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HomeMy WebLinkAboutLand Use Case.217 3rd St.0013.2012.ASLU THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0013.2012.ASLU PARCEL ID NUMBERS 2735 12 4005 i PROJECTS ADDRESS 219'S THIRD ST PLANNER CHRIS BENDON CASE DESCRIPTION APPEAL- PRE-DEVELOPMENT SLOPE REPRESENTATIVE PAUL YOUNG III DATE OF FINAL ACTION 3.13.12 CLOSED BY ANGELA SCOREY ON: 3.21.12 I' • • 2-735-12 -4 — 65— OcS 0 d13 -201Z - AsLlil I�,rr,7i�3 ,� P File Edit Record Navigate Form Reports. Format Tab Help - 0 © ►X,,,,gqI'(1' l'9���rr Iif€ e•� d• I ill J > 99ErA flo ?u ill:,*—I ®.I04 4 w Routing status 'Fees 'Fee Summary Main Actions 'Attachments'Routing History 'Valuation 'Arch/Eng 'Custom Fields 'Sub Permits 4 1 o- j 9 Perot type aslu v Aspen Land Use Peanut$ 0013.2012ASLU I— Address 219 S THIRD ST '••I Apt/Suite -I oo Gty ASPEN State CO Iv Zip 61611 I••• 0 o - x 'Permit Information-- -. -_-- _ _ - _-. - - - _ D Master permit '• Routing queue aslu07 Applied 3/712012 I v 1 z i Project 1..i1 Status POinVAn Approved 3,17. -v H Description APPLICATION FOR AN APPEAL- Issued Iv 1 ClosedjFinal Iv . Submitted NLIEN,COTE,E WARDS,LLC 9258700 Clock Running Days 0 Expires 302013 I v • I' Submitted via H • • Owner I I Last name IYLPdIEST,LLC '•••I First name SUZANNE FOSTER 219 S TH RD ST I ASPEN C081611 • 1 Phone O Address I Applicant fi 0 Owner is applicant? 0 Contractor is appfcant? (k\19 Last name YOUNG PAUL III ] First name Phone ( ) - Cost it 23638 '11 Address I tender — ---- ---- -- Last name '•^I First name I I Phone ( ) - Address l I I i 'Displays the permit applicant's phone number AspenGold5(server) angelas f,7) :ITT-,:; ��' 112(00 J\� � R 1; 51 2 3� . • • RESOLUTION N0. 22 (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN ADMINISTRATIVE DECISION BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING TOPOGRAPHY OF A PROPERTY LOCATED AT 217/219 SOUTH THIRD STREET, ASPEN, COLORADO. WHEREAS, the Community Development Director received a request from YLP, LLC, owner of a property located at 217/219 South Third Street, to accept an estimation of pre-development topography prepared by a professional land surveyor registered with the State of Colorado; and, WHEREAS, pursuant to Chapter 26.575.020-1 (table) — Calculations and Measurements, the Community Development Director is authorized to accept an estimation of pre-development topography prepared by a registered land surveyor in instances where the grade of a property has been modified by prior development; and, , the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, pursuant to Chapter 26.575.020-1 (table) — Calculations and Measurements, the Director did accept such estimation by issuance of an administrative determination dated February 21, 2012; and, WHEREAS, neighbors Paul and Angela Young, aka Paul Young and Staspen, LLC, represented by attorney Jody Edwards, appealed the administrative decision; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, 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 administrative determination; and, WHEREAS,the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's administrative determination regarding pre-development"topography of the 217/219 South Third Street property. 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 regular meeting on March 12, 2012. ATTEST: k4 4A \ Slaved G Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: James R. True, City Attorney Resolutibn:No.)2_, Series of 201,12, Page 1 • 1)Car MEMORANDUM TO: Mayor Ireland and Aspen City Council COPY: Jim True, City Attorney FROM: Chris Bendon, Community Development Director C% RE: Appeal of Pre-Development Slope Determination/—"219 So. 3rd St. • DATE: . March 12, 2012 SUMMARY: A property's development rights are based on the size and characteristics of the property. The presence of steep slopes reduces the "net lot area" upon which allowable floor area is determined. Many properties contain slopes which are man-made. The City's Land Use Code • permits the Community Development Director to accept an estimation of pre-development topography of a parcel in cases where the grade of the property has been affected by development. The estimation must be prepared by a professional surveyor or civil engineer. The Community Development Director accepted an estimation of pre-development topography for the 217/219 property. An administrative decision was issued February 21, 2012. The owners of the neighboring property, Paul and Angela Young represented by Jody Edwards, have appealed the decision. There are three. criteria upon which the City Council has to decide an appeal of an administrative decision. Based solely upon the record established by the decision, the City Council shall consider whether: I) There was a denial of due process; 2) The administrative body exceeded its jurisdiction; or, 3) The administrative body abused its discretion. These standards ask whether the Director's actions were ethical. The City's code states that the decision or determination made by the administrative officer shall not be reversed or modified unless there is a positive finding on one of these criteria. (Please see Exhibit C for the entire code section.) STANDARDS OF REVIEW: I. Due Process — The code permits the Community Development Director to accept an estimation of pre-development topography. The Director did accept such an estimation for the 219 property prepared by a professional land surveyor. Tthe Director informed the Youngs and their attorney of the determination so as they may avail themselves of this appeal process. The appellant is not claiming there was an abuse of due process. 1 • • 2. Jurisdiction — The Director's jurisdiction to accept an estimation of predevelopment topography is set forth in the City's Land Use Code, Section 26.575.020-1 (a table). "In instances where the natural grade of a property has been affected by prior development activity, the Community Development Director may accept an estimation of pre-development • topography prepared by a registered land surveyor or civil engineer. The Director may •require additional historical documentation, technical studies, reports, or other information to verify a pre-development topography. Staff believes this language is dear and the appellant is not questioning the jurisdiction of the Director. • 3. Discretion — With respect to abuse of the Director's discretion, the code does allow the Director to use discretion. The code allows the Director to accept a pre-development • slope estimation which has been prepared by a registered land surveyor or civil engineer. The estimation was prepared by John Howorth, 'a professional land surveyor registered with the State of Colorado. In his commentary, Howorth cited similar site conditions along the Midland Railroad,right-of-way and concluded the condition of the 219 property to be man-made along with his estimation of the grade prior to development. The language of the code goes on to permit, but not require, the Director to require additional documentation as may be necessary to make a decision. The Director • consulted with the City Engineer Tricia Aragon, a professional civil engineer also registered with the State. After reviewing the Howorth estimation, she reported that the site grade was not natural and agreed with Howorth's pre-development grade estimation. Based on the Howorth information and the clarity of the City Engineer's response, the Director determined additional information was not necessary to verify the pre- development topography and did not require additional studies, reports, etc. • The Director did need to use his discretion in rendering the decision. The question is whether the Director abused that discretion or acted unethically. The decision was based on the professional opinion of both a registered land surveyor and a civil engineer. At some point, the Director must make a decision that sufficient information has been provided to render a decision. In his discretion, the Director determined that the information provided by two qualified professionals was sufficient. The Director believes that his discretion was applied appropriately and that the decision was based on sufficient information. PRIOR HEARING: The appellant cites minutes from a prior appeal concerning this property. This information is simply not part of the record for this determination of pre-development topography. The minutes and documentation of the prior appeal are not part of the decision. In addition, the prior hearing addressed an interpretation of a prior version of the land use code, which is no longer in effect. The code now provides a very clear process by which the City can recognize man-made slopes and accept a profession estimation of pre-development grade. 2 • • • • Two RESOLUTIONS: Attached are two Resolutions. One finds that the Director acted correctly and affirms the decision. The second finds that the Director abused his discretion and reverses the decision. RECOMMENDATION: Staff believes the Director's decision was rendered correctly. Staff recommends City Council uphold the Director's decision by adopting the proposed Resolution affirming the decision. CITY MANAGER COMMENTS: RECOMMENDED MOTION: (all motions ust be made in the positive) • "I move to approve Resolution No. Series of 2012, [affirming or reversing] the Community Development Director's decision regarding topography of the 219 property." ATTACHMENTS: Exhibit A—Administrative determination of slope dated February 21, 2012, with attachments Exhibit B—Appeal letter from Jody Edwards, with attachments Exhibit C—Land Use Code Section Regarding Appeals Exhibit D—Affidavit of notice • 3 • RESOLUTION NO. _ (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL-AFFIRMING AN ADMINISTRATIVE DECISION BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING TOPOGRAPHY OF A PROPERTY LOCATED AT 217/219 SOUTH THIRD STREET, ASPEN, COLORADO. WHEREAS, the Community Development Director received a request from YLP, LLC, owner of a property located at 217/219 South Third Street, to accept an estimation of pre-development topography prepared by a professional land surveyor registered with the State of Colorado; and, WHEREAS, pursuant to Chapter 26.3575.020-1 (table) — Calculations and Measurements, the Community Development Director is authorized to accept an estimation of pre-development topography prepared by a registered land surveyor in instances where the grade of a property has been modified by prior development; and, , the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, pursuant to Chapter 26.3575.020-1 (table) — Calculations and Measurements, the Director did accept such estimation by issuance of an administrative determination dated February 21, 2012; and, WHEREAS, neighbors Paul and Angela Young, aka Paul Yound and Staspen, LLC, represented by attorney Jody Edwards, appealed the administrative decision; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, 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 administrative determination; and, WHEREAS,the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council affirms the Community Development Director's administrative determination regarding pre-development topography of the 217/219 South Third Street property. 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 regular meeting on • , 2012. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor APPROVED AS TO FORM: James R. True, City Attorney Resolution No. , Series of 2012. Page I • RESOLUTION NO. _ (SERIES OF 2012) A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL REVERSING AN ADMINISTRATIVE DECISION BY THE COMMUNITY DEVELOPMENT DIRECTOR REGARDING TOPOGRAPHY OF A PROPERTY LOCATED AT 217/219 SOUTH THIRD STREET, ASPEN, COLORADO. WHEREAS, the Community Development Director received a request from YLP, LLC, owner of a property located at 217/219 South Third Street, to accept an estimation of pre-development topography prepared by a professional land surveyor.registered with the State of Colorado; and, WHEREAS, pursuant to Chapter 26.3575.020-1 (table) — Calculations and Measurements, the Community Development Director is authorized to accept an estimation of pre-development topography prepared by a registered land surveyor in instances where the grade of a property has been modified by prior development; and, , the Director rendered a decision and the applicant sought an appeal; and, WHEREAS, pursuant to Chapter 26.3575.020-1 (table) — Calculations and Measurements, the Director did accept such estimation by issuance of an administrative determination dated February 21, 2012; and, WHEREAS, neighbors Paul and Angela Young, aka Paul Yound and Staspen, LLC, represented by attorney Jody Edwards, appealed the administrative decision; and, WHEREAS, the City Council has taken and considered written and verbal testimony from the appellant, the Community Development Director, and has found that the Director abused his discretion in rendering the administrative determination; and, WHEREAS, the City of Aspen City Council finds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE BE IT RESOLVED that the City Council reverses the Community Development Director's administrative determination regarding pre-development topography of the 217/219 South Third Street property. The current grade of the property shall be the basis for development allowances on this property. 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 regular meeting on , 2012. ATTEST: Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor • APPROVED AS TO FORM: ■ James R. True, City Attorney Resolution No. , Series of 2012. Page 1 CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT ADMINISTRATIVE DETERMINATION 217/219 South Third Street 114 C JURISDICTION: City of Aspen DATE: Febru- y 21, 2012 APPROVED BY: Chris Bendon, AICP Community Development Director Purpose: The Community Development Director is issuing this Administrative Determination to accept an estimation of pre-development topography for the 217/219 South Third Street property, pursuant to Section 26.575.020 of the City of Aspen Land Use Code. Background and Review: The property contains a steep embankment along the southern portion of the property. A surveyor evaluated the site, determined the existing grade to be man-made as part of the development of the Midland Railway, and prepared an estimation of the pre-development grade for review by the Community Development Director. Prior to making a determination, the Director conferred with the City Engineer as to the evidence of the embankment being man-made and the estimation of prior grade. Determination: In accordance with the procedures, standards and limitations of Title 26, this Administrative Determination acknowledges and accepts the estimated pre-development topography prepared . by professional land surveyor John Howarth February 21, 2012. This estimated topography shall be used as the basis for development allowances for this property. Attachments: Aragon email dated February 21, 2012 Howarth letter and survey dated February 21, 2012. • • Chris Bendon From: Trish Aragon Sent: Tuesday, February 21, 2012 5:01 PM - To: Chris Bendon Subject: 219 S. 3rd Chris, I have reviewed the letter and cross sections in the,Howarth survey dated 2/21/12. I agree that the site grade appears to be affected by the railway and is not natural. I also agree with the historic grade outlined in the cross sections. I do want to say that it is hard to really tell unless borings are taken. But in general I do agree' with Howarth's interpolation of historic grade. Trish Aragon, P.E. City Engineer • 130 S. Galena St. Aspen, CO 81611 (970)429-2785 • • • 1 • • RECEIVED Feb 21, 2012 FEB 21. 2012 CITY OF ASPEN Mr. Chris Bendon, Director COMMUMTYDEVELOPMENT City of Aspen Community Development Department 130 South Galena Street Aspen, CO 81611 Dear Chris, The purpose of this letter is to address the narrow band of steep slope that runs through the Foster property, located at 217-219 South Third Street.in Aspen. My firm has prepared a survey of the Foster property that depicts both improvements and topography. I have evaluated the slope that runs east to west through the property, just to the north of what was previously the Midland Railroad right-of-way. I have examined this slope in the field. During my career as a surveyor I have also examined similar slope conditions on other properties along the Midland Railroad right-of-way as it traverses the City of Aspen. It is my conclusion that this slope is not a natural condition on this property, but rather is a man-made condition that is the result of the installation of the railroad. If you have any questions about my conclusions please do not hesitate to contact me. Sincerely, .hn Howarth Aspen Survey Engineers • • KLEIN, COTE & EDWARDS, LLC Aar AT LAW HERBERT S.KLEIN' hsk@kcelaw.net 201 NORTH MILL STREET,STE.203 LANCE R.COTE,PC' Ire@kcelaw.net kcelaw.net ASPEN,COLORADO 81611 JOSEPH E.EDWARDS,III,PC jee@kcelaw.net TELEPHONE:(970)925-8700 KENNETH E.CITRON' kcitron@kcelaw.net FACSIMILE:(970)925-3977 MADHU B.KRISHNAMURTI mbk@kcelaw.net www.kcelaw.net OF COUNSEL: JOSEPH E.EDWARDS,JR.,PC'joe@ktelaw.net kcelaw.net also admitted in Hawaii March 6, 2012 'also admitted in ewYork RECEIVED also admitted in New York and Massachusetts 'also admitted in Texas VIA HAND DELIVERY MAR 0 6 2012 Chris Bendon, Director Community Development Department CITY OF ASPEN 130 S. Galena St., 3rd Floor COMMUNITY DEVELOPMENT Aspen, CO 81611 Re: Notice of Appeal concerning Administrative Determination Related to Man- Made Slopes; 219 South Third Street, Aspen, CO (the"Property") Dear Chris: This letter constitutes a Notice of Appeal pursuant to Section 26.316.030 of the Aspen Municipal Code. This office represents Angela and Paul Young, the owners of property known as 413 West Hopkins, Aspen, CO, and Staspen, LLC, the owner of the property known as 431 West Hopkins, Aspen, CO, both of which are within 300 feet of the Property. On February 21, 2012, an Administrative Determination was issued concerning the acceptance of an estimation of pre-development topography for the Property. The purpose of this letter is to appeal that Determination to the City Council pursuant to Code Chapter 26.316. The basis for the appeal is that the Determination was issued based on an abuse of discretion. Please consider the following. The City Council considered arguments concerning the slope of the Property on October 27, 2009. The City Council made it very clear at that hearing that the City would require the property owner to provide "evidence" concerning what is man- made and what is natural slope and "in the absence of that showing, the natural slope is what one sees." Further, the Property owner's representative, Bart Johnson, acknowledged that the owner would be required to provide such "evidence." See highlighted portions of the Minutes of that meeting attached as Exhibit A. As Mayor Ireland stated in the October 27, 2009 hearing, "it is reasonable to assume that if a railroad is being built, one would put it where the natural land forms support it." Moreover, the City Engineer's email of February 21, 2012, states, "it is hard to tell unless borings are taken." See copy of email attached as Exhibit B. This is consistent with what Larry Doble said in 2009—"Without doing test borings there is no way to tell." See email from Larry Doble attached as Exhibit C. • • Chris Bendon, Director City of Aspen Community Development Department March 6, 2012 Page 2 The Determination is based on a letter and topographical survey from a local surveyor who says he went to the property and looked at it and that he has looked at other properties along the same rail line. This is nothing more than a superficial investigation - no borings were performed. From his observations he concludes that "this slope is not a natural condition on this property." This is not"evidence"—it is a best guess. He does not say what portion of the slope is natural and what portion is man-made, because he can't do that unless he performs the borings which the City Engineers suggested. There is not even an estimation of the percentage of the slope that is natural and is man-made. The visual analysis is inconclusive regarding the portion of the slope which may be cut and which may be fill or what was "original" grade in this location. Regardless, the current grade has been in place for approximately 130 years, long before we had a land use code, and is integral to and a permanent part of the landscape and infrastructure of the City. Absent some reasonably conclusive evidence showing what portion of this slope is natural and what portion is man-made, especially given that it is reasonable to assume the railroad would be built where natural landforms will support it, it is inappropriate to accept a guess that 100% of the slope is man-made. A reasonable estimation can be made that shows the entire slope is natural. See sketch attached as Exhibit D. In these circumstances, it was an abuse of discretion to render a Determination without sufficient evidence to establish this historical grade of the property. Enclosed are our (1) Land Use Application Form, (2) Agreement to Pay Fees and (3) the fee in the amount$1,260.00. If you require any additional information in order to pursue the Appeal of the Determination, please contact me. It is my understanding that the City has already published Notice of the Appeal hearing date. Sincerely, KLEIN, CO ' & EDWARDS, LLC B.. 1'• Ai • Jos4i E. Edwar s III cc: Paul and Angela Young John Staton young\Itr to Bendon appeal slope detemination.doc • • RECEIVED • MAR 0 6 2012 ATTACHMENT 2—LAND USE APPLICATION CITY OF ASPEN PROJECT: COMMUNITY DEVELOPMENT Name: Foster Lot Split Location: 219 South Third Street (Indicate street address, lot&block number, legal description where appropriate) Parcel ID#(REQUIRED) APPLICANT: Name: Paul Young and Staspen, LLC Address: c/o Klein, Cote F, Edwards, LLC, 201 North Mill St. , #203, Aspen. CO - Phone#: 925-8700 REPRESENTATIVE: Name: Joseph E. Edwards, III Address: 201 N. Mill St. , #203, Aspen,';C0 Phone#: 925-8700 TYPE OF APPLICATION: (please check all that apply): ❑ GMQS Exemption ❑ Conceptual PUD ❑ Temporary Use ❑ GMQS Allotment ❑ Final PUD(&PUD Amendment) ❑ Text/Map Amendment ❑ Special Review ❑ Subdivision ❑ Conceptual SPA ❑ ESA—8040 Greenline,Stream ❑ Subdivision Exemption(includes ❑ Final SPA(&SPA Margin,Hallam Lake Bluff, condominiumization) Amendment) Mountain View Plane ❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/ Expansion ❑ Residential Design Variance ❑ Lot Line Adjustment ® Other: Appeal ❑ Conditional Use EXISTING CONDITIONS: (description of existing buildings,uses,previous approvals,etc.) Non-Conforming Duplex PROPOSAL: (description of proposed buildings,uses,modifications,etc.) Have you attached the following? FEES DUE:$ ❑ 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 large project All plans that are larger than 8.5"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. • 1 _ Lin COMMUNITY DEVELOPMENT DEPARTMENT Agreement to Pay Application Fees x o An agreement between the City of Aspen ("City')and c Property Phone No.: 925-8700 zi Owner("I"): Paul Young and Staspen, LLC Email: jee @kce1aw.net m o M Address of Billing D �' Property: 219 South Third Address: 201 North Mill St. , #203 0 (subject of (send bills here) Aspen, CO 81611 rn N application) Z I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications and the payment of these fees is a condition precedent to determining application completeness. I understand that as the property owner that I am responsible for paying all fees for this development application. For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these flat fees are non-refundable. $ flat fee for $ flat fee for . $ flat fee for . $ flat fee for . For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed project, it is not possible at this time to know the full extent or total costs involved in processing the application. I understand that additional costs over and above the deposit may accrue. I understand and agree that it is impracticable for City staff to complete processing, review, and presentation of sufficient information to enable legally required findings to be made for project consideration, unless invoices are paid in full. The City and I understand and agree that invoices mailed by the City to the above listed billing address and not returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30 days of presentation of an invoice by the City for such services. I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non-payment. I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the processing of my application at the hourly rates hereinafter stated. $ 1,260.00 deposit for 4 hours of Community Development Department staff time. Additional time above the deposit amount will be billed at$315 per hour. $ deposit for hours of Engineering Department staff time.Additional time above the deposit amount will be billed at$265 per hour. Appellant : Paul Young and• Staspen, LLC City of Aspen: ' I Bit.I-•• ' i _.-7 inn "n` Chris Bendon Community Development Director I� e.h _ . . , . City Use: Ti e: Attorney for Appellant Fees Due:$ Received:$ November,2011 City of Aspen j 130 S.Galena St.1(970)920-5090 • • • Continued Meeting Aspen City Council October 27, 2009 Mayor Ireland called the continued meeting to order at 4:12 p.m. with Councilmembers Romero and Johnson present. • RESOLUTION#89, SERIES OF 2009—Code Interpretation Appeal—Man-made Landforms • Chris Bendon, community development department, told Council this is an appeal of a land use code interpretation made by the community development staff on lot area and man made land forms. Bendon said one of the tasks of the community development director is to interpret the land use code,which is a formal process at the request of an applicant. The interpretation affords the applicant the right to appeal the decision. Bendon noted there is a section in the land use code that outlines the details and the time frames for code interpretations. Bendon explained this is because the code is not always clear; there are differences of opinion. This is a process of determining what the codes says. Bendon noted there are also conversations about what the code should say and there is a separate process for amending the land use code. Bendon reminded Council this appeal is of the record. Bendon said this interpretation deals with how man made landforms affect development rights. Bendon said the city reduces development rights for conditions existing on a property, which comes down to a calculation called lot area. Lot area is reduced for areas under high water, areas within former rights-of-way, and areas that are affected by slopes. This particular appeal is about slopes. Bendon said the definition of lot area mentions slopes, high water lines, rights-of-way. There is not a definition of slope, which is what this appeal comes down to, what is the meaning of slope. Bendon noted this interpretation cites a term that is defined, structure, which describes what can be constructed on one's site and one of those is a berm, which can be constructed on site. Technically a berm is a structure. Bendon said this interpretation allows the planning office to accept an assumed natural grade when there is clear evidence there is an unnatural condition. Bendon said property owners are allowed to go back to what was originally there prior to man having an affect on site. Bendon said this particular appeal is in regard to 219 south Third,which had a lengthy review in front of Council. Bendon pointed out a portion of the property is impacted by a railroad right-of-way with a significant change in topography related to the railroad right-of-way on the south side of the property. Bendon said if the interpretation stands, it will allow the planning department to work with the land owner to come up with a pre-railroad grade which may add up to 500 square feet of additional floor area. Bendon told Council this interpretation could apply to many sites in town. There are two ways to look at this issue; one is the way in which the planning department has traditionally looked at this, to allow property owners to go back to a virgin landscape and assume the slope prior to the affect of man. The other is to look at the condition of the site right now, which includes all the things that have happened to the site. Bendon said property owners could change their landscape and flatten out steep topography in order to increase the development rights. Bendon stated there are several places in the land use code where that activity is specifically prohibited. EXHIBIT $ t a A • Continued Meeting Aspen City Council October 27, 2009 The best example is height which is measured to a natural or developed grade, the lower of the two. A property owner cannot mound up their property in order to develop and increase the allowable heights. Bendon said this is an example of not allowing property owners to affect their property in order to increase development rights. Bendon noted there are 3 standards on which Council needs to make their decision; these are contained in the code. The standards are whether there was a denial of due process, the administrative body exceeded its jurisdiction, or the administrative body abused its discretion. Bendon said due process is about the process up to this point issuing this opinion. Bendon reiterated the land use code describes as one of the tasks of the community development director to issue interpretations. Bendon stated whether the administrative body abused its discretion is the heart of this discussion. Bendon noted the community development director needs to use discretion when faced with terms that are not defined, one needs to look to other terms in the code and use judgment in rendering an interpretation. Bendon told Council his interpretation is consistent with how the city has applied the issue of manmade topography in the past and is a technical analysis of the terms in the code, what other terms that can be relied on, the history of the policy and the analysis of the effects of various decisions. There is a resolution to support the decision of staff and one to overturn that decision. If Council overturns the interpretation, they will need to set out policy going forward. John Worcester, city attorney, told Council the appellant has stated there was an abuse of discretion not a violation of due process so Council can focus on that standard. Worcester pointed out a decision of the administrative body that is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority is an abuse of discretion. Worcester said Council must determine whether Bendon's determination was a proper one, whether they agree with it is not relevant. Council should not determine whether the decision was correct but only whether it was an abuse of discretion, a violation of due process or exceeding one's jurisdiction. Jody Edwards stated his is withdrawing the second appeal. Edwards said he will focus on definition of lot area. Edwards said the appellants have no complaints regarding due process or concerning jurisdiction or ethical behavior. The only basis for the appeal is whether the community development director abused his discretion by reading words into the code that are not presently there. Edwards pointed out page 3 of staff's memo and quoted"the question in a code interpretation is what does the code say"not what should the code say. The memorandum points out the appropriate venue for what the code should say are a code amendment through that process. This appeal is only looking at what the code does say. Edwards said practically, the public has to be able to read the code,to read the law, and to know what it means. The public should not have to imagine what words should be added or subtracted to meet the desires of the governing body. Edwards noted people have to be governed by what the law says, not what people believe it should say even if one does not agree. The principle is what the law says; the fundamental rule of statutory interpretation is that if the law is clear as written, then no interpretation is necessary. 2 Continued Meeting_ Aspen City Council October 27,2009 Edwards noted Courts must presume that a legislature says in a statute what it means and means in a statute what it says. Edwards noted the definition of`lot area"in the code which states"areas with slopes of greater than 30%shall be excluded". Edwards said this is a simple statement with no ambiguity. It does not matter whether the slope was created by the formation of the Rocky Mountains, by a mudslide or by a group of men building a railroad. No distinctions are made by the language in the code and making any distinctions is to add language to the code. Edwards said if the lack of language results in hardships, a land owner can appeal to the Board of Adjustment or appeal to Council to amend the code. Edwards stated it is an abuse of discretion for staff to add words to the code that are not there, such as man made or natural. Edwards said in the interpretation, staff expresses concern that a property owner could regrade steep slopes in a benched or terrace fashion and increase the allowable floor area on the site. Edwards pointed out the city's code states anything other than landscaping is defined as development and therefore requires a permit. Any such permit could be granted with a note that it is not granting additional floor area. Edwards said staff and the attorney for the owner at 219 S. Third street state that staff previously interpreted the term slope so as to not include man made slopes. Edwards said this provides a course of conduct, it does not justify the interpretation. Edwards stated the fact that there have been informal, unappealed staff determinations that man made slopes are excluded from the deductions from lot area does not justify further areas in the applications of what is clear and simple language. Edwards pointed out in the memo the community development director notes that other provisions of the code do not allow a property owner to artificially elevate the land to increase heights or to add a vacated right-of-way to lot area in order to increase floor area and the code does not penalize a lot owner by reducing area lot area for dedicated public trails. Each of these assertions is correct and is provided for with existing language in the code. The code specifically states that height is to be measured from natural or finished grade, whichever is lower at any point around the perimeter of the building. The definition of lot area specifically excludes areas that are vacated rights-of-way and specifically includes trails. Edwards said this is different from the present case where language states steep slopes are to be excluded. Edwards noted staff believes that means"natural terrain prior to being affected by development", which language does not appear in the code. Edwards said the measurement for height, natural or finished, is covered in the code but slopes are not which indicates that slopes, manmade or natural, should be excluded from lot area. Edwards reiterated the issue is what the code says; not what it should say. The code contains a clear statement that slopes in excess of 30% must be excluded from lot area for purposes of calculating floor area with no qualifiers like natural or man made. Mayor Ireland said the suggestion by Edwards is that the people who created the code intended a one-way effect on development, to decrease a property's developability by putting a berm on it but one cannot increase by flattening it. Edwards told Council that is not what he is saying; he asserts that slope is slope. Councilman Romero asked if staff 3 • Continued Meeting Aspen City Council October 27, 2009 has had code interpretations relating to slope and calculating lot area. Bendon said not regarding slope. Councilman Romero said in calculating lot areas, staff has treated man made forms as part of the lot on which to calculate floor area. Councilman Romero noted there is an operating precedence but no actual interpretation or appeal. Bart Johnson, representing the owner of 219 South Third subject of the appeal,noted Council asked if there was any evidence of legislative intent. Johnson pointed out staff wrote that Council minutes from hearing on this provision do not reference slope and staff believes that by slope the drafters meant the natural terrain prior to being affected by development. There is in the record a statement of what staff believes what the intent was. Johnson clarified there is one official request for interpretation on this issue, which did not result in an official interpretation from staff. Johnson said this request was made in 2006 by the owner of the property at the southwest corner of Midland Avenue and east Hopkins and is referenced in the record. Johnson provided materials that show the applicant was permitted to move forward based on interpolated natural slopes. There is some precedence that that policy goes back years. (Councilman Skadron came into the meeting) Johnson said slope is not defined in the city's land use code. The land use code does have rules of construction, 26.104.080 which states when a word or phrase has acquired a technical or particular meaning whether by ordinance,definition or otherwise, it should be construed accordingly. Johnson said in this case, it is clear through prior interpretation and staff policy, the term slope has acquired a particular meaning—natural slopes prior to man's interference with them. Johnson said the code also provides when one is reading the code, one has to read all provisions as a whole to fulfill legislative intent. Johnson said the logical conclusion of Edwards' argument is that slope is a forever changing thing and what matters is the slope that exists on a site the day of applying for a building permit. Johnson pointed out the city code does not prohibit interference with slopes in the 20-30%zone. The county code has a provision that one cannot modify slopes; there is nothing in the city code that would present someone walking in with a building permit for earthmoving and flatten out their complete site to maximize their site before applying for a building permit. Johnson said that is not the intent of the city code. Johnson said the community development director needs to be able to read some common sense into the code and Council should follow his interpretation that slope must have meant the natural land forms that existed. Johnson said the argument against that is that in granting a permit for grading, a condition could be attached stating the land can be re- graded but not to the benefit of the property owner. Johnson stated there is no authority in the city's code to place that type of condition on a grading permit. The community development director should be allowed to interpret slope to mean natural landforms and to read the code in a larger context. John Worcester, city attorney, said Councilman Skadron should not participate unless the parties waive that. Johnson stated they would prefer the Councilmembers present for the entire argument participate. 4 Continued Meeting Aspen City Council October 27, 2009 Councilman Romero asked about the reference to general rules of construction. Johnson said that refers to principles used to interpret the code. Councilman Romero asked for an explanation of"acquired a meaning". Johnson quoted from Section 26.104.080(a) general rules of construction and application, `words and phrases that have acquired a technical or particular meaning, whether by ordinance definition or otherwise, shall be construed and applied accordingly". Johnson argued that the term slope is not defined in the code and one needs to look outside the code unless there is a clearly defined common meaning that is undisputable. The code's rules of construction also state that words should be given their plain meaning. Johnson said the term slope is questionable about what it means; it can be a technical teen, and it is not defined in the city code. Johnson said he read the general rules of construction and then tried to determine how to figure out what slopes means. The community development director is charged with interpreting the city code. Johnson noted that state statute also says the person charged with enforcing the code is given the task of interpreting it. Johnson said he looked into how the community development department has interpreted slope in the past. Johnson said he found that the term slope has been defined for the property at Hopkins and Midland Avenue, that slope means the natural terrain not manmade terrain. Otherwise one would end up with constantly changing landscape and people can regrade their lots. Mayor Ireland said if the assertion is that slope is natural terrain prior to man's action, the question is when, when does land acquire its natural terrain. Johnson said"when" is when humans starting developing in Aspen's townsite. Johnson said for this particular lot, it can be pinpointed to when the railroad came into Aspen, about 1889. The city's engineer has concluded,based on investigation of the site, that it is a manmade landform. Johnson stated his argument is not that manmade landforms should be excluded but that Chris Hendon,community development department, did not abuse his discretion in reaching his conclusion. Johnson pointed out in order for Council to reverse the interpretation, they have to find there is no evidence to support his conclusion. Mayor Ireland asked how much of the berm is manmade. Johnson said they do not know that. Mayor Ireland said there is nothing in the record to show that all or part of this berm did not exist and it is reasonable to assume that if a railroad is being built, one would put it where the natural land forms support it. Johnson said this case is about how one interprets the land use code and beyond that, the separate issue is how the land code is enforced. Johnson said his client will submit information that provides evidence on what is natural and what is manmade in this berm. Johnson noted the city engineer pointed out it may be necessary to do borings in this area. Mayor Ireland said he believes every body of law requires interpretation because words change in meaning and use over time. Councilman Johnson asked if the community development director has discretion in interpreting the land use code. Worcester said he does have discretion; there is a section of the land use code giving the director the 5 . .. • Continued Meeting Aspen City Council October 27, 2009 authority and anyone can ask the director to make a land use code interpretation to help them in their planning. Edwards said it is a stretch to state that the word"slope"has acquired a meaning when there are one or two instances where this has been interpreted to be man made. Edwards said that has not acquired a meaning in the community at large or among the land use community. Edwards said the "when" issue is important because slopes will change both by man made and by natural changes, like avalanches, earth, mud, earthquakes. Edwards asserted it should be the slope as existed at the time the code was adopted, which time makes sense. Edwards said there is the question of what is natural and what is man made. Edwards said the community development director and city engineer went to the site; the engineer said it is probably man made but to know for sure, test borings have to be done. Councilman Johnson noted staff's memo states, the slope has been altered from its original condition; why then are boring samples necessary. Bendon said that will address what the natural slope is, that the berm is constructed, how far down the man made slope is. Councilman Romero said he is not sufficiently swayed by the arguments that the community development director stepped outside his realm of discretion in performing the duties of reasonable interpretation. Councilman Romero said although there is only one decision in the record regarding this issue, there is a historical common application of the code, specifically to grades and the motion of pre-existing "natural" grades and slopes. Councilman Romero said the measurement for heights between pre-existing and reconstruction is in the code, which is reference for the construction industry and has acquired meaning and this indicates the community development director stayed within his realm in rendering his decision, taking in precedence and taking the entire land use code to apply a reasonable result. Councilman Romero said the community development director did not violate his discretion. Councilman Johnson said the community development director has, as one of his duties, the task of interpreting the code and has discretion to do that. Councilman Johnson said there will always be things in the code that are not clear. Councilman Johnson stated the community development director has not abused his discretion. Mayor Ireland proposed this be modified to incorporate the principle that it is the burden of the applicant to show what the original natural slope was and in the absence of that showing, the natural slope is what one sees. The applicant should have the opportunity through a public process what that man made portion is. Mayor Ireland said he would like this modified that it is the burden of the applicant to reasonably show to what degree the original slope was. Mayor Ireland said that should be a public hearing where evidence can be presented. Worcester said the motion to approve the resolution should be amended in the 4th WHERAS clause "the City Council has taken and considered written and oral argument 6 • Continued Meeting Aspen City Council October 27, 2009 from counsel for the appellant, counsel for the owners of the subject property 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". Councilman Romero moved to adopt Resolution #89, Series of 2009, with the amendment outlined above; seconded by Councilman Johnson. Mayor Ireland said the code needs to be amended in the future to know when the natural grade was so the community knows from when this is dated. All in favor, motion carried. Bendon said staff needs to see reasonable and credible information provided by the applicant to determine what is man made and what is natural. This can be soil borings, site inspection or technical information. That is the burden of the applicant to provide these and to make an argument to staff. Bendon said this can include old surveys, old flyovers, or a report from a geotechnical engineer. Johnson requested clarification that this is to be done in a public hearing process. Johnson said this can be done with staff in the building permit process. Bendon said there is no remaining public process on this property. Mayor Ireland said the Council has been asked to grant variations and exceptions. Bendon noted that process is concluded. Councilman Romero said this is now back to normal course of business within the land use code. Councilman Romero agreed the applicant will submit technical and reasonable evidence to the community development department. This will not come back to'Council for a public process. Councilman Romero moved to adjourn at 5:25 p.m.; seconded b Mayor Ireland. All in favor, motion carried. k.,✓ . / L Kathryn/:. Koch, City Clerk 7 • • Chris Bendon • From: Trish Aragon Sent: Tuesday, February 21, 2012 5:01 PM To: Chris Bendon Subject: 219 S. 3rd Chris, I have reviewed the letter and cross sections in the,Howarth survey dated 2/21/12. I agree that the site grade appears to be affected by the railway and is not natural. I also agree with the historic grade outlined in the cross sections. I do want to say that it is hard to really tell unless borings are taken. But in general I do agree with Howarth's interpolation of historic grade. Trish Aragon, P.E. City Engineer 130 S.Galena St. Aspen,CO 81611 (970)429-2785 1 EXHIBIT e B Larry Doble From: Larry Doble Sent: Wednesday, July 15, 2009 11:43 AM To: Amy Guthrie Subject: RE: 219 s. 3rd st. FAR and 30% Slopes • Amy, It appears to be reasonably accurate. Without doing test borings there is no way to tell. Larry From: Amy Guthrie Sent: Wednesday, July 15, 2009 11:39 AM To: Larry Doble Subject: FW: 219 s. 3rd st. FAR and 30% Slopes Hi Larry-will you look at the attached site section and tell me if you think it is accurate (the estimated natural grade part.)thanks From: Bill Maron [mailto:bill @strykerbrown.comj Sent: Wednesday, July 15, 2009 9:39 AM To: Amy Guthrie Cc: suzanne @tfosterjewelers.com Subject: 219 s. 3rd st. FAR and 30% Slopes • Amy Sorry this is later than I said, I had a joint P&Z and Town Board work session in basalt to prepare for and was unable to complete this in time. I wanted to double check my math. Bill Maron Stryker Brown Architects 119 South Spring Street. Aspen, CO 81611 P: 970.925.2100 F: 970.925.2258 C: 970.948.5358 W: strykerbrown.com • EXHIBIT 2 1 S C Mar 01 12 10:08a Paul Young • 970-54929 p.4 1 Z a ti 1 V" th it • t �M--}1, Q S 1' . r : i -.._. 1 r c 44 4.4 - y %)::)...it IA ..k. . - .I- • C ? . 1. t , 1' P • w Pi a 0 , .. - EXHIBIT I o Chapter 26316 av:Itilfre G APPEALS ._-� Sections: Gam' 26.316.010 Appeals, purpose statement. 26.316.020 Authority. 26.316.030 Appeal procedures. 26.316.010 Appeals, purpose statement. The purpose of this Chapter is to establish the authority of the Board of Adjustment, Growth Management Commission,the Planning and Zoning Commission,and City Council to hear 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 of Adjustment The Board of Adjustment shall have the authority to hear 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 hear 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 Director in accordance with Chapter 26.306.An appeal of this 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 Director 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 board 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 • S D. Administrative Hearing Officer. The Administrative Hearing Officer shall have the authority to hear 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, Ord. 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 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. 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 hear 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 making 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-making body hearing 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-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 • S 41 AFFIDAVIT OF PUBLIC NOTICE 1=kta ^` REQUIRED BY SECTION 26.304.060 (E),ASPEN LAND USE CODE _ ADDRESS OF PROPERTY: U"1 Jf v\ eivr4 '* , Aspen, CO SCHEDULED PUBLIC HEARING DATE: t 1&ed — tZ ,2012. STATE OF COLORADO ). ) ss. • County of Pitkin , \^) • I, CAM2r5 � (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: Mailing of notice. By the mailing of a notice obtained from the Community Development.Department, which contains the information described in Section 26304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public meeting, notice was mailed by first class postage prepaid U.S. mail to the appellants. The names and addresses of property owners are those on the current tax records of Pitkin County as they appeared 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 attac (d hereto. f / Signature The foregoing "Affidavit of Notice" was acknowledged before me this Q1)day of ������rte. `� , 20L4.by C.1-) 1:iS j�E',10c,r,I WITNESS MY HAND AND OFFICIAL SEAL M commission expires: I 7 L7(5 Y P �JC-) f � �'o.. f CC ` texx, ,a, Public .9�F•..»......... �, OF co-(' • • • Paul and Angela: Community Development recently issued a determination regarding the pre-development grade of Suzanne Foster's property. I sent Jody Edwards the staff memo. I don't know if you will choose to appeal this decision. If you do appeal it, the meeting to discuss the appeal has been scheduled for the March 12, 2012, City Council meeting. If you decide not to appeal the decision, the issue will be deleted from the agenda. Please contact me if you have any questions. Thanks. Chris Bendon—429-2765. PUBLIC NOTICE RE: APPEAL OF PRE-DEVELOPMENT SITE GRADE DETERMINATION FOR 217/219 SOUTH THIRD STREET NOTICE IS HEREBY GIVEN that a public meeting will be held on Monday, March 12, 2012, to begin at 5:00 p.m. before the Aspen City Council, Council Chambers, City Hall, 130 S. Galena St., Aspen, to consider an appeal of a determination of natural site grade by the Community Development Director for the property 217/219 South Third Street. The determination was made on February 21, 2012, concluded the existing grade of the property to be man-made, and accepted an estimation of pre-development topography prepared bya professional land surveyor. The property is owned by YLP West, LLC.; 7 South Main Street; Yardley, PA 19067; represented by Suzanne Foster of the same address. The subject property is legally described as Lots 0, P, Q, R, and S, Block 39,City and Townsite of Aspen, excepting therefrom that portion of Lots 0, P, and Q that lies south of the northerly boundary of a right of way described as a 17 foot strip of land being 8.5 feet on each side of a centerline of the Colorado Midland Railway right of way and southerly 25 feet of Lot R and S as . described and shown in deed and map recorded February 27, 1950 in Book 175 at Page 628. For further information, contact Chris Bendon at the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO 970.429.2765, (or by email chris.bendon@ci.aspen.co.us). s/Michael C. Ireland, Mayor Aspen City Council 17444 fare Atari- W To] attair(5 (we to' ht-tvat no5 . . ? o m z c m 2 9 n - ri n ° ° w> y 4 p Z m a mr y cr. LO y x 7' A m z m � ;, z , " z i ...r1 .t... .. ccts _7— . . • • • , , . f- cl.A. .. ,......., .,..sq) f 37 . . al . 1 c J., .4.... 4, 1„. _sr-33 . id) . . ..ar_ . . . . . . _cr. . . ,, . . .3.9.. •; . . . k u •• y• r . • r. +` a°rpo UPIITt� y° oN UN% • S o � • ma m q; . r�� Wes' �y • • oA t N ON-0 .. U'• . N T i, d i', p o 17Y O @ y s A O p Co " N '� �qg�• 3 9 N .'ig;'mod nm® y Cam' ® �Yad ® z mT ® i III na ®i ili . • °_tE -N m • • • -N A N C N • • • • • • AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: tiriAfq CO PI c+. S et , Aspen, CO SCHEDULED PUBLIC HEARING DATE: t14.,rolA l2 , 2012 STATE OF COLORADO ) ) ss. County of Pitkin ) I, otiaS 'j213 (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: • 1/ 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. l 1 Signature The foregoing "Affidavit of Notice" was acknowledged before me this day of f hfu.o_v - , 2013,-by '16 Nj /J\ WITNESS MY HAND AND OFFICIAL SEAL • My commission expires:..expires: L,J 1 S I I f p t � 4 Notary Public ATTACHMENTS AS APPLICABLE: COPY OF THE PUBLICATION 5. Streets in the PUD which are proposed or recommended to be retained under private ownership provide appropriate dedication to public use to ensure appropriate public and emergency access. Response: There are no streets planned within the project. 6. Security gates, guard posts, or other entryway expressions for the PUD, or for lots within the PUD, are minimized to the extent practical. Response: No such gates or other entryway expressions are planned as part of this project. J. Phasing of Development Plan. The purpose of this criteria is to ensure partially completed projects do not create an unnecessary burden on the public or surrounding property owners and impacts of an individual phase are mitigated adequately. If phasing of the development plan is proposed, each phase shall be defined in the adopted final PUD development plan. The phasing plan shall comply with the following: 1. All phases, including the initial phase, shall be designed to function as a complete development and shall not be reliant on subsequent phases. 2. The phasing plan describes physical areas insulating, to the extent practical, occupants of initial phases from the construction of later phases. 3. The proposed phasing plan ensures the necessary or proportionate improvements to public facilities, payment of impact fees and fees-in-lieu, construction of any facilities to be used jointly by residents of the PUD, construction of any required affordable housing, and any mitigation measures are realized concurrent or prior to the respective impacts associated with the phase. Response: While a phased development is not proposed for this project, it is probable that development on each lot will take place in its own time frame. • a • • V. SUBDIVISION REVIEW, LOT SPLIT The applicant proposes to split the lower lot into two smaller residential lots. Therefore, staff has advised that this application is subject to subdivision review as a lot split. Section 26.480.030.A.2 of the Land Use Code provides the review standards for a lot split for the purpose of the development of one detached single-family dwelling on a lot formed through such a split granted subsequent to November 14, 1977. It states that the City may • approve a lot split if the following standards are met: a. The land is not located in a subdivision approved by either the Pitkin County Board of County Commissioners or the City Council, or the land is described as a metes and bounds parcel which has not been subdivided after the adoption of subdivision regulations by the City of Aspen on March 24, 1969. This restriction shall not apply to properties listed on the Aspen Inventory of Historic Landmark Sites and Structures. Response: The land is comprised of Townsite lots that are not located in a City or County approved subdivision. b. No more than two lots are created by the lot split, both lots conform to the requirements of the underlying zone district. Any lot for which development is proposed will mitigate for affordable housing pursuant to Section 26.470.070 (B). Response: Two lots are proposed to be created by this lot split. The lots conform to the requirements established by the PUD zoning that is being applied to the property. Affordable housing mitigation is provided for, as described above. c. The lot under consideration, or any part thereof, was not previously the subject of a subdivision exemption under the provisions of this Chapter or a "lot split"exemption pursuant to Section 26.470.040 (C) (1) (a). Response: The lot has not previously received any of the above-listed approvals. d. A subdivision plat which meets the terms of this Chapter, and conforms to the requirements of this Title, is submitted and recorded in the office of the Pitkin County Clerk and Recorder after approval, indicating that no further subdivision may be granted for these lots nor will additional units be built without receipt of applicable approvals pursuant to this Chapter and growth management allocations pursuant to Chapter 26.470. Response: The required plat will be submitted following approval of this application. e. The subdivision exemption agreement and plat shall be recorded in the office of the Pitkin County Clerk and Recorder. Failure on the part of the applicant 2, 3 to record the plat within 180 days following approval by the City Council shall render the plat invalid and reconsideration of the plat by the City Council will be required for a showing of good cause. Response: The applicant agrees to record the plat and agreement within the specified 180 day time frame. e. In the case where an existing single-family dwelling occupies a site which is eligible for a lot split, the dwelling need not be demolished prior to application for a lot split. Response: The existing residential structure has not been demolished. g. Maximum potential buildout for the two parcels created by a lot split shall not exceed three (3) units, which may be composed of a duplex and a single-family home. Response: The proposed buildout is two units, each of which will be a single-family home. k • VI. CONCLUSION The applicant has submitted all of the materials requested by the staff on the pre- application conference, has responded to the applicable standards of the Aspen Land Use Code, and has demonstrated the compliance of the proposed PUD with said standards. The applicant will respond in a timely manner to any requests from reviewing agencies or City staff for additional information or clarification of any of the statements made herein. Please feel free to contact the applicant through its representatives as may be necessary. • Ex h,b , } 1__ Prao•- o• '- sin f' Owner's Policy of Title Insurance — Schedule A Issued by Lawyers Title Insurance Corporation LandAmerica Lawyers Title Lawyers Title Insurance Corporation is a member of the LandAmenca(amity of tele insurance underwriters Lawyers Title Insurance Corporation 5600 Cox Road Glen Allen, Virginia 23060 File No : PCT22148L6 Policy No.: C29-Z102631 Address Reference: 219 S 3RD ST., ASPEN, CO 81611 Amount of Insurance: $4,050,000.00 Premium: $ 6,911.00 Date of Policy: December 2. 2009 @ 10:11 AM 1. Name of Insured: YLP WEST, LLC 2. The estate or interest in the Land that is insured by this policy is: IN FEE SIMPLE 3. Title is vested in: YLP WEST, LLC 4. The Land referred to in !his policy is situated in the County of PITKIN, State of Colorado and Is described as follows: LOTS 0, P, 0, R AND S. BLOCK 39. CITY AND TOWNSITE OF ASPEN Excepting therefrom that portion of Lots 0, P and O that lies south of the northerly boundary of a right of way described as a 17 foot strip of land being 8.5 feet on each side of a centerline of the Colorado Midland Railway right of way and southerly 25 feet of Lo! R and S as described and shown in deed and map recorded February 27, 1950 in Book 175 at Page 628. Countersigned: Authorized officer or agent ALTA Owner's Policy Schedule A (Rev 6/06) Form 1190-134L • g Proposed Development: 219 S. 3`d Street Aspen, Colorado, 81611 Parcel 1D# 2735-124-65-005 Legal Description: Lots O,P,Q,R and S, Block 39, City and Townsite of Aspen Excepting therefrom that portion of Lots O,P and Q that lies south of the northerly boundary of a right of way described as a 17 fool strip of land being 8.5 feet on each side of the Colorado Midland Railway right of way and southerly 25 feet of Lot R and S as described and shown on deed and map recorded February 27, 1950 in Book 175 at Page 628 • x Y\ , 13 ; -I- 4 3 f-)u±h0( , ZC2k) CrV\ 'Ate `—1 CI City of Aspen Community Development Department Pitkin County Aspen, Colorado The applicant for this project is: YLP West, LLC . 7 S. Main Street Yardley, PA 19067 . 215-493-6100 215-493-6559 Fax Representatives authorized to act on behalf of the applicant include: Primary Contact: Suzanne Foster Alan Richman, Planning Services 7 S. Main Street Box 3613 Yardley, PA 19067 Aspen, CO 81612 215-353-1907 Cell 215-493-6559 Fax suzanne@tfosterjewelers.com Secondary Contact: Timothy W. Foster Edward P. Timmons, Esq. • 7 S. Main Street Timmons LLC Yardley, PA 19067 450 East 17th Ave. 215-499-7071 Cell Suite 210 215-493-6559 Fax Denver, CO 80203 tim@tfosterjewelers.com Suza ne Foster. V , ((. Tirr#o h W. F. t-r xh� b ‘ t � Pi€ pier ,tak- 50 M M R_ CITY OF ASPEN PRE-APPLICATION CONFERENCE SUMMARY PLANNER: Chris Bendon, 429-2765 DATE: 11.17.11 PROJECT: 219 S. Third St. Lot Split& PUD APPLICANT: Suzanne Foster Tel: (215)493.6100 DESCRIPTION: The Applicant is pursuing a lot split subdivision to divide the northern portion of the parcel into two lots, each to contain one single-family residence. Planned Unit Development approval is necessary to acknowledge the proposed lot sizes which are smaller than required and possibly to accommodate setback variations. The southern portion of the parcel would not be developed and may be quit claimed to the City for open space and trail use. The parcel is allowed to apply for a PUD as the potential preservation of the southern portion of the parcel is a public benefit. A consolidated PUD is recommended. An amendment to the Official Zone District Map is needed for a PUD overlay to be added. The northern portion of the property is approximately 9,000 sq. ft., is zoned R-15 zoning, and contains a duplex. This type of application is a two-step review involving both the P&Z and City Council where both review boards would determine if the application meets the standards for amending the official zone district map. Due to the limited nature of this PUD and the creation of only two development parcels, submission requirements for specific architectural plans, landscape plans, and outdoor lighting plans are waived. Below is a link to the Land Use Code for your convenience. http://www.aspenpitkin.com/Departments/Community-Development/Planninq-and-Zoning/Title-26-Land-Use- Code/ Land Use Code Section(s) 26.304 Common Development Review Procedures 26.310 Amendments to the Land Use Code and Official Zone District Map 26.445 Planned Unit Development 26.470 Growth Management 26.480 Subdivision, Lot Split 26.710.050 R-15 Zone District Review by: - Staff for complete application, DRC for technical considerations - Planning and Zoning Commission (1st Step of Review) - City Council (2nd Step of Review) Public Hearing: Yes at P&Z and City Council Copies of Application: 25 Copies Planning Fees: $10,080 Deposit for 32 hours of planning staff time (additional planning hours over deposit amount are billed at a rate of$315/hour) Referral Fees: $265 Deposit for 1 hour of engineering staff time (additional planning hours over deposit amount are billed at a rate of$265/hour). $1,575 flat fee for Parks referral. Total Due at Submission: $11,920 To apply, submit the following information: 1. Total deposit for review of the application. 2. Proof of ownership. 3. Completed Land Use Application Form. 4. A signed fee agreement. 5. A Pre-Application Conference Summary. • 6. A letter signed by the applicant, with the applicant's name, address and telephone number in a letter signed by the applicant, which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. 7. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, easements, contracts and agreements affecting the parcel, and demonstrating • the owner's right to apply for the Development Application. 8. An 8 1/2" by 11"vicinity map locating the parcel within the City of Aspen. 9. Existing and proposed site plan. 10. A written and graphic description of the proposal and an explanation in written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. Please provide a written response to all applicable criteria. Summary of Review Fees Planning Review -Administrative Flat Fees Flat Fee Flat fee Note type of review. (e.g.condo Number Type Amt. plat) total Flat Fee O 1 $79 SO Flat Fee O 2 $158 $0 Flat Fee O 3 $315 $0 Flat Fee O 4 $630 $0 Planning Review -Hourly Deposit Deposit Note type of review. (e.g.2-step, Hours Rate subdivision) total • 32 . $315 Lot Split and PUD $10,080 Referral Agency Fees -Housing, Parks,Env.Health PUD/SP admin. 1-Step 2-Step A total Housing $0 Parks 1 $1,575 Env. Health $0 Referral Agency Fees -City Engineering total Engineering service billed at$265/hour,min. 1 hour. $265 Total Fees Due for Submission: $11,920 Disclaimer: The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning, which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. This pre-app is not determinant on the ownership of the southern portion of the parcel. 30 X (') , kI Acct it VIEW ShoUKlinl �x � 'S+fr�`i Se._ �aCk. G I � r( m'Qn o C�kuzl v� m ��� on 3;d S�• �j�oGk 31 Gln(J �°o;, '+vrrokr\5 \ 0 set bock- . 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D v 3--i l 1Z D irmcr‘sl0nn p v' �e m-en.ts ATTACHMENT 3 DIMENSIONAL REQUIREMENTS FORM Project: y LP we'' - LLC P u b Applicant: M t-P tU e;+- LL C Location: a, \ci S . 3-el) S}�ey� Zone District: - I r Lot Size: 94L 5F -4 34q6, Se Lot Area: gquL sp .- qqt, SF (for the purposes of calculating Floor Area, Lot Area may be reduced for areas within the high water mark, easements, and steep slopes. Please refer to the definition of Lot Area in the Municipal Code.) Commercial net leasable: Existing: C Proposed: 0 Number of residential units: Existing: a Proposed: a Number of bedrooms: Existing: H Proposed: Proposed % of demolition (Historic properties only): too DIMENSIONS: Floor Area: Existing: t 806 Allowable: K (4'93 Proposed: 5 90z + 1 SL`s For + H Principal bldg. height: Existing: t V Allowable: 2 S i Proposed: 'Z S� rx bo-r rct9uz aecic s +- Access. bldg. height: Existing: p1 A Allowable: N) 0- Proposed: a1 ra ey r e�ecr On-Site parking: Existing: H Required: P' 1'1) Proposed: LI LU trey 504 c-Az % Site coverage: Existing: 2 (3°). Required: vlA Proposed: t✓)t+ % Open Space: Existing: 't% Required: Nit''' Proposed: H ()- Front Setback: Existing: 1 V Required: 25 ' Proposed: .16 Rear Setback: Existing: (.S Required: I 0 Proposed: 10 Combined F/R: Existing:1 (6 Required: 3 Proposed: v Side Setback: Existing: IL c Required: I o •• Proposed: I o Side Setback: Existing: 5 6 n Required: I C Proposed: l 0 Combined Sides: Existing: 2 S.3 Required: a o Proposed: a a Distance Between Existing Nr Required: 3 .5 Proposed: v Buildings Existing non-conformities or encroachments: Not) C on F.,(In intl. Fair .+n✓� Sel.b(,cic � I Variations requested: Fccn+ Li e,+el slik boo K tjj. lO ` o n .a4 an NeW y Ora e\ . d11 , n • onow. Le+- „zt 3V f_x h tb I- 4 \3 R es v l A-3 o 48 errcl s 5-v-ca 28-211A Cleary Property, 219 South 3`d Street, Aspen, Colorado RESULTS Section 7-20-20 Steep and Potentially Unstable Slopes The parcels are relatively flat except for the slope formed by the old railroad grade which is well vegetated and stable in its current configuration. The site is not impacted by steep and potentially unstable slopes. Section 7-20-50 (c) Rockfall There is a potential source of rockfall several hundred feet above the site which does not affect the proposed development due to the characteristics of the slope above the site. The remnants of past mining have created an area, which will stop any rockfall that originates from the northeast facing slope of Shadow Mountain. The slope configuration resulting from the historic mining activity as well as the existing earth berm will protect the site and the proposed development from rockfall hazards. Section 7-20-50 (d) Alluvial Fan Hazard There is a potential for small, infrequent debris flow and debris flood events to originate from Shadow Mountain during intense precipitation events. These small events will not affect the proposed development due to the characteristics of the slope above the site where the remnants of past mining have created an area which is less steep in addition to the protection provided by the flat area and berm near the existing bike path. Future debris events will not affect the proposed development. Section 7-20-50 (e) Talus Slopes One of the maps that we reviewed showed the parcel at the boundary of Quaternary talus deposit. Our site visit indicated that the actual boundary was several hundred feet to the south of the mapped boundary and that the site is not impacted by talus slopes. Section 7-20-50 (a), (b), (c), (d), (e), (f), (g), (h), (i) This site is not impacted by Section 7-20-50 (a) Avalanche; (b) Landslide Hazard; (c) Rockfall Hazards; (d) Alluvial Fan Hazard; (e) Talus Slopes; (f) Mancos Shale; (g) Faults; (h) Expansive Soil and Rock; (i) Ground Subsidence. SUMMARY Our research and evaluation indicates that the proposed development at this site is not impacted by potential geological hazards and is suitable for the proposed development. LIMITATIONS This report has been prepared in accordance with generally accepted geological practices in this area for use by the client for preliminary planning purposes. If geological hazard mitigation is included in the site-specific development plan, Yeh and Associates, Inc. should review the • 39 28-211A Cleary Property, 219 South 3rd Street, Aspen, Colorado proposed design and construction procedure. The preliminary conclusions and recommendations submitted in this report are based upon data obtained from the observations made in the field. The findings and recommendations given in this report are site-specific, and are only valid for the subject site. • . H AND a SOCIC. Reviewed by: \ a 27/„ i) .F s < ., Rog-r A. Pihl P.G., (WY #PG-3353) Richard D. Johnson, P E !y age ` � 7 C)' 7 ✓ . Principal Scientist Senior Geotechnical Eng r.er z-• .. .. Lid