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HomeMy WebLinkAboutLand Use Case.601 Rio Grande Pl.0076.2009.ASLUTHE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER PARCEL ID NUMBER PROJECTS ADDRESS PLANNER CASE DESCRIPTION REPRESENTATIVE DATE OF FINAL ACTION 0076.2009.ASLU 2737 707 305 089 601 RIO GRANDE PLACE JENNIFER PHELAN APPEAL FOR VACANT COMM SPACE KENT KLEPPINGER 11.10.09 CLOSED BY ANGELA SCOREY ON 4.2.10 ~~ 3~ - 07 ~ -- oa a ~ ~ Edit Record Navigate Form Reports Format Tab Help vo 7~ • 2ao 9~ ~ SLR 1 4 'ermit Type aslu Aspen Land Use Permit # ~0076,2009,ASLU Address 601 RIO GRANDE PL J AptJSuite City ASPEN State CO Zip 8161- . _ _..__..J Permit Information -1 Masker Permit j ~ Routing Queue aslu07 Applied ~11J10J2009 Project I ~i Status pending Approved ~ J Description ~ ESJi~'+fi' FOR VACANT COMMERICAL SPACE IN OBERMEYER PLACE Iswed ~ ~~ Final f-.~ Submikted KENT KLEPPINGER 948 6547 Clock Running pays 0 Expires X11 JOSJ2010 Last Name IOBERMEYER PLACE ~ Fast Name Phone ((970)925-2866 510 E HYMAN AVE ALL SUITES ASPEN CO 8161 I Ir Owner Is Applcant? Applicant ~ --~ Last Name ~OBERMEYER PLACE ~ First Name 510 E HYMAN AVE ALL SUITES Phone i(970) 925-2866 Cust # 12 15 52 ~ ~ ASPEN CO 81611 Lender -- ---~-~-- Last Name j I First Name ~~, Phone ____._ - -- =r the main line of the permit address AspenGold(bj Record: 1 of 1 ~~340_ ~°~~ Zo21ao5oo~ ~ C ~- G~ ~ ~ '"'* 73s~ .~ „ ~. ~ a6~a ~ v-- ~~~ ~ ~~`~ `:, rte/ ~Q ~~~~ r\ ~es~r,\o`~ \~n~ ~" ~ .... ~" RESOLUTION N0. ~/ (SERIES OF 2010) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING PERMITTED USES IN THE SERVICE/COMMERCIAL/INDUSTRIAL (S/C/I) ZONE DISTRICT WHEREAS, the Community Development Director received a request for an interpretation of the Land Use Code regarding permitted uses in the Service/Commercial/ Industrial (S/C/I) zone; and, WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered a decision and the owner sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding ofjurisdiction, or abuse of authority iri rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and oral argument from Kent Kleppinger, the appellant, and the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's Interpretation of the Land Use Code regazding permitted uses within the S/C/1 zone. This Resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding naw 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. I f any section, subsection, sentence, clause, phrase, or portion of this Resolution 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. / APPROVED by the Aspen City Council at its regulaz meeting ori~ ~L , 2010. ATT ST: Kathryn S och, City Clcrk APPROVED AS TO FORM: o uTi Vnorcesiei, City Attorney Michael C. Ireland, Mayo Resolution No.--, Series of 2010. Page I .-- Regular Meeting Aspen Citv Conncil January 11, 2010 Councilman Johnson stated this is an important comer for the community and he would like to see this worked out. Councilman Skadron noted one of the public reminded everyone that the feel of the community is key to why people live and visit. Councilman Skadron said the current building has warmth and charm and this is lacking in the proposed building. Councilman Skadron said he needs to be comfortable that criteria in the AACP is being met, like how this proposed subdivision affects future development of the surrounding azeas. Councilman Skadron said he is not quite willing to let go of the beauty of the existing site. Mayor Ireland said the proposed completion bond does not give a source of income revenue to deconstruction or to finish the project Mayor Ireland said this agreement gives the general contractor the ability to specify that amount. Mayor Ireland said he does not want the community stuck with ahalf--built building at this location. Mayor Ireland stated he is concerned about the allowable 80 decibels in downtown and suggested Council do an inspection and listen to what 80 decibels is like. Mayor Ireland agreed if this is approved, a special construction schedule that protects the vitality of downtown is imperative. Mayor Ireland noted construction pazking all around this site will be detrimental to downtown businesses. Mayor Ireland suggested all the construction vehicles be registered and the city can use the license plate recognition program. Mayor Ireland stated his biggest concern about the project is the conversion to residential uses which put a damper on the use of the space and the downtown core becomes less active. Mayor Ireland agreed the pit is dead, non-usable space and likes the alternative pedestrian amenity. Councilman Torre moved to continue Ordinance #28, Series of 2009, to January 25, 2010; seconded by Mayor Ireland. Al] in favor, motion carved. RESOLUTION #6, SERIES OF 2010 -Code Interpretation Appeal Permitted uses in S/C/I zone Jennifer Phelan, community development department, told Council this is an appeal of an interpretation issued by the community development department regarding permitted uses in the S/C/I zone. Ms. Phelan said the land use code cannot predict every type of use that may occur; however, new uses need to meet the purpose and intent of the zone district. Ms. Phelan told Council when a new use is proposed, an applicant requests a code interpretation to determine if the proposed use is appropriate in that zone. Ms. Phelan said this applicant asked whether the growing of medical marijuana could be permitted in the S/Cll. Staff determined that the proposed use is crop production and an agricultural use and not permitted in a light industrial/manufacturing zone, which determination the applicant has appealed to Council. Ms. Phelan reminded Council in an appeal, they are authorized to hear the appeal established by the record. Staffls determination shall not be reversed or modified unless 16 ',.. Re¢ular Meedna Asuen Citv Council January 11, 2010 Mayor Ireland noted this argument would allow Council to interpret the district to define this as other than agricultural. Mayor Ireland stated in an appeal, the applicant has a burden to prove that not allowing that interpretation is an abuse of discretion. Mayor Ireland noted marijuana has been grown as a crop in this country. Mayor Ireland stated the applicant has argued to the spirit of the zone district; however, the applicant has to show there is no basis for the staff's azgument. Mayor Ireland said Council should wait to see what amendments will come out of this session of the state legislatwe before the city code is amended. Mayor Ireland said the applicant has not shown this is not a crop. Lauren Maytin, representing cannas businesses, stated there may have been an abuse of discretion to look at this as a crop and as an illegal drug. Ms. Maytin said this is manufacturing of medicine. Ms. Maytin said marijuana as medicine is not a crop; it is a pharmaceutical industrial production, which is more scientific and requiring hands on attention for the manufacture of medicine. Mayor Ireland said no proof has been offered that there was an abuse of discretion in the manner in which the staff rendered their opinion. Councilman Romero stated there is no issue with jurisdiction or due process; the question is abuse of discretion. The applicant has presented an alternate view but that does not prove staff s view was an abuse of discretion. Mayor Ireland moved to adopt Resolution #6, Series of 2010, affirming the decision of the community development director; seconded by Councilman Iohnson. All in favor, motion carried. Councilman Torre moved to adjourn at 10 p.m.; seconded by Councilman Johnson. All in favor, motion carried. 18 r°'^ ' ~. I MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: John Worcester, City Attorney THROUGH: Chris Bendon, Community Development Director / /A~ FROM: Jennifer Phelan, Deputy Planning Director ll~~ RE: Appeal of Land Use Code Interpretation -Permitted Uses in the Service/ CommerciaVlndustrial zone district DATE: January 11, 2010 APPLICANT: Kent Kepplinger LOCATION: The Service/Commercial/ Industrial (S/C/I) zone district. SUMMARY: The Applicant is appealing an interpretation issued by the Community Development Director. STAFF RECOMMENDATION: Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. Figure 1: Vicinity Map of "S/C/I zone district" 1 .~ SUMMARY: One of the jobs assigned to the Community Development Director is to provide interpretations of the text of the City's Land Use Code. This is a formal process in which an applicant requests a written interpretation and, if they don't agree with the interpretation, affords the applicant the right to appeal the decision to the City Council. Section 26.316.030 of the Aspen Land Use Code sets forth the applicable standazd of review that Council should follow in these matters and the actions available to Council following the heazing on the appeal. BACKGROUND: In this case, the interpretation rendered by the Director discusses whether the growing of medical marijuana is allowed in the Service/Commercial/Industrial (S/C/I) zone district as a permitted or conditional use. The interpretation request arose after the Applicant met with Community Development staff and was advised that the growing of medical marijuana is not a permitted or conditional use within the S/C/I zone district. As noted in the interpretation, it is staffs interpretation that the commercial growing of any agricultural product, including medical mazijuana, is classified as an Agricultural Use. An Agricultural Use is defined in the city's land use code as "the use of land and buildings for the production of crops, animals, animal products and the keeping of livestock including riding stables, azenas, orchards, nurseries, flower production, dairy operations, fisheries, animal husbandry services or similaz uses." Under Agricultural Use, the words crop, nursery and orchazd are used. Although not defined in the land use code, all of these words aze associated with flora that is grown or planted. The commercial production (or growing) of medical marijuana, is crop production and is considered an Agricultural Use that is not a permitted use in the S/C/I zone district. Although the applicant states that the S/C/I space would be used as a "commercial medicinal marijuana manufacturing facility," the proposed use does not include a manufacturing component but is agricultural in nature. Whether hydroponically grown tomatoes or medicinal marijuana, both aze a form of crop production. STANDARD OF REVIEW: Section 26.316.030(E) reads as follows: Standazd of review. Unless otherwise specifically stated in this title, the decision- making body authorized to heaz the appeal [City Council] shall decide the appeal based solely upon the record established by the body from which the appeal is taken [Community Development Director]. A decision or determination shall not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. 2 .~.. The Land Use Code does not define the teens: "a denial of due process", "exceeded its jurisdiction," or "abused its discretion." Court cases, however, have helped define these terms as follows and may be used by Council in its deliberation of the appeal: A denial of due process may be found if some procedural irregularity is determined to have occurred that affected a significant right of the appellant, or the administrative body otherwise acted in violation of the appellant's constitutional or statutory rights. Ad Hoc Executive Committee of Medical Staff of Memorial Hospital v Runyan, 716 P. 2d 465 (Colo. 1986.) A decision may be considered to be an abuse of discretion if the "decision of the administrative body is so devoid of evidentiary support that it can only be explained as an azbitrary and capricious exercise of authority." Ross v Fire and Police Pension Ass'n., 713 P.2d 1304 (Colo. 1986); Marker v Colorado Springs, 336 P.2d 305 (Colo. 1959). A decision may be considered to be in excess of jurisdiction if the decision being appealed from "is grounded in a misconstruction or misapplication of the law," City of Colorado Springs v Givan, 897 P.2d 753 (Colo. 1995); or, the decision being appealed from was not within the authority of the administrative body to make. City of Colorado Springs v SecureCare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000). STAFF COMMENT: 1. Due Process -The applicant has met with staff to discuss what uses aze permitted within the SCI zone district. The Applicant then requested a formal interpretation to determined if medical marijuana could be grown in the SCI zone district. Once written, an Interpretation provides the opportunity for a party to appeal the findings. Certain timeframes affect when interpretations must be provided after a request and when appeals need to be scheduled. Those timeframes have been met. As required by the Land Use Code, the appellant was provided notice of tonight's meeting via registered mail and all other affected parties were noticed by publication in the newspaper, as required. (Please see Exhibit D). Assuming tonight's meeting does not contain any procedural flaws, staff believes that proper procedural due process has been provided. In providing an interpretation, the Director relied on the facts presented and the language within the Land Use Code. Definitions within the code such as "Agricultural Use" and the purpose of the zone district were used in evaluating whether the growing of medical marijuana could be considered a permitted or conditional use in the zone district. Additionally, although "manufacture" and "crop" aze not defined in the Land Use Code, staff applied the common definition of the words in evaluating the code language and rendering an interpretation. Staffs interpretation was not arbitrary and provided substantive due process. 2. Discretion -With respect to abuse of the Director's discretion, the Director did need to use his discretion in rendering the interpretation. The question is whether the Director 3 r ~.~- abused that discretion. The Director is required to interpret specific text of the code to provide explanation and clarity. In rendering an interpretation, the Director considered adopted definitions in the land use code, common definitions if not defined in the Land Use code and the purpose clause of the S/C/I zone district to structure the interpretation. Staff tends to approach these sorts of tasks with a very pragmatic and realistic administration of development limitations. The Land Use Code does not predict every type of circumstance. Staff considers the text of the code as well as the effects that would be expected with different interpretations. The Director believes that his discretion was applied appropriately and the Interpretation was rendered ethically. 3. Jurisdiction -The Director's jurisdiction to interpret the Land Use Code is established in Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the jurisdiction, authority, and duties allocated to the Community Development Director. One of the Director's duties outlined in the Chapter reads: "To render interpretations of this Title or the boundaries of the Official Zone District Map pursuant to Chapter 26.306. " Staff believes this language is cleaz and it does not appeaz that the applicant is questioning this provision of the code. CODE INTERPRETATION AND CODE AMENDMENT: The question in a code interpretation is what does the code say? On occasion, applicants seek a code interpretation because they believe the code should say something else. The code amendment process is the proper venue for the question what should the code say? ACTIONS BY COUNCIL FOLLOWING APPEAL HEARING: Section 26.316.030(F) reads as follows: Action by the decision-making body heazinQ the appeal. The decision-making body heazing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, if the decision is modified, shall be deemed to have all the powers of the officer, board or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision shall be approved by resolution. All appeals shall be public meetings. TWO RESOLUTIONS: Attached are two Resolutions. One finds that the Director acted correctly and affirms the interpretation. The second finds that the Director exceeded his jurisdiction, abused his authority, or failed to provide due process and reverses the interpretation. RECOMMENDATION: Staff believes the Director's interpretation was rendered ethically and that no abuse of authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold the Director's interpretation by adopting the proposed Resolution affirming the interpretation. 4 ~~ .~. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all mOti017S ust be made in the positive) "I move to approve Resolution No. ~, Series of 2009, [affirming or reversing] the Community Development Director's interpretation of the Land Use Code regazding permitted uses is the S/C/I zone district. ATTACHMENTS: - Exhibit A -Interpretation dated October 29, 2009 and Interpretation request Exhibit B -Appeal application Exhibit C -Land Use Code Section Regazding Appeals Exhibit D -Affidavit of notice ~/? \ /~ ~` ~ RESOLUTION N0. ~/ (SERIES OF 2010) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING PERMITTED USES IN THE SERVICE/COMMERCIAL/INDUSTRIAL (S/C/I) ZONE DISTRICT WHEREAS, the Community Development Director received a request for an interpretation of the Land Use Code regarding permitted uses in the Service/Commercial/ Industrial (S/C/I) zone; and, WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered a decision and the owner sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority iri rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and oral azgument from Kent Kleppinger, the appellant, and the Community Development Director, and has found that the Director provided due process and neither exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's Interpretation of the Land Use Code regarding permitted uses within the S/C/I zone. This Resolution 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. If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a sepazate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED by the Aspen City Council at its regular meeting on , 2010. ATTEST: Kathryn S. Koch, City Clerk APPROVED AS TO FORM: John Worcester, City Attorney Michael C. Ireland, Mayor Resolution No.--, Series of 2010. Page 1 ,~ .. ~,, RESOLUTION N0. (SERIES OF 2010) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING PERMITTED USES IN THE SERVICE/COMMERCIAL/INDUSTRIAL (S/C/I) ZONE DISTRICT WHEREAS, the Community Development Director received a request for an interpretation of the Land Use Code regarding permitted uses in the Service/Commercial/ Industrial (S/C/I) zone; and, WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the Interpretation of the Director or modify or reverse the Interpretation upon a finding that there was a denial of due process, exceeding of jurisdiction, or abuse of authority in rendering the interpretation; and, WHEREAS, the City Council has taken and considered written and verbal testimony from Attorney David McConaughy representing the appellant, the Community Development Director, and has found that the Director did not provide due process or either exceeded his jurisdiction or abused his authority in rendering the Interpretation; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfaze. NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community Development Director's Interpretation regarding permitted uses within the S/C/I zone district of the Land Use Code. 1) The growing of medical marijuana is not considered an Agricultural Use but rather a form of manufacturing and can be considered a permitted use within the S/C/I zone district. This Resolution 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. If any section, subsection, sentence, clause, phrase, or portion of this Resolution 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. APPROVED by the Aspen City Council at its regulaz meeting on , 2010. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor Resolution No. ,Series of 2010. Page 1 r_~, ~...,. APPROVED AS TO FORM: John Worcester, City Attorney ,, Resolution No. ,Series of 2010. Page 2 ,~ . .~ ~~~~ ~y CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT INTERPRETATION NRISDICTION: APPLICABLE CODE SECTIONS: EFFECTIVE DATE: WRITTEN BY: APPROVED BY: City of Aspen 26.710.160 October 29, 2009 Jennifer Phelan, Deputy Director Chris Bendon, Community Development Director COPIES TO: John Worcester, City Attorney Planning Staff SUMMARY This Interpretation is being issued in response to an inquiry submitted by Kent Kleppinger with regard to whether the production of medical marijuana is a permitted use in the Service/Commercial/Industrial (S/C/I) zone district. BACKGROUND The S/C/I zone district's stated purpose as outlined in section 26.710.160 A., Purpose, "is to preserve and enhance locally-serving, primazily non-retail small businesses....to protect the few remaining such small business pazks historically used for light industrial uses, manufacturing, repair, storage and servicing of consumer goods..." The zone district permits uses that include the manufacturing, repair, customizing, and servicing of consumer goods such as household appliances, automobiles, dry cleaning establishments, and commercial kitchens. Although the land use code does not have a definition for manufacture, Black's Law Dictionary (Exhibit A) defines manufacture as "the processor operation of wares or any material produced by hands, by machinery or by other agency; anything made from raw materials by the hand, by machinery or by art." INTERPRETATION The applicant notes in his interpretation request (Exhibit B) that the product will be manufactured on site and will be sold on a wholesale basis. It also states that equipment, such as commercial fans and water pumps, being industrial in nature and necessary to the production of medical mazijuana fit within light industrial uses. It is staff's interpretation that the commercial production (or growing) of any agricultural product, including medical marijuana, is classified as an Agricultural Use. An Page 1 of 2 r, ~~-AZ Agricultural Use is defined in the city's land use code as "the use of land and buildings for the production of crops, animals, animal products and the keeping of livestock including riding stables, azenas, orchazds, nurseries, flower production, dairy operations, fisheries, animal husbandry services or similaz uses." Under Agricultural Use, the words crop, nursery and orchazd aze used. Although not defined in the land use code, all of these words aze associated with flora that is grown or planted. The commercial production (or growing) of medical marijuana, is crop production and is considered an Agricultural Use that is not a permitted use in the S/C/I zone district. APPEAL OF DECISION As with any Interpretation by the Community Development Director, an applicant has the ability to appeal this decision to the Aspen City Council This can be done in conjunction with a land use request before City Council or as a sepazate agenda item. 26.316.030(A) APPEAL PROCEDURES Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the City office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision or determination. ATTACHMENTS A. Definition of manufacture, Black's Law Dictionary, Fourth Edition B. Interpretation request dated 9/25/09 C. Merriam-Webster online dictionary: definition of crop, nursery, and orchazd Page 2 of 2 ~.f~~8~ti` ~~3 ' ~ a~FAo~osuva UAL. Of, or. pertaining to, the hand or ;; done;-made, or operated by or used with and or hands: or as manual labor. McErlaln y1or, 20T Ind 240, 192 N.E. 260, 262, 94 A.L.R. - performed by the hand; used or employed e~harid; :held in the hand. UAL DELIVERY. Delivery. of personal '='tY sold, donated mortgaged, etc., by pass. .into the "hand" 02 the purchaser or trafis• that 1s, by an actual .and gorporeal change QAL OD?T. The manual gift, that ; is, the b!'corporeal movable effects, aGrnmpanied ~eal~delivery, is not subject to any formality.- Code I,a. art. 1539. UAL .LABOR. Work done with the hand. v .Ash, 53 Ariz 197, S7 P2d 270, 272.' Labor rmed by hand or by theexercise of physical with or without the aid of tools and of a or other beasts of burden, but depending s effectiveness chiefly : upon personal mus- exertion rather than upon skill, intelligence roitness: .Lew Jim v. U. S.,- C.C.A.CaL, -66 F. .4 C.C.A:~ 281; Martin v. Walfefield, 42 Idinn.- l3 N.W. -966, 6 L.R.A. 362 -~ ~~ QAL..~RATES..-The Oklahoma Inspection m is a private enterprise maintained by the sere companies and 'its ilmction .~ to com- he general basis schedule which sets out the for the risks insured. These rates are com• y, referred to ~as "manual rates.". Commer• standard Ins. Co: v. Ramer, C.C.AOkI, 119 F. i1fANUALIA ~BRA'EFICIA.. -The daily dishibu- 1v " tit meat and drink to the canons and other ust hers of cathedral churches for their Present ni~ .o . ,~ _ 'istence. Cowell .. r~~.. ...~:ALIS OBEDIENTLL Sworn obedience or submission upon oa4h. Cowell t:e81` "~ aepTlo. In old English practice, a writ - wFli'ch lay for a man taken on' suspicion of felony, P' a$Ethe 15ke; who ceuld not be admitted. to bail by -; ~ 8herlff, or others having power to let to main- _;;,_ ;Serg~`. - , ""-`Fitzh.Natffi'ev. 249r ~.: _ •e;1o - 4z~;25: ... ~*'CAPTORS. Same as mainpernors (4• v.l. y - . ACTORY. A physical plant, or a place or i,~tik ding•'where manufacturing is carried on. ~t'wherein ~ electric power was generated.) s-~; ~" 'Power Co. v. Bell, 156 S.C. 299, 152 S.E 565, :=';. ~- Vhat in common understanding is Imowa~as "'"* ~ ' 3 ~ ~ ~ z . . . ry.". -Halpin v. Insurance Co.,23 N.E. 989, ` ~~` . ~ :~N:Y 73..8 L.R.A. 79; 7n re L Rheinstrom 8r L and ':;Co„ D.C.Ky., 207 F. 119, 134. OFACTORE, o. From Latin words lnanus btura, literally, put together by hand. Now ins 'the process of making products by hand chinery. United States v. Anderson, D.C. l5 F.$upp. 943, 946.. -clmary meaning of thlc word ffi "making with the ::but tins de8ainoa is coo narrow for its present veg. &'' 1 Meaning of word "msaufectvre," which L cleaned ea the making of goods or wares b7 manual labor or b7 macbla- sbip mid artyhave adveace4 phthat~aowd ne ly ell artl- 8da1 Dtvducts of hnmea lndactry, nearly all coca materiels u nave acquired ebsaged e~ dttoas ~~ a~ h tnmbinanone, whether from.. devlsede~ d>red~ ty hen4 4om chemical Iurocases human ekal, or b9 the emDlvymeat of machlaerY, are now cnmmody deslgasted u "maaufachse0." ;Mayor and City Causes of Baltimore v. Price, 166 M4 1T4, 17T A 180, 168. Ordinarily does not include buadatg at coas4vetlan of outdoor etrncuses. Morrlson-Snudsaa Co.~ v. State Hoard of FgnallranoA 56 Wyo. 500, ]95 P.RQ BR7, 931, 832 MANLTFACTUSR, x. The Process or operation of making wares or any material Produced by hand, by machinery or~by other agency: anything made 4om raw materials by the hand,. by machinery, or by art, Jones Bros. Co. v. UnderkofHer, D.C.Pa, 16 FSupp. 729, 730.., The production of articles for use from raw or prepared materials tiyglving such materials new forms, qualities, properttes,~or com- binations; whether by hand - labor or machine. Cain's Coffee Co. v. City of ~Muskogee,171 OkL 635, 44 P2d 50, 52 Ia,. patent law, any nsefnl product made dlredly- by human labor, or by the aid of ma^*~^^*~ diredad end con- trolled b7 human power, and eitaer fromraw materiels. or from materiels worked nD tam a new Iorm Also the proceae by whlrh endl produds ere made or fasLlnned. -Turner v. Quincy Market Cold 'Storage & Warehouse Co.. SGI~t, C.C.AOhIo ~ 2 9~F. ~ RT7n9~Rit~Conley Mi6 'Co. i v. Alkea,-C.GAPe., 203 F. 699. 702 - Aa instrument creamd by tae es:ercise of mechsaical forces end designed for the producttoa of merhaNCa3 -el- fects, bet not mpable, when seta ~tlao Q o ~mttelnln L, iP 1ffi own-operanoA m any pre celves 1ffi rule of action 4om tae external source which Inrniahea its motive power. p maRnfachse requires the constant guidance and con- trol of come separate latelagmt .agent; a machine open ~ates ender tae dh-ecMon of that mteaigmce with which it was endowed by 1ffi inventor when be lmpoced oa 1t its structural law. Tae Darts of a machine. considered sep• arately 4om the machine 1ffielf, all kends of tool and tabrla, tad every onus vetidfble substance, which ffi nei- ther a compleffi machine nor Produced by the mere union: of ingredlmb, ffi included under the tine:"manufacture.., Rob.Pat 4162 Domestic nlannfact>Qes• Generally, maaufac- tures within ~a state's jurisdiction. Coen, v. GIIti- nan, 64 Pa 100. MANUFAOPURER. One. who' by labor, art, or skill tlaasforals law material into some kind of a finished product or article of trade. Henry v. Markesan State Bank, C.CA.Mian., 68 F:2d 554, 55Z -~ MANUFACTUSER$ LL4BILITY DOCTSINE- The -foundation for .the .liability is knowledge of the danger attending use of manufaMUred or as- sembled product and negligefce in failing to give appropriate warning, or negligence in failing to• discover and appreciate the danger, and the prolr able consequences that injury will proximately re- sult irom the use of such product for the purposes for which it was intended.- Crane Co: v. Davies„ 242 Ala 570, 8 Sold 196, 199. MANQFACTURINGI. CORPORATION., A corpo- ration engaged in the production of some article, thing, or object, by skill or labor, out of raw ma- ~17 ,°~~ .. To: City of Aspen Community Development Director From: Kent Kleppinger Date: September 25, 2009 Re: Request for Interpretation of Title ,~ , ,~~_~ ~~~ ~x~~~~~ Dear Sir, My name is Kent Kleppinger, I am an Aspen citizen and property owner. I am contracting for the purchase of a parcel in the S/C/I wne district for which I have a specific use in mind. I intend to use the space as a commercial medicinal marijuana manufacturing facility Based on this, I am requesting an interpretation of title under section 26.306.010 of the land use code to confirm the use as one which is permitted in the S/C/I district Section 26.170.160 of the land use code states that the purpose of the S/C/I zone district is to "preserve and enhance locally serving, primarily non retail small business areas to ensure a more balanced permanent community; to protect the few remaining small business parks historically used primarily for light industrial uses, manufacturing, repair, storage and servicing of consumer goods, with limited retail, showroom, or customer reception areas. The S/C/I zone district contains uses that may not be appropriate in other zone districts or do not require or generate high customer traffic volpmes and permits customary accessory uses". Section B Permitted Uses 1) S/C/I uses which may use up to 100% of the floor area for retail sales, showroom, or customer reception include the manufacturing, repair, customizing, servicing, detailing, sales and rental of consumer goods such as: 2) S/C/I uses which may use, in combination, up to 25% of the floor area for accessory retail sales, showroom or customer reception including the manufacturing, repair, alteration, tailoring, and servicing of consumer goods such as, electronic equipment; floral arrangements; fiuniture; clothing; or sporting goods: This use fits within the Service/Commeroial aspect of the zone based on the following. 1 product manufactured at this facility will be sold on a wholesale basis to retailers. 2. The S/C/I zone district was meant for light industrial usage without a retail element. I require no retail element and will generate no traffic in the complex or vicinity. There will be no showroom or customer reception area. I feel that my proposed use meets the light industrial criteria based on the following. 1. The equipment required for systematic production is defined as industrial and includes commercial grade HVAC systems, HID lights and ballasts, fluorescent lights, digital timers, room wntrollers, commercial fans, air pumps, water pumps, humidifiers/de-humidifiers, reverse osmosis systems, CO2 injection systems, carbon filters, water tanks and multiple 55 gallon reservoirs, etc. 2. The provisions in the permitted uses section of the land use code use the terms"Such As" and are not limited to those examples listed. The words "Such As" allow the flexibility needed to support the growth of new industries that may not be appropriate in other zones. 1n conclusion, it is my position that my intended use is appropriate within the S/C/I zone district and that the intent of the district was to allow uses that do not fit within the other community zone districts. T'he spirit of the zone is to accommodate uses that are not applicable in the other wne districts in Aspen. I am confident that my use matches your intent Thank you and I look forward to your Sincerely, Kent eppinger / / 16 //% ~- ~. _~ ~~~\T ~~~ ~~g~~s Main Entry: crop Pronunciation: \^krap\ Function: noun Etymology: Middle English, craw, head of a plant, yield of a field, from Old English cropp craw, head of a plant; akin to Old High German kropf goiter, craw Date: before 12th century 1 : a pouched enlargement of the gullet of many birds that serves as a receptacle for food and for its preliminary maceration; also : an enlazgement of the gullet of another animal (as an insect) 2 a (1) : a plant or animal or plant or animal product that can be grown and harvested extensively for profit or subsistence <an apple crop> <a crop of wool> (2) :the total yeazly production from a specified azea b :the product or yield of something formed together <the ice crop> c : a batch or lot of something produced during a particulaz cycle <the current crop of films> d :collection <a crop of lies> 3 : the stock or handle of a whip; also : a riding whip with a short straight stock and a loop 4 [ZCrop] a :the part of the chine of a quadruped (as a domestic cow) lying immediately behind the withers -usually used in plural -see cow illustration b : an earmazk on an animal; especially :one made by a straight cut squazely removing the upper part of the eaz c : a close cut of the hair Main Entry: nursery Pronunciation: \^nars-re, ^nar-sa-\ Function: noun Inflected Form(s): plural nurs•er•ies Date: 14th century 1 obsolete :attentive raze :fosterage 2 a : a child's bedroom b : a place where children are temporarily razed for in their pazents' absence c :day nursery 3 a :something that fosters, develops, or promotes b : a place in which persons aze trained or educated 4 : an azea where plants are grown for transplanting, for use as stocks for budding and grafting, or for sale a place where young animals grow or are cared for Main Entry: orchard Pronunciation: \^dr-chrrd\ Function: noun Etymology: Middle English, from Old English ortgeard, from ort- (from Latin hortus gazden) + geard yard -more at yard Date: before 12th century a planting of fivit trees `~, nut trees, or sugaz maples; also :the trees of such a planting Merriam-Webster online dictionary PROJECT: Name: Location: A DDS ~!`A UT• ATTACHMENT 2 -LAND USE APPLICATION ~~a~g /v1~sDiCftL /^1~R{,U~~ (indicate street address. lot & block number, leeal description where appropriate) I Name:y -C~l.1sPPi IS Address: 10 ~l-7 1~ tpp~S t Y 6-T. ~_ C~`b4 (~ l l Phone#• G~~' !~ CT 6~7 Name: `7.?m~, AS Address: Phone #: TYPE OF APPLICA770N: (please check all that apply): ^ GMQS Exemption ^ Conceptual PUD ^ Temporary Use ^ GMQS Allotment ^ Final PUD (& PUD Amendment) ^ Text/Map Amendment Special Review ^ Subdivision ^ Conceptual SPA ^ ESA - 8040 Greenline, Stream ^ Subdivision Exemption (includes ^ Final SPA (& SPA Mazgin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ^ Commercial Design Review ^ Lot Split ^ Small Lodge Conversion/ Expansion ^ Residential Design Variance ^ Lot Line Adjustment ^ Other. EXIS711VG CONDITTONS: (descri lion of existin buildin s, uses, evious a vals, etc. e~~T ('~~rnzRC~At,•, `. ~2rsc~ ~tS OC'xS-P1 r~ hsCL ~LxcCC PROPOSAL' (description of proposed buildings uses modifications etc.) ,~rnmc~2 Cr Rr< ~~ol 2ShL~ IY~flt C a~t_ h~R-lZV \ U>~t~- N`tst~J~F£_~ ~1R.i n5(? Have you attached the following FEES DuE: $ ^ Pre-Application Conference Summary ^ Attachment #1, Signed Fee Agreement ^ Response to Attachment #3, Dimensional Requirements Form ^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards ^ 3-D Model for lazge project All plans that are larger than SS" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model. }µ ~ F ~` .~. ~ ~g,G~~1 Chapter 26.316 APPEALS Sections: 26.316.010 26.316.020 Appeals, purpose. statement. Authority. 26.316.030 Appeal procedures. 26.316.010 Appeals, purpose statement. The purpose of this Chapter is to establish the authority of the Boazd of Adjustment, Growth Management Commission, the Planning and Zoning Commission, and City Council to heaz and decide certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002) 26.316.020 Authority. A. Board oJAdjusbnenL The Boazd of Adjustment shall have the authority to heaz and decide the following appeals: 1. The denial of a variance pursuant to Chapter 26.314 by the Planning and Zoning Commission or Historic Preservation Commission. B. City Council The City Council shall have the authority to heaz and decide the following appeals: 1. An interpretation to the text of this title or the boundaries of the zone district map by the Community Development Duector in accordance with Chapter 26.306. An appeal ofthis nature shall be a public meeting. 2. Any action by the Historic Preservation Commission in approving, approving with conditions, or disapproving a development application for development in an "H,", Historic Overlay District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting. 3. The scoring determination of the Community Development Duector pursuant to Chapter 26.470.. An appeal of this nature shall be a public meeting. 4. The allocation of Growth Management Allotments by the Planning and Zoning Commission pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting. 5. Any other appeal for which specific authority is not granted to another boazd or commission as established by this title. An appeal of this nature shall be a public meeting. C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the authority to hear and decide an appeal from an adverse determination by the Community Development Director on an application for exemption pursuant to the growth management quota system in accordance with Section 26.470.060(D). City of Aspen Land Use Code. August, 2007. Part 300, Page 35 _,. ~,~ ~C~'IBffGz D. Administrative Hearing Ofcer. The Administrative Hearing Officer shall have the authority to heaz an appeal from any decision or determination made by an administrative official unless otherwise specifically stated in this title. (Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Otd. No. 12-2007; 2002) 26.316.030 Appeal procedures. A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the city office or department rendering the decision or determination within fourteen (14) days ofthe date ofthe decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this title to appeal any decision or determination. B. Effect of filing an appeal The filing of a notice of appeal shall stay any proceedings in furtherance of the action appealed from unless the Community Development Director certifies in writing to the chairperson of the decision-making body authorized to heaz the appeal that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The chairperson of the decision malting body with authority to hear the appeal may review such certification and grant or deny a stay of the proceedings. C. Timing of appeal The decision-making body authorized to hear the appeal shall consider the appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is practical under the circumstances. D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by publication to all other affected parties. (See section 26.304.060(E)). E. Standard of review. Unless otherwise specifically stated in this title, the decision-making body authorized to hear the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process, or the administrative body has exceeded its jurisdiction or abused its discretion. F. Action by the decision-making body hearing the appeal The decision-malting body hearing the appeal may reverse, affirm, or modify the decision or determination appealed from, and, ifthe decision is modified, shall be deemed to have all the powers of the officer, boazd or commission from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the appellant. The decision=making body may also elect to remand an appeal to the body that originally heard the matter for further proceedings consistent with that body's jurisdiction and directions given, if any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals shall be public meetings. (Ord. No: 55-2000, §§ 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002) City of Aspen Land Use Code. August, 2007 Part 300, Page 36 ~r'n. .~ _:G , .'~ 1 . ~ ~. ~ :771 _~ 3 ~ c ~' .. . ? c ~ ~ D~ s m O C^ _ ~ T . ~ ~w am~~ . ' ~ a~ ~ ~ ~ m a - ~ OQ ~j ~ ~ ~ ~ m a Q ~ ~- ~ W ~~ c9 wsa,m~ _ ~; ~~~~~ .~ < ~i m m m o', . Qa ti I I W ~ A 4i W ~ ~ ^~~~ W ~i q ~ ~ ~' .~ W j ~ ~ 9 "~ ~' ro Q', ^~^ C ~ ~ 3 ~ m N ~; N m m ~ ' 0 ^ m ~ ~ n O __~ ~1 rn m @ m Z 4 Z O s~ ~- C~ n d ~~ o X ~ ~ n~ n p 5 ~ ~ ~ oz ° ~~I ~~ z ~ ie~ ~~ ~ a o _ N W W ---_ W .~ - t-~ ~~~ N k-~ ~.~#Y~. ~t{i.S~~,,.,~ti. ~tiC~~i ~t ' l~T _ '~~~~~ ~o D o N u~~S '' a ~ grw 9 ~,. D N .ZI w } 1 O 3 ~~ ~ AY6J N V ~ ~ o~p~ m ~ m a~ ~~~I N q O 1~ O C .~ ~ m ^ ^ ~ -' m ~ 5 Y' y _ - - ~ ~ '. ~_ ~ ~~T December 14, 2009 , _ Mr. KenYKleppinger 1047 Vine Street Tl~ Cm of AsFSN Aspen, CO 81611 ; RE' AP~EAL'OF AN INTERPRETATION (Permitted uses in the SCI zone district) . • Dear Kent, 1 • As required per Section 26.316.020 D, Notice Requirements, of the land use' code notice is hereby given, that a public hearing will be held: on Monday, January 11, 2004, to begin at 5:00 p.m. before the Aspen City Council, City Council Chambers; City Hall, 130 S. Galena St., Aspen. The purpose of. the hearing is to consider azi appeal of an Interpretation that ,you ' submitted. , The Interpretation determined that the growing of medical marijuana is'not a permitted use in the - Service/CommerciaUIndustrial (SCI) zone district. For further information, please feel free.to contact me at 970.429.2759 or by email Jennifer.Phelan(a,ci.aspen.co.us. A memo will be ' emailed to you in the neaz future,. ~ - - Regards;., , G~.~ - , ~~ . Jenifer Phelan Deputy Director .. , • - ~ ' , 130 Sours Gn~nue sirt~r - Aspen, Cowrtnno 81611-1975 • Pxo~ 970.920.5000 Fex, 970.920.5197 wviw. aspengo¢rom ' - - ,Pxinkd on kerytlM Papa rueuc rvu w pE:INTENPNETATION APPEAL (Permittetl ua- ea In Cw SCI Zone tlis4k,) Publishetl in the Aspen ^mes Weekly on Decem- ber 20, 2009 [441999]7 ~~m~3 AFFIDAVIT OF PUBLIC NOTICE SECTION 26.304.060 (E), ASPEN LAND USE CODE Aspen, CO SCHEDULED PUBLIC HEARING DATE: S-ANUR~Y 1~ ,2oo~t STATE OF COLORADO ) ss. County of Pitkin ) I, N(Gk THc1M PSoN (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Asperi Land Use Code in the following manner: _~ Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained 4 ~ _ Community Development Department, which was made of sui Tlpruof. '`.; materials, which was not less than twenty-two (22) inches wi - ' (26) inches high, and which was composed of letters not less one inch in `. height. Said notice was posted at least fifteen (15) days prio :to a public hearirig and was continuously visible from the _ day of 200_, to. and including the date and time of the public hearing. A phot ~7+. ,}lgepdsted notice (sign) is attached hereto. 9~J{7Ci ~` .:. ..:~~ <;;,.. _ ~x. '~trrn~~Rd Mailing of notice. By the mailing of a notice obtained from t~~ui,ity' "` Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (1 S) days prior to the public hearing, notice was hand delivered or mailed by first cuss postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeazed no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) sR.tichael G. trelanq Chair Aspen CRy Counc9 Mineral Estate Owner Notice. By the certified mailing of notice, return receipt requested; to affected mineral estate owners by at least thirty (30) days prior to the date scheduled for the initial public hearing on the application of development. The names and addresses of mineral estate owners shall be those on the current tax records of Pitkin County. At a minimum, Subdivisions that create more than one lot, Planned Unit Developments, Specially Planned Areas, and COWAPs aze subject to this notice requirement. Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the azea of the proposed change shall be waived. However, the proposed zoning map shall be available fof public inspection in the planning agency during all business hours for fifteen (I S) days prior to the public heating on such amendments. Signature-C The foregoing "Affidavit of Notice" was acknowledg d before me this ~~day of , 200, by ~(C,(L ~1 _s1..Nlri~ ^:~ t~~ "'R WITNESS MY HAND AND OFFICIAL SEAL M/ ssion expires: CC ~.~ ~ ~ 3 MyCommissbn E~Phe1 ATTACHMENTS AS APPLICABLE: • COPYDFTHEPUBLICATION • PHOTOGRAPH OF THE POSTED NOTICE (SIGN • LIST OF THE OWNER.SAND GOVERNMENTAL AGENCIES NOTICED BYMAIL • APPLICANT CERTIFICATION OF MINERAL ESTAE OWNERS NOTICE AS REQUIRED BYC.R.S. §24-65.5-103.3 ~' iBL'C N0~'CE RE:INTEgRRETAT10NRPPEAL (Rermitfetl as- ' es in [M1e SCI Zone tlis[ricQ ~ ~ I~ NOTICE IS HEREHY GNf N lhnl e public heehng ill be hem on Montlav. January (1.2009. to ba A...../ gin a15.00 pm. batom!he Asy°n Clly Council. City ~"'"~ Council Chambers. Gly Hnll. 130 S. Galena SI_ Aspen-10 C°nsIUC-I ]n 9pp3a~ °I an n[erp(elylOn issued by the Communsy ~Jevel°pment Dlredor, submlped by Ken' Kleppm9er. 104J Vine S(reel, Aspen, CO 816t'. The In:wpretetion delerminetl that the growing of re Ymal n ari)uana Is not cpn- sideretl pe milked use in the 5 .pe,Dpmmare,~r!I^°eal„al(BCnZpnedlet^°,- AFFIDAVIT OF PUBLIC NOTICE For tunher Informallo~. ronlad Jennifer Phelan el the City of Aspen Gommunlly Development pe parlmenL ,66 = pe,ena st.. Aspen, ~o BY SECTION 26.304.060 (E), ASPEN LAND USE C 9]0.429 2]69. (or by omail JennriecPM1alan®ci.as- pearo.usJ s/MichaelC Ireland Chzir Aspen City Council Rubltshed in (M1e Ain°n Time, weekly nn pacem- ~PERTY: bar 20, 2068 [d41999]f Fu ~~ ~ ~'r ,Aspen, CO SCHEDULED PUBLIC HEARING DATE: SANUARy 11 ,2004 STATE OF COLORADO ) ss. County of Pitkin ) I, N(Gk ~(~ /~ PSoN (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: _~ Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtaine -_ Community Development Department, which was made of sui ~ ' pof materials, which was not less than twenty-two (22) inches wi {26) inches high, and which was composed of letters not less one inch in height. Said notice was posted at least fifteen (15) days prio 3o e public hearing and was continuously visible from the _ day of 200_, to, and including the date and time of the public hearing. A phot ,/l~g~posted notice (sign) is attached hereto. ~~~_' -::wM Mailing of notice. By the mailing of a notice obtained from t~h`ity Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeazed no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) ~-~ -~, ...; .,.f December 14, 2009. Mr. KenfKleppinger -1047 Vine Street TxP Lin oP ASPEN Aspen, CO 81611 ' RE: APPEAL OF AN INTERPRETATION (Permitted uses in the SCI zone district) Dear Kent, As required per Section 26.316.020 D., Notice Requirements, of the land use code notice is hereby given that a public hearing will be held. on Monday, January 11, 2009, to begin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St., Aspen. The purpose of the hearing is to consider an appeal of an Interpretation that ,you submitted. - The Interpretation determined that the growing of medical marijuana is not a permitted use in the Service/Commercial/Industrial (SCI) zone district. For further information, please feel free to contact me at 970.429.2759 or by email Jennifer.Phelanna ci.aspen.co.us. Amemo will be ' emailed to you'in the near future. Regazds, ' G~~~~~. Jenifer Phelan Deputy Director S3O SODTx GALENA STREET ~ ASPEN, COLORADO S16n-197$ ~ PHONE 970.920.$000 ~ FAx 970.92O.S197 www. aspengov.com Pemled on R¢yded Pape. ' 1 ~, o °' o B „eto~ •/~N ~ ~I ~ 6 nI ~9 il~g CU o° U ~,~EA a N A ~ y N Q [l0 t~ ~o LL CJ ~f ~ < c w S N~ Q ~3uNn ~" g ""'~ :t~~'?j: ~.s rl -~ fIJ ...~.~ rl -~- °_ ~~ ~ ~~ m ~~ c ~~~ .n m 0' m ~~~ m m ~.-- m -~----- o ~~~ M1 ~~ A p.. z a~ ~~ v ~~ Q 6 m [y ~ ~ Q ~ ~ O i- 2 V ~ v w c ~ ~~ J ~nn 1~.~ V _~ nVu \`~/1 V J _' ~~~z 00 0 U E 3 \ ~~ m a ~, .. au d ~ ~ a @ m ~9ffi'oot aq Eon ~a~3~€ m m C = ~ L ~ ~' oi~vE«m ~~~~~N o E c m c ~ "c m~~or"~ v ~='0 3~.Lm. $ O.O TWL m OmCp~~ C U.am¢o ¢ ^ ^ ^ a ~~ ~ ${ E o L ~ ti ra ~ S i ~ U ^O^ ~ ~ m ~ - ~ ~ ~ $ ~ _n ~ ~ ~ ~ z¢= ~OD^ ~ ¢ m m ci 6 m i r RJ m 0 r ra (Ix "1 'L'' W ~~ ~ ~/J o0 ~ c~ O ~ v 7 3' ,/~ .~ O Q ~ 1 - a - ® ~ ~ _ 0 U C t N ~~. m THE CITY OF ASPEN Land Use Application Determination of Completeness Date: November 13. 2009 Deaz City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number and name assigned to this property is 0076.2009.ASLU -Appeal -SCI zone The planner assigned to this case ism self. ^ Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review hearings will be scheduled until all of the submission contents listed above have been submitted and aze to the satisfaction of the City of Aspen Planner reviewing the land use application. Your Land Use Application is complete: If there aze not missing items listed above, then your application has been deemed complete to begin the land use review process. Other submission items may be requested throughout the review process as deemed necessazy by the Community Development Department. Please contact me at 429-2759 if you have any questions. T You, ~L/L nniferPhel eputy Director City of Aspen, Community Development Department C:\Documents and Settings\jennifep\My Documents\planning\Templates\Templates\Land Use Cases\Completeness Letter Land Use.doc PROJECT': Name: Location: Parcel ID # (1 APPLICANT: ATTACHMENT 2-LAND USE APPLICATION mizOiGAL ~Q',U~~ Name: T~~l5~1 tS C Address: `~~~ ~~i~C 6~, I ~ ~l(,1~ Phone #: G7~~ ~H ~- (,5y7 REPRESENTATIVE: Name: ~At'1~\, ~~ Pc~~~ Address: Phone #: TYPE OF APPLICATION: (please check all that apply): ^ GMQS Exemption ^ Conceptual PUD ^ Temporary Use ^ GMQS Allotment ^ Final PUD (& PUD Amendment) ^ Text/Map Amendment Special Review ^ Subdivision ^ Conceptual SPA ^ ESA - 8040 Greenline, Stream ^ Subdivision Exemption (includes ^ Fina] SPA (& SPA Margin, Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ^ Commercial Design Review ^ Lot Split ^ Small Lodge Conversion/ Expansion ^ Residential Design Variance ^ Lot Line Adjustment ^ Other: ^ Conditional Use EXISTING CONDITIONS: (descri tion of existin buildin s, uses, evious a ovals, etc.) RCS l~T C~ mrna(X~r~t-.. `. ~P+sc~ ~tJ ~? ~~ rs2 ~1..~C~ PROPOSAL: (description of proposed buildings, uses, modiftcations, etc.) C.~r..rv.~~yzCtRt_ l~~.o zSnt_r~ mr~o}«L mrti2v~~~rt~- r~~~~~ut~;l~(~ Save you attached the following FEES DUE: $ ^ Pre-Application Conference Summary ^ Attachment #1, Signed Fee Agreement ^ Response to Attachment #3, Dimensional Requirements Form ^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards ^ 3-D Model for large project All plans that are larger than SS" X 11" must be folded. A disk with an electric copy of all written text (Microsoft Word Format) must be submitted as part of the application. Large scale projects should include an electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model. RE~F~VED CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTM€J~IT'~ ~ 6 1OOy ,~(yyt,,t,Y t j~~ pal Agreement for Pavmen[ of Ci[v of Asuen Development Application ~~MUNIlV "~KCry~.~_ CITY OF ASPEN (hereinafter CITY) and _~p (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an application for ~EYrVTk32CtR~1_ WF~'u7S~li% (uy3D)Cl'cl I`t~fcRi~uMoA~ 1V~`+~d+M'f~1(Zi1J(~ ~E,il-i ~~ (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of [he proposed project, it is not possible at [his time to ascertain [he full extent of the costs involved in processing [he application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees i[ will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that i[ is impracticable for CITY staff to complete processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amountof$ 73~°"~ which isfor~hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse [he CITY for [he processing of the application mentioned above, including post approval review a[ a rate of $245.00 per planner hour over [he initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees [hat failure [o pay such accrued costs shall be grounds for suspension of processing and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN APPLICANT By: sy: ~ C Chris Bendon Commnnity Development Director Date: ~~ Billing Address and Telephone Number: 101-I7 1~it.1~" ST_ Q?O - r14 - 65 y'~ REG~~~~ To: City ofAspen Community Development Director N(/y ~; ._ From: Kent Kleppinger n/~~~'I~r~Y f~F ~ fUUy Date: November 5, 2009 /"'"~Nir~ ~~~ ~Jf'EN Re: Appeal of Interpretation ofTitle ~~NT Dear Sir, I would like to appeal to city council the land use interpretation I received on 10/29/09, under section 26.316.030(A) ofthe land use code. Thank you. I have included a check for $735.00 for administration fees as directed by Sara Adams on 11 /04/09. Please schedule me on the city council docket as soon as possible. incerely, ~ ~~~ Kent Kl pinger S Attachments: Original request letter. Community Development Interpretation To: City of Aspen Community Development Director From: Kent Kleppinger Date: September 25, 2009 Re: Request for Interpretation ofTitle Dear Sir, My name is Kent Kleppinger, I am an Aspen citizen and property owner. I am contracting for the purchase of a pazcel in the S/C/I zone district for which I have a specific use in mind. I intend to use the space as a commercial medicinal marijuana manufacturing facility. Based on this, I am requesting an interpretation oftitle under section 26.306.010 ofthe land use code to confirm the use as one which is permitted in the S/C/I district Section 26.170.160 ofthe land use code states that the purpose ofthe S/C/I zone district is to "preserve and enhance locally serving, primarily non retail small business areas to ensure a more balanced permanent community; to protect the few remaining small business parks historically used primarily for light industrial uses, manufacturing, repair, storage and servicing of consumer goods, with limited retail, showroom, or customer reception areas. The S/C/I zone district contains uses that may not be appropriate in other zone districts or do not require or generate high customer traffic volumes and permits customary accessory uses". Section B Permitted Uses 1) S/C/I uses which may use up to 100% of the floor area for retail sales, showroom, or customer reception include the manufacturing, repair, customizing, servicing, detailing, sales and rental of consumer goods such as: 2) S/C/I uses which may use, in combination, up to 25% of the floor area for accessory retail sales, showroom or customer reception including the manufacturing, repair, alteration, tailoring, and servicing of consumer goods such as, electronic equipment; floral arrangements; furniture; clothing; or sporting goods: This use fits within the Service/Commercial aspect of the zone based on the following. 1. Product manufactured at this facility will be sold primarily to local retailers. 2. The S/C/I zone district was meant for light industrial usage without a retail element. I require no retail element and will generate no traffic in the complex or vicinity. There will be no showroom or customer reception area. I feel that my proposed use meets the light industrial criteria based on the following. 1. The equipment required for systematic production is defined as industrial and includes commercial grade HVAC systems, HID lights and ballasts, fluorescent lights, digital timers, room controllers, commercial Fans, air pumps, water pumps, humidifiers/de-humidifiers, reverse osmosis systems, C02 injection systems, carbon filters, water tanks and multiple 55 gallon reservoirs, etc. 2. The provisions in the permitted uses section of the land use code use the phrase "Such As" and are not limited to those examples listed. The words "Such As" allow the flexibility needed to support the growth of new industries that may not be appropriate in other zones. In conclusion, it is my position that my intended use is appropriate within the S/C/I zone district and that the intent of the district was to allow a unique manufacturing business like mine a chance to succeed. The spirit ofthe zone is to accommodate uses that are not applicable in the other zone districts in Aspen. Thank you and I look forward to your response. Sincerely, Kent Kleppinger CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT INTERPRETATION JURISDICTION: City of Aspen APPLICABLE CODE SECTIONS: 26.710.160 EFFECTIVE DATE: October 29, 2009 q~'1z' Jc~N~F~_P ~G- WRITTEN BY: Jennifer Phelan, Deputy Director ~~ ~JS APPROVED BY: Chris Bendon, Community Development Director COPIES TO: John Worcester, City Attorney Planning Staff SUMMARY This Interpretation is being issued in response to an inquiry submitted by Kent Kleppinger with regard to whether the production of medical marijuana is a permitted use in the Service/Commercial/Industrial (S/C/I) zone district. BACKGROUND The S/C/I zone district's stated purpose as outlined in section 26.710.160 A., Purpose, "is to preserve and enhance locally-serving, primarily non-retail small businesses..,.to protect the few remaining such small business parks historically used for light industrial uses, manufacturing, repair, storage and servicing of consumer goods..." The zone district permits uses that include the manufacturing, repair, customizing, and servicing of consumer goods such as household appliances, automobiles, dry cleaning establishments, and commercial kitchens. Aithougl', the land use code does not have a definition for manufacture, Black's Law Dictionary (Exhibit A) defines manufacture as "the process or operation of wares or any material produced by hands, by machinery or by other agency; anything made from raw materials by the hand, by machinery or by art." INTERPRETATION The applicant notes in his interpretation request (Exhibit B) that the product will be manufactured on site and will be sold on a wholesale basis. It also states that equipment, such as commercial fans and water pumps, being industrial in nature and necessary to the production of medical marijuana fit within light industrial uses. It is staff s interpretation that the commercial production (or growing) of any agricultural product, including medical marijuana, is classified as an Agricultural Use. An Page 1 of 2 ~~ Agricultural Use is defined in the city's land use code as "the use of land and buildings for the production of crops, animals, animal products and the keeping of livestock including riding stables, arenas, orchards, nurseries, flower production, dairy operations, fisheries, animal husbandry services or similar uses." Under Agricultural Use, the words crop, nursery and orchard are used. Although not defined in the land use code, all of these words are associated with flora that is grown or planted. The commercial production (or growing) of medical marijuana, is crop production and is considered an Agricultural Use that is not a permitted use in the S/C/I zone district. APPEAL OF DECISION As with any Interpretation by the Community Development Director, an applicant has the ability to appeal this decision to the Aspen City Council. This can be done in conjunction with a land use request before City Councilor as a separate agenda item. 26.316.030(A) APPEAL PROCEDURES Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the City office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision or determination. ATTACHMENTS A. Definition of manufacture, Black's Law Dictionary, Fourth Edition B. Interpretation request dated 9/25/09 C. Merriam-Webster online dictionary: definition of crop, nursery, and orchard Page 2 of 2