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HomeMy WebLinkAboutminutes.council.20100823Regular Meetine Aspen City Council August 23, 2010 PROCLAMATION — August "Augie" Reno Day ............................... ............................... 2 CITIZEN PARTICIPATION ............................................................... ............................... 2 COUNCILMEMBER COMMENTS ................................................... ............................... 3 CONSENTCALENDAR .................................................................... ............................... 5 • Resolution #69, 2010 - No Problem Joe Bridge Maintenance Contract ................. 6 • Resolution #68, 2010 — CORE REMP Grants ......................... ............................... 6 • Environmental Health 2010 Supplemental Budget Composter Grant .................... 6 • Minutes — August 2, 9, 2010 .................................................... ............................... 6 ORDINANCE #17, SERIES OF 2010 — Code Amendment — Signs .. ............................... 6 ORDINANCE #20, SERIES OF 2010 — Charter Amendment June Runoff Elections ...... 6 ASPEN SKIING COMPANY SPECIAL EVENT WAGNER PARK ............................... 8 RESOLUTION #66, SERIES OF 2010 — Opposing Amendments 60, 60 and Proposition 101 ...................................................................................................... ............................... 10 RESOLUTION #70 AND 71, SERIES OF 2010 — Ballot Questions, Charter Amendments Elections ...................................................................... ............................... 11 RESOLUTION #65, SERIES OF 2010 — Appeal Amendment Rio Grande SPA............ 11 1 Reeular Meeting Aspen City Council August 23, 2010 Mayor Ireland called the meeting to order at 5:00 p.m. with Councilmembers Skadron, Torre, Johnson and Romero present. PROCLAMATION — August "Angie" Reno Day Mayor Ireland and Council proclaimed August 23, 2010, as August " Augie" Reno Day in recognition of Reno's being accepted as a Fellow of the American Institute of Architects. CITIZEN PARTICIPATION 1. Emzy Veazy suggested a special holiday, a "sales tax holiday" for Aspen once a year. Veazy said this is a good gimmick to bring people to Aspen to spend money. 2. Gram Slaton, director of the Wheeler Opera House, announced two fabulous festivals coming to the Wheeler. The first is August 26 -28 and is Mountain Film Summit featuring some great documentaries. The second is 7908 Singer Songwriter festival in September. Slaton said these are being presented to make sure Aspen stays the best and greatest resort. 3. Pat Sagal thanked Councilman Torre for trying to find a simple way to have a referendum on the Aspen Art Museum. Sagal said this is a fractious issue and it would be appropriate to have a vote on this issue. 4. Jim Ward brought up installing a roundabout at Cemetery lane. Ward noted the stop lights cause inefficiencies in traffic and create 30% less efficiency in gas consumption. Ward said the Cemetery Lane intersection would be better served by a roundabout. Ward said he has observed the numbers of people taking the bus up to Maroon Bells and noted a quote about the significance of a wilderness culture that matters more than hunting, fishing, hiking, camping. 5. Camilla Sparlin brought up the Aspen Art Museum and the 47' height. Ms. Sparlin said the Art Museum is nice where it is. Ms. Sparlin said the 47' high museum seems against the height restrictions and everyone should be treated equally. Mayor Ireland noted that the 47' height of the Art Museum conforms to the land use code in effect at the time of the original application and the height restriction allowed in that zone district under the current code is 45'. Mayor Ireland pointed out this is not a government project; it is a private entity. Ms. Sparlin said the proposed building is too high and will cast shadows and create icy streets. 6. Paul Chichester asked if Council would consider a change to the S /C /I zone to allow medical marijuana dispensaries in that zone district. Mayor Ireland asked where medical marijuana dispensaries are allowed in Aspen. Chris Bendon, community development department, told Council these are allowed in all the commercial zones except S /C /I, which is only 6% of commercial zoning. Mayor Ireland said 94% of the commercial zones allow medical marijuana dispensaries. Councilman Torre suggested the S /C /I zone in general be a discussion when the AACP comes forward. Councilman 2 Regular Meeting Aspen City Council August 23, 2010 Romero asked if Chichester has looked at other locations. Chichester said he has but the rents are more expensive in the commercial core and C -1 zones. Councilman Romero noted rents are adjusting downward due to market conditions. COUNCILMEMBER COMMENTS Councilman Johnson thanked the organizers of Ride for the Cure; it was a great event. 2. Councilman Johnson noted school fall sports have started and encouraged citizens to support school teams. 3. Councilman Torre said he is grateful for rainy days and for sunny days. Councilman Torre commended everyone associated with ARE day. It was the 7` ARE Day, there were great speakers. 4. Councilman Torre brought up the two festivals at the Wheeler, Mountain films and Singer songwriters and encouraged people to check these out and attend them. The ticket prices are reasonable for great entertainment. 5. Councilman Torre stated Council is a filter for the overriding goal of bettering the community and for making the tough decisions. Councilman Torre noted Council is advocates and champions for direction and protectors from malicious intent. Councilman Torre pointed out issues before Council are all important issues, are pressing and immediate community issues. Councilman Torre went over the history of the Wienerstube building, that it was denied, the applicants filed a lawsuit, which was decided in favor of the city, which was appealed and that is in the process. Councilman Torre noted this case will be decided by a panel of 3 judges. This appeal will be a review of Judge Nichols' application of state law regarding due process and interpretation of the law and Council's use of the AACP as guiding or supporting document. Councilman Torre pointed out the approval for the proposed Art Museum came through a litigation settlement and Council was asked if a development application was acceptable versus an appeal hearing. Councilman Torre said the outcomes could be (1) the appellant court upholds Judge Nichols decision; the application dies and owners of the property resubmit an application or they work with the art museum and go through the entire land use process. (2) the appellant court could overturn Judge Nichols' decision and the original application has court approval. (3) application for a downtown art museum with variances in height, parking, fees; this is another mixed use building with expensive penthouses. Councilman Torre stated he supported the settlement offer for the betterment of the community. Councilman Torre noted a lot of complaints he has heard regard the content of the art museum, which is not relevant to this discussion. Other citizens feel the art museum is in a great location; this is not a Council decision, the art museum is privately owned. Councilman Torre pointed out the city owns the building and if the art museum moves, Regular Meeting Aspen City Council August 23, 2010 the city will get the facility back to use for other community organizations. Councilman Torre noted he also hears complaints about the bulky building, the height, the screen design. Councilman Torre said the building is at allowable height or close to it. Councilman Torre stated the city rejected a referendum petition because the ordinance was administrative, not legislative, settlement of the litigation. Councilman Torre said there is a threat of a 106 lawsuit against Council for abuse of process. City Attorney, John Worcester, told Council rule 106 refers to 106(a)(4) of Colorado Rules of civil procedure, which allows one to appeal an administrative decision. Councilman Tone asked Council if they would support a referendum vote on the art museum. Councilman Torre noted it is too late to ask for a reconsideration of the vote on Ordinance #16. Worcester told Council they have the authority to put proposed ordinances before the electorate. Worcester stated Council has agreed to a settlement agreement, which they would be breaching. Worcester said as part of that settlement, Garfield & Hecht would be entitled to break off settlement and go to the court of appeals in the Wienerstube case. Councilman Torre said he feels this has become a lose /lose /lose situation. Councilman Torre said he would like the art museum to amend their application to address community concerns. Councilman Torre said the art museum could make small modifications to the architecture or address the height or lowering the building. Councilman Torre said although there is opposition to this project, a majority of people would like to see it fit better in the context of the community and will be a project that will enhance the community. Councilman Romero stated he is comfortable with Council's decision. Councilman Romero agreed a minority does not like the project and a majority would like to see the project improved and perhaps the best way to achieve progress is to continue to work with the applicants. Councilman Johnson said he is hopeful for a win/win and that the community looks back on this as a bold move. Mayor Ireland said he has met with critics of the project and has heard a variety of complaints about the art museum proposal, some of which were about the contents of the museum and government is not a monitor of aesthetics. Mayor Ireland said other concerns are the architecture and the city Council is not charged with architectural review. Mayor Ireland said it is dangerous for Council to assume powers they do not have. Council is arbiters of mass and scale. Mayor Ireland pointed out the mass of this proposed building is less than was asked for, which is being appealed to the Court of Appeals, and is less than would be allowed under the present land use code. Mayor Ireland said it is wrong to refer it to the voters because Council entered into an agreement and they need to stick by it. Mayor Ireland said some people want to vote on the contents of the art museum, which is not adjudicated by referendum. Mayor Ireland said the choice here is not between a small building but between two big buildings that would be allowed under the land use code. No other Council was interested in referring this issue to the voters. 0 Regular Meetin¢ Aspen City Council August 23, 2010 6. City Attorney, John Worcester, requested Council continue Resolution 472, 2010 — Amending MOU with CU — Given Institute; Resolution #73, 2010 — Ballot Question — Given Institute; Given Institute Ordinance 948 Negotiation; Resolution #67, 2010 — Ballot Question — Lodging Tax to August 24 at 4 p.m. Mayor Ireland moved to continue Resolution #72, 2010 — Amending MOU with CU — Given Institute; Resolution #73, 2010 — Ballot Question — Given Institute; Given Institute Ordinance #48 Negotiation; Resolution #67, 2010 — Ballot Question — Lodging Tax to August 24 at 4 p.m.; seconded by Councilman Johnson. All in favor, motion carried. 7. Councilman Skadron said at the RWAPA meeting, the fight against the zebra mussel in Ruedi and funding for that was discussed; front range water supply issues and amendments 60, 61 and proposition 101 were discussed. Councilman Skadron noted there was a great response to the movie "Tapped" about the bottled water industry. Councilman Skadron said the Colorado Association Meeting of Ski Towns will be in Aspen Thursday dinner at the Hotel Jerome and meeting Friday morning. Councilman Skadron said the fight against zebra mussels worked because it was funded by the partners in RWAPA and the discussion is how to fund it next year as the US Forest Service put in money and they may have no money to continue the program. 8. Mayor Ireland said the RFTA board voted to replace the bus barn facility in Glenwood as finding a new site seems unpromising. CONSENT CALENDAR Council asked about the composter grant program. Ashley Cantrell said the city received a $94,000 grant from the state. The city will pay for the program and will be reimbursed upon submittal of invoices. Ms. Cantrell said currently there is no way for restaurants and other businesses to compost. Restaurants have 60% compostable waste and the land fill is not set up to receive compostable. The city will buy a tub grinder to give out a homogenous mix; the rest of the money will go toward bins for commercial customers. If the system works, it will be offered to residential customers. Councilman Torre said he hopes this program opens the way to move from plastic bags from grocery stores and to bags that are compostable or more environmentally friendly. Councilman Torre moved to approve the consent calendar; seconded by Mayor Ireland. The consent calendar is: Regular Meeting Aspen City Council August 23, 2010 • Resolution #69, 2010 -No Problem Joe Bridge Maintenance Contract • Resolution #68,2010 —CORE REMP Grants • Environmental Health 2010 Supplemental Budget Composter Grant • Minutes —August 2, 9, 2010 All in favor, motion carried. ORDINANCE #17, SERIES OF 2010 — Code Amendment — Signs Councilman Torre moved to continue Ordinance #17, Series of 2010, to September 27; seconded by Councilman Romero. All in favor, motion carried. ORDINANCE #20, SERIES OF 2010 — Charter Amendment June Runoff Elections City Attorney, John Worcester, said this ordinance and Ordinance #21 seek to amend the Charter regarding election of Council and Mayor. Each question, if adopted, would supplant instant runoff voting; one is winner take all and this ordinance is a requirement to meet a 40% threshold or a runoff in June is required. Mayor Ireland opened the public hearing. Frieda Wallison, chair Republican party, told Council she is concerned about the winner take all option and that it will disenfranchise a majority of voters in city elections. Ms. Wallison pointed out using the recent county primaries that candidates could be elected with only 30% of the vote. Ms. Wallison noted with two questions, there may not be a clear majority. Each of the questions proposes a very different method. Ms. Wallison said the 40% threshold seems low and 50% plus one for Mayor and 45% for Council would be appropriate. John Slotkin agreed that winner take all would disenfranchise voters. Slotkin said this is a partisan town and compromise is not always the answer. Slotkin said instant runoff voting has not worked everywhere. Slotkin said he would prefer 50% plus 1 and 45% for Council. Slotkin said up or down on IRV should be a separate ballot. Ward Hauenstein, election commission, noted the election commission forwarded support of the runoff at 40 %, on reconsideration, the threshold to be elected should be 50% for all offices. Hauenstein said the current IRV requires 50% plus 1 to be elected. Hauenstein agreed two questions on the ballot will be confusing and if a voter wants to retain IRV, they will have to vote no /no; voter education will be necessary. Hauenstein said people should be able to vote on only one of the charter amendments and they should both be on the ballot. Si Coleman said he feels the winner take all allows a broader range of representation on Council and allows more diversity. Coleman told Council he supports winner takes all. Bob Leatherman, election commission, told Council he wanted an up or down vote on Reeular Meetine Aspen City Council Auimst 23, 2010 instant runoff voting; however, he understands why that cannot be on the ballot. Leatherman told Council he wants only one question, the June runoff, with a 50% plus 1 and a 45% plus 1 to be elected. Rob Ittner said he would like to see a 50% threshold and no winner take all question. Ittner said winner take all favors incumbents. Ittner said the city needs to define the number one goal of the system that is picked, that the winner should be representative of the voters voting in that election. Ittner said 40% threshold does not meet that requirement. Neil Siegel said winner take all can lead to perverse results. Siegel said 50% plus 1 is consistent with history and cannot be criticized as inequitable. Siegel recommended that this be kept simple. Siegel suggested how the question could be re- worded more clearly. Marilyn Marks said the election commission has had second thoughts, which illustrates how confusing this is. Ms. Marks said she would like to see a simple repeal question and to go back to 50% plus one and 45% or 45% plus one and go back to the runoff system. Ms. Marks said 50% plus one is better for all races to have a majority coalesce behind a candidate; however, to be simpler, it would be going back to the earlier system. Ms. Marks said the questions as proposed are too complex to explain to the voters and would bias IRV to be retained rather than voters voting no twice. Ms. Marks said she feels the proposed Ordinance #20 is going backward from transparency regarding locking the ballot box right after an election. Ms. Marks noted the city should tell people what they are voting on if they favor IRV, the thresholds, preliminary counting round, batch elimination. Melanie Sturm advocated simplicity on the ballot questions. Ms. Strum told Council she was recently an election judge and voters spoiled their ballots thinking they could vote for 2 people for commissioners, which is time consuming. Mike Maple said Aspen has an active community and the community is best served by keeping this simple. Maple said a simple repeal back to 50% plus 1 and 45% plus 1 would be his choice. Camilla Sparlin said ballots should not have confusing language. Ms. Sparlin said she feels strongly candidates should be elected by a 50% threshold. Joann Hall agreed this should be kept simple. Mayor Ireland closed the public hearing. Council asked how a 40% or 45% threshold would have affected city elections over the past years. Jim True, special counsel, told Council he reviewed 20 years of elections results and 40% was the lowest win for Council; one Mayor race the candidate won with 32 %. True said there would have been the same number of runoffs with 40% or 45 %. Councilman Romero said the movement has been toward efficiency, which is not that important in the overall goal of the representative process. Councilman Romero said the issue is whether a second question on this ballot muddies up the issue for the voters. Councilman Romero said he favors keeping two questions on the ballot to give voters the choice between election systems. Councilman Romero said he does not want a situation where there is no election method for the next Council election. Councilman Romero noted winner take all and June runoff both provided good elected officials and leadership. 7 Regular Meeting Aspen City Council August 23, 2010 Councilman Johnson said he favors one question, the traditional runoff with 45 and 50% and clear voter information. Councilman Skadron agreed clarity is important and likes repealing going back to the method previously in place. Councilman Skadron agreed he is curious to see what the voters think about winner take all option. Councilman Skadron said if the language is clear enough, he could support putting both Ordinances 20 and 21 on the ballot. Mayor Ireland brought up the possibility of nonmonotonicity where people vote strategically, which was one argument to get rid of instant runoff voting. Mayor Ireland said runoff can also encourage nonmonotonicity. Mayor Ireland said the voters should have a choice between winner take all or a traditional runoff. Mayor Ireland said when voters choose instant runoff, it was because they were tired of a long election process. Ms. Marks suggested one ballot question asking whether to repeal instant runoff voting and if it is repealed, which of the two voting systems does the voter want with the highest number of votes winning and become the replacement method. Ms. Marks said one question will be the clearest. Councilman Torre reiterated he supports going back to the traditional runoff method as there is more time to understand the candidates and their stand on issues and to see the make up of Council Councilman Torre moved to amend Ordinance #20, Series of 2010, raising the percentages to 45% plus one and 50% plus one and adopting the Ordinance with that amendment; seconded by Mayor Ireland Roll call vote; Johnson, yes; Skadron, yes; Torre, yes; Romero, yes; Mayor Ireland, yes. Motion carried. Councilman Romero moved to adopt Ordinance #21, Series of 2010; seconded by Councilman Skadron. Roll call vote; Skadron, yes; Torre, no; Johnson, no; Romero, yes; Mayor Ireland, yes. Motion carried. Jay Maytin told Council regarding the Given Institute he understands the budget constraints of the University of Colorado and it was nice to meet with the dean of the medical school. Maytin said the university has a $15 million to sell the property; however, the memorandum of understanding with CU has changed and it requires extension of demolition rights for 10 years and 5 to 10 years of vested rights. Maytin said the city should not be setting precedents to pass along the sovereignty to people other than CU. ASPEN SKIING COMPANY SPECIAL EVENT WAGNER PARK Councilman Johnson recused as an employee of Aspen Skiing Company. John Rigney, Aspen Skiing Company, presented their plan for a new event, a destination based event in March that would be a 3 -day ticketed event. Rigney said the Ski Company feels this time of the winter could use invigoration. The Mining for Ideas group was looking for new ideas for the resort and the applicant feels this would meet those goals. Rigney said this proposal is to get new guests to Aspen, guests who will follow concerts. Rigney noted Aspen and the Ski Company have reputations for presenting events. Regular Meeting Aspen City Council August 23, 2010 Councilman Skadron asked how this proposed event would affect the mission of the Wheeler Opera House. Gram Slaton, Wheeler Opera House, said his mission is to make the Wheeler as an active building, getting people to come to Aspen and to the Wheeler. Councilman Skadron said this proposed event in Wagner Park would preclude anything from happening in the Wheeler. Slaton told Council he has discussed with the applicants using the Wheeler as a backstage amenity, possibly ticketing, and a payment for the Wheeler not having entertainment those evenings. Rigney said they hope this is a recurring event and if the trade off is to pay to make the Wheeler whole, the Ski Company is willing to do that. Rigney said in the future, they hope to be able to do joint ventures with the Wheeler. Jeff Woods, parks department, reminded Council staff came before them 2 years ago regarding winter usage of city parks and not allowing these. Woods told Council staff has done research and there are new trends for winter activities on city parks. Woods told Council the agreement is to use 12" of manmade snow as a base on the park, and staff is cautiously optimistic this will be successful. Deric Gunshot, Aspen Skiing Company, said as part of the event budget, they will do what is necessary to protect the grass. Councilman Romero asked about the city's policy of use of parks in the winter and staff has presented some mitigation for this use and will the city have a policy and a process for other entities interested in using city facilities. Woods told Council one thing staff like about this proposed event is that it is an outdoor event; events that propose tents and heaters cause more problems for parks. Woods said usage of parks year round is a good goal as long as the asset can be protected. Woods said as far as a policy, the city should see if this experiment works. Councilman Romero agreed there should be an effort to define an event, make sure it is transferable and repeatable and additional business is generated which is part of the formula. Councilman Romero asked if Slaton feels the potential impacts on the Wheeler have been adequately addressed and offset. Slaton said this would be a new paradigm on how the Wheeler is used. Slaton said he needs to analyze what is in the community's best interest for advancing the town and if that is for the Wheeler to serve as support for a larger event, that would work. Slaton said he is concerned about the applicant making snow in Wagner park, which would affect operations inside the Wheeler. Councilman Romero said he would like the impacts on the Wheeler offset as much as possible. Councilman Romero stated he views the Wheeler as part of a larger system; sometimes it drives business and sometimes the Wheeler acts in a complementary role. Rigney said he feels their proposal echoes the mission of the Wheeler and renting the Wheeler is one way to mitigate the impacts. Mayor Ireland said the snowmaking issue can be worked out. Mayor Ireland said he would like to see Nordic use of Wagner Park in the winter. Mayor Ireland noted many of the issues are logistical in concept and staff and the applicant can continue to reach resolution on the issues. Councilman Torre stated snowmaking in Wagner park is Regular Meeting Aspen City Council August 23, 2010 inconceivable, that would be so loud and there are hotels and residences in close proximity. Councilman Torre said there are other issues to be addressed, like parking, for the event. Councilman Torre stated paying rent to Wheeler is a must. Councilman Torre said he feels 5.5 hours of live music for 3 days is too much in too small a location. Councilman Torre stated this does not feel like a partnership to him, all the benefits are going to the Ski Company. Councilman Torre said he would like to see a non - profit partnership and the benefit to the community could be greater. Councilman Torre stated he will not support this. Councilman Torre said this steps on the Wheeler and he would prefer to build an event around the Wheeler than over riding it. Councilman Torre said he does not think Wagner park is the appropriate venue and would rather see it in Rio Grande park. Councilman Torre said, he does not see how a 5.5 hour concert will benefit stores and restaurants. Gunshor said they will have an in and out policy so that people can leave and eat in the restaurant. Gunshor said the lodges will benefit. Councilman Tone said he feels alcoholic beverage sponsors do not send the right message. Councilman Torre said he would like to see this event done correctly but this does not seem how to pursue it. Councilman Torre encouraged the applicant to scale back the size of the event. Rigney said the proposal is conceptual. The applicants do not plan on 5.5 hours of music. Rigney noted the week proposed for the concerts last year was 60% occupancy. Rigney stated if there are more people in town, everyone benefits. Rigney said the Ski Company does not know who the sponsors are because at this point, they have no event. This will be a big experiment. Mayor Ireland noted Aspen has an aging demographic and attracting 45 to 60 year olds is not sustainable. Mayor Ireland said there may be some advantages to using Rio Grande park; the applicants can address that. Mayor Ireland said in order to sustain the economy, Aspen has to appeal multi - generationally. Mayor Ireland said the focus should be on how the applicants can answer Council's questions and make the event work; it is an investment on everyone's part. Councilman Skadron moved to approve the Aspen Skiing Company going forward in concept with the special event application in Wagner Park and grant a noise variance conditioned on resolution of the issues raised: how snowmaking will be done within the allowed sound limits; an agreement with the Wheeler Opera House so that it is fully compensated; the applicant's thoughts on definition of sponsorship; consideration of Wagner versus Rio Grande as a venue; report on how traffic and parking will be handled okayed by Randy Ready and John Krueger; opportunities for local non - profits to be involved; seconded by Councilman Romero. All in favor with the exception of Councilman Torre. Motion carried. The applicant will have a report on the September 13 Council agenda. RESOLUTION #66, SERIES OF 2010 — Opposing Amendments 60, 60 and Proposition 101 10 Regular Meeting Aspen City Council August 23, 2010 Councilman Johnson moved to approve Resolution #66, Series of 2010; seconded by Councilman Romero. All in favor, motion carried. RESOLUTION #70 AND 71, SERIES OF 2010 — Ballot Questions, Charter Amendments Elections Councilman Johnson moved to continue Resolution #70 and 71, Series of 2010, to August 24, 2010 at 4 p.m.; seconded by Councilman Romero. All in favor, motion carried. RESOLUTION #65, SERIES OF 2010 — Appeal Amendment Rio Grande SPA Drew Alexander, community development department, told Council this is an appeal of an amendment to the SPA for the Rio Grande. Alexander said the case was submitted by environmental health and staff followed a standard review process with a pre - application case summary. At a pre - application meeting, community development staff tells the applicant what type of review the case will go through, substantial or insubstantial amendment to the SPA. Alexander said based on the scope of work, landscaping, hardscaping, re- orientation of the recycle bins, staff determined this would be an insubstantial amendment. Alexander noted staff uses criteria in the land use code in the SPA section to determine whether an application is substantial or insubstantial. Alexander said the land use application was submitted to community development department who met with staff to review the application after which a notice of approval was issued. Alexander told Council the Rio Grande property was purchased in the 1970's; the SPA approval was granted in 1977. Alexander said in the 70's development orders were not created for approvals. Ordinance # 1977 stated the Rio Grande property shall follow the guidelines in the master plan. Alexander said the history on the Rio Grande is scattered and there are approvals; however, the important document is the master plan approved in 1993. Alexander said this master plan contains a goal and action plan for site B, which includes the paying fields, skate park and the area that contains the recycle center. The master plan said the site is called out for transportation purposes, for essential community services. Transportation services relate to the park being purchased with 7 th penny funds, monies for transportation services. Alexander noted to Council for an appeal are a denial of due process, abuse of discretion or excess of jurisdiction. Alexander said due process was followed; staff followed a typical review process for the SPA amendment pre - application conference summary, discussions with staff in an administrative review by a planner. The community development director has the ability by the land use code to grant insubstantial SPA amendments as long as the 9 criteria are evaluated, which they were. Staff finds the jurisdiction to be in compliance and there was not excess of jurisdiction. Alexander summarized there was a process and an outcome. The process was followed; the outcome was not was the appellant wanted. 11 Regular Meeting Aspen City Council August 23, 2010 Mayor Ireland noted the appellant states that the insubstantial amendment is the first approval for the recycle center within the Rio Grande subdivision SPA. Chris Bendon, community development department, told Council the record is clear ordinances refer to the master plan which master plan included this use and dialogue about looking for other locations, citing the property across the street or an enclosed facility and a facility within a trolley barn. Alexander pointed out the master plan includes the recycling center through goals for the site and in action items. City Attorney, John Worcester, asked about 26.440.090(B), modifications to a development order and asked what staff considers the "final development plan". Bendon said it is a combination of the ordinance, the master plan and what is physically in existence put together to analyze the amendment. Bendon pointed out in this case they are similar as they track. Bendon noted one criteria deals with site coverage, which was not specified in the 1993 master plan so one has to go to the site conditions. Worcester asked if (B) gives staff the jurisdiction for this review. Bendon said yes. Toni Kronberg, appellant, put together a history of the property. Ms. Kronberg submitted a pre- application conference summary. Ms. Kronberg said the gist of this is whether this is an insubstantial amendment to an already approved development or is this the first approval for the recycle center. Ms. Kronberg quoted from the pre - application summary, "the history on the recycling center is difficult to trace and seems to lack any definite land use approvals. There was a 1991 land use application for an SPA amendment under the title of material recovery center; unfortunately this file does not contain a resolution or ordinance only a recommendation from community development staff that supported all proposed options ". Ms. Kronberg said she will show evidence that staff did not support all proposed options but recommended a different course of action. Staff recommended a clear and concise report on the history of the property, land use approvals and decisions made by the city on the recycling center. Ms. Kronberg said the case load summary sheet is the last application and the project is called Rio Grande materials recovery facility conceptual SPA amendment. Ms. Kronberg reported that case was closed to perform a master plan and then a Rio Grande conceptual SPA for the recycle center. Ms. Kronberg stated this is an appeal of the community development director's administrative approval of an insubstantial amendment to the Rio Grande SPA for site and operational improvements to the recycle facility. Ms. Kronberg noted the determination shall not be reversed or modified until there is a finding. Ms. Kronberg said due process is following correct legal process; discretion occurs when laws not applied or the decision is based on an erroneous finding of a material fact and where record contains no evidence to support the decision, which is Ms. Kronberg's contention. Ms. Kronberg said there was no willful intent but there is so much history to research that some facts were missed. Ms. Kronberg told Council she went through every single file she could find to come up with this record. Ms. Kronberg asked what was approved as the various components have different approval process. An insubstantial SPA amendment is to an already approved development order for final development plan. This can be approved by the community development director by following the 9 criteria. 12 Regular Meeting Aspen City Council August 23, 2010 Ms. Kronberg told Council she checked with all city departments and has found no development order issued for the recycle center. Ms. Kronberg said a site specific development plan is approved by ordinance by Council with a public hearing and public notice. Vested property rights are established upon approval of a site specific development plan, which constitutes a public hearing and a public notice. Ms. Kronberg said the issue is if this insubstantial amendment is the first approval for the recycle center within the Rio Grande subdivision SPA and if so, the procedure should be SPA procedures for review including public hearing and meetings with P &Z. Ms. Kronberg reminded Council of the work session April 27 where staff requested authorization from Council to proceed with maintenance improvement to the recycle center. Ms. Kronberg told Council she has back up for all her statements. Ms. Kronberg noted staff asked for permission for paving and grading, which are words that trigger a development review, as well as landscaping. After Council approved staff's request, there was a notice of approval by community development department for an insubstantial amendment to an SPA. Ms. Kronberg showed a list of all things that have been approved for the Rio Grande. There was a development order issued for vested property rights, site specific development plan by an insubstantial SPA amendment. Ms. Kronberg presented the newspaper notice stating this was a site specific development plan, creation of a vested property right pursuant to the land use code 24.68 C.R.S. Ms. Kronberg told Council in 1967 the railway company began discussions with the city on rail transportation. In 1973, 7"' penny transportation funds were used to purchase the Rio Grande property. Ms. Kronberg said the 1977 ordinance rezones the Rio Grande property into 10 lots according to an SPA area master plan stating the elements of that master plan would constitute the development regulations for the area. Ms. Kronberg told Council a master plan and plat were recorded; that document has no mention of the recycle center. That was a conceptual plan and expired when a final was not adopted. In 1987, Council adopted the Aspen Area Comprehensive plan and transportation element which identified appropriate concepts for the Rio Grande property and did not have a recycle center in it. In 1988, Resolution #37 approved the conceptual SPA for the Rio Grande parcel, no inclusion of the recycle center. In 1989, Council approved a temporary but indefinite exemption from the special use review process to allow the placement of recycling containers next to the Rio Grande parking lot and shortly thereafter, Council passed a resolution generally supporting recycling efforts but failed to commit a specific action. Ms. Kronberg noted all the different lots, library, jail, youth center, came forward and when through an official SPA review process including public hearings before P &Z and Council. In 1991, there was a request from staff for an SPA review for the recycle center because the 1988 conceptual SPA plan did not address specific projects of the Rio Grande property. The continuation and/or expansion of the recycle center is a revision of that original approval. Ms. Kronberg said anytime something is added to an approval that 13 Regular Meeting Aspen City Council August 23, 2010 did not have it, a process has to be followed. The inclusion of the recycle center is an addition to the original approval and when there is a revision, one has to go through a process Ms. Kronberg said staff memo notes because the property was bought with transportation funds, staff felt a vote would be necessary to change the use from transportation to a recycle center. Ms. Kronberg said in 1991, the Rio Grande recycle center applied for a conceptual SPA, which application was closed and staff was directed to prepare a master plan for the entire Rio Grande property. Ms. Kronberg stated a master plan is only a guiding document, it does not grant any development or final land use approvals. Councilman Skadron said there are differing interpretations of the same subject matter. Ms. Kronberg said the code states "an insubstantial amendment to an approved development order ". Worcester asked whether staff is relying (B) and whether staff can identify a final development plan. Worcester asked if the 1993 Rio Grande master plan a final development plan. Bendon said yes; it sets forth the priorities for all the parcels and the process that they need to go through. Bendon noted the library, parking garage, j ail went through as substantial amendments. Bendon said paragraph (B) gives him jurisdiction to make the modifications. Bendon pointed out in some of the review criteria, staff takes into consideration the existing conditions of the site in order to analyze those criteria. Bendon said specificity was not established in the master plan, like the amount of site coverage, one looks at the use of the existing property. Worcester said Ms. Kronberg's arguments tire whether Bendon exceeded his authority, which turns upon whether or not a final development plan as referenced in (B) is the same as the 1993 Rio Grande master plan. Bendon approved this as an insubstantial amendment to the 1993 master plan. It is up to Council whether staff has convinced them the 1993 master plan is a final development plan. Worcester asked when development orders came into effect. Bendon said that process started about 5 years ago. There would have been no development order in 1993. Councilman Skadron asked upon what is Council relying to make the determination about the master plan. Worcester said staff is telling Council they consider the 1993 Rio Grande master plan to be a final development plan. Ms. Kronberg said Council directed staff to do the master plan, in 1991, Council did not approve conceptually the art park theatre, trolley barn, snow melt operation, recycle center and directed staff to prepare a new conceptual SPA. Ms. Kronberg stated in the master plan, those were not approved uses. In 1993 Ordinance #10 had conditions in it; resolutions and ordinances all had conditions in them; that any future development of the newly created parcels shall be reviewed by P &Z and Council. Ms. Komberg said any conditions attached to a recorded plat are binding. Ms. Kronberg said the library was not an insubstantial SPA. In 1993 the plat that was recorded did not show a recycle center; this plat is as close to an approved development plan. Ms. Kronberg said the illustrations in the master plan state it does not constitute a site specific development plan or development order. 14 Regular Meetine Aspen City Council Aueust 23, 2010 Ms. Kronberg said there were then ordinances approving the jail, library, youth center, all of which had to go through a review process. Ordinance #14 approved the skateboard park and relocation of the basketball court and the review procedure states the process requires approval of a development plan by the P &Z and Council with public hearings occurring at both. Ms. Kronberg stated the Rio Grande master plan was developed as a conceptual SPA plan; following its adoption, new development or significant alterations must be consistent with the conceptual SPA plan and be reviewed to the final SPA development review process from a staff memo outlining the effect of the Rio Grande master plan. Ms. Kronberg said in Obermeyer, the request was to install parking spaces, landscaping and curb cuts and they had to go through the formal review process. Councilman Skadron said it appears that improvements to the Rio Grande area have required a development process. Bendon agreed the history feels like the city bought the property, did not have a consolidated view of what to do with the property, independent proposals kept coming forward, art park, trolley barn, trolley line, etc. At some point, Council requested a master plan for the entire area. Bendon said the 1977 approval talks about all development in the above described area shall be in conformance with the elements of the approved master plan and the process for that plan. Bendon pointed out that plan did not come to fruition until 1993, which put together all the pieces for the Rio Grande. Bendon said new development has to go through an SPA process, it does not specify whether it is substantial or insubstantial. Bendon said developing anew jail is substantial; developing a 350 car parking garage is substantial. Bendon said this request is not a substantial change to the existing use or character, which is a criteria for an insubstantial change. The recycle center is not moving; the character is not changing; the traffic is the same. Bendon said the recently granted approval is for paving the car turn around. Bendon reiterated the 9 criteria help define what is a substantial change and what is an insubstantial change. After reviewing the application, staff decided it was an insubstantial change. Mayor Ireland asked when this was first used as a recycle center. Alexander said in the last 1980's. Mayor Ireland asked if current use of the property is evidence of a final development plan. Ms. Kronberg said nowhere in the code does it state if something has been on a parcel for a while that it is grandfathered in. Ms. Kronberg said the statement of subdivision states everything will go through review, any change, and anything different from the original approval need to go through the formal process. Ms. Kronberg stated the recycling center has never been approved. Ms. Kronberg said the recycle bins were put on the previous impound as a temporary placement waiting to see if rail was going to come to the Rio Grande property. Ms. Kronberg showed a slide of the 1993 Rio Grande master plan. Ms. Kronberg said she thought one needed a final development order in order to do a final development plan. Worcester said requirement for development order did not exist in 1993. Ms. Kronberg said the subdivision statement had 10 lots to it. Worcester pointed out the subdivision was done after the library was built, after the jail was built and the lots were created. 15 Regular Meeting Aspen City Council August 23, 2010 Ms. Kronberg said the 1977 Rio Grande master plan had different uses and a recycle center was not approved. Mayor Ireland said there was no subdivision in effect, the library and other uses were not amendments to the subdivision but were amendments to something else, and so what was in effect was a final development plan. Mayor Ireland said one argument from the applicant is that this is not an insubstantial amendment. Mayor Ireland stated the city attorney established there was no subdivision in effect at the time the other uses came forward; therefore, amendments to it would not be predicate for the creation of the library and that something else had to be the equivalent of a final development plan. Ms. Kronberg reiterated all the new uses went through the land use process according to how it was rezoned from 1977. Mayor Ireland stated those review processes were valid because they were based on a final development order or its equivalent. Ms. Kronberg said the subdivision statement of 1993 says with the agreement and plats recorded, subdivision approval for Rio Grande subdivision with conditions; any future development shall be reviewed and approved by the commission and the Council. The recycle center was not included in the agreement; everything else was included in it. The subdivision statement is a legal binding document. Ms. Kronberg brought up Resolution #42 which says site specific projects have to go through the review process. Ms. Kronberg said the 1993 Rio Grande master plan which recommended moving the recycling center out of the park to across the street and if it had to stay there, the plan recommended moving it up to the street side, which is different from this proposal. The master plan says the city and county should review the recommendations of the Roaring Fork study relating to a regional -wide recycling program and avenues that are being considered for the recycling program. The plan states if the recycling center is considered necessary at this location, the site should be contained. The master plan does not approve a recycle center. Ms. Kronberg noted the 91h criteria used by the community development director states "any changes that is inconsistent with a condition or representation of the project's original approval ". Ms. Kronberg stated the original approval did not include the recycle center; it denied the recycle center and further stated all further modifications shall be approved pursuant to the terms and procedures of the final development plan. Ms. Kronberg reiterated there is nothing that approved the recycle center, not even the Rio Grande master plan. Ms. Kronberg said a site specific development, which is what was published in the paper, may only be approved by written resolution of the P &Z or HPC or ordinance adopted by the Council and this did not happen. These require public notice followed by a public hearing. Ms. Kronberg read from the duties of the City Council, including to hear, review and adopt a conceptual development plan and a final development plan. Ms. Kronberg read from the definitions of development out of the city code that grading, excavation, clearing of land, deposit, fill -in in anticipation of future development, excluding landscaping so this proposal qualifies as development; it is not an insubstantial amendment. 16 Regular Meeting Aspen City Council August 23, 2010 Councilman Torre stated the community development director was not in error of his duties. Councilman Torre said he listed carefully to the technical read of the documents around the recycle center and the recycle center is referred to many times, including continued usage for that purpose. Councilman Torre said recycling has been a traditional use on this property. Ms. Kronberg said she would like to have what the Rio Grande master plan recommends, pushing the containers next to the curb and the remainder of the site can be used for things like picnic tables. Councilman Torre said he does not feel the evaluation of a lack of supporting documentation is accurate. There is a lot of reference to recycle center. Ms. Kronberg said in order to have judicial review, three elements have to happen which is discretion and was there any record to support the decision. Ms. Kronberg asked to see one place in all the documents where the recycle center was approved. Ms. Kronberg said another question is whether the agency proceeded in a manner required by law and did the agency's findings support the decision and did the record support the decision. Councilman Johnson said the 1993 Rio Grande master plan is that document. Councilman Romero stated the absence of a document does not mean the city is incorrect; that approval did not exist when the 1993 plan was approved. In its absence, one goes back to what was approved. Bendon said in 1977, there was an ordinance requiring the development in the area to be in accordance with an approved master plan. Bendon said that master plan existed and at 1991, the city felt it had exceeded its time frame. Council directed staff to develop a new master plan which was adopted in 1993. That master plan has references to a recycle center, material recovery center with suggestions of how to minimize its foot print, include it in the trolley barn, etc. The master plan did recognize the use of a recycle center. Bendon reminded Council the city has looked at an enclosed facility in the Obermeyer project. Bendon said whether this is an insubstantial or substantial amendment, two points of reference are the recycle center amendments out of the recycle COWOP, which were treated as substantial amendments and went through the ordinance process. Bendon said this is the same use, same character; the proposal is for small stylistic changes to the recycle operation. Staff found the criteria for an insubstantial amendment were met. Ms. Kronberg said jurisdiction, Council has the powers and duties to hear and adopt a conceptual and final development plan, not the community development director. Ms. Kronberg said due process is following one's laws, which would include a public hearing and public notice. Ms. Kronberg showed the recorded 1977 master plan, which showed no recycle center. Ms. Kronberg said there is no other instance where a master plan issues a development order. Councilman Skadron moved to adopt Resolution #65, Series of 2010, affirming the community development director's decision approving an insubstantial amendment to the Rio Grande SPA; seconded by Councilman Romero. 17 Regular Meeting Aspen City Council August 23, 2010 Mayor Ireland stated he supports curbside recycling, but this needs to be mandated across the county. Mayor Ireland said he appreciates the zeal of the applicant. Ms. Kronberg cited a whereas from Resolution #42, development review for site specific projects which can only be approved by Planning and Zoning and City Council, which is in the resolution for the Rio Grande master plan. Ms. Kronberg asked how a site specific development plan can be approved by insubstantial amendment by the community development director; that is not in his jurisdiction, not in the land use code. Worcester asked if this stated it should be reviewed through the SPA development review process. Ms. Kronberg said it did. Worcester noted an insubstantial review process is part of the code, staff reviewed as part of the SPA review process and decided it was insubstantial. Ms. Kronberg argued the city needs to follow what the public has relied on with the whereas in the Rio Grande master plan, all statements are it will be reviewed by P &Z and by Council. Ms. Kronberg said she would like a public hearing so people could say what the best use for the recycle center property is. Bendon said his interpretation is the amendments have to be done pursuant to the land use code for SPAS, which leads one to whether it is substantial or insubstantial. Ms. Kronberg stated this is a disservice to the community. Councilman Romero said Council is not doing a disservice to the community; they are being asked to review a particular decision in the confines of the criteria to be applied. Mayor Ireland said there was a predicate upon which the recycle center was created, which predicate existed notwithstanding the later adoption of a master plan; it continued and was not abolished by the master plan. Mayor Ireland stated he feels that was the equivalent of a development order, which did not exist at that time. All in favor, motion carried. Councilman Romero moved to continue the meeting to 4 p.m. August 24, 2010; seconded by Councilman Johnson. All in favor, motion carried. Council left chambers at 10:45 p.m. D 1// - (/" 6�� Kathryn. . Koch, City Clerk