HomeMy WebLinkAboutagenda.council.special.20100802THE CITY OF ASPEN
AGENDA
SPECIAL MEETING
AUGUST 2, 2010
3:00 P.M.
ORDINANCE #16, 2010 — Aspen Art Museum 633 Spring II LLC Subdivision Review
Resolution #58, 2010 —Approving a Conditional Settlement Agreement 633 Spring II
LLC
MEMORANDUM
TO: Mayor Ireland and City Council
FROM: Ben Gagnon, Special Projects Planner, Community G
Development Department
Chris Bendon, Director, Community Development
Department C6
DATE OF MEMO July 30, 2010
MEETING DATE: August 2, 2010
RE: Aspen Art Museum Subdivision
Settlement of Pending Litigation
Second Reading of Ordinance No 16, Series of 2010
CO -APPLICANTS /OWNERS:
Aspen Art Museum: Heidi
Zuckerman Jacobson, Chief
Curator
633 Spring II LLC: Nikkos
Hecht, Principal
REPRESENTATIVES:
Aspen Art Museum:
Glenn Horn
633 Spring II LLC:
Stan Clauson
LOCATION:
307 S. Spring and 625 E.
Hyman.
CURRENT ZONING & USE
C-1. A single commercial
building.
PROPOSED LAND USE:
Co -applicants seek to subdivide
the fathering parcel into Lot 1
for the new Aspen Art Museum,
and Lot 2 for a Mixed -Use
STAFF RECOMMENDATION:
Staff recommends approval of the Subdivision, Site
Specific Development Plan, Special Review for
Parking, Commercial Design Review and Growth
Management Review.
Building, at right. See Exhibit A for additional architectural
renderings, and Exhibit B for photographs of Aspen Art Museum
architectural model.
LAND USE REQUEST AND REVIEW PROCEDURES: The co -applicants are
requesting the following land use approvals:
• Subdivision Commercial Design Review Special Review for Parking and
Growth Management Review — Because this project is a Site Specific
Development Plan that reflects a potential legal settlement, the Planning and
Zoning Commission is not a reviewing or recommending body. The City Council
may approve, approve with conditions or deny the Site Specific Development
Plan, Subdivision, Special Review for Parking, Commercial Design Review and
Growth Management Review.
BACKGROUND: This memo is a narrative description of the Site Specific
Development Plan (including visual renderings), combined with a staff analysis and
recommendation for the proposed new Aspen Art Museum and Mixed Use Building at
Spring St. and Hyman Ave.
As part of the staff analysis and recommendation, the memo will reference standards,
goals and review criteria for Subdivision, which requires consistency with the Aspen
Area Community Plan; Special Review for Parking; Growth Management; Commercial
Design Guidelines; and the Civic Master Plan.
DISCUSSION: From staff s perspective, the most important element of this proposal is
the fact that it would provide a new public building in downtown Aspen. This is a rare
opportunity for any city or town. The potential for this new public building to reinforce
Aspen's long -held identity as a center for arts and culture makes it a compelling proposal,
and one worthy of serious consideration.
The Art Museum use is consistent with the 2000 AACP, which states that, "Arts, culture
and education are acknowledged as essential to Aspen's thriving year-round economy, its
vibrant international profile and its future as a unique place to live, work and learn."
The 2000 AACP compares "managing growth" to "an individual who matures and
eventually stops growing." The AACP further states: "We feel that the ceiling is fast
approaching where we will be at the maximum in economy, physical space, and quality
of life."
Last year's build -out study of the downtown is clear: There are few opportunities for new
development and redevelopment. With the downtown more than 90% built -out, staff
agrees that "the ceiling is fast approaching." [Emphasis added.]
The question for planners and the community -at -large is: What can we do with the few
remaining opportunities available in the downtown? Staff finds a new public building that
meets community goals would be a compelling choice.
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The 2000 AACP recommends "more get-together places and public activities that
naturally encourage an informal mix of our diverse population." [Vision for the Aspen
Area: Pg.8] The planned roofseape garden and the Aspen Art Museum's commitment to
never charge an entry fee is consistent with this "vision."
The 2000 AACP says that, "All new public projects must, by example, raise standards of
design quality." [Design Quality, Pg. 421
Every well -designed public building has signature architectural elements:
• The County Courthouse has the tower and the silver statue below;
• The Elks Building has majestic facades meeting at the street intersection, and the
cupola and flag above;
• The new Hopkins Street Fire Station has a contemporary "tower" element, and a
series of windows on the 20-foot-tall bay doors, so people can see the trucks inside.
The proposed Art Museum is highly innovative and has at least two signature
architectural elements:
• The 2,880 square -foot public roofscape sculpture garden. The public would take a
hydraulic elevator to the third floor — 32 feet above the street — and enjoy an open-air
view of the downtown and Aspen Mountain.
• The proposed "wooden screen around the building" is semi -transparent. It can best
be described as, "half wood — half air." Staff finds that the semi -transparent wooden
screen would substantially reduce the pedestrian perception of mass, scale and
height.
The Design of Public Buildings
The 2000 AACP, the 2006 Civic Master Plan and the City's 2007 Commercial Design
Guidelines all recognize the fundamental difference in how a public sector project should
be designed, versus a private sector development.
The 2006 Civic Master Plan recommended that the Aspen Art Museum explore
downtown locations, and identified elements that new public buildings should include,
such as:
• Humanistic
• Inclusive
• Inviting
• Inspirational
• Functional
• Approachable
• Sense of pride
• Community spirit
The 2000 AACP says: "We wish to encourage creativity that results in design solutions
that are fresh and innovative, yet are net additions to the built environment by being
contextually appropriate and harmonious ..." [Design Quality Pg. 431 Staff finds that
Shigeru Ban's proposal is a "design solution" that is clearly "fresh and innovative." Staff
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finds it is also "contextually appropriate and harmonious" by creating a new and visually
compelling edge at the east end of the downtown core. The building design would serve
as a visual cue to draw downtown pedestrians, while also demarcating the end of the
urban area and the beginning of a predominantly residential area.
At the risk of over -simplifying, public buildings don't belong in residential
neighborhoods — they belong in downtown areas where people can enjoy them as part of
a walk -around trip to restaurants and stores. Therefore, the proposed museum is
"consistent with the character of existing land uses in the area." [Subdivision Review
Standards, Part 400, Pg. 1641 With its combination of retail, office and residential, the
Mixed Use Building is entirely consistent with surrounding uses.
The Walk -Around Downtown
When a pedestrian walks through downtown Aspen, they are influenced by visual cues. A
person might see a restaurant on the next block and walk over to read the menu; they
might be drawn to a majestic building like the Wheeler and find out what events are
coming up; they will see the mountain and make their way towards it — perhaps stopping
for an ice cream outside Paradise Bakery.
Today, a pedestrian standing on Galena Street, looking east along Hyman Ave can see the
downtown gradually dwindling away into a residential area. There are few visual cues
that draw the pedestrian to the east. A signature Art Museum at the corner of Hyman and
Spring would provide a visual cue for pedestrians. They would see innovative
architecture that would draw them toward it. In the planner language of the Commercial
Design Guidelines: "A sense of stronger fundamental framework will enhance the urban
qualities of this (fringe) area (of downtown) and is a priority." [Commercial Character
Area Design Objectives, Pg. 14]
ht.
9
When a pedestrian arrives at the museum, they could walk under the wooden honeycomb
screen, approaching the building 10 feet behind the screen and experience what they've
seen all around the downtown — a tall first floor with large glass windows, providing a
look into the first floor art gallery. In the model above, please note the ability to walk
under the honeycomb screen at several points on Hyman Ave. and Spring Street.
The Commercial Design Guidelines say that, "The transparency created by a large
storefront window area and the immediate relationship this creates between public and
internal display, interest and attraction, should be an integral part of the design of a new
building in the Commercial Area." [Commercial Character ArealFirst Floor Character:
Pg. 32.]
This design provides an opportunity for people to see the art inside the museum and
decide whether to enter, as well as providing temporary shelter in a town that experiences
a wide range of weather.
Strengthening the East Edge of Downtown
The proposed museum site at the corner of Hyman and Spring is on the fringes of the
downtown core — an area where the very first Design Objective in the Commercial
Design Guidelines seeks to "Strengthen the sense of relatedness with the Commercial
Core Historic District." [Pg. 14]
This is another way of saying that the edges of downtown should still feel like part of the
downtown, rather than slowly dwindling away into East Aspen. To further this goal, the
guidelines say that this "fringe" area of the downtown "is a place where more variety in
design is encouraged..." [Commercial Character Area / Design Objectives, Pg. 141
The museum proposal serves not only to expand the walk -around interest and vitality of
the downtown, but would also serve as a demarcation, or "bookend" to the downtown.
While the proposed museum would visually draw people to the corner of Spring and
Hyman, the pedestrian will also clearly perceive that they are on the edge of the
downtown core, and the beginning of a residential area to the east. This kind of visual
demarcation is a fundamental planning principle.
Building Design at Intersections
The Commercial Design Guidelines encourage consistent building heights at street
corners, where "variations in front wall setbacks (should be) kept to a minimum. Breaks
in the street wall should occur as an accent within the street block ...." (Emphasis added.)
[Commercial Character Areal Street Facades and Corners, Pg. 22]
Among the most visually compelling street -corners in the downtown are the Elks
Building, Independence Square and the Wheeler Opera House. All of them feature two
large building facades at the comer of two streets. This is a successful urban planning
tool, and examples can be found all over the world.
k,
The substantially lower height of the Mixed Use Building proposed directly west of the
new Aspen Art Museum achieves "breaks in the street wall ... within the street block," as
the guidelines recommend. [Commercial Character Area/ Street Facades and Corners,
Pg. 22]
The Height of Public Buildings
For a portion of the Aspen Art Museum to be taller than most surrounding buildings —
especially at a street intersection, as noted on page 5 above — reinforces the civic and
public nature of the structure. But the height of the proposed Art Museum is not just for
the sake of size — 14-foot plate heights on the first and second floor are necessary to
accommodate artworks, and are the minimum plate heights for a successful contemporary
art museum.
The Commercial-1 (C-1) Zone District included a 42-foot height limit when the
development application for this site was made in April 2006; and the co -applicants are
grandfathered into this code. Although the application does not legally have to comply
with the Commercial Design Guidelines established in 2007, the current proposal meets
and sometimes exceeds the Commercial Design Guidelines.
Both the 2006 and current land use codes allow for an additional five feet to
accommodate solar panels, mechanical equipment and similar features. [LUC Section
26.575.020B(1)d.J In this case, the bifurcated triangular roof on the top floor of the
proposed museum is a combination of glass and photovoltaic cells, and is therefore
compliant with the code.
At the same time, the semi -transparent wooden honeycomb -like screen around the
museum building will substantially offset the perception of height and mass. In the
rendering above, please note the white -colored two-story mass visible through the
J
honeycomb screen. The third story of the building behind the screen is glass, again
diminishing the perception of mass. From many pedestrian perspectives, a person could
look through the uppermost sections of the screen and see the mountain and sky behind it.
Also, the pedestrian view from Spring Street includes a triangular setback in the mass of
the building, dropping from the 47-foot solar panel -roof down to 32 feet for the public
roofscape garden (see model below). This design is consistent with the Commercial
Design Guidelines' emphasis on the need to vary heights. The Commercial Design
Guidelines say that a "variation in massing (can be) achieved through upper floor
setbacks, the roofscape form and variation in upper floor heights." [Commercial
Character Area/Height Variation for Larger Sites/Pg. 26.]
Photograph of a model of the proposed new Aspen Art Museum. Spring St. m foreground.
Height variation is repeatedly encouraged in the Commercial Design Guidelines. This
proposal features height variation in a number of ways:
• The third floor of the Art Museum would drop from the bifurcated 47-foot solar
panel roof to 32 feet at the roofscape garden;
• The plane of the Art Museum's 47-foot "screen" drops down to the 35.5-foot
front fagade of the adjacent Mixed Use Building on Hyman Ave.
• Two-thirds of the 38-foot third floor fagade of the Mixed Use Building is set back
from the sidewalk by 25 feet.
7
The third floor of the Mixed Use Building is 38-feet, a full four feet below the 2006 code,
and two -feet below the maximum allowable height of the current code.
The P Floor Pedestrian Amenitv
At approximately 2,800 square feet, the public roofscape sculpture garden makes up
about a third of the top floor of the museum, an element that exceeds the goals of the
Commercial Design Guidelines. The guidelines suggest "second -level" outdoor space for
the public, but truly never anticipated a development that would actually set aside the
third floor as outdoor, open -to -sky space for the public to enjoy. [Second Level Amenity
Space, Pg. 21]
The public roofscape sculpture garden would be the only rooftop in downtown Aspen
that is free and accessible to the public. The proposed roofscape garden exceeds
Commercial Design Guidelines, which seek to "group and screen mechanical units," and
"locate mechanical equipment to the rear of the roof area." In this case, there are no
"mechanical units" or "mechanical equipment" on the roofscape of the proposed
museum.
Rendering of the open-air roofscape, 32 feet above the sidewalk, with a view of Aspen Mountain.
Articulation of Design
One challenge of developing six traditional townsite lots is to "articulate" the design, so
the mass is broken up to reflect the traditional look and feel of the downtown. The City's
Commercial Design Guidelines suggest the following methods of articulating building
design:
• Building fagade composition;
• Window patterns;
E
• Architectural details and materials
• Variation in height and massing;
• Variation in plane of the front facade
The renderings in Exhibit A clearly show two distinct buildings that break up the massing
on Hyman Ave. The two distinctly different buildings were designed by different
architectural firms: The Aspen Art Museum by internationally known architect Shigeru
Ban; and the adjacent retail/office/residential building by Ike Kligerman Barkley
Architects.
The texture and detail of the facades vary widely, from the museum's semi -transparent
wood screen to the steel, brick and glass of the Mixed Use Building next door. The planes
of the two facades also vary by 10 feet. Taken together, the two buildings show a "depth
of modeling, texture and detail of the facade (that) is essential to the creation of light and
shadow, which define and animate the scale and character of the street facade," as
suggested in the design guidelines. [Commercial Character Area / Building Design &
Articulation / Pg. 271
The Mixed Use Building would include slightly more retail and office space than
currently exists on the parcel, ensuring that existing commercial square footage is not lost
from the downtown inventory.
Long Range Planning
In 2000, the Aspen Art Museum Facility Assessment stated that the museum is "on the
wrong side of Main Street," and recommended that an in -town location would bringing
more excitement and attendance, and increased vitality to the downtown.
The 2006 Civic Master Plan stated that, "A downtown location for arts -related events and
activities tends to reinforce Aspen's identity as a center for arts and culture, and tends to
make such events more economically viable." The CMP also "encouraged the Aspen Art
Museum to explore downtown locations ..."
Adopted by City Council in 2007, the City's Commercial Design Guidelines seek to
"Promote creative, contemporary design ... " at the eastern edge of downtown.
[Commercial Character Area / Design Objectives / Pg.141
Although Aspen has a reputation for encouraging innovation, it has been many years
since the community has seen truly ground -breaking architecture. Both nationally and
internationally, new art museums are intended to be a work of art in themselves. These
new buildings become associated with the architect, providing a "back -story" that is a
critical part of a successful new museum. In this case, Shigeru Ban's strong reputation for
environmental responsibility is also strongly aligned with Aspen's values.
i
This project also meets other goals of the 2000 AACP, such as:
• "New development should take place only in areas that are, or can be served by
transit, and only in compact, mixed -use patterns that are conducive to walking and
bicycling." [Transportation Chapter, Pg. 21] There is a RFTA stop in close proximity
on Spring Street.
• "The amount of surface land area devoted to the automobile (particularly for
parking) should decline from the 1998 level." [Transportation Chapter/Philosophy/
Pg. 21] The redevelopment would eliminate the existing commercial parking lot on -
site.
• "Maintain a healthy, vibrant and diversified year-round economy that supports the
Aspen area community; to maintain and enhance existing business and cultural entities;
and to support and promote the Aspen Idea of mind, body and spirit." [Economic
Sustainability Chapter, Pg. 31] A new museum would enhance an existing cultural
entity.
Growth Management Review
Staff supports the waiver of housing mitigation for this project due to the Aspen Art
Museum's status as an Essential Public Facility, as allowed by the Growth Management
Quota System, with the exception of the net increase in commercial square footage in the
Mixed Use Building, and the net increase in free market residential space, requiring
mitigation for a total of 9.6 employees. The proposed ordinance emphasizes partnership
opportunities with City housing projects to satisfy the housing mitigation requirements.
The City has been emphasizing the need for partners to help make planned affordable
housing projects viable.
Special Review for Parking / Growth Management Public Infrastructure Review
As an Essential Public Facility, off-street parking requirements are established by Special
Review for the proposed Art Museum. [L UC Section 26.515.030] Staff finds there should
be no requirement for off-street parking for the Art Museum, for the following reasons:
• The 2000 AACP states that "Aspen's future should be one in which the
automobile plays a smaller role in people's everyday lives ... Local and regional
land use and development patterns should enable and support travel by alternative
modes of transportation." [Transportation Chapter/Philosophy/Pg. 21] Staff finds
that providing parking at the Art Museum site makes it more convenient to use the
automobile and therefore encourages people to drive. This would be in
contradiction of the AACP. At the same time, the Roaring Fork Transit Authority
(RFTA) relies on high levels of ridership to remain a viable public transit system.
Therefore, disincentivizing the use of the automobile directly results in higher
ridership for RFTA and a more viable public transit system. The AACP asks the
community to, "Ensure that RFTA continues to be a primary means of transit and
is kept economically healthy to serve the valley." [Transportation Chapter/Goal
M/Pg. 23]
we,
• Disincentivizing automobile travel by waiving off-street parking requirements for
the Art Museum minimizes adverse impacts on roads and tends to strengthen
transit services. [LUC/Growth Management/Section 26.470.050(B)7]
• There is an existing RFTA stop approximately one block from the proposed Art
Museum site, meeting the Special Review criteria for development that is in
"close proximity to mass transit routes." [LUC Section 26.515.040(A)1]
• The signature architecture of the proposed Art Museum site is intended to be a
visual cue for pedestrians already visiting the downtown area, drawing them from
the central core of downtown to the eastern edge of downtown. This overall intent
meets the Special Review criteria, which supports development located in
"proximity ... to the downtown area ..." [LUC Section 26.515.040(A)I] The
AACP supports this position: "New development should take place only in areas
that are, or can be served by transit, and only in compact, mixed use patterns that
are conducive to walking and bicycling." [Transportation
Chapter/Philosophy/Pg. 21]
• Requiring the Art Museum to provide off-street parking could mean dramatically
reducing the size of the building to provide surface parking, in contradiction to the
AACP's desire to reduce surface parking from 1998 levels. [Transportation
Chapter, Pg. 21] The option of providing underground parking would a) reduce
planned sub -grade gallery space that is essential to the mission of the Art
Museum, or b) require a second sub -level for underground parking that would be
prohibitively costly to a non-profit organization. These rationale meet the Special
Review criteria, which states that an "on -site parking solution ... is practically
difficult or results in an undesirable development scenario." [LUC Section
26.515.040(A)21
• The Rio Grande Parking Garage is the City's primary outlet for parking, intended
to accommodate the automobile for downtown visitors. Many visitors take
advantage of the existing capacity in this parking structure to park, and enjoy the
pedestrian -friendly downtown, of which the Art Museum would be a small part.
This meets the Special Review criteria, stating that "Existing ... off -site parking
facilities adequately serve the needs of development." [LUC Section
26.515.040(A)31
With regard to the Mixed Use Building, the code requires 4.6 parking spaces, or a cash in
lieu payment. Two parking spaces are provided on -site, leaving the balance to be
mitigated through payment -in -lieu. [LUC/Off-street Parking/Section 26.515.030]
"Additional demand on public infrastructure ... is mitigated ..." [LUC/Growth
Management/Section 26.470.050(B)7]
Opportunity at Existing Museum Site
If the Aspen Art Museum relocates to Hyman and Spring, the existing museum site at the
base of Mill Street would be available for a new public use for the first time since 1979.
11
Regarding the current museum site, the 2006 Civic Master Plan requires the City to
identify a publicly interactive use that builds on the intrinsic assets of the riverfront site,
the Rio Grande Trail and the historic nature of the building. An extensive public feedback
process would be used to help determine the future use of the existing museum site.
STAFF RECOMMENDATION: Staff recommends approval of the Aspen Art Museum
Subdivision, the Site Specific Development Plan and Growth Management Review.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: "I move to approve Ordinance No. 14, Series of 2010,
approving the Aspen Art Museum Subdivision, a Site Specific Development Plan for 307
S. Spring and 625 E. Hyman and Growth Management Review."
ATTACHMENTS:
Exhibit A: Architectural renderings of Art Museum & Mixed Use Building
Exhibit B: Photographs of Aspen Art Museum model
Exhibit C: Building Sections and Floor Plans for Art Museum
Exhibit D: Building Sections and Floor Plans for Mixed Use Building
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ORDINANCE NO. 16
(SERIES OF 2010)
AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING A
SUBDIVISION, COMMERCIAL DESIGN REVIEW, SPECIAL REVIEW FOR
PARKING, GROWTH MANAGEMENT ALLOCATIONS, AND A SITE SPECIFIC
DEVELOPMENT PLAN FOR THE ASPEN ART MUSEUM SUBDIVISION,
CURRENTLY ADDRESSED AS 307 S. SPRING STREET AND 625 E. HYMAN
AVENUE, ALSO KNOWN AS THE WEINERSTUBE PROPERTY, LOTS D-I,
BLOCK 100, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY,
COLORADO.
PARCEL NO.2737-182-25-003
PARCEL NO.2737-182-25-004
WHEREAS, the Community Development Department received an application
from 633 Spring II, LLC, in April 25, 2006, requesting approval of Commercial Design
Review, Growth Management Reviews, Multi -year Development Allotments,
Condominiumization, and Subdivision to construct a three-story mixed use building on
the properties located at 307 S. Spring Street and 625 E. Hyman Avenue, Lots D-I, Block
100, City and Townsite of Aspen; and,
WHEREAS, the subject property is approximately 18,000 square feet and is
located in the Commercial (C-1) Zone District; and,
WHEREAS, upon review of the application, and the applicable code standards,
the Community Development Department recommended the Planning and Zoning
Commission deny the Applicant's request for multi -year development allotments, finding
that the design and massing did not meet the standards for an exceptional project
necessary to obtain multi -year development allotments; and,
WHEREAS, the City of Aspen Planning and Zoning Commission passed
Resolution 28, Series 2006 granting certain land use approvals and recommending in
favor of the project to City Council; and,
WHEREAS, the City Council conducted public hearings on January 22nd, 2007,
February 12d', 2007, and February 26d', 2007, and took public comment on Ordinance No.
49, Series of 2006, and on February 26d', 2007 the Aspen City Council did not approve
Ordinance No. 49, Series of 2006, by a two to one (2 - 1) vote, including Multi -Year
Development Allotments, and Subdivision for the development of a three-story, mixed use
building on Lots D-I, Block 100, City and Townsite of Aspen; and,
WHEREAS, during a regular City Council meeting on February 27d', 2007, the
Aspen City Council voted, two (2) to one (1), to reconsider the project on April 23`d, 2007;
and,
Ordinance No. 16, Series of 2010 Page 1
WHEREAS, on April Ild', 2007 the Applicant amended their application to
renew their growth management request to request five (5) Free -Market Residential
Allotments under the Growth Management Review "Free -Market Residential Units
within a Mixed -Use Project" separately from the approvals received in Resolution 28,
Series of 2006; and,
WHEREAS, during a regular City Council meeting on April 23`d, 2007, the Aspen
City Council determined that the amended application required additional review by the
Planning and Zoning Commission; and,
WHEREAS, the Community Development Director reviewed the amended
application and recommended approval of the five (5) Free -Market Residential Growth
Management Allotments, finding that the application met the standards for such a review
and recommended approval of the request; and,
WHEREAS, during a duly noticed public hearing on June 5, 2007, the Planning
and Zoning Commission approved Resolution No. 20, Series of 2007, by a five to zero
(5-0) vote, approving with conditions, a Growth Management Review for five (5) Free -
Market Residential Units in a Mixed Use Development, for the development of a three-
story, mixed use building on Lots D-I, Block 100, City and Townsite of Aspen; and,
WHEREAS, during a duly noticed public hearing on February 11, 2008, continued
from August 13d', 2007, August 27, 2007, October 9, 2007, November 12, 2007, December
3, 2007, and January 28, 2008, the Aspen City Council failed to adopt Ordinance No. 29,
Series of 2007 by a two to one (2-1) vote. Following such vote, a motion to deny Ordinance
No. 29, Series of 2007, was adopted by a three to zero (3-0) vote; and
WHEREAS, following the denial of the application, the applicants timely filed a
complaint pursuant to C.R.C.P. 106, requesting that the District Court review the adoption
of Ordinance 29 (Series of 2007) alleging that the City exceeded its jurisdiction and abused
its discretion in denying the request of the applicant to subdivide the subject property; and,
WHEREAS, the City of Aspen has defended such lawsuit and has denied that the
City Council's denial of the application was an abuse of discretion or that the City Council
exceeded its jurisdiction; and,
WHEREAS, on June 3, 2008, the Pitkin County District Court denied Plaintiff's
appeal of City Council's denial of the subdivision request of 633 Spring II, LLC; and,
WHEREAS, 633 Spring II, LLC, timely filed a Notice of Appeal in the Colorado
Court of Appeals, which is currently pending; and,
WHEREAS, as part of the litigation and appeal, the parties entered into settlement
discussions regarding the complete resolution of the litigation and the development
application; and,
Ordinance No. 16, Series of 2010 Page 2
WHEREAS, counsel for the parties have set forth the terms of the agreement to
settle the litigation and all necessary development approvals herein; and,
WHEREAS, the settlement discussions include the Aspen Art Museum as a co -
applicant; and,
WHEREAS, the Aspen Art Museum meets the definition of and is an Essential
Public Facility as defined and provided for in the City of Aspen Land Use Code; and,
WHEREAS, the Aspen Art Museum invited the public to meet with museum staff
to discuss the proposal, learn about the Architect, review the renderings and the project
model through a series of open houses at City Hall and during museum hours at the museum
from July 8 h through August 2"d; and,
WHEREAS, City staff and Art Museum staff have met or have offered to meet
individually with surrounding property owners and business owners about the proposal; and,
WHEREAS, the Aspen City Council has reviewed and considered the development
proposal under the applicable provisions of the Municipal Code as identified herein, has
reviewed and considered the recommendation of the Community Development Director and
the City Attorney, the applicable referral agencies, and has taken and considered public
comment at a public hearing held on August 2, 2010; and,
WHEREAS, the City Council finds that the proposed development meets
applicable development standards and that the approval of the proposal, with conditions, and
approval of the settlement agreement is consistent with the goals and elements of the Aspen
Area Community Plan; and,
WHEREAS, the City Council finds that this Ordinance furthers and is necessary for
the promotion of public health, safety, and welfare.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF ASPEN THAT THE SUBDIVISION, COMMERCIAL DESIGN
REVIEW, SPECIAL REVIEW FOR PARKING, GROWTH MANAGEMENT
REVIEW, AND SITE SPECIFIC DEVELOPMENT PLAN IS HEREBY
APPROVED WITH THE FOLLOWING CONDITIONS:
Section 1: Subdivision Approval
Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen
Municipal Code, the Aspen City Council hereby approves a Subdivision of the property at
307 South Spring Street, Block 100, Lots F, G H, I and 625 East Hyman Avenue, Block
100, Lots D, E, City and Townsite of Aspen, CO to develop a two lot subdivision each
with a newly constructed building as follows:
Ordinance No. 16, Series of 2010 Page 3
Aspen Art Museum Subdivision: Lot 1— The Aspen Art Museum. Lots I, H,
G and the easterly 15 feet of Lot F, Block 100, City and Townsite of Aspen
containing one building intended to house an essential public facility of
26,500 square feet of floor area for use by the Aspen Art Museum.
Aspen Art Museum Subdivision: Lot 2 — Mixed -Use Building. Lots D and E,
and the westerly 15 feet of Lot F, Block 100, City and Townsite of Aspen
containing one mixed use building consisting of a maximum of two (2) free-
market residential units with a total of 3,750 square feet of floor area and
11,250 square feet of floor area for commercial uses.
Within one -hundred -eighty (180) days year following the date of final adoption of this
Ordinance by the City Council, the applicant shall prepare, execute and record a
Subdivision Plat. The Subdivision Plat shall depict the creation of two lots as described
above.
Section 2: Master Development Agreement and Development Plans
Contemporaneously with the recording of the Subdivision Plat and pursuant to the
procedures and standards set forth in Title 26 of the City of Aspen Municipal Code, the
owners of both lots (Applicant) shall record a Master Development Agreement (MDA) that
meets the requirements of Land Use Code Section 26.480, Subdivision, within 180 days of
this approval. The MDA shall not contain any terms that contradict or change the terms of
the Conditional Settlement Agreement between the Applicant and the City of Aspen or the
terms of this Ordinance. The owners of the lands within the subdivision shall prepare,
execute and record a MDA which sets forth a description of the subdivision
improvements and other amenities required to be accomplished by each party within the
subdivision, as may be assigned to a Lot owner, including the following:
a. A Public Utility and Drainage Plan for all land within and affected by the
Subdivision. The plan shall meet the standards of the City Engineer and City
utility agencies. Any off -site improvements shall be specified.
b. A basic sidewalk improvement plan for each property showing all improvements
normally required for new development under the City of Aspen Land Use Code,
including sidewalks, curb and gutter, and landscaping in the right-of-way
requirements found in Chapter 21.20 of the Municipal Code.
c. Optionally, a Pedestrian Enhancement Plan may be developed as a mutual effort
of the Aspen Art Museum and the City of Aspen to complement the Art Museum
structure. This plan shall show the following elements:
1. All designs, materials, finish grading and profiles for improvements to
Hyman Avenue and Spring Street.
2. A Landscape Plan showing designs and materials for the public pedestrian
areas including location, amount, and species of landscape improvements
including street trees and other plant types, including any movable
planters or pots.
Ordinance No. 16, Series of 2010 Page 4
3. An irrigation plan for landscape improvements,
4. Cost estimates for the implementation of the Plan; and,
5. A description of when the improvements will be implemented (i.e. in
phases concurrent with development of the individual Lots or on an
independent schedule) and a description of how these obligations shall be
allocated to each individual Lot owner.
The plan shall be jointly approved by the Owners of Lots 1 and 2, the City
Engineer, the City Parks Director, and the City Community Development
Director. Improvements on private property do not need to be represented on
this plan. The plan shall demonstrate how these improvements can be
implemented in phases concurrent with development of the individual lots.
The MDA shall include a description of how these obligations shall be
allocated to each individual Lot owner.
If any party does not agree to the design or funding of the Pedestrian
Enhancement plan, the basic sidewalk improvement plan shall be
implemented. Completion of this Pedestrian Enhancement plan shall not be
required as a pre -requisite for the submission of a Building Permit Application
by either property.
d. Cost estimates for public improvements described in the Subdivision Plat and
MDA Development Plans, and a description of how these obligations shall be
allocated to each individual Lot owner.
e. A Housing Agreement for the project to house employees as specified in Section
8 of this ordinance and a description of how these obligations shall be allocated to
each individual Lot owner.
f. A summary of the total Impact Fees for the entire project (both Lots), and a
description of how those fee obligations shall be allocated to each individual Lot
owner.
g. A description of the continuing obligations which may burden a Lot within the
subdivision in the event that the other Lot is not developed as envisioned herein.
h. A description of the financial assurances to be provided by each Lot owner
securing the ability of the owner to compete the improvements on its respective
lot and to ensure the City can recover each lot at the site as described in Sections
4 and 5 of this Ordinance
Upon recordation of the Subdivision Plat and the Master Development Agreement, the
continuing obligations burdening each of the owners of the two (2) subdivided lots shall
be separate and distinct and shall not be dependent upon the other, except as specified in
the MDA. Conversely, the benefits enuring to each lot shall be separate and distinct and
not inclusive of those of the other.
Both parcels shall retain the current Commercial (Cl) zoning designation and are not
rezoned by operation of this Ordinance. If for any reason, the owner of either Lot does
not carry forward development of their Lot as permitted herein, the owner shall have the
Ordinance No. 16, Series of 2010 Page 5
right to bring forward another development proposal for any building or use consistent
with the Commercial (Cl) zone district allowances and limitations, as may be amended
from time to time.
Section 3• Individual Subdivision Agreements and Development Plans
Within one (1) year following the date of final adoption of this Ordinance by the City
Council, the owner of each individual lot within the subdivision shall prepare, execute
and record a Subdivision Agreement and Development Plans for its respective Lot.
These individual Agreements and Plans may be recorded at the same time or at different
times, as the respective developers may determine to be appropriate. The Subdivision
Agreement and Development Plans for each lot shall include the following information:
a. An illustrative site plan of the individual project depicting the proposed
improvements and the approved dimensional requirements.
b. A drawing(s) representing the individual project's architectural character, which
demonstrates the general architectural character of the building and depicts
materials, fenestration, projections, and dimensions and locations of elevator shaft
heads, mechanical equipment, and areas of the rooftop which are accessible.
c. A grading and drainage plan for the individual property, which may include tie-
ins to the City's drainage system.
d. A landscape implementation plan enforceable by the City guaranteeing the initial
establishment and ongoing maintenance of landscape improvements within the
Lot and on public property as may be assigned to the individual Lot through the
MDA.
e. An exterior lighting plan meeting the requirements of Section 26.575.150 of the
Land Use Code.
f. The Impact Fees for each individual Lot owner as may be assigned by the MDA.
g. Cost estimates for public improvements unique to the individual Lot or as may be
assigned to that Lot by the MDA.
h. A description of the financial assurances to be provided securing the public
improvements unique to the individual Lot or as assigned by the MDA.
Section 4: Financial Assurances — Performance Bond
The Master Development Agreement shall provide that before a Building Permit is issued
for the development of either Lot, the owner of said Lot shall provide to the City
Building Department and the City Attorney for review and approval satisfactory evidence
that the owner has in place sufficient financing to accomplish and complete the
construction of the development on that Lot covered by the building permit and any
public improvements on that Lot identified within the Subdivision Agreement for that Lot
or as assigned to that Lot under the MDA. Such financing may include, without
Ordinance No. 16, Series of 2010 Page 6
limitation, a construction loan from an institutional lender or lenders and equity capital
investments from the owner or third party investors or contributors.
Supporting cost estimates for all improvements covered by the requested Building Permit
shall be prepared by the owner's General Contractor and shall be delivered to the City
Building Department for review and approval before the Building Permit is issued.
The Master Development Agreement shall further provide that before a Building Permit
is issued for development of either Lot, the owner of said Lot shall provide to the City
Building Department and the City Attorney for review and approval a copy of a
Performance Bond issued or committed to be issued to the owner's General Contractor
by an institutional surety company pursuant to which the surety agrees to provide the
funds necessary to complete the construction of the improvements covered by the
building permit and any public improvements on that Lot identified within the
Subdivision Agreement for that Lot or as assigned to that Lot under the MDA. The
Performance Bond shall name the owner and the City of Aspen as additional
beneficiaries or insureds thereunder to grant to either or both of them a direct right of
action under the Performance Bond in order to construct or finish public improvements,
and to complete the construction of the improvement covered by the Building Permit.
Section 5: Site Protection Fund
The Master Development Agreement shall provide that before a Building Permit is issued
for the development of either Lot, the Lot owner will deposit with a title company
("Escrow Agent") the sum of $100,000 in the form of cash or wired funds (the "Escrow
Funds") and will execute an Escrow Agreement and Instructions with the Escrow Agent
which recites and agrees as follows:
In the event construction work on the development of an individual Lot shall cease for
sixty (60) days or longer (`work stoppage') prior to a final inspection by the City of the
work authorized by the Foundation/Structural Frame Permit on the Lot, then the City in
its discretion may draw upon the Escrow Funds from time to time as needed for purposes
of protecting and securing the site and improvements from damage by the elements
and/or from trespass by unauthorized persons, and for purposes of improving the site to a
safe condition such that it does not become an attractive nuisance or otherwise pose a
threat to neighbors or other persons.
The Escrow Funds or any remaining balance thereof shall be returned to Applicant upon
completion by the City of a final inspection of the work authorized by the
Foundation/Structural Frame Permit on the Project.
The City shall be a named third party beneficiary of the Escrow Agreement with the
express right and authority to enforce the same from time to time.
Ordinance No. 16, Series of 2010 Page 7
The buildings as presented in the plans dated July 30, 2010 and attached as Exhibit A to
this Ordinance, comply with the effective dimensional allowances and limitations of the
Commercial Cl zone district as modified below. Compliance with these requirements
will be verified by the City of Aspen Zoning Officer at the time of building permit
submittal.
Lot 1, Aspen Art Museum. The following dimensions are approved for Lot 1:
a. Minimum Lot Size 10,500 square feet
b. Minimum Lot Width 105 feet
c. Minimum Front Yard Setback
d. Minimum Side Yard Setback
e. Minimum Rear Yard Setback
f. Minimum Trash/Recycle Area
g. Maximum Building Height
h. Minimum Pedestrian Amenity Space
i. Maximum Allowable Floor Area
j. Maximum Net Leasable Commercial Area
k. Maximum Net Leasable Admin. Area
1. Minimum Off -Street Parking Spaces
0 feet — Hyman Avenue
0 feet — Spring Street
0 feet — Alley
To be internalized within the
structure as part of the
loading area.
42 feet. (see note on height)
Accommodated with rooftop
access and pedestrian
improvements to right-of-
way
26,500 square feet (see note
on floor area)
2,500 square feet
3,500 square feet
0
Lot 2, Mixed -Use Buildine. The following dimensions are approved for Lot 2:
a. Minimum Lot Size 7,500 square feet
b. Minimum Lot Width 75 feet
c. Minimum Front Yard Setback
d. Minimum Side Yard Setback
e. Minimum Rear Yard Setback
f. Minimum Trash/Recycle Area
0 feet — Hyman Avenue
0 feet — East and West
property lines.
0 feet — Alley
Alley frontage of 20 linear
feet with a 10 foot vertical
clearance and a 10 foot depth.
Ordinance No. 16, Series of 2010 Page 8
g. Maximum Building Height
h. Minimum Pedestrian Amenity Space
i. Maximum Allowable Floor Area
j. Maximum Commercial Floor Area
k. Maximum Commercial Net Leasable Area
1. Maximum Residential Floor Area
in. Maximum Residential Net Livable Area
n. Residential Units
o. Minimum Off -Street Parking Spaces
28 feet for 2-story elements,
38 feet for 3-story elements.
(see note on height)
As represented with set -back
areas along Hyman Avenue.
15,000 square feet
11,250 square feet
9,700 square feet
3,750 square feet (see note on
floor area)
3,500 square feet total. The
limit on individual unit size
shall not apply.
2 units, which may be
combined (see note).
Slight adjustments to the dimensions represented above may occur upon review of a
building permit as long as the resulting dimensions do not exceed those approved through
this ordinance or as otherwise allowed in the Cl Zone District, as may be amended from
time to time. During the period of statutory vested rights all dimensions shall be
calculated as described herein. Where not specifically addressed herein, dimensions shall
be calculated as provided in the Land Use Code in effect at the time of adoption of this
ordinance.
Combining Residential Units:
The two residential units within Lot 2 may be combined into one unit, or vice -versa, as an
administrative amendment by the Community Development Director with no requirement
for a Transferable Development Right.
Height:
On Lot #1, mechanical equipment, the integrated solar panel/roof membrane, elevator
apparatus, and interior and exterior fagade treatments, and furnishings may extend over
the height limit specified above by 5 feet, for a total of 47 feet. Artwork may extend over
the height limit. A railing necessary for rooftop or balcony access may extend above the
height limit specified above by an amount necessary for building code compliance if 50%
or more of the railing is transparent. All other architectural and mechanical
appurtenances may extend over the specified maximum height limit as permitted in the
Land Use Code in effect at the time of building permit submission.
On Lot #2, mechanical equipment may extend over the height limit specified above by 5
feet if setback from a Street -facing fagade a minimum of 15 feet or setback from the
Street a minimum of 30 feet. A stair enclosure necessary for roof -top access may extend
Ordinance No. 16, Series of 2010 Page 9
up to 10 feet over the height limit specified above if setback from a Street -facing fagade a
minimum of 15 feet or setback from the Street a minimum of 30 feet. A railing necessary
for rooftop or balcony access may extend above the height limit specified above by an
amount necessary for building code compliance if 50% or more of the railing is
transparent. All other architectural and mechanical appurtenances may extend over the
specified maximum height limit as permitted in the Land Use Code in effect at the time
of building permit submission.
Floor Area:
For the purposes of calculating the Floor Area for the Art Museum Building on Lot 1, the
measurement shall be from the exterior sheathing or weather barrier of all interior
conditioned areas of the building and shall exclude all areas which are enclosed or
partially enclosed by the exterior fagade treatment if those areas are not conditioned.
For the purposes of calculating the Floor Area for the mixed -use building on Lot #2,
100% of the circulation space shall be attributed to the commercial uses. The on -site
parking spaces shall be attributed to the commercial Floor Area, but not restricted in use.
All other aspects of Floor Area for buildings within this subdivision shall be according to
the allowances and limitations of the Land Use Code in effect at the time of building
permit submission.
Setbacks:
For the purposes of calculating the Setbacks for the Art Museum Building on Lot 1, the
measurement shall be from the outermost exterior fagade treatment.
Section 7: Impact and Development Fees
Park Development Impact Fee
Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, each Lot
shall pay an impact fee prior to building permit issuance. The fee shall be calculated
according to the fee schedule in Land Use Code Section 26.610.090, Current Impact
Fees, in place at the time of building permit. For the Aspen Art Museum, the calculation
shall be based on the net leasable areas associated with the bookstore, cafe, gift shop, and
the administrative offices. The galleries, loading dock and similar areas are exempt.
Costs of physical improvements to the right-of-way to create a better pedestrian
environment, street trees, and safe pedestrian crossings shall be credited towards reducing
this impact fee as determined and agreed to in the Master Development Agreement.
TDMIAir Quality Impact Fee
Pursuant to Land Use Code Section 26.610, TDMIAir Quality, each Lot shall pay an
impact fee prior to building permit issuance. The fee shall be calculated according to the
fee schedule in Land Use Code Section 26.610.090, Current Impact Fees, in place at the
time of building permit. For the Aspen Art Museum, the calculation shall be based on the
net leasable areas associated with the museum shop, cafe, and the administrative offices.
The galleries, loading dock and similar areas are exempt. Costs of physical
Ordinance No. 16, Series of 2010 Page 10
improvements to the right-of-way to create a better pedestrian environment, street trees,
and safe pedestrian crossings shall be credited towards reducing this impact fee as
determined and agreed to in the Master Development Agreement.
School Lands Dedication
Pursuant to Land Use Code Section 26.620, School Land Dedication, each Lot shall pay
an impact fee prior to building permit issuance. The fee shall be calculated according to
the fee schedule in Land Use Code Section 26.620.090, Current Land Dedication and
Cash -in -Lieu Fees, in place at the time of building permit. The Aspen School District
may waive or reduce the dedication fee in light of the Aspen Art Museum's educational
programming and benefits to the community. This decision shall be at the sole discretion
of the Aspen School District and any decision shall be included in the Master
Development Agreement.
Pedestrian Amenity Fee
Pursuant to Land Use Code Section 26.575.030, Pedestrian Amenity, the Co -Applicants
would typically be required to provide 25% of each Lot as a pedestrian amenity space or
pay a cash -in -lieu fee. Considering the provision of on -site pedestrian amenity space and
the extensive improvements contemplated to the Hyman Avenue and Spring Street rights -
of -way, no fee shall be due. (Also see Pedestrian Plan Contribution.)
Right of Way and Construction Encroachment Fees
Pursuant to Municipal Code Section 2.12.051, Engineering Department fees, the
Applicant shall pay the temporary right-of-way encroachment fee, parking fees, and the
earth stabilization encroachment fee associated with this development prior to building
permit issuance. The fees shall be calculated according to the fee schedule in place at the
time of building permit. If an on -site or tower crane is utilized for construction, then the
costs of physical improvements to the right-of-way to create a better pedestrian
environment, street trees, safe pedestrian crossings, and the changes to utility or drainage
infrastructure to accommodate such improvements shall be credited towards reducing
these fees as determined and agreed to in the Master Development Agreement.
Pedestrian Plan Contribution
The Aspen Art Museum share of any Park Development Impact Fee, TDM/Air Quality
impact fee, pedestrian amenity fee, and right of way encroachment fee are estimated to
total approximately $375,000. The cost of these impact fees shall be waived by the City
in consideration of a $375,000 contribution to the City of Aspen for the completion of a
pedestrian improvement plan for Hyman Avenue and Spring Street.
In the event the City is unable to implement such a plan in a timely manner, the Aspen
Art Museum shall install, at it sole cost, the basic street, curb, gutter, sidewalk and
landscaping improvements as required under the Municipal Code and the sum total of the
aforementioned fees shall be reduced commensurate with the cost of said improvements
as documented by the applicant and confirmed by the City Engineer.
Ordinance No. 16, Series of 2010 Page I I
Parking In -Lieu Fees
Given that on -site parking within Lot 1 would be practically difficult and an undesirable
development scenario, the site's the proximity to mass transit and the downtown area,
and pursuant to Land Use Code Chapter 26.515, Parking, parking on Lot 1 has been
determined to be unnecessary. Lot 2 shall pay a fee -in -lieu for on -site parking less than
the I space per 1,000 square feet of net leasable area that is required. The fee shall be
calculated according to the fee schedule in place at the time of building permit. The City
shall allocate expenditure of these fees towards the aforementioned pedestrian
improvements along Hyman Avenue and Spring Streets. In the event the City is unable
to implement such a plan in a timely manner, these fees shall be allocated as specified in
Section 26.515.050 of the Land Use Code.
BuildinQ Permit Fees
Building Permit Fees for the Aspen Art Museum shall be waived.
Section 8: Employee Generation and Mitigation
The existing commercial building contains 5,595 square feet of net leasable commercial
space. The Art Museum is hereby exempt from employee housing mitigation as an
essential public facility. The new mixed -use building contains commercial net leasable
space in excess of that which currently exists on the property. Following is the
calculation of the affordable housing requirement and the manner in which it is proposed
to be provided.
Mixed -Use Building Main level
4,600 s.f. x 4.1 FTEs/1,000 s.f. = 18.86 FTEs x 60% mitigation = 11.32 FTEs
Mixed -Use Building Second Floor level
5,100 s.f. x 3.075 FTEs/1,000 s.f. = 15.68 FTEs x 60% mitigation = 9.41 FTEs
Mixed -Use Building Residential
3,500 s.f. x 30% = 1,050 s.f. / 400 s.f. per FTE = 2.63 FTEs
Credit from Existing Building
5,595 s.f. x 4.1 FTEs/1,000 s.f. = 22.94 FTEs x 60% mitigation = 13.76 FTE
11.32 + 9.41 + 2.63 — 13.76 = 9.6 employees to be housed by the project
The project is required to provide housing mitigation to house 9.6 employees, and has
represented a commitment to financially contribute to a City of Aspen affordable housing
project in an amount necessary to house 9.6 employees. It is anticipated that this will be
Phase Two of the Burlingame Ranch affordable housing project, but a different City or
private -sector affordable housing project may be substituted in whole or in part, by
mutual agreement of the applicant and the City. Adjustments to the exact building
dimensions upon building permit review shall require a recalculation of the mitigation
requirement by using the above methodology.
Ordinance No. 16, Series of 2010 Page 12
The MDA shall describe the timing and method for meeting this housing requirement in
compliance with Section 26.470.070.4. of the Land Use Code, including reasonable
contingencies for satisfying this requirement through use of transferable housing credits,
buy -downs, or a payment -in -lieu sum equal to the amount to mitigate 9.6 employees at
the Category 4 rate in effect at the time of adoption of this ordinance. The Housing
mitigation shall be satisfied in full prior to issuance of a Certificate of Occupancy on Lot
2. This section represents the entire housing mitigation requirement for both Lots
combined.
Section 9: Growth Management Ouota System Allotments
The following Growth Management allotments are hereby granted to the Project:
a. Residential Free -Market — 2 Units
b. Commercial Net Leasable, Mixed -Use Building — 4,105 square feet (accounts for
existing credit of 5,595 s.f)
c. Commercial Net Leasable, Art Museum — 2,500 square feet (cafe and museum
shop)
d. Commercial Net Leasable, Art Museum — 3,500 square feet (administration
offices)
Section 10: Pre -Construction Meeting
The owner of each Lot shall attend a pre -construction meeting with the City Staff prior to
submission of a building permit application. This meeting shall include the general
contractor, the architect producing the construction drawings, and representatives from
the Building, Engineering and Community Development Departments. The intent of this
meeting is to ensure clarity around submission requirements, requirements of this
ordinance, and permit issuance timeframes.
Section 11: Building Permit Annlication
The Applicant may not submit a Building Permit Application until the requirements in
Land Use Code Section 26.304.075, Building Permit, are fulfilled. The building permit
application shall include the following:
a. A copy of this Ordinance.
b. The conditions of approval printed on the cover page of the building permit set.
c. A fugitive dust control plan to be reviewed and approved by the City Engineering
Department.
d. An excavation -stabilization plan, construction management plan (CMP), and
drainage and soils report pursuant to the Building Department's requirements.
The CMP shall include an identification of construction hauling routes,
construction phasing, and a construction traffic and parking plan for review and
Ordinance No. 16, Series of 2010 Page 13
approval by the City Engineer and Streets Department Superintendent. The CMP
shall also identify that the adjacent sidewalks will be kept open and maintained
throughout construction. Staging areas will be identified in the plan, and shall
indicate that the alley may only be closed intermittently during construction with
notice to the property owners relying on alley access.
e. Accessibility and ADA requirements shall meet adopted building code
requirements.
f. The approved Master Utility and Drainage Plan, the Right -of -Way and Pedestrian
Plan, and the Landscape Plan.
Section 12: Exterior Materials Testin¢
For Lot 1 — the Aspen Art Museum — the Chief Building Official may withhold issuance
of a building permit, or a phase thereof, for any time necessary to ensure the proposed
exterior building materials, building and structural systems, fabrication methods, weather
protection methods, fire protection methods, or other reasonable concerns of the exterior
materials fully meet the standards of the International Building Code and the
International Fire Code to the satisfaction of the Chief Building Official and the Fire
Marshall, including any unique conditions that exist or may arise given the local climate
and the nature of the proposed building and use. The Chief Building Official may require
special testing or other verification to ensure compliance will be achieved.
Section 13: Water Department Requirements
The Applicant shall comply with the City of Aspen Water System Standards, with Title
25, and with the applicable standards of Title 8 (Water conservation and Plumbing
Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water
Department. Each of the units within the mixed -use building shall have individual water
meters.
Section 14: Sanitation District Requirements
The following comments and requirements are based on the July 8`h, 2010, Development
Review Committee meeting. ACSD can comment in greater detail once detailed plans
have been submitted to the District.
1. Service is contingent upon compliance with the District's rules, regulations, and
specifications, which are on file at the District office.
2. ACSD will review the approved Drainage plans to assure that clear water connections
(roof, foundation, perimeter, patio drains) are not connected to the sanitary sewer
system.
3. On -site utility plans require approval by ACSD.
4. Oil and Grease interceptors (NOT traps) are required for all food processing
establishment. Locations of food processing shall be identified prior to building
permit.
Ordinance No. 16, Series of 2010 Page 14
5. Oil and Sand separators are required for parking garages and vehicle maintenance
establishments.
6. Driveway entrance drains must drain to drywells.
7. Elevator shafts drains must flow thru o/s interceptor
8. Old service lines must be excavated and abandoned at the main sanitary sewer line
according to specific ACSD requirements.
9. Below grade development may require installation of a pumping system.
10. One tap is allowed for each building. Shared service line agreements may be required
where more than one unit is served by a single service line.
11. Permanent improvements are prohibited in sewer easements or right of ways.
Landscaping plans will require approval by ACSD where soft and hard landscaping
may impact public ROW or easements to be dedicated to the district.
12. All ACSD fees must be paid prior to the issuance of a building permit. Peg in our
office can develop an estimate for this project once detailed plans have been made
available to the district.
13. Where additional development would produce flows that would exceed the planned
reserve capacity of the existing system (collection system and or treatment system) an
additional proportionate fee will be assessed to eliminate the downstream collection
system or treatment capacity constraint. Additional proportionate fees would be
collected over time from all development in the area of concern in order to fund the
improvements needed.
14. Where additional development would produce flows that would overwhelm the
planned capacity of the existing collection system and or treatment facility, the
development will be assessed fees to cover the costs of replacing the entire portion of
the system that would be overwhelmed. The District would fund the costs of
constructing reserve capacity in the area of concern (only for the material cost
difference for larger line).
15. Glycol heating and snow melt systems must be designed to prohibit and discharge of
glycol to any portion of the public and private sanitary sewer system. The glycol
storage areas must have approved containment facilities.
16. The applicant will be required to fund a proportionate share of approximately 300 feet
of the main line replacement of the existing sanitary sewer system in the alley from
Spring St. to Hunter St to serve this project. Allocation of this expense between Lot 1
and Lot 2 shall be specified in the MDA.
17. Soil Nails are not allowed in the public ROW above ASCD main sewer lines and
within 3 feet vertically below an ACSD main sewer line.
18. Applicant's civil engineer will be required to submit existing and proposed flow
calculations.
Ordinance No. 16, Series of 2010 Page 15
Section 15: Parks Department Requirements
1. Landscaping in the public right of way is subject to landscaping in the ROW
requirements, Chapter 21.20. There shall be no plantings within the City ROW which
are not approved first by the City Parks Department. Building permit plans shall
show compliance with these requirements by way of new street trees, irrigation, and
locations, tree trench preparation and designs are subject to approval from the City
Forester, 920-5120. A plan is required for review and approval.
2. Right-of-way requirements require adequate irrigation pressure and coverage, if a
system is not in place one will need to be added.
3. An approved tree removal permit will be required before any demolition or access
infrastructure work takes place. Please contact the City Forester at 920-5120.
4. Tree protection fences must be in place and inspected by the City Forester, 920-5120,
before any construction activities commence. Tree protection fencing will be
required on the West and South sides of the property line.
5. No excavation, storage of materials, storage of construction backfill, and storage of
equipment, foot or vehicle traffic allowed outside of the tree protection fencing.
There should be a location and standard for this fencing denoted on the plan.
Section 16: Exterior Li¢htin¢ Requirements
All exterior lighting shall meet the requirements of the City's Outdoor Lighting Code
pursuant to Land Use Code Section 26.575.150, Outdoor Lighting. Requirements for
individual fixture type, configuration, and performance shall be met. However, fagade
design and materials (such as translucent or transparent materials), and lighting effects
for exterior and/or exhibit spaces, may be proposed subject to review by the Community
Development Director for compliance with the intent of Section 26.575.150 to avoid light
pollution and adverse impacts on other properties.
Section 17: Public Improvements
A Certificate of Occupancy (CO) or a Conditional Certificate of Occupancy (CCO) for
either Lot shall not be issued for that particular Lot until all public improvements as
specified in the Subdivision Agreement for that particular Lot or as may be assigned to
that Lot under the Master Development Agreement have been completed.
The failure of one lot owner to complete public improvements for which it has been
assigned responsibility under the Master Development Agreement shall not prevent the
owner of the other lot from obtaining a certificate of occupancy or a conditional
certificate of occupancy for its respective lot.
Section 18: Project Amendments
Substantive amendments to the project within the period of statutory vested rights shall
be reviewed by the Community Development Director and forwarded to City Council for
Ordinance No. 16, Series of 2010 Page 16
final consideration. Insubstantial amendments as allowed herein or which represent no or
limited change to the character of the project shall be reviewed by the Community
Development Director for final consideration. After the period of statutory vested rights
expires, amendments to the project shall be reviewed according to the procedures of the
Land Use Code, unless otherwise specified herein.
Section 19: Vested Riahts
The development approvals granted herein shall constitute a site -specific development
plan vested for a period of five (5) years from the date of issuance of a development
order. However, any failure to abide by any of the terms and conditions attendant to this
approval shall result in the forfeiture of said vested property rights. Unless otherwise
exempted or extended, failure to properly record all plats and agreements required to be
recorded, as specified herein, shall also result in the forfeiture of said vested property
rights and shall render the development order void within the meaning of Section
26.104.050 (Void permits). Zoning that is not part of the approved site -specific
development plan shall not result in the creation of a vested property right.
No later than fourteen (14) days following final approval of all requisite reviews
necessary to obtain a development order as set forth in this Ordinance, the City Clerk
shall cause to be published in a newspaper of general circulation within the jurisdictional
boundaries of the City of Aspen, a notice advising the general public of the approval of a
site specific development plan and creation of a vested property right pursuant to this
Title. Such notice shall be substantially in the following form:
Notice is hereby given to the general public of the approval of a site
specific development plan, and the creation of a vested property right,
valid for a period of five (5) years, pursuant to the Land Use Code of the
City of Aspen and Title 24, Article 68, Colorado Revised Statutes,
pertaining to the following described property: Lots 1 and 2 of the Aspen
Art Museum Subdivision.
Nothing in this approval shall exempt the development order from subsequent reviews
and approvals required by this approval of the general rules, regulations and ordinances
or the City of Aspen provided that such reviews and approvals are not inconsistent with
this approval.
The approval granted hereby shall be subject to all rights of referendum and judicial
review; the period of time permitted by law for the exercise of such rights shall not begin
to run until the date of publication of the notice of final development approval as required
under Section 26.304.070(A). The rights of referendum shall be limited as set forth in the
Colorado Constitution and the Aspen Home Rule Charter.
Ordinance No. 16, Series of 2010 Page 17
Section 20: Condominiumization Approved
Condominiumization of units, including the parking spaces to be provided in the Mixed -
Use Building, to define separate ownership interests within either Lot of the Subdivision
is hereby approved by the City of Aspen, subject to recordation of a condominiumization
plat in compliance with the current (at the time of condo plat submission) plat
requirements of the City's Community Development Department.
Section 21:
This ordinance is conditioned upon approval of the proposed Conditional Settlement
Agreement (scheduled for the same hearing date). All of the conditions and agreements set
forth in the Conditional Settlement Agreement are incorporated herein in full by this
reference.
Section 22:
All material representations and commitments made by the Applicant pursuant to the
development proposal approvals as herein awarded, whether in public hearing or
documentation presented before the City Council, are hereby incorporated in such plan
development approvals and the same shall be complied with as if fully set forth herein,
unless amended by an authorized entity.
Section 23:
This ordinance shall not affect any existing litigation and shall not operate as an abatement
of any action or proceeding now pending under or by virtue of the ordinances repealed or
amended as herein provided, and the same shall be conducted and concluded under such
prior ordinances.
Section 24:
If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the
validity of the remaining portions thereof.
Section 25: Public Hearing A public hearing on this Ordinance was held on the 2°d day of
August 2010 in the City Council Chambers; 130 South Galena Street; Aspen, Colorado.
[signatures on following page]
Ordinance No. 16, Series of 2010 Page 18
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City
Council of the City of Aspen on the 12s' day of July, 2010.
Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
FINALLY, adopted, passed and approved this day of 2010.
Michael C. Ireland, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
Approved as to form:
John Worcester, City Attorney
Exhibit A: Architectural plans and renderings dated July 30, 2010.
Ordinance No. 16, Series of 2010 Page 19
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RESOLUTION NO. _
Series of 2010
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AUTHORIZING THE CITY MANAGER TO EXECUTE A CONDITIONAL SETTLEMENT
AGREEMENT BETWEEN THE CITY OF ASPEN AND 633 SPRING 11 LLC
WHEREAS, there has been presented to the Aspen City Council a certain Conditional
Settlement Agreement a copy of which is appended hereto as Exhibit A; and
WHEREAS the said Conditional Settlement Agreement purports to compromise and settle
a lawsuit currently pending on appeal before the Colorado Court of Appeals (Case No. 09CA1382);
and
WHEREAS, the City Council desires to settle the litigation on the terms and conditions set
forth in said Conditional Settlement Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT
The City Council approves the terms and conditions for compromising and settling that
certain court case currently pending before the Colorado Court of Appeals (Case no. 09CA1382)
between the City of Aspen and 633 Spring 11 LLC as set forth in the Conditional Settlement
Agreement appended hereto as Exhibit A and hereby authorize the City Manager to execute the
same on behalf of the City of Aspen.
Dated: .2010.
Michael C. Ireland, Mayor
1
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held 12010.
Kathryn S. Koch, City Clerk
2
CONDITIONAL SETTLEMENT AGREEMENT
This Conditional Settlement Agreement dated July _, 2010, is
entered into by and among (1) the City of Aspen (the "City") and (2) 633
Spring II LLC, a Colorado limited liability company ("633 Spring"). The
parties to this Conditional Settlement Agreement shall be collectively
referred to as the "Parties" or individually as a "Party."
I. RECITALS
1. On March 3, 2008, the City adopted Ordinance No. 29
(Series of 2008), in which the City denied the request of 633 Spring to
subdivide a proposed redeveloped building at 307 South Spring Street
and 625 East Hyman Avenue, Lot D-I, City and Town of Aspen (the
"Property") into separate condominium interests.
2. On March 31, 2008, the 633 Spring filed a C.R.C.P. 106(a)(4)
Complaint in Pitkin County District Court (Case No. 08CV49) seeking
judicial review of the adoption of Ordinance No. 29 (Series of 2008)
alleging that the City exceeded its jurisdiction and abused its discretion
in denying the request of 633 Spring Owners to subdivide the proposed
redeveloped building at 633 Spring Street into separate condominium
interests (the "C.R.C.P. 106(a)(4) Trial Court Appeal").
3. In its Answer, the City denied that it abused its discretion or
exceeded its jurisdiction in adopting Ordinance No. 29 (Series of 2008).
4. On June 3, 2009, the Pitkin County District Court denied
Plaintiff's appeal of City Council's denial of the subdivision request of
633 Spring Street in the C.R.C.P. 106(a)(4) Trial Court Appeal.
5. On July 1, 2009, 633 Spring Street filed a Notice of Appeal in
the Colorado Court of Appeals Case No. 09CA1382 (the "C.R.C.P.
106(a)(4) Court of Appeals Appeal"), which is currently pending.
6. The Parties have determined to compromise and settle the
the C.R.C.P. 106(a)(4) Court of Appeals Appeal in an amicable manner
1
540612-2
according to the terms described in this Conditional Settlement
Agreement.
7. Each Party has determined that this Conditional Settlement
Agreement is fair to all Parties and that it is in each Party's mutual
interest that it become a binding agreement.
II. CONDITIONAL SETTLEMENT AGREEMENT
Condition Precedent
1. Condition Precedent to the Enforceability of This
Conditional Settlement Agreement. This Conditional Settlement
Agreement shall become a binding settlement agreement only if the
City Council approves an ordinance approving the request by 633
Spring to subdivide the Property at 633 Spring into two separate
subdivision lots in the form of ordinance attached hereto as Exhibit A
following all required public notices and hearings (the "Condition
Precedent"). If the Condition Precedent is satisfied, this Conditional
Settlement Agreement shall automatically become a binding settlement
agreement for all purposes. If the condition precedent is not satisfied,
however, this Conditional Settlement Agreement shall be null and void
for all purposes.
Terms
1. Mutual Right to Terminate the Settlement Agreement.
Either Party shall have the right to terminate the Settlement
Agreement if any person files an appeal, petition for referendum,
petition for initiative or any other pleadings, petitions or filings
appealing or otherwise challenging the adoption of the Ordinance
attached hereto as Exhibit A within 45 days after the adoption of the
Ordinance. The exercise of each party's right to terminate the
Settlement Agreement must be exercised within 55 days of the
satisfaction of the Condition Precedent (the "Right -to -Terminate
Period"). After expiration of the Right -to -Terminate Period, neither
Party shall have the right to terminate the Settlement Agreement and
shall be bound by its terms and conditions.
2
540612-2
2. Exercise of Right to Terminate. Any exercise of each Party's
right to terminate within the Right -to -Terminate Period shall be in
writing and may be personally delivered, given by facsimile
transmission, given by e-mail, given by overnight courier or given by
United States certified mail, return receipt requested, at the following
addresses.
Any notice to the City of Aspen shall be given to Steve
Barwick, City Manager, 130 South Galena Street, Aspen, CO 81611,
with a copy to John Worcester, 130 South Galena Street, Aspen, CO
81611.
Any notice to 633 Spring Street shall be given to Nikos
Hecht, Aspen Advisors LLC, 314 South Galena Street, Suite 3, Aspen,
CO 81611, with a copy to Andrew V. Hecht, Esquire, Garfield & Hecht,
601 East Hyman Avenue, Aspen, CO 81611.
3. Dismissal of Court of Appeals Appeal. If the Condition
Precedent is satisfied, the Parties agree to take all necessary steps and
to file all necessary pleadings to dismiss with prejudice the C.R.C.P.
106(a)(4) Appeal within 60 days of the date of the satisfaction of the
Condition Precedent, each Party to pay its own costs and attorney fees.
4. In the event of any dispute relating to this Conditional
Settlement Agreement, including any dispute regarding the
enforceability of the Conditional Settlement Agreement as a final
binding agreement, the prevailing Party shall be entitled to recover its
attorney fees and costs.
5. This Conditional Settlement Agreement may be executed in
one or more counterparts, each of which shall be deemed an original but
all of which, together, shall constitute one and the same Conditional
Settlement Agreement.
6. The undersigned have carefully read the above and foregoing
Conditional Settlement Agreement, know the contents thereof, and
3
540612-2
have signed the same on behalf of each of the Parties, after having first
had the benefit of legal counsel.
City of Aspen
By
Steve Barwick, City Manager
633 Spring Street II LLC
4
540612-2
PLEASE
MAKE
THIS A
PART OF
THE RECORD
B/LL WIENER
Aug. 2, 2010
ASPEN
COUNCIL
MEETING
The Depot @ Wienerstube (endof a railroad)
Building Issues
B-1. Is roof access to the public open space amenity open 24/7. Yes / No
B-2. Solar won't work as shown, as it is not perpendicular to sun.
Could a saw tooth clearstory work better. Explain
B-3 The building is too high @ 47 feet, too massive.
a) Out of scale for our community.
b) Blocks winter sun resulting in dangerous icy
sidewalks.
c) Blocks view to mountains
d) Destroys identity of who / what we are —
a mountain town.
NOTE: e) Can reduce height by more underground.
It is inappropriate to include the excess height as a part of Ordinance 16.
page 20. Not only is this contrary to normal practices, it removes the
incentive to make the building lower, which can be done. BAD MOVE.
B-4. Energy hog — Study this
B-5. Service won't work at as shown. Large trucks cannot back into the
loading area from the alley. So trucks will park on the street.
B-6. Drawings lack critical details.
Are there AC condensers as a museums need dehumidifiers
Are all elevators hydraulic? Roof sections? Need 1/8" drawings.
B-7. Screen:
Actually this makes the building appear larger.
It will become a pigeon roost, with white streaks.
B-8. Canted corner — There is a birds eye perspective showing the corner
canted from the bottom. This is not shown on any other drawings.
TOO BAD as this is a reflection of our mountains, softens the
impact of a building that is too massive, and also opens up the
space at the corner.
B-9. What if this was a Neiman Marcus store. Would you allow it to be so
massive? So tall? Would parking be required? Would fees be omitted?
B-10. Consider the community impact of a building, not who the owner the
might be.
Summary of Required Actions Prior to Voting
s-1 Shadow study — tall buildings cast long shadows.
Winter shadows: Dec — Jan — Feb — Mar @ 10:00 — Noon — 3:oo pm
S-2 Snow melt — where and how. Energy consumed for this?
Photovoltaic — Roof deck — 10' space — Sidewalks (across street to?)
S-3 Energy calculations. A hog?
This must be done prior to any approval.
s-4 Soil Borings to below sub -basement level.
This must be done prior to any approval.
S-5 Truck Service to building.
Won't work as shown — Will have to park on street to unload.
S-6 Pigeon problems. — The screen surrounding the building will
become a pigeon roost and possibly a place for other birds nest.
S-7 Neiman Marcus — Would a building this big be allowed for them?
S-8 Cost to tax payer — What's the total dollar value of all of the fee
reductions or fee omissions? Need both capitol and annual cost.
S-9 Metrics — Need a full comparison of the dimensional numbers and
areas for these building vs. the one council rejected for this site.
s-10 Politics vs professionalism — It is obvious that someone at
city hall from the 2"d floor indicated to someone on the third floor to
make it work. As the Memorandum is greatly flawed, an outside
impartial review of Memorandum is needed to shed truth and light.
Code Violation
Despite what the Memorandum might indicate, this is a building that
exceeds the code height limits. The extra 5 feet is for only non -
habitable use (like mechanical). This proposal use of the 5 foot space
as enclosed habitable space for: Kitchen — Dining — Storage — Toilets, is
a clear code violation that must go through P&Z. It is nothing but an
additional enclosed area. This is not about averages, but about max.
Required Actions Needed Prior to Voting
MIDIGATION OF ISSUES
M-1 Building too Tall — Museum don't need windows in all galleries.
a) Therefore, constructing a sub basement below the planned
basement would reduce the building height by a full story and
provide more gallery space.
b) As there is no basement planned under the proposed adjoining
building, why not acquire rights and use this space as a gallery.
This would eliminate a floor, resulting in a lower AAM building.
M-2 Open Space at Corner — One of the birds eye perspective
shows the corner canted. This was good for the community as it:
1) Relates the building form to the mountains.
2) Let's more winter sun into the intersection.
3) Softens this oversized building's community impact.
4) Bring it back.
M-3 Bird Droppings — the screen surrounding the building will become
a pigeon roost and possibly a place for nest of other birds.
Note: pigeon droppings carry histoplasmosis, & cryptococcosis
There are two ways to eliminate this health hazard:
1) Add those sharp vertical wires in each space (pigeon kabobs).
2) Eliminate the screen, unfortunately, this has been oversold.
M-4 Snow melt — where and how. A study of alternatives with capitol
cost and annual energy consumption for operations must be made.
Photovoltaic — Roof deck — 10' space — Sidewalks (across street to?)
M-5 Energy Calculations. — For this hog
This must be done prior to any approval. A building that has less height
and more below ground would require much less energy. A study of
alternatives with capitol cost and annual energy consumption for
operations must be made in order to make an informed decision.
M-6 Soil Borings — Drilled to below sub -basement level. This will
determine if there are any problems in going deeper. This must be
done prior to any approval.
M-7 Politics vs Professionalism — As the Memorandum from the
third floor is greatly flawed, an outside impartial review of this must be
done, prior to being able to make an informed decision.
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TROJAN HORSE MUSEUM APPROVED
Dear City Council,
I agree with Andy Stone, it appears a Trojan Horse in the
form of the proposed Aspen Art Museum is upon us ---- but it
has already been approved without any of the normal
process of public review. I don't understand Council's
reasoning for the following:
How does the City Council reconcile their claim to want to
reduce traffic and congestion in downtown Aspen —then
approve a huge monolithic museum in the center of town?
How does City Council justify truck deliveries and unloading
in the commercial center of town? Did anyone ask Sandy's
Office Supply if they're willing to sacrifice customer parking?
How does the City Council reconcile their claim to want to
follow a Community Plan —then decide to break the law by
abandoning the standard procedures for building approval
by claiming it's more expedient NOT to follow the rules?
How can Council not understand truncating the normal
review process is a terrible precedent to set?
How can Council not accept that one public review can be
tainted and manipulated which is why a full public review
(three readings) is established as being required?
How does City Council justify wanting to maintain the charm
of Victorian Aspen in the West End on the one hand ---then
approve the height, mass and design of this monstrosity in
the center of town on the other hand?
How does the City Council justify their decision to approve a
47 foot high building when common sense dictates that a 47
foot building will cast long shadows that prevent sun from
melting snow and ice —thus risking broken bones from
pedestrians falling on the north side of the building as well as
auto accidents from the ice on the street?
How can the City Council subscribe to the Canary Initiative ---
then approve an inefficient energy hog?
How can City Council subject other developers to never-
ending analysis of code requirements ---then in one meeting,
dismiss code violations as being expedient?
The Trojan Horse Art Museum has brought a double
standard into our midst ---that does NOT bring with it a
community benefit as it has been approved by Council.
Go back to the drawing board or back to Rio Grande Park.
Susan O'Neal
Aspen