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HomeMy WebLinkAboutminutes.council.20100601Special Meetin¢ Aspen City Council June 1, 2010 Mayor Ireland called the meeting to order at 2:07 p.m. with Councilmembers Skadron, Johnson, and Romero present. ORDINANCE #2, SERIES OF 2010 -Aspen Club Final SPA/PUD Jessica Garrow, community development department, pointed out exhibit Z-17 which are letters from Jeanette Darnauer, Paul Copaken, Timothy Reed, Michael Behrendt and others. Ms. Garrow reminded Council this is final review for a project of 20 fractional fee units, 14 affordable housing units, 41 parking spaces. Ms. Garrow noted at the last Council meeting, Council members asked for assurances that the public benefit created by the project, specifically related to health and wellness, and pazt of the SPA review criteria is that Council must find because of "its unique historic, natural, physical or locatonal chazacteristics, it would be of great public benefit to the city for that land to be allowed design flexibility and to be planned and developed comprehensively as a multiple use development. The underlying zone designation shall be used as a guide but not an absolute limitation to the uses and development which maybe considered during the development review process". The applicant has requested an SPA designation to allow for both the timeshare and multi-family affordable housing uses on the property. Ms. Garrow stated the applicant has proposed language regarding assurances related to the public benefit for the health, wellness and recreation portion, which is in Section 24 of the ordinance and exhibit Z-16 is further refinement to the language to read "Aspen City Council, at their sole discretion, can agree to release some of these funds eazlier than 15 years so they can be made available to fund worthy projects and ideas related to health and recreation in Aspen provided, however, that the community advisory committee consents to the proposed expenditures". Ms. Garrow said the applicant has committed to 7 specific benefit pieces related to the health and wellness part, including hosting project graduation, insuring the Club is available for local, Olympic and other elite athletes who wish to train at the Club, that the Club will be available for local Pazalympics athletes who wish to train at the Club, that the Aspen Club will continue to host occasional community events and social gatherings, such as Tuesdays with Michael, that the ultra G machine will be available for the life of that equipment, that the Club will continue to host seminars and lectures open to the public, and that the Club will continue to provide free office spaces to at least 2 local charities and to doing these things for 15 yeazs. The applicant has proposed a .25% assessment on the sale and resale of all time share units which money would go into a fund at the Aspen Community Foundation, who would have an advisory committee of 3 people - 2 people to be appointed by City Council and 1 appointed by the club owner, to oversee the operation of the fund. If the Club owner does not provide those 7 stated benefits, the fund can be used to provide those benefits elsewhere in the community. Ms. Garrow noted if the funds are not used a$er 15 years, the advisory committee can provide grants to the community for health, wellness, and recreation activities. The assessment on the sales sunsets after 25 years. Ms. Garrow told Council the transportation section has been changed to require a year long traffic study to get at the Special Meeting Aspen City Council June 1, 2010 average annual daily trips, the a.m. and p.m. peak trips and the applicant will be held to those numbers and will be required to provide semi-annual reports to the city for 10 years. Staff recommends 5 years vesting as opposed to the normal 3 years, as the applicant will need to take a full year on the traffic study, which has to be completed before they can submit for building permit. Ms. Garrow pointed out the accessibility for locals has been eliminated from the ordinance and the continuing management authority for Michael Fox has also been eliminated. Staff recommends approval of the ordinance. Ms. Garrow noted the applicant has relocated units 5 and 6; the site plan is exhibit E to the ordinance. Councilman Skadron said he is not as concerned where the bullet points take place but that they take place; that the programming exists if the Club goes away. Councilman Skadron requested an individual's name be deleted from the ordinance and the bullet point be made more general about the alter G machine. Councilman Skadron asked that the assessment address the programming. Ms. Garrow said the applicant is saying that these 7 bullet point activities will be provided at the Club. Michael Fox, applicant, told Council in structuring the assessment fee for sales of timeshare units, they were told there should be a time frame and the applicant suggests 25 years. Fox said if the Club is still doing all the programming after 15 yeazs, the money in the fund should be available to the wider community. Councilman Johnson asked how "elite athlete" is defined. Fox said if people are training for an event and they are local, they can use the Club for free; the same is for Paralympics athletes. Councilman Romero asked if accessibility for locals has been or will be put back on the table. Councilman Romero said accessibility for locals does respond to public benefits. Fox said the applicants felt that a fund does a better job of trying to address the concern than the accessibility piece. Councilman Romero said he feels the accessibility for locals addresses the continuity and permanence issue that is important to the city. Fox noted the applicants, in trying to address long term community benefit and how to guarantee those, spent a lot of energy thinking about how to achieve that. Fox said the assessment fee creates an independent fund to pay for the programming if not done at the Aspen Club and also provides a long term community benefit. Fox said he feels this is a unique solution to the issues. Mayor Ireland asked what actual cash consideration means, does it exempt from payment people who trade or engage in a 1031 stock exchange. Fox said he assumes that means any monies paid for the transaction. Sunny Vann, representing the applicant, told Council there is no attempt to exempt things from paying into the fund. The intent was to capture the entire purchase price of the unit. Mayor Ireland asked if there is an estimation of how much this fund will generate. Fox said $250,000 to $500,000 over time; estimating 4 to 6 of the units will trade every year after the first several years. Mayor Ireland opened the public hearing. 2 Special Meeting Aspen City Council June 1, 2010 Joel Sax noted besides the set aside fund, there is $260,000 property taxes annually for city revenue. Andrew Kole said he hoped the Club's track record is what Council will judge them by as community benefits. The Aspen Club has been a poster child for what a good community citizen looks like. Kole noted the public, in general, has supported this application. Kole said he understands the inclination to protect the asset but Council should listen to the majority of the public. Bob Hoover, representing Ute Avenue homeowners, said this agreement seems like if one writes a check, they can receive an approval. Hoover said the discussion about true public benefits is boiling down to cash. Hoover said out of the list, only 2 seem to be pubic benefits and this does not meet the standards of an SPA and the project proving a great public benefit. Hoover said there are too many unanswered questions and the applicant seems not to have met their burden. Paul Copaken pointed out the code states Council must establish a great community benefit. This application is for a private business and there is no way to have a private business as a permanent benefit. Copaken said there were considerations for a deed restriction that this be a health club and sanctions on the owners to replace what a health club had been doing, not just 7 items. Copaken noted the applicant is not putting up any money but the money comes from a tax on the sales of the time shaze units. The traffic study does not bring on the permanence of zero growth. Susan Welch, Ute Avenue, said she likes the Club; however, her concern is changing the land use code which states that time shares should be in the core. Ms. Welch asked if there will be a traffic count during the 3 years of construction with multiple trucks. Rob Ittner said "great public benefit" seems to be up to a lot of interpretation; what is great, what is lasting, how long does lasting mean. Ittner said Council has to determine what a great benefit for all of Aspen is. The effects on life in Aspen today have long term benefits and the Aspen Club has been a part of that. Ittner said the additions to the club will help further body, mind spirit, which is part of Aspen. Aspen is a product of all the parts, like the Ski Company and the Institute and the Aspen Club. Bill Wiener said his problem with this is building too close to the river will create a channel of buildings along the river and changes the feelings. Wiener said people living in Aspen enjoy the values here made by previous decisions and it is the obligation to continue and give the next generation the same values. Jeannette Darnauer said if the applicant intends to adhere to the zero traffic growth, he should have included Dave Mullaz's traffic management plan. Ms. Damauer said the city is being asked to take all the risks that subsequent owners will provide the promised public benefits. Ms. Darnauer noted this revised ordinance does not address local accessibility to the club. Ms. Darnauer said the applicant's answer to longevity of the club is to toss the ball to future owners and set up a fund to help non-profits in the valley. This has nothing to do with maintaining the health club. Jim DeFrancia said the fundamental reason to not approve this application is the underlying land use; the application violates the AACP, it is fractional development in Special Meeting Aspen City Council June 1, 2010 residential neighborhoods. DeFrancia said if Council does approve this, they should focus on preserving the stated public benefit and have guarantees in the ordinance about continued operation of the Club. DeFrancia said for the traffic, there has to be meaningful performance based system with consequences because things will change over time and the ordinance needs to spell those out. DeFrancia said Council is elected to enforce policies and code. Jeremy Bernstein asked where the guarantee for permanence of the club is; the 7 bullet points do not guarantee the future of the Club. Marcia Goshorn aid if the Club is successful, it will benefit the entire town with jobs and with things like Project Graduation. The Aspen Club has always been involved in non-profits in donating items or space. Ms. Goshorn noted the AACP talks about year round sustainability; the jobs at the Aspen Club help the year round sustainability. The fractional units will be put into the rental pool if not occupied by owners. Kim Moore encouraged Council to vote in favor of this project as it will create two specific community benefits. Besides affordable housing, improvements to Ute Avenue, increased sales tax and programming are community benefits. Benefits for the entire community will be the community health and wellness fund sponsored by transfer tax of sales of fractional units. Ms. Moore pointed out Vail has been on the front of both Aspen papers as being leading of the health and wellness Mecca of the western slope. Roine St. Andre asked why the Aspen Club has not put money back into the club facilities if they want to have a good club and to prove they are a good neighbor. Ms. St. Andre said the community does not need more development or more traffic. Mayor Ireland closed the public hearing. Councilman Skadron said he thought the traffic issue was resolved to zero growth. Ms. Garrow responded the applicant has committed to zero growth in traffic level, which has been consistent throughout the process. The difference is how long the reporting requirement will be, the way they aze doing the traffic counts. Mayor Ireland asked if the consequences of failing to meet the traffic commitment will be a payment to the city. Ms. Garrow told Council the applicant has two years to meet the traffic commitment; if they do not meet it for two years in a row, they are required to institute paid parking and to pay for half the cost of the cross town shuttle. These two are included because they directly impact the number of trips to the club. Each year the traffic goal is not met, the reporting requirement increases by one year; if it is not met for 5 yeazs, the applicant has to report for 15 years. Mayor Ireland asked who sets the paid parking amount and collection system. Ms. Garrow said that is worked out between staff and the applicant. Councilman Skadron asked if this is a performance based system with consequences. Tricia Aragon, city engineer, said the comparison between what the applicant has done and what the neighbors' representative has done, they both have the same kind of measure goal; the difference is that the applicant's plan proposes reports on asemi-annual basis The neighbors' proposal is that if the goals are not met, the reports should be quarterly. They also ask fora 6 month average; a 4 week average in addition to the annual peak and 4 Special Meetin¢ Aspen City Council June 1, 2010 hourly peak data. Ms. Aragon said staff Felt 6 month average and 4 week average was excessive and felt it is adequate to do the average daily and peak a.m. and peak p.m. Both reports are performance based; it is just how detailed one wants. John Krueger, transportation director, said this is the most stringent PM traffic based requirements that have been done on a development including daily and hourly reporting. Krueger said this is similaz to what the transportation department does on highway 82 to make sure the city does not exceed its traffic goals. Councilman Skadron asked when a stringent plan is in place with requirement to count traffic and analyze the traffic, do the mechanisms engage. Krueger noted there are a number of check ins; if the applicant is not meeting zero growth, the staff will keep on top of steps to get the traffic back down. Councilman Skadron asked if the neighbors are protected by these measures. Krueger said they aze and if it does not work, the issue will come back to Council Councilman Romero moved to approved Ordinance #2, Series of 2010, final PUD/SPA timeshaze; seconded by Councilman Johnson. Councilman Romero said the debate of permanence and the proposal fora .25% assessment on sales of units, how did the applicant get to the assessment to meet "sport and fitness club permanence" by this. Fox said the applicants felt this created a benefit outside the club, that is tied to the fractional units, creates a long lasting mechanism and one that has a second purpose where if it is not needed, the fund can go back into the community. Fox said the assessment is simple to track and to monitor. Councilman Romero said he feels the assessment addresses broader community goals or benefits. Fox said other community benefits are the affordable housing units in perpetuity; the road improvement to Ute avenue; a permanent trail easement through the club; the bus stop; paying to extend the trail up through the Benedict property; according to the approval, the Aspen Club shall remain open to the public and shall remain a recreational club. Fox said the club is an amenity to hotels across the community; serves as a partner for many community events; there will be continued employment; taxes will be generated for real estate transfer tax fees; property taxes, lodging taxes, sales tax. Vann pointed out the timeshare homeowners cannot unilaterally terminate the operation of the Club. Councilman Romero reiterated Council is trying to insure continuity of service to the public; that has been a consistent theme from the public and a primary reason for the club to move forward. Councilman Romero suggested an amendment that all the public benefits be protected, not just the 7 bullet points. Vann said if the fractional units continue, the Club remains as required in the ordinance. Vann said if the fractional owners want to amend the PUD, they could try and buy out the owners of the Club but PUD amendments require city review. Councilman Romero said he would like accessibility of club membership put back into the ordinance. Council previously identified that as a core issue. Special Meeting Aspen City Council June 1, 2010 City Attorney, John Worcester, suggested section (a) page 201ast sentence currently read, "the criterion for a resident membership is the holder is either a Roaring Fork Valley for more than 6 months each yeaz" and add "as defined by the Aspen/Pitkin County housing authority guidelines as maybe amended from time to time". Fox noted the APCHA guideline requires full time employment. Worcester said that should only apply to the boundaries for residency. Councilman Romero said he would like to amend his motion to reintroduce Section 23 accessibility to club membership with the final APCHA definition as stated; Councilman Romero asked the logic behind the .25% on fractional assessment. Fox said he felt the $250,000 to $500,000 was enough to cover the community benefits. Councilman Romero said if the Club were to shut down and local members were looking to join another facility, what the unit would cost of a "membership" would be. Fox said he did not think the condition was to have this fund another club if the Aspen Club went away. Fox told Council he focused on the 7 bullet points and methods of funding those. Fox said the fund is not limited to the club but can fund other health and recreation needs of the community. Councilman Romero said he appreciates the 7 bullet points but having them listed as community goals for 15 years limits the purpose. Fox said he is happy to open the fund up and have it available sooner to the community than have it limited to those items. Councilman Romero said that fund will not have any funding until there are sales of the fractional units. Councilman Romero reiterated the 7 bullet points should rotate over to club re-investment. Councilman Johnson said it does not seem there is a lot of cost associated with the 7 bullet point items. Councilman Johnson stated he would like to see the club accessibility back into the ordinance. Mayor Ireland asked if this ordinance is approved, what is the probably the club will survive. Fox said it is good; the valuable asset in the future is the Aspen Club and the fractionals areaway to get there. Mayor Ireland asked why the time share units are needed to do maintenance and refurbishing of the club. Fox answered the fractional units areaway to get people to the club and to participate in the programs. Councilman Romero amended the ordinance to put back in the old section 23, accessibility of club membership inclusive of city attorney's definition on residency; seconded by Councilman Johnson. Mayor Ireland said the 6 month standard for APCHA has a work requirement attached so it is easily proved. The amendment would open up an enforcement issue. Councilman Romero asked how the applicant would enforce this. Fox said the proof could be if the member is paying taxes in the State of Colorado in Pitkin County. Ms. Garrow said if the accessibility requirement is added back into the ordinance, she recommended adding in reporting requirements, a yearly audit of the club be added to the condition. Councilman Romero said the applicant suggested as a penalty, club memberships to local non-profits be reduced 10%/yeaz until the applicant is in compliance. Councilman Romero said the tracking and reporting rests with the applicant. Councilman Romero stated the essence of 6 Special Meeting Aspen City Council June 1, 2010 much of the public comment was accessibility for membership and to eliminate that condition because it may be difficult to regulate, that condition should not be ignored. Councilman Johnson agreed the accessibility should be part of the ordinance and the enforcement is reducing the cost to local non-profits 10%/year and that speaks to the spirit of what Council is trying to accomplish. Councilman Skadron said it seems like this is a "feel good" amendment to put in the ordinance with no ability of enforcement. Councilman Romero and Councilman Johnson in favor; Councilman Skadron and Mayor Ireland opposed. Motion NOT carried. Councilman Romero amended the ordinance that the Aspen Club living assessment, the 15 year window for measuring the 7 bullet points is eliminated and it will be a 25 year assessment for the recreation fund. Mayor Ireland asked what the consequences would be if one of the 7 bullet points were not provided by the applicant. Fox pointed out the fund will be available to continue those services. Ms. Garrow pointed out the public improvement section lists the affordable housing, public work requirements, sanitation district requirements, park and water requirement, school land dedication, energy commitments, and club re-investment. Ms. Garrow said most of these have to be complete before a c/o is issued. Councilman Romero asked if the list of soft programming is part of this approval. Ms. Garrow said if Council would like that specifically attached to the ordinance, it will be part of exhibit F. Councilman Romero said in club reinvestment section, two new line items, program development and programming, which refer back to a letter from the applicant which was a response to Council that the $5 million all related to capital expenditures not programming and continuity of programming. The applicant provided a list. Ms. Garrow pointed out that list was exhibit Z 12 and was in the last packet. This can be included in the ordinance to make it cleaz those items are incorporated. Fox said the applicants do not get a c/o until they prove they have invested $5 million. Vann said the revisions to Section 24 that broaden the use of the .25% assessment fund are acceptable to the applicant. Council's suggestions that the 7 bullet points be incorporated in a prior list provided by the applicant of all the various programming activities and incorporated in the ordinance as an exhibit to flush out the terms program development and programming is acceptable. Vann pointed out there are various reporting requirements to different entities and the bullet points and programming elements will be included. All in favor with the exception of Mayor Ireland. Motion carried. Councilman Skadron said moving slowly by the city generally returns better results. Councilman Skadron stated the applicant does not have a right to build what he is asking for; he is asking for something extraordinazy and is willing to negotiate. Councilman Skadron stated his goal is to ensure the benefits the applicant claims to provide the community will actually be provided to the community. Councilman Skadron said he Special Meeting Aspen City Council June 1, 2010 needs to know that the developer will offset the impacts that the proposed development will have on its immediate neighbors and on the local community. The developer is guaranteeing services and those should continue and that the community benefits will satisfy the land use criteria. Councilman Skadron said the benefits have to have a nexus to the development, and the extension of services for the community health and well being address that. Councilman Skadron said he feels that "community benefit" should be proportional to the impacts of the development. Councilman Skadron said an assessment on the sale and resale of the properties addresses that. Councilman Skadron noted that program was voluntary on the part of the applicant. Councilman Skadron stated the neighbors and the community have had an opportunity for a meaningful role in this process. Councilman Skadron said he feels the community is better off with the Aspen Club than without. Councilman Skadron reiterated the negotiated mitigation; amenities and public benefits as presented in this ordinance satisfy the standards for designation of an SPA as set for in the land use code. Mayor Ireland said he has received many e-mails, many personal comments and public comment. Mayor h•eland said although there maybe property taxes, the city will have to provide services to the new uses, residents and business of the property, and studies show the government does not gain any money. Mayor Ireland stated his job is to consider the needs of the community as a whole and to vote his conscience, not public opinion. Mayor Ireland said there are no assurances that the club will remain and there are no consequences of the Club's demise. Mayor Ireland said he does not feel the city should be in the business of receiving payments in lieu of public benefits, which is the continuation of the club. Mayor Ireland said there are no consequences other than the $5 million that will be spent anyway if the Club closes. Mayor Ireland said a private ownership with the members owning the Club would provide assurance that the Club would continue to exist. Mayor Ireland noted the improvements outlined in the ordinance are very vague and questioned whether roof repairs a substantial community benefit. Mayor Ireland said the real benefit of the club is an institution in the community where people can work out, meet and get things done. Mayor Ireland reiterated there is no penalty for discontinuation of the Club. Mayor Ireland noted the Aspen Club came in in 1996 for a subdivision of the parking lot and received an infusion of cash. There were enforcement problems and the city had to seek to get compliance. Mayor Ireland said Aspen's ability to survive as a tourist destination comes from protecting community serving businesses and when those community serving businesses are supplanted by luxury free market housing, the city is threatened with the obliteration of community businesses. Mayor Ireland said it is his obligation to take steps to insure that the promised community benefits are realized. Roll call vote; Johnson, yes; Skadron, yes; Romero, yes; Mayor Ireland, no. Motion carried. Councilman Johnson moved to adjourn at 4:20 p.m.; seconded by Councilman Romero. All in favor, motion carried. i R