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HomeMy WebLinkAboutminutes.apz.19820824 RECORD OF PROCEEDINGS 100 Leaves fORM \~ C. f.1l0ECKH B. D. II L. co. Aspen Planning and Zoning Commission August 24, 1982 Perry Harvey called the meeting to order at 5:00 p.m. Fallin, Jasmine Tygre, Lee Pardee, Welton Anderson, present. This meeting was a special meeting. with Roger Hunt, Pat and Al Blomquist Relocation of City/County Building Dept. Conditional Use Perry continued this conitional use hearing from the last regular meeting explaining that this conditional use for this public use is legal under the zoning cOde. It does not do anyth1ng to effectivly change the zoning. colette Penne, Plann1ng,said that everyone in the Upper Elementary School has been notified that the proper procedure for occupancy is to apply for a conditional use, providing that they qualify. If they dO not qual1fy they will have to vacate the premises with the expiration of the lease on August 31. However, the bU1ld1ng department is going through the process seperately. Perry opened and closed the Publ1C Hear1ng. Perry confirmed that the Planning off1ce had recommended a period of one year for a cond1tional use. The other possib1lity would be to approve a shorter term. Colette said that the applicant's lease was for 6U days. At the end of th1S period the Planning Office and the Commission would have a compDhensive view of the buildings' potent1al and can dec1de an appropr1ate time frame for all of the uses. Lee Pardee said that he would be in favor of approving a 60 day t1me period for the conditional use. This would give the Commission an idea of the Building Department's impact on the ne1ghborhood. B1ll Dreuding, Building Department, sa1d that the department had already invested 9,OUO dollars in the building. A one year lease was needed to make it v1able for the department's expenses. Koger said that he did not think that 6U days was reasonable. He was not 1nterested in see1ng the Building Department or any other use stay in the school beyond a year without a full comprehensive plan from the school board. Roger would recommend a motion for a one year perio~ in consideration of the present appl1cant,w1th the condition that the school board and all occupants be notif1ed that the conditional use would not be extended without a comprehens1ve plan beyond August 31, 1983. Al Blomquist d1d not want the ind1vidual occupants to come before the board separately. Al suggested to the school board that they request an amendment 1dentifying the entire bU1ld1ng as~temporary publ1C administration, use Wh1Ch 1S a non-conditional use. This would reduce the number of applications. Colette sa1d that the occupants had agreed to come before the board as a single application. Perry Harvey asked about parking. It was felt that there was suffic1ent parking for the cond1tional use. -1- Relocat1on of Building Dept. (cont. ) Timesharing" -2- Roger Hunt moved to grant temporary conditional use perm1ts to the Buil1ng Department for the use of the Upper Elementary ~chool as a public adm1nistration build1ng for a period of one year. This period will end August 31, 1983. Within this time the school board must subm1t a plan for the complete use of this property site. The following cond1tions apply: 1. The Engineering Department review the street parking for the feasab1lity of timed parking or time limited parking, unlim1ted parking and no parking zones. 2. Th1S cond1t1onal use is only permitted until August 1, 1983. 3. The school board is hereby notified that this and other cond1t1onal uses which may be approved in the near future will run only to August 31, 1983 only, until a comprehensive plan 1S recieved by the Planning and Zon1ng commission. Al Blomquist seconded the mot1on. All in favor w1th the exception of Lee Pardee. Motion carried. Perry Harvey confirmed that the Commission was continuing the discussion of the T1meshare Ordinance. The goal is to create a resolution recommending, to Council, approval or denial. Roger was concerned about the potential problems with regard to taxing and default that could be encountered by the City. Roger felt that this was an unreasonable burden to place on the City. Roger said that the community was not benefit1ng from the 45% proposed marketing. There may be more people coming to Aspen but they are coming at an unreal cost. By forcing other lodges to compete with what appear to be cheaper rates the entire competitve balance of the lodging system is upset. Lee Pardee said that the tax bills would go to a condominium association. The assessor would not be burdened with chas1ng down "sixteen shares'~ The condominium association would represent the numerous fragmented owners. The mortagage holder would be responsible for payment if an owner should default. The condominium association could also be responsible in case of default. Lee asked for information on the assessment of the t1meshare units. Lee d1d not want to see the County reassess the timeshare lodges on the baS1S of an 1nflated value. Al Blomquist suggested that the Commission request a staff study with the assessors' participation. The assessor could certify how the assessment process would work under these circumstances. N1Ck McGrath, attorney, sa1d that assessment was solely a matter of state law. The timeshare owners themselves are the only ones that have had difficult1es with the assessment of Colorado timeshare projects. properties are requ1red to be assessed as light properties. Jasmine Tygre felt that the applicants were pressuring the Commission by saying that answers eX1st. However the Comm1ss1on 1S not certain 1t understands the answers. Jasmine is reluctant to agree to someth1ng just because someones says 1tS true. T1msharing 1S new to everyone and one bad timesharing project could b~ detrimental to the community. Jasm1ne was interested in timesharing as a mechanism in Wh1Ch lodges could become more competitive, more attractive. Lee Pardee felt that the Commission was in agreement with regard to writing a tight timeshare ordinance. , . ~" RECORD OF PROCEEDINGS 100 Leaves fOR"''' C.F.1l0ECKHO.B.ll L.CO. Aspen Planning and Zoninq Commission August 24, 1982 Timesharing (cont. ) However, the Planning and Zoning Commission prohibit the state laws and it is legal to timesharing in the state of Colorado. This be looked at as a necessity, not a luxury. cannot have has to Alice Davis, Planning Off1ce, explained the T1meshare Ordinance. The first section of the ordinance adresses definit1ons. There is an item in this section that requires some discussion by the P&Z. Th1S item is the r1ght to use. At the last meeting the CommiSS1on ind1cated that it wanted to prohib1t r1ght to use leases all together. The other option was to allow it if the r1ght to use is governed by real estate laws. If the Commission should decide to prohib1t the r1ght to use the Planning Office recommends that it be defined in the first se~;tion of the ord1nance and that it follow some review cr1teria. Included within the reV1ew criter1a is the following: Right to use in not in the community's best 1nterest and would probabably not be approved. Al Blomquist suggested that it be stated in section A what is allowed and in section B it be stated what is not allowed. The Commission as a whole felt that the right to use should be prohibited. Alice explained the second issue which is the zone district and whether it shall be permitted. The Planning Office feels that the zone district shOuld be allowed in the Lodge District where lodge units are currently allowed. There are some things in th1S section of the ordinance that the Planning Office disagrees with. Timesharing, as the ordinance is presently written, is allowed 1n the RMF district if it does not adversely affect the character of the surrounding neighborhood. The Planning Office feels that th1S would be 1nappropr1ate in the HMF zone as 1t is a long term neighborhood. Perry Harvey pointed out that the HMF has existing buildings which are condominiumized and which are allowed to be leased on a short term basis. Any building which is coming up for condomin1umization would have a 6 month restriction placed on it and would not be able to timeshare. Any building that currently has a 6 month rental restriction would not be allowed to timeshare. Alice told the Commission that the Plann1ng uff1ce was taking this position because they were trying to abate the short term leases through the policy of requiring a restriction on new structures and new condomin1um1zations. This allows expansion of the use. Al Blomquist thought that by taking a stand against mixed residential zones; the Planning Office was trying to purify the zone. The Planning and Zoning Commission and the Land Use plan call for a mixed residential zone in this area. Sunny Vann stated that what the plan represented was the existing characteristic of that neighborhood. At the time there were some existing multi-family structures which were short term and there were some existing lodges built under previous zon1ng classification. -3- -4- Timesharing (cont. ) The plan recognized the existence of these structures. ~hort term accomodations should not be abated. The plan also stated that some m1nor expansion may be appropriate in those existing locations where lodges eX1sted. The minority of uses in the area are short term. Everything since the adoption of condominiumization and the proh1bition against short term multi-family structures has led to the assumpt10n that those types of uses are appropriate for a long term ne1ghborhood and can only be constructed in mixed - resident1al or RMF areas Jasmine Tygre was about the intens1fication of use in the RMF zone. One of the advantages of t1mshar1ng is that the owner w1ll get high occupancy. This means that condominiums that traditionally might have had low occupancy will now have high occupancy. This, in turn, will change the use in that neighborhood. Roger Hunt was concerned about the current approach being taken to timesharing as there were a lot of unknowns about it. Roger suggested allowing it in a zon1ng controlled area and then, after further review, expand the timesharing to other areas. Perry asked if the following statement, taken from part B, should be conditioned: Timeshar1ng should be allowed 1n the L-l, L-2. Alice said that it would be changed to "timesharing be allowed as a cond1tional use". Perry Harvey asked how the Comm1ss1on felt about the L-3 zone. Roger sa1d he had problems with this because potent1ally uncompatible underlY1ng zones. Perry said that th1S was why there was a review procedure. Perry said that if the Commission was gOlng to accomplish two things, one to tighten up the Commiss1onLs control over t1mesharing and secondly to provide a mechan1sm for upgrad1ng existing lodges, not to allow timesharing in the L-3 zone was defeating the purpose. Ron Austin, attorney, said that if the L-3 or other zones are not inluded, one of the underlying reasons for time- sharing, the upgrading of lodges is being eliminated. Lee Pardee thought included within the section under discussion there should be a statement indicating that timesharing be allowed as a conditional use 1n all zones. Later, when Commission participates in the conditional use procedure, Wh1Ch can't be anticipated, the Commission can review specific concerns, for example 1mpact on the neighborhood. Al Blomquist said that by taking the approach suggested by Lee, there may be an advantage to allowing single family units to be timeshared as a conditional use. Al1ce Davis said that the Planning Office feels that timesharing is only appropr1ate in lodge districts not in all d1stricts. Alice called the Commission's attention to last part of the section under discuss1on. Here, the ord1nance states that any lodge which has been condominiumized can be timeshared. ~his in effect 1S saying that t1mesharing is allowed in any zone district as any lOdge in any zone district can be condom1niumized. Jasmine Tygre stated that the lodge areas and the 1mprovement to lOdges has to be the reason the Commission stud1es timesharing. Therefore, it is appropriate to confine timesharing, at this time, to lOdge districts. , . '-'" RECORD OF PROCEEDINGS 100 Leaves FORM" c.r.1l0ECKHO.B.ll L.CO. Aspen Planning and Zoning Auqust 24, 1985 Timesharing (cont. ) Jasmine recommended zones L-l, L-2, L-3 for t1mesharing. Welton Anderson, thought that there should be a straw voter taking into consideration three choices: One, that timesharing be allowed in all zones with conditional use approval. Two, that timesharing be allowed in the lodge and RMF zones and three, that timesharing be allowed in the lodge and CC zones. Perry asked for the Commissioners' votes. Jasmine Tygre was in favor of allowing timesharing in the lodge and CC zones and excluding it in the RMF zone. Pat Fallin was also in favor of allowing timesharing in the lOdge and CC zones. Roger Hunt was in favor of allow1ng timesharing in the CC zone only. Al Blomquist was in favor of allowing t1mesharing in the lodge, CL, CC and RMF zones. Welton Anderson was also in favor of allowing timesharing in the lodge, CL, CC, and RMF zones. Perry Harvey felt comfortable with Lee Pardee's earlier suggestion of approv1ng timesharing in all zones as a conditional use. Lee Pardee said that he would be in favor of including t1mesharing in the RMF zone. Perry Harvey agreed. Perry confirmed that the exact language the Commission would use would in summary state that timesharing is allowed as a cond1tional use in the L-1, L-2, cc, and CL zones. It will then either stay L-3, or any zone which specifically permits lodges depending on disposition. With regard to the RMF zone the ordinance will state: "only as to those structures for which short term rental is allowed." It was then decided that L-3 would be included in the above statement adjacent to L-l and L-2. The underlying statement: "or any zone Wh1Ch specif1cally premits lodges depending on disposition" would be deleted. Alice told the Commission that the Planning Office was suggesting some changes with regard to item C of the ordinance, concerning procedure. The ordinance is recommending that all new timeshare projects go through four steps or full subdiv1sion procedures. Any existing structure in the process of conversion would go through a two step subd1vision exception process slmultaneously with a one step conditional review. Such a review would require a public hearing. The review criteria will also be included in this section once they have been establ1shed. The review criteria are presently on a seperate sheet as they were not originally included in the timeshare ord1nance. Jasmine Tygre wondered in the conceptual stage of the application process should be a seperate step. Sunny Vann, Planning Director, stated that the flexiblil1ty -5- -6- Timesharing (cont. ) of the proposed subdivision exception process for timeshare projects allows the commission to address complex applications. Perry thought that the applicant should be required to provide the Commission with a site plan of the neighborhood. Perry said that knowledge of adjacent uses would be critical to the Commissions decision. This requirement should be a part of the applicat10n process. Perry also felt that #7, page 3 of the ordinance, which deals with the marketing plan, should be expanded. Number 7, page 3, presently gives the applicant no indication of what the Commission does or does not want to see. Alice Davis said that this is where the review criteria would be added. Perry Harvey, considering the restrictions on sales promotions, said that he did not want to close the door to the ab1lity of someone to bring groups up to Aspen on a promotional deal. Gideon Kaufman, attorney, suggested that rather than provide a list, which is never all inclusive, of what the Commission wants and doesn't want, the responsibility should be placed on the applicant to inform the Commission of the sales techniques he plans to use. The Commission could then approve or disapprove of those techniques. Lee Pardee thought that a sloppy and forceful marketing technique would give timesharing in Aspen a bad name. Lee pointed out that the applicant was required to inform the Commission of proposed marketing techniques. However, Lee was felt that the gUidelines for such techniques should state that no gifts would be allowed. Perry Harvey thought that the statement "the giving of gifts in a deceptive manner " should be adequate. Ron Austin told the Commission that they would be better prepared to block the loopholes if there 1S a provision that requires the applicant to come before the P&Z with a marketing plan. Alice Davis called the Commissions' attention to statement in the ordinance which says that "any from the approved marketing plan shall glve the the right to enjoin used sales techniques." a deviation City Jasmine asked about the penalty for violation of these particular guidel1nes. Alice explained that in additon to the City's r1ght of enjoinment there could be a type of fee or bond that would be forfieted by the applicant 1f they did violate the approved market1ng techniques Perry stated that if the Commission required licenced real estate people to control the sales of timeshare units and they violate city ordinances than they are liable to the state. Al Blomquist asked about a sentance on page 11 of the ordincance which stated that the City reserves the right to implement its own licensing scheme. Al wanted to know if th1S sentance was necessary. Alice explained that the changes, with regard to the disclosure requirements, on page 3 were what the Commission had requested. Specifically, that the background of the developer, the marketing agent, and of the manager be disclosed also. Welton asked if this could be expanded to include disclosure of past timesharing exper1ence and success or failure thereof. ...~ RECORD OF PROCEEDINGS 100 Leaves fORill" C.F.HOECI{ELB.D.& l-. CO. Aspen Planning and Zoning Comm1ss1on August 24, 1982 Timesharing (cont. ) Alice said that the marketing entity does adress this issue. The Commission requested that timeshare experience be added to the disclosure requirements. Jasmine asked if there was anyway that the disclosures could be verified. Alice thought that this would be possible through the subdivision exception process. Jasmine felt that there should be a disclaimer saying that because the applicant has gone through the procedure does not guarantee that timeshar1ng 1S a good investment. Alice discussed section (n) of the disclosure requirements. Ron Aust1n thought that th1S section should have included 1n it the statement "or availability for occupancy " instead of the extra language recently added. Ron felt this should be so because there is an attempt to hold the esgrow funds until the compltetion of the project. Perry said that the Commission was simply concerned that the project would be available for occupancy. The Commission discussed the issue of mutual rescission. Perry said that the issue at hand was the pressure of sales tact1cs which could result in someone slgning an agreement in order to get away from such pressure. Perry thought that the marketing controls established by the Commission would take affect when undue market1ng pressure exists. Perry said that he was comfortable with a 3 day period in Wh1Ch the potential buyer has time to make a decision. Jasmine thought that the buyer should have time to go home and think about it. Perry felt that a 5 or 7 day right of resc1sion would result in more intensive marketing by the marketing entity. Jasmine reiterated that she thought that people should have a longer t1me than their vacation to decide. Roger Hunt said that he would favor a 15 period of rescision as opposed to a 7 day period. Al favored a 3 day period as did Perry Harvey. Welton Anderson thought a 5 day period would be approprlate. Pat Fallin favored a 7 day period. Ron Austin suggested a compr1mise in Wh1Ch the ordinance would require a resc1sion period of at least 3 days. Gideon pointed out to the commission that giving the buyer too much time would make it difficult for the developer to make any decisions or plans because he would not know 1f the sale was defin1te. Perry suggested requiring a J day period with a licensing scheme for the developer. ~he Commission moved on to discuss section (r) of the disclosure requirments which states that the developer must disclose the minimum percentage of units he intends to sell before he will proceed with the completion of the timeshare project. Gideon Kaufman explained that if the developer does not sell a certa1n percentage then the project will not be -7- -8- Timsharing (cont. ) completed and the timeshare project will end. Perry asked for a definition of "completion of the timeshare project ", specifically, whether there is a min1mum and what that minimum 1S. Alice Davis told the Commission that further spec1fiacation on market1ng uses had been added to item (u) of the disclosure requirements. In conjuction with this it is required in the review criteria that the applicant show the Commission what type of marketing plan he intends to use. Alice addressed a section of of the ordinance regarding real estate. This section incorporated the fact that a real estate person must be licensed by the state of Colorado. Added to the proposed review cr1teria was the requ1rement that there be a thourough account of the proposed budget so that the Commission knows that it is true 1nd1cation of the project's cost. Continuing her review of the timeshare ord1nance Alice called the Comm1ss1ons attention to the statement which requ1res the developer should obtain a written rec1ept for the purchase or actually recieve the d1sclosure statement. This would serve as further protect1on Wh1Ch was requested by the p&z Comm1ssion. Alice said that number 1 of article 9 was changed to 30% of the free market value for renovations. Perry confirmed that this percentage refferea to 30% of the market value of the property. Perry felt that this should be further defined so that it is 30% of the market value of the 1mprovements, not of the land and the improvements. Perry said that he would like to see more guidelines in add1tion to specific plans so that the Commission is not dealing in some abstract figure. Perry asked who determ1ned the value of this percentage. N1Ck McGrath, attorney, did not see any just1fication for treating th1S differently than this was treated in the lodge condominiu1zation ordinance. Alice Davis pointed out that the lodge condomin1umization percentage was proven to be a small number. Applicants consistently made improvements beyond that which was requ1red. Perry thought that the market would determine that timeshare applicants would find it necessary to exceed the requirements anyway. Perry suggested that improvements be required to be 30% of the assessed value of the property as a m1nimum. The language on the tim1ng should remain the same. Alice reviewed part 2 of the section on upgrading the timeshare project. This section gives council discretion regarding the budget of the project. Planning recommends that all improvements be documented. Alice stated that the Commission may want to put a time limit on the establishment of a homeowners' association. Perry confirmed that a homeowners' assoc1ation 1S established as a condition of the sale and said that such an association comes into effect little by little. The documentation governing the assoc1ation w1ll be requested prior to its development. Perry stated that the Commission should review the condominium documents to prevent the establishment of an association that takes a high percentage of , - ~ ' RECORD OF PROCEEDINGS 100 Leaves fORM 5~ C. f. II OECKEL B. B. a L. CD. Aspen Planning and Zoninq Commission August 24, 1982 Timesharing (cont. ) the owners' board as th1S glves the developer too much power. The Commission would want to designate this percentage to be 51%. Al asked if the association should have the right to designate a managing agent or should they be required to have one? Alice said that it was her understanding that the Comm1ssion could not requ1re a managing agent. The Commission d1scussed rental of timshare units. Perry said that guidelines for renting the units would be delineated in the condominium documents. The Commission then adressed real estate taxes deciding that this should be taken care under the review criter1a. Alice called the Comm1ssion's attention to the statement "The developer shall present to the City its plan for marketing timeshare units. Any deviation from the approved market1ng plan shall give the C1ty the right to enjoin the sales techniques. " Alice suggested adding a statement requiring a bond which would be forfieted if the developer did dev1ate from the approved marketing plan. Roger Hunt sa1d he would like to see a marketing assurity bond.in effect. Gary Esary, City Attorney, sa1d that bonds were difficult to collect on. Gary also asked how the City would retrieve its costs should it enjoin on the developer's sales techn1ques. Gary said that it would be possible to enter into an agreement like a subdivision agreement w1th the developer providing for costs and attorney's fees. Gary said that he d1d not see any apparent connection between marketers and developers. Al suggested a licensing scheme in which developers would only be allowed to operate a timeshare project if they had a license from the City. Gideon felt that it would be more effetive to require llcensing by the state of Colorado. Gary pointed out that there was no funding for enforcement of licensing requirements. Perry, discussing City sales tax, confirmed that the ordinance would require the Owner of the "timeshare week" to pay City sales tax. Perry asked how this value would be determined. The Commission asked that the time of or for payment be delineated in the ordinance. Alice explained a part of the ordinance which states that the remedies shall only be against the developer and any actively involved 1nd1viduals. Perry confirmed that this section differentiated between the developer and the indiv1duals who have purchased the units. Gideon explained the section of the ordinance that covers the Purchasers' right to void the sale within thirty days of closing. G1deon said that there needed to be a limit so that the purchaser could get a loan. However, this section should not be construed -9- -10- Timeshar1ng (cont. ) to eliminate or limit any other remedies available. Perry Harvey brought up the issues of k1tchens and parking. Gideon said that the park1ng provided by an existing structure remained the same when that structure was condominiumized or otherwised changed. The Commission has never tried to impose addit10nal park1ng requirements on existing structures. Perry suggested reviewing park1ng requirements on a case by case basis. Perry said that he would be support1ve of the addition of efficency kitchens as part of the improvements. Perry said that he would llke to see a requ1rement for a llSt, as part of the application, of units in the project that currently have kitchen and units 1n the project that propose to have kitchens. This requirement should be outlined in the ordinance. Roger Hunt pointed out other ramifications that might be encountered if kitchens were allowed. These included park1ng availability, which is likely to decrease. Roger asked how the Commission was going to lim1t t1meshare projects. Perry suggested reviewing timesharing at the end of the year. It could be stated in the review criteria that the CommiSS1on would be looking at the sales record, success and conform1ty of the project. Al didn't think this provision was necessary as the CommiSS1on would be reviewing the Comprehensive plan in the near future. Jasmine felt that the Commission should protect itself by implY1ng the fact that some of the regulatory cond1tions within the ordinance may increase or decrease in strictness or thar a moratorium may be placed on timesharing all together. Jasmine felt that by stating that the applicant would be subject to future review would result in the applicant being more caut1ous. Jasmine was also concerned about the 1ncreased occupancy and thus the strain on the existing un1ts. Jasmine liked the idea of an annual review. Perry requested that a mot1on be made reqest1ng the Planning Office to present the Planning and Zoning Commission w1th an ammended resolution on the timeshare ord1nance. Jasmine so moved. Pat Fallin seconded the motion. All in favor, motion carried. Jasmine moved adjourn the meeting. Roger Hunt seconded the motion. All in favor, mot1on carried. ,~"" __ .,r">"7"-- __ ",."",