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
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'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
____._
- --
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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
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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
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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.
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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"
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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.
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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
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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.
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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
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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
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APPROVED AS TO FORM:
John Worcester, City Attorney
,,
Resolution No. ,Series of 2010. Page 2
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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
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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
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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
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'istence. Cowell ..
r~~.. ...~:ALIS OBEDIENTLL Sworn obedience or
submission upon oa4h. Cowell
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aepTlo. In old English practice, a writ
- wFli'ch lay for a man taken on' suspicion of felony,
P' a$Ethe 15ke; who ceuld not be admitted. to bail by
-;
~ 8herlff, or others having power to let to main-
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;Serg~`. - ,
""-`Fitzh.Natffi'ev. 249r ~.: _
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4z~;25: ...
~*'CAPTORS. Same as mainpernors (4• v.l.
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ACTORY. A physical plant, or a place or
i,~tik ding•'where manufacturing is carried on.
~t'wherein ~ electric power was generated.)
s-~; ~" 'Power Co. v. Bell, 156 S.C. 299, 152 S.E 565,
:=';. ~- Vhat in common understanding is Imowa~as
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. ry.". -Halpin v. Insurance Co.,23 N.E. 989,
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L and ':;Co„ D.C.Ky., 207 F. 119, 134.
OFACTORE, o. From Latin words lnanus
btura, literally, put together by hand. Now
ins 'the process of making products by hand
chinery. United States v. Anderson, D.C.
l5 F.$upp. 943, 946..
-clmary meaning of thlc word ffi "making with the
::but tins de8ainoa is coo narrow for its present veg.
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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
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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
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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
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~~
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
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