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Home My WebLink AboutLand Use Case.219 E Durant Ave.0046.2017.ASLU0046.2017.ASLU 219 E DURANT Auc i ~ AN APPEAL/DANCING BEAR LODGE UNIT PH 20 2735 131 06 002 _-__~ -h 4 La n J 5/ IF \ FC--ur- -= - 1 . 0046.2017.ASLU 219 E DURANT Aug AN APPEAL/DANCING BEAR LODGE UNIT PH 20 ~ ~~' 2735 131 06 002 4 D .1 1 . t..1 U M SMEAD KEEPING YOU ORGANIZED No. 19555 A Safe SHIELI] COATED FASTENER TECHNOLOGY PATENT PENDING ~ SUSTAINABLE MIN RECYCLED ~ FORESTRY INITIATIVE CONTENT 10% Curtified Fiber Sourcing POSI-CONSUMER www.If,program.org MADE IN USA GET ORGANIZED Al SMEAD CUM .. RECEWED JUN 0 6 2017 CITY OF ASPE.N < COMMUNITY DEVELOPM911 THE CITY OF AspEN Land Use Application Determination of Completeness Date: June 5, 2017 Dear City of Aspen Land Use Review Applicant. We have received your land use application for 219 E. Durant, Appeal have reviewed it for completeness (and not compliance). ~F~Your Land Use Application iN complet.. Please submit the following to begin the land use review process. 1) Digital pdf of the entire application (via thumb drive, emailed files, or file sharing) 4- 2) Review deposit of$2,000.00 / 3) One additional hard copy of the application. px Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 it you have any questions. Thank-You, 0)2414--61~L Jennifer Pheran, Deputy Planning Director City of Aspen. Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights Notice Required New PD Yes - No-?C- Subdivision, or PD (creating more than 1 additional lot) GMQS Allotments Residential Affordable Housing Yes No 16 Commercial E.P.F. Lodging ili .. PATH: G/DRIVE /ADMINISTRATIVE/ADMIN/LANDUSE CASE DOCS THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0046.2017.ASLU PROJECT ADDRESS 219 E DURANT - DANCING BEAR PARCEL ID 273513106002 PLANNER BEN ANDERSON CASE DESCRIPTION HEARING OFFICER- APPEAL REPRESENTATIVE NEILEY LAW FIRM DATEOFFINALACTION 07.31.17 CLOSED BY ANGIE SCOREY 1.18.18 Â¤ Permits crte 20 / 7Â· 4-66(f - m Elle Edit Record Navigate Furm Reports Format Iab Hel p i @ 3â€¢x ,Â© e Lt ~ 1 ~_ " i El Â® 13.21 8. ~ i N 1 , >1 9 *1 1& lump 1 -: pjll iel elll t---- 7 9 2 0 2 9 0 1.Ii. 19-1 .9 # a g u, ., C ~Man~ Custom Fields ' Routing Status 1 Fee Summary- | 8gbons | Routing Mistory I - Permit type aslu | v A.spen Land Use 7~77 C046.2017.ASLU ~ Address 219 E DURANT |Â· ~ Apt/Suite PH-20 !5 Â·Â·*A - City ASPEN State CO , Zip 81811 - Permit Informa~on *0*,~~ 9 Master permit 1 ~ Routing queue aslu 15 | Applied Câ‚¬/06/2al 7 fli~ Project r. Status pending Approved G 1 Description APPLICATION FOR AN APPEAL WITH RESPECT To LODGE UNIT PH-2C, DANCING Issued 1 - LA- 1 BEA.R RESIDENCES ASPEN 4 HRS PLANNING STAFF TIME //AND 4 HOURS HEARING OFFICER TIME,' LOKATED IN THE FEES TAB Closed/Final 'i n, Submitted NEILEY LA *i FIRM. LLC Clock Running Days 1----4 Expires 06/01/2018 I, 0< 0 r El . Submitted via 1 - 41*56#ast,tthy- jA~.a~weldl=:,5 TW,FÂ·- u.i _/-3.223:15**1~ Owner ---- ,- 0 1 Last name DANCING BEAR I Â·Â· First name 411 S MONARCH ST -Â·------ - k Â· ASPEN CO 81â‚¬11 - :-..#Im,re i Phone () - Address c 2 Applicant . O Contractor is applicant? ~ Owner is applicant? k 1 | Last name DANCING BEA.R 1Â· Â· Â£ First name 411 S MONARCH ST ASPEN CO 81â‚¬11 Phone () - Cust # 3C684 Â· Address t '1 aC . I Email * Lender 5â‚¬ Last name 1 Â· , First name n* Phone () - Address et r!4 1 I I AspenG old5 [ server 1 ' Gibefar Fi6-,9~1 IT-8fi - -4-1 06* 21 5-25 9 40-de 9 4 +3 2 9 2. 1~2% Waxs li 1 0*t- u_.f ~0!n611 xoqlooll I sdnogwil .. HEARING OFFICE RULING This matter came before the undersigned hearing officer on July 20, 2017 regarding Applicants' appeal ofthe City ofAspen's Administrative Determination for the Chart House Lodge Planned Development issued on May 24,2017 (the "Administrative Determination"). The hearing officer makes the following findings and enters the following Decision: 1. Applicants are various LLC entities and the owners of all of the fractional shares in the Dancing Bear Residences ("Property") set forth in the Application for Determination of Applicability of Land Use Code Â§26.575.020.F.4.K. with respect to "Permanent Rooftop Amenities" (the "Application"). 2. The Chart House Lodge Planned Development was granted initial approval in 2005. In 2006, a Planned Development Plat was recorded. 3. A building permit application originally was submitted (presumably by a previous owner). That permit was issued (showing 2 hot tubs on the deck area surrounding the fourth floor penthouse unit) and construction began. This appears to be in the rough time frame of 2007. Subsequently, there was a hiatus during the construction phase. 4. Thereafter, various amendments to the project's approvals occurred. 5. Effective May 24,2014, Ordinance No. 7 (Series of2014) was adopted and approved by the City (the "Ordinance"). The Ordinance, Section 8, Chapter 26.575020.F.4.K., "...which section describes how to measure building heights..." sets forth, inter alia, allowed exceptions to height limitations. 6. The master building permit for the project was re-issued on March 9, 2015. 7. The project was issued a Certificate of Occupancy (C.O.) on June 15,2016. 8. The Property was acquired by the Applicants on or about December 5,2016. 9. On December 12, 2016. building permit 0130.2016.ARBK was submitted by the Applicants to the City of Aspen (the "Permit"). 10. The Permit included permanent amenities on the deck surrounding the Penthouse unit on the Property such as 3 hot tubs, gas fire rings, seating areas and other amenities. 11. The Permit was denied zoning approval on January 20,2017. 12. Thereafter, on March 16, 2017, the Application was submitted. 13. On May 24, 2017, the City of Aspen ("City") issued the Administrative Determination regarding the Application. 14. The Applicants appealed the Administrative Determination. 15. The appeal hearing was held on July 20,2017. Present for the Applicants was their attorney, Richard Neiley. Present for the City was Andrea Bryan, Ben Anderson and Jessica Garrow. 16. The parties submitted various documents to the hearing officer in connection with the appeal including, without limitation, the Application, the Administrative Determination, the Appeal Application, the Staff Appeal Memo, the Public Notice Affidavit, a Memo regarding various cases, etc. Many ofthe foregoing documents contained exhibits. At the hearing, various drawings also were provided: Fourth Level Floor Plan (12/19/14); Condominium Map (Bl 15, P83); Condominium Map (B115, P86); Condominium Map (Bl 15, P85); and Condominium Map (B1 15, P64). At the hearing, the parties agreed that these documents, in addition to the other documents previously provided, constituted all ofthe documents to be included in the record. The parties consented to the hearing officer proceeding with the hearing and agreed that the record was complete. .. 17. Each of the parties' representatives spoke and/or made presentations which the hearing officer has considered in addition to the record and the documents presented. 18. The parties agreed that the standard for review of the Administrative Determination is set forth in the Aspen Land Use Code Â§26.316.030. 19. The Applicants do not contend that the City denied them due process. In any event, there is no evidence of denial of due process. 20. The first issue relating to the appeal is whether or not the area surrounding the penthouse unit on the Property constitutes a "rooftop deck." 21. Both parties agree that "rooftop deck" is not a defined term in the City's Land Use Code. 22. The City contends that the surface and features on the roof of the third floor which are accessed from the fourth floor penthouse unit do, in fact, constitute a rooftop deck. The Applicants do not agree that the penthouse deck is a rooftop deck. Among other things, the Applicants contend that the term rooftop applies to the roof on top of the penthouse unit on the fourth floor of the building. 23. While the undersigned agrees that a deck on top of the penthouse roof on the fourth floor would constitute a rooftop deck, the undersigned also believes that a deck on a roof of another portion of the building likewise is a rooftop deck. 24. The undersigned finds that the term "rooftop" is not limited to only the highest roof on a tiered building. The undersigned believes that a tiered building has roofs on multiple levels. The undersigned further believes that a roof covered by a deck is "rooftop deck" whether it is on the highest roof or on a lower roof. .. 25. The Applicants then contend that the Ordinance is inapplicable. The Applicants contend that the Plat for the building/project, recorded in 2006, includes the deck area and that the original building plans showed two (2) hot tubs on the rooftop deck surrounding the Penthouse. Since the permit to construct the building per-dated the Ordinance, Applicants contend, in part, that the Ordinance does not apply. 26. The undersigned disagrees. The Permit at issue was submitted after the Ordinance was adopted. The Permit at issue also was submitted after the C.O. 27. Although the Applicants argue reliance on the recorded Plat, original permit, etc. and argue that money was expended designing appropriate features to build hot tubs, this "evidence" was, at best, sparse, based on assumptions, and inconclusive. 28. In addition, the change order to the master building permit submitted March 9,2016 presented drawings that did not show the rooftop deck amenities previously shown. Likewise, as set forth herein, the C.O. was issued on June 15,2016. It is undisputed that no hot tubs, fire rings, etc. were in place at the time of the C.O. It strains credulity to argue that the Applicants would not have been aware of the C.O. before their acquisition of the Property and, instead, only relied on a Recorded Plat. 29. The question, therefore, is whether the Ordinance applies in this case such that the permanent amenities on the rooftop deck must meet certain height and setback requirements. 30. The Ordinance pertains to building heights and how to measure building heights. As a result, there was a great deal of discussion regarding the height of the building. This lead to a discussion about what height requirements and limitations were applicable. The evidence established that the height for the project was limited to a building height of 46"6'. The rooftop deck at issue surrounding the penthouse unit is lower than the maximum height of the building by .. approximately 10 feet. The Ordinance does not address the allowed height of each floor. Rather, it pertains to the height of the building. 31. Section K ofthe Ordinance states, in its entirety as follows: k) Permanent Rooftop Amenities. Permanent rooftop amenities, such as built-in wet bars, built-in barbeque grills, cabinets, sinks, firepits, pools, hot tubs. etc. shall be permanently installed and shall meet the following height and setback requirements to qualify for a height exemption. This only applies to a mixed use, lodge, or commercial building located in the Commercial Core (CC) Zone District, Mixed Use (MU) Zone District, the Commercial (C-1) Zone District, the Lodge (L) Zone District, the Neighborhood Commercial (NC) Zone District, or the Commercial Lodge (CL) Zone District. Permanent rooftop amenities may extend up to five (5) feet above height of the building at the point the equipment is attached to the roof. This allowance is inclusive of any pad the equipment is placed on. A trellis with a maximum height of ten (10) feet and a maximum floor area of no more than 5% of the useable deck area is permitted. All permanent rooftop amenities shall be set back from any Street facing fa~a(le of the building by a minimum of ten (10) feet. 32. Section K is under the heading "Allowed Exceptions to Height Limitation". It pertains to permanent rooftop amenities -- i.e. amenities that are to be permanently installed. As an initial matter, there is no dispute that the amenities at issue - namely, hot tubs, gas fire rings, seating areas, etc. are permanent since they are going to be attached to the rooftop deck. It further is undisputed that, the improvements do not exceed the height of the building. The real issue is whether or not the proposed improvements are subject to the setback requirement of the Ordinance. 33. Section K then provides that permanently installed rooftop amenities shall meet height and setback requirement It...to qualify for a height exemption." 34. Applicants argue that the setback requirements would not be applicable since the Ordinance and Section K talk about height of the building /height exemptions and height of the building is not an issue. Applicants further contend that the purpose of the height exemption and setback provisions are to limit/minimize any visual impact and that there will be no visual impact .. from the street level because of design of the building. Thus, the Applicants argue that requiring setbacks should be inapplicable. Although the undersigned agrees that the logical intent of the Ordinance is that the height and setback requirements would minimize any visual impact to pedestrians or others at street level, this is not necessary to address given the fact that Section K expressly states that set back requirements must be met to qualify for a height exemption. That is, in my opinion, the overall intent and purpose of the Ordinance reading the Ordinance as a whole. The set back requirements in this Ordinance must be read in the context of (a) the Ordinance describes how to measure building heights; (b) Section K addresses an allowed exemption to building heights; (c) set back requirements must be met to qualify for a height exemptions (d) the amenities do not extend above the height of the building; and (e) this is not an application to qualify for a height exemption. 35. In this case, no height exception was sought. There is no dispute as to how to measure building heights. 36. Accordingly, the undersigned finds that the intent of this Section was to regulate permanent roof top amenities that would increase the maximum height requirements for the building. Then, if such amenities were proposed, the Ordinance sets forth that the permanent amenities could be exempt from height requirements if certain setback requirements were met. 37. The undersigned concludes that although the Ordinance was in effect at the applicable time, the Ordinance at issue does not apply in this case. It pertains to how building height (not floor height) is measured and allowed exceptions to height limitations. In this case, Applicants are not seeking a height exception and the City acknowledges that the maximum height ofthe building of 46'6" is not increased by the proposed amenities. .. 38. The undersigned is not rendering an opinion on vesting or vested rights. Rather, the undersigned believes that the Ordinance is being misconstrued and/or misapplied in this case by the City. Thus, the undersigned finds that because the Administrative Determination is grounded in a misconstruction and misapplication of the Ordinance, it is in excess of jurisdiction and, therefore, the Administrative Determination is reversed. DONE this 31St day of July, 2017. Hearing Officer Ted D. Gardenswartz 10 0 0 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: 2 1 q 9 ~Du.Â«4- Av-t , Aspen, CO SCHEDULED PUBLIC HEARING DATE: -1-R Aw-s 1.3.~ 2-0 920- 1 STATE OF COLORADO ) ) SS. County of Pitkin ) Ay\(4 6-LA â‚¬ COE'~~ (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 (ID of the Aspen Land Use Code in the following manner: ~ 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 fifteen (15) days prior to the public hearing. 21 copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of 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 on the day of , 20 , 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 ,Â·, f.n property. subject to the development application. The names and addresses of , ''.i/, A-,4 property owners shall be those on the current tax records of Pitkin County as they 3...:;i .mj,1 appeared no more than sixty (60) days prior to the date of the public hearing. A copy ofthe owners and governmental agencies so noticed is attached hereto. Neighborhood Outreach: Applicant attests that neighborhood outreach, summarized and attached, was conducted prior to the first public hearing as required in Section 26.304.035, Neighborhood Outreach. A copy of the neighborhood outreach summary, including the method of public notification and a copy Of any documentation that was presented to the public is attached hereto. (continued on next page) .. Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested, to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions, SPAs or PUDs that create more than one lot, new Planned Unit Developments, and new Specially Planned Areas, are subject to this notice requirement. 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 o f this Title, or whenever the text o f this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map 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. (44=4_ 9-~__72 Signatt#e The foregoing "Affidavit ofNotice" was acknowledged before me this 3 day Oil-3 , 202-, by 340lletÂ°' S:af .â‚¬-3 WITNESS MY HAND AND OFFICIAL SEAL My commission expires: 2115/00 4,0-4 0,01 ft*<A- Notary Public ' KAREN REED PATTERSON 1 NOTARY PUBLIC , STATE OF COLORADO NOTARY ID #19964002767 My Commission Expires February 15,2020 _ ATTACHMENTS AS APPLICABLE:-"--- â€¢ COPY OF THE PUBLICATION â€¢ PHOTOGRAPH OF THE POSTED NOTICE (SIGN) â€¢ LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BY MAIL â€¢ APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BY C.R.S. Â§24-65.5-103.3 THE Ci'rY oF Ag'EN NOTICE OF PUBLIC HEARING RE: ADMINISTRATIVE DETERMINATION APPEAL (Definitions and Allowed Exceptions to Height Limitations) NOTICE IS HEREBY GIVEN that a public hearing will be held on Thursday, July 20, 2017, to begin at 2:30pm. before the Administrative Hearing Officer, City Council Chambers, City Hall, 130 S. Galena St., Aspen, to consider an appeal of an Administrative Decision issued by the Community Development Director, submitted by Illinois Avenue, LLC, Indiana Avenue LLC, New York Avenue LLC, North Carolina Avenue LLC, Pacific Avenue LLC, Pennsylvania Avenue LLC, Tennessee Avenue LLC, and Vermont Avenue LLC, through their Manager, Mediterranean Avenue, LLC (collectively referred to as "The Applicant"), represented by Richard Y. Neiley Jr., Esq. of Neiley Law Firm, LLC. The determination being appealed found that proposed rooftop deck amenities at the Dancing Bear Residences, 219 E. Durant Ave., are subject to current regulations in the Land Use Code regarding height and setbacks. For further information, contact Ben Anderson at the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO 970.429.2765, (or by email Ben.Anderson@cityofaspen.com) Published in The Aspen Times on July 3, 2017. ~11~ - - 1/'ll. 16 ..re 4 ...# 4 Â¥ 1,1 .. -'ll, $./ I A - a.4 . A . I. ill Luxury Aspen Highlands Living Beds 4 1 Baths 7 1 $5,475,000 The best of the Aspen lifestyle awaits you! Explore spectacular biking and hiking trails and enjoy breathtaking views of Aspen Highlands from the ultimate destination home with generous spaces ideally suited for ' entertaining. Within steps of the Highlands ski lifts, this contemporary mountain design boasts a gracious 5,824 sq. ft. with four bedrooms plus a private office/fifth bedroom, five full baths, game and media room, gourmet kitchen, wine chillers, elevator, hot tub and heated two-car garage. Five minutes from Downtown Aspen and just a short walk to Aspen Schools and the Aspen Recreation Center. Complimentary in-town and airport transportation available. $5,475,000 Web Id# AN147338 BYHMMI GLOBAL .. ,1.1 BANKeR O LUXURY. .0 0 :0 --0.. ... MASON MORSE REAL ESTATE . 514 East Hyman Ave, Aspen I 970.925.7000 I www.masonmorse,com . OCCEIVED CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT u v,Â· . 6 2017 Agreement to Pay Application Fees CITY OF ASPEN An agreement between the City of Aspen ("ri ') and 0046.2017Â·*601 COMMUNITY DEVELOPMENT property mâ‚¬& ite'(t Cinâ‚¬â‚¬ibl ANIMÂ»* U..6 Phone No.: *Po 4 4 E Â·131 5 OwnÂ·e r ct]"):40<-6Â·4Njo #MI Â·5\Wl.0-*1*l6 Email46~\Aw tne'leMJa)Or' C.D,n Address of 2-0 19 â‚¬].-botc~udo '1WR.. Billing Property: Address: M 30 14 %813694 92--* 1 (Subject of 66,0/CO 91,11 (send bills here ) 6,\4'*bo AN<*p cei) jo \ application) I understand thatthe City has adopted, via Ordinance No., Series of 2011, review fees for Land Use applications and payment of these fees is a condition precedent to determining application completeness. I understand that asthe property ownerthat I am responsible for paying all fees for. this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $. flat fee for . $. flat fee for $. flat fee for . $. flat fee for For Deposit cases ohly: The City and I understand that because of the size, nature or scope of the proposed project it is not possible at this time to know the full extent or total costs involved in processing the application, i understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered bythe City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. Ihave read, understood, and agree to the Land'Use Review Fee Policy including consequences for no-payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render and application complete or compliant with a.pproval criteria. If actual recorded costs exceed the initial deposit, 1 agree to pay additional monthly billings to the City to reimburse the City forthe processing of my application atthe hourly rates hereinafter stated. $ 'DJ)043 ~ deposit for l,~- 1â€ž'~0~ours of Community Development DÂ£pdrtment staff time, Additional time above the deposit amount will be billed at $325.00 per hour. 4411~ A Â¢ puwU 10% 41â‚¬af\A/~ $6617\UN' 41Â¥rÂ© depositfor hours of Engineering Dep#Alt staff time. Additional time above the deposit amount will be billed at $325.00 perhour. CityofAspen: Propgrty,Owner: 1 I MÂ·et l'fetr#Man 0%*l Lt,C, 6 Jessica Garrow, AICP â‚¬W+6044 51\01\( 0-(*14 Community Development Director Name: AoltakdllÂ· Alt&4~ 4-4, .1 City Use: Title: 511%113 Fees Due: $ Received $ -2000 00 March, 2016 Citv of Agen I 130 S. Galena St. I (970) 920 50 - 0 , [d .. CITY OF ASPEN Permit Receipt THE CITY OF ASPEN RECEIPT NUMBER 00043252 Account Number:30684 Date: 6/6/2017 Applicant: DANCING BEAR Type: check # 21509 Permit Number Fee Description Amount 0046.2017.ASLU Planning Hourly Fees 1,300.00 0046.2017.ASLU Hearing Officer Fee 700.00 Total: $2,000.00 .. MEMORANDUM TO: Ted Gardenswartz, City of Aspen Administrative Hearing Officer FROM: Jessica Garrow, Community Development Director Ben Anderson, Planner RE: Appeal of Administrative Determination - Rooftop Deck Amenities Dancing Bear Residences, 2 l 9 E Durant Ave. HEARING DATE: July 20,2017 COPY TO: Andrea Bryan. Assistant City Attorney APPLICANT: Illinois Avenue, LLC, Indiana Avenue LLC, New York Avenue LLC, North Carolina Avenue LLC, Pacific Avenue LLC, Pennsylvania Avenue LLC. Tennessee Avenue LLC, and Vermont Avenue LLC, through their Manager, Mediterranean Avenue, LLC (collectively referred to as "The Applicant") REPRESENTED BY: Richard Y. Neiley Jr., Esq. ofNeiley Law Firm, LLC STAFF RECOMMENDATION: Staffrecommends that the Administrative Determination, issued by the Community Development Director on May 24,2017, regarding rooftop deck amenities at the Dancing Bear Residences (219 E. Durant Ave.) be affirmed. SUMMARY: The Land Use Code (LUC) assigns responsibility to the Community Development Director to make determinations from time to time about the relationship between the Common Development Procedures found in the LLC. other applicable sections of the LUC, and site specific development processes, timelines, and conditions. This is a formal process, in which an applicant completes a Land Use Application requesting an Administrative Determination, a determination is issued, and if the applicant for the determination or any other affected entity do not agree with the issued determination, affords the right to appeal the decision to the City of Aspen's Administrative Hearing Officer. An application for an Administrative Determination of the definition of a rooftop deck and the applicability of LlJC language to proposed amenities on the rooftop deck at the Dancing Bear Residences was received from Richard Y. Neiley Jr., Esq, on March 16, 2017 in response to a Zoning Review finding that proposed rooftop amenities in the final tenant finishes to the penthouse lodge unit would not be able to meet current requirements of the LUC. Specifically. the proposed hot tubs, fire features and outdoor kitchen would not comply with setback requirements for rooftop Appeal ofAdministrative Determination Dancing Bear Residences Page 1 of 7 .. amenities. The determination request challenged the Zoning Officer's interpretation of these features and disputed that the proposed deck amenities are subject to 26.575.020.D.4.1; Permanenl Roofjop Amenities because (summary and paraphrase): 1) The penthouse deck is not a "rooftop deck" 2) The proposed amenities were approved as part of the original Planned Development Approvals and included in subsequent PD Amendments and building permits and are therefore, not subject to the LUC update in 2014 that included the language regulating rooftop amenities. 3) The overall approved height of the building (46 feet. 6 inches) is not exceeded by the proposed deck amenities - therefore the Exceptions to Height Limitations code language does not apply. The Determination (Exhibit K) was issued on May 24,2017 and determined the following: 1) That the surface and features on the roof of the 3rd floor and accessed from the 4{h floor penthouse unit do in fact constitute a rooftop deck and are Permanent Rooftop Amenities. 2) The proposed roof top amenities submitted in the building permit 0130.2016.ARBK (submitted 12/12/2016) are subject to the language from the LUC in Section 26.575.020.D.4.1; Allowed Exceptions to Height Limitations, Permanent Rooftop Amenities. (See specific language below from Ord. 24, Series of 2014) 3) While the proposed amenities are below the total allowed height of the building (46 feet, 6 inches) to the top of the setback 4th floor, the proposal for the building also represented a maximum height for the 3rd floor (37 feet) - as this is the most prominent mass of the building as viewed from the street. The proposed rooftop amenities would extend beyond the height of this 3rd floor. These findings together confirm that the action taken by Jim Pomeroy, Zoning Officer in denying the proposed rooftop amenities was justified and that future proposed roof top amenities must conform with Section 26.575.020.D.4.1. An Application for an Appeal of the Administrative Determination was received from the Applicant on June 6,2017. BACKGROUND: The Chart House Lodge Planned Development (later becomes the Dancing Bear Residences) was granted initial approval by Ordinance No. 32 (Series of 2005) (Reception No. 516050) on July 11, 2005. The approvals granted Subdivision, Timeshare, Mountain View Plane, and Growth Management Quota System approvals for a mixed-use project inclusive of the development of eleven (11) timeshare lodge units with twenty-one (21) rentable keys, two (2) affordable housing units, net leasable area. and 27 parking spaces. The original approval was vested through September 2008. Iii 2006, a Planned Development Plat was recorded at Book 77, Page 62 (Exhibit Appeal of Administrative Determination Dancing Bear Residences Page 2 0 f 7 .. A). The recorded floor plan of the fourth floor includes the surrounding deck area. The area in question does not show any permanent amenities. A building permit application (0037.2007.ACBK) was submitted pursuant to the plat and ordinance during the vesting period. The building permit was issued. and construction began for the project. The building permit showed two hot tubs on the rooftop deck that surrounds the fourth floor lodge unit. Due to the recession: construction was halted because of financing issues. City Council Resolution -No. 78 (Series of 2010) (Exhibit B) extended both the 2007 building permit and the vested rights through June 30,2014. During the extended vesting period, several amendments to the project's approvals occurred. A Planned Development Amendment was approved May 20. 2014 by the Planning and Zoning Commission via Resolution No. 8 (Series of 2014). Although the plan sets provided by the architect show hot tubs on the roof top deck adjacent to the fourth floor lodge unit, the scope of the approvals are solely on the internal configuration ofthe building and the exterior materials of the building (Exhibit C) as outlined in the resolution. There are no fire features depicted on the drawings associated with the amendment. The development order issued for the approval of the Amendment notes that it is subject to the vested rights period that was outlined in Resolution No. 78 (Series of 2010) and would expire June 30.2014 (Exhibit D). Also in 2014, an amendment to the LUC provided definition to how permanent roof top amenities, including spas and fire features relate to building height. Ordinance No. 7, Series of2014, effective May 28,2014, amended Sec. 26.575.020.F.4, Allowed Exceptions to Height provision of the land Use Code. adding requirements to the exceptions to permitted height regarding permanent roof- deck amenities. The project was not subject to this new provision during the vesting period. Adopted Language (Ord. 24, Series 2014) (Current Section: 26.575.020.D.4.1) Permanent rooftop amenities, such as built-in wet bars, built-in barbeque grills, cabinets, sinks, fire pits, pools, hot tubs, etc. shall be permanently installed and shall meet the following height and setback requirements to qualify for a height exemption. This only applies to a mixed use, lodge, or commercial building located in the Commercial Core (CC) Zone District, Mixed Use (MU) Zone District, the Commercial (C-1) Zone District, the Lodge (L) Zone District. the Neighborhood Commercial (NC) Zone District. or the Commercial Lodge (CL) Zone District. Permanent rooftop amenities may extend up to five (5) feet above height of the building at the point the equipment is attached to the roof. This allowance is inclusive of any pad the equipment is placed on. A trellis with a maximum height of ten (10) feet and a maximum floor area of no more than 5% ofthe useable deck area is permitted. All permanent rooftop amenities shall be set back from any Street facing faeade of the building bv a minimum of ten (10) feet. (Emphasis added) The master building permit for the project (0037.2007.ACBK) was re-issued on March 9, 2015 and subsequently, additional land use approvals and change orders were applied for by the property owner. Appeal of Administrative Determination Dancing Bear Residences Page 3 of 7 .. An Insubstantial Planned Development Amendment was administratively approved and recorded on October 14, 2015 as Reception No. 624103 (Exhibit E). The amendment solely allowed for modification to the exterior railing materials for railings on multiple levels of the building. Nothing in the written request or approval addressed hot tubs or fire features. Change order 0008.2016.ACGR was submitted by the applicant requesting amendments to the active building permit. The change order requested approval for different finishes within the fourth story (penthouse) lodge unit rather than completing the finishes outlined in the original 2007 permit. The drawings (Exhibit F) submitted with the change order do not depict hot tubs. fire features. or any other permanent amenities on the roof-top deck and represents requested changes to the 2007 permit. The permit for this change was issued on March 24,2016. The entire project (under Master Permit 0037.2007.ACBK and including the change order described above) was issued a Certificate of Occupancy on June 15, 2016 (Exhibit G). The project's statutory vested rights ended on June 30,2014 and common law vesting ended when the permit was closed and the project received a Certificate of Occupancy (CO). See C.R.S. 24-68- 101 et seq. Aspen Mun. Code Sec. 26.308.010; Villa at Greeley, Inc. v. Hopper, 9\7 P.2d 350 (Colo. Ct. App. 1996) .Jordan-Arapahoe, LLP v. Bd. of County Com'rs of County of Arapahoe. Colo. 633 F.3d 1022 (10th Cir. 2011). No hot tubs. fire features, or any other permanent amenities on the roof-top deck were in place at the time of the issuance of the CO. Building Permit 0130.2016.ARBK was submitted on December 12, 2016 and included interior tenant finishes for the penthouse, and the proposed rooftop amenities that were denied during Zoning Review. BASIS FOR ADMINISTRATIVE DETERMINATION: 1. The structure and features on the roof of the 3rd floor of the building are a roof top deck The Administrative Determination relied on definitions found in the LUC ("Deck") and the Merriam Webster Dictionary ("Roof-deck" and "Roof") to establish that the area that serves as the roof for the 3rd floor and accessed via the 4th floor penthouse is in fact a "Roof Top, or Roof Deck. 2. The proposed Permanent Rooftop Amenities are subject to Section 26.575.020.D.1 Original and subsequently submitted plans for the 4th floor and the related rooftop deck did show permanent rooftop amenities including at least two hot tubs. an outdoor kitchen, and at least one fire feature. Most specifically, subsequent approvals for two PD Amendments (Exhibits C and E) and Amended Condominium Plat (Exhibit H) do show the rooftop amenities in question. However, neither the PD Amendments nor Condominium Plat change the vesting period of the approval, nor is the topic of the amendments/changes related to the roof top amenities, nor does the Condo Plat preclude a project from complying with other aspects of the LUC. Had these rooftop features been built during the vesting or extended vesting period, the features would not have been subject to the code language that limited Permanent Roof Top Amenities that became effective in 2014. (See Aspen Mun. Code Sec. 26.308.010.) However, once a change order to a building permit was submitted that removed these features and a Appeal of Administrative Determination Dancing Bear Residences Page 4 0 f 7 .. Certificate of Occupancy was issued for the master building permit that included the change order, the vested rights for the project expired. Any proposed additions to the roof top deck are now subject to the LUC at the time of submission of building permit. 3. The height of the 3rd floor is an established height in the Chart House (Dancing Bear) Planned Development. In the negotiations for a Planned Development, many different factors are taken into consideration that allow for dimensions of a project that may differ from that of allowed underlying zoning. In this case, careful consideration was given to the massing of a building. While the maximum height of the 4th floor penthouse unit was 46 feet, 6 inches, the height of the 3rd floor roof was also given careful attention and was approved at 37 feet (Exhibits I and J) This height is important because it represents the primary mass of the building as perceived from the street. The proposed rooftop features would add to this height. The whole point of the language in 26.575.020.D.4.1 is to reduce the impact of rooftop amenities in increasing the perceived mass from the street. Together, these findings establish the basis for the Determination. STANDARD OF REVIEW: Section 26.316.030(E) reads as follows: Standard of review. Unless otherwise specifically stated in this title, the decision-making body authorized to hear the appeal [Administrative Hearing Officerl shall decide the appeal based solely upon the record established by the body from which the appeal is taken [Community Development Director]. A decision or determination shall not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. The Land Use Code does not define the terms: "a denial of due process," "exceeded its jurisdiction," or "abused its discretion." Court cases, however, have helped define these terms as follows and may be used by the administrative hearing officer in its deliberation ofthe appeal: A denial of due process may be found if some procedural irregularity is determined to have occurred that affected a significant right of the appellant, or the administrative body otherwise acted in violation of the appellant's constitutional or statutory rights. AdHoc Executive Committee of Medical Staff of Memorial Hospital v Runyan, 716 P . ld 465 (Colo. 1986.) A decision may be considered to be an abuse of discretion if the "decision of the administrative body is so devoid of evidentiary support that, it can only be explained as an arbitrary and capricious exercise ofauthority." Ross v Fire and Police Pension Ass'n., 713 P ld 1304 (Colo. 1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959). A decision may be considered to be in excess ofjurisdiction if the decision being appealed from "is grounded in a misconstruction or misapplication ofthe law," City of Colorado Springs v Givan. 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not within the authority of Appeal of Administrative Determination Dancing Bear Residences Page 5 of 7 .. the administrative body to make. City Of Colorado Springs v Sect{reCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000). STAFF COMMENT: 1) Due Process - After a Certificate of Occupancy was issued for the master building permit for the project, a new building permit was submitted that included rooftop elements that were in conflict with provisions of the LUC. The applicant challenged the denial of the building permit by the Zoning Officer by formally requesting an Administrative Determination. The issue was researched and the decision for denial was confirmed by the determination. The determination was issued and publicly noticed. Information regarding the Appeal Process was forwarded to the Applicant. The Application for the Appeal was received within 14 days of the issuance of the determination. The Appeal was publicly noticed. Therefore, proper procedural due process has been provided. In making the initial decision, the Zoning Officer referred to the LUC provisions regarding rooftop amenities in place at the time of building permit submission. He used existing code language because vested rights from the previous approvals had expired. The Administrative Determination confirmed this decision. Staff' s reliance on applicable code language, timeline of approvals, and expiration of vested rights, provide substantive due process. This was not an arbitrary decision and there is no evidence that the applicant's constitutional rights or statutory rights were violated. 1) Discretion - The initial decision by the Zoning Officer and the Determination issued by the Community Development Director were based on the application and interpretation of Aspen's LUC and applicable Colorado law, evidence of the history of the development project, the associated approvals. and most importantly, the fact that the vested rights had expired at the issuance of the Certificate of Occupancy. As such, neither the initial denial of the rooftop amenities, nor the subsequent determination were arbitrary or capricious. 31 Jurisdiction - The Director's jurisdiction (defined by 26.210) includes the ability to make decisions regarding the Measurements and Calculations section of the LUC. This function is at the heart of all zoning reviews of development projects. The initial decision by the Zoning Officer and the determination by the Director confirming the decision are both necessary components of the Director's authority. Further, the Director's determination is supported by the provisions of Aspen's LUC and Colorado statutes and case law. Accordingly, the director's decision was not in '~excess ofjurisdiction. ACTIONS FOLLOWING APPEAL HEARING: Section 26.316.030(F) reads as follows: Action by the decision-making body hearing the appeal. The decision-making body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, ifthe decision is modified, shall be deemed to have all the powers ofthe officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by resolution. All appeals shall be public meetings. Appeal of Administrative Determination Dancing Bear Residences Page 6 of 7 .. CONCLUSION: Staff finds the Director's Administrative Determination was rendered ethically, provided procedural and substantive due process. and did not exceed jurisdiction or abuse discretion. Staff recommends the Administrative Hearing Officer affirm the Director's determination. EXHIBITS: Exhibit A: Planned Development Plat (Fourth Floor) (2006) Exhibit B: Resolution No. 78 (Series of 2010) - Extension of Vested Rights Exhibit C: Resolution No. 8 (Series 2014) - Planned Development Amendment Exhibit D: Development Order for Resolution No.8 (Series of 2014) Exhibit E: Insubstantial Planned Development Amendment (2014) Exhibit F: Change Order Permit and Drawings, 0008.2016.ACGR Exhibit G: Certificate of Occupancy, June 15, 2016 Exhibit H: Amended and Restated Condominium Map (2016) Exhibit I: Staff Memo Planned Development Approval - Dimensional Table (2005) Exhibit J: Approved Plans, Planned Development Approval (2005) Exhibit K: Administrative Determination (May 24,2017) Appeal of Administrative Determination Dancing Bear Residences Page 7 of 7 .. EJOLE Y Â£71,1, *** 004-6.20/7 -AS l-.4 ATTORNEYS & COUNSELORS AT LAW RICHARD Y. NEILEY JR. June 1, 2017 RECEIVED VIA OSM DELIVERY JUN 0 6 2017 Jessica Garrow CITY OF ASPEN Community Development Director C(*UNTY DEVELOPMENT City of Aspen 130 South Galena Street, Third Floor Aspen, CO 81611 RE: NOTICE OF APPEAL Administrative Staff Determination, PID 273513106016, Appeal of a Determination of the Staff of the Aspen Community Development Department with Respect to Lodge Unit PH-20, Dancing Bear Residences Aspen, 219 East Durant Avenue Dear Jessica: Please accept this correspondence and the attachments as a Notice of Appeal of the City of Aspen's Administrative Determination for the Chart House Lodge Planned Development (the "Dancing Bear Residences") issued on May 24, 2017, pursuant to Chapter 26.316, Appeals, of the City of Aspen Municipal Code. We represent the property owners of all of the fractional interests in Lodge Unit PH-20, Dancing Bear Residences Aspen. The identity of all of the fractional interest property owners is set forth in the Certificate of Ownership appended hereto. In accordance with the City of Aspen's appeal procedures, we hereby request a review of the Administrative Staff Determination before the City of Aspen Administrative Hearing Officer. In accordance with the appeal procedures, this appeal is being submitted within 14 days of the date of the Determination and is subject to a hearing before the Administrative Hearing Officer "within thirty (30) days of the date of filing the Notice of Appeal or as soon thereafter as is practical under the circumstances." Inasmuch as the issues raised in this appeal impact pending construction under an existing building permit, we request that the appeal hearing be set as expeditiously as possible. ISSUES IDENTIFIED FOR APPEAL The property owners identify all of the issues set forth in their Application for Determination of Applicability of Land Use Code Section 26.575.020.F.4.k with Respect to "Permanent Rooftop Amenities" (appended hereto as Attachment 1) and the City of Aspen's Community Development Department Administrative Determination dated May 24, 2017 (appended hereto as Attachment 2). Please respond to: 6800 Highway 82, Suite 1 â€¢ Glenwood Springs, CO 81601 â€¢ 970-928-9393 Email: aspenlaw@neileylaw.com Aspen office: 410 East Main Street, Suite 240 â€¢ Aspen, CO 81611 â€¢ 970-925-9393 'fe== .. Jessica Garrow Community Development Director City of Aspen June 1, 2017 Page 2 Without limiting the foregoing, the property owners challenge and appeal the City of Aspen's Determination that the deck surrounding the Dancing Bear Penthouse constitutes a 'rooftop deck"; that the referenced section of the Land Use Code regarding "permanent rooftop amenities" applies to the project; that the project's vested rights have expired; and that the Maximum Height Exemption code language applies to the proposed Penthouse deck amenities. The property owners specifically designate vested rights legislation and case law in connection with this appeal, including City of Aspen Land Use Code Sections 26.304.080 and Chapter 26.308; Colorado Revised Statutes Â§24- 68-101, et seq.; and applicable case law, including without limitation Gramiger v. Pitkin County, 794 P.2d 1045 (Colo. App. 1989), Villa of Greeley, Inc. v. Hopper, 917 P.2d 350 (Colo. App. 1996), and all other applicable laws and regulations. DESIGNATION OF RECORD ON APPEAL The property owners designate the following as the record on appeal: 1. The property owners' Application appended hereto as Attachment 1, including all attachments and exhibits appended thereto (Attachment 1 to this Notice of Appeal does not include all of the documents appended to the original Application). 2. The City of Aspen Community Development Department Administrative Determination dated May 24, 2017 appended hereto as Attachment 2, including all documents and exhibits appended thereto (Attachment 2 to this Notice of Appeal does not include all of the documents appended to the original Administrative Determination). 3. Any and al] other documents, exhibits, permits and all correspondence, notes and other documentation maintained by the City of Aspen in the case file in connection with the property owners' Application in the City of Aspen's Administrative Determination. LIST OF ATTACHMENTS TO THIS NOTICE OF APPEAL 1. Application for Determination of Applicability of Land Use Code Â§26.575.020.F.4.k with Respect to "Permanent Rooftop Amenities" (excluding attachments). 2. City of Aspen Community Development Department Administrative Determination for the Chart House Lodge Planned Development dated May 24, 2017 (excluding attachments). 3. Certification of Ownership. 4. Letter of authorization dated February 24, 2017. 5. City of Aspen Pre-Application Conference Summary dated May 24, 2017. .. Jessica Garrow Community Developrnent Director City of Aspen June 1, 2017 Page 3 6. Homeowner Association Compliance Policy dated May 28, 2017. 7. City of Aspen Community Development Department Agreement to Pay Application Fees, dated May 28, 2107. Please contact me at your earliest convenience to schedule the Appeal before the Administrative Hearing Officer. Thank you for your attention to this matter. \~~truly yours, EfdY LAW FIRM, LLC %-0 ichard Y. Neiley, Jr. Attachments cc: Mediterranean Avenue, LLC/Property Owners .. ATTACHMENT 1 .. RECEIVED JUN 0 6 2017 CITY OF ASPEN COMMUNITY DEVELOPMENT APPLICATION FOR DETERMINATION OF APPLICABILITY OF LAND USE CODE Â§26.575.020.F.4.k WITH RESPECT TO "PERMANENT ROOFTOP AMENITIES" Lodge Unit PH-20, Dancing Bear Residences Aspen 219 East Durant Avenue Aspen, Colorado 81611 PROPERTY OWNERS/APPLICANTS: R.EPRESENTATIVE: Illinois Avenue, LLC Richard Y. Neiley, Jr. Indiana Avenue LLC Neiley Law Firm, LLC New York Avenue LLC 420 East Main. Street, Suite 240 North Carolina Avenue LLC Aspen, CO 81611 Pacific Avenue LLC 6800 Highway 82, Suite 1 Pennsylvania Avenue LLC Glenwood Springs, CO 81601 Tennessee Avenue LLC (970) 928-9393 Vermont Avenue LLC aspenlaw@neileylaw. com c/o Mediterranean Avenue LLC 623 East Hopkins Aspen, Colorado 81611 (970) 920-1280] aspenstarwood@gmail.com PROPERTY: Lodge Unit PH-20, Dancing Bear Residences Aspen, according to the Amended and Restated Condominium Map, recorded September 19, 2016 in Plat Book 115 at Page 64 City of Aspen, State of Colorado Parcel ID No. 273513106016 .. APPLICATION FOR DETERMINATION OF APPLICABILITY OF Â§26.575.020.F.4.k WITH RESPECT TO "PERMANENT ROOFTOP AMENITIES" Introduction The Applicants, Illinois Avenue, LLC, Indiana Avenue LLC, New York Avenue LLC, North Carolina Avenue LLC, Pacific Avenue LLC, Pennsylvania Avenue LLC, Tennessee Avenue LLC and Vermont Avenue LLC, through their Manager, Mediterranean Avenue, LLC, and legal counsel, Richard Y. Neiley, Jr., seek an administrative determination of the Community Development Director of the City of Aspen regarding the applicability of Land Use Code Â§26.575.020.F.4.k (Attachments 1 and 2) with respect to "permanent rooftop amenities" for its real property described as Lodge Unit.PH-20, DancingÂ·Bear Residences Aspen, 219 East Durant, Aspen, Colorado.Â· The Applicants are the owners of all of the fractional shares in Lodge Unit PH-20, Dancing Bear Residences Aspen, the penthouse unit on the Dancing Bear Residences building located at 219 East Durant, Aspen, Colorado. The building is fully constructed and the penthouse is complete with the exception of interior finishes and the installation of finishes and amenities on the deck surrounding the penthouse. After purchasing all of the fractional interests in the penthouse, the Applicants, through their general contractor and architect submitted plans for the installation of the finishes to the penthouse and the surrounding deck (Attachment 3). The proposed amenities on the deck include three (3) hot tubs, two (2) on the south side of the deck and one (1) on the north side, as well as two (2) gas fire rings, seating areas and other amenities. The proposed improvements will not result iii the alteration of the penthouse structure or building exteriors. The proposed amenities will not be visible from street level. The City Zoning Officer, Jim Pomeroy, reviewed the Building Permit Application and concluded that the deck surrounding the penthouse was a "rooftop deck" and that, as a consequence, the provisions of Chapter 26.575.020.F.4.k require that all amenities on the deck be set back at least ten (10) feet from the fagade of the building. Mr. Pomeroy, therefore, would not approve the plans for the installation o f amenities on the deck, as submitted. The Applicants seek an administrative determination rejecting and reversing Mr. Poineroy's conclusion with respect to the amenities on the penthouse deck. Specifically, the Applicants do not agree that Chapter 26.575.020.F.4.k, which is within the Land Use Code Section entitled "Measuring Building Heights," applies to the installation of amenities on the penthouse deck. The Applicants do not agree that the penthouse deck is a "rooftop" deck. The Applicants further take the position that even if the referenced Code Section would otherwise apply to similarly situated,decks, it does not apply to the penthouse deck because the specific PUI) approvals granted by the City of Aspen in connection with the development of the Dancing .. Bear Residences building, and specifically the penthouse and deck, permit the location of the deck amenities as proposed by Applicants. Because PUD amendments were approved after the adoption of Section 26.575.020.F.4.k, those PUD approvals govern the placement of amenities on the penthouse deck. The first of the three issues for administrative determination identified by Mr. Pomeroy in the Pre-Application Conference Summary (Attachment 13) is "Because the original project was finished, and the vesting had expired, the new permit needed to be judged under the current Land Use Code at the time ofpermit submittal." First, Ordinance No. 32, Series of 2005, recorded as Reception No. 516050 (Attachment 5), the initial approval of the Chart House Lodge PUD (now Dancing Bear Residences), established the dimensional requirements for the project limiting the building height to 46'6". There is no separate designated building height for the penthouse deck on the fourth floor or for the surrounding parapet wall or railings. As part of the approval process, the developer was obligated to reduce the size of the penthouse and set it back from the faGade ofthe building. This was based on plans that were submitted, reviewed and approved that created the deck on the penthouse level. There are no restrictions on what call be located on the deck or the imposition of setback requirements for amenities in Ordinance No. 32. As required by the Ordinance, a Planned Unit Development Agreement was entered into on February 15,2006, recorded as Reception No. 520961 (Attachment 6), that confirmed the 46'6" height limitation and established building setbacks. It did not impose any height limitation for the penthouse deck, parapet wall or railings or establish any setback requirements for amenities on the deck. PUD amendments were granted with respect to the penthouse deck acknowledging the location of hot tubs and approving fat:ade railings specifically to accommodate the location of hot tubs after the adoption of Ordinance No. 7, Series of 2014 that established the permanent rooftop amenities setback requirements. As such, the City has already acknowledged that the setback requirements for rooftop decks do not apply to the penthouse deck. The Applicants relied on these recorded approvals when they purchased their interests in the penthouse. The PUD amendments have not expired, no changes to the Land Use Code have been enacted since the PUD amendments were approved, and the Applicants are, therefore, entitled to locate the deck amenities in accordance with their proposed plan. On April 28, 2014, the City adopted Ordinance No. 7, Series of 2014 (Attachment 2), that implemented the provisions for"Allowed Exceptions to Height" including maximum heights and required setbacks for rooftop amenities to qualify for a height exemption. On May 20, 2014, the Planning and Zoning Commission adopted Resolution No. 8, Series of 2014, recorded as Reception No. 611040 (Attachment 7), approving a PUD Amendment to the Chart House Lodge (now Dancing Bear Residences) approvals granted by Ordinance No. 32, Series of 2005 that authorized, among other things, changes to the exterior fagade and the railings on the fourth floor (penthouse level) of the building. That Resolution 2 .. attaches floorplans and elevations for the building that include at Sheet A3.5 the penthouse floor plan. That sheet depicts two (2) hot tubs adjacent to the parapet and railing on the south side of the deck. The hot tubs are not set back 10' from the fa,?ade and are in the locations where they are proposed to be installed today. The Planning and Zoning Commission did not treat the penthouse deck as a "rooftop" deck and specifically approved the location of tile hot tubs adjacent to the parapet and railing as evidenced by the recorded Resolution. On May 22, 2015, the City Community Development Director approved an Insubstantial Planned Unit Development Amendment for the Chart House Lodge PUD, recorded as Reception No. 620089 (Attachment 8) that allowed for a change in the building railings and that attached elevations depicting the changes. The elevations include Sheet A5.0 that depicts the south fagade of the building and includes an elevated railing at the penthouse level with the notation "raised glass rail at hot tub." This is the same hot tub depicted on the floor plan attached to Resolution No. 8, Series of2014, as Sheet No. A3.5. On October 14, 2015, the City Community Development Director approved an additional Insubstantial Planned Unit Development Amendment for the building, recorded as Reception No. 624103 (Attachment 9) that further clarified the railings on the building and attached elevations depicting the changes. The elevations include the south and north facades of the building at Sheets A5.0 and A5.1, respectively, that depict elevated railings in two (2) locations on the south fai:ade and one (1) location on the north fai:ade of the penthouse level. The elevations ihclu(le the notation at all three (3) elevated railing locations "raised glass rail at hot tub." These raised glass rails are in the locations exactly where the Applicants now seek to install the hot tubs. The raised railings would not be needed unless the hot tubs were adjacent to the facades. In neither Insubstantial PUD Amendment did the Community Development Director treat the penthouse deck as a 'tooftop" deck or require that railing heights or amenity locations comply with the setback requirements of Section 26.575.020.F.4.d. or k. The building was constructed based upon the approved plans that included the raised parapet wall and railings for the hot tubs on the penthouse level as well as penetrations in the deck to accommodate the necessary natural gas and electrical connections for the deck amenities adjacent to, or closer than 10' from, the faGade. The railings are ill the same plane as the building fagade and are not set back at all. After the building was completed, the developer prepared and submitted to the City for approval a Condominium Map that was approved on September 14 and 16, 2016 and recorded at Plat Book 115, Page 64. That Map, at Book 115, Pages 83,85 and 86, identifies the exterior area Surrounding the penthouse as a "ratio" not a "rooftop deck." At Page 85, the Map depicts the elevations of the building and on both the south and north elevations the raised parapet walls and railings for the hot tubs are depicted. (The cover page and page 85 of the Condominium Map, Sheets 1 and 22, are appended as Attachment 10.) As of September of2016, the City continued to recognize that the penthouse deck, parapet walls and railings had been built as approved and were not being treated as a "rooftop" deck. 3 .. The City is now attempting to change (or simply disregard) the prior approvals by imposing a definition of the penthouse deck that is inconsistent with all prior approvals. The building was constructed based on plans that allowed the hot tubs to be located adjacent to the fai:ades and that did not treat the penthouse deck asa "rooftop deck" for setback purposes. The Applicants also point out the "rooftop" deck regulations that are in question were designed to minimize visual impacts from street level. In this instance, there are no visual impacts as the parapet wall on the penthouse level completely Â·screens all amenities from street level view. (See photographs of the building, Attachment 4.) The penthouse deck is not a "rooftop deck." The second issue identified for administrative determination by Mr. Pomeroy is: "That the wrap around deck was considered a 'roof-top deck' because it was built oil top of living space." The Applicants do not agree that the penthouse deck is a "rooftop deck" as intended by the Land Use Code. The Land Use Code does not contain a definition of "Fooftop." Land Use Code, Chapter 26.575, at Section 26.575.020.A. "Calculations and Measurements," states "The definitions of the terms are set forth at Section 26.104.100 - Definitiong." As the term "rooftop" is not defined in the Land Use Code, we look to the purpose and intent of the regulations to determine their applicability. The regulations in question are clearly intended to minimize the visual impacts of amenities on the top ofbuildings when viewed from street level. Thus, Section 26.575.020.F.4.k requires that all amenities located on rooftops, including railings, be set back from the fagade of the building. The specific regulÂ·ation in question is contained within Section 8 of Ordinance No. 7, Series of 2014 (Attachment Â·2), which is identified as follows: "Miscellaneous Supplemental Regulations, Allowed Exceptions to Height, which section describes how to measure building heights ...." The regulations involving setbacks, found in subsections d. (Rooftop Railings) and k. (Permanent Rooftop Amenities), are expressly applicable only when a building would otherwise exceed pennissible height. Thus, visual impacts are reduced and view plains are protected. Further, this is not a "rooftop" deck. This deck is not on the top of the building. This is a deck on the fourth level surrounding the penthouse. The City has not previously treated this deck as a rooftop. The approved and recorded Condominium Map, the PUD amendments and the approved plans, in reliance on which the building was constructed, allow for parapet walls and railings in the same plain as the building fagade. The approved PUD amendments locate the hot tubs exactly where the Applicants propose to install them. The setback requirements of Section 26.575.020.F.4.k do not apply to the penthouse deck. The third area for administrative determination identified by Mr. Pomeroy is: "That because it was a rooftop deck, it was subject to the provisions of height and setback in 26.575.020.F.4.k), Permanent Rooftop Amenities." However, even if the penthouse deck was 4 .. considered a "rooftop" deck, the regulations do not apply as the Applicants do not seek a maximum. height exemption. The regulation which derives from Ordinance No. 7, Series of 2014, is intended to allow a property owner to exceed the otherwise maximum building height with certain permanent amenities which, when installed in accordanbe with the regulation, do not count against the overall permitted height of the building. That is not the situation we are dealing with here. Rather, the deck in question and all improvements on the 4th level of the building are well within the permissible maximum building height. It is only where the building height would otherwise be exceeded that the referenced regulation, and its setback requirements, come into play. The concept being that if you exceed maximum permissible height, you can install certain permanent improvement on the roof so long as they are set back out of the sight line from the street. First, it is important to read subsection k in its entirety and apply all of its provisions for their intended purposes. Subsection k commences with the following sentence: "Permanent rooftop amenities, such as built-in wet bars, built-in barbeque grills, cabinets, sinks, firepits, pools, hot tubs, etc. shall be permanently installed and shall meet the following height and setback requirements to qualify for a height exemption." (Emphasis provided.) The setback requirement is expressly related to obtaining a maximum building "height exemption." It is not generally applicable to setbacks on decks or even to rooftop decks where no height exemption is sought. Next, the Code Section in which subsection k is found, 26.575.020.F.4, is described in Ordinance No. 7, Series of 2014, as follows: "Miscellaneous Supplemental Regulations, Exceptions to Height, which section describes how to measure building heights .... The 3, section is clearly and expressly intended to address how building heights are measured, including setback requirements for height exceptions. The regulation only applies where a height exception is requested. This is bolstered by the fact the caption of the regulation at paragraph 1 of Section 8 to Ordinance No. 7, Series of 2014 (Attachment 2, page 9 of 15), of which subsection k is merely a subsection, is "Allowed Exceptions to Height Limitations." By the clear and express terms of the legislation, the setback requirements only apply to circumstances where the "rooftop amenity" would exceed the otherwise pennissible building height. Otherwise, there is no requirement for a 10' setback. That setback is only required to "qualify for a height exemption." The Applicants do not seek a height exception (or exemption) in connection with the location of any penthouse deck amenities. Land Use Code Section 26.575.020.F.2 (Attachment 1, Page 24) contains a depiction of how height is to be measured when the wall of a building includes a parapet. The height of the building includes the parapet. Because the hot tubs and other amenities proposed for the penthouse deck are all below the level of the parapet wall 5 .. surrounding the deck, there is no issue of exceeding permissible height and a height exception is not requested. Furthermore, the height of the building is considered to be the top of the penthouse, which is 12 feet above the level of the penthouse deck. Subsection d of Section 26.575.020.F.4. requires rooftop railings to be set back an amount equal to the height of the railing. This regulation was not applied at the time of development approval or in September of 2016 when the Condominium Map was approved by the City and recorded. Nor was it applied at the time of building permit approval or at final inspection and approval of the building as constructed. The PUD amendments each clearly permit the elevated parapet wall and elevated railing for the hot tabs adjacent to the building fa*ade, not set back 10 feet. When the Insubstantial PUD amendments were granted by the City in May and October of 2015, the elevated railings and hot tub locations were approved without reference to setbacks for "rooftop" amenities. Conclusion It is apparent that the City has never previously considered the penthouse deck a "rooftop" deck. The penthouse unit was constructed and purchased based upon the approved Condominium Map, the PUD approval, the PUD amendments and building permit approvals granted by the City. The Applicants relied on these multiple approvals, five of which (three PUD amendments, final building approval and condominium approval) were granted after Ordinance No. 7, Series of 2014 was adopted. The proposed penthouse deck amenities cannot be seen from street level. The Applicants do not seek an exemption for building height. They simply seek to complete -the finishes to the penthouse and deck as previously approved by the City. For the foregoing reasons, the Applicants respectfully request that the City of Aspen Community Development Director detennine that the approvals for the subject, real property allow the location of the amenities as depicted on Attachment 3, that the penthouse deck is not a rooftop deck and that Land Use Code Section 26.575.020.F.4.k is not applicabl. e to this property, as no exception to maximum building height is requested. 6 .. ATTACHMENTS 1. Excerpts from Chapter 26.575 2. Ordinance No. 7, Series of2014 3. Penthouse Deck Improvement Plan 4. Photos of North-East and South-East Elevations of Dancing Bear Residences 5. Ordinance No. 32, Series of 2005 6. Planned Unit Development Agreement for the Chart House Planned Unit Development 7. Resolution No. 8, Series of 2014 8. Chart House Lodge (a/k/a Dancing Bear Mountainside) Insubstantial Plan Development Amendment, recorded May 22, 2015 9. Chart House Lodge (a/]da Dancing Bear Mountainside) Insubstantial Plan Development Amendment, recorded October 14, 2015 10. Amended and Restated Condominium Map of Dancing Bear Residences Aspen, Sheets 1 and 22 11. Certification of Ownership, along with Special Warranty Deed and Statement ofAuthority 12. Authorization Letter ~ 13. Pre-Application Conference Summary 14. Homeowners Association Compliance Policy 15. Fee Agreement .. ATTACHMENT 2 .. CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT AN ADMINISTRATIVE DETERMINATION FOR THE CIIART HOUSE LODGE PLANNED DEVELOPMENT, LEGALLY DESCRIBED AS: THE DANCING BEAR RESIDENCES COMPRISED OF THE DANCING BEAR LODGE ACCORDING TO THE FINAL PUD PLAN AND PLAT RECORDED JUNE 8,2004 IN PLAT BOOK 69 AT ~ PAGE 80 UNDER RECEPTION NO. 498443 AND CIIART HOUSE LODGE 1 ACCORDING TO THE FINAL PUD AND SUBDIVISION PLAT RECORDED ] FEBRUARY 17,2006 IN PLAT BOOK 77 AT PAGE 49 UNDER RECEPTION NO. 1 520960, CITY OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO; COMMONLY DESCRIBED AS 219 E. DURANT AVENUE PARCEL ID: 2735-131-06-002 JURISDICTION: City ofAspen APPLICABLE CODE SECTIONS: 26.104.100; Definitions, "Deck" 26.480.050 A; Condominiumization 26.575.020.F.4.1; Allowed Exceptions to Height ~ Limitations; Permanent Rooftop Amenities EFFECTIVE DATE: May 24, 2017 WRITTEN BY: Ilillary Seminick. Planner APPROVED BY: Jessica Garrow, Community Development Director Date: May 24, 20]~7- ~1,+(,46~~A/M.0,06~ 9 COPIES TO: ~City Planning Staff, City Attorney SUMMARY: This administrative determination clarifies ifpermanent rooftop amenities at the subject property, Dancing Bear Residences Aspen (Chart House Lodge Planned Unit Development), located at 219 East Durant Avenue within the Lodge (L) zone district with a Planned Unit Development overlay (now called Planned Development (PD)), are subject to the provisions of the Land Use Code outlined in Section 26.575.020.F.4.1. The administrative determination was initiated by Illinois Avenue, LLC, Indiana Avenue LLC, New York Avenue LLC, North Carolina Avenue LLC, Pacific Avenue LLC, Pennsylvania Avenue LLC, Tennessee Avenue LLC, and Vermont Avenue LLC, through their Manager, Mediterranean Avenue, LLC (collectively referred to as "The ApplicantÂ°'), represented by Richard Y. Neiley Jr., Esq. of Neiley Law Firm, LLC, Permanent Rooftop Amenities i Issued May 24, 2017 Page 1 of 6 .. A building permit (0130,2016.ARBK) for atenant finish of the fourth floor timeshare lodge unit including three hot tub/spas and two permanent fire features was denied zoning approval on January 20, 2017. The basis of the denial was thatthe deck surrounding the lodge unit is arooftop deck; therefore, the provisions of Section 26.575.020.F.4.1, (previously section '13 Permanent Roo#op Amenities apply, requiring the improvements on the deck be set back at least ten (10) feet from the street- facing fa9ade of the building, A set of plans that removed the permanent rooftop amenitiesÂ·to allow the remaining tenant finishes to be completed was approved under the same permit number. There are three distinct determinations requested by the Applicant. 1. The Applicant disputes the determination during zoning review that the deck associated with the fourth floor lodge unit is, in fact, a roof top deck. 2. The Applicant does not agree that the provisions of Sec. 26.575.020.F.4.1, Permanent Roof?op Amenities, apply to the project and requests a determination associated with the vesting ofprior Planned Development approvals. 3. The Applicant disputes that the Maximum Height Exemption code language applies to the spa and fire pit features. BACKGROUND: The Chart House Lodge Planned Development was granted initial approval by Ordinance No. 32 (Series of 2005) (Reception No. 516050) on July 11, 2005. The approvals granted Subdivision, Timeshare, Mountain View Plane, and Growth Management Quota System approvals for amixed- use project inclusive ofthe development of eleven (11) timeshare lodge units with twenty-one (21) rentable keys, two (2) affordable housing units, net leasable area, and 27 parking spaces. The original approval was vested through September 2008. In 2006, a Planned Development Plat was recorded at Book 77, Page 62 (Exhibit A). The recorded floor plan of the fourth floor includes the surrounding deck area. The area in question lacks any permanent amenities. A building permit application (0037.2007.ACBK) was submitted pursuant to the plat and ordinance during the vesting period. The building permit was issued, and construction began for the project. The building permit showed two hot tubs on the rooftop deck that surrounds the fourth floor lodge unit. Due to the recession, construction was halted because of financing issues. City Council Resolution No. 78 (Series of 2010) (Exhibit B) extended both the 2007 building permit and the vested rights through June 30, 2014. During the extended vesting period, several amendments to the ptoject's approvals occurred. A Planned Development Amendment was approved Ma-y 20, 2014 by the Planning and Zoning Commission via Resolution No. 8 (Series of 2014). Although the plan sets provided by the architect show hot tubs on the roof top deck adjacent to the fourth floor lodge unit, the scope of the approvals are solely on the internal configuration of the building and the exterior materials the building (Exhibit C) as outlined in the resolution. There are no fire features depicted on the drawings associated with the amendment. As an amendment the development order issued for the approval notes that it is subject to the vested rights period that was outlined in Resolution No. 78 (Series of 2010) and would expire in 2014 (Exhibit D). , Permanent Rooftop Amenities Issued May 24, 2017 Page 2 of 6 .. Also in 2014, a code amendment provided definition to how permanent roof top amenities, including spas and fire features relate to building height. OrdinanceNo. 7, Series of2014, effective May 28, 2014, amended Sec. 26.575.020.F.4, Allowed Exceptions to Height provision of the land Use Code, adding requirements to the exceptions to permitted height regarding permanent roof- deck amenities. The project was not subject to this new provision during the vesting period, Adopted Language (Ord. 24, Series 2014) Permanent rooftop amenities, such as built-in wet bars, built-in barbeque grills, cabinets, sinks, fire pits, pools, hot tubs, etc. shall be permanently installed and shall meet the following height and setback requirements to qualify for a height exemption. This only applies to a mixed use, lodge, or commercial building located in the Commercial Core (CC) Zone District, Mixed Use (MU) Zone District, the Commercial (C-1) Zone District, the Lodge (L) Zone District, the Neighborhood Commercial (NC) Zone District, or the Commercial Lodge (CL) Zone District. Permanent rooftop amenities may extend up to five (51 feet above height of the building at the point the equipment is attached to the roof. This allowance is inclusive of any pad the equipment is placed on. A trellis with a maximum height often (10) feet and a maximum floor area of no more than 5% of the useable deck area is peimitted. All permanent rooftop amenities shall be set back from any Street facing facade of the building bv a minimum of ten (10) feet. (]Emphasis added) Tile master building permit for the project (0037.2007.ACBK) was re-issued on March 9, 2015 and subsequently, additional land use approvals and change orders were applied for by the property owner. An Insubstantial Planned Development Ainendment was administratively approved and recorded on October 14, 2015 as Reception No. 624103 (Exhibit E). The amendment solely allowed for modification to the exterior railing materials for railings on multiple levels of the building. Nothing in the written request or approval addressed hot tubs or fire features, Change order 0008.2016.ACGR was submitted by the applicant requesting amendments to the active building permit. Tlie change order requested approval for different finishes within the fourth ~ story lodge unit rather than completing the finishes outlined in the original 2007 pennit. The drawings (Exhibit F) submitted with the change order do not. depict hot tubs, fire features, or any ~ other permanent amenities on the roof-top deck and represents requested changes to the 2007 permit. The permit for this change was issued on March 24, 2016. The entire project (under Master Permit 0037.2007.ACBK and including the change order ~ described above) was issued a Certificate of Occupancy on June 15,2016 (Exhibit G). The Â· ~ project's statutory vested rights ended on June 30, 2014 and common law vesting ended when the peimit was closed and the project received a Certificate of Occupancy (C.O). No hot tubs, fire features, or any other permanent amenities on the roof-top deck were in place at the time of the CO.'s issuance. DEFINITIONS: 26.104.100. Definitions. "Deck". An outdoor, unheated area appended to a living space but not intended for living. Permanent Rooftop Amenities Issued May 24, 2017 Page 3 of 6 .. 26.480.050.A, Condominumization A Condominiumization. A subdivision to establish, amend, or vacate separate ownership interests of a single property in a Condominium or Common Ownership Interest Community form of ownership shall be approved, approved with conditions, or denied by the Conimunity Development Director. Condominiumization shall be limited to allocating ownership interests of a single parcel and shall not effect a division of the parcel into multiple lots, an aggregation of the parcel with other lands, a change in use of the property,and shall not operate as an abatement of other applicable regulations affecting the property. Tbe Director shall review the condominiumization plat pursuant to Section 26.480.030, Procedures for Review, and according to the following standards: (Emphasis Added) Roof-deck: A flat portion of a roof used as a walk or terrace. https://www,merriam- webster.com/dictionary/roof-deck Roof: The cover of a building. https://www. merriam-webster. com/dictionary/roof DETERMINATION: 1. The Applicant disputes the determination that the deck associated with the fourth floor lodge unit is in fact, a roof top deck. The deck surrounding the fourth floor lodge unit is on top of living area. As defined by Merriam- Webster, the cover (e,g. top) of a building is defined as a roof. Furthermore, Merriam-Webster goes on to define a roof-deck as a flat portion of a roof used as awalk or terrace. According to the Land Use Code, a deck is an outdoor unheated area appended to a living space. Using both the Land Use Code and the common understanding of roof-deck as outlined in Merriam-Webster, tile deck in question is appended to the top of a living space, e, g. the roof ofthe third floor, and is considered a roof deck. 2. The Applicant does not agree that the provisions of See. 26.575.020.F.4.1, Permanent Rooftop Amenities, appIy to the project as subsequent approvals were granted after the code language was adopted and, as a result, extended the vested rights period of the project. In regards to the vested rights that would allow the permanent rooftop amenities that were proposed in the original building permit, Staff finds that three points are essential to the issue of vesting: First, the Applicant makes the argument that on the Amended and Restated Condominium Map of Dancing Bear Residences (Exhibit H), the roof-deck is labeled '<pation While this labeled space does not meet the definition of "patio" in the Land Use Code, more importantly, a condo plat does not create a vested right. Rather, a condo plat is a document that creates legal separation of ownership units within the same parcel. Sec. 26.480.050, Administrative subdivisions, clearly states the limitations of this review in that it shall be limited to allocating ownership interest rights. Furthermore, the City of Aspen Community Development Director signature block includes the following disclaimer: â€¢ Permanent Rooftop Amenities Issued May 24, 2017 Page 4 of 6 .. To the extent that an-ything in this plat is inconsistent or in conflict with any City oj Aspen Development Orders relating to these condominiums or any other provision \ of applicable law, including but notlimited to other applicable land use regulations and building codes, such other development orders or applicable laws shall control. Secondly, the Planned Development Amendment (Exhibit C) and Insubstantial Planned Development Amendment (Exhibit D), while including drawings that identify permanent rooftop amenities, do not address hot tubs or fire features in the approved changes that were the subject of the amendments. The changes approved in each of the amendments were for different features of : the project. Additionally, the amendments did not extend the vested rights expiration date of June : 30,2014, as reflected in the development orderforthe Planning and Zoning Commission approval. Lastly and most importantly, the change order (0008,2016.ACGR) to the master building permit (0037,2007.ACBK) submitted March 9, 2016, presented drawings that removed the rooftop amenities thathad earlier been depicted. Once the Certificate of Occupancy was issued inresponse to the project as a whole, including the plans depicted in the change order, the project was ~ complete, and vested rights ended. Any subsequent changes would be subject to current j requirements under the Land Use Code. In this case, the height limitation and setback requirement ' established by 26,575.020.F.40), now apply to all proposed, permanent rooftop amenities. i 3. The Applicant disputes that the Maximum TIeight Exemption, Section ~ 26.575.020F.4(I) applies to the spa and fire features. The Applicant argues that the approved height of the building is 46'6", with no separate height ~ limitation on the roof above tb.e 3rd floor. While the Applicant is correct that the approved height ofthe building is 46'6"3 any additional improvements after expiration of vesting would be subject p to the current Code. The 11 unit, 21 key lodge project is in the Lodge zone district and has a lot size of approximately 12.000 sq. ft. The maxilnum height for a lodge with this unit density, less than one lodge unit per 500 sq. ft. of lodge area, is now 28 feet. The project can remain at the height approved in the PD, but any improvements not specifically included in the PD are subject to the current Code. 1 t Additionally, while the maximum approved height ofthe building is at 46'6", this was only for the fourth floor portion of the building. A table for the proposed dimensions of the lodge for ~ consideration during the Final PUD review was included on page three (3) of the Staff Memo to i Council, dated August 83 2005. The maximum height for the fourth floor was 46'61 to be setback from the lower floors, and a maximum height of 37'7" at the top of the third floor Cfxhibit 1). Additionally, the approved PUD plans recorded at Book 77, Page 64 show a setback fourth floor ~ (Exlibit J). The maximum height represented before City Council for the top of the third floor was 1 37'7". Any building permit submitted for elements on the top of the third floor would be subject to the provisions of Sec. 26,575.020.F(4), Allowed Exceptions to Height Limitations. The section expressly addresses which improvements may be on a roof- and in this case, established a 5 feet height limit above the roof deck and a setback of 10 feet from street-facing facades. Because the approved development does not address any additional allowances for roof-top amenities, the current Land Use Code applies to any newly proposed rooftop amenities. Permanent Rooftop Amenities Issued May 24, 2017 l Page 5 of 6 .. APPEAL OF DECISION: 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. This administrative determination was issued and becomes effective on May 243 2017, EXHIBITS: Exhibit A: Planned Development Plat (Fourth Floor) (2006) Exhibit B: Resolution No. 78 (Series of 2010) - Extension of Vested Rights Exhibit C: Resolution No, 8 (Series 2014) - Planned Development Amendment Exhibit D: Development Order for Resolution No.8 (Series of 2014) Exhibit E: Insubstantial Planned DevelopmentÂ·Amendment (2014) Exhibit F: Change Order Permit and Drawings, 0008,2016.ACGR Exhibit G: Certificate of Occupancy, June 15, 2016 Exhibit II: Amended and Restated Condominium Map (2016) Exhibit I: StaffMemo Planned Development Approval - Dimensional Table (2005) Exhibit J: Approved Plans, Planned Development Approval (2005) Pennanent Rooftop Amenities Issued May 24, 2017 Page 6 of 6 .. ATTACHMENT 3 .. CERTIFICATION OF OWNERSHIP The undersigned, Richard Y. keila Jr., an attorney licensed to practice law in the State of Colorado, Colorado Attorney Registration No. 9878, hereby certifies as follows: 1. The owners of all of the fractional interests in Unit PH-20, Dancing Bear Residences Aspen, are Illinois Avenue LLC, Indiana Avenue LLC, New York Avenue LLC, North Carolina Avenue LLC, Pacific Avenue LLC, Pennsylvania Avenue LLC, Tennessee Avenue LLC and Vermont Avenue LLC, Colorado limited liability companies 2. The property is identified by Pitkin County Assessor's Parcel ID No. 273513106016. The owners purchased the property interests by Special Warranty Deeds, recorded as follows: Illinois Avenue LLC Reception No. 634331 Indiana Avenue LLC Reception No. 634321 New York Avenue LLC Reception No. 634324 North Carolina Avenue LLC Reception No. 634357 Pacific Avenue LLC Reception No. 634343 Pennsylvania Avenue LLC Reception No. 634354 Tennessee Avenue LLC Reception No. 634351 Vermont Avenue LLC Reception No. 634347 A representative Special Warranty Deed is appended hereto, along with a Statement of Authority identifying Mediterranean Avenue LLC as the entity authorized to act on behalf of the owners. 3., There are no mortgages, judgments, liens, easements, contracts or agreements affecting the use and development of the subject real property that would conflict with the determinations requested for the property. 4. The address of the property is Unit PH-20, Dancing Bear Residences Aspen, 219 East Durant, Aspen, Colorado 81611. 5. There are no mineral reservations and ther~ no third parties who own any mineral interests in the subject real property. 6. There is legal access to the subject real pro#ky tia East Durant Avenue, a public right of way. <Pit- RicHARD Y. NEILEY, JR. STATE OF COLORADO - ) ) SS. COUNTY OF GARFIELD ) The foregoing Certificate of Ownership was acknowledged and signed before me this Abday of March, 2017, by RICHARD Y. NEILEY, JR. WITNESS my hand and official seal. My commission expires: (0-/34 -ct CONNIE-A. wOOD 1 0 ~ 0-0-.Â·4Â»,0 66 difdOE~ NOTARY PUBLIC STATE OF COLORADO Notary Public NOTARY ID #19944009825 My Commission Explree June 24.2018 .. 111 111111111111111111111111111 lili State Documentary Fee Date: December 05,2016 Special Warranty Deed $ 200.00 (Pursuant to 38-30-115 C.R.S.) THIS DEED, made on December 05, 2016 by CHART HOUSE PROJECT OWNER, LLC, A DEIAWARE LIMrrED LIABILITY COMPANY Grantor(s), of the Councy of PITKIN and State of COLORADO for the consideration of ($2,000,000.00) *** Two Million and 00/100 *** dollars in hand paid, hereby sells and conveys to INDIANA AVENUE LLC, A COLORADO LIMnED LIABILITY COMPANY Grantee(s), whose sireet address is 623 EAST HOPKINS ASPEN, CO 81611, County of PITKIN, and State of COLORADO, the following real property in the County of Pitkin, and State of Colorado, to wit SEE ATIACHED "EXHIBIT A" also known by street and number as: 219 EAST DURANT AVENUE (INTEREST PH-20B) ASPEN, CO 81611 with all its appurtenances and warrants the title against all persons claiming under the GrantorÂ® except SUBJECT TO THOSE I'IEMS AS SET FORTH ON EXHIBIT "B" ATTACHED HERETO AND INCORPORATED HEREIN. CHART HOUSE PROJECT OWNER, LLC, A DELAWARE LIMITED LIABILITY COMPANY RANDALL BONE AND/OR DIRK GOSDA, AS MANAGER<S) OF DB ASPEN MANAGERS, LLC, AS AUIHORIZEDAGENT OF CHART HOUSEPROJECT OWNER, LLC, ADELAWAREIJMrIED LIABILTrY COMPANY KIMBERIYJ. PARHAM NOTARY PUBUC STATE OF COLORADO State of COLORADO ) NOTARY ID 20124022396 ) SS. County of PITKIN ) MYCOMMISS]ON EXPIRESAPRL 26,2020 The foregoing instrument was admowledged before me on this day of December 05, 2016 by RANDALL BONE, AND/OR DIRK G{)SDA, AS MANAGER(S) OF DB ASPEN MANAGERS, LLC, AS AUTHORIZED AGENT OF CIIART HOUSE PROJECT OWNER, LLC, A DELAWARE Lâ„¢nED LIABILITY COMPANY Witness my hand and official seal. (li 249 |207 0 My commission expires Â£// -532,keÂ» /Notky Public When Recorded Retmn to: INDIANA AVENUE LLC, A COLORADO LIMITED LIABILY]Ty COMPANY 623 EAST HOPKINS ASPEN, CO 81611 CITY OF ASPEN CITY OF ASPEN WRETT PAID HRETT PAID DATE REP NO. DATE REP NO. 11-1 <ff (, M (4- ti~ fLâ‚¬ j )-2/5/16 AL 6+ E/1-5 1 Land Title Form 13773 10/2010 swd.open.rev.od: Special Warranty Deed Open (Photographic) Q62007898 {26951247} GUAKANnE COMPANY .. EXHIBIT A PARCEL A FRACTIONAL INTEREST PEI-208, CONSISTING OF ANUNDIVIDED ONE-EIGHIH (1/8) INTERESTAS TENANTS-IN- COMMON IN RESIDENCE PH-20, DANCING BEAR RESIDENCES ASPEN, ACCORDING TO THE AMENDED AND RESTATED CONDOMINIUM MAP RECORDED SEPTEMBER 19, 2016 IN PLAT BOOK 115 AT PAGE 64 AND AS DEFINED AND DESCRIBED IN THE AMENDED AND RESTATED CONDOMINIUM DECLARATION RECORDED SEPTEMBER 19, 2016 UNDER RECEPTION NO. 632277, TOGETHER WITH THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF A COMPARABLE RESIDENCE DURING THE RESIDENCE WEEKS RESERVED BY THE OWNER PURSUANT TO THE AMENDED AND RESTAIED RULES, REGULATIONS AND RESERVATION PROCEDURES RECORDED SEPTEMBER 21, 2016 UNDER RECEPTION NO. 632372, COUNTY OF PnKIN,STATE OF COLORADO. PARCEL B TOGETHER WITH A TUNNEL EASENENT RECORDED NOVEMBER 19, 2014 AS RECEPTION NO. 615516 AND FLRST AMENDMENT RECORDED MAY 20, 2016 AS RECEPHON NO. 629496. COUNTY OP PITKIN, STATE OF COLORADO. Form 13773 10/2010 swd.open.rev. odt Special Warrang Deed Open (Photographic) Q62007898 {26951247} .. EXHIBIT B PropertyAddress: 219 EAST DURANTAVENUE (INTEREST PH-20B) ASPEN, CO 81611 RIGHT OF WAY FOR DUCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED AUGUST 26, 1949 IN BOOK 175 AT PAGE 298. RIGHT OFPROPRIETOR OF AVEIN ORLODE TO EXTRACTAND REMOVE HIS ORE THEREFROM SHOULD l'HE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STAIES PATENT RECORDED AUGUST 26, 1949 IN BOOK 175 AT PAGE 298. RESTRICTIVE COVENANTS, WHICHDO NOT CONTAINA FORFEITURE ORREVERTER CLAUSE, BUT OMITnNG ANY COVFNANTS OR RESTRICTIONS. IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX; SEXUAL ORIENTATION, FAMILTAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAI SAID COVENANT ORRESTRICTION IS PERMITTED BYAPPLICABLE LAW, AS CONTAINED IN INS11*UMENT RECORDED MARCH 16, 1987, INBOOK 531AT PAGE 345. NOTE: THE ABOVE EXCEPTION MAY BEDELEIED UPON RESOLUIION OFTHE CITY OFASPEN EVIDENCING WAIVER OR RELEASE, AS PROVIDED FOR THEREIN. TERMS, CONDITIONS AND PROVISIONS OF ORDINANCE NO. 48 (SERIES 2003) APPROVINGA SUBDIVISION EXEMPTION LOT SPLIT FOR LOTS 1 AND 2 OF T[IE PROPERTY TOBEKNOWNAND DEDICATED AS THE CIIART HOUSE LOT SPLIT RECORDED NOVEMBER 06,2003 AT RECEPTION NO. 490830. TERMS, CONDITIONS AND PROVISIONS OF ORDINANCE NO. 32 APPROVING THE CHART HOUSE LODGE FINAL PIANNED UNIT DEVELOPMENT RECORDED OCTOBER 11, 2005 AT RECEPTION NO. 516050. EASEMENTS, RIGHTS OF WAY, AND ALL OTHER MATIERS AS SHOWN ON THE FINAL PUD AND SUBDIVISION PLAT OFIHE CHART HOUSE LODGE RECORDED FEBRUARY 17, 2006 UNDER RECEPIION NO. 520960. EASEMENTS, RIGHrS OF WAY, AND ALL OTHER MATTERS AS SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM MAP OF THE, DANCING BEAR RESIDENCES ASPEN RECORDED SEPTEMBER 19, 2016 IN PLAT BOOK 115 AT PAGE 64. CONDOMINIUM DECLARATIONFOR DANCING BEAR RESIDENCES ASPEN, WH[CH DO NOT CONTAINA FORFErrURE OR REVERTER CLAUSE, BUT OMITTINGANY COVENANTS OR RESTRICTIONS, IFANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTAIION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH INAPPLICABLE STATEORFEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMflTED BY APPLICABLE LAW, AS CONTAINED INAMENDED AND RESTATED CONDOMINIUM DECLARATION RECORDED SEPIEMBER 19, 2016 UNDER RECEPTION NO. 632277. TERMS, CONDITIONS AND PROVISIONS OF AMENDED AND RESTATED RULES, REGULATIONS AND RESERVATION PROCEDURES RECORDED SEPTEMBER 21, 2016 AT RECEPHON NO. 632372. TERMS, CONDITIONS AND PROVISIONS OF PUD AGREEMENT RECORDED FEBRUARY 17, 2006AT RECEPTION NO. 520961 AND AMENDMENTTO PUD AGREEMENT RECORDED JUNE 30, 2011 UNDER RECEPTION NO. 580889AND SECOND AMENDMENT TO PUD AGREEMENT RECORDED DECEMBER 1 2014 AS RECEPTION NO. 615709 AND INSUBSTANTIAL PUD AMENDMENT RECORDED MAY 22, 2015 AS RECEPT[ON NO. 620089 AND INSUBSTANTIAL PUD AMENDMENT RECORDED OCTOBER 14, 2015AS RECEPTION NO. 624103. TERMS, CONDITIONS AND PROVISIONS OF ENCROACHMENT LICENSE AGREEMENT RECORDED JUNE 11, 2007 AT RECEPTION NO. 538776: Form 13100 08/2008 bfexhibit.escrow. odt Q62007898 {26951248} .. TERMS, CONDITIONS AND PROVISIONS OF REVOCABLE ENCROACHMENT LICENSE APPLICATION RECORDED JANUARY 16, 2013 AT RECEPTION NO. 596212. TERMS, CONDITIONS AND PROVISIONS OF SUCCESSOR DECLARANT STATEMENT RECORDED AUGUST 01, 2011 AT RECEPTION NO. 581564 AND AMENDED AND RESTAIED SUCCESSOR DECLARANT STATEMENT RECORDED FEBRUARY 1, 2012 UNDER RECEPTION NO. 586367 AND ASSIGNMENT OFDECLARANT RIGHTS RECORDED MARCH 1, 2012 UNDER RECEPTION NO. 587133 AND PARTIAL ASSIGNMENTAND ASSUMPnON OF DECLARANT RIGHTS RECORDED SEPTEMBER 12, 2016 UNDER RECEPTION NO. 632140. TERMS, CONDITIONS, PROVISIONS AND OBLIGAI[ONS OF ORDINANCE OF THE CITY OFASPEN, NO. 20, SERIES OF 2014 RECORDED SEPTEMBER 15, 2014 AS RECEPIION NO. 613528AND RERECORDED SEPTEMBER 15, 2014 AS RECEPTION NO. 613530 AND RERECORDED JANUARY 29, 2015 AS RECEPTION NO. 617006. TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS OF TUNNEL EASEMENT RECORDED NOVEMBER 19, 2014 AS RECEPTION NO. 615S16 AND FIRSTAMENDMENT RECORDED MAY 20, 2016 AS RECEPTION NO. 629496. TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS OF NOTICE OFAPPROVAL FROM THE CITY OF ASPEN RECORDED NOVEMBER 21, 2014AS RECEPTION NO. 615603. TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS OF TRENCH, CONDUITAND VAULTAGREEMENT WrrH HOLY CROSS ENERGY RECORDED AUGUST L 2015 AS RECEPT[ON NO. 622248. TERMS, CONDITIONS, PROVISIONS AND OBLIGATIONS OF RIGHT OF WAYAGREEMENT RECORDED AUGUST 7, 2015 AS RECEPTION NO. 622250 AND RERECORDED MAY 17, 2016 AS RECEPTION NO. 629409. TERMS, COND]TIONS, PROVISIONS AND OBLIGATIONS OF ENCROACI]MENT AGREEMENT RECORDED JUNE 9, 2016 AS RECEPIION NO. 629868. Form 13100 08/2008 b2exhibit.escrow.odt Q62007898 {2G951248} .. 111 l illi 11111'lli'1111111111111111 STATEMENT OF AUTHORrrY (Â§38-30-172, C.R.S.) 1. This Statement of Authority relates to an entitf named INDIANA AVENUE LLC, A COLORADO LIMITED LIABILITY COMPANY 2. The type of entity is a: Corporation --7 Registered Limited Liability Partnership Nonprofit Corporation Registered Limited Liability Limited Partnership X Limited Liability Company Limited Partnership Association General Partnership Government or Governmental Subdivision or Agency Limited Partnership 7 Trust 3. The entity is formed.under the laws of COLORADO 4, The mailing address for the entity is 623 EAST HOPKINS, ASPEN, CO 81611 5, The X name X position of each person authorized to exectite insm,ments conveying, encimbeting or otherwise affecting title to real property on behalf of the entity is MEDITERRANEAN AVENUE LLC, A COLORADO LIMITED LIABILITY COMPANY 6, The authority of the foregoing person(s) to bind the entity: X isz not limited is limited as follows: 7. Other matters concerning the manner in which the entity deals with interests in real property: 8, This Statement of Authority is executed on behalf of the entity pursuant to the provisions of Â§38-30-172, C.R.S.3 9, This Statement of Authority amends and supersedes in all respects any and all prior dated Statements of Authority executed on behalf of the entity. (Signature and Notary Acknowledgment on Second Page) 1 This form should not be used unless the entity is capable of holding title to real property. 2 The absence of Any limitation shall be prima fade evidence that no such limitation exists. 3 The statement of authoIity must be recorded to obtain the benefits of the statute. Land Title Fonn 13759 03/2005 soa.odt Q62007898 {26951244} pglof2 CULâ€¢,RANTEE COMPANY 41- Executed this ~ day of 4.Â«VÂ«94114 10ARK FRIEDI~NE, AS MANAGER OF MEDITERRANEAN AVENUE LLC, A COLORADO LUVIITED LIABILITY COMPANY, AS MANAGER OF INDIANA AVENUE LLC, A COLORADO LIMITED LIABILIY COMPANY State of COLORADO ) )SS County of PITKIN ) The foregoing instrument was acknowledged before me this 19- day d 0Â«#r,ag,A Of) 10 by MARK FRIEDLAND, AS MANAGER OF MEDrrERRANFAN AVENUE LLC, A COLORADO LIMITED LIABILITY COMPANY, AS MANAGER OF INDIANA AVENUE LLC, A COLORADO LIMITED LIABILIY COMPANY Wimess my hand and official seal. My commission expires: ' Notary Public WHEN RECORI)ED RETURN TO: INDIANA AVENUE LLC 623 EAST HOPKINS ASPEN, CO 81611 KIMBERLY J. RARAAM--1 NOW!y PUBLIC SWE OF COLORADO NOTARY ID 20124022396 iMY COMMISSION EXPIRES APRIL 28,2020 ~ Foim 13759 03/2005 soa_odt Q62007898 {26951244} pg 2 of 2 .. ATTACHMENT 4 .. MEDrrERRANEAN AVENUE LLC e/O Aspet,fS~*rwood LLC 623 East Hopkins Avenue Aspen, CO 81611 (970} 92021280 Februmy 24. 2017 City of Aspen Cot#mmoity I)evelÂ® nient 130 South.-941Â¢ila Street Aspen, :CO 81611 RE: Dancing Bear Residences, Lodge Unit PH20 219 East Dukant, City of Aspeh State ef Colorado - Parcel ID No- 273513106016 DONI SinMadam: Please accept this leter as authorization ifbr Richard Y. Neiley. Jr. and the Neiley I.aw Film, LLC, 420 East Main Strect Suite 240, AÂ®gns Colorado 81611. A#iwill#3*(*aitill>vitlxv~68;1N, to repefeht Mtdit&[ran*ili Avenue LLC and the :owmets. of all fractioU-1 int.*dds-mihe abojic- referenced propzrty in connection with a land Use Application for Administrative DetÂ¢*inatian regatding ttie applicability of ChaptÂ« 26.575.020.F.4.(k) Of the City of Ast>en Land Use Code to the paiio/deÂ¢k forLodge Unit PH20. Dancing.Bea* Rdsidknces MEDITERRANEAN AVENUE LLC B}i +---)92:7 #41/377 - -9*k Itiorlinfid,08*r *f Medite*ine#n 61(due1:4 Man#@er oi' ;111*ois Avenue LIC. Indi#4 Avende LLC; Ne* Yofk AdmALLâ‚¬t Nor#i Cart,lina ApÂ©nue lit. F*ilic Avenue LLC, Pennsylvania Avenue LLC tenn#Ssee Aveng~ jic *nd Vemkont Avenue I,LC *11 Colorado limited liabiLity companies I y .. lili 111111111111111111111111111111 STATEMENT OF AUIHORE[y (Â§38-30-172, C.R.S.) 1.. This Statement of Anthority relates to an entityi named INDIANA AVENUE LLC, A COLORADO LIMITED LIABILITY COMPANY 2. The type of entity is a: 7 Corporation F---1 Registered Limited Liability Parmership ~ Nonprofit Corporation | 1 Registered Limited Liability Limited Parmership X Limited Liability Company Limited Partnership Association General Partnership Limited Partnership Trust ~LEJ' Government or Governmental Subdivision or Agency 3, The entity is formed under the laws of COLORADO 4, The mailing address forthe entity is 623 EAST HOPKINS, ASPEN, CO 81611 5, The X name X.position of each person authorized to execute instrumenth conveying, encombering or otherwise affecting title to real properly on behalf of the entity is MEDHERRANEAN AVENUE LLC, A COLORADO LIMITED LIABILITY COMPANY 6, The authority of the foregoing person(s) to bind the entity: X. 2 not limited is limited as follows: 7, Other matters concerning the manner in which the entity deals with interests in real propertyÂ·: 8, This Statement of Authorily is executed on behalf of the entity pursuant to the provisions of Â§38-30-172, C.R.S.3 9, 'Ihis Statement of AuthoIity amend& and supersedes in all respects any and all prior dated Statements of Authority executed on behalf of the entity. (Signature and Notary Acknowledgment on Second Page) 1 Ihis form should not be used unless the entityis capable of holding title to leal property. 2 The absence o f any limitation shall be prima facie evidence that no such limitation exists. 3 The statement of authority Ernst be recorded to obtain the benefits of the statute. 1.and TItle Form 13759 03/2005 soa.odi Q62007898 {26951244} pglof2 GUM.Nal COMPANY .. . RECEIVED JUN 06 2017 1 41- Executed tbis day of buy(41-1 5414 ca@2~~ DEVELOPMENT 1#ARR FRIEDLIsli AS MANAGER OF MEI)IIERRANEAN AVENUE LI,C, A COLORADO LIMnED LIABILITY COMPANY, AS MANAGER OF INDIANA AVENUE LLC, A COLORADO LIMITED LIABILIY COMPANY State of COLORADO ) )SS County of PITKIN ) Mi The foregoing instrument was acknowledged before me this / - day of 06(Â»7264 930* by MARK FRIEDLAND, AS MANAGER OF MEDITERRANEAN AVENUE LLC, A COLORADO LIMITED LIABILITY COMPANY, AS MANAGER OF INDIANA AVENUE LLC, A COLORADO LIMITED LIABILIY COMPANY Witness my hand and official seal.U /10 11120 ' .0 My commission expires: 1 1 Notary Public WIIEN RECORDED RETURN TO: INDIANA AVENUE LLC ' 623 EAST HOPKINS ASPEN, CO 81611 KIMPERLYIEEE~~--] NO1)1Ry PUBLIC 81*TE OF COLORADO / NOTARY iD 20124022396 ~MY COMMISSION E~RE~APRIL 28,~*~ Form 13759 03/2005 soa.odt Q62007898 {26951244} pg 2 of 2 .. ATTACHMENT 5 .. CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Ben Anderson, 429.2778 DATE: 5/24/17 PROJECT: 219 E Durant Avenue, Dancing Bear REPRESENTATIVE: Richard Y. Neiley, Jr. Neiley Law Firm DESCRIPTION: The applicant wishes to appeal an Administrative Determination issued on May 24 2017. The determination is related to the location of Permanent Rooftop Amenities (hot tubs and fire features) on the roof-top deck of the Dancing Bear at 219 E. Durant Avenue. The applicant has 14 days from the date of the determination to submit an appeal (by 5pm on June 8,2017) Land Use Code Section(s) 26.304 Common Development Review Procedures 26.316 Appeals Link to the Land Use Code: http://www.aspenpitkin.com/Departments/Community-Development/Planning-and Zoning/Title-26-Land-Use-Code/ Review by: Staff for complete application Administrative Hearing Officer for determination Public Hearing: Yes, at Hearing Officer's determination Planning Fees: $1,300 Deposit for 4 hours of Staff time (additional planning hours are billed at a rate of $325/hour) $700 Deposit for 4 hours of Hearing Officer time (additional hours are billed at a rate of $175/hour) Total Deposit: $2,000.00 To apply, submit the following information: U Appeal Letter - a written description of the appeal Il Signed fee agreement. El Pre-application Conference Summary (this document). m Applicant's name, address and telephone number in a letter signed by the applicant that states the name, address and telephone number of the representative authorized to act on behalf of the property owner. ASLU Appeal, Administrative Determination 219 E. Durant Avenue Page 1 of 2 .. U A written description of the appeal including all supporting documents. Documents must be of record, E] 1 Complete Copy. If the copy is deemed complete by staff, the following items will then need to be submitted: 0 1 additional Copies of the complete application packet and, if applicable, associated drawings. m Total deposit for review of the application. U A digital copy of the application provided in pdf file format. Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. Page 2 0 f 2 .. ATTACHMENT 6 e. . . P eimit No. COMMUNITY DEVELOPMENT DEPARTMENT .. Homeowner Association Compliance Policy All applications for a building permit within the City of Aspen are required to include a certification of compliance with applicable covenants and homeowner association policies. The certification must be signed by the property owner or Attorney representing the property owner. The following certification shall accompany the application for a permit. Subject Property: 1,-Â·42 +JUA ?\A' . 2-0 fghtÂ»&%24&' RECEIVED Ffs , 491Btgo AsifAN JUN 0 6 2017 &\A E.'boÂ·r~Â¥ 1\42) Asth CO Cl TÂ¥ OF ASPEN. :OUWNITY DEVELOPMENT. 1, the property owner, certify as follows: (pick one) U This property is not subject to a homeowners association or other form of private covenant. -Fl This property is subject to a homeowners association or private covenant and the improvements proposed in this building permit do not require approval by the homeowners association or covenant beneficiary. U This property is subject to a homeowners association or private covenant and the improvements proposed in this building permit have been approved by the homeowners association or covenant beneficiary. [ understand the City of Aspen does not interpret, enforce, or manage the applicability, meaning or effect of private covenants or homeowner association rules or bylaws. I understand that this document is a public document. , Owner signature: date: Owner printed name: or, Attorney signature: date: 5 Jll ~ 13. Attorney printed name: i 6*ad W ke,6 9. November, 2014 City of Aspen I 130 S. Galena St. I (970) 920-5090 .. RECEIVED JUN 0 6 2017 CITY OF ASPEN COMMUNITY DEVELOPMENT ATTACHMENT 7