HomeMy WebLinkAboutcoa.lu.su.Kastelic.A82-96
DATE RECEIVED:
DATE COMPLETE:
PARCELID#
CASEnn SUMMARY SHEET - CITY OF ~EN
11/4196 CASE # A8t-~6
STAFF: Kim Johnson
2737-181-57-01
Kastelic Subdivision Extension fo Vested Rights
Lot 1, Kastelic Subdivision
B.A. Powell Limited Partnership
PROJECT NAME:
Project Address:
APPUCANT:
AddresslPhone:
REPRESENTATIVE: PaulJ. Taddune
AddresslPhone: 323 West Main ST. Suite 301 Aspen 925-9190
RESPONSffiLE PARTY: Representative
Other Name/Address:
FEES DUE
PLANNING
,ENGINEER
HOUSING
ENV HEALTH
CLERK
TOTAL
FEES RECEIVED
$1050 PLANNING $1050.
$0 ENGINEER $
$0 HOUSING $
$0 ENV HEALTH $
$0 CLERK $
$1050. TOTALRCVD $1050.
# APPS RECEIVED 1
# PLATS RECEIVED
GIS DISK RECEIVED:
TYPE OF APPUCATION
One Step
P&Z
CC
CC (2nd readin
REFERRALS:
o City Attorney
o City Engineer
o Zoning
o Housing
o Environmental Health
o Parks
o Aspen Fire Marshal
o City Water
o City Electric
o Clean Air Board
o Open Space Board
o Other:
o CDOT
o ACSD
o Holy Cross Electric
o Rocky Mtn Natnral Gas
o Aspen School District
o Other:
DATE REFERRED:
INITIALS:
DATE DUE:
APPROVAL:
OrdinanceIRes01ution #
Staff Approval
Plat Recorded:
Date:
Date:
Book
,Page
CLOSEDIFILED
ROUTE TO:
DATE: ~-:/I'
INITIALS: d-
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RECEIVED
MAY 2 0 1991
LAW OFFICES OF
PAUL}. TADDUNE, P.c.
323 WEST MAIN STREET, SUITE 301
AsPEN. COLORADO 81611
CO A.SPEN, O!TKIN
MMUN/TY DEVELOPMENT
PAUL J. TADDUNE, P,e.
WILLIAM K. GUEST, P.C, OF COUNSEL
ANDREW H. BUSCHER, OF COUNSEL
May 16, 1997
TELEPHONE (970) 925-9190
FACSIMILE (970) 925-9199
Mitch Haas, City Planner
City of Aspen
130 S. Galena Street
Aspen, CO 81611
Dear Mitch:
This will confirm our conversation that the RA. Powell Johnson LTD and Win Win
LLC application to extend vested rights is hereby withdrawn.
Please call me if you have any questions.
Very truly yours,
PAUL J. TADDUNE, P.C.
~
Paul J. Taddune
PJT:jec
C,IWP\PAUL\LETTER\MT.PIT
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MEMORANDUM
TO:
Mayor and City Council
THRU:
Amy Margerum, City Manager /--1?, /'
Stan Clauson, Community Development Directg;- ~ y
Julie Ann Woods, Community Development Deputy Directo .' \
Mitch Haas, Planner ~
April 14, 1997
THRU:
FROM:
DATE:
RE:
Win Win LLC/Kastelic Vested Rights Extension - Request to Continue
Second Reading of Ordinance No. 42, Series of 1996
Staff requests that second reading of Ordinance 42-96 be continued to July 14, 1997.
After a public meeting of the Aspen Planning and Zoning Commission on January 21,
1997, whereby the applicants were granted Stream Margin (ESA) Review approval (7-0)
pursuant to the current standards of Section 26.68.040, the applicant requested to have the
vested rights extension application continued to March 10, 1997. The continuation of
second reading before Council provided the applicants with a thirty day public appeal
period of the Stream Margin Review approval while maintaining their request for vested
rights extension. This thirty day public appeal period has since expired, and no appeals
were filed.
The applicant has, nonetheless, requested that the hearing be continued to the July 14,
1997 Council hearing in order to allow for the closing on the sale of the property to take
place. That is, the applicant desires to keep as many options as possible open until the
final sale of the property is completed. Once the closing takes place, the applicant will
more than likely withdraw the requested extension. In staffs opinion, accommodating
the applicant's request to continue the hearing would not cause any hann to the public
good, nor would it conflict with any provisions of the Code.
Staff recommends that Council continue the item to July 14, 1997.
,-..,.
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MEMORANDUM
"" iL,
TO:
Mayor and City Council
THRU:
Amy Margerum, City Manager /:.v 'r
Stan Clauson, Community Development Director c;,.
Julie Ann Woods, Community Development Deputy Director
Mitch Haas, Planner ~ '
THRU:
FROM:
DATE:
March 10, 1997
RE:
Win Win LLC/Kastelic Vested Rights Extension - Request to Continue
Second Reading of Ordinance No. 42, Series of 1996
Staff requests that second reading of Ordinance 42-96 be continued to April 14, 1997.
After a public meeting of the Aspen Planning and Zoning Commission on January 21,
1997, whereby the applicants were granted Stream Margin (ESA) Review approval (7-0)
pursuant to the current standards of Section 26.68.040, the applicant requested to have the
vested rights extension application continued to March 10, 1997. The continuation of
second reading before Council provided the applicants with a thirty day public appeal
period of the Stream Margin Review approval while maintaining their request for vested
rights extension.
This thirty day public appeal period has since expired, and no appeals were filed. In
staff s opinion, there is no remaining reason for the extension request to be processed, but
the applicant has not formally withdrawn the request. As the applicant could not be
reached, staff felt the most appropriate solution would be to continue the hearing, rather
than make any decisions. If the applicant would like to withdraw the request, they can
still do so before the April 14, 1997 hearing. If they would like to continue to process the
request, staff would gain time to understand the reasoning behind such a desire.
Staff recommends that Council continue the item to April 14, 1997.
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MEMORANDUM
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TO:
Mayor and City Council . /
Amy Margerum, City ManagerlU!
Stan Clauson, Community Development Directo~
THRU:
FROM:
DATE:
January 27, 1997
RE:
WinWin LLC/Kastelic Vested Rights Extension - Request to Continue
Second Reading of Ordinance No. 42, Series of 1996
The applicants request that second reading of Ordinance 42-96 be continued to March 10,
1997. This request was made after a public meeting of the Aspen Planning and Zoning
Commission on January 21, 1997, whereby the applicants were granted Stream Margin
(ESA) Review approval (7-0) pursuant to the current standards of Section 26.68.040. The
continuation of second reading before Council will provide the applicants with a thirty
day public appeal period of the Stream Margin Review approval while maintaining their
request for vested rights extension.
Staff recommends that Council open the public hearing and continue the item to
March 10, 1997.
FROM :HERBERT S~ ~LEJN a RSSOC TO
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+970 920 5439
1997,1211-22
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HERBERT s. KiEIN & ASSOCIATES, P.C.
HERBEAT S. >a.EJN
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January 22, 1997
VIA FAX, ~2a-5439
Scan Clausen
Aspen community Development Director
130 South Galena Street
Aspen, Colorado S1611
Re: Lots 1 and 2, Kastelic Subdivision - Extension of Public
Hearing
Dear stan:
As we discussed at last night's Planning Commission meeting on~
this matter, we wish to continue the pending City Council Public
Rearing on our extension of vested rights application from
January 27, 1997, to March 10, 1997. It is suggested that Covnci~
open the hearing at its regular m~eting on January 27 and then
continue consideration until March 10.
I have spoken with Paul Taddune. the attOl:'ney for the owner of
the property and the applicant in this matter. Paul has authbriz~d
me to confirm that it is also his desire to have the publiC hearing
continued until March 10.
I would appreciate receiving a short note of confirmation from
you that the hearing will be handled in the manner set forth in
this letter and continued until March 10, 1997_ Thank you very
much for your cooperation. please call me . if you have any
questions.
Very truly yours,
HERBERT S. KLE:JiN & ASSOCIATES, l? C .
By: He~. Klein -.'
HSK\rf
cc: Paul Taddune, Esq.
Larry Winnerman
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MEMORANDUM
TO:
Aspen City Council
THRU:
Amy Margerum, City Manager
Stan Clanson, Commnnity Development Di;ector~
December 9, 1996
FROM:
DATE:
RE:
WinWin LLC/Kastelic Vested Rights Extension - Request to Table Second
Reading of Ordinance # 42, Series of 1996
The applicants request that second reading be tabled to January 13, 1997. This request
was made after a meeting between staff and project representatives Herb Klein and Bill
Campbell where development alternatives were discussed. The tabling will allow the
applicants additional time to consider the alternatives. Staff also requested that proposed
building envelopes be staked on the site prior to continuing the item before Council.
Please refer to the November 27 letter from Herb Klein, attached.
Staff recommends that Council table this second reading to the January 13 meeting.
,-..,
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PUBLIC NOTICE
RE: WINWIN LLC VESTED RIGHTS EXTENSION
NOTICE IS HEREBY GIVEN that a public hearing will be held on Monday, December 9, 1996
at a meeting to begin at 5:00 p.m. b~fore the Aspen City Council, City Council Chambers, City
Hall, 130 S. Galena St., Aspen, to consider an application submitted by Win Win LLC and B.A.
Powell, LLC, requesting an extension of a previous vested right. The property is described as Lot 1
and Lot 2 Kastelic Subdivision. For further information, contact Mary Lackner at the AspenlPitkin
Community Development Department, 130 S. Galena St., Aspen, CO (970) 920-5106.
stJohn Bennett. Mayor '
Aspen City Council
Published in the Aspen Times on November 30, 1996
City of Aspen Account
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MEMORANDUM
VIHb
TO:
Aspen City Council
THRU:
Amy Margerum, City Manager
FROM:
Stan Clauson, Community Development Director
DATE:
December 9, 1996
RE:
WinWin LLC/Kastelic Vested Rights Extension - Request to Table Second
Reading of Ordinance #42, Series of 1996
The applicants request that second reading be continued to January 13, 1997. This request
was made after a meeting between staff and project representatives Herb Klein and Bill
Campbell where development alternatives were discussed. The continuation will allow the
applicants additional time to consider the alternatives. Staff also requested that proposed
building envelopes be staked on the site prior to continuing the item before Council. Please
refer to the November 27 letter from Herb Klein, attached.
Staff recommends that Council open the public hearing and continue the item to January 13,
1997.
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LAW OFFICES OF
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DEe 0 2 1996 TaLU",D' OFFICE:
. P.O. BOX215
cc....Yf 300 WEST COLORADO AVENue
~ C~V!'_ ''''''''_'''.,: SUlTE2B
URrCE, COLORADO 81435
(970) 72S-S151
TE!..ECOprER (970) 728-3069
HERBERT S. KLEIN & ASSOCIATES, P.
HERBERT S. KLEIN
MILLARD J. ZIMET*
MICHELE NELSON'
THOMAS G. KENNEDY<
20t NORTH MILJ.. STREET
SUITE 203
ASPEN, COl..ORADOB1611
(970) 925-8700
TEI.ECOPIER (970) 925.39n
OF COUNSEL:
DALE DUNCAN"
MYRON ROSCHKCT"I
JACQUEUNE L GARDNER
*a1sc admilted in New YO/K
6aJso 3dmilted in Califomiaand Hawaii
~a1SOadmmedinMalylar1d
"'a1soadmilted in Texas and the
Disllid of Columbia
"alsoadmilledin Calilornia
Novemb~r 27, 1996
RIDGWAY OFfICE:
122 VIl1..AGE SQUARE WEST
RIDGWAY, CO 81432
(970)828-3888
TEI.ECO?IER (970) 628-3977
Stan Clausen
Aspen Community Development Director
130 S. Galena Street
Aspen, CO 81611
Re: Lots 1 and 2, Kastelic Subdivision - Extension of Public
Hearing
Dear Stan:
I appreciated the opportunity to meet with you, Bob and Kim
last week to discuss issues concerning the above-referenced
property and it's pending hearing scheduled for December 9, with
City Council on the application for extension of vested rights. In
order to have an opportunity to work with staff on defining the
siting requirements for the property, we mutually discussed and
agreed that it would be a good idea to continue the public hearing
from December 9th until January 13, 1997. We ,have already sent
notices and posted the notice for the hearing on December 9th and
suggest that Council open the hearing at its regular meeting on
December 9th and then continue consideration until January 13th.
I have spoken with Paul Taddune, the attorney for the owner of
the property and the applicant in this matter. Paul has authorized
me to confirm that it is also his desire to have the public hearing
continued until January l3.
I would appreciate receiving a short note of confirmation from
you that the hearing will be handled in the manner set forth in
this letter and continued until January 13, 1997. Thank you very
^
-,
Stan Clausen
November 27, 1996
Page 2
much for your cooperation. We expect to get back with you within
the next couple of weeks to review a proposal for siting buildings
on the property. Please call me if you have any questions.
Very truly yours,
HERBERT S. KLliIN & ASSOCIATES,
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P.C.
By:
Herbert S. Klein
HSK\rf
cc: Paul Taddune, Esq.
Larry Winnerman
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LAW OFFICES OF
o 2 19:~u.uRIDEoFFlcE:
" P.O.BOX215
~ 300 WEST COLORADO AVENUE
SUITE 28
RIDE, COLORADO 81435
(970) 728-5151
TELECOPJER (970) 728-3069
HERBERT S. KLEIN & ASSOCIATES, P.
HERBERT S. KLEIN
MILLARD J. ZIMET*
MICHELE NELSON'
THOMAS G. KENNEDY"
201 NORTH MILL STREET
SUITE 203
ASPEN, COLORADO 81611
(970) 925-B7oo
TELECOPIER (970) 925-3977
OF COUNSEL:
DALE DUNCAN"
MYRON RaSCHKe>"
JACQUEUNE L GARDNER
*a1s0admiltedinNewYclk
~lsoadmilledinCalifomjaandHawaji
~alsoadmmedjnMaryland
'"a1scallmilted in Texas and !he
Oislriclof CoJumbia
"alsoadmilledinCalifornia
November 27, 1996
RIDGWAY OFFICE:
122 VILLAGE SQUARE WEST
RIDGWAY, CO 81432
(970) 626-3888
TELECOPfER (970) 626-3977
Stan Clausen
Aspen Community Development Director
130 S. Galena Street
Aspen, CO 81611
Re: Lots 1 and 2, Kastelic Subdivision - Extension of Public
Hearing
Dear Stan:
I appreciated the opportunity to meet with you, Bob and Kim
last week to discuss issues concerning the above-referenced
property and it's pending hearing scheduled for December 9, with
City Council on the application for extension of vested rights. In
order to have an opportunity to work with staff on defining the
siting requirements for the property, we mutually discussed and
agreed that it would be a good idea to continue the public hearing
from December 9th until January 13, 1997. We have already sent
notices and posted the notice for the hearing on December 9th and
suggest that Council open the hearing at its regular meeting on
December 9th and then continue consideration until January 13th.
I have spoken with Paul Taddune, the attorney for the owner of
the property and the applicant in this matter. Paul has authorized
me to confirm that it is also his desire to have the public hearing
continued until January 13.
I would appreciate receiving a short note of confirmation from
you that the hearing will be handled in the manner set forth in
this letter and continued until January 13, 1997. Thank you very
,
.
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Stan Clausen
November 27, 1996
Page 2
much for your cooperation. We expect to get back with you within
the next couple of weeks to review a proposal for siting buildings
on the property. Please call me if you have any questions.
Very truly yours,
HERBERT S. ~N & ASSOCIATES,
~/ .L--
Herbert S. Klein
P.c.
By:
HSK\rf
cc: Paul Taddune, Esq.
Larry Winnerman
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BoctioJL1: r rursu3nt to tno findings Fot forth in Section 2 abovo,
,
the city Council does hereby grant subdivision and PUD approval of
the Kastelic property, con!Jisting of 2 lots, each containing ar.
existing
single-family dl"cUing unit,
with
the
following
conditions:
1. Due to slope densitl' ruduction calculations, only a single-
family home plus any acce!:5ory dwelling unit or building, is
permitted on each lot pursu/lnt to the Municipal Code for single-
family homes in the R-15 zone district,
0/2. Prior to the issuance of ilny demolition, excavation or building
permits for Lot 1 or Lot 2, st~eam margin r.eview (if applicable),
shall be required.
3. The rear yard setback tor Lot 1 shall be varied from the
required ten feet to five I feet for the existing residential
,
structure. The redevOlopment\of Lot 1, through the replacement of
the existing residential ~tructure, shall comply with the
dimensional requirements of t~e R-15 zo~~ district and the approved
building envelo, pe, unless val\ied through the pUD review process.
If the existing residential structure on Lot 1 is damaged or
destroyed in whole or in part, :any reconstruction shall occur under
the applicable provisions of ith:'! l1unicipal Code. This shall be
noted on the subdivision plat.
4. Prior to the issuance of a~y building permits for Lot I ~r Lot
2, tree removal permits shall im required for any trees over 6" in
caliper that are removed or relocated.
5. A final plat shall be reviewed and approved by the Engineering
and Planning Departments. The plat sh.>ll include the book and page
of the recording and current improvements as would be required for
redevelopment.
6. The final subdivision plat shall be filed within 180 days of
final approval. Failure to file said plat and subdivision
agreement within 180 dftYs shall render the subdivision approval
void.
7. Prior to the issuance of any building permits [or Lot I or Lot
2, the applicant shall consult; with the City Engineer to determine
whether a drainage analysis is'nocessary.
8. Upon redevelopment of Lot I or Lot 2, by the demolition and
replacement of the existing residential dwelling on sllch lot, the
developer of sllch lot shall lIpgrade all utilities on suchlat and
locate them underground as required on such lot.)
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9. The applicant shall adhere to all representations made in the
applicat,ion and during the review process.
I'
10. Prior to the issuance of any building permits, a review of any
proposed changes from the approvals, as set forth herein, shall be
made by the planning and Engineering Departments.
lL The recorded final plat shall i,nclude the revised building
YI envelopes indicating that thQ tn",s are being protected and that
the envelopes are out of the propo~ed trail alignment. At the time
of stream margin review application, the applicant may request to
vary the building envelope depending on then existing site
conditions. This language shall be ~eflected on the final plat.
B60tion ~:
Pursuant to Section 24-6-207 of the Municipal Code,
City Council does hereby grant the applicant vested rights for the
Kastelic sUbdivision/PUD development plan as follows:
1. The rights granted by the site specific development plan
approved by this ordinance shall remain vested for three
(3) years from tha date of final adoption specified
belOl,'. However, any failure to abide by the terms and
conditions attendant to this approval shall result in
forfeiture of said vested property rights. Failure to
timely and properly record all plats and agreements as
specified herein and or in the Municipal codn shall also,
result in the forfeiture of said vested rights.
2. The approval grantec1 hereby shall be subject to all
rights of referendum and judicial review.
.
J. Nothing in the approvals provided in this Ordinance shall
exempt the site specific development plan from subsetjuent
reviews and or approvals required by this ordinance or
the general rules, regulations or ordinances or the City
provided that such reviews or approvals are not
inconsistent with the approvals granted and vested
herein.
4.
The establishment herein of a vested property right shall
not preclude the application of ordinances or regulations
Which nre general in nature and are applicable to all
property subject to land use regulation by the city of
ASf..en including, but. not limited to, building, fire,
plumbing, elect\: ica 1 and mechanica I codes. In th is
reSlard, as a condition of this site develppment approval.
the developer shall abide by any and all such building,
fire, plumbing, electrical and mechanical codes, unless
an exemption therefrom is granted in writing.
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"362983 11/08/93 10109 Rile t.25.00 ElK 729 F'G 782
Silvia Davl~. F'ltkln Cnty Clark, Doe ..00
Bection SI If any section, sUbsection, sentence, clause, phrase,
I I
or portion of this Ordinance is for any reason held invalid or
~nconstitutional in a court of competent juriSdiction, such porLlon
shall be deemed a separate, distinct and independent provision and
shall not affect the validity of the remaining portions thereof.
Bection 6:
This Ordinance shall not effect any existing
litigation and shall not operate as an abatement of any acl:ion or
proceeding now pending under or by virtue of the ordinances
repea'l ed or amended as here in prov ided, a nd the same sha 11 be 1
conducted and concluded. under such prior ordinances. Ii
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Bection 7: A public hearing on the Ordinance shall be held on the
"
-M day of ~ 1993 at 5:00 in the City Council Chambers, ii'
Aspen City Hall, Aspen Colorado, fifteen (IS) days prior to which
hearing a public notice of the same shall be published in u
newspaper of general circulation within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law,
~~""Oil of tho City of
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('.' . '. John
". Ka.~hryn
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1!2;-'! "~;LI;Y, adopted, passed
WLL _' 1993.
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Aspen on
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annett,
the
day of
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and approved this oP~ day of
~5'1>.~
John B nnett, Mayor
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MEMORANDUM
Vie:.-
TO:
Mayor and City Council ~ . I I
Amy Margerum, City Manage{JW ,
Stan Clauson, Community Development Directoo/
THRU:
FROM:
DATE:
November 11, 1996
RE:
Kastelic SubdivisionlPUD Extension of Vested Rights (Winwin LLC)
----------------------------------------------------.--------------------------------------------------------
SUMMARY: B.A. Powell Limited Partnership and Winwin LLC (applicants) request a
six month extension of vested rights for a two parcel subdivision which was approved
with conditions in 1993. The property is located along the bank of the Roaring Fork
River at 570 Riverside Drive. Building envelopes were specified on the approved plat.
The approval was conditioned upon Stream Margin approval for any permitted
development on the two lots. As part of the extension request, representative Paul
Taddune seeks to have "an extension of vested rights be granted so that the land
development regulations in place and applicable to the property in 1993 be counted, to
avoid penalizing Mrs. Johnson and her family for not being aggressive in developing the
property. "
Since the 1993 approval of the subdivision, the City adopted revised Stream Margin
Review standards which affect the buildable areas on the two subject lots. Therefore the
building envelopes on the plat are not current with today's required river-side setbacks.
Community Development staff does not recommend any extension of vested rights for
this property. There are no changes to the property's situation which should compel
additional vested rights. Current Stream Margin Review standards should be applied to
any development on the parcels.
PREVIOUS COUNCIL ACTION: This subdivision was approved by Ordinance 49
Series 1993. Lengthy discussions about saving trees, potential trail alignments, and
building envelopes were part of the P&Z and Council review.
BACKGROUND: Please refer to Exhibit A for application and copy of original approval
ordinance 49, Series 1993. The adoption of Ordinance 49 approved the two lot
subdivision with conditions. The plat was filed which made permanent the configuration
of the lots and development rights for each. Included was a 5 foot rear setback variance
for the existing structure on Lot 1. Upon redevelopment of Lot 1, the R-15 dimensional
requirements (setbacks) and approved building envelope would prevail. The Commission
and Council also stipulated that future development for each lot would be subject to
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Stream Margin Review because the lots and building envelopes were so close to the
riverbed.
In 1995, in response to development along the river which degraded the ecologic and
scenic qualities of the riparian corridor, the P&Z and Council amended the Stream
Margin Review standards to require, among other things, mandatory setbacks for
structures along the river. The revised standards would require new homes on the
Kastelic lots to be further from the riverbank than the building envelopes approved during
the subdivision approval in 1993.
According to the City Attorney, the rights vested in the 1993 subdivision approval are
essentially the right to rely on the Stream Margin Review standards in effect at the time
of the vesting action (see Exhibit B, memo to Stan Clauson). He does not believe that the
1993 vesting action approved using the 1993 Stream Margin Review standards in
perpetuity.
CURRENT STATUS: The application for vested rights was submitted to the Community
Development Department on September 24,1996. The 3 year period of vested rights
expired on October 25, 1996. The City has taken the position that if an application for
extension of vested rights is submitted prior to lapse of the original vested rights, any
extension which might granted by City Council would be retroactive to the expiration
date.
STAFF COMMENTS: Section 26.100.100; Expiration of development order, of the
Municipal Code states that development allotments and all other development approvals
shall expire on the third anniversary of this date, unless a building permit is obtained and
the project developed, or unless an exemption from or extension of the approval is
obtained. To obtain an extension, an application shall be submitted which shall
demonstrate to the satisfaction of City Council that:
a) Those conditions applied to the project at the time of its final approval that were to
have been met as of the date of application for exemption have been complied with;
RESPONSE: Aside from the requirement to record the plat within 180 days of approval,
other conditions of approval are required to be met prior to the issuance of any building
permits.
b) Any improvements that were required to be installed by the applicant prior to
construction have been installed;
RESPONSE: No public improvements were required until demolition and replacement
of dwellings on the lots.
c) The project has been diligently pursued in all reasonable respects, and the extension
is in the best interests of the community.
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RESPONSE: There has been no evidence that the owner ofthe parcels have pursued
redevelopment of the lots. No informal discussion or formal pre-application meetings
with staff have taken place during the last three years. The property was listed for sale
and has recently been placed under contract with Larry and Lorrie Winnerman.
Staff finds that the community's interest would be harmed by granting extended vested
rights (including use of the 1993 Stream Margin Review standards) for this property. The
old Stream Margin Review standards were inadequate at best in protecting the riparian
habitats and the river-as-a-greenbelt community asset. We have seen several examples of
pre-1995 stream margin projects where construction right along the riverbank has caused
obvious visual or physical degradation of the river bank and native habitat corridor. The
fact that the Council and P&Z strongly favored the code amendments shows the level of
concern to improve and protect the river's future.
The applicant states that the Council has granted several extension of vested rights. This
has been true to some extent over the past six or more years. However, Council has not
taken these extensions lightly. These approvals have revolved around large "projects-in-
progress" such as the Bell Mountain Lodge/Independence Place project or the Aspen
Institute/Aspen Meadows project. Staff does not believe the Kastelic lots to be in the
same category as these other examples.
S-TAFF RECOMMENDATION: Community Development staffrecommends denial of
an extension of vested rights for the Kastelic Subdivision PUD, finding a lack of
community benefit to support an extension.
If Council wishes to approve an extension of vested rights, staff has prepared Ordinance
'f:L, for first reading (Exhibit C.)
ALTERNATIVE RECOMMENDATIONS: Council may approve a different duration
for extension of vested rights, or deny the extension of vested rights.
RECOMMENDED MOTION: "I move to deny the six month extension of vested rights
for the Kastelic Subdivision PUD."
CITY MANAGER'S COMMENTS:
Exhibits:
A - Application Letter and Ord. 49 Series 1993 from Paul Taddune
B - Memo from John Worcester to Stan Clauson - 1111196
C - Ordinance I{~ Series 1996
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PUBLIC NOTICE
RE: WINWIN LLC VESTED RIGHTS EXTENSION
NOTICE IS HEREBY GIVEN that a public hearing will be held on Monday, November 25, 1996
at a meeting tobegin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City
Hall, 130 S. Galena St., Aspen, to consider an application submitted by WinWin LLC, requesting
an extension of a previous vested right. The property is described as Lot I and Lot 2 Kastelic
Subdivision. For further information, contact Mary Lackner at the Aspen/Pitkin Community
Development Department, 130 S. Galena St., Aspen, CO (970) 920-5106.
s/.John Bennett. Mayor
Aspen City Council
Published in the Aspen Times on November 9, 1996
City of Aspen Account
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THE OTY OF ASPEN
OFF!CE OF THE CITY ATTORNEY
November 1, 1996
Herbert S. Klein, Esq.
201 North Mill Street, Suite 203
Aspen, Colorado 81611
Re: Kastelic SubdivisionlPUD
Dear Herb:
Enclosed please find a copy of the memo I promised to prepare at ,our meeting last
Friday (October 25, 1996). You will note that I have concluded that the granting of
vested rights in 1993 included the right to have the stream margin review conducted
under the then existing regulations.
Late Wednesday afternoon I received a hand delivered letter from you which purports
to confirm the conversation we ~had at our last meeting, and sets forth your legal
theories on the status of the vested rights and stream margin review requirements for
the Kastelic subdivisionlPUD. The following is my response to that letter. '
Let me begin by noting that I was surprised at the tenor and tone of your letter. Based
upon our past dealings, limited as they may be, I am disappointed in your efforts to
'paint the City, and me, as co-conspirators to illegally deprive your clients of their
property rights. The City has never', as long as I have been here, come even remotely
close, to behaving in the manner you imply it has in this matter. At one point you
suggest that the City's attempt to enforce its Land Use Code "as being suspect and
motivated for the purpose of lowering the City's condemnation cost." At another, you
suggest that should the City require your clients to proceed under the 1995 stream
margin review process it will be motivated by its ability to illegally exact a trail
easement. The accusations are ridiculous and internally inconsistent even if you are to
assume a nefarious motivation on the part of the City. If a trail easement can be exacted
I through the stream margin review process, why would the City conspire to reduce the
value of the property to obtain lower condemnation c6sts?
130 SOUTH GALENA STREET. ASPEN, COLORADO 81611 . PHONE 303.920.5055 . FAX 303.92Q.5119
P,inledonr<<ydedp.opcr
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Herbert S. Klein, Esq.
November 1, 1996
Page 2
For everyone's sake, I think it would be useful to review the history of this particular
property and offer you my thoughts on the legal issues that you raise in your letter. I
will also confirm my understanding of the matters discussed in our last meeting as I
take issue with many of the observations you make in your October 30, 1996, letter on
this subject.
, The City's interest in a trail along the Roaring Fork River is by no means a secret. It
has been identified as a desirable ,corridor in numerous City documents over the years.
(See e.g., Pedestrian Walkway and Bikeway System which was made an Addendum to
the 1990' Aspen Area Comprehensive Plan, and the, Open Space/Recreation and
Environmental Action Plan of the 1993 AspenArea Community Plan.) It was discussed
with the Kastelic representatives at the time the subdivision was approved in 1993.
Indeed, the ordinance itself makes reference to the City's interest in acquiring a trail
easement. "[T]he Commission recognized that a trail easement cannot be required as
part of this subdivision but would urge the applicant to consider granting an easement
to help complete the City's trail system along the river." (Ninth "Whereas" clause of
Ordinance 49, Series of 1993.) Since 1993, members of the City staff have met on
numerous occasions with Paul Taddune who represented the Kastelic estate and
subsequent owners regarding the City's interest in a trail easement. Those discussions
were held with members of Council, numerous visits were made to the site, alternative
trail locations have been studied at the request of the property owners, and discussions
were held to not only purchase a trail easement, but the entire lots. Before any of
those matters were successfully concluded, your clients apparently put the lots under
contract.
Upon learning that your clients had put the property under contract, City staff
immediately contacted your clients to ensure that ,they were aware of the City's interest
in the property. This was purposefully done so that they would know before the
purchase was consummated that the City trail system might traverse the property.
Discussions were held concerning alternative trail alignments, and the City's intent on
connecting existing trail easement East of the property with the Anderson parcel to the
West. During this period of time, the status of Mr. Taddune's request for an extension
of the vested rights was not clear. City staff members met with your clients on site on
at least two occasions, the first time no more than 13 days after receiving Mr.
Taddune's request for an extension of vested rights. (At the time, staff was not even
sure what rights were being requested to be extended.) Moreover, it appeared, during
at least some of this time, that everyone's interests could be accommodated eitber by
agreeing on a trail alignment or the City purchasing your client's interests in the
property. In those discussions Mr. Taddune never indicated any' pres~ing ,need to
pursue the extension of vested rights; the discussions centered on the alternative
alignments of the trail and the need for a stream margin review. In any event, the
request for an extension of vested rights was not acted upon while these matters got
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Herbert S. Klein, Esq.
November 1. 1996
, Page 3
resolved, or, at least became clearer., It is simply not true that the City engaged in any
"dilatory tactics" to delay the processing of the request. It is equally not true that the
"City is determined to develop the trail along the river" as you suggest in your letter.
The City's interest remains the same as it has been for some time. It wants to complete
an important .trail link, it would prefer to make the trail as enjoyable as possible to
potential users by locating in close proximity to the Roaring Fork River, and will
continue to work with property owners to minimize the impacts of the trail along the
preferred corridor. If an alternative trail easement can be located so as to avoid unduly
impacting the Kastelic property and such an alternative does not unreasonably detract
from the overall experience of walking or biking along such a trail, that is what the
City is "determined' to accomplish. Amy Margerum at our last meeting specifically
informed you and your clients that the City would continue to try to make alternative
aligmnents work and return to City Council with options.l
In your letter you raise serious and important issues concerning the enviromnental
impacts such a trail will have upon the riparian areas along the proposed trail corridor.
Please be assured that the City has always worked in close cooperation with the Corp.
of Engineers and State and local wildlife officials to ensure that the devastation you
refer to will not occur. The trail corridor to the east of the Kastelic subdivision has
been very carefully designed after consultation with numerous federal, state, and local
officials and interested members of the public to entirely avoid or minimize any
enviromnental disturbance.
My memorandum to Stan Clauson which I have enclosed addresses many of the issues
you raise concerning the vested rights associated with the Kastelic subdivision. While I
agree that the vested rights granted in 1993 vested the owners with the right to rely on
the stream margin review regulations in effect in 1993, I do not agree that those rights
are "permanently vested" as you opine in your letter. The vested rights (in other
words, the right to rely on the laws in existence at the time of the approvals) were for
definite period 'Of three years. Those rights expired on October 25, 1996. Council may
choose to extend those rights, but it is not accurate to state that they are "permanently
vested. "
In your letter you attribute to me a statement I do not recall making or, at least, did not
intend to make. While it is true that during this phase of our discussions everyone
seemed to be trying to talk at the same time, I tried to explain the City's policy with
respect to the filing of requests for extensions of vested rights. What I stated,or
1 The "report" from the City's ~onsultant is not really a report. It is merely his preliminary thoughts on some alternative alignments.
City staft' is a little reluctant to release the report for fear that it will be read as a final report of the' consultant's conclusions. I have,
nevertheless, ask~d the Parks Department to make it available to your clients. f would ask you, however, to caution your clients that
it constitutes the consultants' preUminarythoughts on the issues discussed. When a final report is completed we will also make that
available to your clients.
,.....,.
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Herbert S. Klein, Esq.
November 1, 1996
Page 4
attempted to state, is the City's policy in this regard. In the past, developers and
property owners have sought an extension of their vested rights within a short period of
time before those rights expire. The concern has been that unless City Council acted on
the request before the expiration date that even if Council decided to extend the vesting
period, it could not do so. The City, in order to avoid this problem, and the need to
call City Council to a meeting on very short notice to consider an application for
extending vested rights before the expiration date, adopted a policy that if an
application was properly filed before the expiration date, Council could still consider
the request even after the expiration date. In this situation, if Council extended the
vesting period it would be retroactive to the expiration date and there would be no
lapse in the vested rights. If City Council decided not to extend the vesting period, the
vested rights woul<i expire on'the normal expiration date. Thus, I did not state that "the
filing of the' extension application tolled the expiration of the statutory vesting period
until acted upon by Council." I certainly do not recall using the word "tolled." The
vested rights on the Kastelic subdivision expired on October 25, 1996. The City's
policy allows the City Council to consider the application for an extension after that
date, but it does not automatically extend the vesting period until Council acts upon the
request or "tolls" the expiration date.
Whether Mr. Taddune's request for an extension of vested rights was acted upon by the
City Council on the day it was received or is acted upon in two weeks from now, does
not change your client's legal position. The delay in getting this matter before the City
Council, for whatever reason, certainly in no way prejudices your client's rights. The
1993 ordinance granting vested rights expired on October 25, 1996. City Council may
choose to extend the vesting period in which case the period is extended to the date
they chose. If they deny a request for an extension, the expiration date remains the
same, October 25, 1996. Whether, or not, an application for stream margin review was
filed, or could have been filed, does not alter which stream margin review regulations
are to be applied.
Your characterization of Amy Margerum's comments at our meeting last Friday need
to be corrected. Amy, as the City Manager, is properly concerned with the services all
of the City departments provide to their customers. ,If you will recall, she mentioned
her concern for "customer services" when she spoke of the need to "reject"
applications that were not complete or which were improper under the circumstances.
In the past, the Planning Department would accept and process various applications
.even though they were incomplete or premature for the pUl:pose for which they were
filed. This policy was also instituted in the interest of "customer service." Experience
with this policy, however, showed that it was not in1the customer's interest to accept
applications that were not complete or inappropriate for what the applicant wanted to
achieve. It frequently cost the applicant more time, energy and expense to proceed in
this fashion than if they were told up front that their application. could not be processed.
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Herbert S. Klein, Esq.
November 1, 1996
Page 5
You will recall that I interjected that the City would, of course, accept any application
that was filed for whatever reason. That's not to say that it would be processed, but it
would be reviewed for completeness and appropriateness under the circumstances and
returned to the applicant. That is what happened with your client's application for a
Building Permit.
Your client's Building Permit was returned to them not because, as you assert, that it
"would be futile," but because the City's Land Use Code is clear in requiring that an
applicant have a development order before they become eligible to file an application'
for a Building Permit. Section 26.52.070 of the Municipal Code reads, in relevant part,
as follows:
A. Initiation. Upon receipt of a development order for a development
application required by this title for a proposed development, the
applicant may proceed to apply for a building permit from the chief
building official.
C.1. Recordation, of conditions of development order. Prior to the
submission of an application for a building permit, all documents
required to be submitted as a condition of the development order for
which a bllilding permit is requested, shall be recorded. These
documents may include, but shall not be limited to final plats, any
improvement agreements, any other agreements, and any deed
restrictions which are required by the development order.
A specific condition of the subdivision approval was a stream margin review. No such
review has been undertaken. Thus, the Building Permit application was not complete as
filed. That is the reason it was returned to your clients. Enclosed please find a copy of
the Community Director's letter explaining the reason for the application being
returned to your clients.
Throughout our discussions and in your letter you continue to insist that the City "is
determined to apply the 1995 Regulations to this property." I am not aware of anyone
in the City that is so determined. The simple fact is that if Council grants an extension
of the . vested rights, they can determine as part of that decision, which regulations
would apply as a condition of granting an extension. It is simply premature for anyone
at this point to speculate how Council will decide this matter or to argue about how one
or the other regulation will be applied to the property. .
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Herbert S. Klein, Esq.
November I, 1996
Page 6
You have asked me in your letter what I understand to be a confirmation that the city
will not do anything that is 'illegal under either stream margin review. I can certainly
make such an assurance. Ido not agree with your underlying premise that the stream
margin reviews regulations are proscribed by Dolan v City of Tigard. Again, you are
speculating on what the City will require of property owners. As you know, Dolan
requires an individualized determination of each development and the impacts of that
development against the exactions to be imposed "to mitigate the impacts of the
development. Quite frankly, I don't know what your clients are proposing for the
property or what impacts it might have. I fmd it difficult to believe, however, that any
residential development will cause such an impact upon the City's trail system that an
exaction of a trail easement, will be justified. The City has never considered exacting a
, trail easement on this property. If that was the means of achieving the City's goals, it
could have tried ,to do so at the time of the subdivision approval. It did not. In fact as
pointed out previously, the ordinance specifically states that the City, "recognized that a
trail easement cannot be required as part of this subdivision..."
Although I stated previously that I think it is premature to argue about the merits of the
1993 and 1995 stream margin review regulations until Council, decides which
regulations would apply in the event that they extend the vested rights, I need to
respond to your assertions regarding the 1995 regulations. The amendments to the 1993
regulations were prompted from the City's experience'dealing with developments that
were granted approvals under the 1993 regulations. It is ironic, but your client's
development of a property along the river was one of those experiences that prompted
the Planning Department staff to review the effectiveness of the 1993 regulations. Last
Spring's run-off also provides ample evidence of the need for the 1995 regulations. The
rational basis for the 1995 regulations are clear and indisputable.
Bottom line, Herb, the City has not, and will not, engage in the types of tactics you
imply in your letter to obtain trail easements. This community certainly values its open
spaces and trail system, but I don't believe it would approve of anything remotely close
to the tactics you suggest the City is engaging in to acquire additional trail easements.
Should the City determine that a trail easement is required to traverse your client's
property because no other reasonable alternative exists, it will compensate your clients
for the fair value of that property interest. The City's administrative staff remains ready
to discuss with you and your clients alternative routes and adequate compensation for
any diminution in value a trail easement would cause to the remaining parcels should it
determine that a trail easement is rI~quired.
I trust the discussion of thi~ entire matter can be elevated to the point where City staff
are not unwarrantedly challenged for improper motives in dealing with two separate
issues. I do consider the issues to be separate. One involves the City's interest in
pursuing the acquisition of a trail easement, and the second being the redevelopment of
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Herbert S. Klein, Esq.
November I, 1996
Page 7
your client's property. They are obviously interrelated, but they have been and can
continue to be dealt with as separate matters. The City's actions have been above
board, open, and without any motivation to deprive anyone of their property rights.
I remain ready to discuss these matters further with you. In the meantime, I would
suggest that if your clients want City Council to consider their request for an extension
of their vested rights at,their November 11, 1996, meeting, that they formally make an
application with the Community Development Department on or before Wednesday,
November 6, 1996. (That is the last day that staff has to prepare Council's agenda and
staff reports.) The application must be accompanied by the proper fee which I
understand has not yet been tendered.
Sincerely,
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John P. Worcester
City Attorney
Enclosures: Memo to Stap. Clauson dated November 1, 1996
Copy of Letter from start Clauson dated October 28, 1996, to Mr. and
Mrs. Lawrence Winnerman
cc: City Manager
Community Development Director
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C..-i Council
Approved
By Ordinance
BYhiblt~
, 1ll
MEMORANDUM
lfI.
l.YIeD1oran.d-u:r.n..
, THE CITY OF AsPEN
CITY ATIORNEY'S OFFICE
TO:
Stan Clauson, Community Development Director
John P. Worcester, City Attorney c;;l,t/
November 1, 1996
FROM:
DATE:
RE:
Kastelic Property - Vested Rights
This memo is intended to clarify the status of the vested rights associated with the Kastelic
Subdivision and PUD.
On October 25, 1993, the City Council granted the then owners of the Kastelic properties, the
estate of the late Anthony Kastelic, approval of a subdivision and PUD. (Ordinance No. 49,
Series of 1993). The subdivision created two residential parcels and maintained two single family
homes on the newly created parcels. The same ordinance granting the subdivision also granted
vested rights for a period of three years pursuant to Section 24-6-207 of the Municipal Code
(recodified as Section 26.52.080). .
When the estate sought the subdivision approvals and vested rights, it was recognized by staff
and the estate's representatives that a stream margin review would be required before a
development order could be issued. Because redevelopment of the property was not being
considered at the time, staff recommended that the stream margin review not be undertaken, but
instead be postponed until such time as the property was being considered for redevelopment.
Accordingly, the ordinance granting subdivision and vested rights specifically notes that "the
applicant also applied for stream margin review but was advised that stream margin review is
more effective at the time of redevelopment of the property." Paragraph 2 of Section 3 of the
ordinance states that "Prior to the issuance of any demolition, excavation or building permits for
Lot I or Lot 2, stream margin review (if applicable), shall be required."
It cannot be argued that the ordinance and the vested rights contemplated that before a
development order could issue by the Planning Department for either lot, the owners would be
requirrd to undergo a stream margin review. What is not clear is whether the vested rights
insulated the property from changes in the Land Use Code as it relates to stream margin review.
For the reasons that follow, I believe it did.
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The City's vested rights section in the Land Use Code was patterned after the state's statutory
Vested Property Rights Act adopted in 1987. Section 26.52.080(B) of the Aspen Municipal Code
states as follows:
A vested property right, once established, shall preclude any zoning or land use
action by the City of Aspen or,pursuant to an initiated measure which would alter,
impair, prevent, diminish, or otherwise delay the development or use of the
property as set forth in the site specific development plan, except:
1. With the consent of the applicant; or
2. Upon the discovery of natural or manmade hazards on or in the
immediate vicinity of the property, which hazards could not reasonably have been
discovered at the time of this approval, and which hazards, if uncorrected, would
pose a serious threat to the public health, safety and welfare; or
3.
statute] .
To the extent that compensation is paid as provided by [state
In other words, the property is insulated from any changes in the law during the period of the
vested rights that would prevent the development of the property as set forth in the subdivision
approvals; unless the applicant consents, the City discovers a hazard which could not reasonably
be discovered at the time of the SUbdivision approval, or the City pays for the diminished value
to the property by the imposition of the new law.
Ordinance No. 49, Series of 1993, contains boiler plate language which is included in all of the
City'.s ordinances which grant vested rights, The language is taken directly from the City's Land
Use Code, which in turn, was taken from the state Vested Property Rights Act. That boiler plate
language reads as follows:
3. Nothing in the approvals provided in this Ordinance shall exempt the site
specific development plan from subsequent reviews and or approvals required by
this ordinance or the general rules, regulations or ordinances of the City provided
that such reviews or approvals are not inconsistent with the approvals granted and
vested herein.
4. The establishment herein of a vested property right shall not preclude the
application of ordinances or regulations which are general in nature and are
applicable to all property subject to land use regulation by the City of Aspen,
including, but not limited to, building, fire, plumbing, electrical and mechanical
codes. In this regard, as a condition of this site development approval, the
developer shall abide by any and all such building, fire, plumbing, electrical and
mechanical codes, unless an exemption therefrom is granted in writing.
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Paragraph 3 quoted above is somewhat meaningless. It in essence states that the vested rights
does not exempt the property from subsequent changes in the law which are not inconsistent with
the vested rights. The whole purpose of vested rights, however, is to insulate the property from
any changes in the law. Any new law that impaired' those rights would, by definition, be
inconsistent with the vested rights granted by the ordinance. .
The meaning of Paragraph 4 has been debated by land use attorneys in the state from the first
day that it was enacted. It is my understanding that both paragraph 3 and 4 were added during
the debates leading up to passage of the state Vested Property Rights Act without much
discussion as to their meaning. It is the consensus of opinion, however, that paragraph 4 should
be read to mean that a property cannot be insulated from changes in the law which affect life and
safety issues. For example, changes in the building, electrical, fire codes, etc.
Thus, unless the changes to stream margin review are related to life and safety issues, I don't
believe paragraph 4 affects the vested rights granted to the Kastelic subdivisioIl. In reviewing the
changes made to the stream margin review section of the Land Use Code, staff memos submitted
to Council, and City Council meeting minutes, it is apparent that the changes were not intended
to address life and safety issues, but to further protect wetlands and riparian zones, native
vegetation, impacts from lighting and developments in close proximity to rivers and streams.
While it is true that these changes may be significant for individual parcels, I don't believe they
can be considered as life and safety issues akin to the building, mechanical, electrical or fire
codes.
The final question is whether the ordinance granting vested rights to the Kastelic subdivision and
PUD intended that the property owners undergo a stream margin review under the then existing
code or any future changes to the stream margin review section of the code during the vesting
period. Unfortunately, the ordinance itself is silent in this regard. It is clear that a stream margin
review would be required, but it does not state one way or the other whether it contemplated the
stream margin review to be undertaken under the existing code or any new regulations that may
be enacted following approval of the vested rights. Neither the staff memos accompanying the
ordinance nor City Council meeting minutes during which the subdivision ordinance was
discussed shed any light on this matter. The need for a stream margin review is certainly
discussed, but there is no indication that the stream margin review should be conducted under
any new regulations should they be adopted in the future. In the absence of any evidence of such
an intent, I must conclude that in granting vested rights for the subdivision, Council made clear
that a stream margin review would be required, and vested the property with a right to have that
review conducted under the then existing regulations. The fact that the estate had applied for a
stream margin review at that time, but was discouraged from proceeding because there were no
redevelopment plans to review, supports this conclusion. Had the applicant understood the
ordinance to require a stream margin review under some future regulations that had not yet been
promulgated, that issue would certainly have been discussed at the time and clarified in the
ordinance itself. No such discussion took place from the documentation that I reviewed.
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Much of the above discussion is academic unless t he City Council agrees to extend the vested
rights. The property has not been given a development order as a stream margin review has not
been undertaken. Without a development order; the owners may not file an application for a
building permit. I understand that an application for a building permit was submitted and
returned to the applicant for this reason.
On September 24, 1996, Paul Taddune, counsel for the owners of both Lots 1 and 2, submitted
what he clainied to be an application for extension of vested rights for the Kastelic Subdivision. .
The City has long taken the position that if a property owner submits an application for an
extension prior to the date of the expiration of the original vested rights period, that it would
consider the application to have been timely filed. This merely means that Council may consider
an extension of time after the expiration of the original periOd. It does not automatically extend
the period, but does allow City staff and Council to consider the request after the expiration
period.
If you have any questions regarding the above, please let me know.
cc: City Manager
Kastelic.mem
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LAW OFFICES OF
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Re:
HERBERT S. KLEIN& ASSOCIATES, P C.
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Lots 1 and 2, Kastelic Subdivision PUD (the "Property"). ~
TELLURIDE OFFICE:
P.O.8QX21S
300 WEST COLORADO AVENUE
SUITE 28
TEllURIDE, COLORADO 81435
(970)728-5151
TELECOPIER (970) 72~9
HERBERT S, KLEIN
MILLARD J.ZIMET"
ROBERT ERIE
THOMAS G. KENNEDY'"
MICHELE NELSON'
'alsoadmiUei:lin NewYol1t
'*'alsoadmilledinMaryland
"also admilted in Calilorniaand Hawaii
HAND DELIVERED
RlDGWAYOFACE:
122 VlUAIJE SQUARE WEST
RIDGWAY, CO 81432
(970) 626-3888
TElECOP1ER (970) 626-39n
Mr. John Worcester,
City Attorney
130 South Galena
Aspen, Colorado
Street
81611
Dear John:
Thank you for taking the time to meet with me and my clients,
Larry and Lorrie Winnerman, last Friday (October 25, 1996) at your
office. Present at the meeting were City Manager, Amy Margerum,
and Planner, Dave Michaelson. I wish to confirm some of the
matters discussed at the meeting as well as provide you with some
thoughts and observations concerning the City's interest in
condemning a trail through the Property, the status of the
Property's vested rights and some legal concerns I have with the
City's stream margin review regulations.
The Winnermans are contract purchasers for both of the above
lots and have invested considerable time and money in investigating
the suitability of the property for their purposes as well as the
development of architectural plans. It is their desire to build a
home for themselves on one of the lots and develop the other in a
harmonious fashion so that the two houses and properties can share
common amenities and landscaping. The lots have approved building
envelopes and a PUD plan pursuant to Ordinance 49, Series of 1993
granting subdivision, PUD and vested rights. This Ordinance is
recorded in Book 729 at Page 778 and was finally approved on
October 25, 1993 (the "1993 Approval").
The 1993 Approval established building envelopes which run to
a lower bench on the property within approximately 20 feet from the
100 year flood plain line and allow the construction of a house in
this location in order to take advantage of proximity to the river.
Moving easterly away from the river, after approximately 15-20
feet, the property increases in elevation and rises to an upper
bench sitting above and well back from the river. The 1993
Approva.l also states that "the Applicant also applied for stream
margin review but was advised that stream margin review is more
effective at the time of redevelopment of the property" and
contains a condition requiring stream margin review be undertaken
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Mr. John Worcester, Esq.
October 30, 1996
Page 2
prior to redevelopment of the property in the future. The building
envelopes are located in a manner which is consistent with the
stream margin review regulations in effect in 1993 (the "1993
Regulations") (See Section 7-501B and 7-504 et seq. of Supplement
No.2 to the Aspen City Code as in effect in 1993).
In 1995, the City Code was amended and the stream margin
review regulations were changed by the addition of several new
provisions which, among other things, require that development be
set back to a point identified as "top of slope" plus an additional
15 feet therefrom and that a view plain setback be imposed running
at a 45 degree angle from the ground level at the top of slope
trending away from the river (the "1995 Regulations"). Imposition
of the 1995 Regulations would render the -westerly half of the
approved building envelopes undevelopable and materially diminish
the use, enjoyment and value of both of these lots by reason of
their requirement that the building be setback a substantial
distance from the river, a difference of approximately 20 feet from
the high water mark under the 1993 Regulations compared to
approximately 60 feet from the high water mark under the 1995
Regulations. In effect, river front property would be converted to
river view property.
It is clear that the City wishes to acquire a public trail
through these lots across their river frontage. without question,
the existence of a trail in this location would destroy the
privacy, utility and a substantial portion of, the value of the
Property. We have suggested alternative alignments which would
avoid taking river front property, including a trail alignment
running along the southerly boundary of Lot ~ connecting with the
access road at the west side of the property. Furthermore, there
are other alignments which avoid the property entirely.
Notwithstanding these suggestions, we are informed by City staff
that the City'is determined to develop the trail system along the
river.
In order to develop a trail along the river front, the City
will be destroying substantial areas of riparian vegetation and
habitat as well as protected wetlands. Dredge and fill operations
1
We are told that a 17 page report has been prepared by an
engineering firm hired by the City which analyzes the alternative
suggested by my clients. However, Mrs. Winnerman informs me that
she attempted to obtain a copy of the report the other day and was
told that the City Manager directed the report not be made public
pending staff's review of its contents. There is no basis
whatsoever to withhold this report. Please confirm that the report
will be made available to my clients immediately.
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Mr. John Worcester, Esq.
October 30, 1996
Page 3
will no doubt be required and alterations of the river bank will
result. Federal permits will be required and, we expect that the'
City will be forced to comply with its own Codes, just as if a
private developer sought to undertake the substantial construction
activities and environmental devastation that is'likely to occur.
These issues alone raise significant public policy and
environmental concerns.
The statutory vesting period was for three years running from
October 25, 1993. On September 24, 1996, an application to extend
the vested rights was filed by Paul Taddune on behalf of the owners
of the Property. It was confirmed in our meeting last Friday that
the City staff has taken no action whatsoever on the application to
extend the vested rights even though it had then been sitting in
the Planning Office for more than 30 days. Had the staff processed
this application in a timely manner, its disposition could have
been determined prior to the expiration date of the statutory
vesting period and appropriate protective actions could have been
taken by the Applicants. The City's dilatory tactics concerning
the application may have severely prejudiced my clients. When this
issue was raised at our meeting, the City Manager had no trouble
scheduling it for a hearing at the next Council meeting set for
November 11, 1996. We wonder why this could not have been done in
as easy a manner shortly after the application had been filed. We
also note that you stated at the meeting that the filing of the
extension application tolled the expiration of the statutory
vesting period until it was acted on by Council, and that we could
file whatever applications we felt appropriate during this time.
The City Manager disagreed with your statement as indicated below.
Although the City Manager mentioned at our meeting that
extensions of vested rights were routinely denied by the City
Council, we are informed that there have been several extensions
granted. We refer to the Kappelli application for extended vesting
on the Bell Mountain Lodge and another extension granted for the
Aspen M'eadows property. In light of the City' s interest in
condemning a trail along the river front and the lower acquisition
cost for such a trail likely to result if the vested rights are not
extended, we would view any denial of an extension as being suspect
and motivated for the purpose of lowering the City's condemnation
cost. I refer you to a Colorado case, Hermanson v. Countv
Commissioners, 42 Colo. App. 154 (Colo. App. 1979), where the
Colorado Court of Appeals stated that:
". .. regulations designed to depress value with a view to
future acquisition may form the basis of a cause of action for
compensation on the theory of inverse condemnation against the
public entity initiating the regulation."
~
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Mr. John Worcester, Esq.
October 30, 1996
Page 4
With the time running out on the statutorily vested rights and
no action by the City on the extension application, my clients
filed a building permit application on October 23, 1996 for
construction of a single family dwelling on each lot. A stream
margin review application would have been submitted together with
those permits, however, the City staff persons with whom we spoke
insisted that the 1995 Regulations would apply and, as previously
stated, those regulations are completely inconsistent with the
approved building envelopes and our position that the 1993
Regulations vested along with the building envelopes and other
elements of the 1993 Approval. The City Manager also confirmed at
our meeting last Friday that the City would not have accepted a
stream margin review application of any sort pending the Council's
determination of the extension of our vested rights. Ms. Margerum
stated emphatically that such an application would have been
rejected and it would have been futile to submit it. In fact, we
learned on the same day as our meeting that the Building Department
rejected the permit applications for this reason.
In reviewing our situation, it seems clear that significant
elements of the subdivision and PUD plan from the 1993 Approvals
have permanently vested. lam sure you agree that the subdivision
of the lots is vested. It therefore follows that the building
envelopes are vested as they are intimately tied to the lot line
configuration approved in the subdivision and the PUD requirements
and provide the only reasonable configuration for the placement of
buildings on the lots. As you can see from looking at the approved
Plat, the lot line between these lots meanders in order to protect
trees and other natural features which were all taken into
consideration when the building envelopes were established.
Because the subdivision is permanently vested, under the
circumstances, so too are the building envelopes.
, If there is any question as to which stream margin regulations
would apply, in our view, the 1993 Regulations have vested. We
believe this is so even if Council decides not to extend the
statutory vesting. Although a future stream margin review was
contemplated by the 1993 Approval, it could not have been
anticipated at that time that the established building envelopes
would be subject to future stream margin review regulations which
would have nullified and made meaningless these envelopes. The
imposition of the 1995 Regulations would wipe out almost half of
the building envelopes. The stream margin review requirement is so
intimately tied with the established building envelopes that it
would make no sense to apply the 1995 Regulations to this project:
Furthermore, with respect" only to the question of statutory
vesting, if Council were to extend the statutory vesting period,
the 1993 Regulations would be applicable, not only based upon the
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Mr. John Worcester, Esq.
October 30, 1996
Page 5
foregoing comments, but also because they are not regulations
dealing with life and safety such as building code requirements
and, as such are vested against regulatory changes. Under the same
reasoning, the 1995 Regulations, with their additional provisions
for setbacks and viewplanes, are zoning related provisions against
which statutory vesting provides immunity.
If the City is determined to apply the 1995 Regulations to
this property, I believe you should seriously consider whether or
not certain of its provisions are legal. The most obvious
illegality is the requirement for the dedication of a trail and
fisherman's easement in connection with a stream margin review
application to build a single-family house.2 These are private
properties through which the public has had no rights of access.
The requirement of a trail and fisherman' s easement dedication
clearly violates the United States Supreme Court ruling in Dolan v.
City of Tiqard, 512 U.S. _' 1994. I noticed that the 1995
Regulations added language which stated that these dedications were
necessitated by "development. s increased impacts to the City' s
recreation and trail facilities including public fishing
access....". I believe a court would view such language as simply
gratuitous in light of the Dolan decision, and in no way can the
City make a connection between the development of a house on
private property adjoining the river and the impact on public
access to the river where none previously existed. I would like
your confirmation' that the City will not attempt to, require
easements as a condition of stream margin review under either the
1993 Regulations (which contains similar language but without the
Dolan gratuitous justification), or the 1995 Regulations.
The 1995 Regulations also added requirements for a setback of
15 feet beyond the "top of slope" as well as a 450 viewplane. The
purpose of ,the stream margin ,regulations as articulated in both the
1993 and the 1995 Regulations is that "development in these areas
shall be subject to heightened review so as to'reduce and prevent
property loss by flood while insuring the natural and unimpeded
flow of water courses. Review shall encourage development and land
uses that preserve and protect existing water courses as important
natural features." I can think of no rational relationship between
the extensive setback and viewplane requirements imposed by the
1995 Regulations and the protection of property loss by flood and
continuation of the unimpeded flow of the, river. The 1993
Regulations sufficiently protected these issues by requirin~ the
demonstration that any proposed development would not have any
J
2 This provision is also in the 1993 Regulations and is
equally illegal.
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Mr. John Worcester, Esq.
October 30, 1996
Page 6
affect on flood conditions and has other provisions dealing with
vegetation, erosion, etc..
Although I have not had a chance to review the record leading
up to the changes in the 1995 Regulations, I would be surprised to
find anything articulated in the record indicating the failure of
the 1993 Regulations to protect the flow of the river and
properties located nearby. If the 1995 ,Regulations are to be
imposed on the property, we would certainly object to them, because
they clearly go beyond the legitimate purposes of the ordinance and
have no rational basis. We would also view them as being suspect
because they 'seem to be related to the City's de,sire to obtain
trails along the river and would reduce the cost to the City of
condemnation.
There is one last point which we find very disturbing and
ironic. ,Both the 1993 and 1995 Regulations are designed to protect
environmental values concerning riparian areas, vegetation, flood
flows and the protection of property. However, the City seems
willing to totally destroy vast portions of these sensitive areas
to build its trail system while at the same time attempting to
impose severe restrictions on the ability of private landowners to
enjoy their riverfront properties. We believe the City will be in
an untenable position both legally and politically if it attempts
to restrict the reasonable development of the Property based upon
environmental values when at the same time it is trampling upon
those values as well as my client's property rights.
After you have had an opportunity to consider the comments
raised in this letter, I would be happy to discuss these points
with you in greater detail. I also look forward to your written
statement concerning the City's position on these matters which you
indicated you would have completed by the end of this week.
Thank you very much for your consideration.
Very truly yours,
HERBERT S. KLEIN & ASSOCIATES, P.C.
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Herb~rt S. Klein
By:
winnerman\003.1tr
cc: Larry & Lorrie Winnerman
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TO:
Stan Clauson, Community Development Director
THE CITY OF ASPEN
OFFICE OF THE CITY ATTORNEY
FROM:
John P. Worcester, City Attorney
DATE:
October 29, 1996
RE:
Kastelic Property - Vested Rights
This memo is intended to clarify the status of the vested rights associated with the Kastelic
Subdivision and PUD.
On October 25, 1996, the City Council granted the then owners of the Kastelic properties, the
estate of the late Anthony Kastelic, approval of a subdivision and PUD. (Ordinance No. 49,
Series of 1993). The subdivision created two residential parcels and maintained two single family
homes on the newly created parcels. The same ordinance granting the subdivision also granted
vested rights for a period of three years pursuant to Section 24-6-207 of the Municipal Code
(recodified as Section 26.52.080).
When the estate sought the subdivision approvals and vested rights, it was recognized by staff
and the estate's representatives that a stream margin review would be required before a
development order could issue. Because redevelopment of the property was not being considered
at the time, staff recommended that the stream margin review not be undertaken, but instead be
postponed until such time as the property was being considered for redevelopment. Accordingly,
the ordinance granting subdivision and vested rights specifically notes that "the applicant also
applied for stream margin review but was advised that stream margin review is more effective at
the time of redevelopment of the property." Paragraph 2 of Section 3 of the ordinance states that
"Prior to the issuance of ,any demolition, excavation or building permits for Lot 1 or Lot 2,
stream margin review (if applicable), shall be required. "
It cannot be argued that the ordinance and the vested rights conteniplated that before a
development order could issue by the Planning Department for either lot, the owners would be'
required to undergo a stream margin review. What is not clear is whether the vested rights
insulated the property from changes in the Land Use Code as it relates to stream margin review. .
For the reasons that follow, I believe it did. ,
130 SOUTH GALENA STREET . ASPEN, COLORADQ.8l'>11 . PHONE 303.920.5055 . FAX 303.920.5119
Print<-dQnrecydedl"l""
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The City's vested rights section in the Land Use Code was patterned after the state's statutory
Vested Property Rights Act adopted in 1987. Section 26.52.080(B) of the Aspen Municipal Code
states as follows:
A vested property right, once established, shall preclude any zoning or land use
action by the City of Aspen or pursuant to an initiated measure which would alter,
impair, prevent, diminish, or otherwise delay the development or use of the
property as set forth in the site specific development plan, except:
1. With the consent of the applicant; or
2. Upon the discovery of natural or manmade hazards on or in the
immediate vicinity of the property, which hazards could not reasonably have been
discovered at the time of this approval, and which hazards, if uncorrected, would
pose a serious threat to the public health, safety and welfare; or
3.
statute] .
To the extent that compensation is paid as provided by [state
In other words, the property is insulated from any changes in the law during the period of the
vested rights that would prevent the development of the property as set forth in the subdivision
approvals; unless the applicant consents, the City discovers a hazard which could not reasonably
be discovered at the time of the subdivision approval, or the City pays for the diminished value
to the property by the imposition of the new law.
Ordinance No. 49, Series of 1993, contains boiler plate language which is included in all of the
City's ordinances which grant vested rights. The language is taken directly from the City's Land
Use Code, which in turn, was taken from the state Vested Property Rights Act. That boiler plate
language reads as follows:
3. Nothing in the approvals provided in this Ordinance shall exempt the site
specific development plan from subsequent reviews and or approvals required by
this ordinance or the general rules, regulations or ordinances of the City provided
that such reviews or approvals are not inconsistent with the approvals granted and
vested herein.
4. The establishment herein of a vested property right shall not preclude the
application of ordinances or regulations which are general in nature and are
applicable to all property subject to land use regulation by the City of Aspen,
including, but not limited to, building, fire, plumbing, electrical and mechanical
codes. In this regard, as a condition of this site development approval, the
developer shall abide by any and all such building, fire, plumbing, electrical and
mechanical codes, unless an exemption therefrom is granted in writing.
2
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Paragraph 3 quoted above is somewhat meaningless. It in essence states that the vested rights
does not exempt the property from subsequent changes in the law which are not inconsistent with
the vested rights. The whole purpose of vested rights, however, is to insulate the property from
any changes in the law. Any new law that impaired those rights would, by definition, be
inconsistent with the vested rights granted by the ordinance.
The meaning of Paragraph 4 has been debated by land use attorneys in the state from the first
day that it was enacted. It is my understanding that both paragraph 3 ,and 4 were added during
the debates leading up to passage of the state Vested Property Rights Act without much
discussion as to their meaning. It is the consensus of opinion, however, that paragraph 4 should
be read to mean that a property cannot be insulated from changes in the law which affect life and
safety issues. For example, changes in the building, electrical, fire codes, etc.
Thus, unless the changes to stream margin review are related to life and safety issues, I don't
believe paragraph 4 affects the vested rights granted to the Kastelic subdivision. In reviewing the
changes made to the stream margin review section of the Land Use Code, staff memos submitted
to Council, and City Council meeting minutes, it is apparent that the changes were not intended
to address life and safety issues, but t6 further protect wetlands and riparian zones, native.
vegetation, impacts from lighting and developments in close proximity to rivers and streams.
While it is true that these changes may be significant for individual parcels, I don't believe they
can be considered as life and safety issues akin to the building, mechanical, electrical or fire
codes.
The final question is whether the ordinance granting vested rights to the Kastelic subdivision and
PUD intended that the property owners undergo a stream margin review under the then existing
code or any future changes to the stream margin review section of the code during the vesting
period. Unfortunately, the ordinance itself is silent in this regard. It is clear that a stream margin
review would be required, but it does not state one way or the other whether it contemplated the
stream margin review to be undertaken under the existing code or any new regulations that may
be enacted following approval of the vested rights. Neither the staff memos accompanying the
ordinance nor City Council meeting minutes during which the subdivision ordinance was
, discussed shed any light on this matter. The need for a stream margin review is certainly
discussed, but there is no indication that the stream margin review should be conducted under
any new regulations should they be adopted in the future. In the absence of any evidence of such
an intent, I must conclude that in granting vested rights for the subdivision, Council made clear
that a stream margin review would be required, but vested the property with a right to have that
review conducted under the then existing regulations. The fact that the estate had applied for a
stream margin review at that time, but was discouraged from proceeding because there were no
redevelopment plans to review, supports this conclusion. Had the applicant understood the
ordinance to require a.stream margin review under some future regulations that had not yet been
promulgated, that issue would certainly have been discussed at the time and clarified in the
ordinance itself. No such discussion took place from the documentation that I reviewed.
3
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Much of the above discussion is academic unless the City Council agrees to extend the vested
rights. The property has not been given a development order as a stream margin review has not
been undertaken. Without a development order, the owners may not file an application for a
building permit. I understand that an application for a building permit was submitted and
returned to the applicant for this reason.
On September 24, 1996, Paul Taddune, counsel for the owners of both Lots I and 2, submitted
what he claimed to be an application for extension of vested rights for the Kastelic Subdivision.
The City has long taken the position that if a property owner submits an application for an
extension prior to the date of the expiration of the original vested rights period, that it would
consider the application to have been timely filed. This merely means that Council may consider
an extension of time after the expiration of the original period. It does not automatically extend
the period, but does allow City staff and Council to consider the request after the expiration
perios1.
If you have any questions regarding the above, please let me know.
cc: City Manager
Kastelic.mem
4
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Mr. and Mrs. Lawrence Winnerman
Win WinLLC
317 Park Avenue
Aspen, CO 81611
28 October 1996
Re: Building Permit Applications--Kastelic Subdivision Lots llllld 2
Dear Mr. and Mrs. Winnerman:
The Community Development Department is unable to accept your building permit applications
for the above-referenced, property ,owing to the fact that site specific development approvals are
not complete and a Development Order has not been issued. Specifically, Stream Margin Review
under Section 26.68.040 of the Aspen Land Use Code must be completed prior to the issuance of
a Development Order. This requirement is clearly referenced in the filed documents relating to
the approval process to date.
Your plans should be picked up at the Community Development Office at your earliest
convenience, along with voided checks for filing fees.
Upon' completion of Stream Margin Review, plans may be filed for zoning review, including
review under Chapter 26.58 Residential Design Standards, prior to forwarding to the Building
Division. Please let me know if I may provide any additional information or assistance.
Very truly yours,
Stan Clauson, AICP
Community Development Director
CITY OF ASPEN
cc: Stephen Kanipe, Chief Building Official
Sara Thomas, Zoning Officer
John Worcester, City Attorney
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RECEIVED
SEP 15 '",i
City Maf\ager/M3.Y9r'S GUice
PAUL J. TADDUNE, P.C
WILLIAMK. GUEST, P.C, OF COUNSEL
ANDREW H. BUSCHER, OF COUNSEL
September 24, 1996
Mayor John Bennett and
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Members of the city Council
RE:
Application for Extension of Vested Rights
SUbdivision/PUD
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for Kastelic
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Dear Mayor Bennett and Members of the City Council:
Please accept this letter as an application on behalf of my
client, B.A. Powell Limited Partnership, a family partnership which
owns Lot 1, Kastelic Subdivision, for an extension of vested rights
granted by Ordinance No. 49 (Series of 1993), a copy of which is
attached. This application is submitted pursuant t,o section
26.52.080 and, to the extent applicable, Section 26.100.100 of the
Aspen Municipal Code and section 24-68-104, Colorado Revised
Statutes,
Ordinance No. 49 granted subdivision, PUD and vested rights
approval for the Kastelic property located at 570 Riverside Avenue.
The Ordinance was finally adopted, passed and approved on October
25, 1993. section 4 of the Ordinance granted the applicant vested
rights. It is requested that any vested rights be ext,ended for a
period of six (6) months, similar to the extensions that have
routinely been granted to the Bell Mountain Lodge project.
The Kastelic PUD/subdivision was part of the probate estate
Anthony Kastelic, a long-time Aspenite. Bette Johnson, the general
partner of B.A. Powell Limited Partnership, is Hr. Kastelic's
stepdaughter who inherited Lot 1. Lot 2 which is under contract is
currently owned by Marj orie Casey, Mr. Kastelic I s niece. The
contract purchaser consents to this application.
The property was subdivided to accomplish the separate
bequests of the two houses in accordance with Mr. Kastelic's will.
During the course of the approval process, numerous concessions
were made by the Kastelic estate with regard to the location of the
building envelopes, the preservation of trees and the amount of
developable property in relation to the river.
This application for an extension of vested rights is
submitted merely to preserve the developability of the property,
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Mayor John Bennett
September 24, 1996
Page 2
the same as existed in 1993. Section 26.100.100 of the Municipal
Code pertains to the expiration of development orders and mayor
may not be applicable to the Kastelic PUD/subdivision. Section A.l
states that subdivisions composed of detached residential or duplex
units shall be eligible for exemption from the expiration
provisions, and that to obtain an exemption an application for
exemption shall be submitted at any time prior to the third
anniversary of the date of approval demonstrating satisfaction that
the enumerated conditions have been met. It is believed that all
of the conditions for the Kastelic subdivision at the time of the
its final approval have been met. It is also requested that, to
the extent applicable or required, an extension of vested rights be
granted so that the land development regulations in place and
applicable to the property in 1993 be continued, to avoid
penalizing Mrs. Johnson and her family for not being aggressive in
developing the property.
Thank you in advance for your consideration to this request.
Very truly yours,
PAUL J. TADDUNE, P.C.
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Paul J. Taddune
PJT:cba
cc: Bette Johnson
Stan Clausen, Community Development Director
Bob Nevins, Planner
c: \WP\PAUL\LT\BENNETT. 920
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PZM8.24.93
ASPEN MEADOWS TRAFFIC MITIGATION PLAN REVIEW
Bruce opened the public hearing,
,
MOTION
Roger: I move to continue the pUblic hearing and table action to
dat,e certain ,of September 7, 1993.
Sara seconded the motion with all in favor.
KASTELIC PUD/SUBDIVISION
Leslie turned in affidavit of mailing.
(attached in record)
There was discussion r~garding incorrect address in the mailing.
It was decided between the 3 attorneys present, the applicant's
representative and the Commission to proceed with the hearing.
Bruce opened the public hearing.
Leslie made presentation as attached in record.
After discussion--
MOTION
Roger: I move to recommend subdivision and PUD review for the
creation of 2 residential parcels at the Kastelic property with
conditions to be hereafter listed in the Planning Office memo dated
August 24, 1993. They are conditions #1 'amended to read "Only a
single family home is permitted on each lot because of lot size in
the R-15 Zone District.
The deletion of Planning Office condition #2.
The inclusion of condition #3, #4 and #5,
The deletion of condition #6.
The inclusion of condition #7 through #16 inclusive with and
additional binding note that would encourage the City to request
a 14 foot trail easement along the Roaring Fork River through the
property.
David: I second the motion. I would modify the condition slightly
to allow condition #12 to read "A drainage analysis performed by
an architect or engineer registered in the State of Colorado".
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PZMB.24.93
Leslie: Can we say "If I can include it". I will add that if we
can add it.
Bruce: I have a problem with this. By us adding it in we imply
that somehow we know that an architect is qualified to do that.
We don't know that, If the state has issued standards that say it
must be a registered engineer and that is what staff puts in their
memo I think we need to accept that, I am not prepared to say
whether you or any other architect is qualified to do this.
If you want to go to staff and go to the state to get them to
change the standard that is fine. But I am not prepared to change
the condition of approval at this point. I don't think this the
form to deal with that issue.
Roger decided to leave the motion as stated.
David then withdrew his second of the motion,
Sara then seconded the motion,
Roll call vote:
David, yes, Sara, yes, Roger, yes, Bruce, yes.
MOTION
Roger: I make a motion to recommend consolidation of the PUD
review for the Kastelic application to a 2-step process.
Sara seconded the motion with all in favor.
Roger moved to adjourn,
Sara seconded the motion with all in favor. Time was 5:35 P.M.
3
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/"""'.,
Reqular Meetind
Aspen citv Council
September 13. 1993
to persons responsible for trends. As a result of the investiga-
tion, the auditors give an audit opinion.
Alger reported the city of Aspen has been given a clean oplnlon,
with no qualifications or exceptions. Alger said the staff does a
very good job of putting the information together for ,the auditors.
Alger' pointed out the audit contains a financial- history of the
city over a 10 year period. Alger said the revenues in 1992 were
up 7 percent; the expenditures were held to below prior year and
,revenues of about $600,000 were put into fund balance, Alger said
all enterprise funds, with the exception of the housing fund, are
making a profit, The cash flow for the housing fund is adeq~ate,
Alger said the city's budget process works well.
ORDINANCE #49. SERIES ,OF 1993 - Kastelic PUD/Subdivision
Councilman Reno moved to read Ordinance #49, series of 1993;
seconded by Councilwoman Waggaman. All in favor, motion carried.
ORDINANCE #49
(Series of 1993)
AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING SUBDIVI-
SION, PUD AND VESTED RIGHTS FOR THE KASTELIC PROPERTY
LOCATED AT 570 RIVERSIDE AVENUE, ASPEN, COLORADO, was
read by the city clerk
Leslie Lamont, planning office, told Council P & Z recommended this
be a consolidated two-step process with one review at P & Z and
Council each. There are no significant impacts from this PUD
review and all issues can be covered in a two-step review,Ms.
Lamont said this parcel is just over 74,000 square feet with two
existing homes on the property. This subdivision will correct a
non-conforming use for the R-15 zone. A PUD overlay allows an
applicant to request variances. In this case the applicants are
requesting a rear yard setback variance for lot 1. This will be
rectified at time of redevelopment of the property. Ms. Lamont
pointed out at the time of redevelopment, any owner may seek a PUD
review to request variances,
Ms. Lamont said the applicant had indicated building envelopes for
lots 1 and 2. Ms. Lamont said staff requested the proposed
building envelopes be overlaid showing critical features of the
property, which are significant trees. Staff requested prior to
second reading, the applicant provide a building envelope which
will exclude the trees and would be willing to look at PUD
variances to accommodate this shift. The applicants are dedicating
a fisherman's easement as part of the subdivision.
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Reqular Meetinq
Aspen citv Council
September 13, 1993
Mayor Bennett asked if the applicants are taking into consideration
the location of the eventual trail. Ms. Lamont said the trail
easement is not a concern in this subdivision. Jed caswall, city
attorney, sa,id this is nothing more than a lot split and Council
should consider it strictly on the merits of that. Councilwoman
Waggaman asked if the building envelopes stay as proposed, is there
room for a trail. Ms. Lamont said there is. Councilwoman Richards
asked if this property is identified in the greenway plan for a
trail connection. Caswall said it has been identified for years as
a tr,ail location. Caswall said if there was ,a change in value of
the property, it was done a long time ago when the city identified
this as a trail location.
Councilwoman Waggaman said if the planning office is requlrlng a
change in building envelope to avoid trees, the trail could be
considered at the same time. Lennie Oates, representing the
applicant, told Council the applicants are not interested in
accommodating a trail. Oates said there is no plan for redevelop-
ment of the property. The applicants intend to keep the existing
houses and to use them. Caswall explained this application is
before Council because of a probate action. The applicants are
seeking a division of this asset. The city was notified by the
attorney and the city intervened because of their subdivision
regulations.
Glenn Horn told council any redevelopment of the property has to go
to P & Z for stream margin review. One of the criteria of stream
margin review is that development has to be consistent with the
Roaring Fork Greenway Plan. The concept of a trail on this
property originated with the Greenway Plan.
Councilwoman Richards moved- to adopt Ordinance #49, Series of 1993,
on first reading; seconded by Councilwoman Waggaman. Roll call
vote; councilmembers Waggaman, yes; Paul son, yes; Reno, yes;
Richards, yes; Mayor Bennett, yes. Motion carried.
ORDINANCE #48, SERIES OF 1993 - ute Park AH Subdivision GMQS
Exemption Amendment
Councilwoman Richards moved to read Ordinance #48, Series of 1993;
seconded by Councilman Reno. All in favor, motion carried.
ORDINANCE #48
(Series of 1993)
AN ORDINANCE OF THE CITY OF ASPEN GRANTING AMENDMENT TO
THE 1992 GMQS EXEMPTION APPROVAL FOR AFFORDABLE HOUSING
FOR THE UTE PARK AH (AFFORDABLE HOUSING) SUBDIVISION/PUD
TO CHANGE DEED RESTRICTIONS ON THREE UNITS was read by
the city clerk
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Reqular Meetinq
Aspen Citv Council
Dctober 12. 1993
ORDINANCE #51. SERIES OF 1993 - Appropriations
Rob Umbreit, budget dir~ctor, told Council this ordinance has been
amended since first reading to include funding the asset manager
position, $12,525 for outside legal counsel, increasing the parks
budget $7750 because of the installation of water meters, and
appropriating $31,825 for the east water plant construction.
Mayor Bennett opened the public hearing. There were no comments.
Mayor Bennett closed the public hearing.
Councilwoman Richards moved, to adopt Ordinance #51, Series of 1993,
on second reading as amended; seconded by Councilman Reno. Roll
call vote; Councilmembers Reno, yes; Waggaman, yes; Richards, yes;
Mayor Bennett, yes. Motion carried.
ORDINANCE #49. SERIES OF 1993 - Kastelic PUD/Subdivision
Leslie Lamont, planning office, told Council this is one parcel
with two single family detached homes on it. The estate is seeking
to divide the parcel into two lots, each with a single family
house. There is no redevelopment proposed at this time. Ms,
Lamont pointed out the proposed building envelopes include
significant trees, The proposed building envelopes also encroach
into future trail alignments. council urged the applicant to
preserve the trees and to pull the building envelopes out of the
trail alignments. Ms. Lamont pointed out the building envelope for
lot 1 does not encroach into the proposed trail easement. Ms,
Lamont recommended the new building envelope be drawn on the plat
before recordation.
Glenn Horn, representing the applicant, said they worked with staff
to try and accommodate Council wishes. Horn said after conferring
with the attorneys representing the estate, there are changes
having to do with two trees on site. One of the cottonwoods may
die and the applicants would like the ability to straighten out the
building envelope line. Horn requested some changes in the
conditions, like if an accessory dwelling unit would be allowed and
would the applicant have to comply with the dimensional require-
ments in a remodel. Ms. Lamont told Council an accessory dwelling
unit would not be precluded in this condition of approval unless
the ADU program changes. Ms. Lamont told Council she has just
heard of these requests and would like a chance to review them
before commenting, Ms. Lamont said she would also like staff to
examin1 the trees.
Co~ncilwoman Richards moved to table Ordinance #49, Series of 1993,
to'October 25; seconded by Councilwoman Waggaman. All in favor,
motion carried.
2
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Reqular Meetinq
Aspen city Council
October 25. 1993
worked hard to obtain a trail easement on this property and to get
a new bridge location to get to the trail. The applicant amended
their PUD from 4 single family lots to I single family lot, and
also rezoned the property RR. Ms. Lamont pointed out RR does not
provide a floor area cap. The applicants have voluntarily capped
the allowable floor area at 8500 square feet. As a quid pro quo,
they are asking for permanent vesting.
Mayor Bennett opened the public hearing. There were no comments,
Mayor Bennett closed the public hearing.
Councilman Paulson said in an age of diminishing resources, the
city might consider introduce information about diminishing
resources and building large houses that sit empty much of the
time. councilman Paulson suggested this might be included in the
energy codes. Mayor Bennett recommended the staff and Council
review the energy codes. Councilwoman Waggaman suggested a maximum
energy one can use in a building rather than limiting the size of
the building, Council agreed to look at this in the future with
the adoption of the energy code.
Councilwoman Waggaman moved to adopt Ordinance #52 , Series of 1993,
on second reading; seconded by Councilwoman Richards. Roll call
vote; Councilmembers Richards, yes; Waggaman, yes; Paulson, yes;
Mayor Bennett, yes. Motion carried.
ORDINANCE #49. SERIES OF 1993 - Kastelic PUD/Subdivision
Leslie Lamont, planning office, reminded Council second reading was
continued so that staff could work with the applicant on some
conditions. Ms. Lamont said this has been worked out. Ms. Lamont
made further changes, condition #3, "If the existing residential
structure on Lot 1 is damaged or destroyed in whole or in part, any
reconstruction shall occur under the applicable provisions of the
Municipal Code". Condition #4 addition, "At the time of stream
margin review application, the applicant may request to vary the
building envelopes depending on then existing site condition. This
language shall be reflected on the final plat".
Mayor Bennett opened the public hearing. There were no comments.
Mayor Bennett closed the pUblic hearing.
Doug Allen, representing the Estate, submitted a letter to the
record stating their objection to the trail' easement on the
property. This objection has been constant through the process.
,
Councilwoman Richards moved to adopt Ordinance #49, Series of 1993,
on second redding as amended in conditions 3 and 11; seconded by
Councilman Paulson. Roll call vote; Councilmembers Paulson, yes;
Waggaman, yes; Richards, yes; Mayor Bennett, yes. Motion carried.
3