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HomeMy WebLinkAboutminutes.council.20090914Regular Meeting Aspen City Council September 14, 2009 OUTSTANDING EMPLOYEE BONUS AWARDS ..................................................... .... 2 CITIZEN PARTICIPATION .......................................................................................... .... 2 COUNCILMEMBER COMMENTS .............................................................................. .... 3 CONSENT CALENDAR ............................................................................................... .... 4 • Resolution #65, 2009 -Contract Burlingame Ranch Irrigation and Drainage... .... 5 • Resolution #66, 2009 -Contract West Water Treatment Plant Filter Media..... .... 5 • Resolution #69, 2009 - 211 W. Hopkins Ordinance No. 48 Negotiation Extension 5 • Resolution #70, 2009 -Contract -ARC Mechanical Penthouse Sealing ........... .... 5 • Resolution #71, 2009 -Contract -Electric Concrete Vaults ............................. .... 5 • Resolution #72, 2009 -Contract -Yellow Brick Roof Replacement ................ .... 5 • Minutes -August 24, 2009 ................................................................................. .... 5 RESOLUTION #67, 2009 -Purchase Contract 104 W. Cooper .................................... .... 5 RESOLUTION #68.2009 -Purchase Contract 910 W Hallam #11 .............................. .... 5 ORDINANCE #21, SERIES OF 2009 -Red Butte Cemetery PUD .............................. .... 7 ORDINANCE #13, SERIES OF 2009 - 219 South Third Historic Lot Split ................ .... 8 RESOLUTION #52, SERIES OF 2009 -Lift One Lodge Conceptual PUD ................. .. 12 REQUEST FOR FUNDS -Election Commission/Outside Counsel ............................. .. 15 1 ReQUlar Meetiu¢ Aspen City Council September 14, 2009 Mayor Ireland called the meeting to order at 5:03 p.m. with Councilmembers Skadron, Romero, Torre and Johnson present. OUTSTANDING EMPLOYEE BONUS AWARDS Mayor and Council presented outstanding employee bonus awards to two department teams; Jose Serrano, Brad Fite, Patrick Derby and Laddie Swanner of the ARC and Jon Anderson, Laura Taylor, Brian Slattery and Charlie Bailey of the water deparhnent. CITIZEN PARTICIPATION 1. Lindsay Smith presented slides of the work done, showing animals being cared for before being returned to the wild, by the PSS Wildlife Foundation of Silt. Dick Kopeck told Council the operating budget for the PSS Wildlife Foundation is about $100,000; the monies are needed to cover food, animal care, housing, utilities, and transportation to veterinarians. The foundation is not a zoo and has few visitors. Pat Althouse said without this foundation, the baby bears, without mothers, and other animals would have to be put down. Ms. Althouse requested Council consider funding for orphan cubs. The foundation has spent $17,000 for 11 beazs under their care. Mayor Ireland said Council will consider this request during budget time and referred the request to the Non-profit grants committee. 2. Paul Taddune, representing Hunter Square LLC owner of the property adjacent to Stage 3 development, told Council it appears the west wall portion of Stage 3 is not in compliance with city approvals. Taddune gave Council a letter, a copy of the approval ordinance, the subdivision agreement and a survey done by Hunter Square as well as the plan submitted to the city for approval of Stage 3. Taddune noted the approval required a minimum 3' wide sidewalk with a sidewalk of 4' to the southerly project. Taddune said it appears the developers will not be able to comply with this. Taddune requested this be referred to staff for confirmation that Stage 3 is not in compliance or to assure the neighbors they are in compliance. Taddune said there is a lawsuit filed by the contractor, there are foreclosure proceedings and the city should make sure all obligations on behalf of Stage 3 are being performed. 3. Jim Smith, representing Concept 600, noted he sent Council an e-mail reiterating concerns about the height of 625 East Main project. Smith said the documents of the original approval show the primary roof height to be 36'6". All the documents at the building department show the height to be above 37' and the northeast corner at 39'. Smith said the building is lower than that allowed by the land use code, it is greater than what was promised during the approvals. Smith said no reasons aze given for why this building is taller than approved. This developer should request a height variance from Council or comply with the approved heights. Smith said it appears the change was done without public approval. 4. Andrew Kole told Council the summer mall entertainment is finished. There were between 30 and 40 musicians performing. Kole acknowledged Kathy Strickland 2 Regular Meeting Aspen Citv Council September 14, 2009 who did most of the work on the performers in the mall program. Kole said the reaction was favorable. Kole said the electric rates aze going up this winter and it may be difficult for people in this economic climate. Kole thanked the Aspen School District for broadcasting President Obama's speech. 5. Laura Thielen and Natalie McMinimie, Aspen Film, invited Council to Aspen Film, September 30 to October 4, which is the 30`h anniversary of bringing films and film guests to Aspen. Ms. Thielen thanked Council for their continued financial and other support. Ms. Thielen said there will be a free screening of The Big Night. The school is sending students to various presentations. 6. Craig Ward and John Callahan presented a letter in support of Noah Hoffinan, an Aspenite who has been chosen for the U. S. Nordic Olympic team. Ward told Council Hoffrnan has deferred college to train full time for the 2010 Olympics. The request is for financial support for home town athletes that are competing and representing the U.S.A. and Aspen. Ward suggested a $5,000/year stipend. Mayor Ireland said it is reasonable to ask for some money but Council will need more information on how the money will be spent and guidelines for awarding athletic training monies. COUNCILMEMBER COMMENTS L Councilman Romero reported on the RFTA board meeting last weekend; the main topic of discussion was the 2010 budget and a balanced budget. Councilman Romero told Council the RFTA Board will put into writing and provide a time line for Rifle, Silt and Garfield county to respond to RFTA's petition to joint RFTA and to match the operating costs by serving these areas. Councilman Romero said if no action is taken by Apri12010, RFTA will pare back the service. 2. Councilman Romero announced that the bus lane between Buttermilk and the roundabout received an award from CASTA, given jointly to Aspen, Snowmass and Pitkin county. 3. Councilman Skadron reported he attended the CAST meeting in Breckenridge. CAST is looking at the budget trends and marketing issues. Economic effects that are happening in Aspen aze happening in other ski towns. 4. Councilman Torre told Council he attended the RWAPA meeting where they discussed invasive species, which might affect Ruedi. Councilman Torre reported they are looking at a cleaning station for boats at Ruedi and aze looking at partnerships for that project. 5. Councilman Torre said the Sister Cities aze entertaining school groups from Bariloche, Argentina and Chamonix, France in Aspen next month. Reeular Meeting Aspen City Council September 14, 2009 6. Councilman Torre reported that the Lodge at Aspen Mountain COWOP is discussing trade offs between community benefits and what the developer can and cannot do. Councilman Johnson stated the Aspen High School football team is 2 and 0. 8. Councilman Johnson said the sidewalk sales over the past two weekends have been a success and it was something the city could do for the retail community that cost the city little money. 9. Councilman Johnson said the Ice Garden installed reverse osmosis system and the ice is a very high quality. 10. Mayor Ireland said he hopes Ride for the Cure returns to Aspen in the future. 11. Mayor Ireland said the controversy about the Stage 3 project relates to the unregulated speculative development that has gone on in Aspen. Mayor Ireland said the city seems less willing to approve all development as proposed or to deny every proposal. There needs to be a balance and the city needs to be able to follow up on agreements to make sure there is compliance and consequences for not building according to the approval. 12. Mayor Ireland said CDOT could be in the position of losing federal grant monies because there is not enough in the budget for matching funds. Mayor Ireland said the only remaining source of funds is to cut maintenance, which makes no sense. 13. Councilman Romero thanked all the staff who worked the community picnic, especially the fabulous tole slaw server. Councilman Romero noted the community had a great time. 14. Mayor Ireland asked if staff has found funds for the ambulance for Ruggerfest. Randy Ready, assistant city manager, told Council he is working on it. CONSENT CALENDAR Mayor Ireland requested Resolution #67, Purchase Contract 104 W. Cooper, and Resolution #68, Purchase contract 910 W. Hallam #11 be removed. Mayor Ireland moved to approve the consent calendar as amended; seconded by Councilman Skadron. The consent calendar is: 4 Regular Meeting Aspen City Council September 14, 2009 • Resolution #65, 2009 • Resolution #66, 2009 • Resolution #69, 2009 • Resolution #70, 2009 • Resolution #71, 2009 -Contract Burlingame Ranch Irrigation and Drainage -Contract West Water Treatment Plant Filter Media - 211 W. Hopkins, Ordinance No. 48 Negotiation Extension -Contract -ARC Mechanical Penthouse Sealing. -Contract -Electric Concrete Vaults • Resolution #72, 2009 -Contract -Yellow Brick Roof Replacement • Minutes -August 24, 2009 All in favor, motion carried. RESOLUTION #67, 2009 -Purchase Contract 104 W. Cooper RESOLUTION #68.2009 -Purchase Contract 910 W Hallam #11 Scott Miller, asset management, reminded Council they recently adopted amendments to the housing guidelines. One of these amendments included recognizing that when one or two deed restricted units are in a free mazket building, the owners of these units maybe faced with large assessments. The owners of a unit at 104 West Cooper are faced with a HOA assessment of $165,000, which would make the unit not affordable. This unit could be purchased by the city for $152,000. Miller requested approval to purchase this unit for $152,000 and to pay the assessment. Miller told Council staff will hire architects and contractors to finish the unit; the deed restriction will be removed and the unit will be sold on the free market. Miller noted the housing guidelines state the city has the first right of refusal. If the city chooses not to purchase these units, the housing office can purchase the units. Miller told Council the unit at 910 West Hallam can be purchased by the city for $145,945. The owner of this unit is facing increasing HOA assessment for a new roof and interior upgrades. Mayor Ireland questioned putting $225,000 into the unit at West Cooper. Miller said the building is being totally upgraded, outside and inside, and the units are being expanded. Miller said these units will sell on the free market for over $1 million. The city can fix the unit up and sell it on the free market. This unit needs safety upgrades, like fire alarm and sprinkler. Mayor Ireland suggested the city do only the safety improvements and sell it as a fixer up unit and let someone else invest in the upgrade. Miller said that is an alternative. Mayor Ireland said the city can go through a public bidding process to see if there aze other interested persons and to see the revenue that could be generated through this unit. Councilman Skadron said once these units are lost to the employee housing pool, where do the employees go. Steve Barwick, city manager, told Council these residents have been given priority into other affordable housing units. Barwick reminded Council this Regu-ar Meeting Aspen City Council September 14, 2009 recommendation is consistent with the direction given by Council when this issue was discussed when the housing guidelines were amended. Councilman Skadron asked if the net proceeds from the sale of units like this move the city closer to their affordable housing goals versus not selling the units. Miller said any money made off these units will go back into the housing development fund. Barry Crook assistant city manager, reiterated if the city does not exercise the options to buy these units, the housing office can use their own funds to purchase these units. Mayor Ireland said these units are lost to employees because the units are no longer affordable. The residents cannot pay $165,000 in assessment. Mayor Ireland said the issue is whether the city pays the assessment and keeps the unit in the deed restricted pool. Mayor Ireland said if the city does that, the question is whether the on-going burden on the homeowner will become onerous. Councilman Torre said Council did discuss these types of units. Councilman Torre entered an e-mail from Jasmine Tygre into the record. Councilman Torre said this is problematic and the dues will be an on going problem. Councilman Torre agreed with the issue of whether the city should be in the construction business or not. Councilman Torre stated he is not prepared to support purchasing these units without knowing if the city will maintain ownership or will upgrade them or what. Crook told Council the city needs to purchase these units to take the owners out from under the assessment burden. Crook said taking the next step, whatever it maybe, can be done later. Councilman Johnson agreed the city should not be in the business of fixing the units up; however, he does support buying the units back. Councilman Johnson said he would like more information before the city gets into the construction or real estate business. Councilman Romero said the larger issue is the lack of public awareness on the policy discussions about affordable housing and trying to understand where this program is headed. Councilman Romero said these units came under affordable housing because of requirements in the land use code and mitigation for development. Councilman Romero stated he will not support the city getting into for-profit activities in this particular process. Councilman Romero said the public needs to hear that the city is going to amend the land use code to not require this type of mitigation for development. Councilman Romero said whether the housing office or the city gains from sales like this, the goal is to get a no-longer affordable unit out of inventory, get some money out of the unit and create substitute housing. Crook said these units came from city efforts, not housing office efforts. Mayor Ireland said the city needs to acquire this unit to keep the employees from being crushed by $165,000 assessment. Mayor Ireland said this will give the city time to ponder alternatives like selling the unit to a local who will upgrade the unit and live in it for 5 years or to remodel the unit and sell it on the free market. Councilman Romero 6 Regular Meeting Aspeu City Council September 14, 2009 asked if the owners vacated this unit before or after Council's policy discussions in July. Tom McCabe, housing office, said they moved out before the policy discussions. Steve Barwick, city manager, recapped Counci] agrees with purchasing these two units, with paying off the assessment. Barwick said the city can market the units as is, get the best price, bring that back to Council for decision on whether to sell them as is or upgrade them and market the units. Mayor Ireland agreed the city can acquire the units and put the sale out to bid. Councilman Skadron stated he wants to do what is best for the affordable housing program and the options should be vetted further. Mayor Ireland said after acquisition, Council can look at the options. Councilman Johnson agreed the city should buy the units and take the burden off the homeowners. Councilman Johnson said he would like more information, like pro formas of the two models, some comps on undeveloped versus redeveloped, what is selling, what isn't. McCabe the pro forma of the original fit and finished established by the HOA would be the starting point. Councilman Torre moved to approve Resolutions #67 and 68, Series of 2009, paying the assessment and HOA dues and studying the options for resale; seconded by Mayor Ireland. All in favor, motion carried. ORDINANCE #21, SERIES OF 2009 -Red Butte Cemetery PTJD Drew Alexander, community development department, told Council this is a proposal for a site specific development plan to restore the Victorian-era cabin and outhouse and to construct a maintenance facility on the Red Butte Cemetery. Alexander said this project has received conceptual approval from HPC and approval for conditional use from P&Z. P&Z has recommended consolidated PUD, amendment to the official zone district map, and growth management for an essential public facility. Staff recommends adoption on first reading. Alan Richman, representing the applicant, told Council the buildings will be used as a reception area, office and meeting place. The cabin is 216 square feet. Councilman Skadron said the Red Butte cemetery is tranquil and historic place. Councilman Romero asked about the public outreach. Richman told Council the applicants started with the neighbors before the application was in front of HPC. There was a lot of input at HPC. There have been concerns, some of which have been resolved. There are still some concerns from neighbors, which Council will hear at the public hearing. Richman noted a small group of neighbors have become part of the planning team as opposed to acting against the plan. Councilman Romero moved to read ordinance #21, Series of 2009; seconded by Councilman Torre. Ordinance No. 21 (SERIES OF 2009) Regular Meeting Aspen City Council September 14, 2009 AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING CONSOLIDATED PUD REVIEW, AMMENDMENT TO THE OFFICIAL ZONE DISTRICT MAP, AND GROWTH MANAGEMENT REVIEW FOR AND ESSENTIAL PUBLIC FACILITY FOR THE RED BUTTE CEMETERY, LOCATED AT 808 CEMETERY LANE, CITY OF ASPEN, PITKIN COUNTY, COLORADO. Councilman Romero moved to adopt Ordinance #21, Series of 2009, on first reading; seconded by Councilman Skadron. Roll call vote; Councilmembers Johnson, yes; Skadron, yes; Torre, yes; Romero, yes; Mayor Ireland, yes. Motion carried. Richman asked if Council wanted a site visit. Council agreed if members want a site visit, they will contact Richman to set it up. ORDINANCE #13, SERIES OF 2009 - 219 South Third Historic Lot Split Chris Bendon, community development department, said since the last meeting, he has had two meetings with the neighbors and the applicants. Bendon said no consensus was reached. There was interest in reaching a compromise that would satisfy all parties. The applicant was willing to have less FAR in exchange for developing more decks on the property. The neighbors were amenable to some setback consideration but once again no compromise was reached. Bendon told Council he discussed the project without historic designation and the impacts resulting from anon-historic land use project would be taller than what is being discussed. Bendon noted there is a 10' setback all along the alley if this is developed as one entire property without historic designation. Bendon showed how if the west piece is a separate parcel, it would front the alley and would require a 25' setback. Bendon told Council if this is developed as one parcel without historic designation, no public hearings are required unless an applicant is looking for a variance. Bendon said Council's options aze to adopt the ordinance as presented in the packet. Bendon noted there are two appeals of code interpretations, one on lot area and how man made slopes affect the calculation of lot area, the second regarding the existing structure and how it contributes to the calculation of floor azea. Bendon said these appeals will be scheduled in front of Council in October. This ordinance specifies the FAR for the two new parcels and Council could amend the ordinance to eliminate all reference to floor area, which would allow this ordinance to be adopted and still have a discussion of the lot azea under appeal. Bendon said if Council chooses this option, they could offer to the applicant a delay trigger in historic designation to have it commensurate to the filing of the final plat. Bendon pointed out the ordinance also contains side yard setback, waiver of the residential design requirements, vesting of the affordable housing cash-in-lieu fee and eliminating the duplex use on lot 1 at time of redevelopment. The final option is to delay this decision until Council hears the code interpretation appeals. Bendon told Council the Regular Meeting Aspen City Council September 14, 2009 applicant is not interested in a continuation. Staff recommends approval of Ordinance #13, which is consistent with HPCs' recommendation. Amy Guthrie, community development department, reminded Council this has been a 10 month discussion of an offer for voluntazy designation of a historic resource which HPC feels has value. Bendon said the applicant is responsible for paying land use fees, which have gotten into the $10,000 range. Bendon said Council can decide whether these fees should be applicable, waived, partially waived. Councilman Romero said in August Council considered the fall back to the June 8`h discussion of this property. Bendon agreed this is another option for Council. Councilman Skadron asked how the neighbors feel about staff s recommendation. Bendon said they probably are not happy that staff is supporting this ordinance. Bendon said people do appreciate the circumstance of how to preserve post WWII era structures, whether they are important, whether they should be preserved and whether it should be voluntazy. Ms. Guthrie noted that the slope issue has been established through staff interpretation, there is no FAR bonus being requested; there are variances for setbacks and for residential design, which could be granted by HPC. The other request is the vesting the rate for affordable housing mitigation. Bendon added if the code interpretation appeal is held up, the applicant is not asking for additional FAR. Councilman Torre asked what were the sticking points between neighbors during the compromise meetings. Bendon said the applicant offered to reduce the FAR of the project with increased deck space allowed. The Youngs were interested in the setback variances and where on the buildings they occur. Councilman Torre asked why, if this property were condominiumized, would the HPC have purview. Ms. Guthrie said HPC has the ability to grant variances on properties that aze landmark designated. Ms. Guthrie pointed out on the plat map if this were to remain one parcel with condominiumized units, HPC's authority would cover the entire property, including setback variance and residential standard variance. Bendon pointed out the ordinance delineates the FAR for the two new parcels; if Council adopts the ordinance with the FARs outlined, it renders the appeal moot. If Council wants the appeals discussion to affect this property, they should eliminate the floor area numbers from the ordinance. Suzanne Foster, applicant, requested Council vote on this issue and not continue it. Ms. Foster noted she agreed to a continuance to meet with the neighbors and to work on a compromise. Ms. Foster concluded an agreement would not be reached. Ms. Foster said the only change to Ordinance #13 she would accept would be to eliminate the FAR language and add the ability to decide that after the code appeal. Jody Edwards, representing the Youngs, entered into the record a-mails from the Youngs. Edwazds said at the August 10`h Council meeting, Council brought up the interpretation of floor area. Edwazds filed an appeal of that interpretation last week. This appeal requires notice and a hearing and it should be in front of Council in October. Edwazds said this appeal should not prevent Council from denying this ordinance; it does prevent Council from approving the ordinance with an FAR in it. 9 ReEUlar Meetine Aspen Citv Council September 14, 2009 Edwazds said when there is a historic lot split, two lots are created and section 26.480.030(a) applies. Edwards said Ordinance #48 grants Council some flexibility; however, it only gives Council a process for negotiation. It does not have any standazds embedded in it. Council needs to have standards if they are going to be in compliance with the substantive due process requirements. Council does not have authority to vary from their code by general authority under Ordinance #48 and has no authority to grant a setback variance on lot 2. Edwards noted the floor azea was too big for the prior Council to grant a bonus and it is still too big. Dan McCarty, neighbor, told Council he attended the meetings to attempt to reach a compromise to present to Council. McCarty said it was obvious there was a wide gap between what the applicant stated they needed and what the neighbors feel is a reasonable development for this lot. McCarty said this project should be denied. Jake Vickery, representing the Youngs, handed out a spread sheet showing the various submittals. The applicant was before council on Januazy 28`h; June 8"' was Council's offer of approval. The spreadsheet compazes the carriage house to the historic program. Vickery said the incentives of the carriage house programs aze competing with those of the historic program. The August 10~h request reflects the slope reduction waiver. Vickery also submitted a 3-D mode] drawing to study the alternatives based on the applicant's representations. Vickery said historic designation should be denied because the structure does not meet the criteria for designation. The proposed incentives result in over-development of the property and incompatibility with the neighborhood.. Paul Young, 413 West Hopkins, said there are problems with living on a narrow, dead- end alley. These include safety, snow removal and pazking. Young said he has suggestions for compromises. Young noted that on lot 2, 1729 squaze feet is the maximum amount of FAR supported by Council and additional FAR has been voted down. Young said if Council is inclined to grant FARs in excess of 1729 square feet, the neighbors would support granting of TDRs which is a logical solution to this dilemma. The neighbors support a 5' setback on the east side and do not support a front yard setback variance on lot 2. Young said the neighbors suggested aone-story front yazd variance; however, the applicant did not provide plans in order to consider that. Young said the applicant indicated she needed 19' average roof height. The neighbors cannot ascertain neighborhood compatibility without drawings. Neighbors and Friends of Shadow Mountain would like to see a low profile roof with the same pitch as the existing duplex roof with a maximum roof height of 23'. Young concluded the applicant should consider what Council offers at this hearing. Young said anon-conforming duplex on a non-conforming lot will create obstacles to building, by right, a carnage house. Angela Young, 413 West Hopkins, told Council during the compromise meetings, the neighbors were hoping that Ms. Foster would present drawings on the building on lot 2 showing massing, roof shape and height and development in the front yard -the area along the alley. Ms. Young said it is difficult to assess the impacts without drawings and to study alternatives. Ms. Young said the neighbors have offered to contribute architect time to resolve these issues. Ms. Young stated the FARs requested are in excess of what 10 Regular Meeting Aspen City Council September 14, 2009 the Council has already stated are too much. Ms. Young noted the code interpretation surfaced after 7 months of process. Ms. Foster told Council the changes acceptable to her to this ordinance are to eliminate the language about the FARs. Bill Wiener said the HP task force is working to develop a procedure to bring in a professional to evaluate the post WWII properties that maybe eligible for designation. After that evaluation, buildings could be designated or released. Wiener requested Council put off any decisions until the task force has reported. Mayor Ireland said Council can deny this application, can approve it without 493 square feet of FAR and leave it to the code interpretation hearing, grant approval with that square footage or some portion of it. Councilman Torre asked if the compromises from the neighbors were shared with Ms. Foster Ms. Foster said she would agree to limit the amount of heated FAR for the main building in return for more deck area. Councilman Torre said the suggestion of a TDR is away to relieve this property of some development burden. Councilman Torre said it is hard to support this recommendation without knowing about the findings of the historic task force and what benefits the community will gain from preserving WWII buildings. Councilman Skadron said he does not want to lose this building; however, it is imprudent to support this request without established criteria. Councilman Johnson said this feels like the cart before the horse. Councilman Johnson stated he supports returning the land use fees back to the applicant. Councilman Johnson said the community needs to understand what they are trying to save and how to rate the buildings. Councilman Romero asked what could be built under the existing land use code without this historic designation. Bendon said this property is anon-conforming duplex, zoned for a single family house, developed as a duplex, which use may continue. The redevelopment is limited to a single family FAR. Bendon explained if this is developed as one pazcel, the 2S front yard setback will be measured from 3rd street, not the alley and the setback along the alley would be 10'. The FAR will depend on the upcoming appeal in front of Council because of the slope portions of the site. Bendon said the current FAR is 4100 square feet, with a carriage house and FAR incentives, the total FAR could be almost 6000 square feet FAR. These approvals would be administrative reviews. Councilman Romero noted that the former Council approved this project without the 493 squaze foot bonus. Councilman Romero stated he is willing to support the ordinance as approved on June 8. Councilman Romero said he, too, will support waiver of review fees that have occurred in this increment. Mayor Ireland asked if the applicant would accept the June 8~' proposal with the addition of a TDR. Mayor Ireland said the last suggested approval by Council was 3652 square feet for single family, additional FAR from duplex FAR by right, 390 square feet; duplex with designation 4042 square feet, HPC bonus of 500 square feet, subtotal 4542 square feet. The applicant stated 493 squaze feet would be in addition to that. Mayor Ireland 11 Regular Meeting Aspen City Council September 14, 2009 questioned if there if a way to resolve this issue with a TDR. Ms. Foster said the lazger issue is the front yazd setback request, which is not supported by the neighbors. Ms. Foster stated her request is for 16'8" front yard setback. This would be 25' off the alley because with a lot split that would be the front yard. Mayor Ireland asked if the suggested 23' roof height is an issue. Ms. Foster said the issue is the setback. Mayor Ireland asked if a compromise could be reached. Ms. Foster stated she would like Ordinance #13 adopted as presented. Mayor Ireland asked if the applicant is fixed on the setback or is there room for compromise. Ms. Foster said she is fixed on the setback. Ms. Foster told Council she received no feedback on the setback from the neighbors. Young presented to Council drawings showing what maybe a compromise in the setback requests and he was agreeable to options 1 and 3 with the associated roof heights. Ms. Foster said she is not willing to agree to options 1 or 3. Ms. Foster said she would like as much of the two story element of the building as close to the alley as it can get, which will make the project a more typical construction, the orientation of the building toward the mountain. Ms. Foster reiterated without preservation she can put the two-story building as close to the alley as possible. Mayor Ireland said for a difference of 2 or 3 feet, he would like to reach a compromise. Mayor Ireland stated a compromise is in the applicant's and the community's best interest. Councilman Torre said he is amenable to trying to work this out and to give it more time. Ms. Foster said the proposal represents 7 months of compromise and the ordinance for adoption and where the project started are two different things. Young said what has been presented at this meeting, including the drawings of 3 options for setbacks, is his compromise position. Councilman Skadron moved to approve Ordinance #13, Series of 2009, on second reading; seconded by Councilman Torre. Roll call vote; Councilmembers Johnson, no; Skadron, no; Romero, no; Torre, no; Mayor Ireland, no. Motion NOT carried. Councilman Johnson moved to deny Ordinance # 13, Series of 2009; seconded by Councilman Torre. Roll call vote; Councilmembers Mayor Ireland, no; Tone, yes; Johnson, yes; Skadron, yes; Romero, yes. Motion carried. RESOLUTION #52, SERIES OF 2009 -Lift One Lodge Conceptual PUD Councilman Johnson left the meet due to a conflict of living within 300 feet of the proposed project. Chris Bendon, community development department, reminded Council at the last review, Council directed the applicant to work on amendments to the project to have a project more closely resemble the project that came out of the Lift One Neighborhood COWOP. Bendon said the applicants have a revised site plan, showing the ski corridor, each of the 5 buildings will be reviewed, the neighborhood issues will be reviewed. Bendon told Council a site visit has been scheduled for September 22 at 4 p.m. 12 Regular Meeting Aspen Citv Couucil September 14, 2009 Bob Daniel, applicant, said when Council indicated they were interested in looking at this to include portions of the COWOP plan and how that differs from the PUD approved by P&Z and how the COWOP portions can be incorporated. Daniel said the lazgest item of the COWOP plan was the ski corridor and the installation of a surface lift. Daniel noted another part of the COWOP was to create multiple buildings, which is in keeping with the chazacter of the town. Daniel said the focus in the community regarding development is mass and scale. This meeting will review site plan changes, building program, general height information. On September 28`h, the azchitecture will be reviewed. Daniel noted one of the key fixed points in this project design is keeping the western right-of--way. Daniel showed the existing entitlement on the other side of South Aspen street and where the points of access tie together. The street scape ties into the approved project across the street. Daniel noted Council questioned the curve of the street and how that will affect the view. Daniel said he felt the proposed street pattern fits in well with the existing patterns. Daniel said Council can look at whether the view up South Aspen street is intact and respected at the site visit. Daniel noted the key differences between an entire plan and a segregated plan is access. Daniel pointed out the access off South Aspen street for this portion. Daniel told Council they did look at using Gilbert street for access and have determined it is not appropriate for egress. There will be a cul-de-sac at the top of South Aspen street usable for the hotel, public and Ski Company. Daniel noted Council does not want this project to create a barrier between town and Aspen mountain rather to create a sense of being welcomed. Daniel said that is important to the success of this project, too. Daniel pointed out the service azea, which provides all service underneath the building. There is access for the public through the garage and at the lodge with valet parking. Daniel said there were 85 parking spaces and 200 lodge parking spaces; in this proposal there aze 50 public spaces and 2001odge spaces plus the service area within the underground footprint. Daniel outlined the drop off area for guests and restaurants; there is also drop off access for the surface lift. Daniel said this proposal better integrates into town with the surface lift and the possibility to link an in-town shuttle to the property and to the other hotels along Durant street. Councilman Torre asked about a skier drop off at the very top of South Aspen street. Daniel said it can serve that purpose; there could be van or shuttle drop off. Daniel showed where there would be elevator access to get down to the lift. Daniel stated this azea is not proprietazy to the lodge. Daniel said Council has been concerned whether this site is accessible to the community and to the guests. Daniel said a safe sidewalk will be installed along South Aspen street. There are multiple point of access throughout the site on both sides of the site. Stephen Holly, architect, noted this project contains 5 free market units, 271odge suites equaling 90 keys, affordable housing units in a mix of dorms, studios, one and two bedrooms housing 40 employees on site. There are public spaces with the ski museum, the beer and brats, the restaurant in the lodge, commercial areas for the Ski Company including ticketing and lockers. 13 Re¢ular Meetine Aspen City Council September 14, 2009 Holly showed sectional cuts of each building, starting with the relocated Skier's lodge as the ski museum and how the building fits into the grade. The sections show each layer and each floor level. This will be 3 stories. The Steak House building will also be 3 stories, a restaurant and affordable housing on the 2"a and 3Td floors. Those two buildings will be 32' to 34'. The next building going uphill has affordable housing at grade level, free market and lodge units going up the hill. Holly said the height of the building was increased to meet all the requested program and benefits from the COWOP. Holly said in the COWOP, absolute height was used in discussions, rather than height as measured in the code. Holly showed pictures of height as measured and height as perceived. Holly noted the allowable height by code is 42' plus allowable overruns. The COWOP used 48' as a base and 90% of the lodge structure is below 48'. There aze protrusions throughout the building above 48' but not a consistent part of the building. Holly showed a section of the east lodge building with 2 levels of affordable housing, lodge units, a free market component, the roof following grade along the ski slope. Toward the east, the structure has been lowered to allow better visibility throughout the site. The upper lodge building has two sections; the entry steps back and steps the building upwards. Along the cul-de-sac, there are ski ticket sales, lockers and the public restaurant. The upper building has lodge, lodge amenities; the entire structure is under 48'. Councilman Romero asked about lowering the entire building to below 48'. Daniel said the roof print is about 49,000 squaze feet. Daniel said the azeas that aze above 48' are a pitched roof, which creates a smaller mass and scale. Daniel said the peaks could be flattened; however, the issue is whether one is trying to meet a number or to deal with scale and mass. Councilman Skadron asked what the maximum allowable height is in the lodge zone district. Bendon said it is 42'. For this project, the developers and the COWOP were looking at absolute heights rather than all the ways in which height is measured and what is exempt. Holly showed some different diagrams on how one would have 27 suites to equa190 keys. The suites are along a central comdor and the bedrooms can be locked off in different configurations. This provides flexibility and maximum ability to provide hot beds. Daniel stated it is in the applicant's interest to have as many beds occupied as possible. Daniel went over each adjoining property, the outreach from the applicant, the neighbor's concerns and how these are being addressed. Mayor Ireland moved to continue the meeting and Resolution #52, Series of 2009, to September 22 for a site visit; seconded by Councilman Romero. All in favor, motion carried. Bill Wiener said each part of the lodge building is bigger than the front of Wal-Mart. Wiener suggested with cut and cover, it is possible to take South Aspen street and make it green circulation and a better project. Toni Kronberg said there have been discussions 14 Reeular Meetin¢ Aspen City Council September 14, 2009 about what can be built in the ski corridor area. Ms. Kronberg recommended Council speaking to the aerial tramway engineer before discussing that issue. The site visit will tell a lot about the azea and the impacts. Ms. Kronberg recommended the ski corridor be relocated to outside the parcel Mayor Ireland closed the public hearing. REQUEST FOR FUNDS -Election Commission/Outside Counsel Kathryn Koch, city clerk and membet of the Election Commission, told Council the election commission has received complaints about the May 2009 election. The election commission met September 2"d and at the beginning of the meeting, Chris Bryan, an election commission member, stated he could not ascertain whether the election commission had the jurisdiction, under the City Charter and state statutes, to review these complaints. Ms. Koch told Council Bryan stated he felt the city attorney's office has a conflict of interest because they provide counsel to the City Council. The election commission passed a motion to ask Council for funds to hire independent counsel to review the Charter and state statutes to recommend what the jurisdiction of the election commission is. Ms. Koch noted there is a letter to the election commission from Lee Leavenworth stating this would cost $5000 to $7500 initially. Chris Bryan stated he believes as a threshold matter independent counsel is necessary to answer the question what the election commission can and cannot do. The previous Council appointed the election commission in March 2009. The election commission has received several complaints and requests involving the election. Bryan said before he gets to the substance of the different complaints, he needs a legal framework for what the commission can and cannot do. Bryan said he feels it is necessary for the election commission to have a determination of their scope and authority. Bryan said he would like to make sure the election commission handles these matters procedurally correctly before the commission addresses these issues. This would be a limited first step for advice to the election commission on their powers, jurisdiction, authority and scope. Bryan said this request is not a slight to the city attorney's office but since some of the procedures and policies at the core of the complaints presented to the election commission were recommended or put together by the city attorney's office. Bryan said he feels it would be inappropriate from the standpoint of legal ethics for the city attorney's office to give advice to an independent commission. Bryan noted this bears close scrutiny that before the election commission gets to the substance of these complaints that they understand what the procedure is, what the extent of the capabilities are. Bryan said getting outside counsel to sign off on the extent of the capabilities would alleviate any problems the City Council may have with what the election commission would do with respect how the election commission may resolve any of the issues. Bryan said having a legal and analytical framework in place would be a good idea. Bryan noted there is a letter from Lee Leavenworth stating independent counsel is appropriate and also he believes that the jurisdiction and authority of the 15 Regular Meeting Aspen Citv Council September 14, 2009 commission needs to remain independent of the city attomey's office, who reports directly to the Council. Bryan said the Council sets the budget for the city attorney's office, sets the salary, and determines employment status. Bryan said the city attorney would be answering to the Council but also advising the election commission in an official capacity as to what it can and cannot do about policies and procedures that resulted in 3 Council being elected. Bryan noted one of the requirements of the legal ethics rules in Colorado require not only the profession avoid conflicts like this but also avoid the appearance of impropriety. Bryan said he feels that would especially true in the public sphere where there are a lot of intermingled interest and if the city wants to do the right thing, the election commission should make sure they are getting legal advice from someone that has no involvement or loyalties. Councilman Romero noted there is little dispute about what the Charter states and how the commission is formed. Bryan said from reading the Charter and the state statutes, it appears the election commission has powers co-extensive with the city clerk and with the governing body. Bryan said he feels the election commission stands independent and would like legal advice on what the commission can and cannot do before going ahead and ending up in results no one is happy with and the election commission is charged with acting outside the scope of their jurisdiction. Councilman Romero said the performance of the city attorney's office has precedence over the past many years of performing independently. Councilman Romero said the city attorney's office provides advice to many city departments and to commissions that are part of the city government. Councilman Romero reiterated the city attorney's office guides and advises the entire city government. Bryan said the election commission is different from other city commissions and the uniqueness of the election commission needs to be acknowledged. Bryan said the election commission is analyzing the ways in which members get elected to Council. Bryan stated the city attorney's office had a say in determining those procedures and there are complaints being lodged with the election commission and the commission needs independent counsel. Bryan said if some of the complaints have to do with procedures recommended by the city attorney's office, it is more than an appearance of impropriety as a matter of legal ethics for the city attorney's office to say they will advise the election commission as to how to review the complaint on what they advised earlier. Bryan said he does not know the extent of the role of the election commission and that is why he would like advice of independent counsel. Councilman Romero asked if the election commission should regularly seek input from the city attorney's office. Councilman Romero said it sounds as if the election commission does not know their role and is not asking for advice from the city attorney's office because his salary is paid for by Council. Bryan said he believes the city attorney's office is precluded, as a matter of legal ethics, from rendering legal advice to the election commission as to its scope and jurisdiction and authority because the role the city attorney's office has played in setting forth and in implementing the procedure and protocols and methodologies that are the substance of what the election commission 16 Regular Meetine Asnen City Council September 14 2009 reviews and Bryan said he needs independent counsel to advise what they can and cannot do. Bryan said if the city attorney's office knows it is their policies that maybe under review that might shade their advice to the election commission as to the scope of their jurisdiction. Bryan said if independent counsel were hired, there would be no question as to loyalty under the rules of professional conduct that apply to all attorneys in Colorado who are bar certified and there would be no appearance of impropriety as to what that counsel advised the election commission. Councilman Romero asked about the state ethics committee. Bryan said the ethics committee at the state bar association accepts inquiries as whether or not there is a preclusive ethical issue. Bryan said this may be a suitable way to do this. Bryan said he still believes the election commission should have independent counsel to avoid the appearance of impropriety. Bryan stated he will not object if Council wants the ethics commission of the Colorado Bar association to be the arbiter of this. Mayor Ireland asked if the election commission had a role of election night. Bryan said he reviewed the ballots about which there were questions. Mayor Ireland asked if the election commission is charged with supervising the election. Bryan said that is part of the role of the election commission. Mayor Ireland said the request of Council is to appoint counsel to advise the election commission on whether the election was properly supervised, which may be a conflict of interest. Bryan noted the request is for outside counsel to advise the election commission what they can do with the pending complaints and petitions. Mayor Ireland asked if this matter is referred to the state ethics board and the state ethics board said the city attorney did not have a conflict of interest in being legal representative and can advise the election commission would Bryan accept that decision. Bryan told Council he would have to read that decision before he could agree with a hypothetical question. Mayor Ireland asked Council's permission to release the recommendation of the city attorney's on this issue. Mayor Ireland stated the appropriate thing to do is to refer the question of ethics to the state bar ethics committee and have them render a decision on whether or not the city attorney has the authority to advise the election commission. Councilman Torre asked when the election commission was installed. Elizabeth Milias, election commission member, said the memorandum to Council is dated March 16`n Councilman Torre noted the Charter states the election commission is to be appointed in the July following a regular election for a term of 2 years. Ms. Koch told Council prior to the May 2009 election, the previous election commission members were no longer extant. Ms. Koch asked for recommendations for election commission members, which was referred to Council for their appointment. Ms. Koch noted this should have been brought back to Council in July 2009 for re-appointment. Councilman Tone asked if the complaints and petitions are available to Council and can he see the actual petitions. Councilman Torre asked for inforrnation about election 17 Regular Meeting Aspen City Council September 14, 2009 commission, size, term, from other municipalities in Colorado. Councilman Tone said he would be interested in a Charter change after reviewing these comparisons. Councihnan Skadron said he does not accept the premise that a conflict exists when the city attorney advises two city entities. Councilman Skadron stated the city attorney is the legal representative of the city and represents the city as a whole and advises its officials. Councilman Skadron stated he does not believe the election commission is independent of the city and its position is not different from commissions like P&Z or HPC. Councilman Skadron said the precedent established by supporting this is dangerous as it suggests the election commission is an independent entity, which he does not believe is the case. Councilman Skadron stated he is not compelled that the evidence presented that hiring the independent counsel is advisable. Bryan said the city attorney's office maintains the election commission is city officials and the language of the Charter states they cannot be city officials. Bryan said he does not want to move forward and deal with complaints until he has taken the step of getting legal framework for what the election commission can and cannot do before trying to reach the issues on the merits. Bryan said that is where the election commission could get into trouble and that is where litigation may come. Bryan said the preliminary threshold question should be answered to avoid any litigation in the future. Bryan said he needs guidance before he starts reviewing the complaints and rendering an opinion and would like to know whether these are even properly before the election commission. Councilman Johnson said there is a mechanism with the Colorado Baz Association where the city can get an opinion. Councilman Johnson said he is in favor of asking the question from the Colorado Bar. Councilman Romero agreed that would answer the conflict question, whether the city attorney has a conflict. Bryan said he does not want to do anything ethically improper nor does he want the city attorney's office to do anything ethically improper and he would like to do this correctly. Mayor Ireland agreed with referring this matter to the Colorado Bar Association ethics committee. Bryan said the conflict of interest issue is that the election commission needs guidance as to what they can and cannot do because there is an intrinsic non-waivable non-consentable conflict of interest under rule of professional conduct number 1.7 that would preclude the city attorney from giving independent legal advice to the election commission, which is not a dependent body. Bryan reiterated the city attorney answers to Council, he advises the city clerk and staff on matters on which the election commission is receiving complaints. Bryan said the city attorney cannot render advice to the review committee, the election commission, at the same time having advised those who put the policies in place and implemented them. Bryan stated he is willing to listen to what the ethics committee has to say on this matter. Bryan said the election commission will need to listen to what it is told before it can decide whether or not to abide by it's counsel's advice. Bryan told Council before he gets named in any lawsuits, he would like to know what he can and cannot do and what the election commission can do with the petitions and complaints that have been lodged with them. 18 Regular Meeting Aspen Citv Council September 14, 2009 Mayor Ireland agreed there are issues and procedural matters regarding instant runoff voting. Mayor Ireland suggested appointing a citizen committee, none of whom were candidates, election commission, and managing campaigns, to make recommendations to Council how to reform IRV, if it is going to continue to be used. Mayor Ireland requested Council agree to release the memoranda from the city attorney's office describing their view of conflict and their recommendation this be referred to the state ethics committee. Mayor Ireland recommended that pending a decision by the Colorado Bar Association Ethics committee, the Council not approve an allocation for an independent counsel. Councilman Romero supported the recommendation to seek input from the ethics committee as a first step and with releasing the memoranda of the city attorney's office. Councilman Romero stated he is not ready to commission a third party counsel. Bryan agreed he did not have a problem receiving input from the ethics committee. Councilman Romero said he would like the feedback from the ethics committee before discussing a citizen task force to make election and charter changes. Councilman Skadron and Councilman Torre were opposed to releasing the city attorney's memoranda. Councilman Torre moved to continue the meeting to September 15`"; seconded by Mayor Ireland. Council left the meeting at 10:40 p.m. Kathry Coch, City Clerk 19