF COLORADO )
) SS.
County of Pitkin )
I, .~ VIA \QS ! --f (eJ1 fitV-t (name, please print)
being or representing an Applicant to the' lty of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of the Aspen Land Use Code in the following manner:
4publication of notice' By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (15)
days prior to the public hearing, A copy of the publication is attached hereto,
_ Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suita~le,
waterproof materials, which was not less than twenty-two (22) infhes wide
and twenty-six (26) inches high, and which was composed of lett~rs not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the ~ day of
,200~, to and including the date and time oft~e public
hearing. A photograph of the posted notice (sign) is attached heretol
_ Mailing of notice, By the mailing of a notice obtained from the Community
Development Department, which contains the-information described in Section
26.304.060(E)(2) of the Aspen Land Use Code, At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to any federal agency, state, county, municipal government,
school, service district or other governmental or quasi-governmental agency that
owns property within three hundred (300) feet of the property subject to the
development application. The names and addresses of property owners shall be
those on the current tax records of Pitkin County as they appeared no more than
sixty (60) days prior to the date of the public hearing. A copy of the owners and
governmental agencies so noticed is attached hereto,
(continued on next page)
Rezoning or text amendment, Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of: and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map has been available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments,
The foregoing "Affidavit of Notice" was acknowledged ~~s::L day
of~ ,200Jf,by~ <--5>
WITNESS MY HAND AND OFFICIAL SEAL
PUBUC NOTICE
RE: APPEAL OF LAND USE CQDEINTERPRETA-
nON RELAUNG T;. USE COOE . SECTION
26.590.07{)(A), TIM . F1SCAL IMPACT ANAL-
YSIS
NOTICE IS H Y GIVEN that a public
meeting will be held , Monday, September 27,
2004 at a meeting to, n at 5:00 p.m. before the (...""
Aspen City Council, -Council Chambers,Clt)' Hall,
13f! S. Galena St., Aspen, to consider an applica-
tion submitted by Haas Land Plannlng, lLC. re-
questing an appeal 01 a land use code -Interpreta-
tion issued, bYih . Community Development DI-
rector relating Land Use Code Section
26.590.070(A),11 hare Flscallmpact Analysis.
For further Inf lion, cont,act James Undt at
the City of As Community Development De-
. ".,,~t, 13CYS, . St" ..""" CO, ()I70) 92()' A TT ACHMENTS:
5102. JamesIOcI.aspen,co,us.
s;Helen Kalin K1anderud, Mayor
Aspen City Council -
"'bIbbed", The""", n.... ~ Sopt=be, <, :OPY OF THE PUBLICATION
2004.(1875)
PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
BY MAIL
,...".~-_.~........~,-~--_..--
PUBLIC NOTICE
RE: APPEAL OF LAND USE CODE INTERPRETATION RELATING TO LAND USE
CODE SECTION 26.590.070(A), TIMESHARE FISCAL IMPACT ANALYSIS
NOTICE IS HEREBY GIVEN that a public meeting will be held on Monday, September 27,
2004 at a meeting to begin at 5:00 p,m. before the Aspen City Council, Council Chambers, City
Hall, 130 S, Galena St., Aspen, to consider an application submitted by Haas Land Planning, LLC.
requesting an appeal of a land use code interpretation issued by the Community Development
Director relating to Land Use Code Section 26.590.070(A), Timeshare Fiscal Impact Analysis,
For further information, contact James Lindt at the City of Aspen Community Development
Department, 130 S. Galena St., Aspen, CO, (970) 920-5102,jamesl@ci,aspen.co.us.
s/Helen Kalin K1anderud, Mavor
Aspen City Council
Published in the Aspen Times on September 4, 2004
--------------
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PUBLIC NOTICE
RE: APPEAL OF LAND USE CODE INTERPRETATION RELATING TO LAND USE
CODE SECTION 26.590.070(A), TIMESHARE FISCAL IMPACT ANALYSIS
NOTICE IS HEREBY GIVEN that a public meeting will be held on Monday, September 13,
2004 at a meeting to begin at 5:00 p.m, before the Aspen City Council, Council Chambers, City
Hall, 130 S. Galena St., Aspen, to consider an application submitted by Haas Land Planning, LLC.
requesting an appeal of a land use code interpretation issued by the Community Development
Director relating to Land Use Code Section 26.590.070(A), Timeshare Fiscal Impact Analysis.
For further information, contact James Lindt at the City of Aspen Community Development
Department, 130 S. Galena St., Aspen, CO, (970) 920-5102,jamesl@ci,aspen,co,us.
s/Helen Kalin K1anderud, Mavor
Aspen City Council
Published in the Aspen Times on August 28, 2004
City of Aspen Account
HAAS LAND PLANNING. LLC
August 20, 2004
Mrs. Julie Ann Woods, Director
Mr, James Lindt, Planner
Aspen Community Development Department
130 South Galena Street
Aspen, CO 81611
RE: Notice of Appeal
Dear Julie Ann and James:
This letter requests an appeal to City Council regarding the formal Interpretation
of Title made official on August 17,2004 with respect to Section 26.590,070(A),
[Timeshare] Fiscal hnpact Analysis (hereinafter "the Interpretation"). This request for
appeal is filed pursuant to and in accordance with Section 26,306.01O(F) ofthe Code.
It is felt that the Interpretation in question effects a denial of due process, and
constitutes a position beyond the jurisdiction of the Community Development Director.
That is, the effect of the Interpretation is an amendment to the Code without a public
process, and only City Council is empowered to make decisions of the level contained in
the Interpretation. In accordance with Section 26,316.030(E) of the Code, the
Interpretation should be nullified as a whole.
To the extent that Council feels any part of the Interpretation represents prudent
legislation, such parte s) should be brought through the public process as a Code
Amendment. To the extent that Council feels any portion (but not the whole) of the
Interpretation is appropriate material for the administrative interpretation process, a new
interpretation should be written to include only the appropriate portions. Any remaining
portions of the Interpretation would, by default, have been considered inappropriate for
either interpretation or legislation/code amendment.
It is respectfully requested pursuant to Section 26.316.030(C) ofthe Code that an
appeal hearing be scheduled in as timely a manner as practicable. If you should have any
questions, please do not hesitate to contact me.
Yours truly,
H~anning, LLC
~~CP
Owner/Manager
c:/my documentsladministrativelcity/Fiscal Analysis Interp - Appeal
. 201 N, MILL STREET, SUITE 108 . ASPEN, COLORADO' 81611
. PHONE: (970) 925-7819 . FAX: (970) 925-7395 .
August 17, 2004
.
,
Mitch Haas, Haas Land Planning, LLC
201 N. Mill Street, Suite 108
Aspen, CO 81611
ASPEN /PITKIN
COMMUNITY DEVELOPMENT DEPARTMENT
RE: Code Interpretation of Fractional Ownership Fiscal Impact Analysis
Dear Mr. Haas:
,
The Community Development Staff has reviewed your request for a land use code
interpretation of Land Use Code Section 26.590.070(A); Timeshare, as it relates to how
timeshare lodge proposals are reviewed in determining if a conversion from a traditional
lodge to a timeshare lodge development will have a negative impact on tax revenues
collected by the City of Aspen, After reviewing your request as a Staff and having
several discussions with you, the Community Development Staff has decided that the
land use code interpretation on this matter that was issued on April 23, 2003, shall remain
in full affect and is hereby reissueil in response to your request.
Therefore, please let this letter and the attached code interpretation ~erve as a response to
your .request for interpretation dated July 26, 2004. If you do not agree with the content
or administration techniques established in the attached interpretation, you may appeal
the land use code interpretation to City Council. If you wish to appeal this interpretation,
please suhmit a notice of appeal within fourteen (14) days of the draft date on this letter.
Failure to file a notice of appeal within the prescribed timeframe shall constitute a waiver
of any rights to appeal this decision pursuant to Land Use Code Section 26.316,030(A),
Appeal Procedures,
Please contact James Lindt at 920-5102 or myself at 920-5090 if you have any questions
about our decision.
ie Ann Woods,
Community Development Director
City of Aspen
Cc: John Wo~cester, City Attorney
Attachment:
Code Interpretation approved April 23, 2003
130 SoUTH GALENA STREET . ASPEN, COLORADO 81611-1975 . PHONE 970.920.5090 . FAX 970.920.5439
Printed on Recycled Paper
,~
/
I
CITY OF ASPEN
COMNru~~TYDEVELOPMENTDEPARTMENT
LAND USE CODE INTERPRETATION
APPLICABLE CODE SECTION:
Section 26.590.070 (A) [Timeshare]
Fiscal Impact Analysis and
Mitigation
EFFECTIVE DATE:
April 23, 2003
APPLICANT:
Paul Menter, Finance Director
WRITTEN BY:
Joyce Allgaier Ohlson,
Deputy Director
APPROVED BY:
~
,PPRO' 1;:::-.
. ll....U
Julie Ann Woods,
Community Development Director
COPIES TO:
/'.l.PR 2 3 2003
COMMIII\1JTy 8"
o . ............ .~.!:f;i Uli1tl,.:iVH
CI1Y OF ASPEN "
John Worcester, Steve Barwick
(
.~.
SUMMARY
This code interpretation sets forth statements as to how the City of Aspen will approach
and evaluate fiscal impact studies that are submitted as part of a timeshare development
proposal, The specific statements are found below.
PURPOSE
The purpose of this code interpretation is to further clarify the language in Land Use
Code Section 26,590,070 (A), [Fimeshare] Fiscal Impact Analysis and Mitigation for the
___ purposes of analyzing aIJ,dolJje~tivelyevaluating the financial analysis required of the
applicant, and applying a recommended mitigation program as provided by the code,
based upon the provisions of this section.
BACKGROUND
Section 26,590,070 (A) of the Land Use Code requires that any developer proposing to
convert an existing lodge to a timeshare lodge development shall be required to
demonstrate that the proposed conversion will not have a negative tax consequence for
the City. In order to demonstrate the tax consequences of the proposed conversion,the
applicant shall prepare a detailed fiscal impact study as part of the final PUD application,
----~-.--mnIn1ieanaJyslSClemonstrates a negatIvetaX rrnpact to tlie-ciryof Aspen, men me appl1canC'
shall be required to propose a mitigation program. Such mitigation programs must meet
with the approval of the Aspen City Council. If the fiscal impact study demonstrates a
positive impact to the City of Aspen, then no mitigation program is required. In order to
clarify the submittal requirements and the intent of the fiscal impact study so as to fairly
./
, '
and objectively evaluate fiscal impacts caused by lodge to timeshare conversions, the
following statements will serve as guidelines in this process,
l, The code requires that the applicant compile a tax analysis that compares the priorS-
year and projected 5-year tax collections for the project. These 5-year totals should be
converted to net present value for comparison using reasonable and consistent financial
criteria to perform the net value calculations, The average annual difference between the
previous 5-years and the future S years is the annual amount that is used as the basis for
determining for the life of the project the appropriate fee due from the applIcant, if any.
Exhibit A shows the methodology used in preparing this calculation.
2, The code requires that the applicant compile a tax impact analysis for sales and lodging
taxes, property taxes and real estate transfer taxes, This tax impact analysis should be
completed on a tax-to-tax basis, as opposed to an overall basis. For example, increases
in Real Estate Transfer Taxes in comparison to prior year collections do not serve to
offset a reduction in sales tax collections for purposes of calculating any fee that might be
owed, The. mitigation program authorized by this section should be calculated for each
individual tax, not as a whole of the identified taxes identified in the section. The reason
for segregating the fee calculation is because the taxing sources are not interchangeable
in terms of their applicability to providing City services.
c
3. The code requires that projects shouldbe evaluated by comparing the tax impact of
existing facilities plus existing approvals (in combination, the ''total project") to the
total project plus the proposed timeshare, Where any previous approvals have been
granted but not yet developed, the "existing facilities" should include what has been
approved thus far, So for example, in the case of an application, which has an existing
approval for 20 new hotel rooms that is independent of their new timeshare proposal, the
comparison would be between what exists plus what is approved but not yet built and the
net number of units after timeshare conversion.
4. The 5-year comparison (most recent previous 5 years of operation v. projected first 5
years _of operation with the timeshare or fractional ownership element operational)
required by this section of the code is for determining an average annual tax impact of the
project, and is for comparison purposes only to provide a basis for determining an
appropriate fee, which shall be based upon the estimated life of the proj ect, and is not
intended to mean that the total tax impact provided by the ordinance is limited to 5 years.
The estimated life of the proj ect shall be based upon a reasonable number of years
representing the expected useful life of the improvements,
APPEAL OF DECISION
As with any interpretation of the land use code by the Community Development Director,
an applicant has the ability to appeal this decision to the Aspen City Council. This can be
done in conjunction with a land use request before City Councilor as a separate agenda
item.
26.316.030(A) APPEAL PROCEDURES
Any person with a right to appeal an adverse decision or determination shall initiate an
appeal by filing a notice of appeal on a form prescribed by the Community Development
Director, The notice of appeal shall be filed with the Co=unity Development Director
and with the City office or department rendering the decision or determination within
fourteen (14) days of the date of the decision or determination being appealed. Failure to
fIle such notice of appeal within the prescribed time shall constitute a waiver of any
rights under this Title to appeal any decision or determination,
c
,
I
j
THE CrrYOF ASPEN
Memorandum
To: Julie Ann Woods, Director of Community Devel ~
cc: Steve Barwick, City Manager
John Worcester, City Attorney
Joyce Allgair Ohlsen, Deputy Director of Community Development
From: Paul Menter, Director of Finance and Administrative Services
Date: 3/3/03
Re: Municipal Code Interpretation Request
/'
\-
As provided by Aspen Municipal Code section 26.310, this memorandum requests
. interpretation of four elements of the newly adopted Timeshare/Fractional ownership
ordinance, codified as Aspen Municipal Code section 26.590,070. The purpose of this
request is to gain sufficient understanding of the City Council's intentin adopting this
code section for purposes of analyzing fairly and objectively the financial analysis
required of the applicant, and applying a recommended mitigation program as provided
by the code, based upon the provision of this section. .
This code section requires the applicant to complete a fiscal impact analysis
demonstrating the proposed projects impact of City of Aspen tax collections. If the
analysis demonstrates a negative tax impact to the City of Aspen, then the applicant
shall be required to propose a mitigation program. Such mitigation programs must
meet with the approval of the City Council. If the analysis demonstrates a positive
impact to the City of Aspen, then no mitigation is required. This memorandum .
requests concurrence with the following descriptive statements as fairly and
accurately representing the intent of the Council in adopting this provision, or in the
alternative, an interpretation of the affected code provisions that can then be utilized
in analyzing and calculating the tax impact of the proposed proj ect.
I, The code requires that the applicant compile a tax analysis that compares the prior
5-year and projected 5-year tax collections for the project. These 5-year totals
,.~ : ,"
March 3, 2003
should be netted to present value for comparison and the result used to proj ect the
future tax impact of the project in comparison to the continuation of the project's
most recent use for the life of the proiect. This calculation becomes the basis for
determining the appropriate fee due from the applicant, if any,
2. The code requires that the applicant compile a tax impact analysis for sales and
lodging taxes, property taxes and real estate transfer taxes, Ibis tax impact analysis
should be completed on a tax-to. tax basis, as opposed to an overall basis. In other
words, dramatic increases in Real Estate Transfer Taxes in comparison to prior year
collections do not serve to offset a reduction in sales tax collections for purposes of
calculating any fee that might be owed. The mitigation program authorized by this
section should be calculated for each individual tax, not as a whole of the identified
taxes identified in the section, The reason for segregating the fee calculation is
because the taxing sources are not interchangeable in terms of their applicability to
providing City services,
3. The code requires that proj ects should be evaluated by comparing the tax impact
of existing facilities plus existinl! approvals (In combination the "total proj ect" ) to
the total project plus the fractional, or Timeshare proposal. So for example, in the
case of the St. Regis application, which has an existing approval for 20 new hotel
rooms that is independent of their Timeshare proposal, the comparison would be
between:
c
a.
The current hotel of257 plus 20 hotel rooms (since the 20* hotel
rooms were separately approved) for a total of277 hotel rooms v.
b. 179 hotel rooms (257 existing hotel rooms PLUS 20 new hotel rooms
MINUS 98 hotel rooms) plus 25 fractional units;
*The 20 additional hotel rooms to be applied a proportional value to that
demonstrated of the existing hotel rooms,
4. The 5-year comparison (most recent previous 5 years v. projected first 5 years of
operation with the timeshare or fractional ,ownership element operational) required
by this section of the code is for determining an average annual tax impact of the
project, and is for comparison purposes only to provide a basis for determining an
appropriate fee, which shall be based upon the estimated life of the project, and is
not intended to mean that the total tax impact provided by the ordinance is limited to
5 years.
Thank you for your attention to this important code interpretation request. As
provided by Aspen Municipal Code 26.310, I will expect a final interpretation, or
request for clarification on or before March 18,2003, or 15 days from submission of
this code clarification request.
2
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Aspen Community
Development
Department
130 5, Galena 51.
AspenC081611
(970) 920-5090
(970) 920-5439, fax
Fax
To: Mitch From: James
Fax: 925-7395 Pages:
Phone: Date: 8/17/04
Re: Fiscal Impact Interpretation CC:
o Urgent
o For Review
o Please Comment 0 Please Reply
o Please Recycle
. Comments:
Hi Mitch,
After having numerous discussions on your interpretation request as a staff, it has been decided that
we are going to reissue the code interpretation that was approved in April of iast year on the timeshare
fiscal impact subject, However, you do have the opportunity to appeal it to Council if you would like, To
appeal just get me a letter of request for the appeal and I will get it on a Council agenda as soon as
possibie.
The attached letter reissues the previous interpretation, I have also mailed a copy to you.
Thanks,
James
11"'..,
.......
THE CITY OF ASPEN
Memorandum
To: Julie Ann Woods, Director of Community Devel ~
CC: Steve Barwick, City Manager
John Worcester, City Attorney
Joyce Allgair Ohlsen, Deputy Director of Community Development
From: Paul Menter, Director of Finance and Administrative Services
Date: 3/3/03
Re: Municipal Code Interpretation Request
!
\
As provided by Aspen Municipal Code section 26,310, this memorandum requests
interpretation of four elements of the newly adopted Timeshare/Fractional ownership
ordinance, codified as Aspen Municipal Code section 26.590.070. The purpose of this
request is to gain sufficient understanding of the City Council's intent in adopting this
code section for purposes of analyzing fairly and objectively the financial analysis
required of the applicant, and applying a recommended mitigation program as provided
by the code, based upon the provision of this section.
This code section requires the applicant to complete a fiscal impact analysis
demonstrating the proposed projects impact of City of Aspen tax collections. If the
analysis demonstrates a negative tax impact to the City of Aspen, then the applicant
shall be required to propose a mitigation program. Such mitigation programs must
meet with the approval of the City Council. If the analysis demonstrates a positive
impact to the City of Aspen, then no mitigation is required. This memorandum
requests concurrence with the following descriptive statements as fairly and
accurately representing the intent of the Council in adopting this provision, or in the
alternative, an interpretation of the affected code provisions that can then be utilized
in analyzing and calculating the tax impact of the proposed project.
1. The code requires that the applicant compile a tax analysis that compares the prior
5-year and projected 5-year tax collections for the project. These 5-year totals
.F-'",
'-"
March 3, 2003
should be netted to present value for comparison and the result used to proj ect the
future tax impact of the project in comparison to the continuation of the project's
most recent use for the life of the proiect. This calculation becomes the basis for
determining the appropriate fee due from the applicant, if any.
2. The code requires that the applicant compile a tax impact analysis for sales and
lodging taxes, property taxes and real estate transfer taxes, This tax impact analysis
should be completed on a tax-to-tax basis, as opposed to an overall basis. In other
words, dramatic increases in Real Estate Transfer Taxes in comparison to prior year
collections do not serve to offset a reduction in sales tax collections for purposes of
calculating any fee that might be owed. The mitigation program authorized by this
section should be calculated for each individual tax, not as a whole of the identified
taxes identified in the section. The reason for segregating the fee calculation is
because the taxing sources are not interchangeable in terms of their applicability to
providing City services.
3. The code requires that proj ects should be evaluated by comparing the tax impact
of existing facilities plus existinl!: approvals (In combination the "total project") to
the total project plus the fractional, or Timeshare proposal. So for example, in the
case of the St. Regis application, which has an existing approval for 20 new hotel
rooms that is independent of their Timeshare proposal, the comparison would be
between:
a.
The current hotel of257 plus 20 hotel rooms (since the 20* hotel
rooms were separately approved) for a total of277 hotel rooms v,
\,
b. 179 hotel rooms (257 existing hotel rooms PLUS 20 new hotel rooms
MINUS 98 hotel rooms) plus 25 fractional units;
*The 20 additional hotel rooms to be applied a proportional value to that
demonstrated of the existing hotel rooms.
4. The 5-year comparison (most recent previous 5 years v. projected first 5 years of
operation with the timeshare or fractional ownership element operational) required
by this section of the code is for determining an average annual tax impact of the
proj ect, and is for comparison purposes only to provide a basis for determining an
appropriate fee, which shall be based upon the estimated life of the proj ect, and is
not intended to mean that the total tax impact provided by the ordinance is limited to
5 years,
Thank you for your attention to this important code interpretation request. As
provided by Aspen Municipal Code 26,310, I will expect a final interpretation, or
request for clarification on or before March 18, 2003, or 15 days from submission of
this code clarification request.
2
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mhaas@sopris.net, 12:23 PM 8/9/2004, Fractional Interpretation
To: mhaas@sopris,net
From: James Lindt <jamesl@cLaspen,co,us>
Subject: Fractional Interpretation
Cc:
Bcc:
Attached:
Hi Mitch,
Please let this e-mail serve as notification that your land use code interpretation is complete and
that we will issue an interpretation within 15 days of this notification, We are still discussing the
nuts and bolts of the original interpretation that was issued on this matter and should have
further information on the new interpretation for you later in the week,
Thanks,
James
Printed for James Lindt <jamesl@ci.aspen.co.us>
1