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HomeMy WebLinkAboutcoa.gmc.ag.101299 AGENDA GROWTH MANAGEMENT COMMISSION CITY OF ASPEN PLANNING AND ZONING COMMISSION AND PITKIN COUNTY PLANNING AND ZONING COMMISSION TUESDAY, OCTOBER 12, 1999 5:00 PM AT PITKIN COUNTY LIBRARY GROWTH MANAGEMENT COMMISSION PUBLIC HEARING: 5:oop.~. A. Chateaux Chaumont Change in Use - Chris Bendon OTHER BUSINESS: A. City Planning & Zoning Minutes (08/24/99, 09/21/99, 09/28/99) B. Community Development Department Survey �y TO: THRU: FROM: RE: DATE: MEMORANDUM Aspen/Pitkin Growth Management Commission Julie Ann Woods, Community Development Director Joyce Ohlson, Deputy Director Christopher Bendon Planner(' P � �lit�►j Chateau Chaumont — Public Hearing Ch?nue-in-Use, Commercial to Residential October 12, 1999 SUMMARY: The basement of the Chateau Chaumont building houses an office of approximately 1,600 square feet directly accessed from the underground garage. This space was legally created in 1968 as part of another residential unit. Unit 7A was then converted to an office and separated through the condominium declaration. The approved condominiumization allowed eight of the units on this property to be both residential and business use although this is the only office in the building. Since that time, the zoning has changed to prohibit office use and Growth Management now requires a change -in -use application be approved for these types of conversions. While the office use is currently not a permitted use in the zone district, it was legally created and may continue for the life of the building as a non -conformity. The owner of Unit 7A, Dale Eubank, is requestins. dry .1ange-in-use exemption from Growth Management to convert this space into a residence. To accomplish this task, an external entrance and adequate light and air needs to be provided to meet the requirements of the Uniform Building Code as the only entrance is now from the parking garage. Chateau Chaumont exceeds the residential density allowed in the L/TR Zone District. The applicant was granted a variance from the Board of Adjustment in May of this year allowing this application to proceed to the Growth Management Commission. In their deliberations, the Board of Adjustment discussed the presence of a hardship versus the fairness of other units within the building which are used as residences. Staff did not support the variance because the argument was primarily based on the financial difficulty of the applicant finding an occupant. In other words, the applicant's difficulty in securing lease for more than the market would bear was not a justifiable reason for a variance. Eventually, however, the Board determined that the variance standards had mostly been met. (BOA minutes are attached.) The change -in -use provision allows the creation of one free-market residence in conformance with the review criteria. It appears the application meets all of the standards for a change -in -use and staff is supporting the request. There are six (6) 1 free-market allotments currently available. If approved, the one unit will be accordingly deducted from the annual allotment pool. Staff recommends the Commission approve this Change -In -Use, with conditions. APPLICANT: Dale Eubanks. Represented by Michael Hoffman. LOCATION:. 731 East Durant Avenue. Chateau Chaumont Condominiums. ZONING: Lodge/Tourist Residential (L/TR). CURRENT LAND USE: Commercial office. PROPOSED LAND USE: Two -Bedroom residence. PREVIOUS ACTION: The Commission has not previously considered this application. The Aspen Board of Adjustment granted a variance for this application. BOA minutes are attached. REVIEW PROCEDURE: Change -in -use. The Growth Management Commission shall, by resolution, approve, approve with conditions, or disapprove the application at a public hearing. STAFF COMMENTS: The application includes an agreement between the applicant and the Condominium Association. This private agreement is not enforceable by the City and merely acts as a covenant between adjacent land -owners. As a point of interest, this private agreement seems to prevent an owner from placing an affordable housing deed restriction on his own property or selling the unit to the Housing Authority. Review criteria and Staff Findings have been included as Exhibit "A." Agency referral comments have been included as Exhibit `B." BOA minutes have been included as Exhibit "C." The application has been included as Exhibit "D." RECOMMENDATION: Staff recommends the Growth Management Commission approve the Chateau Chaumont Unit 7A change -in -use from commercial to residential with the following conditions: 2 1. The Building Permit Plans shall demonstrate the unit's compliance with all applicable requirements of the Uniform Building Code including, but not limited to, natural light, ventilation, automobile exhaust, and egress. The unit shall contain an entrance from the exterior of the building and the entrance from the underground garage may not be the primary entrance to the residence. 2. This change -in -use approval shall not be considered an approval or variance of any other requirement of the Land Use Code or of the Uniform Building Code. The building permit plans shall demonstrate compliance with all zoning requirements not granted a variance including, but not limited to, setbacks and Floor Area. 3. I3, efore a building permit application may be accepted by the Building Department, the applicant shall record this Resolution with the Pitkin County Clerk and Recorder located in the Courthouse Plaza Building. There is a per page recordation fee. In the alternative, the applicant may pay this fee to the City Clerk who will record the resolution. 4. All material representations made by the applicant in the application and during public meetings with the Growth Management Commission shall be adhered to and considered conditions of approval, unless otherwise amended by other conditions. RECOMMENDED MOTION: "I move to approve the Chateau Chaumont Unit #7A change -in -use to residential with the conditions outlined in the Community Development Department memo dated October 12, 1999." ATTACHMENTS: Exhibit A -- Review Criteria and Staff Comments Exhibit B -- Referral Agency Comments Exhibit C -- BOA Minutes Exhibit D -- Development Application 3 Exhibit Exhibit STAFF COMMENTS: Change In Use 26.100.050 (13)(3) Growth Management Commission Exemptions that are Deducted from the Pool of Annual Development Allotments and from the Metro Area Development Ceilings. a. Change in use. A change in use of an existing structure between the residential, commercial/office, and tourist accommodation categories for which a certificate of occupancy has been issued for at least two (2) years and which is intended to be reused, shall be exempt from the growth management competition and scoring procedures, provided the following conditions are met: 1) The Growth Management Commission determines that a minimal number of additional employees will be generated by the change in use and that employee housing will be provided for the additional employees generated. Staff Findin The e Fisting commercial office space has the capacity to generate more employees than the residential use. In fact, the employee generation rates used in the land use code determine this space to generate approximately 5.6 employees. The land use code does not have a generation rate for residential land use. It is highly unlikely, however, that this residence would generate anywhere near 5.6 full-time employees. Staff believes that no additional employees will be generated by this change -in -use. 2) The Growth Management Commission determines that a minimal amount of additional parking spaces will be demanded by the change in use and that parking will be provided. Staff Finding: The parking regulations for residential use requires 1 space per bedroom or two per unit, whichever is less. For commercial development, 4 spaces per 1000 square feet of net leasable space are required. The existing commercial space in question is approximately 1,600 square feet. This requires 6.4 parking spaces on -site. The applicant is seeking to create a two -bedroom apartment requiring 2 parking spaces. The apartment building does not meet the current on -site parking requirements of the Land Use Code with approximately 20 off-street spaces used in common by all residents. However, the proposed use requires fewer spaces than the commercial use. Because there is proposed a reduction in the on -site parking for this space, staff believes this standard is met. 3) The Growth Management Commission determines that there will be minimal visual impact on the neighborhood from the change in use. Staff Finding: Changing the use of this unit will not have a substantial visual impact on the neighborhood. Additional light and egress areas will need to be provided to meet the requirements of the U.B.C. Other than these changes, the residential use will be virtually invisible. 4) The Growth 1t111anagement Commission determines that a minimal demand will be placed on the City's public facilities from the change in use. Staff Finding: This change in use is not expected to affect the provision of facilities. The unit is currently served by all the necessary utilities needed for residential use. S) No zone change is required. Staff Finding: No zone change is required for this use. The applicant gained a variance from the Board of Adjustment related to the density on the parcel. 6) No more than one residential unit will be created. Staff Finding: I Only one residence is proposed. This criteria is met with this application. 7) The proposed use is consistent in all respects with the AACP. Staff Finding: The AACP does not address this parcel specifically, but there are statements for and against this conversion which may loosely apply. The AACP speaks to the provision of additional housing in the core area of Aspen. This infill housing, however, is primarily related to affordable, deed restricted, housing and projects with a substantial amount of affordable housing. The commercial section then goes on to say "Office space costs are driving many of these local business people and their local services out of the community. Finding ways to provide affordable office space in the core of the community is essential to the Aspen area quality of life." This "finding ways to provide affordable office space," however, does not necessarily mean existing space cannot be converted. In fact, this statement seems to indicate a need to create new subsidized or deed restricted office space. Lastly, a statement in the commercial section reads: "Revise the criteria for change -in -use in zone districts outside of the CC zone district in order to prohibit the loss of locally serving business through change -in -use." This proposed code amendment was never accomplished and it would be unfair to hold this application to that increased scrutiny. These statements may loosely apply but do not provide any certain direction regarding this project. It is difficult to determine if a project is "consistent in all respects with the AACP" if there is little concrete guidance given for that project. With some certainty, however, staff can say that the project is not inconsistent with the AACP. MEMORANDUM To: Chris Bendon, Planner Thru: Nick Adeh, City Engineer From: Chuck Roth, Project Engineer Date: September 13, 1999 Re: Chateau Chaumont #7A Change in Use (731 E. Durant Avenue) The Development Review Committee has reviewed the above referenced application at their August 11, 1999 meeting, and we have the following comments: General - (1) These comments are based on the fact that we believe that the submitted site plan is accurate, that it shows all site features without misrepresentation, and that it is feasible. The wording must be carried forward exactly as written unless prior consent is received from the Engineering Depa-i--tment. This is to halt complaints related to approvals tied to "issuance of building permit." (2) If there are any encroachments into the public right-of-way, the encroachment must either be removed or be subject to current encroachment license requirements if continuation of such encroachment would be acceptable to the City. 1. Engineering Department — The application requests to convert an existing office space in a condominium building to a residential space. There are no impacts of city engineering concern. 2. Building Department — The applicant needs to meet with the Building Department in order to determine if it will be required to construct light wells for the unit. DRC Attendees Staff: Nick Adeh, Tom Bracewell, Ed Van Walraven, Chris Bendon, Sarah Oates, Karma Borgquist, Stephen Kanipe, Cheryl Christiansen, Jack Reid, Chuck Roth 99M 120 CITY OF ASPEN BOARD OF ADJUSTMENT MAY 13, 1999 Charles P rson, chairma pened the City of Aspet' B meeti at 4:00 p.m. w' members Rick Hea , im Igle] • D id Schott pres City staff in atten ce were: Dai ttorney; Sar omas, Communit evelopment Zonis -� Deputy Ci Clerk. MI TES l,'iVVJI MOTI Rick Head move to approv inu Apr' , 1999. Jim Igleh t second. PROW COT LICTS OF INT ST one COMMENTS,— 1 Jac 'e Lothian ted that the City C ncil would pro ly be intern' wing the plicants f the city boards w' in the next mon PUBLfC HEARING: CASE #99-03 CHATEAU CHAUMONT CONDOMINIUMS, UNIT #7A Charles Paterson, chair, opened the public hearing. David Hoefer, Assistant City Attorney, stated that notice was provided but the list was not attached. (The list was provided to the city clerk's office on May 18, 1999.) Sara Thomas stated that this building was built in 1968, when this tvne of construction and zoning were allowed, but now, it was non-conforrn._ng. She noted that this office space was part of a unit, which was connected wits a residential unit. To convert back to residential was a two-step process to comply with density; the next review would be with P&Z for a change. in use request. Thomas said that staff found no hardship to meet the criteria. The non -conformity could be maintained as an office, but not changed to residential. The applicant, Dale Eubanks represented by Michael Hoffman, requested a variance from the density requirements of the LT-R zone district to allow for the conversion of this existing office space into residential space. Hoffman asked for staff interpretation. He noted this had always been a separate condominium and the current space was not allowed under current zoning law. He 1 CITY OF ASPEN BOARD OF ADJUSTMENT MAY 13, 1999 said there were 2 other units that had been converted to residential. from office; Mr. Eubanks will limit the # of people if so desired by deed restriction. Hoffman distributed his review criteria for variance setting (exhibit #40); he felt there was a hardship. Thomas stated that the other building permits all represented residential remodels; these permits were for residential and not commercial. Peter Wolford, Chateau Chaumont manager, stated that #23 was the office for the Chateau Chaumont and was. converted to residential. Hoefer explained to the board that this was not a board of equity but must be consistent with criteria presented and rule from that criterion. Rick Head asked if the # of bedrooms had gone up or was it always the same. Wolford stated there was a bedroom with an illegal use that was converted; there were now 48 bedrooms. Eubanks said that unit #23 was used as an office. He said he made the mistake and stated his unit 97A was an office; he was penalized because he was honest and now could not make the unit residential. David Schott asked when purchased if it was an office. Eubanks replied that is was an office. Wolford said the condo association didn't care if it was residential or commercial but the parking was critical with only 11 spaces; there were no designated parking places, but on a first come first serve basis. Hoffman said that Dale placed a deed restriction, which puts his unit in full compliance with all of the homeowner's requests. He said the parking was for only the owner with the exception that one renter would be allowed. Hoffman further stated that the deed restriction would include one adult per bedroom, if the variance was granted. There would be 3 bedrooms depending upon the proper egress for those bedrooms. Eubanks stated there was a plan to change the egress from access through the garage to the back stairwell, although there was no legal or code problem with the existing. He stated that he has owned the unit since 1978 and never had a clue about these problems. Eubanks said that if he abandoned the commercial use then he was left with 1500 square feet of unusable space. He noted this was brought about by applying to put in window well in this unit. He asked where the equity was from the city for someone who has lived here and owned a business here for all these years. Paterson asked if there was a change in the town over the years in this area. Eubanks replied there was a change and he moved his office down valley about 5 years ago. He said the type of business to go into this space wasn't a viable option for the homeowners and maybe there would be a takings scenario. Hoffman stated that the condominium declarations state that certain units can be used for commercial, but the underlying assumption was that all can be used for 2 CITY OF ASPEN BOARD OF ADJUSTMENT MAY 13, 1999 residential. He said that Mr. Eubanks just wanted to exercise his right for residential when he bought it in 1978. Plead said Eubanks bought it knowing it was an office. Eubanks responded that he bought it knowing it was office but it was also clear to use residentially. He said that he had to show consistent historic office usage. Hoefer noted the condominium declarations were not binding on the city; the city ordinance was the binding document which the finding was based upon. Hoffman stated that the board had to consider the equities forming a hardship. Head stated that this board could not consider financial hardship. Hoffman did not agree. Paterson stated the board of adjustment was a board of fairness for all sides. Eubanks stated that the space has not been rented or sold in two years. The board agreed that could be a function of price. Head asked if this unit could be converted to parking spaces and if those spaces could be sold. Thomas said the review process with P&Z might still be for a change in use. Head said there was a viable use as office space now. Jim Iglehart asked if there was a kitchen in the unit. Eubanks replied there was an office kitchen, not a full residential kitchen. Howard DeLuca asked if this was the only commercial use in the building. Eubanks answered that was correct. Iglehart, DeLuca and Schott concurred that office space was a bigger impact on the neighborhood than residential. Schott stated concern for 3 additional bedrooms without a parking provision. Head stated the variance was financially driven and parking was a problem. He said even though the economy has changed the board could not consider financial equity as a hardship. Head noted he would not vote in favor of this variance. Paterson said this was consistent with the AA.CP and felt there was a hardship because of the change in zoning and densit3- :-equirements at the time this was built. DeLuca noted parking was a problem with only room for 11 cars and 48 bedrooms, 25 units, but asked to look to the future — public transportation can then service Aspen when cars won't be needed. Paterson noted that not too long ago parking wasn't considered for any commercial or residential units and now it was unfair to apply the present or future situation without considering the change a hardship. Iglehart asked staff what review was necessary to go through to get 3 bedrooms approved. Thomas noted that P&Z would review the change in use to allow residential conversion and a parking variance. Iglehart said P&Z may grant only 3 CITY OF ASPEN BOARD OF ADJUSTMENT MAY 13, 1999 one bedroom, and this was in town, so parking shouldn't be a problem. DeLuca said that if things go as planned, to remove traffic out of the commercial core, then a hardship is created for businesses because of the change in impact. Hoffinan stated the fairness issue was not the same as a takings analysis of all value but rather fairness was the issue here. Hoefer stated the focus was compliance with AACP and the hardship with the minimum variance was not discussed. He said that he followed Rick's statement about the request as economically driven without a minimum variance request. Hoefer stated the city position was that this unit could be rented commercially. Paterson asked what a minimum variance request would be without granting what they were asking for. Thomas responded that it would be a reasonable use of the parcel without variances. She said the code still allowed that use. Eubanks asked what if he was no longer able to use it for the purpose. Hoefer responded that they were able to use it for that purpose. H .- ffman said the code stated if he did nothing with it for one year, he would not be allowed to use it. Hoefer stated that Eubanks purchased and used the unit commercially. Head stated that Eubanks was not denied reasonable use of the property. Paterson reviewed the criteria sheet and felt there were special conditions and circumstances. He said that granting this variance would not confer upon the applicant any special privileges because other people had the opportunity to have residential. Wolford said there could be both good and bad residential and commercial uses; if Eubanks could provide the egress and windows or whatever was necessary to be in compliance, then it was fine. Head asked why this couldn't be done with the office. MOTION: Charles Paterson moved to approve the request to vary the minimum lot a,ea per dwelling unit to allow for the conversion of an office space to a residential dwelling unit at 731 East Durant, Unit 7A, finding that the review standards have mostly been met, and that such conversion shall be subject to. Change in Use approval by the Planning and Zoning Commission. David Schott second. Roll call vote: Iglehart, yes; DeLuca, yes; Schott, yes; ]Mead, no; Paterson, yes. APPROVED 4-1. The meeting a urned at 5:00 p.m. �rckieLothian, Deputy City Clerk 2 r LAW OFFICES FREILICH, MYLER, LEITNER & CARLISLE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS IN ASPEN COLORADO 106 SoL7rH MILL STREET .ATTORNEYS AT LAW SUITE ZOZ DAVID J. MYLER, P.C.' E. MICHAEL HOFFMAN' ASPEN. COLORADo 81611 SHANE J. HARVEY' ``DMn= IN`O' FACM11L.E (970) 920-4259 TELEPHONE (970)920-1018 June 17, 1999 IN ItiANSAS CITY, MISSOURI FREILICH, LEITNER & CAnISLE ATTORNEYS AT LAW ROBERT H. FREILICH. P.C. U4 MARTIN L. LEITNER. P.C. RICHARD G. C.ARLISLE. P.C. ' SI'EPHEN J. MOORE, P.C.' S. MARK .VHITE zs KYLE E. FOOTE ' ADM= cr MO', Ca', :tx , xC' CERTIFIED LAND USE PLANNERS MICHAEL J. LAUER. AICP JENNIFER K. BARR=. MCP KIM S. BROPHY. AICP Aspen Planning and Zoning Commission Aspen Municipal Government 130 S. Galena Street Aspen, Colorado 81611 Re: Request for Variance - Chateau Chaumont Condominiums, Unit 7A (the "Unit") Dale Eubank, Owner Gentlemen: By this correspondence Dale Eubank is requesting that the Aspen Planning and Zoning Commission grant an exemption from the Growth Management Quota System ("GNIQS") for a change in the use of Unit 7A (the "Unit") of the Chateau Chaumont Condominiums (the "Project ")I from commercial to residential use. W. Eubank utilized the property as the office for his accounting practice for many years. More recently, the Unit was leased to others for commercial purposes. Mr. Eubank had planned to convert the Unit to residential use so he stay there occasionally when he comes upvalley from his home in Carbondale. However, in the past week, Mr. Eubank has entered into a contract to sell the property to Veronika, Inc., a local investment company. The Buyer wishes to pursue Mr. Eubank's plan to convert the property to residential use. I. Background of Request What makes this application somewhat unique is that the Unit is zoned for residential, not commercial use. This land use process began for Mr. Eubank when he asked the City for a building permit to convert his office space to bedrooms. The City Zoning Officer turned him down even though the requested use of the Unit is allowed in the L/TR zone district while its current use is prohibited. The City took this position because the number of bedrooms in the condominium Project as a whole exceeds that which would be allowed if the building was to be constructed today. The Project is located on the southwest side of the intersection of Original and Durant Streets. FREmICK MYLER, LEITNER & CARLISLE Aspen Planning and Zoning Commission June 17, 1999 Page 2 Allowing Mr. Eubank to use his Unit as a residence would only further increase density in the Project, according to the City, and therefore would not be allowed. Mr. Eubank was unable to find either a commercial buyer or a tenant for the Unit. The combination of the City's refusal to allow him to convert the Unit to residential use and the reality that there is little demand for below -grade commercial space in Aspen, left Mr. Eubank with few alternatives. In the Spring of this year, he asked the Aspen Board of Adjustment to grant him a variance from staff s interpretation of the density requirements of the L/TR zone district. On May 13, 1999, the Board of Adjustment granted 1\/Ir. Eubank's request. In a 4-1 decision, the Board found that it would be inequitable to prohibit Mr. Eubank from using the Unit as a residence when every other privately -owned unit the Project was used for that purpose. The Board also apparently believed that it would be unfair to prevent Mr. Eubank from converting the Unit from commercial use when several other owners in the Project had done the same thing without any opposition from the City. H. Need for GMQS Exemption Even though the Board of Adjustment granted the request for a variance, the Land Use Regulations require that the Planning and Zoning Commission review and approve the proposed change in use. Section 26-102-040(B)(1)(b) provides that [a]ny change in use of an existing structure between the residential, commercial/office and tourist accommodations categories [may be exempted from GMQS by the Planning and Zoning Commission], provided that it can be demonstrated that the change in use will have minimal impact upon the city. The Code requires that the applicant demonstrate "minimal impact" in four key areas: employee generation including adequate mitigation, demand for additional parking spaces including adequate mitigation, the amount ofvisual impact caused by the change in use and the additional demand placed on "the city's public facilities." III. Interests of the Project's Homeowners' Association Chateau Chaumont Condominium Association, Inc. (the "Association"), is the homeowners' association for the Project. The impacts of a conversion of Mr. Eubank's Unit from commercial to residential use will be more immediately felt by the members of the Association than they will by the City of Aspen at large. Because of its intense concern over these impacts, the Association required that Mr. Eubank enter into Deed Restrictions concerning the Unit as a condition of its support for this application. A copy of the Deed Restrictions is attached to this application as Exhibit "A". The Association is particularly concerned that (1) the Unit not be used in a manner which will disrupt other owners in their peaceful enjoyment of their property, and (2) that the few parking spaces FREILICH, MYLER, LEITNER & CARLISLE Aspen Planning and Zoning Commission June 17, 1999 Page 3 which exist in the Project continue to be available for owners and not be used by tenants or guests. These interests closely reflect the impacts of conversion which must be reviewed and approved by the Planning and Zoning Commission under the Land Use Regulations. IV. Effects of Conversion on Employee Generation Allowing the Unit to be converted from office use will have a positive impact on the employee housing problem in the City. When it is used for commercial purposes, the Unit contributes to the number of people working in Aspen. If the opportunity to use the Unit for commercial purposes is removed, fewer people can work here. Because commercial use of the property is not allowed in the L/TR zone district, the eliminated employees cannot be "recreated" unless zoning regulations are changed substantially. Such a change is unlikely. Conversion to residential use will have little, if any, impact on the number of people employed in the City. The Unit's physical characteristics, especially its below -grade siting, will keep its sales price low, by Aspen standards. Local people can afford to own or buy this Unit. Most likely, the property will be a de facto affordable housing unit, one through which the owner may participate in appreciation in the housing marketplace. Rental of the Unit to long-term unrelated tenants is limited by the Deed Restrictions to "[n]ot more than one (1) person per legal bedroom." No more than three bedrooms can be created.' These two covenants alone will substantially reduce the impact of the Unit's residential use on the community. Even if the Unit is rented to Aspen visitors, the impact of these guests will have only a minimal impact on employee generation. The Project was constructed in 1968 to accommodate short-term visitors. Many Chateau Chaumont units are still used for that purpose. The condominiums themselves are not large enough to require specialized employees, such as nannies, cooks or gardeners, so guests will have only a generalized impact on the local economy. No direct impacts should be created or realized upon the conversion of the Unit to residential use. V. Little, If Any, Additional Parking Will Be Required By Residential Use The Unit can now be used for commercial purposes. For much of the past 20 years, Mr. Eubank used the property as the office for his accounting practice. His clients and staff intensively utilized the street for parking purposes. If the Unit is converted to residential use, those vehicles will no longer occupy parking spaces near the Project during busy daylight hours. Nor will they contribute to traffic within the City or along Highway 82 as their owners drive to and from work. They will be replaced by cars owned either by (1) short-term guests or (2) a few long-term residents. Although it is difficult to state with certainty the exact impact these two groups will have on local parking availability, it is likely that they will little negative effect. Due to the Project's proximity to Aspen Mountain, the central business core and RFTA bus lines, short-term Chateau Chaumont guests z Deed Restrictions, Section 3. FREILICH, MYLER, LEITNER & CARLISLE Aspen Planning and Zoning Commission June 17, 1999 Page 4 do not need to bring their personal vehicles with them. Long-term residents are likely to recognize that they have little need for a car. The residential restrictions included in the Deed Restrictions' encourage use of the Unit by a family, rather than by individual adults. The consolidated needs of families should also result in fewer vehicles being associated with the Unit. Conversion of the Unit from commercial to residential use will have minimal impact on the number of parking spaces needed within the City of Aspen. VI. Conversion Will Cause Minimal Visual Impact on the Neighborhood The extent to which Mr. Eubank can make use of the Unit as a personal residence depends in large part on his ability to bring the property to current Uniform Building Code ("UBC") standards, particularly in the area of ingress and egress. For this reason, the Association has already given its consent to allow Mr. Eubank to construct alternative entrance/exit portals to the Unit at particular locations as may be required to satisfy the UBC and Aspen building officials. The Association agreed to this construction because its officials believed that these improvements will have little impact on the Project or the surrounding neighborhood. As Nlr. Eubank, or his successor, work with the Community Development Department to satisfy the UBC, more definite construction plans will be established. Mr. Eubank agrees that an appropriate condition of the Commission's approval of this request is that the final plan have a minimal visual impact on the neighborhood. VII. Demands on Public Facilities. As with parking, conversion of the Unit from commercial to residential use will essentially effect a change.in the time of day during which occupants will utilize the space. Although residents will more intensively use the Unit during the evening and early morning hours, there is no evidence that there will be a difference in the average demand placed on public facilities related to the Unit. The only currently anticipated physical changes in the property will be for access to the bedrooms so as to comply with the UBC. The residential restrictions contained in the Deed Restrictions limit the number of people who can live in the Unit, thereby further limiting potential impacts on local infrastructure There will be minimal, if any, additional demand placed on the city's public facilities from the change to residential use. VIII. Conclusion It is likely that allowing Mr. Eubank to use his condominium Unit for residential purposes will actually reduce traffic in the area of City Market,' the Silver Queen Gondola, and in the commercial core. Although residential use could have had some negative consequences if its use was not handled responsibly, the Project's homeowners' Association recognized the risk and moved aggressively to ' Deed Restrictions, Section 3. FREILICH, MYLER, LEITNER & CARLISLE Aspen Planning and Zoning Commission June 17, 1999 Page 5 pre-empt any such effects. Mr. Eubank agreed to his neighbor's requests, and the Deed Restrictions which now efficiently govern use of the Unit. As described in this letter, conversion of the Unit to residential use will have minimal impact on the City. Particularly in the areas of employee generation, parking space requirements, visual impacts and demands on public facilities, the City will not be harmed by allowing Mr. Eubank to make the same use of his property enjoyed by all other owners of units within the Project. For this reason, we urge the Planning and Zoning Commission to grant this request for an exemption from the Growth Management Quota System. Sincerely, FREILICH, MYLER, LEITNER & CARLISLE E. Michael Hoffman cc: Dale Eubank THESE RESTRICTIONS are entered into as of this 13th day of May, 1999, by B. DALE EUBANK, hereinafter referred to as "Owner". WITNESSETH. WHEREAS, the Owner is the owner of Unit 7A (the "Property"), Chateau Chaumont Apartments, a Condominium, according to the Plat thereof and the Condominium Declaration therefor recorded in the records of Pitkin County, Colorado; and WHEREAS, the Owner and Chateau Chaumont Condominium Association, Inc. entered into an agreement dated May 13, 1999 (the "Agreement") regarding the imposition of certain restrictions upon the Property for the consideration recited in the Agreement; and VVIEREAS, the Owner has received the consideration set forth in the Agreement and is willing to memorialize the restrictions to be imposed upon the Property. NCW, THEREFORE, for and in consideration of the benefits derived by the Owner pursuant to the Agreement, the Owner agrees as follows: 1. Rgstrlctions Regarding Use. The Property shall not, by deed restriction, contract or any other form of covenant or commitment, be restricted for purchase, sale, use and/or occupancy for only employee housing, or for only resident occupied housing. or for only deed restricted employee housing, including, but not limited to, affordable housing or any other use which may subject the purchase, sale or use of the Property to the control of the Aspen/Pitkin County Housing Authority, or any other governmental agency which has any authority to control or affect the use or occupancy of the Property other than zoning and building code authorities. by way of example only, and not by way of limitation, this covenant shall include a prohibition against executing andlor recording deed restrictions or any other form of covenant against the Property intending to restrict the purchase, sale, use and/or occupancy of the Property to only employee or resident occupied units or otherwise intended to bring the purchase and sale of the Property under the auspices of the Aspen/Pitkin County Housing Authority; or any successor or related entity or the City of Aspen or the County of Pitkin, Colorado. This provision shall not preclude owners of the Property from selling the Property as a free market unit, to employers or others who may desire to lease their units to employees in accordance with the other terms hereof, not shall it preclude the i 111111nnisi 11111110101111111111111111111111111111111iNIN .. w =,.ee o ,.ae � a.aa P�rK.� COUNTY; Co sale of any unit to an "employee" or prospective "resident occupant". Rather, it only prohibits the creation of a deed restriction of other covenant that would preclude the sale of the Property as a free market unit to any prospective purchaser. 2 0 or Miti©ation Pu[ose5. No commitment or use of any nature shall directly or indirectly be made concerning, or of, the Property which satisfies or mitigates any governmental zoning, planning, housing or other requirement applicable to any land, building or portion of a building anywhere, or which has the direct or indirect intended or actual effect of increasing the value or sales price of any land, building or portion of a building anywhere. . 3 Roid�tial l�estri tc�ion. (a) Not more than one (1) person per legal bedroom in the Property shall reside in the Property at any time, except for (i) the owner of the Property and his or her family; (ii) bona fide short-term guests ("Rntal Guests") who rent the Property through a property management company which charges the owner of the Property a commission of not less than thirty five percent 35% of the gross amount of such rent; (M) between June Land September 1 in each s year, not more than two (2} ( ) persons per legal bedroom in the Property who each(a) not directly or indirectly employed on a part-time or full-time basis by or for any proprietorship or business or nonprofit organization or other entity, in PitkinCou tty Colorado, and (b) maintains his or her principal residence outside of Pitkin. y, Colorado, while residing in the Property; and (iv) a single family comprised of a person and his or her spouse and their children. (b) The Property shall have not more than three (3) bedrooms. 4 Pa d estrictlo . Each business operated from the Property, all all employees, visitors, customers, suppliers and others related to such business, a nd residents of the Property and their guests and visitors, shall be strictly prohibited from Chaumont p arking any vehicle in any Common Element parking space of the Chateau Apartments at any time, except that the owner of the Property and his or her family an Condominium Rental Guests may park a vehicle in a Chateau Chaumont ApartmentsC Element parking space in accordance with Chateau Chaumont Association, Inc. parking rules in effect from time to time. 5 a a e eas. The owner of the Property shall not directly or indirectly (i) seek approval from any governmental zoning,fanning, housing or other authority to make any change or alterationof any p lace of the Chateau kind whatsoever (a) to any Common Element parkR�sp fiction or (b) to the area on the umont Apartments, in existence on the date of this Deed , west side of the Chateau Chaumont Apartment building, which such building, or (ii} make g�which on the date of this Deed Restriction is used to store garbage containers which royal of any such authority, and any such change or alteration with or without thepp of 4 0.21.0eD0.00 H 0.00 PITKIN only sale of any unit to an "employee" or prospective "resident occupant". Rather, it the prohibits the creation of a deed restriction of other covenant that would preclude sale of the Property as a free market unit to any prospective purchaser. 2. a oi • •gation Purpn-M& No commitment or use of any nature shall directly or indirectly be made concerning, or of, the Property which satisfies or or other requirement applicable mitigates any govemmental zoning, planning, housing to any land, building or portion of a building anywhere, or which has the direct r indirect intended or actual effect of increasing the value or sales pace Y building or portion of a building anywhere. 3 Resi sfrirtinn. (a) Not more than one (1) person per legal bedroom in the Property shall reside in the Property at any time, except fo(,)Rthhetal owner of the Property and his or her family; (ii) bona fide short-term guestswhich Guests") who rent the Property through a property management nt company �percent charges the owner of the Property a commission of not lnes � land September 1 in each (35°l0) of the gross amount of such rent; (iii) between room in the Property who each {a} is year, not more than two (2) persons per legal b not directly or indirectly employed on a part-time or full-time basis by or for any proprietorship rietorship or business or nonprofit organization or other entity, in PitkinCC ty, principal residence outside of Pit County, Yr Colored©, and (b) maintains his or her Colorado, while residing in the Property; and (iv) a single family comprised of a person and his or her spouse and their children. b The Property shall have not more than three (3) bedrooms. 4. Parksn ctio . Each business operated from the Property, all io ees visitors, customers, suppliers and others related to such business, and all emp y , residents of the Property and their guests and visitors, shall be strictly prohibited fro parking any vehicle in any Common Element parking space of the Chateau her family and Apartments at any time, except that the owner of the Prone rtY Apartments Common Rental Guests may park a vehicle in a Chateau Chaumont Condominium Element parking space in accordance with Chateau Chaumont Association, Inc. parking rules in effect from time to time. a s o e ens. The owner of b' P e seek approval from any governmental the Property shall not directly or indirectly (i) PP tannin ,housing or other authority to make any change or alteration any zoning, p 9 lace of the Chateau Chaumont kind whatsoever (a) to any Common Element pad Re P fiction, or (b) to the area on the Apartments, in existence on the date of this Deed which on the' date of this Deed west side of the Chateau Chaumont Apart Restriction is use d to store garbage containers which service such building, or (ii) make n such change or alteration with or without the approval of any such authority, and ay 2" III"III1''""NN"I'IN LIIII the expense of removing snow from, and all maintenance of, any window wells, walkways or entrance to the Property on the west side of such building shall be borne by the owner of the Property, and shall not be an expense of the Association. 6. Pgnalties. The owner of the Property shall be subject to special assessment by Chateau Chaumont Condominium Association, Inc. of up to (i) One Hundred Fifty Dollars ($150.00) for each calendar day on which there has occurred any violation of the restrictions set forth in Paragraph 3 above; and (ii) One Hundred Fifty Dollars ($150.00) for each calendar day on which there has occurred any violation of the prohibition against vehicle pt king in the Chateau Chaumont Apartments Common Element parking space as set forth in Paragraph 4 above. 7. Prohil ition Against Legal Actions. The owner of the Property shall neither institute nor take any action which causes any person or entity to institute any legal or governmental proceeding which concerns the enforceability of the restrictions set forth herein on the purchase, sale, use and occupancy of the Property and the owner of the Property shall pay any and all legal and related expenses incurred by any owner of a Chateau Chaumont Apartment and by Chateau Chaumont Condominium Association, Inc., as incurred, in connection with any such proceeding, and any appeals of any orders or findings issues in any such proceeding, regardless of whether such restrictions are found to be enforceable on unenforceable. 8. �unctive gam. The owner of the Property agrees that irreparable damage would occur in the event that any of the provisions hereof were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that Chateau Chaumont Condominium Association, Inc. and any owner of a Chateau Chaumont Apartment will be entitled to an injunction or injunctions to prevent any breach of any provision hereof and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. 9. gfineys'lee . In the event of any litigation or arbitration between the parties arising from the terms of this Agreement, the prevailing party shall be entitled to collect all of its reasonable attorneys' fees, litigation expenses and court costs. 10. RunniC�.a Qf Befits and Burdens. All of the provisions of this instrument, including the benefit and burdens, shall run with the Property and shall be binding upon the successors and assigns of the owner of the Property. 11. 5evera__bili_ty. Should any part or parts of these restrictions be declared invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining restrictions set forth herein. -3- 431120 "III'IIII' 11111'IIIII101111111111111111 "I � a /fit/1peY 09:59O DEED pE5 DAVIS SILV} 3 e 4 R 21.00 D 0.00 H 0.e0 PIiNfN COUNTY CO 12 ParAgraph Headings, The paragraph headings in this instrument are for convenience only and shall not be construed to be a part of the restrictions contained herein. IN WITNESS WHEREOF, the undersigned Owner seal on the day and year first above written. STATE OF COLORADO } ) ss. CO,UNTY,G;F PITKIN Tie foregoing instrument was acknowledged before me this 13th day of May, 1999, by;., Dale Eubank. sod •., WiTNEU my hand and official seal. My comfnission expires: Ae., Za d Notary Public 11111111111 ngii ini 11111111111111111111111111111=JII � .v � a xi.en o e.ee n e.e¢ vmnx caurn CO ::oCWvpcoocs\CHCAG04NW190\1 -4-