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HomeMy WebLinkAboutagenda.council.worksession.20090720MEMORANDUM TO: Mayor Ireland and Aspen City Council ~~~~~-/~ FROM: Chris Bendon, Community Development Director r J""' ` MEETING DATE: July 20, 2009 RE: Multi-Family Replacement Program -Work Session SUMMARY: Last Fall City Council adopted a series of "clean-ups" to the Multi-Family Replacement Program. During the hearings a series of options were presented to Council. Staff recommended option #1 be adopted and it was. None of the other options were immediately pursued although Council did indicate a desire to review the options in the future. Since adoption, the projects that were waiting for the exemptions to be reinstalled have proceeded. One project in pazticulaz, which staff determined was exempt from the replacement requirements, also happened to be very similar to option #3. Staff is seeking direction on pursuing additional amendments relative to option #3 and other options. HISTORY c4[ BACKGROUND: Since the 1970s, the City of Aspen has attempted to regulate the loss of free-mazket housing that housed local working residents. The Multi-Family Replacement Program as we know it today originated in 1988 through Ordinance 47, Series of 1988 after City Council and City Planning Staff became concerned that the demolition of existing free-market residential dwelling units was resulting in the exclusion of working residents from the City's neighborhoods. The program regulates the combination and demolition of multi-family dwelling units and is triggered any time construction, remodeling, or demolition results in the loss of amulti-family unit. The program is one of the main reasons older multi-family buildings remain in Aspen's housing stock. Over time, the program has become more and more restrictive. In 2005 the code allowed for the replacement of multi-family units and buildings as long as the same number of units were maintained - no mitigation for "replacement" was required. Mitigation for additional development was required only for that increment of expansion. In 2007 the code was again amended after a yeaz-long moratorium. The program was amended to require mitigation at the point of demolition regazdless of the extent of expansion. And, the mitigation standazds were substantially increased. The point at which actual "demolition" occurs is a very technical exercise and often results in some frustration felt by property owners and staff fielding questions about the "value" or "community purpose" of leaving a beam, section of wall, section of roof, etc. This is heightened by the magnitude of mitigation due based on the continued existence of a beam or wall. In 2008, City Council adopted changes to reinstate a series of exemptions that had previously been in the code but inadvertently dropped. These included exemption for units that had never been occupied by a local working resident and units needing to be demolished due to effects of a natural disaster. The code was also changed to exempt demolition of "bandit units." Exempting the demolition of illegal units had been the long-standing practice of the City although never actually codified. Also in 2008, staff presented City Council with a series of "options" to consider and help facilitate the discussion on amendments to the program. Council requested staff return at some future date for further discussion on these options. In eazly 2009, staff reviewed an application for interior remodeling. Demising walls between 5 units were being affected to accomplish a center hallway and an elevator for accessibility. Staff had some questions about how "elective" the work was. The definition of demolition includes the penetration of demising walls if the work is being done to combine the units. While maybe temporarily "combined," the same number of units remained in essentially the same configuration with no permanent combining of units. One of the exemptions added to the code in 2008 exempts "normal upkeep, maintenance, and remodeling." While some of the work was arguably elective, upgrades for accessibility, modern utilities, etc. happen on occasion as a normal part of a capital improvement plan. Staff found the project exempt, but also realized that the type of work being proposed largely mimicked option #3 previously presented to City Council. It should be noted that property owners continue to find frustration with this section of the code. As motioned above, there often is a discussion of what is accomplished with leaving a wall section or roof section. Staff would like to initiate an amendment to the Replacement Program to install option #3. The purpose of tonight's meeting is to: 1) Gain direction on pursuing Option #3; and, 2) Determine if there are other amendments to this section City Council would like staff to draft. ATTACHMENTS: A -Current Replacement Program B -Amendments Options C - "Pre-moratorium" Replacement Program T.... ~~~~~ f " a) The proposed units mply with the Guidelines Housing Author' A recommendation from the Authority sh e required for this standar Authority ay choose to hold a public hear' with ~~etif ~ of e Aspen/Pitkin County pen/Pitkin County Housing Aspen/Pitkin County Housing the Board of Directors. ~ b) Aff able housing required for miti on purposes shall be in the for factual ly built units or buy-down un' Off-site units shall be prov' within the ity limits. Units outside the ~ty limits may be accepted a ~tigation by the City Council, pursuant to P graph 26.470.090.2. If the igation requirement is less than one (1) fu nit, acash-in-lieu payme ay be accepted by the Planning and Zonin ommission upon a recomm ation from the Aspen/Pitkin County Housing horny. Ifthe mitigation r vement is one (1) or more units a cash-in-lieu went shall require City C ncil approval, pursuant to Paragr 26.470.090.. Required affordable ho mg may be provided through a x of these me ds. c) Eac nit provided shall be ~gned such that the finished r level of fifty p cent (50%) or more o e unit's net livable area is or above natural or wished grade, whichev is higher. d) The proposed uni shall be deed-restricted as ' r sale" units and transferr o qualified pure ers according to the As /Pitkin County Housing. ority Guidelines. e owner may be entitl o select the first purchas ,subject to the afore ntioned qualifications nth approval from the Aspen/Pitkin County Housi Authority. The deed riction shall authorize th~~Aspen/Pitkin County Ho " ng Authority or the ' ~ to o~Jn the unit and re flit to qualified renters as wed in the Afford Housing Guidelines e Iished by the Aspen/Pitkin County Housing A, rity, as amended. The propose its may be rental units cluding but not limited to rental s owned by employer or nonprofit ganization, if a legal instrument ' form accept a to the City Attorney res permanent affordability oft nits. The Cit ncourages affordable sing units required for lodge opment to be tal units associated wi a lodge operation and contri g to the long-term viability of the lodge. Units owned by Aspen/Pitkin County Hou Authority, the City of n, Pitkin Coun r other similar government rquasi-municipal age s all not be subjec this mandatory "for sale" ision. 5. Demolition or redevelopment of multi-family housing. The City of Aspen's neighborhoods have traditionally been comprised of a mix of housing types, including those affordable by its working residents. However, because of Aspen's attractiveness as a resort environment and because of the physical constraints of the upper Roaring Fork Valley, there is constant pressure for the redevelopment of dwellings currently providing resident housing for tourist and second-home use. Such redevelopment results in the displacement of individuals and families who are an integral part of the Aspen work force. Given the extremely high cost of and demand for market-rate housing, resident City of Aspen Land Use Code Part 400, Page 135 housing opportunities for displaced working residents, which are now minimal, will continue to decrease. Preservation of the housing inventory and provision of dispersed housing opportunities in Aspen have been long-standing planning goals of the community. Achievement of these goals will serve to promote a socially and economically balanced community, limit the number of individuals who face a long and sometimes dangerous commute on State Highway 82, reduce the air pollution effects of commuting and prevent exclusion of working residents from the city's neighborhoods. The Aspen Area Community Plan established a goal that affordable housing for working residents be provided by both the public and private sectors. The City and the Aspen/Pitkin County Housing Authority have provided affordable housing both within and adjacent to the city limits. The private sector has also provided affordable housing. Nevertheless, as a result of the replacement of resident housing with second homes and tourist accommodations and the steady increase in the size of the workforce required to assure the continued viability of Aspen area businesses and the Aspen's tourist-based economy, the City has found it necessary, in concert with other regulations, to adopt limitations on the combining, demolition or conversion of existing multi-family housing in order to minimize the displacement of working residents, to insure that the private sector maintains its role in the provision of resident housing and to prevent a housing shortfall from occurring. The combining, demolition, conversion or redevelopment of multi-family housing shall be approved, approved with conditions or denied by the Planning and Zoning Commission based on compliance with the following requirements (see definition of Demolition.): Requirements for combinine, demolishing converting or redeveloping free- market multi-family housine units: Only one (1) of the following two (2) options is required to be met when combining, demolishing, converting or redeveloping a free-market multi-family residential property. To ensure the continued vitality of the community and a critical mass of local working residents, no net loss of density (total number of units) between the existing development and proposed development shall be allowed. a) One-hundred percent replacement. In the event of the demolition of free- market multi-family housing, the applicant shall have the option to construct replacement housing consisting of no less than one hundred percent (100%) of the number of units, bedrooms and net livable area demolished. The replacement units shall be deed-restricted as resident occupied affordable housing, pursuant to the Guidelines of the Aspen/Pitkin County Housing Authority. An applicant may choose to provide mitigation units at a lower category designation. Each replacement unit shall be approved pursuant to Subsection 26.470.070.4., Affordable housing. When this one-hundred percent standard is accomplished, the remaining development on the site may be free-market residential development with no City of Aspen Land Use Code Part 400, Page 136 additional affordable housing mitigation required as long as there is no increase in the number of free-market residential units on the parcel. Free- market units in excess of the total number originally on the parcel shall be reviewed pursuant to Subsection 26.470.070.3, Expansion of free-market residential units within amulti-family or mixed-use development. b) Fifty-percent replacement. In the event of the demolition of free-market multi-family housing and replacement of less than one hundred percent (100%) of the number of previous units, bedrooms or net livable area as described above, the applicant shall be required to construct affordable housing consisting of no less than fifty percent (50%) of the number of units, bedrooms and the net livable area demolished. The replacement units shall be deed-restricted as Category 4 housing, pursuant to the guidelines of the Aspen/Pitkin County Housing Authority. An applicant may choose to provide mitigation units at a lower category designation. Each replacement unit shall be approved pursuant to Subsection 26.470.070.4, Affordable housing. When this fifty-percent standard is accomplished, the remaining development on the site may be free-market residential development as long as additional affozdable housing mitigation is provided pursuant to subsection 26.470.070.3, Expansion of free-market residential units within amulti-family or mixed-use project, and there is no increase in the number of free-market residential units on the parcel. Free-market units in excess of the total number originally on the parcel shall be reviewed pursuant to Subsection 26.470.080.2, New free-market residential units within amulti-family or mixed-use project. 2. Requirements for demolishing; affordable multi-family housine units: In the event a project proposes to demolish or replace existing deed-restrwted affordable housing units, the redevelopment may increase or decrease the number of units, bedrooms or net livable area such that there is no decrease in the total number of employees housed by the existing units. The overall number of replacement units, unit sizes, bedrooms and category of the units shall be reviewed by the Aspen/Pitkin County Housing Authority and a recommendation forwarded to the Planning and Zoning Commission. The Planning and Zoning Commission may require the affordable housing deed restriction on the affected units be brought into compliance with the current Guidelines of the Aspen/Pitkin County Housing Authority and to the satisfaction of the City Attorney. (Ord. No. 22-2008, § 1) 3. Fractional unit reauirement. When the affordable housing replacement requirement of this Section involves a fraction of a unit, cash-in-lieu may be provided only upon the review and approval of the City Council, to meet the fractional requirement only, pursuant to Subsection 26.470.090.3, Provision of required affordable housing via acash-in-lieu payment. 4. Location reauirement. Multi-family replacement units, both free-market and affordable, shall be developed on the same site on which demolition has occurred, City of Aspen Land Use Code Part 400, Page 137 unless the owner shall demonstrate and the Planning and Zoning Commission determines that replacement of the units on site would be in conflict with the parcel's zoning or would be an inappropriate solution due to the site's physical constraints. When either of the above circumstances result, the owner shall replace the maximum number of units on site which the Planning and Zoning Commission determines that the site can accommodate and may replace the remaining units off site, at a location determined acceptable to the Planning and Zoning Commission. A recommendation from the Aspen/Pitkin County Housing Authority shall be considered for this standard. 5. Timine requirement. Any replacement units required to be deed-restricted as affordable housing shall be issued a certificate of occupancy, according to the Building Department, and be available for occupancy at the same time as, or prior to, any redeveloped free-market units, regardless of whether the replacement units are built on site or off site. 6. Redevelopment agreement. The applicant and the City of Aspen shall enter into a redevelopment agreement that specifies the manner in which the applicant shall adhere to the approvals granted pursuant to this Section and penalties for noncompliance. The City of Aspen may require a bond or other financial instrument insuring compliance with the agreement. The agreement shall be reviewed and approved by the City Attorney. The agreement shall be recorded before an application for a demolition permit may be accepted by the City. (Ord. No. 22-2008, § 1) 7. Growth management allotments. The existing number of free-market residential units, prior to demolition, may be replaced exempt from growth management, provided that the units conform to the provisions of this Section. The redevelopment credits shall not be transferable separate from the property unless permitted as described above in Subparagraph 4, Location requirement. (Ord. No. 14-2007, §1) 8. Exemptions. The Community Development Director shall exempt from the procedures and requirements of this Section the following types of development ~,~I, ;~ involving Multi-Family Housing Units. An exemption from these replacement *lv~ requirements shall not exempt a development from compliance with any other ~tJ provisions ofthis Title (Ord. No. 22-2008, §1): a) The replacement of Multi-Family Housing Units after non-willful demolition such as a flood, fue, or other natural catastrophe, civil commotion, or similar event not purposefully caused by the land owner. The Community Development Director may require documentation be provided by the landowner to confirm the damage to the building was in-fact non-willful. (Ord. No. 22-2008, §1) City of Aspen Land Use Code Part 400, Page 138 To be exempted, the replacement development shall be an exact replacement of the previous number of units, bedrooms, and square footage and in the same configuration. The Community Development Director may approve exceptions to this exact replacement requirement to accommodate changes necessary to meet current building codes; improve accessibility; to conform to zoning, design standards, or other regulatory requirements of the City; or, to provide other architectural or site planning improvements that have no substantial effect on the use or program of the development. (Also see Chapter 26.312 - Nonconformities.) Substantive changes to the development shall not be exempted from this Section and shall be reviewed as a willful change pursuant to the procedures and requirements of this Section. (Ord. No. 22-2008, §1) b) The demolition of Multi-Family Housing Units by order of a public agency including, but not limited to, the City of Aspen for reasons of preserving the life, health, safety, or general welfare of the public. (Ord. No. 22-2008, §1) c) The demolition, combining, conversion, replacement, or redevelopment of Multi-Family Housing Units which have been used exclusively as tourist accommodations or by non-working residents. The Community Development Director may require occupancy records, leases, affidavits, or other documentation to the satisfaction of the Director to demonstrate that the unit(s) has never housed a working resident. All other requirements of this Title shall still apply including zoning, growth management, and building codes. (Ord. No. 22-2008, §1) d) The demolition, combining, conversion, replacement, or redevelopment of Multi-Family Housing Units which were illegally created (also known as "Bandit Units"). Any improvements associated with Bandit Units shall be required to conform to current requirements of this Title including zoning, ~~ growth management, and building codes. Replaced or redeveloped Bandit "~ 1" Units shall be deed restricted as Resident Occupied affordable housing, pursuant to the Guidelines of the Aspen/Pitkin County Housing Authority. (Ord. No. 22-2008, §1) S e) Any development action involving demising walls or floors/ceilings necessary for the normal upkeep, maintenance, or remodeling of adjacent Multi-Family Housing Units. (Ord. No. 22-2008, §1) Sec. 0.080.Major Plan and Zoning Commission ap ations. ollowing types of opment shall be approved, a ed with conditions or denied by e Planning and Z g Commission, pursuant to Se n 26.470.060, Procedures for revi above and the eria for each type of develop t described below. Except as not ,all growth ma ement applications shall compl with the general requirements ection City of Aspen Land Use Code Part 400, Page 139 Commercial kitchen. A commercial establishment producing or wholesaling prepared food items with no on-site consumption but which may have retail dispensing with no seating or wait service. Commercial parking facility. The use of a parcel or structure for the short-teen parking of automobiles as an independent commercial venture. Lease periods of less than one (1) month shall constitute short-term parking and shall be considered commercial parking facilities. Leasing of off-street parking spaces to tenants, guests, patrons or the general public for periods of one (1) month or more shall not constitute a commercial parking facility. When the use of off-street parking spaces by tenants, guests, patrons or the general public, is accessory to an on- site business or operation and is not an independent commercial venture, the parking shall not be considered a commercial parking facility. Commercial parking facilities may require conditional use approval or special review approval in some Zone Districts. Public parking facilities owned by a public agency shall be considered "public uses." Commercial use. Land or a structure intended to support offices, retail, warehousing, manufacturing, commercial recreation, restaurant bar or service oriented businesses, not including lodges or hotels. Commission. The City of Aspen Planning and Zoning Commission. Consignment retail establishment. A retail establishment in which the operator sells second-hand goods as a third party agent between the buyer and seller. Contiguous. The sharing of a common border at more than a single point. Lots, pazcels or boundaries may be considered contiguous where separated by private rights-of--way, water courses or water bodies situated between them. Cul-de-sac. A short local street terminating in a vehicular turnaround. Day care center. See "Child Care Center." (See Supplementary Regulations -Section 26.575.080, Child care center or home.) Deck. An outdoor, unheated azea appended to a living space but not intended for living. Demolition. To raze, disassemble, tear down or destroy forty percent (40%) or more of an existing structure (prior to commencing development) as measured by the surface of all exterior wall and roof area above finished grade and associated assembly and components necessary for the structural integrity of such wall and roof area. For the method of determining demolition, see Section 26.575.020(E), Measurement of demolition. Demolition shall also include the removal of a dwelling unit in amulti-family or mixed-use building, its conversion to nonresidential use, or any action which penetrates demising walls or floors between Multi-Family Housing Units if such action is undertaken to combine the units. (See Section 26.470.070.5, demolition or Redevelopment ofMulti-Family Housing) (Ord. No. 22-2008, § 2) ,_ Density. The number of dwelling units or bedrooms per unit of land as permitted in the Zone District. City of Aspen Land Use Code Part 100, Page 16 Exhibit B City Council requested staff develop some additional options for consideration. Following are suggested options organized from simple, minor amendments to fundamental changes to the program. The italicized text is suggested code language to add to the proposed ordinance. Option 1. The addition of an exemption providing for non permanent penetrations of demising walls. The normal course of remodeling, utility upgrades, etc. often affects demising walls and staff recommends this additional exemption be added. Any development action involving demising walls or floors/ceilings that is necessary for the normal upkeep, maintenance, or remodeling of adjacent Multi- Family Housing Units. Option 2. Introduction of a timeframe in the categorization of a unit as a tourist unit. The current regulation applies to a unit which has ever in its history housed a working resident. This is a very rigorous requirement, but has been at the core of the program for the past 20 years. This would be an amendment of proposed exemption c as highlighted below. c. The demolition, combining, conversion, replacement, or redevelopment of Multi- Family Housing Units which have been used exclusively as tourist accommodations or by non-working residents for a minimum of ten (10) years. The Community Development Director may require occupancy records, leases, affidavits, or other documentation to the satisfaction of the Director to demonstrate that the unit(s) has never housed a working resident. All other requirements of this Title shall still apply including zoning, growth management, and building codes. Option 3. The addition of an exemption providing for wholesale reconfiguration of adjacent units. This would allow, for example, two adjacent two-bedroom units to be redeveloped as aone-bedroom unit and athree-bedroom unit without triggering any of the replacement requirements. The rebuilding or reconfiguration of demising walls or floors/ceilings between adjacent units including substantial changes to the size, layout, number of bedrooms, or other aspects of the individual units such that the total number of units is not affected. Option 4. The addition of an exemption allowing for the combination of units in exchange fora "minimal" deed restriction on the resulting unit. This was discussed at first reading as a way to observe the original premise of the program- to maintain local housing opportunities -while recognizing the desire for units to be combined. The combining of adjacent Multi-Family Housing Units if the newly created unit is deed restricted to occupancy by full-time residents of Pitkin County. The deed restriction shall be acceptable to the City Attorney and shall be recorded prior to issuance of a building permit. Option 5. Reversion to the pre-moratorium replacement requirements. This system allowed for the total demolition and replacement ofmulti-family buildings asfree-market unit as long as the units were not expanded - an exact replacement system. In the system, if units were expanded, housing mitigation was required. The prior system did not address unit combining any differently than today's program. Please see Exhibit C. Option 6. The addition of an exemption allowing for the "temporary" combination of units with a requirement to divide the units in the future. This was also discussed at first reading as a way to observe the original premise of the program - to maintain local housing opportunities -while recognizing the immediate needs of locals. Staff does not support this option. The combining of adjacent Multi-Family Housing Units if the newly created unit shall be required to be divided and returned to the previous multiple unit configuration if ever sold to part-time residents of Pitkin County. The deed restriction shall be acceptable to the City Attorney and shall be recorded prior to issuance of a building permit. Option 7. The addition of an exemption allowing for the combination of units. This could include some limitation on how many units could be combined. The combining of adjacent Multi-Family Housing Units. Or, The combining of no more than two (2) adjacent Multi-Family Housing Units. This exemption shall be allowed only once per unit, cumulatively. Option 8. The elimination of the program in its entirety. The current validity of the program was questioned during first reading. Staff continues to believe the program provides benefit in maintaining a broad range of housing choice. [Section 1 of the ordinance] Section 26.470.040. S -Reserved. ~r~~. G ~~ Chapter 26.530 ~/y~/ RESIDENT MULTI-FAMILY REPLACEMENT PROGRAM ~~J ~~ Sections: ~~. 26.530.010 Purpose and intent. 26.530.020 Application of Title. 26.530.030 Certificate of compliance/exemption. 26.530.040 Housing replacement requirements. 26.530.050 Resale restrictions. 26.530.060 Enforcement. 26.530.070 Appeals 26.530.010 Purpose and Intent. The City of Aspen's neighborhoods have traditionally been comprised of a mix of housing types, including those affordable by its working residents. However, because of Aspen's attractiveness as a resort environment, and because of the physical constraints of the upper Roaring Fork Valley, there is constant pressure for the redevelopment of dwellings currently providing resident housing for tourist and second home use. Such redevelopment results in the displacement of individuals and families who are an integral part of the Aspen work force. Given the extremely high cost of and demand for market-rate housing, resident housing opportunities for displaced working residents, which are now minimal, will continue to decrease. Preservation of the housing inventory and provision of dispersed housing opportunities in Aspen have been long-standing planning goals of the community. Achievement of these goals will serve to promote a socially and economically balanced community, limit the number of individuals who face a long and sometimes dangerous commute on State Highway 82, reduce the air pollution ef- fects ofcommuting and prevent exclusion of working residents from the city's neighborhoods. In the Aspen Area Community Plan the city has established a goal that affordable housing for work- ing residents be provided by both the public and private sectors. The city, through its housing des- ignee, has provided affordable housing both within and adjacent to the city limits. The private sec- tor has also provided affordable housing through the GMQS process. Nevertheless, as a result of the replacement of resident housing with second homes and tourist accommodations, and the steady increase in the size of the workforce required to assure the continued viability of Aspen area busi- nesses and Aspen's tourist based economy, the city has found it necessary, in concert with other regulations, to adopt limitations on the demolition of existing multi-family housing in order to minimize the displacement of working residents, to insure that the private sector maintains its role in the provision of resident housing, and to prevent a housing shortfall from occurring. 26.530.020 Application of Chapter. This Chapter shall apply to the demolition of any resident multi-family housing ("RMF housing"), as defined herein, in the City of Aspen, excluding any parcel consolidated as a Specially Planned Area (SPA). CiTy of Aspen Land Use Code. June, 2005 Part 500, Page 47 For the purposes of this Chapter, demolition of a RMF Housing Unit shall include any development action which constitutes Demolition, as defined, and also any action which penetrates demising walls or floors between RMF Housing Units or which converts a RMF Unit to anon-residential use, independent of whether or not such action is undertaken to combine or rebuild the units~or for any other purpose. No owner shall cause the demolition of any RMF housing unit without first obtaining a certificate of compliance or a certificate of exemption in accordance with the provisions of this Chapter. The Community Development Department shall not issue a permit for the demolition of any multi- family dwelling unit unless the owner has obtained either a certificate of compliance or a certificate of exemption issued in accordance with this Chapter. A certificate of compliance or a certificate of exemption shall only be issued by the Community Development Director if the applicant has com- plied with the provisions of this Chapter. Any RMF housing unit which is ordered to be demolished by any public agency, including the city, as a result of damage caused by civil commotion or natural disaster shall not be subject to the terms of this Chapter. The City Council, at their discretion, may exempt non-profit agencies or organiza- tions from the provisions of this Chapter. 26.530.030 Certificate of compliance/exemption. Any applicant, prior to applying for a building permit from the Community Development Depart- ment for the purpose of demolishing any multi-family dwelling unit, must first obtain a certificate of compliance or a certificate of exemption from the requirements of this Chapter. A. Certificate of Compliance. In order to obtain a certificate of compliance, the owner shall 1. Submit to the Community Development Director a statement, certified by the City of Aspen Zoning Officer, declaring the number of RMF housing units, bedrooms, and the net residen- tial area to be affected by demolition. 2. Where required, secure necessary land use approvals and development orders for the project to be developed on the site of the demolished building or on such other location as may be approved. Execute a housing replacement agreement with the City of Aspen setting forth the terms and conditions upon which any replacement housing required by this Chapter shall be devel- oped, which agreement shall be in a form acceptable to the City Attorney. The agreement shall burden the property and be recorded in the records of the Clerk and Recorder of Pitkin County. The obligation to provide replacement housing as set forth in the agreement shall be secured by a bond, letter of credit, or other security acceptable to the City. B. Certificate of exemption. In order to obtain a certificate of exemption, the owner must submit a statement certifying that the dwelling unit(s) is exempt from the provisions of this Section, City of Aspen Land Use Code. June, 2005 Part 500, Page 48 the basis upon which exemption is claimed, and such additional documentation as may be required by the Community Development Director in order to establish the exemption. If the Community Development Director is satisfied that the dwelling unit is exempt from the provisions of this Title, a certificate of exemption shall be issued. C. Procedure. A Certificate of Compliance or Certificate of Exemption shall be obtained prior to the submission of a building permit. D. Form of Certificate. A Certificate of Compliance or Exemption shall be in a form approved by the Community Development Director. The Certificate shall constitute a Development Order issued pursuant to Section 26.304.070, Development Orders. (Ord. No. 40-2002; Ord No. 51-2003, § 1) 26.530.040 Housing Replacement Requirements. A. One-Hundred Percent Replacement - No Expansion. In the event of the demolition of free- market resident multi-family housing, the owner shall have the option to construct replace- ment housing consisting of no less than one-hundred (100) percent of the number of units and one-hundred (100) percent of the number of bedrooms demolished. The units shall be re- placed with like-type units (i.e. each one-bedroom unit is replaced with aone-bedroom unit, each two-bedroom unit is replaced with atwo-bedroom unit, etc.). Studio units may be re- placed with either studio or one-bedroom units. The project's total net livable area may not be expanded. When this one-hundred (100) percent standard is accomplished with no expansion of the project's total net livable area, the replacement housing shall not be required to be deed restricted as affordable housing. - - One-Hundred Percent Replacement -Unit Expansion. In the event of the demolition of free-market resident multi-family housing, the owner shall-have the option to construct re- placement housing consisting of no less than one-hundred (100) percent of the number of units and one-hundred (100) percent of the number of bedrooms demolished. The units shall be replaced with like-type units (i.e. each one-bedroom unit is replaced with aone-bedroom unit, each two-bedroom unit is replaced with atwo-bedroom unit, etc.). Studio units may be replaced with either studio or one-bedroom units. The project's total net livable area may be expanded if a portion of the project, commensurate with the percentage of net livable space expansion, is deed restricted according to the Aspen/Pitkin County Affordable Housing Guidelines. The required amount of units, bedrooms, and net livable area to be deed restricted as affordable housing shall be no less than the percentage of the project's net livable area ex- pansion over the existing development. Affordable housing meeting this requirement shall be deed restricted in accordance with the requirements of section 26.530.050, Resale Restrictions (below). No more than 50% of the original project's units, bedrooms, and net livable area shall be required to be replaced as affordable housing. (For example: a project replicating an existing unit bedroom mix for which the aggregate net livable space is increased by 15 per- cent shall include affordable housing equal to 15 percent of the original units, bedrooms, and City of Aspen Land Use Code. June, 2005 Part 500, Page 49 net livable azea.) A project both increasing and decreasing individual units sizes for which no aggregatc expansion of the project's net livable azea occurs shall incur no affordable housing requirement. When this expansion and replacement percent standazd is accomplished with af- fordable housing commensurate with the expansion of net livable space, the remaining units replaced on-site shall not be required to be deed restricted as affordable housing. B. Fifty Percent Replacement. In the event of the demolition of free-mazket resident multi- family housing and replacement of less than one-hundred (100) percent of the number of pre- vious units and bedrooms as described above, the owner shall be required to construct re- placement housing consisting of no less than fifty (50) percent of the number of units, fifty , (50) percent of the number of bedrooms, and fifty (50) percent of the squaze footage of net ~~V~Nw aesidentiarazea demolished. The replacement housing meeting this requirement shall be deed restricted as affordable housing in accordance with the requirements of section 26.530.050, Resale Restrictions (below). The remaining units replaced on-site shall not be required to be deed restricted as affordable housing. C. Location of Replacement Housing. Multi-family replacement units shall be developed on the same site on which demolition has occurred, unless the owner shall demonstrate and the City Council determines that replacement of the units on-site would be incompatible with adopted neighborhood plans or would be an inappropriate planning solution due to the site's physical constraints. When either of the above circumstances result, the owner shall replace the maxi- mum number of units on-site which the City Council determines that the site can accommo- date and may replace the remaining units off-site, at a location determined acceptable to City Council. When replacement units are proposed to be built off-site, the owner shall be required to obtain a development order approving the off-site development prior to issuance of a Cer- tificate of Compliance for the original parcel. Replacement units may be redeveloped on a separate parcel which is part of amulti-parcel Planned Unit Development that includes the original parcel. In this case, the location of rede- velopment units, both free-market and affordable, shall be determined by the City through adoption of a Final PUD Plan, pursuant to Chapter 26.445. D. Cash-in-Lieu Payment. When the owner's affordable housing replacement requirement of this section involves a fraction of a unit, cash in lieu may be provided to meet the fractional requirement only. The amount of a cash-in-lieu shall be determined by the Aspen/Pitkin County Housing Authority according to the applicable Affordable Housing Guidelines. E. Timing and Quality of Replacement Units. Any replacement units required to be deed re- stricted as affordable housing shall be issued a Certificate of Occupancy, according to the Building Department, and be available for occupancy at the same time as, or prior to, any re- developed free-mazket units, regardless of whether the replacement units aze built on-site or off-site. Replacement units required to be deed restricted as affordable housing shall contain fixtures, finish, and amenities required by the Affordable Housing Guidelines of the As- pen/Pitkin County Housing Authority. City of Aspen Land Use Code. June, 2005 Part 500, Page 50 F. Growth Management Replacement Credits. The existing number of free-mazket residential units, prior to demolition, may be replaced exempt from growth management. The redevel- opment credits shall not be transferable separate from the property unless permitted as de- scribed above in subparagraph C. Free-mazket residential units in excess of those originally on the parcel shall be subject to growth management, Chapter 26.470. The affordable residential units required to be developed shall be exempt from growth management, provided the units conform to the requirements of this Chapter. Additional affordable dwelling units shall be subject to growth management, Chapter 26.470. (Ord. No. 40-2002 § 2 (part), 2002) 26.530.050 Resale/Rental Restrictions. Replacement units required to be deed restricted as affordable housing shall be "for-sale units" and shall be deed restricted in a form and substance consistent with the Affordable Housing Guidelines established by the Aspen/Pitkin County Housing Authority. Such deed-restricted units may only be sold in compliance with the current Affordable Housing Guidelines established by the Aspen/Pitkin County Housing Authority. The owner may be entitled to select purchasers, subject to the afore- mentioned qualifications, with approval from the Aspen/Pitkin County Housing Authority. Replacement units required to be deed restricted as affordable housing shall be allowed to be rental units if a legal instrument, in a form acceptable to the City Attorney, shall guazantee their perma- nent affordability in accordance with the Aspen/Pitkin County Affordable Housing Guidelines. No resale or rental restrictions shall apply to free-mazket replacement units. 26.530.060 Enforcement. Any person who violates any provision of this Chapter including violation of any provision of a deed restriction executed for the benefit of the City of Aspen or the Aspen/Pitkin County Housing Authority shall be liable to the criminal and/or civil penalties and remedies set forth at Section 26.104.040. 26.530.070 Appeals. An applicant aggrieved by a decision of the Community Development Director in the administra- tion of this Section may appeal such decision to the Aspen City Council in accordance with the ap- peal procedures set forth at Chapter 26.316. An applicant aggrieved by a determination made by the City Council, pursuant to this Section, may appeal the decision to a court of competent jurisdic- tion. (Ord. No. 51-2003, §1) City of Aspen Land Use Code. June, 2005 Part 500, Page 51