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HomeMy WebLinkAboutminutes.council.20091027Continued Meeting Asuen City Council October 27.2009 Mayor Ireland called the continued meeting to order at 4:12 p.m. with Councilmembers Romero and Johnson present. RESOLUTION #89. SERIES OF 2009 -Code Interpretation Appeal -Man-made Landforms Chris Bendon, community development department, told Council this is an appeal of a land use code interpretation made by the community development staff on lot area and man made land forms. Bendon said one of the tasks of the community development director is to interpret the land use code, which is a formal process at the request of an applicant. The interpretation affords the applicant the right to appeal the decision. Bendon noted there is a section in the land use code that outlines the details and the time frames for code interpretations. Bendon explained this is because the code is not always clear; there are differences of opinion. This is a process of determining what the codes says. Bendon noted there are also conversations about what the code should say and there is a sepazate process for amending the land use code. Bendon reminded Council this appeal is of the record. Bendon said this interpretation deals with how man made landfonns affect development rights. Bendon said the city reduces development rights for conditions existing on a property, which comes down to a calculation called lot area. Lot area is reduced for azeas under high water, areas within former rights-of--way, and azeas that are affected by slopes. This particular appeal is about slopes. Bendon said the definition of lot area mentions slopes, high water lines, rights-of--way. There is not a definition of slope, which is what this appeal comes down to, what is the meaning of slope. Bendon noted this interpretation cites a term that is defined, structure, which describes what can be constructed on one's site and one of those is a berm, which can be constructed on site. Technically a berm is a structure. Bendon said this interpretation allows the planning office to accept an assumed natural grade when there is clear evidence there is an unnatural condition. Bendon said property owners are allowed to go back to what was originally there prior to man having an affect on site. Bendon said this particular appeal is in regard to 219 south Third, which had a lengthy review in front of Council. Bendon pointed out a portion of the property is impacted by a railroad right-of--way with a significant change in topography related to the railroad right-of--way on the south side of the property. Bendon said if the interpretation stands, it will allow the planning department to work with the land owner to come up with apre-railroad grade which may add up to 500 square feet of additional floor area. Bendon told Council this interpretation could apply to many sites in town. There are two ways to look at this issue; one is the way in which the planning department has traditionally looked at this, to allow property owners to go back to a virgin landscape and assume the slope prior to the affect of man. The other is to look at the condition of the site right now, which includes all the things that have happened to the site. Bendon said property owners could change their landscape and flatten out steep topography in order to increase the development rights. Bendon stated there are several places in the land use code where that activity is specifically prohibited. Continued Meetin¢ Aspen City Council October 27, 2009 The best example is height which is measured to a natural or developed grade, the lower of the two. A property owner cannot mound up their property in order to develop and increase the allowable heights. Bendon said this is an example of not allowing property owners to affect their property in order to increase development rights. Bendon noted there are 3 standards on which Council needs to make their decision; these are contained in the code. The standards are whether there was a denial of due process, the administrative body exceeded its jurisdiction, or the administrative body abused its discretion. Bendon said due process is about the process up to this point issuing this opinion. Bendon reiterated the land use code describes as one of the tasks of the community development director to issue interpretations. Bendon stated whether the administrative body abused its discretion is the heart of this discussion. Bendon noted the community development director needs to use discretion when faced with terms that are not defined, one needs to look to other terms in the code and use judgment in rendering an interpretation. Bendon told Council his interpretation is consistent with how the city has applied the issue of manmade topography in the past and is a technical analysis of the terms in the code, what other terms that can be relied on, the history of the policy and the analysis of the effects of various decisions. There is a resolution to support the decision of staff and one to overturn that decision. If Council overhruis the interpretation, they will need to set out policy going forward. John Worcester, city attorney, told Council the appellant has stated there was an abuse of discretion not a violation of due process so Council can focus on that standard. Worcester pointed out a decision of the administrative body that is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority is an abuse of discretion. Worcester said Council must determine whether Bendon's determination was a proper one, whether they agree with it is not relevant. Council should not determine whether the decision was correct but only whether it was an abuse of discretion, a violation of due process or exceeding one's jurisdiction. Jody Edwazds stated his is withdrawing the second appeal. Edwards said he will focus on definition of lot area. Edwazds said the appellants have no complaints regarding due process or concerning jurisdiction or ethical behavior. The only basis for the appeal is whether the community development director abused his discretion by reading words into the code that are not presently there. Edwards pointed out page 3 of staff s memo and quoted "the question in a code interpretation is what does the code say" not what should the code say. The memorandum points out the appropriate venue for what the code should say are a code amendment through that process. This appeal is only looking at what the code does say. Edwards said practically, the public has to be able to read the code, to read the law, and to know what it means. The public should not have to imagine what words should be added or subtracted to meet the desires of the governing body. Edwards noted people have to be governed by what the law says, not what people believe it should say even if one does not agree. The principle is what the law says; the fundamental rule of statutory interpretation is that if the law is clear as written, then no interpretation is necessary. Continued Meetin¢ Aspen City Council October 27, 2009 Edwards noted Courts must presume that a legislature says in a statute what it means and means in a statute what it says. Edwazds noted the definition of "lot azea" in the code which states "areas with slopes of greater than 30% shall be excluded". Edwards said this is a simple statement with no ambiguity. It does not matter whether the slope was created by the formation of the Rocky Mountains, by a mudslide or by a group of men building a railroad. No distinctions are made by the language in the code and making any distinctions is to add language to the code. Edwards said if the lack of language results in hardships, a land owner can appeal to the Board of Adjustment or appeal to Council to amend the code. Edwards stated it is an abuse of discretion for staff to add words to the code that are not there, such as man made or natural. Edwards said in the interpretation, staff expresses concern that a property owner could regrade steep slopes in a benched or terrace fashion and increase the allowable floor area on the site. Edwazds pointed out the city's code states anything other than landscaping is defined as development and therefore requires a permit. Any such permit could be granted with a note that it is not granting additional floor area. Edwards said staff and the attorney for the owner at 219 S. Third street state that staff previously interpreted the term slope so as to not include man made slopes. Edwards said this provides a course of conduct, it does not justify the interpretation. Edwards stated the fact that there have been informal, unappealed staff determinations that man made slopes aze excluded from the deductions from lot area does not justify further areas in the applications of what is clear and simple language. Edwards pointed out in the memo the community development director notes that other provisions of the code do not allow a property owner to artificially elevate the land to increase heights or to add a vacated right-of--way to lot area in order to increase floor azea and the code does not penalize a lot owner by reducing area lot area for dedicated public trails. Each of these assertions is correct and is provided for with existing language in the code. The code specifically states that height is to be measured from natural or finished grade, whichever is lower at any point around the perimeter of the building. The definition of lot area specifically excludes areas that are vacated rights-of--way and specifically includes trails. Edwards said this is different from the present case where language states steep slopes aze to be excluded. Edwazds noted staff believes that means "natural terrain prior to being affected by development", which language does not appear in the code. Edwards said the measurement for height, natural or finished, is covered in the code but slopes aze not which indicates that slopes, manmade or natural, should be excluded from ]ot area. Edwards reiterated the issue is what the code says; not what it should say. The code contains a clear statement that slopes in excess of 30% must be excluded from lot area for purposes of calculating floor area with no qualifiers like natural or man made. Mayor Ireland said the suggestion by Edwards is that the people who created the code intended aone-way effect on development, to decrease a property's developability by putting a berm on it but one cannot increase by flattening it. Edwards told Council that is not what he is saying; he asserts that slope is slope. Councilman Romero asked if staff Continued Meeting Aspen City Council October 27, 2009 has had code interpretations relating to slope and calculating lot area. Bendon said not regazding slope. Councilman Romero said in calculating lot azeas, staff has treated man made forms as part of the lot on which to calculate floor azea. Councilman Romero noted there is an operating precedence but no actual interpretation or appeal. Bart Johnson, representing the owner of 219 South Third subject of the appeal, noted Council asked if there was any evidence of legislative intent. Johnson pointed out staff wrote that Council minutes from hearing on this provision do not reference slope and staff believes that by slope the drafters meant the natural terrain prior to being affected by development. There is in the record a statement of what staff believes what the intent was. Johnson clarified there is one official request for interpretation on this issue, which did not result in an official interpretation from staff. Johnson said this request was made in 2006 by the owner of the property at the southwest corner of Midland Avenue and east Hopkins and is referenced in the record. Johnson provided materials that show the applicant was permitted to move forward based on interpolated natural slopes. There is some precedence that that policy goes back years. (Councilman Skadron came into the meeting) Johnson said slope is not defined in the city's land use code. The land use code does have rules of construction, 26.104.080 which states when a word or phrase has acquired a technical or particular meaning whether by ordinance, definition or otherwise, it should be construed accordingly. Johnson said in this case, it is clear through prior interpretation and staff policy, the term slope has acquired a particular meaning -natural slopes prior to man's interference with them. Johnson said the code also provides when one is reading the code, one has to read all provisions as a whole to fulfill legislative intent. Johnson said the logical conclusion of Edwards' argument is that slope is a forever changing thing and what matters is the slope that exists on a site the day of applying for a building permit. Johnson pointed out the city code does not prohibit interference with slopes in the 20-30% zone. The county code has a provision that one cannot modify slopes; there is nothing in the city code that would present someone walking in with a building permit for earthmoving and flatten out their complete site to maximize their site before applying for a building pennit. Johnson said that is not the intent of the city code. Johnson said the community development director needs to be able to read some common sense into the code and Council should follow his interpretation that slope must have meant the natural land forms that existed. Johnson said the argument against that is that in granting a permit for grading, a condition could be attached stating the land can be re- graded but not to the benefit of the property owner. Johnson stated there is no authority in the city's code to place that type of condition on a grading permit. The community development director should be allowed to interpret slope to mean natural landforms and to read the code in a larger context. John Worcester, city attorney, said Councilman Skadron should not participate unless the parties waive that. Johnson stated they would prefer the Councilmembers present for the entire argument participate. Continued Meeting Aspen City Council October 27, 2009 Councilman Romero asked about the reference to general rules of construction. Johnson said that refers to principles used to interpret the code. Councilman Romero asked for an explanation of "acquired a meaning". Johnson quoted from Section 26.104.080(a) general rules of construction and application, "words and phrases that have acquired a technical or pazticulaz meaning, whether by ordinance definition or otherwise, shall be construed and applied accordingly". Johnson argued that the term slope is not defined in the code and one needs to look outside the code unless there is a cleazly defined common meaning that is undisputable. The code's rules of construction also state that words should be given their plain meaning. Johnson said the term slope is questionable about what it means; it can be a technical term, and it is not defined in the city code. Johnson said he read the general rules of construction and then tried to determine how to figure out what slopes means. The community development director is charged with interpreting the city code. Johnson noted that state statute also says the person charged with enforcing the code is given the task of interpreting it. Johnson said he looked into how the community development department has interpreted slope in the past. Johnson said he found that the term slope has been defined for the property at Hopkins and Midland Avenue, that slope means the natural terrain not manmade terrain. Otherwise one would end up with constantly changing landscape and people can regrade their lots. Mayor Ireland said if the assertion is that slope is natural terrain prior to man's action, the question is when, when does land acquire its natural terrain. Johnson said "when" is when humans starting developing in Aspen's townsite. Johnson said for this particular lot, it can be pinpointed to when the railroad came into Aspen, about 1889. The city's engineer has concluded, based on investigation of the site, that it is a manmade landfonn. Johnson stated his argument is not that manmade landforms should be excluded but that Chris Bendon, community development department, did not abuse his discretion in reaching his conclusion. Johnson pointed out in order for Council to reverse the interpretation, they have to find there is no evidence to support his conclusion. Mayor Ireland asked how much of the berm is manmade. Johnson said they do not know that. Mayor Ireland said there is nothing in the record to show that all or part of this berm did not exist and it is reasonable to assume that if a railroad is being built, one would put it where the natural land forms support it. Johnson said this case is about how one interprets the land use code and beyond that, the separate issue is how the land code is enforced. Johnson said his client will submit information that provides evidence on what is natural and what is manmade in this berm. Johnson noted the city engineer pointed out it may be necessazy to do borings in this area. Mayor Ireland said he believes every body of law requires interpretation because words change in meaning and use over time. Councilman Johnson asked if the community development director has discretion in interpreting the land use code. Worcester said he does have discretion; there is a section of the land use code giving the director the Continued Meetine Aspen City Council October 27, 2009 authority and anyone can ask the director to make a land use code interpretation to help them in their planning. Edwards said it is a stretch to state that the word "slope" has acquired a meaning when there aze one or two instances where this has been interpreted to be man made. Edwazds said that has not acquired a meaning in the community at large or among the land use community. Edwards said the "when" issue is important because slopes will change both by man made and by natural changes, like avalanches, earth, mud, earthquakes. Edwards asserted it should be the slope as existed at the time the code was adopted, which time makes sense. Edwards said there is the question of what is natural and what is man made. Edwards said the community development director and city engineer went to the site; the engineer said it is probably man made but to know for sure, test borings have to be done. Councilman Johnson noted staff's memo states, the slope has been altered from its original condition; why then are boring samples necessary. Bendon said that will address what the natural slope is, that the berm is constructed, how far down the man made slope is. Councilman Romero said he is not sufficiently swayed by the arguments that the community development director stepped outside his realm of discretion in performing the duties of reasonable interpretation. Councilman Romero said although there is only one decision in the record regarding this issue, there is a historical common application of the code, specifically to grades and the motion of pre-existing "natural" grades and slopes. Councilman Romero said the measurement For heights between pre-existing and reconstruction is in the code, which is reference for the construction industry and has acquired meaning and this indicates the community development director stayed within his realm in rendering his decision, taking in precedence and taking the entire land use code to apply a reasonable result. Councilman Romero said the community development director did not violate his discretion. Councilman Johnson said the community development director has, as one of his duties, the task of interpreting the code and has discretion to do that. Councilman Johnson said there will always be things in the code that are not clear. Councilman Johnson stated the community development director has not abused his discretion. Mayor Ireland proposed this be modified to incorporate the principle that it is the burden of the applicant to show what the original natural slope was and in the absence of that showing, the natural slope is what one sees. The applicant should have the opportunity through a public process what that man made portion is. Mayor Ireland said he would like this modified that it is the burden of the applicant to reasonably show to what degree the original slope was. Mayor Ireland said that should be a public hearing where evidence can be presented. Worcester said the motion to approve the resolution should be amended in the 4'h WHERAS clause "the City Council has taken and considered written and oral argument 6 Continued Meeting Aspen City Council October 27, 2009 from counsel for the appellant, counsel for the owners of the subject property and the community development director and has found that the director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the interpretation". Councilman Romero moved to adopt Resolution #89, Series of 2009, with the amendment outlined above; seconded by Councilman Johnson. Mayor Ireland said the code needs to be amended in the future to know when the natural grade was so the community knows from when this is dated. All in favor, motion carried. Bendon said staff needs to see reasonable and credible information provided by the applicant to determine what is man made and what is natural. This can be soil borings, site inspection or technical information. That is the burden of the applicant to provide these and to make an argument to staff. Bendon said this can include old surveys, old flyovers, or a report from a geotechnical engineer. Johnson requested clarification that this is to be done in a public hearing process. Johnson said this can be done with staff in the building permit process. Bendon said there is no remaining public process on this property. Mayor Ireland said the Council has been asked to grant variations and exceptions. Bendon noted that process is concluded. Councilman Romero said this is now back to normal course of business within the land use code. Councilman Romero agreed the applicant will submit technical and reasonable evidence to the community development department. This will not come back to Council for a public process. Councilman Romero moved to adjourn at 5:25 p.m.; seconded b Mayor Ireland. All in favor, motion carried. Kathryry .Koch, City Clerk 7