HomeMy WebLinkAboutcoa.lu.ca.128 E Main St.0038.2006.ASLULand Use Code Inter. Appeal
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Permit Information
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Ppect ; Status Ver u9 Appiuv
Description CODE INTERPRETATION APPEAL Issued
Find -
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Sutxntted 1FRANK PETERS 920.2525 Clads Rum Day., r 0 E pies 07/O9IM7
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Last Name SARDY HOUSE LLC fast Name FPSEN
APEN ST
CO 81611
Phone '(97O) 925.6246
O wnei I s Applicant?
Applicant
Last Name jiNR HOUSE LLC Fitt Name— 200 S APEN ST
ASPEN CO 81611
i Phone(9it119256216 Cues # 4691
Lender __ _... _
Last Name foist Name
Phone
JUL. 14.2'00fS 10: E1AM RIFLE II ISURArlCF 1%10.414 R. 1/1
■ ACORDCERTIFICATE OF LIABILITY INSURANCE DAT0714/2006 '
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PRODUCER Phone: 970-625-1689 Fax: 970-625.1116 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
■LESLIE.SCHULTZ_ __ _ ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
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MEMORANDUM
TO: Mayor Klanderud and Aspen City Council UAA-
THRU: Joyce Allgaier, Community Development Deputy Director
FROM: James Lindt, Senior Planner O-L-
RE: Information Item- Sardy House Appeal of Land Use Code
Interpretation
DATE: September 25, 2006
The owners of the Sardy House have withdrawn (e-mail of withdrawal is attached as
Exhibit "A") their request to appeal the land use code interpretation approved by the
Community Development Director that was heard by City Council on August 28t' and
continued to September 25`h. Therefore, Staff has removed the item from the September
25a' City Council agenda.
The owners and Staff have come to an understanding that they can reconfigure some of
their interior space in the boardinghouse portion of the Sardy House without the need for
a conditional use amendment, as long as they maintain at least ten (10) boardinghouse
units as was approved in their original conditional use. Any reduction below ten (10)
boardinghouse units would trigger the need for a conditional use amendment.
If you have any questions or comments on the resolution to this issue, please contact me.
ATTACHMENTS:
Exhibit "A"- Letter Withdrawing Appeal Request
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Hi James,
As you and I discussed this afternoon, we have agreed that we may come
in to apply for a building permit to do an interior remodel with plans
retaining ten bedrooms in the boardinghouse annex at the Sardy House.
Therefore, we are requesting that at this time you remove our Code
interpretation appeal from City Council's agenda on September 25th.
I can review the remodel floor plans with you at your convenience next
week.
Also, please let me know about what time City Council wants to tour
Hotel Lenado next Tuesday.
Thanks,
Daniel
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James Lindt
From: Daniel Delano [delano@sardyhouse.com]
Sent: Wednesday, September 20, 2006 6:01 PM
To: James Lindt
Subject: Re: Sardy Boardinghouse Remodel/City Council
Hi James,
As you and I discussed this afternoon, we have agreed that we may come in to apply for a
building permit to do an interior remodel with plans retaining ten bedrooms in the
boardinghouse annex at the Sardy House.
Therefore, we are requesting that at this time you remove our Code interpretation appeal
from City Council's agenda on September 25th.
I can review the remodel floorplans with you at your convenience next week.
Also, please let me know about what time City Council wants to tour Hotel Lenado next
Tuesday.
Thanks,
Daniel
> Hi Daniel,
> Please find attached the staff memo for Monday evening's Council
> meeting and the interpretation that was issued based on John
> Worcester's suggestion at the Council meeting. We took the liberty of
> automatically assuming that you would also be appealing this second
> interpretation since it would still not allow for the three bedroom
> conversion to a common living area without a conditional use amendment review.
> However, it did occur to us that we are really disputing one unit. If
> you were only requesting to convert 2 of the units to common living
> space you would still be within the confines of your conditional use
> approval because you would still have 10 units in the boardinghouse
> portion of the structure. Would there be any interest on your part in
> amending your plan to only convert 2 of the units to the common living
> space without the need for a conditional use amendment? If so, we
> could probably close the appeal hearing and allow for you to pull a
> building permit for the conversion of 2 units. Please let me know
> your thoughts on this.
> In the case that you still need to convert all 3 of the units we will
> need to go ahead with the continued appeal hearing. The item would be
> on the action item agenda near the end of the meeting.
> Thanks,
> James
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C7
MEMORANDUM
TO: Mayor Klanderud and Aspen City Council Apo, W1` 6JA4
THRU: Chris Bendon, Community Development Director
FROM: James Lindt, Senior Planner T
L
RE: Appeal of Land Use Code Interpretation- Land Use Code Section
26.425, Conditional Uses- Continued Public Meeting from August 28th
DATE: September 25, 2006
PROJECT:
APPEAL OF LAND USE CODE INTERPRETATION
REQUEST SUMMARY:
The Community Development Director issued a land use code
interpretation on June 29, 2006, and a subsequent supplemental land
use code interpretation on July 7, 2006. The interpretations are a
response to an interpretation request submitted by Sardy House, LLC,
owners of the Sardy House. The Appellants have appealed one
provision that was provided in the interpretation dated June 29' that
requires the submittal and approval of a land use application for a
conditional use amendment to convert three (3) of the boardinghouse
rooms in the Sardy House into a living room area for the
boardinghouse.
APPELLANTS:
Sardy House, LLC.
STAFF
Staff recommends that City Council affirm the Community
RECOMMENDATION:
Development Director's interpretation.
REQUEST SUMMARY:
As was briefly described above, Sardy House, LLC (known herein as the "Appellants") have
requested an appeal (letter of appeal and letter of justification were attached in the August
28`' memorandum) of a provision in a land use code interpretation that was issued by the
Community Development Director on June 29, 2006 (reattached hereto as Exhibit "A").
Staff issued a land use code interpretation and a supplemental land use code interpretation
(was attached in the August 28"' memorandum) in response to some specific questions (code
interpretation request is attached as Exhibit "D") posed by the Appellants related to several
possible development options for the Sardy House. The one provision that was included in
these land use code interpretations that the Appellants are asking for relief from is Staffs
response to question No. 8 in the interpretation dated June 29, 2006.
Staffs response to question No. 8 would require the Appellants to apply for and obtain
approval of a conditional use amendment if they wished to convert three (3) of the
boardinghouse units in the Sardy House to a living room area (was attached in the August
28'h memorandum) for the boardinghouse use before applying for a building permit. The
Appellants have contended in the letter of appeal that they should not be required to obtain a
conditional use amendment and should be able to simply apply for a building permit for the
interior changes to the Sardy House that are described above. Therefore, the Appellants have
Appellants have contended in the letter of appeal that they should not be required to obtain a
conditional use amendment and should be able to simply apply for a building permit for the
interior changes to the Sardy House that are described above. Therefore, the Appellants have
contended that the Community Development Director has abused his discretion by requiring
an amendment to the conditional use approval and requests that City Council reverse the
Community Development Director's interpretation related to question No. 8. The letter of
appeal has also suggested that Staff has not provided them due process because of the amount
of time that elapsed since they first verbally asked if they could simply apply for a building
permit to make the aforementioned changes to the floor plans of the boardinghouse.
REVIEW PROCESS:
Pursuant to Land Use Code Section 26.316.030(E), Appeal procedures: Standard of review,
City Council may affirm, modify, or reverse an interpretation made by the Community
Development Director. In order to modify or reverse the interpretation, City Council
must make a finding that there was a denial of due process in issuing the interpretation
or that the Community Development Director exceeded his jurisdiction or abused his
discretion. The appeal is a public meeting, but is not a public hearing because the appeals
section of the code requires that Council's determination be based on the record that was
previously established in issuing the interpretation.
LAST MEETING:
During the last meeting, the Appellants discussed why they believe that Staff s response to
Question No. 8 in the original interpretation should be reversed to allow for them to convert
three (3) of the boardinghouse units into a common living space. Staff then provided our
justification for issuing the interpretation that was made. Near the end of City Council's
deliberations on the issue, the City Attorney suggested that Staff needed to answer the
question of whether the boardinghouse use is a non -conforming use or a conditional use
because it is an integral question in determining whether a conditional use amendment is
necessary. City Council agreed with the City Attorney and directed Staff to issue a code
interpretation to determine whether the Sardy House's boardinghouse use is a non-
conforming use or a conditional use. In response to this request, Staff issued the land use
code interpretation dated September 18, 2006 that is attached as Exhibit `B". City Council
may also affirm, amend, or reverse this interpretation if it is determined that the Community
Development Director exceeded his jurisdiction, exceeded his discretion, or that there due
process was not provided in issuing the interpretation.
STAFF COMMENTS:
Conditional Use vs. Non-Conforminz Use:
Staff discussed the question posed by the City Attorney and issued a land use code
interpretation that concludes that the Sardy House's boardinghouse use is both a non-
conforming use since the boardinghouse use was removed from the zone district and a
conditional use since it was originally established through the conditional use process.
Therefore, the property would be subject to the requirements of Land Use Code Section
26.312, Nonconformities, and Land Use Code Section 26.425, Conditional Uses. That being
the case, Staff believes that the original land use code interpretation issued on June 29`h is
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valid. Below Staff has again included the discussion that was provided to City Council at the
last meeting related to Staff s interpretation that the Appellants need a conditional use
amendment review to convert the three (3) boardinghouse units into a common living space.
Abuse of Discretion:
As was discussed at the last meeting, Land Use Code Section 26.425.010, Conditional Uses:
Purpose, describes that conditional uses are those land uses that are compatible with other
uses in the zone district in which they are located, but which require review of their location,
design, configuration, intensity, and density to ensure their appropriateness. The Sardy
House received conditional use approval (1985 staff memorandum and application reattached
hereto as Exhibit "C") to construct a carriage house addition to the rear of the historic
residence that was to be used for 10-12 boardinghouse units. Based on the above text of the
code, Staff believes that the Appellants' request to convert three (3) of the boardinghouse
units to a living room space for common use by all of the boardinghouse guests is a change in
the configuration and intensity of the boardinghouse use on the parcel below the ten to twelve
units that was represented in the 1985 application and staff memorandum. Thus, a
conditional use amendment would be required for the conversion.
The conditional use section goes on to describe the process for amending a development
order for a conditional use. There are two amendment options: 1) an insubstantial
amendment for which the Community Development Director may approve; and 2) "other"
amendments for any changes that do not qualify for an insubstantial amendment. Either
option requires a land use application and the code provides no other options.
Staff does not believe that the Community Development Director abused his discretion in
determining that a conditional use amendment is necessary for the conversion since it would
alter the intensity, configuration, and density of the boardinghouse use that was approved
through a site -specific conditional use review in 1985.
nvn pmro v e .
Due process was also discussed at the last meeting. Staff feels that due process was followed
in issuing the interpretation. The interpretation request was filed on June 9t' and Staff
deemed the interpretation request to be complete on June 141h. In response to the
interpretation request, Staff issued the interpretation being appealed on June 29t', which is
within 15 days of determining the interpretation request to be complete as is consistent with
the requirements of Land Use Code Section 26.306, Interpretations of Title.
STAFF RECOMMENDATION:
Staff does not feel that the Community Development Director exceeded his jurisdiction or
abused his discretion by interpreting that the Sardy House would require a conditional use
amendment to convert the three (3) boardinghouse rooms to a general living space. Land Use
Code Section 26.306, Interpretations of Title, establishes that the Community Development
Director has the authority to interpret the text of the land use code and apply it accordingly.
Also, since Land Use Code Section 26.425.010, Conditional Uses: Purpose, establishes that
the configuration and intensity of a conditional use is amongst the topics of review for a
ME
conditional use as was discussed above, Staff does not believe that the Community
Development Director abused his discretion by interpreting that a conditional use amendment
is necessary for the conversion of boardinghouse units to general living space.
Staff does not believe that there was a denial of due process in issuing the interpretation
or that the Community Development Director exceeded his jurisdiction or abused his
discretion. Staff recommends that City Council affirm the Community Development
Director's interpretation dated June 29, 2006 by approving the attached resolution.
Staff also does not believe that the Community Development Director abused his
discretion or exceeded his jurisdiction in issuing the second interpretation dated
September 18, 2006. By approving the attached resolution, City Council would also
affirm the interpretation dated September 5, 2006.
ALTERNATIVE OPTIONS:
If City Council finds that there was a denial of due process, or that the Community
Development Director exceeded his jurisdiction/abused his discretion, City Council could
reverse the Community Development Director's interpretation and issue a new interpretation
that a conversion of three (3) internal boardinghouse units to a general living space in the
Sardy House does not require a conditional use amendment and instead only requires receipt
of a building permit.
City Council could also reverse Staff s interpretation that is attached as Exhibit `B" and find
that the boardinghouse use is no longer a conditional use since it was removed from the MU
Zone District. Acting upon this option would mean that the use is only a non -conforming
use, which would allow for the three (3) boardinghouse units to be converted to a common
living area because it would be altering the use in a manner that does not increase the non-
conformity.
CITY MANAGER'S COMMENTS:
RECOMMENDED MOTION:
"I move to approve Resolution No. 69, Series of 2006, affirming the Community
Development Director's interpretation dated September 18, 2006, and affirming the
Community Development Director's interpretation related to question No. 8 in the June 29`h
land use code interpretation, which requires a conditional use amendment to convert three (3)
boardinghouse units to a general living space in the Sardy House."
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ATTACHMENTS:
EXHIBIT A -.TUNE 29' INTERPRETATION
EXHIBIT B - CONDITIONAL USE VS. NONCONFORMING USE INTERPRETATION DATED SEPTEMBER 5, 2006
EXHIBIT C - 1985 STAFF MEMO AND APPLICATION
EXHIBIT D - 1985 PLANNING AND ZONING COMMISSION MINUTES
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E
RESOLUTION NO.69
(SERIES OF 2006)
A RESOLUTION OF THE ASPEN CITY COUNCIL AFFIRMING THE
COMMUNITY DEVELOPMENT DIRECTOR'S INTEPRETATION OF LAND
USE CODE SECTION 26.425, CONDITIONAL USE, AS IT APPLIES TO THE
SARDY HOUSE PROPERTY AT 128 EAST MAIN STREET.
WHEREAS, the Community Development Department received a Land Use
Code Interpretation request from Sardy House LLC, requesting responses to a series of
questions about how different land use code sections would be applied to several
development scenarios that the Sardy House, LLC was exploring on the Sardy House
property at 128 East Main Street; and,
WHEREAS, pursuant to Land Use Code Section 26.306, Interpretations of Title,
the Community Development Director issued a land use code interpretation dated June
29, 2006, responding to the interpretation request after the interpretation request was
determined to be complete on June 14, 2006; and,
WHEREAS, pursuant Sardy House, LLC, set up a meeting to discuss the
interpretation on July 7, 2006, and the Community Development Department
subsequently issued a supplemental interpretation dated July 7, 2006; and,
WHEREAS, Sardy House, LLC, requested an appeal of Staff s response to
question No. 8 in the land use code interpretation dated June 29, 2006 pursuant to Land
Use Code Section 26.316, Appeals; and,
WHEREAS, during the August 28, 2006 City Council meeting, City Council
requested a land use code interpretation about whether a conditional use that was established
legally established through the conditional use review process and then subsequently
removed from a zone district is still subject to the provisions of Land Use Code Section
26.425, Conditional Uses, and,
WHEREAS, the Community Development Director issued a land use code
interpretation dated September 18, 2006, presenting an interpretation that a use that was
legally established through the conditional use review process and then subsequently
removed from the zone district is both a conditional use and a nonconforming use and,
WHEREAS, the Aspen City Council has reviewed and considered the appeal under
the applicable provisions of the Municipal Code as identified herein; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary
for the promotion of public health, safety, and welfare.
WHEREAS, the City Council approved, by a vote of to-�
Resolution No. 69, Series of 2006, affirming the Community Development Director's
September 18, 2006 land use code interpretation and June 29, 2006 interpretation that
1
Land Use Code Section 26.425, Conditional Uses, requires a conditional use amendment
for the conversion of three (3) boardinghouse units in the Sardy House to a general living
space.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO THAT:
Section 1
Pursuant to Land Use Code Section 26.316, Appeals, City Council hereby affirms the
Community Development Director's September 18, 2006 and June 29, 2006
interpretations that Land Use Code Section 26.425, Conditional Uses, requires a
conditional use amendment for the conversion of three (3) boardinghouse units in the
Sardy House to a general living space.
Section 2
This Resolution shall not affect 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 conducted 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.
RESOLVED, passed and approved this 25th day of September, 2006.
Attest:
Kathryn S. Koch, City Clerk Helen Kalin Klanderud, Mayor
Approved as to form:
John Worcester, City Attorney
2
ASPENIPITKIN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
JURISDICTION:
APPLICABLE CODE SECTION:
EFFECTIVE DATE:
WRITTEN BY: z'
E
APPROVED BY:
COPIES TO:
City of Aspen
26.104.100, Definitions,
26.710.180(D)(10)(A)(3), Mixed
Use Zone District. Floor Area
Ratio; 26.470.040(B)(2), Change -
In -Use of Historic Landmark Sites
and Structures.
June 29, 2006
James Lindt, Senior Planner
Chris Bendon,
Community Development Director
John Worcester, City Attorney
Amy Guthrie, HP Officer
SUMMARY
David Myler submitted a request for a code interpretation on behalf of Daniel Delano and
Frank Peters (Applicants), the owners of the Sardy House. In the interpretation request,
the Applicants ask a series of questions related to how various land use code sections
apply to the Sardy House property.
PURPOSE
Staff has responded to the Applicants' questions in this interpretation and explained the
basis for our responses.
BACKGROUND
The Sardy House existed as a single-family residence from 1893 when it was constructed
to. 1985. In 1985, the Applicants received approval to remodel and expand the existing
structure and a conditional use approval to convert the entire building into a
boardinghouse (Boardinghouse is a defined term): The Applicants converted the main
residence portion of the structure back into a single residential unit in 2003 with the rear
portion of the structure that was added in 1985 remaining as a Boardinghouse. As was
discussed above, the Applicants have requested a series of code interpretations related to
how the land use code applies to the Sardy House's current situation. This interpretation
clarifies the Planning Staff s position on how the requested code sections apply to the
Sardy House.
DISCUSSION
Questions 1, 2, 5, 6, 7, and 8
Staff has organized our responses to the questions posed by the Applicants in topics.
Questions No. 1, 2, 5, 6, 7, and 8 relate to the definition of "Boardinghouse" in the City's
Land Use Code. Below, Staff has listed these questions and the applicable corresponding
interpretation:
1. What definition (1985 definition when the conditional use for a boardinghouse
was approved or current definition in the land use code) of boardinghouse applies
to the current and future use of the Carriage House (rear addition that is currently
approved to be used as a boardinghouse)?
Staff Response:
The 1985 definition of `Boardinghouse" in the land use code applies to the Sardy House
because that was the definition in place when a site -specific approval was granted to
allow the Sardy House to, become a boardinghouse. This approval is what the Carriage
House portion of the structure is still operating under today.
2. What is the effect of simply discontinuing the current nonconforming
boardinghouse use? Does a discontinuance of a nonconforming use require a
development order?
Staff Response:
The Applicant could discontinue the nonconforming boardinghouse use on the Carriage
House part of the structure, but that it could not be used as part of any other use to replace
the boardinghouse use until a development order for a change in use is obtained. Staff is
of this opinion because Land Use Code Section 26.470.040(B)(2), Change -In -Use of
Historic Landmark Sites and Structures, states that a change of use, between the use
categories identified in Section 26.470.020 (Residential -Free Market, Residential -
Affordable Housing, Commercial, Lodging, and Essential Public Facilities), of a
property, structure, or portion of a structure designated as a Historic Landmark shall be
reviewed based on the criteria set forth in Land Use Code Section 26.470.040(B)(2).
5. Does the replacement of a non -conforming use (boardinghouse- under any
definition) with a conforming use (single-family), with no increase in the floor
area of the existing structure in which those uses are contained, constitute a
change in use?
Staff Response:
As is discussed in Staff s response to Question #2 above, the code requires that when you
change the use of a structure or a part of a structure amongst the use categories identified
in Land Use Code Section 26.470.020 (Residential- Free Market, Residential- Affordable
Housing, Commercial, Lodging, and Essential Public Facilities), a change in use approval
is required. Staff is not aware of any language in the land use code that would exempt an
existing non -conforming use from this requirement and thus, a change in use approval is
required to convert the portion of the Sardy House that is operating as boardinghouse to a
single-family residential use.
6. To what extent can boardinghouse uses be reduced before such use would be
deemed abandoned? For example, could a small portion of the Sardy House,
sufficient to provide meals for 6 or more people, be open to the public for such
purposes one.week per year?
Staff Response:
The 1985 definition of boardinghouse reads as follows:
Boardinghouse, rooming house, dormitory- A building or portion of thereof other
than a hotel, motel, lodge or multiple -family dwelling wherein lodging and/or
meals are provided for six (6) or more persons for compensation, which
compensation may include money, services, or other things of value.
For the boardinghouse use to remain active, it must be available to six (6) or more
persons for rental as lodging for the majority of the year. Because the definition
references lodging of people, the units contained within the Carriage House must be
available for overnight lodging on a short-term basis, which by definition of lodging
under today's land use code does not allow for it to be occupied by any one person or
entity that is an owner for more than 30 consecutive days or more than 90 days in any
calendar year.
7. As long as at least 6 individuals are provided with overnight lodging and/or meals
in the Carriage House, for compensation, would a corporate retreat or vacation
club type use be consistent with a boardinghouse use under the 1985 definition?
Staff Response:
If it can be demonstrated that a corporate retreat or vacation club type use of the Carriage
House provides overnight lodging and meals on a short-term basis for 6 or more people
or entities at a time, it would be permitted under the 1985 definition of boardinghouse.
However, the definition of boardinghouse requires a boardinghouse to provide lodging
for people that should turnover, so Staff would further interpret that the boardinghouse
units if used for a corporate retreat should not be occupied by any one person or entity for
more than 30 consecutive days and 90 days out of a calendar year as the definition of
lodge requires in the current land use code.
8. Please advise as to whether a building permit could be issued without a change -
in -use approval to eliminate three bedrooms and baths from the upper floor of the
north wing (boardinghouse annex) and relocation of one of the lower floor
kitchens into an open common area as shown on the attached plans (attached
hereto as Exhibit `B"). The premise behind this request is that the Carriage
House portion of the structure would remain a boardinghouse because it is would
still provide lodging and/or meals for more than six (6) people, with the new
kitchen and dining space being accessory to the boardinghouse use.
Staff Response:
The proposed plans would still allow for the Carriage House structure to remain in
compliance with the 1985 boardinghouse use definition. If the interior changes proposed
in the attached plans were made, there would still be more than six (6) bedrooms in the
Carriage House for rental as part of the boardinghouse use as is required by the 1985
boardinghouse definition. However, enacting this plan would require an amendment to
the approved conditional use plan that was originally established. A conditional use
amendment requires submittal of a land use application, which is prohibited in the Mixed
Use Zone District until the expiration of the current land use application moratorium that
was enacted pursuant to Ordinance No. 19, Series of 2006.
Questions 3 and 4
Questions 3 and 4 in the interpretation request relate to the provisions of Land Use Code
Section 26.710.180(D)(10)(A), Mixed Use Zone District: Floor Area Ratio. Below Staff
has listed these questions and have provided answers based on our understanding of the
land use code provisions:
3. There is no definition of "Free -Market Multi -Family Housing" in the Land Use
Code. There is a definition for "Dwelling — Multi -Family". Under that definition,
a single-family dwelling can be considered a multi -family dwelling if a portion of
it is used for retail, office or service commercial uses. Absent such an additional
use, a single-family dwelling should never be considered to be Free -Market
i Multi -Family Housing. With respect to the applicability. of Section
26.710.180(D)(10) of the Aspen Municipal Code (Mixed Use — Floor Area Ratio),
as amended by Ordinance No. 12, Series of 2006, under what circumstances could
the Sardy House be considered "Free -Market Multi -Family Housing" as that term
is used in Subsection I O(A)(3)?
Staff Response:
Based on the text of these defined terms, the single-family residential portion of the
structure is not considered multi -family housing as the uses in the structure are currently
recognized, because the boardinghouse use that is on the same parcel is not considered
retail, office, or service commercial, but rather is considered lodging. That said, if the
Applicant would like to maintain the boardinghouse use in a portion of the structure
meeting the requirements of the 1985 definition of a boardinghouse as is discussed in
Staffs response to Question #6 above, the single-family residential use combined with
the boardinghouse use of the Sardy House would have a cumulative allowable FAR of
1:1 as the Applicants have suggested.
4. If the Sardy House (Main Residence and Carriage House) is not considered Free -
Market Multi -Family Housing, but continues to include a boardinghouse use
component along with a predominantly single-family use, would not the
allowable floor area for the combined single-family and boardinghouse uses be
based upon a floor area ratio of 1:1? Such a combination of uses does not fall
within any categories described in Subsections 10(A)(1), (2), or (3), or IO(B)(1)
or (2), of the Mixed Use Floor Area Ratio Regulations. Thus, the only floor area
limit in such a case is the 1:1 floor area ratio which applies in the Main Street
Historic District (see second sentence of Subsection 10(A) of such regulations).
Staff Response:
The combined use as a single-family residence and a boarding house has a total FAR of
1:1 as is discussed in Staffs response to Question #3 above. That said, if the entire
structure were to be converted to a single-family residential dwelling unit as the only use
on the site, it would be subject to the allowable dimensional requirements for a single-
family dwelling unit in the R-6 Zone District as is established in Land Use Code Section
26.710.180(D)(10)(B), FAR Schedule for single-family and duplex uses when developed
as the only use of the parcel.
This interpretation is based on the provisions of the land use code that are currently in
place and which are subject to change before the moratorium is lifted or expires.
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 or any part of this decision to the
Aspen City Council. This can be done in conjunction with a land use request before City
Council or 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.
ATTACHMENTS:
Exhibit "A"- Request for Interpretation
Exhibit `B"- Proposed Carriage House Remodel Plans
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E A IJ "fi / /
CITY OF ASPEN
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
JURISDICTION:
APPLICABLE CODE SECTIONS:
EFFECTIVE DATE:
City of Aspen
26.312, Non -Conformities, 26.425,
Conditional Uses
September 18, 2006
WRITTEN BY: James Lindt, Senior Planner
APPROVED BY: Chris Bendon,
Community Development Director
COPIES TO:
John Worcester, City Attorney
Amy Guthrie, HP Officer
PURPOSE:
City Council requested an interpretation of the land use code related to whether the Sardy
House located at 128 E. Main Street is considered a non -conforming use, a conditional
use, or both.
BACKGROUND:
During the August 28, 2006 City Council meeting, City Council asked for an
interpretation from Staff about whether the Sardy House is considered a non -conforming
use, a conditional use, or both. The Sardy House existed as a single-family residence
from 1893 when it was constructed until 1985. In 1985, the owners of the Sardy House
received approval to remodel and expand the existing structure and a conditional use
approval to convert the entire building into a boardinghouse (Boardinghouse is a defined
term). The owners subsequently converted the main residence portion of the structure
back into a single residential unit in 2003 with the rear portion of the structure that was
added in 1985 remaining as a Boardinghouse. In 2005, the Office (0) Zone District in
which the property was located was converted to the Mixed -Use (MU) Zone District. In
conjunction with changing the zone districts, the boardinghouse use was removed from
the MU Zone District.
DISCUSSION:
Pursuant to the definition of "Nonconforming use" in Land Use Code Section
26.104.100, Definitions, the boardinghouse use in the Sardy House is a nonconforming
use because it was legally established through the codes that were in place at the time it
was initially permitted, but was rendered nonconforming when the 2005 code amendment
removed the boardinghouse use from the zone district in which it is located. That said,
the boardinghouse use in the Sardy House is also still subject to the conditions,
representations, and site -specific development approvals for the boardinghouse use that
was established in the 1985 conditional use approvals. Therefore, the boardinghouse use
is subject to the provisions of the nonconforming use section of the land use code and the
conditions and representations of the site -specific conditional use approvals.
The chart below compares the resulting impact of removing a conditional use versus a
permitted use from a zone district.
Before Code Change
Permitted Use
Description: use allowed
by right w/ no review of
specific development or
operations plan.
Conditional Use
Description: use allowed
subject to a conditional
use review and a site -
specific proposal.
2005 Code Change
Removing
Boardinghouse
from Zone District
I *
After Code Change
Nonconforming Use
Description: use allowed
to continue subject to a
maximum limitation on
expansion and intensity
Conditional Use &
Nonconforming Use
Description: Use
allowed to continue
under the site -specific
conditional use approval
and subject to non-
conforming use
limitations.
The Sardy House would require approval of a conditional use amendment to
convert three (3) of the boardinghouse units into a common living area as was
discussed in Staffs interpretation dated June 29, 2006.
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 or any part of this decision to the
Aspen City Council. This can be done in conjunction with a land use request before City
Council or as a separate agenda item.
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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.
ATTACHMENTS:
Exhibit "A"- City Council Minutes from August 28, 2006
��RAND�
1
TO: Aspen Planning and zoning Commission
FROM: Colette Penne, Planning Office
RE: Sardy House - Conditional Use
DATE: April 2, 1985
LOCATION: 128 E. Main Street.
Lots P, Q, R and S, and 25 feet of F, G, H and I, Block
66, plus the entire area of the vacated alley.
ZONING: 0 - Office and R-6
APPLICANT'S REQUEST: The applicant is requesting conditional use
approval to renovate the Sardy House and to build new structures, all
to be used as a Bed and -Breakfast Lodge.
BACKGROUND AND REVIEW: The Sardy House at 128 E. Main Street, is
individually designated as an histol
ric structure in the Exceptional
category. Because of this designation, both'a change fiomWresidential
to a lodging use and expansion of the structure..are exempt from Change
in Use review and GMP competition according to Section 24-11.2(b).
That section reads that
"The following development activity shall be exempted from
complying with the allotment procedures hereinafter provided for
(b) The enlargement of, or change of use in a structure
which has received individual historic designation."
The intention of the Office „zone is "to provide for the -.establishment
of offices and associated commercial uses in such a way as to preserve
the visual scale and_ character of `formerly residential areas that now
_ ...
are adjacent to commercial and business areas and along Main Street
and other high volume thoroughfares." A.."boarding house' is listed as
a Conditional Use with the condition that all conditional uses in the
Office zone shall be considereds
"(1) only for structures which have received historic designation;
(2) f or no more than two (2) such conditional, uses in each
structure (not including within such limitation accessory dwelling
units recognized as moderate, income_ -rousing by an approved
housing plan); and
(3) only when off-street parking is provided with alley access
for those conditional uses along Main Street."
The Planning Office feels that a Bed and Breakfast operation is quite
analagous to a boarding house and fife to intention of the zone.
This application also., complies with the three provisions above for
Conditional Use in the Office zone district
Section 24-3.3(b) of the._Municipal Code set. the criteria for a grant
of Conditional Use in all zone districts and the consideration of its
a .,.w,._,. , .. J ._. :. .,.... , ..
suitability as:
"(1) Whether the proposed use otherwise complies with all require-
ments imposed by the zoning code;
(2) whether the proposed use is consistent with the objectives
and purposes of this zoning code and the applicable zoning
district; and
(3) If the proposed use is designed to be compatible with surround-
ing land uses and uses in the area."
In terms of Area and Bulk Requirements, the proposal conforms with the
zoning code. The lot area is_17,400 s.f. and the existing house is
4,007 s.f. The total amount of proposed new construction is 6,506
f. for a total build -out of 10,513 s.f. This .is a floor area Yatio
s.zone FAR, is .75 1 with a possible bonus`up
of .60:1 and the Office
to 1:1. With all the wild -out that will'be counted in FAR, the total
will be about .65:1. Total number of guest rooms w 1'l be'nine double -
occupancy rooms and one parlour suite in the main house and ten rooms
in the proposed addition.
The use is consistent with the objectives and purposes of the Office
zone, however, the area which is zoned R-6 does nod
_t allow for the Be
and Breakfast use. The strip which is 11 zoned R 6 16' sit_uated to t e
north of the vacated alley. Mr. Sardy sold the north 75 feet of Lots
F, G, H and I over 25 years ago (prio.r to requirements for subdivision)'.
He then had the alley vacated through the adoption of Ordinance Y2,
adopted on March 6, '1961. Since he owned the property on both sides
of the alley, the entire areof the vacated . alley became part of his
a
parcel. When the zoning w.as subsequently placed on the block, the
division line between R-6 and 0 - Office was the alley, so this 25
foot piece was left in' the R=6 zone.
The applicant's representatives point out that in Section 24-3.2(d)
there may be an approach to making the alteration in the zoning line
without completing a full rezoning process. That Code section reads
as follows:
"24-2.3 Interpretation of the zoning district map.
When, due to the scale, lack of detail or illegibility of
the zoning district map, there is any uncertainty, contradiction
or conflict as. to the intended location of any zoning district
boundary as shown thereon, 'the building inspector shall make an
interpretation of said map upon request of any person, and any
person aggrieved by any such interpretation may appeal the same
to the planning and zoning commission. The building inspector
and planning and zoning commission, in interpreting the map or
deciding any appeal, shall apply the following standards:
(a) The zoning district boundary lines are intended to
follow lot lines, or be parallel or perpendicular
thereto, or along the center lines of alleys, streets,
rights -of -way or water courses, unless such boundary
lines are fixed dimensions shown on the map.
(b) Where zoning district boundary lines are so indicated
that they approximately follow lot lines, such lot lines
shall be construed to be the boundary lines.
(c) Where a zoning district boundary line, divides a lot,
the location of such boundary line, unless indicated by
dimensions shown on the zoning map, shall be determined
by the use of the map scale shown thereon.
(d) If, after application of the foregoing rules, uncertainty
still exists as to the exact location of a zoning
district boundary, the line shai'h be determined,_in a
y
reasonable manner, considering the historof the
city's zoning ordinances and amendments, and other
factors as shall be deemed relevant."
The Planning Office does not believe that, the above section applies to
this case. The attached copy of the z1.oning map indicates that there
is no problem in interpreting the scale, detail or legibility of the
line. Instead, we feel that the portions of Lots F, G, H and I should
be subject to a formal rezoning application and be considered relative
to the criteria of Section 24-12.5. Should you concur with this
analysis, a Commission member- should sponsor the rezoning. However,
until the rezoning procedure is.,accomplished, the Conditional use
permit for the entire site cannot be granted.
Returning to our review of the criteria for Conditional use permits,
the use should be compatible with the surrounding neighborhood. It is
situated at a very busy intersection and has public and commercial
uses surrounding it. The clinic and library are to the west, Mt. Bell Is
offices are to the north and Gracy's is to the east. The northwest
corner of Block 66 is occupied 6i a multi -family structure and the
orientation of the Sardy property is toward the . south and east. To
the northeast is the rectory for the Community Church.
The proposal includes both a parking solution and an employee housing
solution. Eight (8) parking spaces are to. be provided and the Engineer-
ing Department finds that number to be adequate for this project. The
spaces will be provided as six (6) ground level covered spaces beneath
the new building and two (2) spaces at the west end of the vacated
alley. The employee generation is. expected to be twelve (12) persons
in the summer and winter seasons and six (6) on a year-round basis.
Employee housing units 'to bepr : ovided include 'one (1) studio, one
(1) one -bedroom unit, and one.(1) two -bedroom unit. The Housing
Authority does not specifically review this application because of its
exemption from GMP and Change in Use, but through the referral process,
they complimented the applicant for addressing the need.
The Historic Preservation Committee has reviewed the plans on a
preliminary basis and they were enthusiastic about the concep� and the
plans. Removal of the existing garage and additions of carriage
house" type structures were solutions they found to be compatible.
They will be reviewing the plans further as they progress in detail.
PLANNING OFFICE RECOMMENDATION: The Planning Office recommends
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approval and the granting o- � Conditional use permit for a Bed and
Breakfast boarding house use in the Sardy House, as presented, with the
following conditions:
1. Rezoning of the south 25 feet of Lots F, G, H and I from R-6
to 0 - office must ,be accomplished before a, permit is issued
for construction on these lots..
2. The facility must be a licensed _.food service establishment
and must comply with the Rules and Regulations Governing the
Sanitation.of Food Service Establishments in the State of
Colorado.
3. The City's Air Pollution Ordinance must be met.
4. Construction noise, dust and mud carry -out must be minimized
and Chapter 16 of the Code complied with.
5. Trash storage and removal must be approved by the Engineering
Department.
6. Removal and relocation of the two (2) fruit trees must be
done in accordance with Section 13-1 of the Code.
CITY OV ASPEN
130 south ilena street
aspen, col rado 81611
303-5 5-2020
LAND USE APPLICATION FORM DATE SUBMITTED February 19, 1985
FEES
NAME Lake Forest Renovators, Inc.
ADDRESS 626 Sheridan Square, Evanston, IL 60202
PHONE (312) 475-8282
NAME OF PROJECT Sardy House
PRESENT ZONING
LOT SIZE
128 E. Main St., Aspen, Colorado b1bll Lots S R, Q, P and S.
LOCATION 25 feet of F, G, H, and I Block 66 and the adjoining alley according to the
(indicate street address, lot and block number. May require legal
description. A vicinity map is very useful.) records of Pitkin County.
CURRENT BUILD -OUT sq. ft. units
PROPOSED BUILD -OUT sq. ft. units
DESCRIPTION OF EXISTING USES
DESCRIPTION OF LAND USE PROPOSAL Adaptive reuse ofone of the most prominent and respected
Victorian buildings in Aspen by, creating 10-12 elegant rooms, each with private bath facilitie
The proiect will be a Bed & Breakfast operation. The parlour, livingroom, entry hall and front
stairway will remain completely intact and every effort will be made to keep as much of the
existing interior as possible: The exterior will be virtually -unchanged on the Main St, and
Aspen St. sides. re elaborate plans and description w1IJ_ follow.)
TYPE OF APPLICATION Conditional Use
APPLICABLE CODE SECTION (S) 24-33
PLAT AMENDMENT REQUIRED YES NO
DATE PRE -APPLICATION CONFERENCE COMPLETED
ATTACHMENTS: 1. A11 applicants must supply Proof of Ownership in the form of a
title insurance commitme,': or statement from an attorney indicating
that he/she has researct 1 the title and verifies that the applicant
is the owner of the pror •ty (free of liens and eucumbrances.)
2. If the process requires public hearing, a Property Owner's List
must be supplied which € es all owners within 300 feet in all
directions in some cases ind adjacent owners in some cases.
3. Number of copies required (by code and/or in pre -application
conference.)
4. Plat by Registered Surveyor Yes No
Harvey opened the public hearing.
Penne briefed the commissioners on the applicants intentions of
making the Sardy House a bed and breakfast lodge. There is a
problem in that a boarding house is a conditional use in the "0"
office zone but there is a small piece of the property still
zoned R6. They would like the commissions ideas about the
project and its use as a conditional use and to discuss rezoning
the strip that is still zoned R6.
Harvey said that the conditional use couldn't happen unless that
portion of the property currently zoned R6 is rezoned. Penne said
it could be said the use of the property is a bed and breakfast
lodge and is alright in this location, in the office zone. By
doing that you would be allowing them to do work to the inside of
the old structure. The problem with that being that there are
parking spaces proposed under the new addition which may be a
concern of your conditional use review. If the rezoning didn't
occur you would have a problem.
Harvey asked Penne if the Planning office thought this could be
seen as an oversight in the zoning map. Penne replied that the
City Attorneys office recommendation was to rezone the property.
Harvey asked if it will be a full rezoning. Are we rezoning that
25 feet to "0" office zone, or the entire property to L3. Penne
replied, the 25 feet to "0" office zone.
Penne said the applicants proposal includes both a parking solution
and an employee solution. Technically they wouldn't have to
provide employee housing because of the historic designation.
The change in use is exempted from going through change in use
review. The addition is exempted from GMP because of the historic
designation. There is not a specific parking requirement but in
order to get conditional use approval you need to have some
parking in the alley,which they have provided.
Penne recommended the commission approve this for a conditional
use as a bed and breakfast lodge with 6 conditions outlined in
the memorandum.
Harvey submitted a letter from Gracey's, an adjacent property,
giving their full support to the project.
2
Harvey expressed concern with the number of parking spaces. It
is located on Main St., probably one of the busiest intersections
in town. Any impact will be attributable to this project. Penne
responded that at present you can't park on Main St. because of
the bus stop. The on street area in front of Gracey's or in front
of the church's rectory or the Mountain Bell parking lot behind
the house are locations where there would be on street parking.
There is also the possibility the applicant could rent some of
the Mountain Bell parking spaces.
Elizabeth Jones, owner of the Hotel Lenado, addressed the commis-
sion. She said that most of their guests do not arrive in cars.
Kathy Costello, a library employee, addressed the commission.
She thought that the library has a parking problem now. She
asked if there could time limits set on the parking.
Hunt asked how the trash pickup would be handled. Harry Tegan
replied that it would be put under the stairway to the back
section and rolled out for pickup.
Harvey closed the public hearing.
Penne asked if the City Attorney's were unable to find a way to
rezone that parcel other than through rezoning, would the Planning
and Zoning Commission be willing to sponsor it. Harvey asked if
anyone on the commission had a problem with sponsoring the
rezoning of the back 25 feet to bring it in to performance with
the rest of the property, no objection was voiced.
Mgtion:
Harvey entertained a motion to grant a conditional use permit for
the bed and breakfast at the Sardy House with conditions 1
through 6 of the Planning Office memorandum of April 2, 1985.
Fallin so moved. The motion was amended to add: the Planning
and Zoning sponsorship to condition number 1. Peyton seconded. All
in favor, motion carried.
Penne introduced the applicants, Terry Rose and Sarah Pletts.
Penne explained the applicants request is to amend Section 24-3.2
of the Municipal Code to add "artists' studios with optional
accessory dwelling unit" as a permitted use in the SCI zone and
to change the intention statement for the zone to also read:
"To allow for employee residences in or adjacent to professional
artists studios as a permitted use." Penne added, although they
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544-4N 04
5[2s�jd�
November 4, 2005
Daniel Delano
'f he Sardy !-louse
128 I . Main Strect
Aspen, CO K 1 b 1 1
Dear Daniel,
Ti It: Ci i . , it .-V,ri ,%
The Pity Planning Staff has discussed your recent questions about future uses liar the
Sandy l Iousc. Following is our position on the ideas that have been presented to us to
dale.
• We understand the Sardy House to be located on a parcel that is approximately
17,744 square feet in size, developed with a building that is approximately 13,080
square feet of FAR in size. The property is used as a single-family house
(established through a Change in Use application approved in 2003) and, in all
annex, contains a number of bedrooms with kitchens that were originally
established under the definition of a "boardinghouse." The Municipal Code no
longer mentions boardinghouse as an allowed use in the Mixed Use Zone. "Bed
and Breakfast" is an allowed use and as we understand it, the Sardy House
operation meets this definition, which is: "a dwelling used as a commercial
lodgliig establishment for temporary guests, other than a hotel or lodge, and which
contains no more than twelve guest rooms, provides no less than one meal daily
for guests, and is operated by an on -site resident manager or owner."
• It is not possible for someone to use the entire existing structure solely as a single-
fan,ily house and be in conformance with zoning. A single-family house may
only have one kitchen, and is restricted to a maximum FAR which is significantly
smaller than the existing building.
• It is possible to maintain single family use, and to even convert more of the
building for this function, if all but one kitchen is removed and a non-residential
use allowable in the Mixed Use zone district is legitimately established
somewhere on the property. Maximum FAR for a mixed use building in the zone
district is now 1:1, so there is additional square footage available, although the
portion of the building devoted to single family usage may not exceed .75:1 FAIL.
• 'The existing structure cannot be converted into multi -family housing (three or
more free market units) without receipt of growth management allocations that
would allow all units in excess of the existing single-family unit to become free
market dwelling units. In order to receive the growth management allocations,
mitigation for affordable housing would be required. Maximum FAR for free
market multi -family units on the site with no commercial uses is .75:1.
• Because the property is a historic landmark, the existing structure can be
converted to any allowed use in the zone district through a Changc in Use
process, as long as the dimensions comply with zoning. (This includes an art
gallery or bank, specific examples you cited.) No affordable housing; mitigation is
ruluired at this time to convert existing space to a commercial use.
• Any new square footage that is constructed will be subject to the Growth
Management requirements.
• All exterior changes to the property require HPC approval.
I'leasc Ict us know i [you have additional questions.
Sincerely,
Amy Guthrie
Historic Pi-cservation Officer
• G-X�"bh' g
sion regulations, or prior to its annexation into the city, a unit or area of land designated by a separate
and distinct number or letter which is illustrated on a plat recorded in the office of the Clerk and Re-
corder for Pitkin County.
Lot area. The total horizontal area contained within the lot lines of a lot, or other parcel of land.
(See, Supplementary Regulations - Section 26.575.020, Calculations and Measurements).
way.
Lot depth. The shortest horizontal distance between the front and rear lot lines.
Lot line, front. The line normally closest to and/or dividing a lot from a street or street right-of-
Lot line, rear. The lot line opposite the front lot line.
Lot line, side. The lot lines other than front or rear lot lines.
Lot width. The horizontal distance between the side lot lines as measured along the front yard
setback line.
Manufactured home. A single family dwelling unit which is partially or entirely manufactured in
a factory or at some location other than the site of final construction and installation. A manufactured
home is installed on an engineered, permanent foundation and has brick, wood, or cosmetically equiva-
lent siding and a pitched roof. A manufactured home is certified to the National Manufactured Housing
Construction and Safety Standards Act of 1974, 42 U.S.C. 5401, et seq., as amended.
Mixed -Use. The use of land or a structure for more than one of the following land uses:
-Commercial (which shall include Retail and Restaurant Uses, Neighborhood Commercial Uses,
Office Uses, Service Uses, Service Commercial Industrial Uses, Food Market, and Commercial
Parking Facility, but which shall exclude Agricultural Uses and Artist Studio).
■ Residential (which shall include Detached Dwelling, Attached Dwelling, single-family dwelling,
Duplex Dwelling, Multi -Family Dwelling, Manufactured Home, free-market residence,
Affordable Housing, Employee Housing, Group Home, Dormitory, Accessory Dwelling Unit,
and Carriage House).
■ Lodging (which shall include Hotel, Timeshare Lodge, and exempt timesharing, but shall exclude
Boardinghouse and Bed and Breakfast).
■Civic (which shall include Arts, Cultural, and Civic Uses; Child Care Center; Essential Public
Facility; Recreational Use; and, Public Uses; but shall exclude Open Space, Open Use
Recreation Site, and ).
Accessory Uses, Temporary Uses, and the ownership of property by a Non -Profit Organization that
is not used as set forth above shall not qualify a property or structure as Mixed -Use.
Mobile home. A detached, transportable, one -family dwelling unit intended for year round occu-
pancy, and containing sleeping accommodations, flush toilet, a tub or shower bath, kitchen facilities
With plumbing and electrical connections intended for attachment to outside systems. All mobile homes
City of Aspen Land Use Code. June, 2005
Part 100, Page 22
26.710.180 Mixed -Use (MU).
A. Purpose. The purpose of the Mixed -Use (MU) Zone District is to provide for a variety of lodging,
multi -family, single-family, and mixed -use buildings with commercial uses serving the daily or fre-
quent needs of the surrounding neighborhood, provide a transition between the commercial core and
surrounding residential neighborhoods, and to provide a variety of building sizes compatible with the
character of the Main Street Historic District.
B. Permitted uses. The following uses are permitted as of right in the Mixed -Use (MU) zone district:
1. On Historic Landmark Properties: Retail and Restaurant Uses, Neighborhood Commercial
Uses, and Bed and breakfast.
2. Service Uses.
3. Office Uses.
4. Lodging, Timeshare Lodge, Exempt Timesharing.
5. Arts, Cultural and Civic Uses.
6. Public Uses.
7. Recreational Uses.
8. Academic Uses.
9. Child care center.
10. Affordable Multi -Family Housing.
11. Free -Market Multi -Family Housing.
12. Single Family Residence.
13. Duplex Residence.
14. Two Detached Single -Family Residences.
15. Home occupations.
16. Accessory uses and structures.
17. Storage accessory to a permitted use.
C. Conditional uses. The following uses are permitted as conditional uses in the Mixed -Use (MU)
zone district, subject to the standards and procedures established in Chapter 26.425:
1. Commercial Parking Facility, pursuant to Section 26.515.
D. Dimensional requirements. The following dimensional requirements shall apply to all permitted
and conditional uses in the Mixed -Use (MU) zone district:
Minimum lot size (square feetZ 3,000.
Minimum lot area per dwelling unit (square feet
a. Detached residential dwellings: 4,500. 3,000 for Historic Landmark properties.
b. Duplex dwellings: 4,500. 3,000 for Historic Landmark properties.
c. All other uses: Not applicable.
Minimum lot width (feet): 30.
4. Minimum front yard setback (feet): 10, which may be reduced to 5, pursuant to Special
Review, Section 26.430.
City of Aspen Land Use Code. June, 2005.
Part 700, Page 39
• &44 1P a
9 24•al
ASPEN CODE § 24-3.1
masculine iWIudes the feminine. The word "Shall" is
mandatory, and the word "may" is PermiGBive-
(a) Alley: A public way permanently reserved aa, a
eeconduy means of access to abutting Property.
(b) Basement Tat area of a sbmzttttre fifty (bo) per cent or
ire of which i8 below existing grade, suhordins toe and ether
pal use of the building, and used for parking,
secondary Purposes. Those areas beneath a basement shall be
desipated subbasement(a). For the purpose of calculating loon
area ratio and allowable floor area, basements and e11bb eentr'
constructed is conjunction with single-family or duplex
struc-
tures In anY tone dietnci are not reauimd to be subordinate to
be principal use of the building.
(c) Boordinghouse, rooming house. �jrmitory: A lodge to
s• portion thereof other than a hotel, an 1t/el, meals
pultiple-f8mil d,velling unbends lodg1nK which
novided for six (6) or more persons for comper other
somp�a�n tn" include money, services, or other thinp�s
A value
(d) Building. AnY p6nnanent etruc#UTe built for the shelter
or enclosure of persons, animals, chattels oT property of any
kind, and not including advertising sign boards or fences.
(a) Buildirgg sit& Area or a lot or lots upon which a
building or structure may be erected. or open space or
arcades located
(f) Dwelling: A pe+rmsnent building or portion thereof
which is used as the private residence of sleeping Place of
one or more human bengs, but not including hotels, lodge
awts, dubs, hospitals, temporarycars, metal sprefabrie"
railroad care, trailers. Streettreet
sections, or similar unite, bed principal building,
O (1) ne-family dwelling= A �°c 'or and used as a
other than a mobile bomo dgiff nee family ■s an independent
exclusively Y
houmkeeping unit. •,duplex'): A
'I (2) of roily dwelling (also 1Q1own as a only two (2)
detached princ►p&I building conte�imnK
'mot* sharing a common .veil no leas than
dwelling
9npp. No. 26 1434
Sardy House Conditional Use Permit Conditions: 1985
I. Rezoning of the south 25 feet of Lots F, G, H and I from R-6 to 0 - Office must be
accomplished before a permit is issued for construction on these lots.
2. The facility must be a licensed food service establishment and must comply with
the Rules and Regulations Governing the Sanitation of Food Service
Establishments in the State of Colorado.
3. The City's Air Pollution Ordinance must be met.
4. Construction noise, dust and mud carry -out must be minimized and Chapter 16
of the Code complied with.
5. Trash storage and removal must be approved by the Engineering Department.
6. Removal and relocation of the two (2) fruit trees must be done in accordance
with Section 13-76 of the Code.
7. The property owner shall bear the restoration costs beyond the normal costs of
restoring asphalt or sodded surface for work caused by utility companies'
disturbance of the vacated alleyway.
Any enlargements or other changes in the water system shall be reviewed by the
Water Department prior to issuance of a building permit.
---' 1.2ou6 4 : 3 2 P M COKOY DEVELOPMENT . NO.755s F. 7.,12
8x4n'�i. f r
required to convert the portion of the Sardy House that is operating as boardinghouse to a
single-family residential use.
6. To what extent can boardinghouse uses be reduced before such use would be
deemed abandoned? For example, could a small portion of the Sardy Housc,
sufficient to provide meals for 6 or more people, be open to the public for such
purposes one week per year?
Staff Response:
The 1985 definition of boardinghouse reads as follows:
Boardinghouse, rooming house, dormitory- A building or portion of thereof other
than a hotel, motel, lodge or multiple-fanuly dwelling wherein lodging and/or
ineals are provided for six (6) or more persons for compensation, which
compensation may include money, services, or other things of value.
For the boardinghouse use to remain active, it must be available to six (6) or more
persons for rental as lodging for the majority of the year. because the definition
references lodging of people, the units contained within the Carrage House must be
available for overnight lodging on a short-term basis, which by definition of lodging
under today's land use code does not allow for it to be occupied by any one person or
entity that is an owner for more than 30 consecutive days or more than 90 days in any
calendar year.
7. As long as at least 6 individuals are provided with overnight lodging and/or meals
in the Carriage House, for compensation, would a corporate retreat or vacation
club type use be consistent with a boardinghouse use under the 1985 definition?
Staff Response.
If it can be demonstrated that a corporate retreat or vacation club type use of the Carriage
House provides overnight lodging and meals on a short-term basis for 6 or more people
or entities at a tune, it would be permitted under die 1985 definition of boardinghouse.
However; the definition of boardinghouse requires a boardinghouse to provide lodging
for people that should turnover, so Staff would further interpret that the boardinghouse
units if used for a corporate retreat should not be occupied by any one person or entity for
more than 30 consecutive days and 90 days out of a calendar year as the definition of
lodge requires in the current laird use code.
8. please advise as to whether a building permit could be issued without a change -
in -use approval to eliminate three bedrooms and baths from the upper floor of the
north wing (boardinghouse annex) and relocation of one of the lower floor
kitchens into an open common area as shown on the attached plans (attached
hereto as Exhibit `B"). The premise behind this request is that the Carriage
House portion of the structure would remain a boardinghouse because it is would
still provide lodging and/or meals for more than six (6) people, with the new
kitchen and dining space being accessory to the boardinghouse use.
I..
7. 2UU6 421 M COM0TY DEVELOPMENT
. NO.7JJC
Staff Response:
The proposed plans would still allow fqr the Carriage House structure to remain in
compliance with the 1985 boardinghouse use definition. if the interior changes propused
in the attached pkins, were made, there would still be more than six (6) bedrooms in the
Carriage House for rental as part of the boardinghouse use as is required by the 1985
boardinghouse definition. However, enacting this plan would require an amendment to
the approved conditional use plan that was originally established. A conditional use
amendment requires submittal of a laud use application, which is prohibited in the Mixed
Use Lone District until the expiration of the current land use application moratorium that
was enacted pursuant to Ordinance No. 19, Series of 2006,
Ouestions 3 and 4
Questions 3 and 4 in the interpretation request relate to the provisions of Land Use Code
Section 26.710.1 S0(D)(10)(A), ,Mixed Use Zone District: Floor .4rea Ratio. Below Staff
has listed these questions and have provided answers based on our understanding of the
land use code provisions:
3. There is no definition of "Free -Market Multi -Family Housing" in the Land Use
Code. There is a definition for "Dwelling — Multi -Family". Under that definition,
a single-family dwelling can be considered a multi -family dwelling if a portion of
it is used for retail, office or service commercial uses. Absent such an additional
use, a single-family dwelling should never be considered to be Free -Market
Multi -Family Housing, With respect to the applicability of Section
26.710.180(D)(10) of the Aspen Municipal Code (Mixed Use — Floor Area Ratio),
as amended by Ordinance No. 12, Series of 2006, under what circumstances could
the Sardy House be considered "Free -Market Multi -Family Housing" as that term
is used in Subsection 10(A)(3)?
Staff Response:
Based on the text of these defined terms, the single-family residential portion of the
structure is not considered multi -family housing as the uses in the structure are currently
recognized, because the boardinghouse use that is on the same parcel is not considered
retail, office, or service commercial, but rather is considered lodging. That said, if the
Applicant would like to maintain the boardinghouse use in a portion of the structure
meeting the requirements of the 1985 definition of a boardinghouse as is discussed in
Staff s response to Question #6 above, the single -fancily residential use combined with
the boardinghouse use of the Sardy House would have a cumulative allowable FAR of
1:1 as the Applicants have suggested.
4. If the Sardy House (Main Residence and Carriage House) is not considered Free -
Market Multi -Family Housing, but continues to include a boardinghouse use
component along with a predominantly single-family use, would not the
allowable floor area for the combined single-family and boardinghouse uses be
based upon a floor area ratio of 1:17 Such a combination of uses does not fall
within any categories described in Subsections 10(A)(1), (2), or (3), or 10(B)(1)
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not in conflict with this Title. The City's decision -making bodies may adop e�s`6f p> ocedure
to limit the number of development applications which may be considered at a hearing.
7. Record.
a. Records of hearing. All hearings shall be recorded by audio -tape or other similar recording
device. A copy of the audio tape of a hearing shall be provided upon the request of any
person and the payment of a fee covering the reasonable cost thereof.
b. Record. The transcript of oral proceedings, including testimony and statements of personal
opinions, the minutes of the secretary, all applications, exhibits and papers submitted in any
proceeding before the decision -making body, the report and recommendation of the
Community Development Director, and the decision and report of the decision -making
body shall constitute the record.
D. Actions by decision -making bodies. All decision -making bodies shall act in accord with the time
limits established in this Title. Action shall be taken as promptly as possible in consideration of the
interests of the citizens of the City of Aspen. Depending upon which decision -making body has final
approval authority over a given development application, a site specific development plan may only be
approved by written resolution of the Planning and Zoning Commission or Historic Preservation
Commission, or by ordinance adopted by the City Council. Any land use approval which places any
burden upon or limits the use of private property shall be by ordinance. All resolutions and ordinances
granting final approval for a site specific development plan shall:
1. Be preceded by a public hearing following public notice by publication (See Section
26.304.060(E)(3)(a), below); and
2. Include the following provisions:
The rights granted by the approval of this site specific development plan shall remain
vested for a period of three (3) years from the effective date of the approved development
order. However, any failure to abide by any of the terms and conditions attendant to this
approval shall result in the forfeiture of said vested property rights. Failure to properly
record all plats and agreements required to be recorded by this Code within 180 days of the
effective date of the development order shall also result in the forfeiture of said vested
property rights and shall render the development order void within the meaning of Section
26.104.050 (Void permits).
b. The approval granted hereby shall be subject to all rights of referendum and judicial review;
the period of time permitted by law for the exercise of such rights shall not begin to run
until the date of publication of the notice of final development approval as required under
Section 26.304.070(A) of this Chapter.
Zoning that is not part of the approved site specific development plan shall not result in the
creation of a vested property right.
City of Aspen Land Use Code. June, 2005.
Part 300, Page I I
MEMORANDUM
TO: Mayor Klanderud and Aspen City Council
THRU: Chris Bendon, Community Development Director
FROM: James Lindt, Senior Planner �, V
RE: Appeal of Land Use Code Interpretation- Land Use Code Section
26.425, Conditional Uses- Public Meeting
DATE: August 28, 2006
PROJECT:
APPEAL OF LAND USE CODE INTERPRETATION
REQUEST SUMMARY:
The Community Development Director issued a land use code
interpretation on June 29, 2006, and a subsequent supplemental land
use code interpretation on July 7, 2006. The interpretations are a
response to an interpretation request submitted by Sardy House, LLC,
owners of the Sardy House. The Appellants have appealed one
provision that was provided in the interpretation dated June 291h that
requires the submittal and approval of a land use application for a
conditional use amendment to convert three (3) of the boardinghouse
rooms in the Sardy House into a living room area for the
boardinghouse.
APPELLANTS:
Sardy House, LLC.
STAFF
Staff recommends that City Council affirm the Community
RECOMMENDATION:
Development Director's interpretation.
REQUEST SUMMARY:
As was briefly described above, Sardy House, LLC (known herein as the "Appellants") have
requested an appeal (letter of appeal and letter of justification attached as Exhibit "A") of a
provision in a land use code interpretation that was issued by the Community Development
Director on June 29, 2006 (attached as Exhibit "B"). Staff issued a land use code
interpretation and a supplemental land use code interpretation (attached as Exhibit "C") in
response to some specific questions (code interpretation request is attached as Exhibit "D")
posed by the Appellants related to several possible development options for the Sardy House.
The one provision that was included in these land use code interpretations that the Appellants
are asking for relief from is Staff's response to question No. 8 in the interpretation dated June
29, 2006.
Staff s response to question No. 8 would require the Appellants to apply for and obtain
approval of a conditional use amendment if they wished to convert three (3) of the
boardinghouse units in the Sardy House to a living room area (plan attached as Exhibit "H")
for the boardinghouse use before applying for a building permit. The Appellants have
contended in the letter of appeal that they should not be required to obtain a conditional use
amendment and should be able to simply apply for a building permit for the interior changes
to the Sardy House that are described above. Therefore, the Appellants have contended that
the Community Development Director has abused his discretion by requiring an amendment
to the conditional use approval and requests that City Council reverse the Community
Development Director's interpretation related to question No. 8. The letter of appeal has also
suggested that Staff has not provided them due process because of the amount of time that
elapsed since they first verbally asked if they could simply apply for a building permit to
make the aforementioned changes to the floor plans of the boardinghouse.
REVIEW PROCESS:
Pursuant to Land Use Code Section 26.316.030(E), Appeal procedures: Standard of review,
City Council may affirm, modify, or reverse an interpretation made by the Community
Development Director. In order to modify or reverse the interpretation, City Council
must make a finding that there was a denial of due process in issuing the interpretation
or that the Community Development Director exceeded his jurisdiction or abused his
discretion. The appeal is a public meeting, but is not a public hearing because the appeals
section of the code requires that Council's determination be based on the record that was
previously established in issuing the interpretation.
STAFF COMMENTS:
Abuse of Discretion:
Land Use Code Section 26.425.010, Conditional Uses: Purpose, describes that conditional
uses are those land uses that are compatible with other uses in the zone district in which they
are located, but which require review of their location, design, configuration, intensity, and
density to ensure their appropriateness. The Sardy House received conditional use approval
(1985 staff memorandum attached as Exhibit "E") to construct a carriage house addition to
the rear of the historic residence that was to be used for 10-12 boardinghouse units. Based on
the above text of the code, Staff believes that the Appellants' request to convert three (3) of
the boardinghouse units to a living room space for common use by all of the boardinghouse
guests is a change in the configuration and intensity of the boardinghouse use on the parcel
and requires a conditional use amendment.
The Appellants' letter dated August 14, 2006, suggests that the Community Development
Director has abused his discretion in determining that the proposed changes require an
amendment to the conditional use approval. The Appellants have also argued that a
conditional use amendment is not necessary because the boardinghouse portion of the
structure would still comply with the 1985 boardinghouse definition. While Staff agrees that
the proposed conversion may still be in compliance with the 1985 boardinghouse definition,
it is Staff's position that a substantive amendment to an existing conditional use requires
approval regardless of the operation's continued compliance with the definition.
As was previously discussed, the purpose statement of the conditional use section requires a
review of the intensity, configuration, and density of a use to insure the appropriateness of the
land use. The conditional use section goes on to describe the process for amending a
-2-
development order for a conditional use. There are two amendment options: 1) an
insubstantial amendment for which the Community Development Director may approve; and
2) "other" amendments for any changes that do not qualify for an insubstantial amendment.
Either option requires a land use application and the code provides no other options.
Staff does not believe that the Community Development Director abused his discretion in
determining that a conditional use amendment is necessary for the conversion since it would
alter the intensity, configuration, and density of the boardinghouse use that was approved
through a site -specific conditional use review in 1985.
Due Process:
The Appellants have also suggested that Staff has not provided them due process in making
our interpretation because they feel that Staff indicated that they could construct the
conversion on several occasions, which they have tried to document in the appeal letter.
Conversely, Staff does not believe that the Appellants were given any indication that they
could apply for a building permit to convert the units into common living area. In the
following paragraphs, Staff would like to refute some of the Appellants' allegations that Staff
indicated that the proposed conversion could be done by simply applying for a building
permit.
The appeal letter indicates that the Appellants' attorney, David Myler, called Staff on April
271h and asked if a building permit could be submitted for an interior remodel that does not
increase the floor area of a property or whether a remodel of that sort would be caught in the
building permit moratorium. Staff recalls the conversation and recalls that a specific
conversion plan was never described or discussed and that the specifics of the Sardy House's
proposed conversion were not mentioned. Therefore, Staff believes this allegation to be
misleading in that the scope of the proposed interior remodel was not divulged to Staff at this
time.
It is further discussed in the appeal letter that one of the Appellants and the representative of
the party that had the Sardy House under contract, Gwen Dickenson, met with Staff on May
121h and Staff indicated that they could go ahead and convert the three (3) boardinghouse
units into a common living space. The letter further describes that Staff said that we "can't
think of anything that would prevent interior walls being torn down". Staff concedes that the
staff members that were present for this meeting did not come up with any code basis at this
meeting to prevent the Appellants from applying for a building permit for an interior
remodel. However, at the conclusion of this meeting the Staff members (Amy Guthrie and
James Lindt) involved in the meeting expressed to the Appellant and Gwen Dickenson that a
specific proposal for an interior remodel was needed to give them a definite answer on
whether an interior remodel would be permitted without any land use actions. Staff further
indicated at the conclusion of the meeting that the Appellants needed to pose their questions
in writing.
Gwen Dickenson appeared to get the message that Staff could not make a determination on
whether any land use actions were required to construct an interior remodel unless without a
-3-
specific remodel plan, as is evidenced by her e-mails (attached as Exhibit " F") of May 161h,.
In her e-mail, she asks Staff to make a determination on whether a reduction in rooms would
need a land use review absent of a plan.
The letter of appeal also then suggests that Staff mistreated the Appellants' request to make a
determination by taking such a long time to render a decision on whether they could convert
three (3) of the boardinghouse units into common living with only a building permit. In
response to this claim, Staff has documented in the previous two paragraphs that Staff
expressed to the Appellants that a specific remodel plan was needed in order to make a
definite decision on whether a land use application was necessary. Staff did not receive a
specific remodel plan (attached as Exhibit "H") until June 9th when the interpretation request
was filed. Upon receipt of the interpretation request, Staff deemed it complete on June 141h
as is evidenced by the e-mail that was sent to David Myler on June 10 (attached as Exhibit
"G" ) and issued the interpretation on June 291h, which is within the 15 days that is required
by Land Use Code Section 26.306(C)(3), Interpretations of Title.
After the original interpretation was issued, the Appellants requested a meeting with Staff to
make their argument that several aspects of the original interpretation were too restrictive.
Staff accommodated the Appellants by meeting with them on July 7, 2006. Subsequent to the
meeting, Staff considered the Appellants' arguments and issued a supplemental interpretation
on the same day that the meeting was conducted. Staff feels that they have been very
responsive to the Appellants' requests after receiving a specific remodel plan. Staff does not
believe that there has been a denial of due process.
STAFF RECOMMENDATION:
Staff does not feel that the Community Development Director exceeded his jurisdiction or
abused his discretion by interpreting that the Sardy House -would require a conditional use
amendment to convert the three (3) boardinghouse rooms to a general living space. Land Use
Code Section 26.306, Interpretations of Title, establishes that the Community Development
Director has the authority to interpret the text of the land use code and apply it accordingly.
Also, since Land Use Code Section 26.425.010, Conditional Uses: Purpose, establishes that
the configuration and intensity of a conditional use is amongst the topics of review for a
conditional use as was discussed above, Staff does not believe that the Community
Development Director abused his discretion by interpreting that a conditional use amendment
is necessary for the conversion of boardinghouse units to general living space.
Staff does not believe that there was a denial of due process in issuing the interpretation or
that the Community Development Director exceeded his jurisdiction or abused his discretion.
Staff recommends that City Council affirm the Community Development Director's
interpretation by approving the attached resolution.
-4-
RESOLUTION NO. Lj
(SERIES OF 2006)
A RESOLUTION OF THE ASPEN CITY COUNCIL AFFIRMING THE
COMMUNITY DEVELOPMENT DIRECTOR'S INTEPRETATION OF LAND
USE CODE SECTION 26.425, CONDITIONAL USE, AS IT APPLIES TO THE
SARDY HOUSE PROPERTY AT 128 EAST MAIN STREET.
WHEREAS, the Community Development Department received a Land Use
Code Interpretation request from Sardy House LLC, requesting responses to a series of
questions about how different land use code sections would be applied to several
development scenarios that the Sardy House, LLC was exploring on the Sardy House
property at 128 East Main Street; and,
WHEREAS, pursuant to Land Use Code Section 26.306, Interpretations of Title,
the Community Development Director issued a land use code interpretation dated June
29, 2006, responding to the interpretation request after the interpretation request was
determined to be complete on June 14, 2006; and,
WHEREAS, pursuant Sardy House, LLC, set up a meeting to discuss the
interpretation on July 7, 2006, and the Community Development Department
subsequently issued a supplemental interpretation dated July 7, 2006; and,
WHEREAS, Sardy House, LLC, requested an appeal of Staff s response to
question No. 8 in the land use code interpretation dated June 29, 2006 pursuant to Land
Use Code Section 26.316, Appeals; and,
WHEREAS, the Aspen City Council has reviewed and considered the appeal under
the applicable provisions of the Municipal Code as identified herein, has; and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary
for the promotion of public health, safety, and welfare.
WHEREAS, the City Council approved, by a vote of to-�
Resolution No. _, Series of 2006, affirming the Community Development Director's
interpretation that Land Use Code Section 26.425, Conditional Uses, requires a
conditional use amendment for the conversion of three (3) boardinghouse units in the
Sardy House to a general living space.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO THAT:
Section 1
Pursuant to Land Use Code Section 26.316, Appeals, City Council hereby affirms the
Community Development Director's interpretation that Land Use Code Section 26.425,
Conditional Uses, requires a conditional use amendment for the conversion of three (3)
boardinghouse units in the Sardy House to a general living space.
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 conducted 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.
RESOLVED, passed and approved this 28th day of August, 2006.
Attest:
Kathryn S. Koch, City Clerk Helen Kalin Klanderud, Mayor
Approved as to form:
John Worcester, City Attorney
2
ALTERNATIVE OPTIONS:
If City Council finds that there was a denial of due process, or that the Community
Development Director exceeded his jurisdiction/abused his discretion, City Council could
reverse the Community Development Director's interpretation and issue a new interpretation
that a conversion of three (3) internal boardinghouse units to a general living space in the
Sardy House does not require a conditional use amendment and instead only requires receipt
of a building permit.
CITY MANAGER'S COMMENTS:
RECOMMENDED MOTION:
"I move to approve Resolution No. _, Series of 2006, affirming the Community
Development Director's interpretation related to question No. 8 in the June 29`h
interpretation request submitted by Sardy House, LLC, which requires a conditional use
amendment to convert three (3) boardinghouse units to a general living space in the
Sardy House."
ATTACHMENTS:
EXHIBIT A - LETTER OF APPEAL
EXHIBIT B - LAND USE CODE INTERPRETATION DATED JUNE 29, 2006
EXHIBIT C - SUPPLEMENTAL LAND USE CODE INTERPRETATION DATED JULY 7, 2006
EXHIBIT D - LAND USE CODE INTERPRETATION REQUEST
EXHIBIT E - 1985 STAFF MEMORANDUM
EXHIBIT F -MAY 16T" GWEN DICKENSON E-MAILS
EXHIBIT G --JUNE 14T" E-MAIL TO DAVID MYLER
EXHIBIT H- REMODEL PLAN
-5-
July 13, 2006
To: Chris Bendon
RECEIV,co
JUL 1 4 2006
3U/LOfNr7 5EPARNENT
From: Frank Peters and Daniel Delano! Sardy House, L LC.
Re: Appeal of Staff opinion regarding the Sardy House status and the building
moratorium.
Chris,
This is your formal notice that we are appealing the planning staff
interpretation of the land use code as it is applied in the response to question
number eight in your memo of June 29, 2006.
At this time we don't need to rush the public notice and scheduling to get
on the council's next agenda. We are simply preserving our right to an appeal at
this time.
There is no official form that we are aware of for the notice of appeal. If
this notice is insufficient in any way, please let us know.
Thank you,
c � j
A`Il
rank Peters
Daniel Delano
RETM FOR PERMmW RECORD
Sardy House, LLC • 128 East Main Street • Aspen, Colorado 81611 • T: 970.920.2525 F: 970.920.4478 • www.sardyhouse.com
0
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AUG 1 4 2006
i
r►;,rt�v
Mr. James Lindt, Senior Planner RUILnwr- nFPAR 1 k4FNT
City of Aspen Community Development Department
August 14, 2006
Hand Delivered
Re: APPEAL OF STAFF OPINION REGARDING SARDY HOUSE
Dear James:
Thank you for the time you have devoted to this complex and serious matter. Please
understand that while we may refer herein to you and to the city planning staff
collectively in somewhat negative terms, we feel no personal animosity. We realize the
work of city planners is difficult and often thankless.
At your request, this letter is to give an account of some of the ways we believe the
Aspen Community Development Staff has abused its executive discretion and failed to
extend due process to us as owners of the Sardy House, particularly in the Staff s answer
to our Question #8, regarding the processing of a building permit for a limited remodel of
the Sardy House —with no change to the exterior of the existing structure and no increase
in square footage —during the current Moratorium.
Our Question #8 was:
"Please advise as to whether a building permit could be issued without a change -in -
use approval to eliminate three bedrooms and baths from the upper floor of the
north wing (boardinghouse annex) and relocation of one of the lower floor kitchens
into an open common area as shown on the attached plans. The premise behind this
request is that the Carriage House portion of the structure would remain a
boardinghouse because it would still provide lodging and/or meals for more than six
(6) people, with the new kitchen and dining space being accessory to the
boardinghouse use."
The Staff response was:
"The proposed plan would still allow for the Carriage House structure to remain in
compliance with the 1985 boardinghouse use definition. If the interior changes
proposed in the attached plans were made, there would still be more than six (6)
bedrooms in the Carriage House for rental as is required by the 1985 boardinghouse
definition. However, enacting this plan would require an amendment to the
approved conditional use plan that was originally established. A conditional use
amendment requires submittal of a land use application, which is prohibited in the
Mixed Use Zone District until the expiration of the current land use application
moratorium that enacted pursuant to Ordinance No. 19 Series of 2006."
Sardy House, LLC • 128 East Main Street • Aspen, Colorado 81611 • T: 970.920.2525 F: 970.920.4478 • www.sardyhouse.com
The 1985 boardinghouse use definition reads:
"A building or portion thereof other than a hotel, motel, lodge or multiple -family
dwelling wherein lodging and/or meals are provided for six (6) or more persons for
compensation, which compensation may include money, services, or other things of
value."
Clearly, the Staff exceeds its authority and arbitrarily misreads the plain meaning of the
Code, when Staff states as it did above, that the rental of six (6) bedrooms "is required by
the 1985 boardinghouse definition."
Without question, six (6) persons may be lodged overnight in as few as three (3) double
occupancy bedrooms, or even a single (1) dormitory bedroom. Moreover, in our opinion,
given a plain reading of the words of the 1985 Code, the rental of zero (0) bedrooms is
required by the boardinghouse definition, because in accordance with the specific phrase
"and/or" included within that definition, a boardinghouse may provide meals only to at
least six (6) persons.
As you know, our Sardy House property is for sale and was under contract for several
months this spring. That contract was entered into on March 14`h and its due diligence
period continued past the April effective date of the current moratorium. On or about
April 26`h, soon after the moratorium began, you told Gwen Dickenson, the representative
of a party to our contract, that a building permit could not be issued for a remodel to the
boardinghouse portion of the Sardy House due to the moratorium. As I understand it,
your reasoning at that point was that this portion of the Sardy House was "a lodge". On
April 27`h, our attorney David Myler spoke with you and after some discussion of the
exemptions included in the moratorium, most specifically the exemption in cases where
there would be no increase in square footage, you told him that a building permit could
be issued for an interior remodel. At the same time, responding to a separate question,
you told him that no change -in -use application could be processed until the moratorium
was lifted or expired.
We believe that what you told David Myler in April is in accordance with a plain reading
of the emergency moratorium ordinance, and it is in accordance with the manner the
regulatory effect of the ordinance was reported in local newspapers. We believe the
legislative intent of the applicable exemption in the ordinance is very clear, where it is
stated that building permits exempt from the moratorium shall include:
"Building permits for projects that will not have the effect of increasing the Floor
Area of any building."
The proposed interior remodel at the Sardy House, a project involving a total floor area of
less than eight hundred square feet, will not have the effect of increasing the floor area of
any building.
On May 12th we met with you and Amy Guthrie and the representative of our contracted
buyer, Gwen Dickenson. Quite frankly, we were shocked by the negative and hostile
manner in which Staff responded to several questions we asked during this meeting. One
might have thought we proposed to "scrape and replace" or otherwise desecrate the Sardy
House. Still, the Staff maintained a position essentially in accord with the position you
communicated to us earlier in your April discussion with David Myler, insofar as the
availability of a building permit for an interior remodel during the moratorium. A change
in the total number of bedrooms was discussed and Amy Guthrie stated that we would
need to pass a "sniff test" to ensure compliance with the boardinghouse definition, but it
appeared clear to us that Staff took the position that the issuance of a building permit for
a remodel inside the boardinghouse portion of the Sardy House, without change -of -use or
increase in square footage, would not be prohibited by the emergency moratorium
ordinance. According to my notes, you specifically stated: "I can't think of anything that
would prevent interior walls being torn down."
On Monday, May 15th, Gwen Dickenson asked Staff via e-mail a follow-up question:
"We need to have one more answer to a question Daniel posed to you in the meeting.
Can we get a building permit now to reconfigure the back portion into less
bedrooms and more ancillary type rooms that we would have as usage for the
boarding house? In the meeting we discussed reducing the total number of
bedrooms to maybe 4 in the rear house and the recreational type rooms created. We
need to know could we get a building permit now for doing this type of remodel to
the back."
The following day, May 10h, Staff responded in writing:
"As we discussed at the meeting, we would need to see specific plans and then we
could rule on whether a specific plan is acceptable under the current allowances for
the building."
Later that week, our buyer exercised his right to terminate our contract.
On June 2" d, Frank Peters, David Myler and I met with you, Amy Guthrie and John
Worcester, the city attorney. One of the points we made at that meeting was that when we
reconstructed the Sardy House in 1985, after receiving conditional approval for the
boardinghouse use, we built out to an FAR of .75:1, the same FAR then allowed by right
in the old Office zone district for a single family dwelling. Staff disputed this particular
point, but during that lengthy meeting, we were given no indication that Staff s position
of May 16th and earlier had changed. Staff encouraged us to submit specific plans and so
we continued to believe that if we submitted specific plans and that if those plans were
deemed to fall within the scope of the boardinghouse definition, we might be issued a
building permit for an interior remodel in a timely manner.
On June 9th we submitted specific plans for a remodel of a small part of the
boardinghouse portion of the Sardy House, floor plans prepared at our expense by
architect Harry Teague. We also submitted excerpts of the 1985 Code, proving that Staff
was incorrect in disputing our point regarding FAR allowed by right 20 years ago in the
Office zone district (today the Mixed Use zone district).
On July 2"a our attorney David Myler received by mail your memo dated June 29th,
including your answer to our question #8. Your answer contained an apparent (albeit
illogical) acknowledgment that our specific plans had passed the "sniff test" —but
CATCH 22... after more than 60 days —during which time period we made Staff well
aware that time was of the essence to us-66 days after you told our attorney that a
building permit for an interior remodel was not prohibited by the moratorium, your memo
informed us that we had essentially wasted our time and money preparing specific plans.
Staff took a new position that rendered the submittal of any plans at all an exercise in
futility. CATCH 22 you are a conditional use.
No later than May 15th, when we specifically discussed this issue with you and Amy,
Staff became well aware that the boardinghouse portion of the Sardy House is a
conditional use, legally established in 1985 (and today non -conforming.) Moreover, as
early as November, 2005, I discussed the boardinghouse use in detail with Amy Guthrie,
and after our discussion she informed me that Staff discussed the Sardy House at its
weekly staff meeting.
The crux of the matter is this. After an unduly lengthy period of time, Staff reversed its
earlier, documented position, a position supported by a plain reading of the Code and
denied us a building permit on broad and technical, ambiguous grounds.
We believe that we have been treated unfairly. We believe the Community Development
Staff, well-intentioned as it may be, has demonstrated inconsistency, lack of respect for
precedent and private property rights, and specifically abused its executive discretion in
denying us a building permit for an 800 square foot interior remodel at Sardy House.
We believe Staff misinterprets the Code and the legislative intent of the Code in its
answer to our question #8 cited above.
Yours very truly,
Daniel Delano Frank Peters
ASPEN/PITKIN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
LAND USE CODE INTERPRETATION
JURISDICTION:
APPLICABLE CODE SECTION:
EFFECTIVE DATE:
WRITTEN BY:
1
APPROVED BY:
COPIES TO:
City of Aspen
26.104.100, Definitions,
26.710.180(D)(10)(A)(3), Mixed
Use Zone District. Floor Area
Ratio; 26.470.040(B)(2), Change -
In -Use of Historic Landmark Sites
and Structures.
June 29, 2006
James Lindt, Senior Planner
Chris Bendon,
Community Development Director
John Worcester, City Attorney
Amy Guthrie, HP Officer
SUMMARY
David Myler submitted a request for a code interpretation on behalf of Daniel Delano and
Frank Peters (Applicants), the owners of the Sardy House. In the interpretation request,
the Applicants ask a series of questions related to how various land use code sections
apply to the Sardy House property.
PURPOSE
Staff has responded to the Applicants' questions in this interpretation and explained the
basis for our responses.
BACKGROUND
The Sardy House existed as a single-family residence from 1893 when it was constructed
to_ 1985. In 1985, the Applicants received approval to remodel and expand the existing
structure and a conditional use approval to convert the entire building into a
boardinghouse (Boardinghouse is a defined term). The Applicants converted the main
residence portion of the structure back into a single residential unit in 2003 with the rear
portion of the structure that was added in 1985 remaining as a Boardinghouse. As was
discussed above, the Applicants have requested a series of code interpretations related to
how the land use code applies to the Sardy House's current situation. This interpretation
clarifies the Planning Staffs position on how the requested code sections apply to the
Sardy House.
DISCUSSION
Questions 1, 2, 5, 6, 7, and 8
Staff has organized our responses to the questions posed by the Applicants in topics.
Questions No. 1, 2, 5, 6, 7, and 8 relate to the definition of "Boardinghouse" in the City's
Land Use Code. Below, Staff has listed these questions and the applicable corresponding
interpretation:
1. What definition (1985 definition when the conditional use for a boardinghouse
was approved or current definition in the land use code) of boardinghouse applies
to the current and future use of the Carriage House (rear addition that is currently
approved to be used as a boardinghouse)?
Staff Response:
The 1985 definition of "Boardinghouse" in the land use code applies to the Sardy House
because that was the definition in place when a site -specific approval was granted to
allow the Sardy House to become a boardinghouse. This approval is what the Carriage
House portion of the structure is still operating under today.
2. What is the effect of simply discontinuing the current nonconforming
boardinghouse use? Does a discontinuance of a nonconforming use require a
development order?
Staff Response:
The Applicant could discontinue the nonconforming boardinghouse use on the Carriage
House part of the structure, but that it could not be used as part of any other use to replace
the boardinghouse use until a development order for a change in use is obtained. Staff is
of this opinion because Land Use Code Section 26.470.040(B)(2), Change -In -Use of
Historic Landmark Sites and Structures, states that a change of use, between the use
categories identified in Section 26.470.020 (Residential -Free Market, Residential -
Affordable Housing, Commercial, Lodging, and Essential Public Facilities), of a
property, structure, or portion of a structure designated as a Historic Landmark shall be
reviewed based on the criteria set forth in Land Use Code Section 26.470.040(B)(2).
5. Does the replacement of a non -conforming use (boardinghouse- under any
definition) with a conforming use (single-family), with no increase in the floor
area of the existing structure in which those uses are contained, constitute a
change in use?
Staff Response:
As is discussed in Staff's response to Question #2 above, the code requires that when you
change the use of a structure or a part of a structure amongst the use categories identified
in Land Use Code Section 26.470.020 (Residential- Free Market, Residential- Affordable
Housing, Commercial, Lodging, and Essential Public Facilities), a change in use approval
is required. Staff is not aware of any language in the land use code that would exempt an
existing non -conforming use from this requirement and thus, a change in use approval is
•, •
required to convert the portion of the Sardy House that is operating as boardinghouse to a
single-family residential use.
6. To what extent can boardinghouse uses be reduced before such use would be
deemed abandoned? For example, could a small portion of the Sardy House,
sufficient to provide meals for 6 or more people, be open to the public for such
purposes one week per year?
Staff Response:
The 1985 definition of boardinghouse reads as follows:
Boardinghouse, rooming house, dormitory- A building or portion of thereof other
than a hotel, motel, lodge or multiple -family dwelling wherein lodging and/or
meals are provided for six (6) or more persons for compensation, which
compensation may include money, services, or other things of value.
For the boardinghouse use to remain active, it must be available to six (6) or more
persons for rental as lodging for the majority of the year. Because the definition
references lodging of people, the units contained within the Carriage House must be
available for overnight lodging on a short-term basis, which by definition of lodging
under today's land use code does not allow for it to be occupied by any one person or
entity that is an owner for more than 30 consecutive days or more than 90 days in any
calendar year.
7. As long as at least 6 individuals are provided with overnight lodging and/or meals
in the Carriage House, for compensation, would a corporate retreat or vacation
club type use be consistent with a boardinghouse use under the 1985 definition?
Staff Response:
If it can be demonstrated that a corporate retreat or vacation club type use of the Carriage
House provides overnight lodging and meals on a short-term basis for 6 or more people
or entities at a time, it would be permitted under the 1985 definition of boardinghouse.
However, the definition of boardinghouse requires a boardinghouse to provide lodging
for people that should turnover, so Staff would further interpret that the boardinghouse
units if used for a corporate retreat should not be occupied by any one person or entity for
more than 30 consecutive days and 90 days out of a calendar year as the definition of
lodge requires in the current land use code.
8. Please advise as to whether a building permit could be issued without a change -
in -use approval to eliminate three bedrooms and baths from the upper floor of the
north wing (boardinghouse annex) and relocation of one of the lower floor
kitchens into an open common area as shown on the attached plans (attached
hereto as Exhibit `B"). The premise behind this request is that the Carriage
House portion of the structure would remain a boardinghouse because it is would
still provide lodging and/or meals for more than six (6) people, with the new
kitchen and dining space being accessory to the boardinghouse use.
0
Staff Response:
The proposed plans would still allow for the Carriage House structure to remain in
compliance with the 1985 boardinghouse use definition. If the interior changes proposed
in the attached plans were made, there would still be more than six (6) bedrooms in the
Carriage House for rental as part of the boardinghouse use as is required by the 1985
boardinghouse definition. However, enacting this plan would require an amendment to
the approved conditional use plan that was originally established. A conditional use
amendment requires submittal of a land use application, which is prohibited in the Mixed
Use Zone District until the expiration of the current land use application moratorium that
was enacted pursuant to Ordinance No. 19, Series of 2006.
Questions 3 and 4
Questions 3 and 4 in the interpretation request relate to the provisions of Land Use Code
Section 26.710.180(D)(10)(A), Mixed Use Zone District: Floor Area Ratio. Below Staff
has listed these questions and have provided answers based on our understanding of the
land use code provisions:
3. There is no definition of "Free -Market Multi -Family Housing" in the Land Use
Code. There is a definition for "Dwelling — Multi -Family". Under that definition,
a single-family dwelling can be considered a multi -family dwelling if a portion of
it is used for retail, office or service commercial uses. Absent such an additional
use, a single-family dwelling should never be considered to -be Free -Market
Multi -Family Housing. With respect to the applicability of Section
26.710.180(D)(10) of the Aspen Municipal Code (Mixed Use — Floor Area Ratio),
as amended by Ordinance No. 12, Series of 2006, under what circumstances could
the Sardy House be considered "Free -Market Multi -Family Housing" as that term
is used in Subsection I O(A)(3)?
Staff Response:
Based on the text of these defined terms, the single-family residential portion of the
structure is not considered multi -family housing as the uses in the structure are currently
recognized, because the boardinghouse use that is on the same parcel is not considered
retail, office, or service commercial, but rather is considered lodging. That said, if the
Applicant would like to maintain the boardinghouse use in a portion of the structure
meeting the requirements of the 1985 definition of a boardinghouse as is discussed in
Staff s response to Question #6 above, the single-family residential use combined with
the boardinghouse use of the Sardy House would have a cumulative allowable FAR of
1:1 as the Applicants have suggested.
4. If the Sardy House (Main Residence and Carriage House) is not considered Free -
Market Multi -Family Housing, but continues to include a boardinghouse use
component along with a predominantly single-family use, would not the
allowable floor area for the combined single-family and boardinghouse uses be
based upon a floor area ratio of 1:1? Such a combination of uses does not fall
within any categories described in Subsections 10(A)(1), (2), or (3), or IO(B)(1)
or (2), of the Mixed Use Floor Area Ratio Regulations. Thus, the only floor area
limit in such a case is the 1:1 floor area ratio which applies in the Main Street
Historic District (see second sentence of Subsection 10(A) of such regulations).
Staff Response:
The combined use as a single-family residence and a boarding house has a total FAR of
1:1 as is discussed in Staffs response to Question #3 above. That said, if the entire
structure were to be converted to a single-family residential dwelling unit as the only use
on the site, it would be subject to the allowable dimensional requirements for a single-
family dwelling unit in the R-6 Zone District as is established in Land Use Code Section
26.710.180(D)(10)(B), FAR Schedule for single-family and duplex uses when developed
as the only use of the parcel.
This interpretation is based on the provisions of the land use code that are currently in
place and which are subject to change before the moratorium is lifted or expires.
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 or any part of this decision to the
Aspen City Council. This can be done in conjunction with a land use request before City
Council or as a separate agenda item.
26.316.030(A) APPEAL PROCEDURES
Any person with a right to appeal anadverse 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.
ATTACHMENTS:
Exhibit "A"- Request for Interpretation
Exhibit "B"- Proposed Carriage House Remodel Plans
aA J)I`� 0
r C
ASPEN/PITKIN COUNTY
COMMUNITY DEVELOPMENT DEPARTMENT
SUPPLEMENTAL LAND USE CODE INTERPRETATION
JURISDICTION:
APPLICABLE CODE SECTION:
EFFECTIVE DATE:
City of Aspen
26.104.100, Definitions;
26.710.180(D)(10)(A)(3), Mixed
Use Zone District. Floor Area
Ratio; 26.470.040(B)(2), Change -
In -Use of Historic Landmark Sites
and Structures.
July 7, 2006
A
WRITTEN BY: James Lindt, Senior Planner
4
APPROVED BY: Chris Bendon,
Community Development Director
COPIES TO:
John Worcester, City Attorney
Amy Guthrie, HP Officer
SUMMARY
David Myler submitted a request for a code interpretation on behalf of Daniel Delano and
Frank Peters (Applicants), the owners of the Sardy House. In the interpretation request,
the Applicants asked a series of questions related to how various land use code sections
apply to the Sardy House property. Staff responded to the request and issued an
interpretation on June 29, 2006 (attached as Exhibit "A"). After issuance of the
interpretation, the Applicants met with Staff and expressed that they believed some of the
responses provided in the original interpretation were inappropriate. As a result of the
meeting, Staff reviewed the responses provided in the June 29a' interpretation and
decided to issue this supplemental interpretation to correct several of the responses
provided in the original interpretation.
PURPOSE
This is a supplemental interpretation to correct the land use code interpretation issued on
June 29, 2006. With the exception of Staff's amended responses to questions 6 and 7 and
the addition of a response to the newly posed question 9 provided herein, all other
portions of the interpretation issued on June 29, 2006 shall remain in effect. This
interpretation is based on the provisions of the land use code that are currently in place
and which are subject to change before the moratorium is lifted or expires.
BACKGROUND
As discussed above, Staff is issuing this supplemental interpretation to revise our
responses to questions 6 and 7 discussed in the original land use code interpretation dated
June 29, 2006.
INTERPRETATION
The responses to questions 6 and 7 below shall completely replace the responses to
provided in the original interpretation:
6. To what extent can boardinghouse uses be reduced before such use would be
deemed abandoned? For example, could a small portion of the Sardy House,
sufficient to provide meals for 6 or more people, be open to the public for such
purposes one week per year?
Staff Response:
The 1985 definition of boardinghouse reads as follows:
Boardinghouse, rooming house, dormitory- A building or portion of thereof other
than a hotel, motel, lodge or multiple -family dwelling wherein lodging and/or
meals are provided for six (6) or more persons for compensation, which
compensation may include money, services, or other things of value.
For the boardinghouse use to remain active, it must be available to six (6) or more
persons for rental as lodging for the majority of the year and/or for preparation and
serving of food for six (6) or more persons for the majority of the year. The definition
does not define whether the lodging to be provided as part of the boardinghouse use has
to be short-term or longterm. Therefore, long-term lodging would be permitted under
this definition. However, the lodging and/or meal preparation/service must be available
for the majority of the year and not just one week per year because the boardinghouse use
is the principal recognized use for the carriage house portion of the structure.
7. As long as at least 6 individuals are provided with overnight lodging and/or meals
in the Carriage House, for compensation, would a corporate retreat or vacation
club type use be consistent with a boardinghouse use under the 1985 definition?
Staff Response:
If it can be demonstrated that a corporate retreat or vacation club type use of the Carriage
House provides overnight lodging and/or meals for 6 or more people at a time, it would
be permitted under the 1985 definition of boardinghouse. Once again, the lodging and/or
meal preparation/service must be available for the majority of the year and not just one
week per year because the boardinghouse use is the principal recognized use for the
carriage house portion of the structure.
The Applicants also posed an additional question of Staff at the meeting on July 7, 2006.
This additional question and Staffs response are included below:
9 � 0
9. Land Use Code Section 26.415.070(A), Development involving designated
historic property: Exempt development, reads that "selected activities are
exempted from the development review procedures including interior remodeling,
paint color selection, exterior repainting or plastering similar to the exterior finish
or routine maintenance such as caulking, replacement of fasteners, repair of
window glazing or other such minimally intrusive work". Does this mean that
interior remodeling on a historic property is completely exempt from all of the
provisions of the land use code?
Staff Response:
This land use code section was intended to exempt interior remodeling from review by
the Historic Preservation Commission, but not from all of the other provisions in the land
use code. When the statement in the question is taken in the context of the remainder of
the land use code section in which it is located, it is evident that it only provides an
exemption from the HPC review processes. All of Land Use Code Section 26.415.070
describes the HPC review processes, but does not discuss the other provisions of the land
use code such as growth management and subdivision. Exemptions from growth
management and subdivision are specifically outlined within the respective growth
management and subdivision sections of the land use code and not within Land Use Code
Section 26.415.
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 or any part of this decision to the
Aspen City Council. This can be done in conjunction with a land use request before City
Council or 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.
ATTACHMENTS:
Exhibit "A"- Interpretation Issued on June 29, 2006
E
DAVID I MYLER'
RO$YN I MYLER"'
'
ADmn7m IN CO'. NY. CT'
CHER K VINCENT. PARALEGAL
CONNIEA- WOOD, LEGAL ASSISTANT
James Lindt
THE MYLER LAW FIRM, P.C.
A Colorado Professional Corporation
211 MIDLAND AVENUE
SUITE 201
BASALT, COLORADo 81621
June 9, 2006
Aspen Community Development Department
130 South Galena Street
Aspen, Colorado 81611
RE: Request for Code Interpretation - Sardy House
Dear James:
TELEPHONE
(970)927-0456
FACSIMILE
(970)927-0374
EMAILS
dmyler@,Ynyterlawpc.com
rmyler@mylerlawpc.com
cvincent@mylerlawpc.com
cwood@mylerlawpc.com
Via Hand Delivery
I am writing on behalf of Daniel Delano and Frank Peters as the owners of Sardy House,
LLC, a Colorado limited liability company which owns the Sardy House in Aspen. As we discussed
on June 1, 2006, Daniel and Frank have a number of questions regarding the use and occupancy of
the Sardy House which require an interpretation of the City's Land Use Regulations. The following
is a brief history of the Sardy House which contains certain facts and circumstances that are pertinent
to the questions which follow.
1. The Sardy House was initially built in 1893 as a large single-family home. It was
used in that manner for 92 years, under several owners.
2. In 1985, the Sardy House was purchased by North and South Aspen, LLC ("North
& South"), the predecessor to Sardy House, LLC, which was also owned by Daniel and Frank. At
that time, the Sardy House was zoned office. A single-family home was an allowed use by right in
that zone district. Boardinghouse was a conditional use.
3. The maximum floor area for M allowed or conditional use within the Office Zone
District in 1985 was based upon a floor area ratio of .75:1. (A copy of 1985 Area and Bulk
Requirements is attached.) Since the Sardy House site contains 17,744 square feet of land, a single-
family residence containing 13,308 square feet would have been allowed by right.
4. In 1985, North & South obtained a condition use approval from the Aspen Planning
Commission to operate the Sardy House as a boardinghouse. Based upon that approval, the Main
Residence was extensively remodeled and a new addition, referred to as the "Carriage House," was
constructed. The total floor area of the Main Residence and Carriage House was 13,075 square feet,
as measured under the 1985 Land Use Code, which includes some subgrade square footage which
ASPEN ADDRESS: 106 SOUTH Mn.L STREET, SUITE 202
THE MYLER LAW FIRM, P.C.
James Lindt
June 9, 2006
Page 2
would not be included in the current Code. The definition of boardinghouse as set forth in the 1985
Land Use Code (copy attached) allowed the owners to provide short- or long-term lodging and/or
meals to 6 or more guests.
5. The Sardy House, including the Carriage House, was used and operated as a
boardinghouse, as that term was defined in the 1985 Land Use Code, from the completion of
remodeling activities in 1985 until 2003. In that year, North & South obtained an administrative
approval to change the use of the Main Residence from boardinghouse to single family. In reliance
upon that approval, North & South invested over $3 million in remodeling and repair to the Main
Residence and the Carriage House. While the operation of the Sardy House since 1985 may also be
consistent with that of a hotel or a bed and breakfast, it was not approved for either of those uses.
In fact, in order to qualify as a boardinghouse, the Sardy House cannot be a hotel or bed and
breakfast. Since the completion of the aforementioned remodeling and repair work, the Main
Residence has been utilized as a single-family residence and the Carriage House has been utilized
as a boardinghouse pursuant to the 1985 definition.
Questions:
1. What definition of boardinghouse applies to the current and future use ofthe Carriage
House? We do not know when or why the 1985 definition was amended, but the current definition
imposes more stringent requirements than the earlier definition. Furthermore, when the Sardy House
property was rezoned in 2005 from office to mixed use, boardinghouse was not included as an
allowed use or a conditional use. Clearly, the boardinghouse use is nonconforming, but since the
use has continued, unabated, since it was approved in 1985, it would seem that the 1985 definition
should continue to apply for the purpose of determining whether the boardinghouse component of
the Sardy House is in compliance with the Land Use Code.
2. What is the effect of simply discontinuing the current nonconforming boardinghouse
use? Does a discontinuance of a nonconforming use require a Development Order?
3. With respect to the applicability of Section 26.710.180.D.10 of the Aspen Municipal
Code (Mixed Use - Floor Area Ratio), as amended by Ordinance No. 12, Series of 2006, under what
circumstances could the Sardy House be considered "Free -Market Multi -Family Housing" as that
term is used in Subsection I O.A.3.? There is no definition of "Free -Market Multi -Family Housing"
in the Land Use Code. There is a definition for "Dwelling - Multi -Family." Under that definition,
a single-family dwelling can be considered a multi -family dwelling if a portion of it is used for retail,
office or service commercial uses. Absent such an additional use, a single-family dwelling should
never be considered to be Free -Market Multi -Family Housing.
4. If the Sardy House (Main Residence and Carriage House) is not considered Free -
Market Multi -Family Housing, but continues to include a boardinghouse use component along with
a predominantly single-family use, would not the allowable floor area for the combined single-family
and boardinghouse uses be based upon a floor area ratio of 1:1? Such a combination of uses does
THE MYLER LAW FIRM, P.C.
James Lindt
June 9, 2006
Page 3
not fall within any of the categories described in Subsections 10.A.1, 2 or 3, or 10.B.1 or 2, of the
Mixed Use Floor Area Ratio Regulations. Thus, the only floor area limit in such a case is the 1:1
floor area ratio which applies in the Main Street Historic District (see second sentence of Subsection
10.A. of such Regulations.
5. Does the replacement of a non -conforming use (boardinghouse - under any definition)
with a conforming use (single family), with no increase in the floor area of the existing structure in
which those uses are contained, constitute a change in use?
6. To what extent can boardinghouse uses be reduced before such use would be deemed
abandoned? For example, could a small portion of the Sardy House, sufficient to provide meals for
6 or more people, be open to the public for such purposes one week per year?
7. As long as at least 6 individuals are provided with overnight lodging and/or meals in
the Carriage House, for compensation, would a corporate retreat or vacation club type use be
consistent with a boardinghouse use under the 1985 definition?
8. I have included with this letter a set of plans for an interior remodel that adds no floor
area and which does not contemplate a change in use from that currently approved (single-family and
boardinghouse). Please advise as to whether a building permit may be issued for the remodeling
work at this time. This example plan shows elimination of three bedrooms and baths from the upper
floor of the north wing (boardinghouse annex) and relocation of one of the lower floor kitchens into
an open common area.
We greatly appreciate the time and energy that you are devoting to this matter and we look
forward to your response.
Very truly yours,
THE MYLER L IRM,i
By: Z4
David J. Myler
Enclosure
cc: John Worcester
9
is
130 S. Galena St.
Aspen CO 81611
(970)920-5090
(970) 920-5439, fax
To:
Daniel Delano
From:
James Lindt
Fax:
920-4478
Pages:
Phone:
Date:
8/25/06
Re:
Exhibits E-G to Staff Memo
CC:
❑ Urgent ❑ For Review ❑ Please Comment ❑ Please Reply ❑ Please Recycle
• Comments:
MEMORANDUM
TO: Aspen Planning and Zoning Commission
FROM: Colette Penne, Planning Office
RE: Sardy House - Conditional Use
DATE: April 2, 1985
LOCATION: 128 E. Main Street.
Lots P, Q, R and S, and 25 feet of F, G, H and I, Block
66, plus the entire area of the vacated alley.
ZONING: 0 - Office and R-6
APPLICANT'S REQUEST: The applicant is requesting conditional use
approval to renovate the Sardy House and to build new structures, all
to be used as a Bed and Breakfast Lodge.
BACKGROUND AND REVIEW: The Sardy House at 128 E. Main Street is
individually designated as an historic structure in the Exceptional
category. Because of this designation, both a change fromiesident ial
to a lodging use and expansion of the structure are exempt from Change
in Use review and GMP competition according to Section 24-11.2(b).
That section reads that
"The following development activity shall be exempted from
complying with the allotment procedures hereinafter provided for
(b) The enlargement of, or change of use in a structure
which has received individual historic designation."
The intention of the Office zone is "to provide for the_. establishment
of offices and associated commercial uses in such a way as to preserve
the visual scale and character of formerly residential areas that now
are adjacent to commercial and business areas and along Main Street
and other high volume thoroughfares." -A "boarding house" is listed as
a Conditional Use with the condition that all conditional uses in the
Office zone shall be considered:
"(1) only for structures which have received historic designation;
(2) for no more than two (2) such conditional uses in each
structure (not including within such limitation accessory dwelling
units recognized as moderate income housing by an approved
housing plan); and
(3) only when off-street parking is provided with alley access
for those conditional uses along Main Street."
The Planning Office feels that a Bed and Breakfast operation is quite
analagous to a boarding house and fits tCEe intention of the zone.
This application also complies with the three provisions above for
Conditional Use in the Office zone district
Section 24-3.3(b) of the, Municipal Code set.the criteria for - a. grant
of Conditional Use in all zone districts and the consideration of ryits
suitability as:
"(1) whether the proposed use otherwise complies with all require-
ments imposed by the zoning code;
(2) whether the proposed use is consistent with the objectives
and purposes of this zoning code and the applicable zoning
district; and
I1
I
(3) If the proposed use is designed to be compatible with surround-
ing land uses and uses in the area."
In terms of Area and Bulk Requirements, the proposal conforms with the
zoning code. The lot area is 17,400 s.f. and the existing house is
4,007 s.f. The total amount of proposed new construction is 6,506
s.f. for a total build -out of 10,513 s.f. This is a floor area ratio
of .60:1 and the Office zone's FAR, is .75:1 with a possible bonus up
to 1:1. With all the,J�uild-out that will"be counted in FAR, the total
will be about .65:1. Total number of guest rooms will~be'nine double -
occupancy rooms and one parlour suite in the main house and ten `rooms
in the proposed addition.
The use is consistent with the objectives and purposes of the Office
zone, however, the area which'is zoned R76 does not allow for the Bed
and Breakfast use. The strip which is zoned 9-6' is situated to t e
north of the vacated alley. Mr. Sardy sold ihenorth.75 feet of Lobs
F, G, H and I over 25 years ago (prior to requirements for subdivision).
He then had the alley vacated through the adoption of Ordinance V2,
adopted on March 6, 1961. Since he owned the property on both sides
of the alley, the entire area of the vacated ' alley became part of his
parcel. When the zoning was subsequently placed on the block, the
division line between R-6 and 0 - Office was the alley, so this 25
foot piece was left in the R-6 zone.
The applicant's representatives point out that in Section 24-3.2(d)
there may be an approach to making the alteration in the zoning line
without completing a full rezoning process. That Code section reads
as follows:
024-2.3 Interpretation of the zoning district map.
When, due to the scale, lack of detail or illegibility of
the zoning district map, there is any uncertainty, contradiction
or conflict as to the intended location of any zoning district
boundary as shown thereon, the building inspector shall make an
interpretation of said map upon request of any person, and any
person aggrieved by any such interpretation may appeal the same
to the planning and zoning commission. The building inspector
and planning and zoning commission, in interpreting the map or
deciding any appeal, shall apply the following standards:
(a) The zoning district boundary lines are intended to
follow lot lines, or be parallel or perpendicular
thereto, or along the center lines of alleys, streets,
rights -of -way or water courses, unless such boundary
lines are fixed dimensions shown on the map.
(b) Where zoning district boundary lines are so indicated
that they approximately follow lot lines, such lot lines
shall be construed to be the boundary lines.
(c) Where a zoning district boundary line, divides a lot,
the location of such boundary line, unless indicated by
dimensions shown on the zoning map, shall be determined
by the use of the map scale"shown thereon.
(d) If, after application of the foregoing rules, uncertainty
still exists as to the exact location of a zoning
district boundary, the line shall lie determine in a
reasonable manner, considering the history of` the
city's zoning ordinances and amendments, and other
factors as shall be deemed relevant."
The Planning office does not believe that the above section applies to
this case. The attached copy of the zoning map indicates that there
is no problem in interpreting the scale, detail or legibility of the
line. Instead, we feel that the portions of Lots F, G, H and I should
be subject to a formal rezoning application and be considered relative
to the criteria of Section 24-12.5. Should you concur with this
analysis, a Commission member should sponsor the rezoning. However,
until the rezoning procedure is accomplished, the Conditional Use
permit for the entire site cannot be granted.
Returning to our review of the criteria for Conditional Use permits,
the use should be compatible with the surrounding neighborhood. It is
situated at a very busy intersection and has public and commercial
uses surrounding it. The clinic and library are to the west, Mt. Bell's
offices are to the north and Gracy's is to the east. The northwest
corner of Block 66 is occupied ��iy a multi -family structure and the
orientation of the Sardy property is toward the south and east. To
the northeast is the rectory for the Community Church.
The proposal includes both a parking solution and an employee housing
solution. Eight (8) parking spaces are to be provided and the Engineer-
ing Department finds that number to be adequate for this project. The
spaces will be provided as six (6) ground level covered spaces beneath
the new building and two (2) spaces at the_ west end of the vacated
alley. The employee generation is expected to be twelve (12) persons
in the summer and winter seasons and six (6) on a year-round basis.
Employee housing units to be, p"rovided include one (1) studio, one
(1) one -bedroom unit, and one (1) two -bedroom unit. The Housing
Authority does not specifically review this application because of its
exemption from GMP and Change in Use, but through the referral process,
they complimented the applicant for addressing the need.
The Historic Preservation Committee has reviewed the plans on a
preliminary basis and they were enthusiastic about `the concept and the
plans. Removal of the existing garage and addifions 'of "carriage
house" type structures were solutions they found to be compatible.
They will be reviewing the plans further as they progress in detail.
PLANNING OFFICE RECORMENDATIOP: The Planning Office recommends
approval and the granting '6 '_a_'tonditional Ise permit for a Bed and
Breakfast boarding house use in the Sardy House, as presented, with the
following conditions:
1. Rezoning of the south 25 feet of Lots F, G, H and I from R-6
to O - Office must, be accq_mplished before a permit is issued
for construction on these -lots.
2. The facility must be a licensed .food service establishment
and must comply with the Rules and Regulations Governing the
Sanitation of Food Service Establishments in the State of
Colorado.
3. The City's Air Pollution Ordinance must be met.
4. Construction noise, dust and mud carry -out must be minimized
and Chapter 16 of the Code complied with.
5. Trash storage and removal must be approved by the Engineering
Department.
6. Removal and relocation of the two (2) fruit trees must be
done in accordance with Section 13-76 of the Code.
CITY O ASPEN
130 south ilena street
aspen, col rado 81611
303-5 5-2020
LAND USE APPLICATION FORM DATE SUBMITTED February 19, 1985
FEES
NAME Lake Forest Renovators, Inc.
ADDRESS 626 Sheridan Square, Evanston, IL 60202
PHONE—_(312) 475-8282
NAME OF PROJECT Sardy House
PRESENT ZONING
LOT SIZE
128 E. Main St., Aspen, Colorado Lots S R, Q, P and S.
LOCATION 25 feet of F, G, H, and I Block 66 and the adjoining alley according to the
(indicate street address, lot and block number. May require legal
description. A vicinity map is very useful.) records of Pitkin County.
CURRENT BUILD -OUT _ sq. ft. units
PROPOSED BUILD -OUT sq. ft.
DESCRIPTION OF EXISTING USES
units
DESCRIPTION OF LAND USE PROPOSAL Adaptive reuse ofone of the most prominent and respected
Victorian buildings in Aspen by creating 10-12 elegant rooms, each with private bath facilitie
'the aroject will be a Bed & Breakfast operation. The parlour, livingroom, entry hall and front
stairway will remain completely intact and every effort will be made to keep as much of the
existing interior as possible: The exterior will be virtually -unchanged on the Main St, and
Aspen St. sides. re elaborate plans and description W1.11 follow.)
TYPE OF APPLICATION Conditional Use
APPLICABLE CODE SECTION (S) 24-33
PLAT AMENDMENT REQUIRED
DATE PRE -APPLICATION CONFERENCE COMPLETED
YES
NO
ATTACHMENTS: 1. A11 applicants must supply Proof of Ownership in the form of a
title insurance commitmf,': or statement from an attorney indicating
,that he/she has researct I the title and verifies that the applicant
is the owner of the pror 'ty (free of liens and eucumbrances.)
2. If the process requires public hearing, a Property Owner's List
must be supplied which € es all owners within 300 feet in all
directions in some cases lnd adjacent owners in some cases.
3. Number of copies required (by code and/or in pre -application
conference.)
4. Plat by Registered Surveyor Yes No
Message •
• Page 1 of 2 \ 1
C--"IYA I ,b '� F B I
James Lindt
From: James Lindt
Sent: Tuesday, May 16, 2006 8:49 AM
To: 'Gwen'
Subject: RE: Sardy House Question
Gwen,
I can't.. We need to see a specific plan. Sorry.
Thanks,
James
From: Gwen [mailto:gwen@rof.net]
Sent: Tuesday, May 16, 2006 8:37 AM
To: James Lindt
Subject: RE: Sardy House Question
I understand that, James, but this is a big gamble for a maybe. Can you give me an indication if bedrooms could
be lost for recreational type facilities in the rear and go from 8 bedrooms to 3 or 4? Thanks, Gwen
-----Original Message -----
From: James Lindt [mailto:jamesl@ci.aspen.co.us]
Sent: Tuesday, May 16, 2006 8:20 AM
To: Gwen
Subject: RE: Sardy House Question
Gwen,
As we discussed at the meeting, we would need to see specific plans and then we could rule on
whether a specific plan is acceptable under the current allowances for the building.
Thanks,
James
From: Gwen [mailto:gwen@rof.net]
Sent: Monday, May 15, 2006 5:22 PM
To: James Lindt; Amy Guthrie
Cc: delano@sardyhouse.com; Morris@sopris.net; 'Sean de Moraes'
Subject: RE: Sardy House Question
Dear James,
Thanks so much for your quick response. We need to have one more answer to a question Daniel
posed to you in the meeting. Can we get a building permit now to reconfigure the back portion into
less bedrooms and more ancillary type rooms that we would have as usage for the boarding house?
In the meeting we discussed reducing the total number of bedrooms to maybe 4 in the rear house
and the recreational type rooms created. We need to know could we get a building permit now for
doing tfi s type of remodel to the back.
Thank you so much,
Gwen
-----Original Message -----
From: James Lindt [mailto:jamesl@ci.aspen.co.us]
Sent: Monday, May 15, 2006 1:04 PM
To: delano@sardyhouse.com; Gwen
8/ 14/2006
Message • 0 Page 2 of 2
Cc: Amy Guthrie; Chris Bendon; John Worcester
Subject: Sardy House Question
Daniel and Gwen,
Please let this e-mail serve as a response to the question that you posed to us in
writing on Friday. On Friday May 12th, you posed to us the following handwritten
question related to the Sardy House:
"Given the unique circumstances of the existing historic landmark Sardy House, is
there a way to arrive at a prospective buyer's goal to preserve the exterior of the
property as is, without increase of existing square footage, with use of the whole
property by one family or an extended family and with no commercial use?"
At Friday's meeting, you indicated that you needed an answer to the above question
by the end of the day on May 15th because your buyer's due -diligence deadline was
expiring. Given the short timeframe we have had to discuss the issue as a staff, the
only review process that we are aware of that you could apply for to convert the entire
structure into a single-family residence is an administrative change -in -use for a historic
property (Land Use Code Section 26.470.070(B)(2)), coupled with a Board of
Adjustment variance (Land Use Code Section 26.314) to legalize the existing FAR of
the building for a single-family residence. We could not approve a change -in -use of
the back portion of the building to be part of the single-family residence without the
Board of Adjustment approving a dimensional requirement variance because
converting the entire property to a single-family residence without a dimensional
requirement variance would increase a non -conformity related to FAR.
The reason that converting the entire structure to a single-family residence would
increase the non -conformity is that the Mixed Use Zone District in which the property is
located has a much higher allowable FAR for a mixed use project than it does for a
single-family residence pursuant to Land Use Code Section 26.710.180. Therefore,
converting the entire building to a single-family residence would lower the allowable
FAR on the parcel, thereby increasing the extent to which the existing structure is over
the allowable FAR, which is not permitted pursuant to Land Use Code Section 26.312.
So you could apply for a Board of Adjustment variance and a change -in -use after the
6-month moratorium on new land use applications expires in October. Staff will not
provide you with a recommendation on such an application at this time and will only
render a recommendation once a full application has been submitted for review after
the moratorium. However, please note that a Board of Adjustment variance from
allowable dimensional requirements can only be granted by the Board of Adjustment if
they find that the allowable dimensional requirements of the underlying zoning place
an unnecessary hardship on the applicant related to the land subject to the application.
The answer to your question provided in this e-mail is based on current zoning, which
is subject to change. This e-mail does not create a legal or vested right.
Regards,
James Lindt
Senior Planner
City of Aspen
8/14/2006
•
• 1 v41,1) T lr1/
James Lindt
From: James Lindt
Sent: Wednesday, June 14, 2006 1:38 PM
To: 'David Myler'
Subject: RE: FW: Sardy House
Thanks David. We will have an interpretation for you within 30 days of your submittal
requesting interp.
-----Original Message -----
From: David Myler [mailto:dmyler@mylerlawpc.com]
Sent: Wednesday, June 14, 2006 11:02 AM
To: James Lindt
-Subject: FW: FW: Sardy House
James:
See below email from Daniel Delano.
David J. Myler
The Myler Law Firm, P.C.
211 Midland Avenue, Suite 201
Basalt, CO 81621
106 S. Mill Street, Suite 202
Aspen, Colorado 81611
Phone: (970) 927-0456
Fax: (970) 927-0374
dmyler@mylerlawpc.com
CONFIDENTIALITY NOTICE:
This message is intended only for the individual or entity to which it is addressed and
may contain information that is attorney work -product, privileged, confidential and exempt
from disclosure under applicable law. If the reader of this message in not the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this
communication is strictly prohibited. If you have received this communication in error,
please notify us immediately by telephone and return the original message to us at the
above address via e-mail or the United States Parcel Service. The typewritten signature
included with this e-mail is not an electronic signature within the meaning of the
Electronic Signatures in Global and National Commerce Act or any other law of similar
import, including, without limitation, the Uniform Electronic Transactions Act as it may
be enacted by any state of the District of Columbia.
-----Original Message -----
From: Daniel Delano [mailto:delano@sardyhouse.com]
Sent: Tuesday, June 13, 2006 5:16 PM
To: David Myler
Subject: Re: FW: Sardy House
Dave:
The answer to James's question is that after three bedrooms are converted
into common area (as shown on the plan we submitted) there will be a total
of nine bedrooms remaining in the boardinghouse, although one of the
bedrooms currently is furnished with a sofabed rather than a standard bed
and one bedroom is currently being used for storage.
Thanks,
Daniel
> Daniel:
> For your information.
> David J. Myler
> The Myler Law Firm, P.C.
> 211 Midland Avenue, Suite 201
> Basalt, CO 81621
> 106 S. Mill Street, Suite 202
> Aspen, Colorado 81611
> Phone: (970) 927-0456
> Fax: (970) 927-0374
> dmyler@mylerlawpc.com
> CONFIDENTIALITY NOTICE:
J
> This message is intended only for the individual or entity to which it
> is addressed and may contain information that is attorney
> work -product, privileged, confidential and exempt from disclosure
> under applicable law. If the reader of this message in not the
> intended recipient, you are hereby notified that any dissemination,
> distribution or copying of this communication is strictly prohibited.
> If you have received this communication in error, please notify us
> immediately by telephone and return
> the original message to us at the above address via e-mail or the United
�a States Parcel Service. The typewritten signature included with this e-mail
> is not an electronic signature within the meaning of the Electronic
> Signatures in Global and National Commerce Act or any other law of similar
> import, including, without limitation, the Uniform Electronic Transactions
> Act as it may be enacted by any state of the District of Columbia.
> -----Original Message-----
• From: James Lindt [mailto:jamesl@ci.aspen.co.us]
> Sent: Tuesday, June 13, 2006 2:41 PM
> To: dmyler@mylerlawpc.com
> Subject: Sardy House
> Hi David,
> I am preparing to take your request for interpretation to our staff
> meeting for initial feedback on the questions you have posed in the
> interpretation request. Related to the final question you ask about
> the proposed remodel plans, do you know how many bedrooms this would
> leave them with in the Carriage House annex that are to be used as
> boardinghouse?
> Thanks,
> James
2
•
•
Mr. James Lindt, Senior Planner
City of Aspen Community Development Department
August 14, 2006
Hand Delivered
Re: APPEAL OF STAFF OPINION REGARDING SARDY HOUSE
Dear James:
R EE C f 1V
;,UG 1 4 2006
F U I L iNr D;:PAP-.14F ,'T
Thank you for the time you have devoted to this complex and serious matter. Please
understand that while we may refer herein to you and to the city planning staff
collectively in somewhat negative terms, we feel no personal animosity. We realize the
work of city planners is difficult and often thankless.
At your request, this letter is to give an account of some of the ways we believe the
Aspen Community Development Staff has abused its executive discretion and failed to
extend due process to us as owners of the Sardy House, particularly in the Staffs answer
to our Question #8, regarding the processing of a building permit for a limited remodel of
the Sardy House —with no change to the exterior of the existing structure and no increase
in square footage —during the current Moratorium.
Our Question #8 was:
"Please advise as to whether a building permit could be issued without a change -in -
use approval to eliminate three bedrooms and baths from the upper floor of the
north wing (boardinghouse annex) and relocation of one of the lower floor kitchens
into an open common area as shown on the attached plans. The premise behind this
request is that the Carriage House portion of the structure would remain a
boardinghouse because it would still provide lodging and/or meals for more than six
(6) people, with the new kitchen and dining space being accessory to the
boardinghouse use."
The Staff response was:
"The proposed plan would still allow for the Carriage House structure to remain in
compliance with the 1985 boardinghouse use definition. If the interior changes
proposed in the attached plans were made, there would still be more than six (6)
bedrooms in the Carriage House for rental as is required by the 1985 boardinghouse
definition. However, enacting this plan would require an amendment to the
approved conditional use plan that was originally established. A conditional use
amendment requires submittal of a land use application, which is prohibited in the
Mixed Use Zone District until the expiration of the current land use application
moratorium that enacted pursuant to Ordinance No. 19 Series of 2006."
Sardy House, LLC • 128 East Main Street • Aspen, Colorado 81611 • 1970.920.2525 F: 970.920.4478 • wwwsardyhouse.com
The 1985 boardinghouse use definition reads:
"A building or portion thereof other than a hotel, motel, lodge or multiple -family
dwelling wherein lodging and/or meals are provided for six (6) or more persons for
compensation, which compensation may include money, services, or other things of
value."
Clearly, the Staff exceeds its authority and arbitrarily misreads the plain meaning of the
Code, when Staff states as it did above, that the rental of six (6) bedrooms "is required by
the 1985 boardinghouse defmition."
Without question, six (6) persons may be lodged overnight in as few as three (3) double
occupancy bedrooms, or even a single (1) dormitory bedroom. Moreover, in our opinion,
given a plain reading of the words of the 1985 Code, the rental of zero (0) bedrooms is
required by the boardinghouse definition, because in accordance with the specific phrase
"and/or" included within that definition, a boardinghouse may provide meals only to at
least six (6) persons.
As you know, our Sardy House property is for sale and was under contract for several
months this spring. That contract was entered into on March 14`h and its due diligence
period continued past the April effective date of the current moratorium. On or about
April 26`h, soon after the moratorium began, you told Gwen Dickenson, the representative
of a party to our contract, that a building permit could not be issued for a remodel to the
boardinghouse portion of the Sardy House due to the moratorium. As I understand it,
your reasoning at that point was that this portion of the Sardy House was "a lodge". On
April 27`h, our attorney David Myler spoke with you and after some discussion of the
exemptions included in the moratorium, most specifically the exemption in cases where
there would be no increase in square footage, you told him that a building permit could
be issued for an interior remodel. At the same time, responding to a separate question,
you told him that no change -in -use application could be processed until the moratorium
was lifted or expired.
We believe that what you told David Myler in April is in accordance with a plain reading
of the emergency moratorium ordinance, and it is in accordance with the manner the
regulatory effect of the ordinance was reported in local newspapers. We believe the
legislative intent of the applicable exemption in the ordinance is very clear, where it is
stated that building permits exempt from the moratorium shall include:
"Building permits for projects that will not have the effect of increasing the Floor
Area of any building."
The proposed interior remodel at the Sardy House, a project involving a total floor area of
less than eight hundred square feet, will not have the effect of increasing the floor area of
any building.
On May 12d' we met with you and Amy Guthrie and the representative of our contracted
buyer, Gwen Dickenson. Quite frankly, we were shocked by the negative and hostile
manner in which Staff responded to several questions we asked during this meeting. One
might have thought we proposed to "scrape and replace" or otherwise desecrate the Sardy
House. Still, the Staff maintained a position essentially in accord with the position you
communicated to us earlier in your April discussion with David Myler, insofar as the
availability of a building permit for an interior remodel during the moratorium. A change
in the total number of bedrooms was discussed and Amy Guthrie stated that we would
need to pass a "sniff test" to ensure compliance with the boardinghouse definition, but it
appeared clear to us that Staff took the position that the issuance of a building permit for
a remodel inside the boardinghouse portion of the Sardy House, without change -of -use or
increase in square footage, would not be prohibited by the emergency moratorium
ordinance. According to my notes, you specifically stated: "I can't think of anything that
would prevent interior walls being torn down."
On Monday, May 15d', Gwen Dickenson asked Staff via e-mail a follow-up question:
"We need to have one more answer to a question Daniel posed to you in the meeting.
Can we get a building permit now to reconfigure the back portion into less
bedrooms and more ancillary type rooms that we would have as usage for the
boarding house? In the meeting we discussed reducing the total number of
bedrooms to maybe 4 in the rear house and the recreational type rooms created. We
need to know could we get a building permit now for doing this type of remodel to
the back."
The following day, May 16"', Staff responded in writing:
"As we discussed at the meeting, we would need to see specific plans and then we
could rule on whether a specific plan is acceptable under the current allowances for
the building."
Later that week, our buyer exercised his right to terminate our contract.
On June 2nd, Frank Peters, David Myler and I met with you, Amy Guthrie and John
Worcester, the city attorney. One of the points we made at that meeting was that when we
reconstructed the Sardy House in 1985, after receiving conditional approval for the
boardinghouse use, we built out to an FAR of .75:1, the same FAR then allowed by right
in the old Office zone district for a single family dwelling. Staff disputed this particular
point, but during that lengthy meeting, we were given no indication that Staff s position
of May 16d' and earlier had changed. Staff encouraged us to submit specific plans and so
we continued to believe that if we submitted specific plans and that if those plans were
deemed to fall within the scope of the boardinghouse definition, we might be issued a
building permit for an interior remodel in a timely manner.
On June 9th we submitted specific plans for a remodel of a small part of the
boardinghouse portion of the Sardy House, floor plans prepared at our expense by
architect Harry Teague. We also submitted excerpts of the 1985 Code, proving that Staff
was incorrect in disputing our point regarding FAR allowed by right 20 years ago in the
Office zone district (today the Mixed Use zone district).
On July 2"a our attorney David Myler received by mail your memo dated June 29th,
including your answer to our question #8. Your answer contained an apparent (albeit
illogical) acknowledgment that our specific plans had passed the "sniff test' —but
CATCH 22... after more than 60 days —during which time period we made Staff well
aware that time was of the essence to u"6 days after you told our attorney that a
building permit for an interior remodel was not prohibited by the moratorium, your memo
informed us that we had essentially wasted our time and money preparing specific plans.
Staff took a new position that rendered the submittal of any plans at all an exercise in
futility. CATCH 22 you are a conditional use.
No later than May 15th, when we specifically discussed this issue with you and Amy,
Staff became well aware that the boardinghouse portion of the Sardy House is a
conditional. use, legally established in 1985 (and today non -conforming.) Moreover, as
early as November, 2005, I discussed the boardinghouse use in detail with Amy Guthrie,
and after our discussion she informed me that Staff discussed the Sardy House at its
weekly staff meeting.
The crux of the matter is this. After an unduly lengthy period of time, Staff reversed its
earlier, documented position, a position supported by a plain reading of the Code and
denied us a building permit on broad and technical, ambiguous grounds.
We believe that we have been treated unfairly. We believe the Community Development
Staff, well-intentioned as it may be, has demonstrated inconsistency, lack of respect for
precedent and private property rights, and specifically abused its executive discretion in
denying us a building permit for an 800 square foot interior remodel at Sardy House.
We believe Staff misinterprets the Code and the legislative intent of the Code in its
answer to our question #8 cited above.
Yours very truly,
Daniel Delano Frank Peters
• • Page 1 of 1
James Lindt
From: Daniel Delano [delano@sardyhouse.com]
Sent: Friday, July 14, 2006 5:01 PM
To: James Lindt
Subject: Re: Appeal Request
Hi James,
Please wait to schedule any hearing, as the issue is not immediately pressing to us. Then, if & when we request
scheduling of a hearing, we will submit an addendum letter stating our reasons for the appeal.
Thanks,
Daniel
----- Original Message -----
From: James Lindt
To: Daniel Delano
Sent: Friday, July 14, 2006 2:58 PM
Subject: Appeal Request
Hi Daniel,
We received your appeal request. There is no official form for an appeal so your letter will suffice.
But I would suggest providing us with an addendum letter stating the reason(s) why you believe that
there was an abuse of discretion or there was a denial of due process.
Also, we weren't clear as to whether you want us to actually schedule you on a Council agenda or
whether you want us to simply hang on to the appeal request until a possible purchaser would like to
convert three of the boardinghouse units and then we would schedule you if that turns out to be the
case? Please send me an e-mail response letting me know whether you want us to actually
schedule you at this time.
Thanks,
James
7/20/2006
•
•
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: ��C !� TV�AsVpel,
CO
SCHEDULED PUBLIC HEARING DATE: _ VVJ , 200_
STATE OF COLORADO )
SS.
County of Pitkin )
I, l n I/t/t C—_1 C L. 7 0 PJ 1 (name, please print)
being or representing an Applicant to the City 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:
_A� Publication 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 fifteerl (15)
days prior to the public hearing. A copy of the publication is attached herkto.
Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed of letters 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 of the public
hearing. A photograph of the posted notice (sign) is attached hereto.
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 all owners of 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 lccurate 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 shall be available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments.
nature
The for oing "Affidavit of Notice" was acknowledged efore me this LA -ay
of , 200_j, by ArMES NJDT
PUBLIC NOTICE
RE: APPEAL OF LAND USE CODE INTERPRETA-
TION: LAND USE CODE SECTION 26.425, CONDI-
TIONAL USES
NOTICE IS .HEREBY GIVEN that a public
meeting will be held on Monday, August 28, 2006,
at a meeting to begin at 5:00 p.m. before the As-
pen City Council, City Council Chambers, City
Hall, 130 S. Galena St., Aspen, to consider an ap.
plication submitted by the Sardy House, LLC, 128
E. Main Street, Aspen, CO 81611, requesting the
appeal of a land use code interpretation. The
land use code interpretation being appealed re-
lates to whether a conditional use amendment is
required to alter the interior floor plan of a use
that was approved through a conditional use re-
view pursuant to Land Use Code Section 26.425,
Conditional Uses.
For further information, contact James Lindt at
the City of Aspen Community Development De.
partment, 130 S. Galena St., Aspen, CO, (970)
429.2763, jamesl®ci.aspen.co.us.
s(Helen Kalin Klanderud, Mayor
Aspen City Council
Published in the Aspen Times Weekly on August
13, 2006. (3942)
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires:
61ary Public
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ATTACHMENTS:
COPY OF THE PUBLICATION
PHOTOGRAPH OF THE POSTED NOTICE (SIGN)
LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED
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PUBLIC NOTICE
RE: APPEAL OF LAND USE CODE INTERPRETATION: LAND USE
SECTION 26.425, CONDITIONAL USES
NOTICE IS HEREBY GIVEN that a public meeting will be held on Monday, August 28, 2006, at
a meeting to begin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City Hall,
130 S. Galena St., Aspen, to consider an application submitted by the Sardy House, LLC, 128 E.
Main Street, Aspen, CO 81611, requesting the appeal of a land use code interpretation. The land use
code interpretation being appealed relates to whether a conditional use amendment is required to
alter the interior floor plan of a use that was approved through a conditional use review pursuant to
Land Use Code Section 26.425, Conditional Uses. For further information, contact James Lindt at
the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO, (970)
429.2763, jamesl@ci.aspen.co.us.
s/Helen Kalin Klanderud, Mayor
Aspen City Council
Published in the Aspen Times on August 13, 2006
City of Aspen Account
• 0 Page 1 of 1
James Lindt
From: James Lindt
Sent: Monday, May 15, 2006 1:04 PM
To: 'delano@sardyhouse.com'; 'Gwen'
Cc: Amy Guthrie; Chris Bendon; John Worcester
Subject: Sardy House Question
Daniel and Gwen,
Please let this e-mail serve as a response to the question that you posed to us in writing on Friday. On Friday
May 12th, you posed to us the following handwritten question related to the Sardy House:
"Given the unique circumstances of the existing historic landmark Sardy House, is there a way to arrive at a
prospective buyer's goal to preserve the exterior of the property as is, without increase of existing square footage,
with use of the whole property by one family or an extended family and with no commercial use?"
At Friday's meeting, you indicated that you needed an answer to the above question by the end of the day on May
15Ih because your buyer's due -diligence deadline was expiring. Given the short timeframe we have had to
discuss the issue as a staff, the only review process that we are aware of that you could apply for to convert the
entire structure into a single-family residence is an administrative change -in -use for a historic property (Land Use
Code Section 26.470.070(B)(2)), coupled with a Board of Adjustment variance (Land Use Code Section 26.314)
to legalize the existing FAR of the building for a single-family residence. We could not approve a change -in -use
of the back portion of the building to be part of the single-family residence without the Board of Adjustment
approving a dimensional requirement variance because converting the entire property to a single-family residence
without a dimensional requirement variance would increase a non -conformity related to FAR.
The reason that converting the entire structure to a single-family residence would increase the non -conformity is
that the Mixed Use Zone District in which the property is located has a much higher allowable FAR for a mixed
use project than it does for a single-family residence pursuant to Land Use Code Section 26.710.180. Therefore,
converting the entire building to a single-family residence would lower the allowable FAR on the parcel, thereby
increasing the extent to which the existing structure is over the allowable FAR, which is not permitted pursuant to
Land Use Code Section 26.312.
So you could apply for a Board of Adjustment variance and a change -in -use after the 6-month moratorium on new
land use applications expires in October. Staff will not provide you with a recommendation on such an application
at this time and will only render a recommendation once a full application has been submitted for review after the
moratorium. However, please note that a Board of Adjustment variance from allowable dimensional requirements
can only be granted by the Board of Adjustment if they find that the allowable dimensional requirements of the
underlying zoning place an unnecessary hardship on the applicant related to the land subject to the application.
The answer to your question provided in this e-mail is based on current zoning, which is subject to change. This
e-mail does not create a legal or vested right.
Regards,
James Lindt
Senior Planner
City of Aspen
8/ 14/2006
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