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HomeMy WebLinkAboutminutes.boa.20070301 ASPEN BOARD OF ADJUSTMENT MEETING - MINUTES March 01, 2007 Rick Head opened the City of Aspen Board of Adjustment meeting at 4:00 in Council Chambers. Members present were Charles Paterson, Peter McClain, Jag Pagnucco and Rick Head. Mark Hesselschwerdt was excused. Staff in attendance Jim True, acting Assistant City Attorney; Chris Bendon and Todd Grange, Community Development; Jackie Lothian, Deputy City Clerk. Case #002 -07 Timothy G. Reed, Aspen Manual Therapies and Rehabilitation — 465 N. Mill Street — Appeal of Zoning Officer's Decision Rick Head opened the hearing for Case #002 -07. The Board was asked to make a determination as to the appeal of the administrative decision and the board is charged with making the determination as to whether or not the zoning enforcement officer has exceeded his jurisdiction or abused his discretion or that there was a denial of due process. Timothy Reed stated that the address of the property was 465 North Mill Street, #18 and his business was Aspen Manual Therapies and Rehabilitation. Chris Bendon introduced himself, Todd Grange the City Zoning Officer and Jim True, legal counsel for the City of Aspen. Bendon said that the SCI Zone District was created to protect light industrial businesses; this zone district was created in 1971. Bendon stated enforcement was a very difficult task especially in a small town. Todd's job was to enforce the zoning laws. Tim's job was to help people. Tim looks for a space for his business and relies on the real estate brokers or property managers to find a space for him. Bendon explained that the enforcement was complaint driven, which was how Tim's business was brought into the enforcement matter. Bendon said that the purpose of the hearing was whether or not Todd did his job correctly. Bendon stated the criteria by which the board will answer that question was 1. Did Todd have the jurisdiction to enforce the zone? 2. Did Todd abuse his authority? 3. Was due process provided? Bendon said this was not a substantive review of the SCI Zone District; this was not a review of Tim's character. Bendon said that he believed Todd did his job that he was responsive and responsible. Tim Reed read his statement "Exhibit B "; he believed that due process was violated because it was 6 months after the initial visit before a letter of non- compliance was issued. Reed read from the land use code addressing the SCI district definition specific to preserving locally serving primarily non - retail small businesses to insure a more balanced community, to protect the small businesses primarily used for light industrial. Reed described himself as locally serving 1 ASPEN BOARD OF ADJUSTMENT MEETING - MINUTES March 01, 2007 business because he provided 26801/2 hours of service over the last 12 months from March 2006 to February 2007, with 4 weeks of vacation this averages 55.84 hours per week of service. 88% of the service was provided to residents of the Roaring Fork Valley, which meets the code for locally serving businesses. Reed said that there were plenty of businesses that did not comply with the SCI Zone. Reed said that the administrative body exceeded jurisdiction for the following reasons: the decision was arbitrary to exclude medical clinics and by definition of a medical clinic the applicant does not fit that category. Bendon said that in 1998 and 1999 the SCI Zone District went through a series of reviews with the Planning & Zoning Commission and City Council; through the review Council specified the uses to be located in the SCI Zone and not kicking anyone out who was located in the SCI Zone District. In 2001 or 2002 a medical or dental clinic or office was to be included in the SCI Zone; the definition was an office of practitioners of the medical arts where the primary use is the delivery of health care services on an out - patient basis for sale of merchandise incidental to the services and where organized combinations are provided. Bendon said the hospital broke their contract with Obermeyer and Obermeyer shrunk the size of the project and that use was taken out. Rick Head said that he was troubled by allowing that sort of use in the Obermeyer project. Jim True explained that this was not a public hearing but rather an appeal. There were 27 people in the audience in support of Tim Reed. Letters of support for Tim Reed were received from: Cheri Grinnell, Marilyn Greenberg, Paula Brodin, North Mill Adventures, Annette Teuscher, Suzanne Leydecker, Janet Ferrara, Krys Greenwood, John I. Jellinek, David M. Eddy, Sheilah Bzg, Shelly Malkin, Trisha Scott, Margie Sturgis, Catherine Cussaguet, Teena Shaw, Mick Ireland, Erika Teich Corbin, MarrGwen Townsend, Jill St. John Wagner, Michael Spaulding and Paul Johnston. Jag Pagnucco asked Todd where he drew the line between Tim's business and a fitness club. Todd Grange replied that the reason he went down to Tim's business was driven by a complaint; there are 4 other zone districts that include medical offices. Pagnucco said that there was a fine line and it was not just black or white. Bendon replied that he was absolutely right that this is a difficult zone district and there was a problem differentiating the different uses; Council gave that charge to Community Development and the Zoning Officer to be responsible for the enforcement of that and for the public to understand. Pagnucco asked if Tim repairs. 2 ASPEN BOARD OF ADJUSTMENT MEETING - MINUTES March 01, 2007 Charles Paterson asked if he was not a certified Physical Therapist would he be allowed; it seems because of his educational background he is being slammed. Bendon said that the enforcement is not against the person but rather enforcing uses. Peter McClain asked who made the complaint. Todd Grange replied that the first phone call he received on this was anonymous and then the call came in from Rachael Richards. McClain said that he did not have a problem with this business and it should stay. Rick Head said that he did not think that Todd did anything wrong but in light of the ambiguities in the code and the positive input from so many people that it has swayed his decision and leaning towards not approving the appeal. Head explained that it will take all four members to vote in the affirmative to win this appeal. Tim Reed said that he can not afford to move his business to the commercial core. Reed wanted a decision today. Paterson said that there was ambiguity in the code and this business did not generate high traffic volumes; he was troubled by the small line because Todd did his job. Paterson said that the code should be clearer and the public was not served by the board not allowing this appeal; he would vote in favor of the public. Bendon said that he was convinced that Todd did his job. The board all agreed. Bendon said the biggest concern was not Tim but rather the erosion of the zone district. Pagnucco and McClain had a problem putting the term medical clinic on Tim because he was not an MD and he was not a fitness instructor. Pagnucco said the SCI needed better definition. Shirley Tipton helped Tim with this problem. Tipton said that there was no dispute that ComDev staff was working very hard and did not want to put the burden of abuse of authority on Todd Grange; if it was unfair in 1998 it might be just as unfair in 2006. Jim True explained the abuse of desecration in legal standpoint of appeal were there any set of facts which Todd relied on for his decision. True said that the board can deny the appeal but you stay the enforcement until the end of Tim's lease. Head stated that he did not want the applicant to have to move out because of the code's ambiguity. 3 ASPEN BOARD OF ADJUSTMENT MEETING - MINUTES March 01, 2007 MOTION: Charles Paterson moved to approve the administrative decision in Resolution #002 -07 and the zoning officer's decision shall be reversed; Jag Pagnucco seconded. All in favor, APPROVED. MINUTES Motion: Charles Paterson moved to approve the minutes from December 7, 2006; seconded by. All in favor, approved. Meeting adjourned at 5:15pm. s ASs_ /Dice• ckie Lothian, Deputy City Clerk 4