HomeMy WebLinkAboutLand Use Case.190 Park Ave.0069.2011.ASLU THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER 0069.2011.ASLU
PARCEL ID NUMBERS 2723 18 1 07 009
PROJECTS ADDRESS 190 PARK AVE
PLANNER JESSICA GARROW
CASE DESCRIPTION RESIDENTAL DESIGN VARIANCE
REPRESENTATIVE ZALE MILTON
DATE OF FINAL ACTION 12.2.11
CLOSED BY ANGELA SCOREY ON: 9.4.12
DEVELOPMENT ORDER
of the
City of Aspen
Community Development Department
This Development Order, hereinafter "Order", is hereby issued pursuant to Section 26.304.070,
"Development Orders", and Section 26.308.010, "Vested Property Rights", of the City of Aspen
Municipal Code. This Order allows development of a site specific development plan pursuant to
the provisions of the land use approvals, described herein. The effective date of this Order shall
also be the initiation date of a three-year vested property right. The vested property right shall
expire on the day after the third anniversary of the effective date of this Order, unless a building
permit is approved pursuant to Section 26.304.075, or unless an exemption, extension,
reinstatement, or a revocation is issued by City Council pursuant to Section 26.308.010. After
Expiration of vested property rights, this Order shall remain in full force and effect, excluding
any growth management allotments granted pursuant to Section 26.470, but shall be subject to
any amendments to the Land Use Code adopted since the effective date of this Order.
This Development Order is associated with the property noted below for the site specific
development plan as described below.
Milton&Nina Zale c/o The Zale CoMpany, 3824 N. Ashland Ave. Chicago, IL 60613
Property Owner's Name, Mailing Address
Lots 6 & 9 Promontory Subdivision Aspen, CO, commonly known as 190 Park Ave
Legal Description and Street Address of Subject Property
Residential Design Standard Variances for windows in the 9'-12' range and for carport location
Written Description of the Site Specific Plan and/or Attachment Describing Plan
Approval by the City of Aspen Community Development Department for two Residential Design
Standards Variances; received 10/31/11 and signed for approval 11/30/11
Land Use Approval(s) Received and Dates (Attach Final Ordinances or Resolutions)
December 11 2011
Effective Date of Development Order (Same as date of publication of notice of approval.)
December 11 2014
Expiration Date of Development r accordance Ord with reinstatement, exemption
of the ftom
ry of Aspen
and revocation may be pursue
Municipal Code.)
Issued this 3P th day of November, 2011, by the City of Aspen Community Development
ta Director
4
Chris Bendon, Community Development Director t
�2
C�
1 ,
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.070 AND CHAPTER 26.306
ASPEN LAND USE CODE
ADDRESS OF PROPERTY: No
Aspen, CO
STATE OF COLORADO )
ss.
County of Pitkin )
I,
(name, please print)
being or rep esenting 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) or Section 26.306.010 (E) of the Aspen Land Use Code in the following manner:
V 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 fourteen (14)
days after final approval of a site specific development plan. A copy of the
publication is attached hereto.
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 no later than fifteen
(15) days after an Interpretation has been rendered. A copy of the publication is
attached hereto.
Signature
The foregoing "Affidavit of Notice" was acknowledged before me this 116 day
of 20_LL, by
�I "1+ WITNESS MY HAND AND OFFICIAL SEAL
I °C M commission expires: 3 2�Ci
PUI LIC NOTICE M{f
DEVEL0 ENT APPROVAL a
Notice is hereby gig n io the general public of the
approval of a site specific development plan,and '
the creation of a vested property right pursuant to
the Land Use Code of
24,Article 68,Colorado Revised S atutesape aain Notary Public
ing to the following legally described property:Lots
6&9 of the Promontory Subdivision,Aspen,CO,
the property commonly known as 190 Park Ave by
order of the City of Aspen Community"Ave p-
ment Department on November 16,2009. The Ap-
plicant received approval for two Resitlentia,De- ATTACHMENTS:
sign Standard Variances related to the construction T
of an existing home.For further in con- COPY OF THE PUBLICATION
tact Jessica Darrow,at the City of Aspen Commu-
nity Development Dept.130 S.Galena St,Aspen,
Colorado(970)429.2780
S/Q%tV of Aspen
Publish in The Aspen Times Weekly on December
8,2011 [7314166)
RECEPTION#: 585301,!,"2212011 at
11:24:50 AM, ' kol
1 OF 5, R $31.00 Doc Code APPROVAL
Janice K.Vos Caudill, Pitkin County, CO
NOTICE OF APPROVAL
For Two Residential Design Standard Variances at 190 Park Avenue, legally
described as Lots 6 and 9,Promontory Subdivision, Aspen, CO
Parcel ID No. 2737 1810 7009
APPLICANT: Milton&Nina Zale
REPRESENTATIVE: Gilbert Sanchez, Studio B Architects
SUBJECT & SITE OF AMENDMENT: Residential Design Standard Variance for
Lots 6 & 9 of the Promontory Subdivision, commonly known as 190 Park Ave, involving
the construction of a new single-family house.
SUMMARY:
The Applicant has requested two Residential Design Standard Variances related to the
construction of a new single family home. The property has been the subject of
litigation, and is subject to a settlement agreement limiting the new house to a single
story in height.
The applicant is requesting a variance to the following code sections:
"The front fagade of the garage or the front most supporting column of a
carport shall be set back at least ten (10) feet further from the street than
the front-most wall of the house. " (Section 26.410.040.C.2.b)
"Street facing windows shall not span through the area where a second
floor would typically exist which is between nine (9) and twelve (12 feet
above the finished floor. For interior staircases, this measurement will be
made from the first landing if one exists. A transom window above the
main entry is exempt from this standard " (Section 26.410.040.D.3.a,
Windows)
STAFF EVALUATION:
Staff supports the proposed variances for 190 Park Ave. The proposed building is a
raised one-story structure on a sloped lot. A carport is located under the raised living
area. The living area includes windows that span the entire story, resulting in them
spanning the 9' — 12' "no window" zone.
Staff finds that the variances are appropriate based on site constraints. Per the settlement
agreement, the building is limited to one-story in height. The design is clearly a raised
one-story building with a carport below the living area. Because of the slopes and the
Page �T
height restriction, the placement of a carport or garage is constrained. Staff finds that
given these constraints the design is appropriate.
The window standard is intended to promote pedestrian-scale development by limiting
very large windows that span between Staff findssth t�givenldth building is
story in
design is
and the design reads as such.
appropriate.
DECISION:
The Community Development Director finds the Residential Design Standard
Variance remodel the home as noted above and on Exhibit `A' to be consistent with
the review criteria (Exhibit B) and thereby, APPROVES the variance as specified
below.
The approved variance to 190 Park Ave, allows for the construction of windows
within the 9-12 foot "no window" zone and carport located under living space, as
depicted in Exhibit A.
APPROVED BY:
Chris Bendon ate
Community Development Director
Attachments:
Exhibit A—Approved Plans
Exhibit B - Review Standards
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Exhibit B
Review Criteria and Staff Findings
Residential Design Standards Variance: Sec. 26.410.020.D
Administrative Variance, if granted, would:
1. Provide an appropriate design or pattern of development considering the context in
which the development is proposed and the purpose of the particular standard.
The proposed variance is minimal in nature and will not negatively impact the
surrounding context on the site. Staff finds the proposal is consistent with the
existing context.
2. Be clearly necessary for reasons of fairness related to unusual site-specific
constraints
The applicant is working atypical site constraints given the steep slopes and
settlement agreement limiting height to one-story. Staff finds that the proposed
variances are necessary due to these unusual site-specific constraints.
Page 5
March 20, 2012
Chris Bendon
Community Development Director
City of Aspen
Hand Delivered
RE: Approval of Residential Design Standard Variance for 190 Park Ave., dated
November 30, 2011
Dear Mr. Bendon:
We are the neighbors behind and adjacent to 190 Park Ave.This lot has been the
subject of litigation for 6 years that currently does not involve the city. However,
we have just discovered that the city has issued an approval of two Residential
Design Standard Variances without a public hearing.We are aware the city may do
this but surely not using false information to circumvent Review Standards. Clearly
you were not given the facts, and,to make it worse,based on the wording chosen,
your variance approval may now be used by the applicant, Mr. Zale, as an official
opinion in the ongoing litigation over the one story restriction,which will bring the
city into the case if that occurs.
Also disappointing to us is the fact that the Zales have full knowledge regarding
their"one story" restriction and knew your issued Variance stated misinformation
regarding legal status and settlement terms. Despite the errors they chose to use it
as a public notice on their deed by recording it on title.
As background,we have been involved in the lawsuit over this property for the last
6 years as a consequence of Mr. Zale not adhering to the restrictions burdening his
lot. We suffered significant financial and physical damages in 2007 during the
construction of Mr. Zale's retaining wall that trespassed into the Rodell property.
This damage occurred in spite of our notification of the city that the plans appeared
to encroach on our property and our concern that insufficient stabilization research
had been done. For your information,these damages were reimbursed by our own
insurance companies -not Mr. Zale. We do not want to see a repeat of that travesty.
We have settled with Mr. Zale for all but one of our claims against him. That claim
concerns the one story restriction. We therefore,have a significant interest in what
happens with the construction of his new house and reason to insist on accurate
representation of our settlement agreement with Mr. Zale.
We saw folks on the 190 Park property recently, so checked into activity recorded
on his lot and inquired after the file at your office. We were surprised to discover
the attached variance approval recorded on his property. It was odd that it was
March 20,2012 1
actually recorded against his deed,which is not a normal practice, and equally odd
that when we requested the file at the city it was not part of the file even though it is
dated November 30, 2011.
In addition,the wording of the approval is curious,given the history of the lawsuit.
Your approval document states:
"Per the settlement agreement, the building is limited to one-story in height."
That statement is completely false and is repeated several times in your approval.
The referenced settlement agreement is attached. While there are several agreed
upon restrictions in the settlement agreement,there is no "one story in height"
restriction. The height restriction agreed to in the settlement agreement (5.a) is:
"THE HEIGHT OF ANY STRUCTURE ON THE ZALE PROPERTY SHALL BE DEFINED
BY A MAXIMUM ELEVATION, NOT TO EXCEED 7967 FEET IN ELEVATION AT THE
HIGHEST POINT OF ANY ROOF RIDGE (EXCLUDING CHIMNEYS),AS DETERMINED
FROM A NVAD88 ELEVATION OF 7963.13 FEET ON THE TOP OF REBAR&CAP
LS#19598 MONUMENTING THE NORTHEAST CORNER OF SAID ZALE PROPERTY."
Note that it does not mention anything about being limited to one story.You also
conclude on page 2 of your approval:
"The building is only one story in heigh t. and the design reads as such."
What does "one story in height" mean? Does the city have regulations limiting the
height of a story? Regardless, "one story in height" is clearly irrelevant based on the
language of the settlement agreement.
There is a separate one story restriction currently burdening 190 Park,which is
unrelated to the height restriction and which has not yet been settled in the courts.
This "one story" restriction is explicitly excluded from the settlement agreement (pg
1,C.):
"This Agreement is not intended to and does not settle the One Story Restriction claim."
That claim is still in the courts and pending a decision by the Colorado Supreme
Court on whether to hear Zale's appeal. There are three separate orders from Pitkin
County District Court and the Colorado Court of Appeals regarding the validity of the
one story restriction burdening the lot. The Court of Appeals decision is attached.
Zale has actually now appealed the ruling three times to have the one story
restriction removed from his property. In other words,if your ruling is based on
his house being restricted to one story,then it is premature because he is still trying
to have the courts remove the restriction from his property. And your statement
that he is restricted to "one story in height" based on the settlement agreement is
totally false.
March 20,2012 2
Finally,you have issued the opinion that it is in fact a one story building.All we have
seen are conceptual drawings rather than full plans, and we cannot reach that
conclusion without the full plans. From the drafts we cannot tell if there is a true
carport, or it is a garage waiting for a door enclosure, or it is a future window wall
enclosing the"carport" creating a two story building. Last fall when we were
shown draft conceptual drawings,we requested written confirmation that this area
would not be enclosed in the future and received no reply. Please send us the design
documents that allow you to conclude that it is truly only one story.
Based on the above,we request that you reconsider if the variance was properly
issued. If you believe that it was properly issued,we request that you issue a
corrected approval to remove the following false statements:
On Page 1, NOTICE OF APPROVAL
Under SUMMARY:
"And is subject to a settlement agreement limiting the new house to a single story in
height."
Under STAFF EVALUTION:
"Per the settlement agreement, the building is limited to one-story in height."
Exhibit B:
Paragraph 2, 2nd half of 1St sentence:
"and settlement agreement limiting height to one story."
We also request that you provide us with a copy of all supporting documents for
your decision.
Thank you for your prompt attention to this matter.
i Ro ell and Colleen Grosz
and Ave 211 Midland Ave
Aspen, CO Aspen, CO
mrodell(@comcast.net cg @premierinvest.net
cc Lance Cote
Klein, Cote and Edwards
lrc @kcelaw.net
Attachments:
a. NOTICE of APPROVAL 2 design variances for 190 Park Ave (November 30, 2011)
b. Settlement Agreement Among Grosz, Rodell and Zale (June 30, 2009)
c. One Story Appellate Opinion (August 11, 2011)
March 20,2012 3
RECEPTION#: 585301, 12/22/2011 at 11:24:50 AM, 1 OF 5, R $31.00
Janice K. Vos Cauc Pitkin County, CO
0, .
NOTICE OF APPROVAL
For Two Residential Design Standard Variances at 190 Park Avenue,legally
described as Lots 6 and 9,Promontory Subdivision,Aspen,CO
Parcel ID No.2737 1810 7009
APPLICANT: Milton&Nina Zale
REPRESENTATIVE: Gilbert Sanchez,Studio B Architects
SUBJECT&SITE OF AMENDMENT: Residential Design Standard Variance for
Lots 6&9 of the Promontory Subdivision,commonly known as 190 Park Ave,involving
the construction of a new single-family house.
SUMMARY:
The Applicant has requested two Residential Design Standard Variances related to the
construction of a new single family home. The property has been the subject of
litigation, and is subject to a settlement agreement limiting the new house to a single
story in height.
The applicant is requesting a variance to the following code sections:
"The front facade of the garage or the front-most supporting column of a
carport shall be set back at least ten(10)feet further from the street than
the front-most wall ofthe house."(Section 26.410.040.C.2.b)
"Street facing windows shall not span through the area where a second
floor would typically exist which is between nine(9)and twelve (12)feet
above the finished floor. For interior staircases, this measurement will be
made from the first landing if one exists. A transom window above the
main entry is exempt from this standard." (Section 26.410.040.D.3.a,
Windows)
STAFF EVALUATION:
Staff supports the proposed variances for 190 Park Ave. The proposed building is a
raised one-story structure on a sloped lot. A carport is located under the raised living
area. The living area includes windows that span the entire story, resulting in them
spanning the 9'—12'"no window"zone.
Staff finds that the variances are appropriate based on site constraints. Per the settlement
agreement, the building is limited to one-story in height. The design is clearly a raised
one-story building with a carport below the living area. Because of the slopes and the
Page ar 6
RECEPTION#: 585301, 12/22/2011 at 11:24:50 AM, 2 OF 5,
Janice K. Vos Caudi Pitkin County, CO
height restriction, the placement of a carport or garage is constrained. Staff finds that
given these constraints the design is appropriate.
The window standard is intended to promote pedestrian-scale development by limiting
very large windows that span between stories. This building is only one story in height,
and the design reads as such. Staff finds that given these constraints the design is
appropriate.
DECISION:
The Community Development Director finds the Residential Design Standard
Variance remodel the home as noted above and on Exhibit`A'to be consistent with
the review criteria (Exhibit B) and thereby, APPROVES the variance as specified
below.
The approved variance to 190 Park Ave, allows for the construction of windows
within the 9-12 foot "no window" zone and carport located under living space, as
depicted in Exhibit A.
APPROVED BY:
W
Chris Bendon ate
Community Development Director
Attachments:
Exhibit A—Approved Plans
Exhibit B- Review Standards
Page?.0�
RECEPTION#: 585301, 19/22/2011 at 11:24:50 AM, 4 OF 5,
Janice K. Vos Caudi Pitkin County, CO
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RECEPTION#: 585301, 10/22/2011 at 11:24:50 AM, 5 OF 5,
Janice K. Vos Caudi Pitkin County, CO
Exhibit B
Review Criteria and Staff Findings
Residential Design Standards Variance: Sec.26.410.020.D
Administrative Variance,if granted,would:
1. Provide an appropriate design or pattern of development considering the context in
which the development is proposed and the purpose of the particular standard.
The proposed variance is minimal in nature and will not negatively impact the
surrounding context on the site. Staff finds the proposal is consistent with the
existing context.
2. Be clearly necessary for reasons of fairness related to unusual site-specific
constraints
The applicant is working atypical site constraints given the steep slopes and
settlement agreement limiting height to one-story. Staff finds that the proposed
variances are necessary due to these unusual site-specific constraints.
i
Page or 5
S14,"171,EMEN'r AGREEMENT
(Among Grosz,Rodell and Zale)
THIS AGREEMENT is made effective as of this 30`t' clay of June, 2009, by and among
Colleen Grosz("Grosz"), Timothy C. Rodell, and Marjorie ,\/I. Rodell (collectively"Rodell") and
Milton Zale,Trustee of the Milton Zale'rrtist dated.December 18, 1980 ("Zale").
R.E,,C1TALS
A, Grosz, Rodell and Zale (collectively tire "Patties") are owners of properties as described
on Exhibits A—C, attached hereto and incorporated herein by reference. The Grosz
property as described on Exhibit A shall be referred to herein as the"Grosz Property," the
Rodell.property as described on Exhibit B as the"Rodell Property,"and the Zale property
as described onl-eNhibit C as the"Zale Property."
B. The Patties are currently par-ties to Case No. 2006CV23 1, ("olleen Grosz, et at. v, Milton
Zale,et-at., District Court, Pitkin Count),, Colorado (the "Litigation") involving several
est,
r 'ictiv---e covenants and agreements and regarding trespass claims against Zale by
Rodell. The Pat-ties desire to settle sonic of these claims and counterclainisartiong
themselves.
C. Certain of the claims in the Litigation involve a restrictive covenant in a Deed recorded in
Book 275 at Page 113 of the Records of Pitkin County, Colorado,which states"Party of
the Fii-st Part restricts improvements to a one story dwelling" (the"One Story Restriction
0
Claims"). 't'hese claims are orily by Rodell against Zate. This Agreement is not intended
to and does not settle the One Story Restriction Claims.
D. Certain other claims, counterclaim,-,and cross-clainis in the Litigation involve restrictive
covenants related to height and single fancily dwelling restrictions which were included
by Benedict Land and Cattle Company ("Benedict") .in the first conveyance deeds to
seven of the nine lots ("Lots") as originally platted ju Promontory Subdivision according
to the Subdivision Plat recorded as Document Number 1.0573 1,Ditch Book 2A at Page
240 in the Records for Pitkin County, Colorado. Benedict %vas the developer of the
Promontory Subdivision and the common grantor of these height and single family
dwelling restrictions. The Parties' properties include all or a portion.of one or more of
the originally platted Lots of the Promontory Subdivision.
E. The height restriction that Benedict placed on the Lot 6 portion of the tale Property reads
as follows:
- - - - - - - - - - - - - - - -
"No structure placed on these lots shall exceed twenty feet in height(chimneys
excluded), measured vertically from the lowest point of intersection of'said
structure with.the natural grade of the land, to the highest point of roof ridge."
I
'T'he height restriction that Benedict placed on the l-ot 9 portion of the Zale Property reads
as follows:
"No structure shall be placed on these lots which exceeds twenty feet in. height
(chimneys excluded), measured vertically from The lowest point of intersection of
said structure with the natural. grade of the land, to the highest point ofroof ridge."
The height restriction that Benedict placed on the Grosz Property (i.e., Lot 5) reads as
follows:
"'No structure placed on this lot shall exceed twenty feet in.height(chimneys
excluded),measured vertically from the lowest point of intersection of said
structure with the natural grade of the land to the highest point of roof ridge."
These height restrictions shall be collectively referred to herein as the"Benedict Height
Restriction,"
F. The single family dwelling restriction that Benedict placed on the [,ot 6 portion of the
Zale Property reads as follows:
"Subject to the restriction that not more than.one detached single farnily dwelling
and outbuildings pertaining thereto shall be constructed o.11 each of said lots."
The single family dwelling restriction that Benedict placed on the Lot 9 portion of the
Zale Property reads as fiollows:
"Subject to the restrictions that only single family dwellings and outbuildings
pertaining thereto shall be constructed on these lots."
The single family dwelling restriction that Benedict placed on Lot 5 reads as follows:
"Subject to the restriction that not more than one detached single f4mi ly dwelling
and outbuildings pertaining thereto will be constructed on. this lot, and that no
unpainted metal roofs will be permitted."
These single family dwelling restrictions shall be collectively referred to herein as the
"Benedict Single.Farrilly Dwelling Restriction,"
G. Benedict did not place any restrictions on the Rode]I.Property.
H. This Agreement is not intended to and does not settle the effect of the Benedict Height
Restriction or the Benedict Single Fan-iily Dwelling Restriction or any ofthe height and
single family dwelling restrictions on any other Lots or on the portions of Lot 6 and Lot 9
2
not within the Zale Property as they relate to the general plan of development for the
Promontory Subdivision ("General Plan")claims, counterclaims and cross-clah n. s in the
Litigation;however, it does resolve the effect of the Benedict Height Restriction and the
Benedict Single Family Dwelling Restriction as among the Parties as to their specific
properties, as described on Exhibits A-C hereto, regardless ofthe outcome of the General
Plan claims,counterclaims and cross-claims.
I. This Agreement is intended to settle the following claims of Grosz and Rodell against
Zale in their Third Amended and Supplemental Complaint: (1) All of Grosz and Rodell's
First, Second, Fifth, Sixth and Seventh Claims for Relief-, (2) all of Grosz and Rodell's
Third and Fourth Claims for Relief ex gqpj the One Story Restriction Claims.
J. "['his Agreement is intended to settle the following counterclai ills of Zale against Grosz
and R
odell in his Amended Answer to`Third Amended and Supplemental Com. laint,
P
Counterclaims and Cross-Claims: (1)Zales first, Second and Fourth Counterclaims
against Grosz and/or Rodel I..
NOW, ITIEREFORE,for good and valuable consideration, receipt of which is hereby
acknowledged,the Parties agree as follows:
1, Covenants Running N�Iitj)jti; Lino. The provision,,, of this Agreement are covenants
running with the land, binding upon and inuring to the benefit of the Parties hereto, and
their successor-, and assigns.
2. Recordin of &(reernent. This Agreement shall be recorded in the Records for Pitkin
County, Colorado, to appear in the chain of title for each propetly described in Exhibits
A-C.
3. Effect of Ap-reenjent Relative to Dismissal of Claims in Litia'ation. U on the execution
p
of this Agi-eement, the Parties agree to file in the Litigation a stipulated motion for
dismissal ofthe claims and counterclaims specified herein. The parties agree that the
terms of this Agreement, once recorded in the,records of Pilkin County, are effective and
control as among the Parties regardless of the court's determination to grant or deny such
dismissals in the Litigation.
4. No Third Party Beneficiaries. This Agreement is not intended to benefit any third parties not
identified herein,and,except to the limited extent so identified in a specific provision below,
any right of enforcement of or release from enforcement of the covenants contained herein is
solely for the benefit of the :Parties, and. their successors in. interest. The owners of the
portions of Lot 6 and Lot 9 of Promontory Subdivision not within the Zaie Property are
expressly denied any rights as third party beneficiaries to the releases concerning the
Benedict Height Restriction,the Benedict Single Family Dwelling Restriction and Setback
Restriction;and tioreleases of these three restrictions as to the Zale Property may be used by
the owners of the portions of Lot 6 and Lot 9 of the Promontory Subdivision not within the
3
Zale Property to implicitly or explicitly avoid the rights of enforcement any one or more of
the Parties have or may have against them regarding these three restrictions.
5, -Nm,and Existingj�estjictivq Covenwits, 17he following new restrictive covenants-are
independent of any other restrictions that bin-den the Zale Property("New Restrictive
Covenants"), do not alter the validity or cid'ormibility of any other restriction ghat
fiat
burdens the Zale Property and cannot be defeated by Nf6vnce to validity or lack of
validity or enforceability or lack ofen.forccability ofany other restriction that may burden
the Zale Property or any Lot in the Promontory Subdivision. The Parties agree that the
New Restrictive Covenants are valid and enforceable, burdening the Zale Property for the
benefit of the Grosz Property and the Rodell Property, as:follows:
a. N ew Hei fit Restriction. The purpose of the New Height Restriction.is to limit
the height of any structure on the Zale Property,and reads as follows:
THE, HEIGHFOFANY STRUCTURE.ON THE ZALE PROPERTY
SIVUJ,BE DEFINTED BY A MAXIMUM EI,EVA'-.[.'ION,NOT-1-0
EXCEED 7967 FE.I`,-JJN ELEVATION AT'*f'Hf.,,HIGHEST Pol-N,r OF
ANY ROOF IUDOE {EXCLUDING Cl-TLNI.NIIYS). AS DETERMINED
FROM A NVAD88 ELEVATION OF 7963.13 I'EE'I.' ONTl-I.EJ'OP OF
THE REBAR& CAP LS ##19598 MONUMENTI-NO THE NORTHEAST
CORNER OF SAID ZALI�PROPERTY,
"ZALE PROPERTY" SHALL MEAN TI-I.H.PROPERTY 11-1.,�'GTALLY
DESCRIBI D ON F'xl-111311' C AATTAC J-1EI)I JERETO,
b. New Rooftop Deck Restriction. The purpose of the New Rooftop I)eck
Restriction is to prohibit any roollop decks on the Zale Property, and reads as
follows:
NO STRUCTURE' ONITTE,ZALE PROPER'FY SHALL HAVE ANY
ROOFTOP DECKS.
"ZAI.E.PROPE',RTY" SHALL MEAN THE.PROPERTY LEGALLY
DESCRIBED ON EXI-IlB I.TC A'17AU IED HERE170.
c. New Sil!gLP.Faiiii]yDWdUn&Rqstrictioii. The purpose of7the New Single
Family Dwelling Restriction is to limit the structure on the Zal.e Property
to a single family dwelling, as opposed to a duplex, condominiumized
duplex, multi-family dwelling or apartment building, and reads as follows:
THE STRUCIURE CON STRUCT1.71) ON THE ZALE PROPERTY
SHALL BE A SINGLE FAMILY DWELLING
4
"ZAI.F,' PROPERTY" STIMA, MEANJIJE PROPERTY LEGALLY
DF'SCRIBFI'D ON EXHIBIT C. ATTACHED HERETO.
d. L,xtqqptiori to New ,5jn 1-.,' ly Dwelling Restrictionf6r_Qily
--gt _qf�1sp_erj
"Citv") Affor'da-bl-c Housitig,Mit'ip'tion, Grosz and RodeflJor
themselves and their successors and assigns, shall waive enft)rcernent of
the benefit under the New Single Family Dwelling Restriction if
affordable housing mitigation is required by the City's Municipal Code, as
in effect at the time ofany land development final approval on the Za).e
Property, and such mitigation is required to be on-site rather than off-site
mitigation, and cannot be a.cash-in-lieu payment or other form of
mitigation.
e. E-Tfcct of Benedict.11civaht Restriction. The following shall. apply regarding
the Benedict:Height Restriction:
i. CTrosz and Rodell, fbr themselves and their successors and assigns,
hereby release the Me Property from their benefits of enforcement
of the Benedict Height Restriction, To the extent the Benedict
Height Restriction continues to burden the Zale Property for the
benefit of any owner of a Lot or portion of a Lot in the Prornontory
Subdivision, Grosz and Rodell acknowledge and agree that Zale
shall.have theright to construct arid maintain improvements on the
Zale Property in accordance with either the Benedict Height
Restriction or tile New Height Restriction so lung as the height of
any such improvement shall not exceed the maximum elevation.of
7967 -feet as described in the New Height Restriction. No release
contained herein shall extend to a release of the right of(Irosz and
Rodell to enforce the Benedict f Ieight Restriction against the
portions of Lot 6 and Lot 9 of Promontory Subdivision.not within
the Zale Property.
if. Zale, for himself and his successors and assigns,hereby releases
Lot 5, as platted in.Proniontoiy Subdivision, from his benefit of
enforcement of the Benedict Height Restriction.
.f. Release cif Benefils of Benedict 5ij _ _.an Cfl_ J) Jlin estri,ct can, 1 h
following releases shall apply regarding the Benedict Single Family
Dwelling Restriction:
i. Glroszand Rodell, fbr themselves and their successors and assigns,
hereby release the Zale.Property from their benefits of enforcement
of the Benedict Single Family Dwelling Restriction. No release
contained herein shall extend to a release of tile right of.Grosz arid
5
Rodell to enforce the Benedict Single Fainily Dwelling Restriction
against the portions of Lot 6 and Lot 9 ofPromontory Subdivision
not within the Zale Property.
ii. Zale, or himselland his successors and assigns,acknowledges and
agrees that by a court order in the Litigation, the Benedict Sin g_je
Family Dwelling Restriction has been extinguished on.Lot 5, as
platted in Promontory Subdivision and such order eliminates Tale's
rights of enforcement thereof on Lot 5 once the order becomes a
final judgpnent in the Litigation, or upon the completion of:any or
all appeals thereof, if any.
g. Not lie c C s 5qKyjl a 11'jes. The owner of any property beriefitted by the New
Height Restriction, New Roollop Deck Restriction and New Single Family
Dwelling Restriction may seek to enforce such restrictions without snaking
the owners of all of the properties beneflitted thereby tar any other
properties in the Promontory Subdivision necessary patties to such legal
action for enforcement.
h. Third_ arty.Beneficiaries. The owners of Lot 1, (currently Bayoil (USA),
Inc., n/k/a Castle Creel( Holdings Company),Lot 2 (currently Sterling
Point Development, 11LQ and.Lot 5 (other than Grosz, who is a direct
beneficiary, currently Felix A. DeJean III and ("arolyn.Wean) of the
.Promontory Subdivision are intended third party beneficiaries of the
provisions pertai-ning to the New Heiglit Restriction and New Single
Fani.ily.L)weiiiiig.Restrictio,ii in this Paragraph 5 until such time as they, or
any one or more of their, might record their own separate agreernent(s)
with Zale. The recording of such separate agreement with Zale will end
such parties' status as intended beneficiaries herein. The owners of Lot 5
are also third party beneficiaries of the remaining provisions of this
Paragraph 5.
6. 1990s Settlement Agreenientl',, The Parties are successors in interest to the rights and
obligations of that certain Memorandum Re Settlement recorded in Book 689 at Page 805
and Settlement and Release Agreement attached as Exhibit C to Easements, Restrictive
Covenants and Mutual Obligations recorded in Book 738 at Page 820, both of tile Records
for Pitkin County,Colorado(collectively the"1990s Settlement Agreenients"). The Parties
confirm the validity and enforceability of the 1990s Settlement Agreement,,;,and,in addition.,
agree to the following, releases, waivers and additional agreements:
a. Mutual Release of Setback Restriction. Grosz,Rode]] and '.ale, or themselves rind
their successors and assigns,hereby mutual ly release any right of enforcement against
the Zale Property and the Rodell Property(but not any portion of Lot 9 not within the
Zale Propert), and the Rodell Property, if any) of that certain restriction ("Setback
6
Restriction") in Deed recorded in Book 188 at Page 2 of the Records for Pitkin
County,Colorado and reaffinned in the 1990s Settlement Agreements which.reads. as
.fbIlows:
NO STRUCTURE SHALL BE PLACF.D WITHIN 111~11-,,EN FEET FROM
THE,11ASTBOUINDA.R.Y 01*,'LOT NUMBER NINE(9).
b. Landsc o i Zale Pronerty. As of the date of this Agreement,all landscaping on
the Tale Property has been removed except for 3 Bristlecone Pines,3 Aspen Clumps,
and 2 unknown other trees in the southeasterly corner of the Zale Property("Existing
Trees"). The Parties hereby agree to the following waiver with. respect to the
Existing Trees and the 1`61lowing additional agreement with. respect to any new
landscaping to be planted on the Zale Property subsequent to the execution of this
Agreement ("New Landscaping"):
i. 1_i'.xistim,, Trces. Grosz and Rodel 1,for themselves and their successors and
assigns, hereby waive their might to enforce the 1990s Settlement
Agreements' height restriction for landscaping on the Zale Property with
respect to those Existing'Frees that are healthy trees. Unhealthy trees must be
removed prior to implementing any land development plan for the Zale
Praperty.
ii. NeWLandscapiDg. Zale, f0rhiniselfand his successors and assigns,l)ereby
agrees otliatiioNeNN,I,andscapingsliallbeplaiitedo.ii.tbeZaleProl)cltyNvllicii
shall be capable of exceeding 7967 feet in. elevation, as determi-nied from a
NVAD88 elevation of 7963,13 feet onthe top of the rebar&cap IS#19598
nionurnenting the northeast corner of said Zale Property.
c. Rttainim,, Walls. The railroad tic retaining wall that is the sullied of the 1990s
Settlement Agreements ("E'xisting Retaining Wall") is constructed approximately
along the boundary line between the Zaie Property and thelkodell Property and also
along the westerly boundary line cif the parcel identified as Parcel D in the 1990s
Settlement Agreements ("Parcell)"). The parties acknowledge and agree that the
purpose (if the Existing Retaining Wall is to create structural stability in the ground
between the Zale Property and the Rodell Property and Parcel D. Zale has altered the
Existing Retaining Wall, in violation of the 1990s Settlement Agreements, by
removing the lowest tier of the three-tiered section of the Existing Retaining Wall
which marks the westerly boundary line of Parcel D. The Parties hereby agree to the
following waiver 'With respect to the Existing Retaining Wall and the following
additional agreements with respect to the co.ingletion of the partially constructed
separate retaining wall or any new retaining wall which,may be constructed on the
Zale Property (collectively, the "New Retaining Wall"):
i. ]- Nistin Ret ining, Wall..
Grosz and Rodell, for themselves and their
7
successors and assigns,hereby waive enforcement againstf.he violation of the
1990s Settlement.Agreement with respect to the Existing Retaining Wall that
occurred prior to the execution of this Agreement so long as no further
rnodilic,ation,alteration.or destruction of the 1"'xisting Retaining Wall C)CCUrS
by Zale, or his successors and assigns, or that may occur as a result of the
prior alteration of the 'Existing Retaining Wall.by Zale. This waiver shall in
no way be construed as a waiver of any right of enforcement against future
modification,alteration or destruction of the Existing Retaining Wall byZale
or by the same resulting from Tale's prior alteration of the Existing Retaining
Wall,
ii. New Retaining, Wall. Zale may, at his expense, construct a New Retaining
Wall on the ZalePropcily so long as(1)no component of the New Retaining
Wall encroaches into the Existing Retaining Wall, Parcel D, the Grosz
Property or the Rodell Property; (2)no easement over,under or on the Grosz
Property or the Rodell Property is required to construct the New Retaining
Wall;and (3)Grosz and Rodell are given the opportunity to review the New
Retaining Wall design and construction plans with engineers, py.jor to its
construction, to confirm that the New Retaining Wall will not impair the
structural integrity of the Existing Retaining Wall and that it will comply with
the provisions of this paragraph,
d. Covella
__— J�,L,,
nt qrdiM Wailers.' - Tile parties agree that the provisions of the 1990s
Settlement Agreements remain valid and enforceable despite the waivers of -prior
violations contained herein,and other than the Parties' Illutual release of the Setback
Restriction, the -waivers herein shall not be used to avoid the obligations of, or to
prevent enforcement against future violations of, the provisions of the 1990s
Settlement Agreements or the additional agreements contained in this Paragraph 6,
c. Third Party Beneficiaries. 'Ile owners of Lot 5 of Promontory SUbdivision (other
than Grosz, Who is a direct beneficiary) are intended third.party beneficiaries of the
restrictive covenants in this Paragraph 6.
7. 'Frcsnass Claims of Rodell.A aipst Zale. Zale acknowledges that during construction in or
around January of 2007, certain portions of a retaining wall being constructed on the Zale
Property were also constructed onto or into the Rodell Property and constituted a trespass.
As a result, in the Litigation, Rodell filed claims for damages and breach of a court-ordered
stipulation regarding construction activity during the pendency of the Litigation. Rodell
discloses to Zale herein that Rodell's property insurance carrier,State Farm Fij.-eand Casualty
Company ("State Farm"), subsequently reimbursed Rodell for repair of the in-iniediate
damage caused by the trespass. While this Agreement is intended to settle the trespass and
breach of'cou rt-ordered stipulation claims in the Litigation(Rodells Fifthand.Sixth Claims
for Relief)as part of the overall settlerneilt contained herein,this Agreement does not in any
way compensate Rodell again for the damage for which Rodell already received payment
8
from State Farm and-fbi-which State Farin has retained subrogation rights. Nor does it Avaive
any of Rodell's rights to pursue future action for damages in the event of destruction of(lie
Rodell Property that can be established to have resulted from the trespass described Herein.
To the best of Rodell's kno,,viedge,however,as of the date of execution of ths Agreement,
there are no known but previously unasserted claims due to the trespass,
8. Land Develomilent Aimrovalsft.ir Zale Property. A residence which was located on.the Zale
Property was demolished in the Fall of 2006 pursuant to I)emolition. Permit No.
0087.2006.ARBK. 1-luilding Permit No. 01.28.2006-ARBK (the "Building Permit") was
issued on March. 19, 2007 fur the construction of a new residence which was never
constructed, Zale hereby confirms that this Building f'ercnit leas expired and that any future
building permit shall not issue, tinder any circumstance,for the development plans that were
approved for construction under that Building Permit. Zale,for himself and his successors
and assigns, agrees to the following restrictions regarding any new development plans
submitted to the City for the Zale Property:
a. Representation to(.,.itv of Intent to Comply. Zale,for himself and.his successors and
assigns, hereby agrees to present evidence of all written and recorded restrictive
covenants and other agreements burdening the Zale Property for the benefit of the
(,-Trosz Property and/or Rodell Property to the City at the time any application for
development of the Zale Property is submitted to the City for approvals.
b. Repi:g see jtqt -n
jqns to Grosz and Rodell of Intent to C" ate o himself a.
Ly�_ Tale, far iin f nd his
successors and assigns,hereby agrees to notify the owners of"the Grosz Property and
the Rode]] Property prior to submitting any new development plans, and ongoing
revisions thereto, to the City for approval, and shall allow them the opportunity to
review the same for compliance with the restrictive covenants and agreements that
burden the Zale Property for the benefit of the Grosz Property and/or the Rodell
Property.
9. New Construction Activity. Zale,for himself and his successors and assigns,covenants and
agrees to the following with respect to construction activity on the Zale .Property;
a. Protection from (,'onstruction Dust and Debris. Zale, for himself and his successors
and assigns, agrees that any construction on the Zale Property shall not proceed
without adequate protections in place to prevent construction dust and debris from.
being deposited onto and/or damaging Parcel 1),the Grosz Property and/or the Rodell
Property. In the event such dust and debris is deposited on Parcel 13, the Grosz
Property or the Rodell Property during construction activity on.the Zale Property,the
owner of the Zale Property agrees to pay for or reimburse the owners of the Grosz
Property and/or the Rodell Property for the costs of clean tip of such dust and debris
and/or repair of any such damage. In the event Zale refuses or fails to snake such
rei.nibursement, the owners of the Grosz Property and/or the Rodell Property shall
have the right to place a lien on the Zale Property for such amount of reimbursement,
9
10. Dismissal of Clainis, Upon full execution of this Agreement, the parties shall execute a
stipulated motion for dismissal of the Collowing claims of Grosz and Rodell against Zale and
counterclaims of Zale against Grosz and Rodell in the Litigation:
a. Grosz and Rode]I Q ai ins in the Piird Amended and Supplemental_Conlolaint Filed
Amended
9,_2008:
i, All of the First, Second, Fifth, Sixth Claims for Relief, without prejudice,
ii. All of the Seventh Clairn for Relief,with.prejudice;provided,however,that
any portion of this Claim that relates to any portion of Lot 6 and Lot 9 of the
PronlOntory Subdivision not within the Zale Property will be disnlissed
Without prejudice.
iii. All of the Third and Fourth Claims for Relief, ext ef7.t any claims related to
the One Story Restriction Claims, with any-Portions of the'I'llird and Fourth
Claims for Relief rel a ted to the 1990s Settlement Agreements to bedisinissed
without prejudice and any portions thereof related to the Benedict Height
Restriction, -the Benedict Single Family Dwelling Restriction, Setback
Restriction and the Barnard Height Limit to be dismissed with prejudice;
provided., however, that any portion of these Claims that relates to any
portion of Lot 6 and Lot 9 of the Promontory Subdivision not within tile Zale
Property will be dismissed without prejudice.
b. C.oun't'er,clairns of Zale in Zate's Amended Answer to Tbird Amended mid
SU) lemental Co-rulafilt, Counterclainisand Cross-C.1,inns Filed May 23 2008:
i. First Counterclaini .for Specific performance and Injunction .regarding the
Beight Restriction (identified herein as the Benedict Height Restriction)
against Grosz only, With prejudice.
ii. Second Counterclaira (4t,Specif ic Perfiortnance and InJunction.regarding,the
Height Restriction (identified herein as the Benedict Height Restriction)
against Rodell only, with prejudice.
iii, Fourth Counterclairn for Declaratory Judgment against Grosz and Rodell,
with Prejudice.
11. LZqpjescntations b Zale. Zale represents that the following state tnents are tare and accurate
as of the date of full execution of this Agreement:
a. That Zale has not entered into or reached any type of settlement of any claim.(s)
involving the One Story Restriction that is the Subject of the One Story Restriction
10
Claims which Zale has against any title com-pang insuring title to the Zale Property,
b. That Zale is the sole owner of the Zate Property.
c. That Zale is not order any verbal or written contract, bargain,obligation or promise
to sell, transfer, gift, convey, or in any other manner dispose of any or all of his
interest in the Zale Property,
d. That Zale has no present intention to sell, transtbr, gift, convey, or in any other
manner dispose of any or all of his interest in the Zale Property,
12. Miscellaneous.
A. Further Assurances. The Parties shall cooperate fully with each other and execute
such further instruments, documents,an(].agreements, and shall give such further
written assurances, as may be reasonably requested by the other party to better
evidence and reflect the transactions described herein and conternplatcd hereby,
and to carry into effect the intent and purposes of this Agreement.
B. Amendments. thiless a particular amendment would aftect only two of the Parties
hereto, or their successor and assigns,this Agreement may be amended only by an
.instrument in writing signed by all of the Parties hereto, or their successors or
assigns,
C, Severabil-ity. 'If any term or provision of this Agreerrient shall,to any extent, be
determined to be invalid.or unenfbi,ceable lay court or body of competent
jLir-isdiction, the remainder ofthis Agreement shall not be affected thereby, and
each term and provision of this Agreement shall be valid an(].enforceable to the
fullest extent permitted by law.
D. C AtQps at -onouns, The captions of the sections of this Agreement and
id P'i--
pronouns used in reference to the Parties are for convenience only and shall not be
decrned to be relevant in.resolving any question of interpretation or construction
ofany part of this Agreement.
E. Counterparts. 'Phis Agreement may be executed in counterparts, each of which
shall be considered an original,and all of which together shall be deemed to be
one and the same instrument.,
F. A i-cable Law-, Construction of Agreement- Attorneys' Fees. This Agreement is
pol
entered .into in the County of Pilkin, State of Colorado and it will be governed in
all respects by the laws of Colorado. In the event of litigation.arising ftom the
interpretation or the enfi)rcement of any of the, terms or provisions of this
Agreement, the Parties hereof agree that jurisdiction and venue for such litigation
I I
shall be in the courts of Pitkin C.,ounty, Colorado and that the prevailing party shall
receive an award of reasonable attorneys' fees.
G. NinjOirigjjffq�j� This Agreem.ent shall bind and benefit the heirs, personal
representatives, successors, and assigns of each.party and shall benefit each other
person referred to in this Agreement,
Qr-Yanizatiorr iority;No Conflicts. "Die Parties represent to each other that
the execution and delivery of this Agreement has been doly-arid validly
authorized, and all requisite action has been taken to make this Agreement valid
and binding upon the Pat-ties, The Parties further represent to each other that the
consurnination.of The transactions conteinplated by this Agreement will not
constitute a default or result in the breach.of any term or provision of any contract
or agreement to which they are a party.
IN WFIN11"SS whereof Ille-Parties hereto have executed this Agreement as of the day and
year stated in the notary clauses:For each.of their signatures.
(SIGNATURES ON FOLLOWING PAGES)
12
Colleen Grosz
STATE OF ILLINOIS
ss.
County of Cook
This document was acknowledged before me on this day of June,
2009, by Colleen Grosz,
Witness my hand and Official
My commission expires: !1 f 0 ' dd�
4eV I
'0 F M j i:Cj!R Nofary Public
1'4ALt'
6
14
ANDRIANNA D.FLORA
51 S
NOTARY PUBLIC,STATE IL
OF ILJN0IS
Tres ID
1/081 Ex res 1110812011
QOMM!"1011
Tirnoth�C. Rodelf
'6'11vhLC-
Mar j .
Marjorie Rodell
STATE OF COLORADO
ss.
County of
This document was acknowledged before me on thi day of June, 2009, by
Timothy C. Rodell.
I R—D—PvE–A-–—CR'—0t
Witness my hand and official seal. A�
NOTARY
STATE OP COLORADO
My commission expires:
My Commission FXPire4
s 1213112011
Notary Public
STATE OF COLORADO
) ss.
County of 'j� t t--
This document was acknowledged before me on thisr2 day of June, 2009, by
Marjorie M. Rodell,
ANDRE
,:( It A D I j"'
Witness my hared and official seal, 11 A C R E
NOTARY PUBLIC
" I ) `
20 1,C)RADO
STATE OF CO
My commission expires:
My Comrni"� Ion Expires 12/3 1120 11
1'clolar� Public
MILTON ZA✓E TRUST
dated December 18, 1980
By:
Milto P� Zalejl, Stec
STATE OF COLORADO
)SS,
County of "� k-�-k<ck Y',
This document was acknowledged before me on this— ay of func, 2009, by Millon
Zale,'rmstce of the Milton Zale Trust dated December 18, 1980.
Witness my hand an(].official seal.
My commission expires:
( o —
rotary Public
y
AMY
iP 8APP
OP
15
C01\TD )1v1:[NIUM UNrr A, LAKEVIEW`OWNHOW CONDOMINIUMS,
according to the Plat thereof recorded March 3, 1994 in flat Book 33 at Sage 92
and as defined and described in the Conclomii3iurn Dccla.ration for Lakeview
`Fc�wjtbojne Condominiums recorded March 8, 1994 in Bock 743 at Page 763,
County of Pitkin, State; of Colorado
EXHIBIT
A (Grosz Pxopercy Leg4l T)esc-ript ion)
EXHIBIT A
A parcel of land situate within a portion of LQLa 7 and 9, Block 1,
Promontory Subdivision, City Of Asp*n, Pitkin County, Colorado,
deacr.-'4-bad as follows;
Beginning at the Northeasterly corner of Lot 7, Block 1, Of Bald
Promontory Subdivision, said point being on the Westerly right-of-way
of Midland Avenue, said point also
being a xebRr and cap fo=d in
place; thenco
. N 77,121,331, W' along the common property fine Of Lot ?
and $1 t1ock 2, Promontory Subdivision a distance of 111.49 feet to a
point on tha Westerly line of to je Easterly 15.00 Zoet of Lot 9, Block
1, Promontory Subdivision, said point being a rebar and oap found in
Place; thence along said Easterly line 8 0403513811 11 a distance of
89-38 feet to an existing wood fence,
thence along said fence the following two (2) cotiroest 3 97000110j, E a
diatance of 4.44 feet; thence S 5004914911 E a distance of 28.10 feet
to a point on the Southerly line of said I,Qt 7, Block 1, Promontory
Subdivision;
thtnca along said Southerly line 8 77 0451351, E a distance of 22.11
feet to the Southweste;71y corner of an exC!eptjon parcel described in
Book 457 at Page 136, Pitkin County Clerk and Recorder's office, said
point being a rebar and cap found in place;
theziqe along said exception parcel the following two (2) courses: N
510041451, 2 a distance of 51.35 feet to a rehar a cap found in place;
thence S 7703314911 E a distance of 16.00 feet to A Point on the
Westerly right-of-way line Of Midland Avenue,
thence along said Wen' right-of-way to following two (2)
N 1S°23'40° E a distance of 35.90 feet,
thence N 07010,22u 2 a distance of 24 .13 feet to the voillt of
beginning.
TOOBT-UR- WITH that certain parcel of land as set f o,':th in Quit Claim
Deed :recorded December 13, 1991* in Book 664 at Page :19.
EXCLUDING FROM the- alcove described real property that certain parcel
of land described in Quit Claim Deed recorded Decamber 17, 1.991 in
Book 664 at Page 710,
COUNTY OF PITKTU, STATE OF COWrN.7 .
Jb71?5 t3° 42 P-3t1 0211984 047P PS 4 OF 4
EXHIBIT (Roclell Property I.egal DescTiption)
A parcel of land situated in Ixts 6 and 9 of the PROMONTORY SUBDIVISION, City of mpen,
County of Pitkin,State of Colorado,said parcel being more particularly described as follows:
Cornmencing at the Northwesterly corner of the Fiat Amendment to the Hobgood-Burros
Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the
Easterly right-of-way of Park Avenue, the Point of Beginning; thence leaving said Hobgood-
Burres Subdivision NOS'03'00"W along said Easterly right-of-way a distance of 43,39 feet;
thence continuing along said Easterly right-of-way NI 0104'00"W a distance of 71.56 feet to a
point on the Northerly boundary of that parcel described in Reception No.375895; thence
leaving said right-of-way S75106100"B along said Northerly boundary, a distance of 67,31 feet to
a point on the Westerly boundary of said Hobgood-Burres Subdivision-,thence lc ving said
Reception No. 507'02'58"W along said Westorly boundary S 14*02'1 VE a distance of 21.13
feet; thence continuing along said Westerly boundary S 11°56'475 VI a distance of 41.93 feet,
thence continuing along said Westerly boundMN7SI06'00"W a distance of 40.93 feet to the
Point ofBegffining.
County of Pitkin, State of Colorado
FXHIBIT�
C
(Zale Property Legal Description)
'(39
10CA0085 Grosz v. Tale 08- 11-20 1. 1
Aug 11 2011
08 00AM
COLORADO COURT OF APPEALS
Court of Appeals No. IOCA0085
Pitkin County District Court No. 06CV231
Honorable Edwin. G. Ruland, Judge
Honorable Denise K. Lynch, Judge
Colleen Grosz, Timothy C. Rodell, and Marjorie M. Rodell,
Plaintiffs-Appellees,
V.
Milton tale, 'Trustee of the Milton Zale 'l'ru.st dated December 18, 1980,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE RUSSEL
Loeb and Plank", JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced August 1. 1, 2011
Klein, Cot6 & Edwards, LLC, Lance R. Cote, Madhu T-3. Krishnainurti., Aspen. ,
Colorado, for Plaintiffs-Appellees
Sweetbaum Sands Anderson PC, Geoffrey P. Anderson, Hilary A. Anderson,
Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1. 105, C.R.S. 2010.
Milton Zale, Trustee of the Milton Zale Trust dated December
18, 1980 (Zale), appeals from the district court's declaratory
judgment in favor of Colleen Grosz, Timothy C. Rodell, and Marjorie
M. Rodell. (collectively, the Rodells). We affirm.
1. Background
Zale obtained permits to build a new home in Aspen. His
neighbors, the Rodells, sued to block the project. The Rodells
asserted several claims against Zale, including a claim for
declaratory and injunctive relief based on various building
restrictions. One restriction, contained in Zale's deed, limited
"improvements to a one story dwelling."
During litigation, the Rodells asked the court to declare "that
the One Story Restriction is valid, that it binds [Zale], and it is
enforceable by the Rodell.s." Zale responded that, as a result of
changes both in. the -neighborhood and in building techniques, the
term "one story" is now ambiguous. The court ruled that the one-
story restriction is valid. and. unambiguous.
Two years later, Zale moved for reconsideration of the court's
order and requested partial summary judgment in his favor.
Relying on Allen v. Reed, 155 P.3d 443 (Colo. App. 2006), Zale
1,
argued that the one-story restriction is ambiguous and therefore
unenforceable. The court denied his motio-
n. The court
distinguished Allen on the ground that Zale's restriction is not a
height restriction.
Zale eventually abandoned his proposed building plans, and
the Rodells dismissed their remaining claims. The court then
certified, as a final judgment under C.R.C.P. 54(b), its orders
upholding the one-story restriction.
11. Discussion
The sole issue is whether the court erred in declaring that the
one-story, restriction is not so ambiguous as to be unenforceable.
We review de novo, see Evergreen Highlands Assn v. West, 73 P.3d
1, 3 (Colo. 2003), and conclude that the court ruled correctly.
For the sake of simplicity, we assume (without deciding) that
the following observations are true:
1. Restrictive covenants that limit structures to a height defined
by "stories" are significantly ambiguous. See Allen, 155 P.3d
at 445 ("[F]ailuxe to prescribe any numerical measure for the
maximum 'height' of a. story renders the language of the
covenant susceptible of more than one interpretation."); but
2
2. A building restriction is unenforceable if it is significantly
ambiguous. See Allen, 155 P.3d at 446; Hiner v. Hoffman, 977
P.2d 878, 886 (Haw. 1999) (language prohibiting dwelling
more than two stories in height is ambiguous and.
unenforceable); but see .Metius v. Julio, 342 A.2d 348, 353-55
(Md. Ct. Spec, App. 1975) ("three stories in. height" restriction
is ambiguous but not unenforceable; restriction construed in
light of the building code's definition of "story"'); Foster v.
Nehls, 551 P.2d 768, 771 (Wash. Ct. App. 1976) (restriction
limiting buildings to one at-id one-half stories in height is
ambiguous, but it is enforceable).
3
Nevertheless, we uphold the court's ruling because Zale's
restriction. is not significantly ambiguous:
1. We agree with the trial court that, as used here, the term "one
story" has a plain and ordinary meaning. See Allen, 155 P.3d
at 445 ("In ascertaining whether certain provisions of an
instrument are ambiguous, we must examine the instrument's
language and construe it in harmony with the plain and.
generally accepted meaning of the words employed.").
2. Like the trial court, we reject the suggestion that Zale's
restriction is merely a height restriction. (The restriction does
not mention height, and Zale is separately burdened by a
restriction that prohibits the construction of any structure
exceeding "twenty feet in height . . . measured vertically from.
the lowest point of the intersection of said structure with the
natural grade of the land to th.e highest point of [the] roof
ridge.") In our view, the restriction limits the type of dwelling
that Zale may build. (For example, Zale could 'build a typical
ranch style house but not a typical Queen Anne style house.)
3. We therefore conclude that Zale's one-story restriction is
different from a "one-story, in. height" restriction. See Hiner,
4
977 P.2d at 882-83 (although. "two stories in height" is
ineffectual and ambiguous as a height restriction, a covenant
restricting homes to "two stories" might be effective to preserve
the aesthetic character of the neighborhood); see also
.Holinesley v. Walk, 39 S.W.3d 4631 466-67 (Ark. Ct. App.
2001) (restrictive covenant prohibiting two-story dwellings held
unambiguous); Snashall v. Jewell, 363 P.2d 566, 571. (Or.
196 1.) (trial court reasonably interpreted "one single story
dwelling" restriction).
We recognize that, like almost all language, the term "one
story" contains some inherent ambiguity. And we do not foreclose
the possibility that such ambiguity may operate in Zale's favor
when the term is construed in. light of a particular building plan.
We merely conclude, as did. the trial court, that the restriction here
is not so ambiguoti-s as to be void,
111. Attorney Fees
The Rodells request an order requiring Zale to pay for the
attorney fees and costs that they incurred in defending this appeal.
They do so on the ground that Zale's appeal is frivolous. See § 13-
17-102, C.R.S. 2010; C.A.R. 38(d), 39.5. We deny this request.
5
Although unsuccessful, Zale's appeal. is neither frivolous as filed nor
frivolous as argued. See Castillo v. Koppes-Conway, 148 P.3d 289,
292 (Colo. App. 2006) (distinguishing "frivolous as filed" from
"frivolous as argued").
The judgment is affirmed..
JUDGE LOEB and JUDGE PLANK concur.
6
RECEIVED
ATTACHMENT 2—LAND USE APPLICATION OCT 31 2011
PROJECT: CITY OF ASPFN
Name: Zale Residence COMMUNITY DMOPM W
Location: 190 Park Avenue, Aspen CO, Promontory Subdivision
Indicate street address,lot&block number,legal description where appropriate)
Parcel ID# REQUIRED 2737-1810-7009
APPLICANT:
Name: Milton & Nina Zale
Address: c/o The Zale Company, 3824 N. Ashland Ave. Chicago IL 60613
Phone#: 7 7 3 .4 7 2 .215 0
REPRESENTATIVE:
Name: Gilbert Sanchez Studio B Architects
Address: 501 Rio Grande Place Suite 104 Aspen, CO 81611
Phone#: 9 7 0 . 9 2 0. 9 4 2 8
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
❑X Residential Design Variance ❑ Lot Line Adjustment ❑ Other:
❑ Conditional Use
EXISTING CONDITIONS: (description of existing buildings,uses,previous approvals,etc.)
The existing residence was demolished in 2006 under a previously issued
building permit . Soil stabilization & excavations from that work exist .
PROPOSAL: (description of proposed buildings,uses,modifications,etc.
New construction of a single family residence.
Have you attached the following? FEES DUE:$ 7 lam�
[v'Pre-Application Conference Summary
[2"Attachment#I,Signed Fee Agreement
❑ Response to Attachment#3,Dimensional Requirements Form
EJ Response to Attachment#4,Submittal Requirements-Including Written Responses to Review Standards
[D'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
°tronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model.
RECEIVED
CITY OF ASPEN OCT 3 1 2011
PRE-APPLICATION CONFERENCE SUMMARY CITY OF ASPEN
COMMUNITY DEVELOPMENT
PLANNER: Sara Adams, 970.429.2778 DATE: 9.9.11
PROJECT: 190 Park Ave.
REPRESENTATIVE: Gilbert Sanchez,gilbert .studiobarchitects.net
TYPE OF APPLICATION: Residential Design Standards Administrative Variance
DESCRIPTION: The property located at 190 Park Avenue is set into a steep hill and has a number of restrictions (resulting
from a private settlement) on the type and height of building that is constructed on the site. The potential applicant seeks
administrative variances for two of the Residential Design Standards: Section 26.410.040.C.2.b regarding car ports and Section
26.410.040.D.3.a regarding window height. The Community Development Director has the authority to grant up to three
administrative variances for the Design Standards. An administrative approval does not require a public hearing.
Land Use Code Section(s)
26.410 Residential Design Standards
26.410.020.D.1 Review Standards for Residential Design Standards Variances
Review by: Community Development Staff for complete application
Public Hearing: Not required
Planning Fees: $735. This includes three (3) hours of staff review time. Additional time over three (3)
hours will be billed at$245 per hour
Total Deposit: $735 "please note that Planning Fees are subject to change in November, 2011.
Total Number of Application Copies: 2 Copies
To apply, submit the following information
71 Total Deposit for review of application.
F71 Pre-application Conference Summary.
® Applicant's name, address and telephone number, contained within a letter signed by the applicant stating the
name, address, and telephone number of the representative authorized to act on behalf of the applicant.
F71 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.
Eil A site plan depicting the proposed layout and the project's physical relationship to the land and its surroundings.
17771 Completed Land Use application and signed fee agreement.
0 An 81/2"x 11"vicinity map locating the subject parcel within the City of Aspen.
�f
E2 Elevations and floor plans of the proposed development.
[VJ A written description of the proposal and a written explanation of how a proposed development complies with the
review standards (26.410.020.D.1). Please include photographs of surrounding buildings to provide context when
addressing criterion 26.410.020.D.1.a.
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.
RF
ocr �F
C17),7Y 011
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT �N/ry FgSpE
Ap_reement for Payment of City of Aspen Development Application Fees
CITY OF ASPEN(hereinafter CITY)and Milton Zale
(hereinafter APPLICANT)AGREE AS FOLLOWS:
1. APPLICANT has submitted to CITY an application for
Residential Design Standards Administrative Approvals
(hereinafter,THE PROJECT).
2. APPLICANT understands and agrees that the City of Aspen has an adopted fee structure for Land
Use applications and the payment of all processing fees is a condition precedent to a determination of application
completeness.
3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it
is not possible at this time to ascertain the full extent of the costs involved in processing the application.
APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an
initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis.
APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he
will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the
CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty
of recovering its full costs to process APPLICANT'S application.
4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete
processing or present sufficient information to the Historic Preservation Commission, Planning and Zoning
Commission and/or City Council to enable the Historic Preservation Commission, Planning and Zoning
Commission and/or City Council to make legally required findings for project consideration, unless current billings
are paid in full prior to decision.
5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect
full fees prior to a determination of applacation completeness, APPLICANT shall pay an initial deposit in the
amount of$ 73 5 . 0 0 which is for(3) three hours of Community Development staff time, and if actual
recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse
the CITY for the processing of the application mentioned above,including post approval review at a rate of$245.00
per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date.
APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing,and
in no case will building permits be issued until all costs associated with case processing have been paid.
CITY OF ASPEN APPLICANT
By: By
Chris Bendon
Community Development Director Date: 42 C4
.1 - tv- - I
Billing Address and Telephone Number:
'The Zale Company
3824 N. Ashland Avenue
Chicago, IL 60613
773 . 472 . 2150
)� Ctt'-/JVZJ
OAT 3
ATTACHMENT 3 C/T 120
DIMENSIONAL REQUIREMENTS FORM �' 0 11
Project: Zale Residence
Applicant: Milton & Nina Zale
Location: 190 Park Avenue
Zone District: R-6
Lot Size: 5, 685 SF
Lot Area: 2 893 S F
(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: NA Proposed: NA
Number of residential units: Existing: * Proposed: 1
Number of bedrooms: Existing.- * Proposed: 3
Proposed% of demolition (Historic properties only): NA
DIMENSIONS:
Floor Area: Existing: * Allowable: 2, 3 2 0 Proposed: 2, 317
Principal bldg. height: Existing: * Allowable: 25 ' Proposed: 241
Access. bldg. height: Existing: Allowable: Proposed:
On-Site parking: Existing: * Required.- 2 Proposed: 2
% Site coverage: Existing. * Required.- No Limit Proposed: NA
%Open Space: Existing.- * Required.- None Proposed: NA
Front Setback: Existing.- * Required• 101 Proposed: 10 ,
Rear Setback: Existing: * Required• 10 - Proposed: 10
Combined F/R: Existing: * Required: NA Proposed: NA
Side Setback: Existing: * Required: 51 Proposed: 5
Side Setback: Existing: * Required: 5 ' Proposed: 5
Combined Sides: Existing: * Required: 131 -911 Proposed:13 ' -9"
Distance Between Existing * Required: 5 ' Proposed: NA
Buildings
Existing non-conformities or encroachments:
Variations requested: Confirmation that the proposed carport complies with
26 .410 . 040 .C.2 .b or a variance from the requirement if necessary.
Variance from 26 .410 . 040 .D.3 .a regarding street facing windows between
9 ' & 12 ' above finished floor.
September 21, 2011
Community Development
The City of Aspen
130 South Galena
Aspen, CO 81611
To Whom It May Concern:
As the Owner of 190 Park Avenue, I authorize Studio B Architects, 501 Rio Grande
Place, Suite 104, Aspen, CO 81611, 920.9428, to represent me in matters related to City
of Aspen approvals for the new construction a single-family residence on the property.
p4p
Milton Zale
The Zale Company
3824 N. Ashland Avenue
Chicago, IL 60613
773.472.2150
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 1 OF 18, R $91.00
Janice K. Vos Caud" , Pitkin County, CO
SETTLEMENT AGREEMENT
(Among Grosz,Rodell and Zale)
THIS AGREEMENT is made effective as of this 30i°day of June,2009,by and among
Colleen Grosz("Grosz"),Timothy C.Rodell and Marjorie M.Rodell(collectively"Rodell")and
Milton Zale,Trustee of the Milton Zale Trust dated December 18, 1980("Zale").
RECITALS
A. Grosz,Rodell and Zale(collectively the"Parties")are owners of properties as described
on Exhibits A—C,attached hereto and incorporated herein by reference. The Grosz
property as described on Exhibit A shall be referred to herein as the"Grosz Property,"the
Rodell property as described on Exhibit B as the"Rodell Property,"and the Zate property
as described on Exhibit C as the"Zale Property."
B. The Parties are currently parties to Case No.2006CV231,Colleen Grosz,et al.v.Milton
Zale,et al.,District Court,Pitkin County,Colorado(the"Litigation")involving several
restrictive covenants and agreements and regarding trespass claims against Zale by
Rodell. The Parties desire to settle some of these claims and counterclaims among
themselves.
C. Certain of the claims in the Litigation involve a restrictive covenant in a Deed recorded in
Book 275 at Page 113 of the Records of Pitkin County,Colorado,which states"Party of
the First Part restricts improvements to a one story dwelling"(the"One Story Restriction
Claims"). These claims are only by Rodell against Zale. This Agreement is not intended
to and does not settle the One Story Restriction Claims.
D. Certain other claims,counterclaims and cross-claims in the Litigation involve restrictive
covenants related to height and single family dwelling restrictions which were included
by Benedict Land and Cattle Company("Benedict")in the first conveyance deeds to
seven of the nine lots("Lots")as originally platted in Promontory Subdivision according
to the Subdivision Plat recorded as Document Number 105731,Ditch Book 2A at Page
240 in the Records for Pitkin County,Colorado. Benedict was the developer of the
Promontory Subdivision and the common grantor of these height and single family
dwelling restrictions. The Parties'properties include all or a portion of one or more of
the originally platted Lots of the Promontory Subdivision.
E. The height restriction that Benedict placed on the Lot 6 portion of the Zale Property reads
as follows:
"No structure placed on these lots shall exceed twenty feet in height(chimneys
excluded),measured vertically from the lowest point of intersection of said
structure with the natural grade of the land,to the highest point of roof ridge."
1
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 2 OF 18,
Janice K. Vos Caudill,0i,tkin County., CO
The height restriction that Benedict placed on the Lot 9 portion of the Zale Property reads
as follows:
"No structure shall be placed on these lots which exceeds twenty feet in height
(chimneys excluded),measured vertically from the lowest point of intersection of
said structure with the natural grade of the land,to the highest point of roof ridge."
The height restriction that Benedict placed on the Grosz Property(i.e.,Lot 5)reads as
follows:
"No structure placed on this lot shall exceed twenty feet in height(chimneys
excluded),measured vertically from the lowest point of intersection of said
structure with the natural grade of the land to the highest point of roof ridge."
These height restrictions shall be collectively referred to herein as the"Benedict Height
Restriction."
F. The single family dwelling restriction that Benedict placed on the Lot 6 portion of the
Zale Property reads as follows:
"Subject to the restriction that not more than one detached single family dwelling
and outbuildings pertaining thereto shall be constructed on each of said lots."
The single family dwelling restriction that Benedict placed on the Lot 9 portion of the
Zale Property reads as follows:
"Subject to the restrictions that only single family dwellings and outbuildings
pertaining thereto shall be constructed on these lots."
The single family dwelling restriction that Benedict placed on Lot 5 reads as follows:
"Subject to the restriction that not more than one detached single family dwelling
and outbuildings pertaining thereto will be constructed on this lot,and that no
unpainted metal roofs will be permitted."
These single family dwelling restrictions shall be collectively referred to herein as the
"Benedict Single Family Dwelling Restriction."
G. Benedict did not place any restrictions on the Rodell Property.
H. This Agreement is not intended to and does not settle the effect of the Benedict Height
Restriction or the Benedict Single Family Dwelling Restriction or any of the height and
single family dwelling restrictions on any other Lots or on the portions of Lot 6 and Lot 9
2
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 3 OF 18,
Janice K. Vos Caudil' Pitkin County, CO
not within the Zale Property as they relate to the general plan of development for the
Promontory Subdivision("General Plan")claims,counterclaims and cross-claims in the
Litigation;however,it does resolve the effect of the Benedict Height Restriction and the
Benedict Single Family Dwelling Restriction as among the Parties as to their specific
properties,as described on Exhibits A-C hereto,regardless of the outcome of the General
Plan claims,counterclaims and cross-claims.
1. This Agreement is intended to settle the following claims of Grosz and Rodell against
Zale in their Third Amended and Supplemental Complaint: (1)All of Grosz and Rodell's
First,Second,Fifth,Sixth and Seventh Claims for Relief;(2)all of Grosz and Rodell's
Third and Fourth Claims for Relief except the One Story Restriction Claims.
J. This Agreement is intended to settle the following counterclaims of Zale against Grosz
and Rodell in his Amended Answer to Third Amended and Supplemental Complaint,
Counterclaims and Cross-Claims: (1)'tale's First,Second and Fourth Counterclaims
against Grosz and/or Rodell.
NOW,THEREFORE,for good and valuable consideration,receipt of which is hereby
acknowledged,the Parties agree as follows:
1. Covenants Running With the Land. The provisions of this Agreement are covenants
running with the land,binding upon and inuring to the benefit of the Parties hereto,and
their successors and assigns.
2. Recording of Agreement. This Agreement shall be recorded in the Records for Pitkin
County,Colorado,to appear in the chain of title for each property described in Exhibits
A—C.
3. Effect of Agreement Relative to Dismissal of Claims in Liti ag tion. Upon the execution
of this Agreement,the Parties agree to file in the Litigation a stipulated motion for
dismissal of the claims and counterclaims specified herein. The Parties agree that the
terms of this Agreement,once recorded in the records of Pitkin County,are effective and
control as among the Parties regardless of the court's determination to grant or deny such
dismissals in the Litigation.
4. No Third Party Beneficiaries. This Agreement is not intended to benefit any third parties not
identified herein,and,except to the limited extent so identified in a specific provision below,
any right of enforcement of or release from enforcement of the covenants contained herein is
solely for the benefit of the Parties,and their successors in interest. The owners of the
portions of Lot 6 and Lot 9 of Promontory Subdivision not within the Zale Property are
expressly denied any rights as third party beneficiaries to the releases concerning the
Benedict Height Restriction,the Benedict Single Family Dwelling Restriction and Setback
Restriction;and no releases of these three restrictions as to the Zale Property may be used by
the owners of the portions of Lot 6 and Lot 9 of the Promontory Subdivision not within the
3
RECEPTION$: 560509, 07/02/2009 at 10:00:11 AM, 4 OF 18,
Janice K. Vos Caudill,°°-""tkin County, CO
Zale Property to implicitly or explicitly avoid the rights of enforcement any one or more of
the Parties have or may have against them regarding these three restrictions.
5. New and Existing Restrictive Covenants. The following new restrictive covenants are
independent of any other restrictions that burden the Zale Property("New Restrictive
Covenants"),do not alter the validity or enforceability of any other restriction that
burdens the 7-ale Property and cannot be defeated by reference to validity or lack of
validity or enforceability or lack of enforceability of any other restriction that may burden
the Zale Property or any Lot in the Promontory Subdivision. The Parties agree that the
New Restrictive Covenants are valid and enforceable,burdening the Zale Property for the
benefit of the Grosz Property and the Rodell Property,as follows:
a. New Height Restriction. The purpose of the New Height Restriction is to limit
the height of any structure on the 7-ale Property,and reads as follows:
THE I4EIGHT OF ANY STRUCTURE ON THE ZALE PROPERTY
SHALL BE DEFINED BY A MAXIMUM ELEVATION,NOT TO
EXCEED 7967 FEET TN ELEVATION AT THE HIGHEST POINT OF
ANY ROOF RIDGE(EXCLUDING CHIMNEYS),AS DETERMINED
FROM A NVAD88 ELEVATION OF 7963.13 FEET ON THE TOP OF
THE RE BAR&CAP LS#19598 MONUMENTING THE NORTHEAST
CORNER OF SAID ZALE PROPERTY.
"ZALE PROPERTY"SHALL MEAN THE PROPERTY LEGALLY
DESCRIBED ON EXHIBIT C ATTACHED HERETO.
b. New Rooftop Deck Restriction. The purpose of the New Rooftop Deck
Restriction is to prohibit any rooftop decks on the Zale Property,and reads as
follows:
STRUCTURE ON THE ZALE PROPERTY SHALL HAVE ANY
,
FTOP DECKS.
"ZALE PROPERTY"SHALL MEAN THE PROPERTY LEGALLY
DESCRIBED ON EXHIBIT C ATTACHED HERETO.
c. New Single Family Dwellinr Restriction. The purpose of the New Single
Family Dwelling Restriction is to limit the structure on the Zale Property
to a single family dwelling,as opposed to a duplex,condominiumized
duplex,multi-family dwelling or apartment building,and reads as follows:
THE STRUCTURE CONSTRUCTED ON THE ZALE PROPERTY
SHALL BE A SINGLE FAMILY DWELLING
4
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 5 OF 18,
Janice K. Vos Caudil Pitkin County, CO
"ZALE PROPERTY"SHALL MEAN THE PROPERTY LEGALLY
DESCRIBED ON EXHIBIT C ATTACHED HERETO.
d. Exception to New Single Family Dwelling Restriction for City of Aspen
("City')Affordable Housin=Mitigation. Grosz and Rodell,for
themselves and their successors and assigns,shall waive enforcement of
the benefit under the New Single Family Dwelling Restriction if
affordable housing mitigation is required by the City's Municipal Code,as
in effect at the time of any land development final approval on the Zale
Property,and such mitigation is required to be on-site rather than off-site
mitigation,and cannot be a cash-in-lieu payment or other form of
mitigation.
e. Effect of Benedict Height Restriction. The following shall apply regarding
the Benedict Height Restriction:
i. Grosz and Rodell,for themselves and their successors and assigns,
hereby release the Zale Property from their benefits of enforcement
of the Benedict Height Restriction.To the extent the Benedict
Height Restriction continues to burden the Zale Property for the
benefit of any owner of a Lot or portion of a Lot in the Promontory
Subdivision,Grosz and Rodell acknowledge and agree that Zale
shall have the right to construct and maintain improvements on the
Zale Property in accordance with either the Benedict Height
Restriction or the New Height Restriction so long as the height of
any such improvement shall not exceed the maximum elevation of
7967 feet as described in the New Height Restriction. No release
contained herein shall extend to a release of the right of Grosz and
Rodell to enforce the Benedict Height Restriction against the
portions of Lot 6 and Lot 9 of Promontory Subdivision not within
the Zale Property.
ii. Zale,for himself and his successors and assigns,hereby releases
Lot 5,as platted in Promontory Subdivision,from his benefit of
enforcement of the Benedict Height Restriction.
f. Release of Benefits of Benedict Single Family Dwelling Restriction. The
following releases shall apply regarding the Benedict Single Family
Dwelling Restriction:
i. Grosz and Rodell,for themselves and their successors and assigns,
hereby release the Zale Property from their benefits of enforcement
of the Benedict Single Family Dwelling Restriction. No release
contained herein shall extend to a release of the right of Grosz and
5
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 6 OF 18,
Janice K. Vos Caudill, .tkin County, CO
Rodell to enforce the Benedict Single Family Dwelling Restriction
against the portions of Lot 6 and Lot 9 of Promontory Subdivision
not within the'tale Property.
ii. Zale,for himself and his successors and assigns,acknowledges and
agrees that by a court order in the Litigation,the Benedict Single
Family Dwelling Restriction has been extinguished on Lot 5,as
platted in Promontory Subdivision and such order eliminates;tale's
rights of enforcement thereof on Lot 5 once the order becomes a
final judgment in the Litigation,or upon the completion of any or
all appeals thereof,if any.
g. Not Necessary Parties. The owner of any property benefitted by the New
Height Restriction,New Rooftop Deck Restriction and New Single Family
Dwelling Restriction may seek to enforce such restrictions without making
the owners of all of the properties benefitted thereby or any other
properties in the Promontory Subdivision necessary parties to such legal
action for enforcement.
h. Third Party Beneficiaries. The owners of Lot 1 (currently Bayoil(USA),
Inc.,n/k/a Castle Creek Holdings Company),Lot 2(currently Sterling
Point Development,LLC)and Lot 5(other than Grosz,who is a direct
beneficiary,currently Felix A.DeJean III and Carolyn DeJean)of the
Promontory Subdivision are intended third party beneficiaries of the
provisions pertaining to the New Height Restriction and New Single
Family Dwelling Restriction in this Paragraph 5 until such time as they,or
any one or more of them,might record their own separate agreement(s)
with Zale.The recording of such separate agreement with Zale will end
such parties'status as intended beneficiaries herein.The owners of Lot 5
are also third party beneficiaries of the remaining provisions of this
Paragraph 5.
6. 1990s Settlement Agreements. The Parties are successors in interest to the rights and
obligations of that certain Memorandum Re Settlement recorded in Book 689 at Page 805
and Settlement and Release Agreement attached as Exhibit C to Easements, Restrictive
Covenants and Mutual Obligations recorded in Book 738 at Page 820,both of the Records
for Pitkin County,Colorado(collectively the"1990s Settlement Agreements"). The Parties
confirm the validity and enforceability ofthel990s Settlement Agreements,and,in addition,
agree to the following,releases,waivers and additional agreements:
a. Mutual Release of Setback Restriction. Grosz,Rodell and Zale,for themselves and
their successors and assigns,hereby mutually release any right of enforcement against
the Zale Property and the Rodell Property(but not any portion of Lot 9 not within the
Zale Property and the Rodell Property,if any)of that certain restriction("Setback
6
RECEPTION!#: 560509, 07/02/2009 at 10:00:11 AM, 7 OF 18,
Janice K. Vos Caudi] Pitkin County, CO
1 ,
Restriction")in Deed recorded in Book 188 at Page 2 of the Records for Pitkin
County,Colorado and reaffirmed in the 1990s Settlement Agreements which reads as
follows:
NO STRUCTURE SHALL BE PLACED WITHIN FIFTEEN FEET FROM
THE EAST BOUNDARY OF LOT NUMBER NINE(9).
b. Landscaping on Zale Property. As of the date of this Agreement,all landscaping on
the Zale Property has been removed except for 3 Bristleeone Pines,3 Aspen Clumps,
and 2 unknown other trees in the southeasterly corner of the Zale Property("Existing
Trees"). The Parties hereby agree to the following waiver with respect to the
Existing Trees and the following additional agreement with respect to any new
landscaping to be planted on the Zale Property subsequent to the execution of this
Agreement("New Landscaping"):
i. Existing Trees. Grosz and Rodell,for themselves and their successors and
assigns, hereby waive their right to enforce the 1990s Settlement
Agreements' height restriction for landscaping on the Zale Property with
respect to those Existing Trees that are healthy trees. Unhealthy trees must be
removed prior to implementing any land development plan for the Zale
Property.
ii. New Landscaping. Zale,for himself and his successors and assigns,hereby
agrees that no New Landscaping shall be planted on the Zale Property which
shall be capable of exceeding 7967 feet in elevation,as determined from a
NVAD88 elevation of 7963.13 feet on the top of the rebar&cap LS 419598
monumenting the northeast corner of said Zale Property.
c. Retainine Walls. The railroad tie retaining wall that is the subject of the 1990s
Settlement Agreements("Existing Retaining Wall")is constructed approximately
along the boundary line between the Zale Property and the Rodell Property and also
along the westerly boundary line of the parcel identified as Parcel D in the 1990s
Settlement Agreements("Parcel D"). The parties acknowledge and agree that the
purpose of the Existing Retaining Wall is to create structural stability in the ground
between the Zale Property and the Rodell Property and Parcel D. Zale has altered the
Existing Retaining Wall, in violation of the 1990s Settlement Agreements, by
removing the lowest tier of the three-tiered section of the Existing Retaining Wail
which marks the westerly boundary line of Parcel D. The Parties hereby agree to the
following waiver with respect to the Existing Retaining Wall and the following
additional agreements with respect to the completion of the partially constructed
separate retaining wall or any new retaining wall which may be constructed on the
We Property(collectively,the"New Retaining Wall"):
i. Existing Retaining Wall. Grosz and Rodell, for themselves and their
7
RECEPTION#: 560509, 07/02/2009 at 10:00:11 A-M, 8 OF 18,
Janice K. Vos Caudill,*t.kin County, CO
successors and assigns,hereby waive enforcement against the violation of the
1990s Settlement Agreement with respect to the Existing Retaining Wall that
occurred prior to the e\ecution of this Agreement so long as no further
modification,alteration or destruction of the Existing Retaining Wall occurs
by Zale,or his successors and assigns,or that may occur as a result of the
prior alteration of the Existing Retaining Wall by Zale. This waiver shall in
no way be construed as a waiver of any right of enforcement against future
modification,alteration or destruction of the Existing Retaining Wall by Zale
or by the same resulting from Zale's prior alteration ofthe Existing Retaining
Wall.
ii. New Retaining Wall. Zale may.at his expense,construct a New Retaining
Wall on the Zale Property so long as(1)no component of the New Retaining
Wall encroaches into the Existing Retaining Wall, Parcel D. the Grosz
Property or the Rodell Property;(2)no easement over,underor on the Grosz
Property or the Rodell Property is required to construct the New Retaining
Wall;and(3)Grosz and Rodcll are given the opportunity to review the New
Retaining Wall design and construction plans with engineers, prior to its
construction,to confirm that the New Retaining Wall will not impair the
structural integrity of the Existing Retaining Wall and that it will comply with
the provisions of this paragraph.
d. Covenant Regarding Waivers. The parties agree that the provisions of the 1990s
Settlement Agreements remain valid and enforceable despite the waivers of prior
violations contained herein,and other than the Parties'mutual release of the Setback
Restriction,the waivers herein shall not be used to avoid the obligations of,or to
prevent enforcement against future violations of, the provisions of the 1990s
Settlement Agreements or the additional agreements contained in this Paragraph 6.
c. Third Party Beneficiaries. The owners of Lot 5 of Promontory Subdivision(other
than Grosz,who is a direct beneficiary)are intended third party beneficiaries of the
restrictive covenants in this Paragraph 6.
7. Trespass Claims of Rodell Against Zale. Zale acknowledges that during construction in or
around January of 2007,certain portions of a retaining wall being constructed on the Zale
Property were also constructed onto or into the Rodell Property and constituted a trespass.
As a result,in the Litigation.Rodell filed claims for damages and breach of a court-ordered
stipulation regarding construction activity during the pendency of the Litigation. Rodell
discloses to Zale herein that Rodell's property insurance carrier,State Farm Fire and Casualty
Company ("State Farm"), subsequently reimbursed Rodell for repair of the immediate
damage caused by the trespass. While this Agreement is intended to settle the trespass and
breach of court-ordered stipulation claims in the Litigation(Rodeil's Fifth and Sixth Claims
for Relief)as part of the overall settlement contained herein,this Agreement does not in any
way compensate Rodell again for the damage for which Rodell already received payment
8
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 9 OF 18,
Janice K. Vos Caudil Pitkin County, CO
from State Farm and for which State Farm has retained subrogation rights.Nor does it waive
any of Rodell's rights to pursue future action for damages in the event of destruction of the
Rodell Property that can be established to have resulted from the trespass described herein.
To the best of Rodell's knowledge,however,as of the date of execution of this Agreement,
there are no known but previously unasserted claims due to the trespass.
8. Land Development Approvals for Zale Property. A residence which was located on the Me
Property was demolished in the Fall of 2006 pursuant to Demolition Permit No.
0087.2006.ARBK. Building Permit No. 0128.2006-ARBK(the`Building Permit")was
issued on March 19, 2007 for the construction of a new residence which was never
constructed. Zale hereby confirms that this Building Permit has expired and that any future
building permit shall not issue,under any circumstance,for the development plans that were
approved for construction under that Building Permit. Zale,for himself and his successors
and assigns, agrees to the following restrictions regarding any new development plans
submitted to the City for the Zale Property:
a. Representation to City of Intent to Comply. Zale,for himself and his successors and
assigns, hereby agrees to present evidence of all written and recorded restrictive
covenants and other agreements burdening the Zale Property for the benefit of the
Grosz Property and/or Rodell Property to the City at the time any application for
development of the Zale Property is submitted to the City for approvals.
b. Representations to Grosz and Rodell of Intent to Comply. Zale,for himself and his
successors and assigns,hereby agrees to notify the owners of the Grosz Property and
the Rodell Property prior to submitting any new development plans,and ongoing
revisions thereto,to the City for approval,and shall allow them the opportunity to
review the same for compliance with the restrictive covenants and agreements that
burden the Zale Property for the benefit of the Grosz Property and/or the Rodell
Property.
9. New Construction Activity. Zale,for himself and his successors and assigns,covenants and
agrees to the following with respect to construction activity on the Zale Property:
a. Protection from Construction Dust and Debris. Zale,for himself and his successors
and assigns, agrees that any construction on the Zale Property shall not proceed
without adequate protections in place to prevent construction dust and debris from
being deposited onto and/or damaging Parcel D,the Grosz Property and/or the Rodell
Property. In the event such dust and debris is deposited on Parcel D,the Grosz
Property or the Rodell Property during construction activity on the Zale Property,the
owner of the Zale Property agrees to pay for or reimburse the owners of the Grosz
Property and/or the Rodell Property for the costs of clean up of such dust and debris
and/or repair of any such damage. In the event Zale refuses or fails to make such
reimbursement,the owners of the Grosz Property and/or the Rodell Property shall
have the right to place a lien on the Zale Property for such amount of reimbursement.
9
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 10 OF 18,
Janice K. Vos Caudill,000Atkin County, CO
10. Dismissal of Claims. Upon full execution of this Agreement,the Parties shall execute a
stipulated motion for dismissal of the following claims of Grosz and Rodell against Zale and
counterclaims of Zale against Grosz and Rodell in the Litigation:
a. Grosz and Rodell Claims in the Third Amended and Supplemental Complaint Filed
January 9.2008:
i. All of the First,Second,Fifth,Sixth Claims for Relief,without prejudice.
ii. All of the Seventh Claim for Relief,with prejudice;provided,however,that
any portion of this Claim that relates to any portion of Lot 6 and Lot 9 of the
Promontory Subdivision not within the Zale Property will be dismissed
without prejudice.
iii. All of the Third and Fourth Claims for.Relief,except any claims related to
the One Story Restriction Claims,with any portions of the Third and Fourth
Claims for Relief related to the 1990s Settlement Agreements to be dismissed
without prejudice and any portions thereof related to the Benedict Height
Restriction, the Benedict Single Family Dwelling Restriction, Setback
Restriction and the Barnard Height Limit to be dismissed with prejudice;
provided, however, that any portion of these Claims that relates to any
portion of Lot 6 and Lot 9 of the Promontory Subdivision not within the Zale
Property will be dismissed without prejudice.
b. Counterclaims of Zale in Zale's Amended Answer to Third Amended and
Supplemental Complaint.Counterclaims and Cross-Claims Filed May 23 2008:
i. First Counterclaim for Specific Performance and Injunction regarding the
Height Restriction (identified herein as the Benedict Height Restriction)
against Grosz only,with prejudice.
ii. Second Counterclaim for Specific Performance and Injunction regarding the
Height Restriction (identified herein as the Benedict Height Restriction)
against Rodell only,with prejudice.
iii. Fourth Counterclaim for Declaratory Judgment against Grosz and Rodell,
with prejudice.
11. Representations by M . Zale represents that the following statements are true and accurate
as of the date of full execution of this Agreement:
a. That Zale has not entered into or reached any type of settlement of any claim(s)
involving the One Story Restriction that is the subject of the One Story Restriction
10
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, ill OF 18,
Janice K. Vos Caudil- Pitkin County, CO
Claims which Zale has against any title company insuring title to the Zale Property.
b. That Zale is the sole owner of the Zale Property.
c. That Zale is not under any verbal or written contract,bargain,obligation or promise
to sell,transfer,gift,convey,or in any other manner dispose of any or all of his
interest in the Zale Property.
d. That Zale has no present intention to sell,transfer, gift, convey,or in any other
manner dispose of any or all of his interest in the Zale Property.
12. Miscellaneous.
A. Further Assurances. The Parties shall cooperate fully with each other and execute
such further instruments,documents,and agreements,and shall give such further
written assurances,as may be reasonably requested by the other party to better
evidence and reflect the transactions described herein and contemplated hereby,
and to cant'into effect the intent and purposes of this Agreement.
B. Amendments. Unless a particular amendment would affect only two of the Parties
hereto,or their successor and assigns,this Agreement may be amended only by an
instrument in writing signed by all of the Parties hereto,or their successors or
assigns.
C. Severabilitv. If any term or provision of this Agreement shall,to any extent,be
determined to be invalid or unenforceable by a court or body of competent
jurisdiction,the remainder of this Agreement shall not be affected thereby,and
each term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
D. Captions and Pronouns. The captions of the sections of this Agreement and
pronouns used in reference to the Parties are for convenience only and shall not be
deemed to be relevant in resolving any question of interpretation or construction
of any part of this Agreement.
L. Counterparts. This Agreement may be executed in counterparts,each of which
shall be considered an original,and all of which together shall be deemed to be
one and the same instrument.
F. Applicable Law:Construction of Agreement:Attorneys'Fees. This Agreement is
entered into in the County of Pitkin,State of Colorado and it will be governed in
all respects by the laws of Colorado. In the event of litigation arising from the
interpretation or the enforcement of any of the terms or provisions of this
Agreement,the Parties hereof agree that jurisdiction and venue for such litigation
11
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 12 OF 18,
Janice K. Vos Caudill,^tkin County, CO
shall be in the courts of Pitkin County,Colorado and that the prevailing party shall
receive an award of reasonable attorneys'fees.
G. Binding Effect. This Agreement shall bind and benefit the heirs,personal
representatives,successors,and assigns of each party and shall benefit each other
person referred to in this Agreement.
H. Organization;Authority:No Conflicts. The Parties represent to each other that
the execution and delivery of this Agreement has been duly and validly
authorized,and all requisite action has been taken to make this Agreement valid
and binding upon the Parties. The Parties further represent to each other that the
consummation of the transactions contemplated by this Agreement will not
constitute a default or result in the breach of any term or provision of any contract
or agreement to which they are a party.
IN WITNESS whereof the Parties hereto have executed this Agreement as of the day and
year stated in the notary clauses for each of their signatures. r
(SIGNATURES ON FOLLOWING PAGES)
12
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 13 OF 18,
Janice K. Vos Caudil 4itkin County, CO
Colleen Grosz
STATE OF ILLINOIS )
) ss.
County of Cook )
This document was acknowledged before me on this day of June,
2009, by Colleen Grosz.
Witness my hand and official seal.
My commission expires: l(�081a0/I
j Z
'OF 'I A SEAL» Notary Public
ANDRIANNA D.FLORES
401-ARY PUBLIC,sTATEOF IUjMs
n G0nMmWj eion res N/09l2p11
RECEPTION#: 560509, 07j 2/2009 at 10:00:11 AM, 14 OF 18, s
Janice K. Vos Caudill. County, CO
J
�l
Timothy C.Rodel
Marjorie .Rodell
STATE OF COLORADO )
ss.
County of Pt V )
This document was acknowledged before me on thi;1"day of June,2009,by
Timothy C.Rodell.
Witness my hand and official seal. ANDREA CROUSE
NOTARY PUBLIC
STATE OF COLORADO
My commission expires: My Commission EAVM 12/3112011
Notary Public
STATE OF COLORADO )
.�L )ss.
County of
This document was acknowledged before me on this2 v day of June,2009,by
Marjorie M.Rodell.
Witness my hand and official seal. ANDREA CROUSE
NOTARY PUBLIC
My commission expires: STATE OF COLORADO
My CommisWon Expims 12/31/2011
rotalf Public
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 15 OF 18,
Janice K. Vos Caudil 9itkin County, CO
MILTON ZALE TRUST
dated December 18, 1980
By:
Milto Zale,Till,"
STATE OF COLORADO )
ss.
County of ?t*k:k►'\ )
This document was acknowledged before me on this ' day of June,2009,by Milton
Zale,Trustee of the Milton Zale Trust dated December 18,1980.
Witness my hand and official seal.
My commission expires:
(a- II-;)LOIt /)w�
tary Publi
AMY
i
BAPP
15
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 16 OF 18,
Janice K. Vos Caudill,'�+tkin County, CO
CONDOMINIUM UNIT A,LAKEVIEW TOWNHOME CONDOMINNMS,
according to the Plat thereof recorded March 3, 1994 in Plat Book 33 at Page 92
and as defined and described in the Condominium Declaration for Lakeview
Townhome Condominiums recorded March 8,1994 in Book 743 at Page 763.
County of Pitkin,State of Colorado.
€ EXHIBIT
4 A (Grosz Property Legal Description)
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 17 OF 18,
Janice K. Vos Caudil Pitkin County, CO
-+h
EXHIBIT
A parcel of land situate within a portion of Lots 7 and 9, Block 1,
Promontory Subdivision, City of Aspen, Pitkin County, Colorado,
descr::!:ed as follows:
Beginning at the Northeasterly corner of Lot 7, Block 1, of said
Promontory Subdivision, said point being on the Westerly right-of-way
of Midland Avenue, said point also being a rebar and cap found in
place; thence N 77021133" w along the common property line of Lot 7
and 5, Flock 1, promontory Subdivision a distance of 111.49 feet to a
point on the Westerly line of the Easterly 15.00 feet of Lot 9, Block
1, Promontory Subdivision, said point being a rebar and cap found in
Place) thence along said Easterly line 5 04 035138" W a distance of
89.38 feet to an existing wood fence)
thence along said fence the following two (2) courses: 8 87000'10" E a
distance of 4.44 feet; thence S 5a6491490 E_a distance of 28.10 feet
to a point on the Southerly line of said Lot 70 Block 1, Promontory
Subdivision;
thence along said Southerly line 6 77 045135" E a distance of 22.11
feet to the Southwesterly corner of an exception parcel described in
Book 457 at Page 136, Pitkin County Clerk and Recorder's Office, said
point being a rebar and cap found in place;
thence along said exception parcel the following two (2) courses: N
51 004'45" E a distance of 51.35 feet to a rebar a cap found in place;
thence S 77.33149" S a distance of 16.00 feet to a point on the
Westerly right-of-way line of Midland Avenues
thence along said Westerly right-of-way to following two (2) eoursesz
N 15 623140" E a distance of 35.90 feet;
thence N 07 0:01220 8 a distance of 24.13 feet to the point of
beginning.
TOGETHER WITH that certain parceln of land6asatet fo �39in Quit Claim
EXCLUDING FROM the above described real property that certain parcel
of land described in Quit Claim Deed recorded December 17, 1991 in
Hook 664 at Page 710.
COUNTY OF PITKiN, STATE OF COLO;Lk :.
U7125 1-741 P-313 02110144 0314V PA 4 OF 4
EXHIBR (Rodell property Legal Description)
3 B
RECEPTION#: 560509, 07/02/2009 at 10:00:11 AM, 18 OF 18,
Janice K. Vos Caudill,A*ktkin County, CO
A parcel of land situated in Lots 6 and 9 of the PROMONTORY SUBDIVISION,City of Aspen.
County ofPititin,State of Colorado,said parcel being more particularly described as follows:
Commencing at the Northwesterly corner of the That Amendment to the Aobgood Burres
Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the
Easterly right-of-way of Park Avenue,the Point of Beginning;thence leaving said Hobgood-
Bucres Subdivision N05°03'00"W along said Eastedyright-of-way a distance of 43.39 feet;
thence continuing along said Easterly right-of--way N10°04'00"W a distance of 71.56 feet to a
point on the Northerly boundary of that parcel described in Reception No.375895;thence
leaving said right-of-way S75"06'00'B along said Northerly boundary,a distance of 67.31 feet to
a point on the Westerly boundary of said Hobgood-Bunts Subdivision;thence leaving said
Reception No.S07°02'58"W along said Westery boundary S14002'1 5"E a distance of 21.13
feet;thence continuing along said Westerly boundary Sl 1°56'47"W a distance of 41.93 feet;
thence continuing along said Westerly boundary N75°06'00"W a distance of 40.93 feet to the
Point of Beginning.
County of Pitkin,State of Colorado
EXHIBIT
C (Zale Property Legal Description)
ASPEN
•�. PROJECT COLORADO
SITE
c� 1 Silver Kia6 Dr
a 2 Rata St
3 N$pies St
4 Cottonwood Le
S AJa:Ave
6 Oak Le
7 MVk Le
S ! Midland Park PI
9 Maxam Le
6 10 Steetsler Oruro Ct
I 1 Ardmore Ct
12 Riverside Ave a
13 Dole Ave '
aj 14 Midked Ave {
IS Mgt)DW rCt '
s
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-r Q�
190 PARK AVENUE
RESIDENTIAL DESIGN STANDARD VARIANCES
ADMINISTRATIVE APPROVAL
This land use application is submitted in request of two administrative variances to the City of Aspen
Residential Design Standards for the new construction of a single-family residence at 190 Park Avenue.
In 2006, the City issued a building permit to this Owner for the construction of a larger residence on the
site. During the site excavation and soil stabilization work, it was discovered that the project did not
comply with some obscure deed restrictions that were established prior to 1960. The project was halted at
that time.
Since then, the Owners and neighbors have developed legal agreements that modify and clarify the deed
restrictions. Two important ones that have influenced the design of this proposal are 1) the residence
shall be limited to one-story of enclosed living space and 2) the residence shall not exceed elevation 7967
excluding chimneys. As a result the proposal is a one-story structure set into the sloping topography of
the site and is raised above the street level on a concrete base. An unenclosed carport is created at the
south end of the property to provide on-site car parking below the raised one-story house.
This submittal seeks an administrative approval for the carport as proposed. We request a confirmation
that the car parking area below the raised one-story house be considered a carport by virtue of being
unenclosed and, as required by the Residential Design Guideline 26.410.040.C.2.b, having the front-most
supporting column of the carport set back at least 10 feet further from the street than the front-most wall
of the house. The plan in drawing A2.1 and the sections in A4.3 show that the raised one-story residence
above the parking area is cantilevered 10 feet beyond the front-most support or foundation walls. Finding
that the proposed design satisfies the carport requirement eliminates any need for a variance on this topic.
In the event it is determined that the parking area is not a carport, a variance may be granted on the basis
that the proposal is consistent with neighboring responses to the Residential Design Standards for garages.
Photographs of the neighboring residences on Park Avenue illustrate that there is no compliance with the
garage requirement among any of the houses on the east side of the street. Two properties - 110 Park
Avenue and 214 Park Avenue -have no garages at all and parking appears to be in the Right-of-Way.
The other three properties - 100 Park Avenue, 130 Park Avenue and 1203 Hopkins - have garages that are
not set back the required 10 feet. The proposal is in conforinance with the established character of the
neighborhood.
This submittal also seeks an administrative approval for a variance from Residential Design Standard
26.410.040.D.3.a which prohibits street -facing windows between 9' and 12' above the finished first
floor. It is our understanding the purpose of this requirement is to establish an appropriate scale for
neighborhoods and to enhance an observer's ability to discern this scale by understanding whether a
house is one or two stories. Our proposed design is driven by the legal limitation of one story of living
space as described above. The elevation illustrations on drawing A3.1 and the Street View rendering
show floor-to-ceiling windows on the street-front facade. The southern mass has glazing from the
finished first floor to a ceiling height of 10'. The northern mass has glazing from the finished first floor to
a ceiling height of 12'. Despite the extent of glazing, the design of the house is a strong expression of the
raised one-story concept. Visible horizontal elements clearly define a raised floor plate, a ceiling plane
and the single story of living space in between. The natural berming of the grade against the partially
exposed foundation wall also serves to reinforce the perception of building size and scale for the passing
observer. The result is compliance with the intent of the Design Standard.
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ATTORNEYS&COUNSELORS AT LAW
,JEROME PROFESSIONAL BUILDING
201 NORTH MILL STREET,SUITE 201
ASPEN,COLORADO 81611-1557
Sherman & Howard L.L.C. TELRPI]ONE:(970)925-6300
FAX:(970)925-1181
OFFICES IN:DENVER-COLORADO SPRINGS ASPEN-VAIL
STEAMBOAT SPRINGS•PHOENIX•SCOTTSDALE•RENO
LAS VEGAS• ST.LOUIS
Curtis B.Sanders
Office Number(970)925-6300 Ext.214
E-mail: esanders a()shermanhowarcl.com
November 9,2011
City of Aspen
Community Development Department
130 South Galena Street
Aspen, Colorado 81611
Re: 190 Park Avenue,Aspen,Colorado; Milton Zale Trust Agreement Dated December 18,
1980; Certificate of Ownership
Dear Sir or Madam:
1 am an attorney licensed by the State of Colorado to practice law.
This letter shall confirm and certify that Milton Zale Trust Agreement Dated December
18, 1980 is the owner of certain improved real property located at 190 Park Avenue,Aspen,
Colorado 81611, and legally described on Exhibit A attached hereto (the "Subject Property").
For your convenience, a copy of the vesting deed confirming ownership of the Subject Property
is attached as Exhibit B.
This letter shall further confirm that as the owner of the Subject Property, Milton Zale
Trust Agreement Dated December 18, 1980 has the right and authority to file and pursue land
use applications, variance requests, and other requests with the City of Aspen with respect to the
Subject Property, and that Milton Zale is the TruEDers Zale Trust.
Enc.
LITIGATION\3397293.1
--•- --------- ........ _._. -...... _ -- ..
Exhibit A
Legal Description of Subject Property
A parcel of land situated in Lots 6 and 9 of the PROMONTORY SUBDIVISION,City of Aspen,
County of Pitkin,State of Colorado,said parcel being more particularly described as follows:
Commencing at the Northwesterly corner of the First Amendment to the Hobgood-Burres
Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the
Easterly right-of-way of Park Avenue,the Point of Beginning; thence leaving said Hobgood-
Burres Subdivision N05°03'00"W along said Easterly right-of-way a distance of 43.39 feet;
thence continuing along said Easterly right-of-way N10°04'00"W a distance of 71.56 feet to a
point on the Northerly boundary of that parcel described in Reception No.375895, thence
leaving said right-of-way S75°06'00"E along said Northerly boundary,a distance of 67.31 feet to
a point on the Westerly boundary of said Hobgood-Burres Subdivision;thence leaving said
Reception No. S07°02'58"W along said Westerly boundary S14'02'1 5"E a distance of 21.13
feet;thence continuing along said Westerly boundary S1 l°56'47"W a distance of 4193 feet;
thence continuing along said Westerly boundary N75°06'00"W a distance of 40.93 feet to the
Point of Beginning.
County of Pitkin, State of Colorado
2
LITIGATIQN13397293.1
__
Exhibit B
Copy of Vesting Deed
CITY OF ASPEN CITY OF ASPEN
EXEMPT FROM HRE1T
EXEMPT FROM WRET'T DATE REP NO.
REP. NO. i
page: I of 5
02107/2006 03:55
JRNICE K V05 cRUDILL PiTK1M COUNTY CO R 25.00 d 0.00
WHEN RECORDED RETURN TO;
Name: Milton Zale Trust Agreement dated December 18, 1980
Address: 3824 N.Ashland Avenue ,.
Chicago,II, 60613 C�J
WARRANTY DEED
THIS DEED,made this 2nd day of February,20076,t b_etween API Properties 396 LLC,a Nevada
Y�
limited liability company of the said County of_ ��and State of California,
grantor,and Milton Zale Trust Agreement dated December 18,1980 whose legal address is 3824
N.Ashland Avenue,Chicago,IL 60613 of the said County of Cook and State of Illinois,grantee:
WITNESS,that the grantor,for and in consideration of the sum of Ten dollars and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,has
granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey
and confirm, unto the grantees,their heirs and assigns forever,not in tenancy in common but in
joint tenancy,all the real property,together with improvements,if any,situate,lying and being in
the said County of Pitkin and State of Colorado described as follows:
A parcel of land situated in Lots 6 and 9 of the PROMONTORY SUBDIVISION,City of Aspen,
County of Pitirin,State of Colorado,said parcel being more particularly described as follows:
Commencing at the Northwesterly corner of the First Amendment'to the Hobgood-Burres
Subdivision Exception Plat recorded in Reception Number 427535 said point also being on the
Easterly right-of-way of Park Avenue,the Point of Beginning;thence leaving said Hobgood-
Durres Subdivision N05°03'00"W along said Easterly right-of-way a distance of 43.39 feel;
thence continuing along said Easterly right-of-way N10°04'00"W a distance of 71.56 feet to a
point on the Northerly boundary of that parcel described in Reception No.375895;thence
leaving said right-of-way S75°06'00"E along said Northerly boundary,a distance of 67.31 feet to
a point on the Westerly boundary of said Hobgood-Burrw Subdivision;thence leaving said
Reception No. S07a02'58"W along said Westerly boundary S14102'15"E a distance of 21.13
feet;thence continuing along said Westerly boundary S1 1°56'47"W a distance of 41.93 feet;
thence continuing along said Westerly bourldaryN75°06'00"W a distance of 40,93 feet to the
Point of Beginning.
County of Pitkin.State of Colorado
F710 Number:44266A
Moan Tille of Colorado,Inc.-Aspen Division
Ww-my Drcd-Jornl Tennnu(Ulcinied)
Pop 1 of3
3
U'r1GATION13397293.1
-
-----7--_ • ------.. -. __ _- ..,..ii 11 - _.._ .._. _..... _._.___. _. . .........
, y
also known by street and number as: 190 Park Ave.,Aspen,CO 81611
TOGETHER with all and singular the hereditaments and appurtenances thereto belonging,or in
anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues
and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the
grantor, either in law or equity, of, in and to the above bargained premises, with the
hereditaments and appurtenances_
TO HAVE AND TO HOLD the said premises above bargained and described, with the
appurtenances, unto the grantee, his heirs and assigns forever. And the grantor,for himself, his
heirs, and personal representatives, does covenant, grant, bargain, and agree to and with the
grantee,his heirs and assigns, that at the timo of the ensealing and delivery of these presents,he
is well seized of the premises above conveyed,has good,sure.perfect,absolute and indefeasible
estate of inheritance, in law,in fee simple,and has good right,full power and lawful authority to
grant,bargain, sell and convey the same in manner and form as aforesaid,and that the same are
free and clear from all former and other grants, bargains, sales, liens, taxes, assessments,
encumbrances and restrictions of whatever hind or nature soever,except
See Attached Exceptions
The grantor shall and will WARRANT AND .FOREVER DEFEND the above-bargained
premises in the quiet and peaceable possession of the grantee, his heirs and assigns, against all
and every person or persons lawfully claiming the whole or any part thereof The singular
number shall include the plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
IN S 'WHEREOF,the grantor has executed this deed on the date set forth above.
AP ROPERTIES 96 LLC
API Properties NEVEDA,INC.,Member of API Properties 396 LLC
By:Diane Fox Vice President of API Properties Nevada,Inc.,
I Illill VIII IIIEII IIII IIII VIII IIEIII II VIII IIII IIII
Page:/ of Z
2006.03:B5
JANICE K VOS CAUDILL PITKIN COUNTY CO R 26.00 D 0.00
File Number: 44266A
Stemrt Talc orColmndo.Inc.•Aspmt Division
Warranty Deed—Joint Tcnaacs(F_xtended)
Page 2 of 9
4
L IT,IGATIONt3397293.1
California All Purpose Acknowledgment
State of California)
) ss.
County of Placer )
On —ou before me,Suzanne M.Ayers,Notary Public,
personally appeared ,personally Known to me to be the
person who a name i are)subscribed to t4ewithin instrument and acknowledged to
me th h /they executed the same in hi er heir authorized capacityQA,and that
by hi er eir signature(f, on the instrument the person(l.V,or the entity upon behalf of
which e personal acted,executed the instrument.
5U;;�; EM.AYERS
Witness my hand and official seal. Camink�Irl+sn 1�563a2
Notary Public-CaBf mia
sacrametaw Gov*
tyly Carom.F�If Imes Jul 19,2=
520552
l Elilll ii111 i lll�Iilili lilt lliil Illiil III iilii III it 02/07/206 5
003:55
JANICE K VOS CAUDILL PITKIN COUNTY CO R x0.0/ b 0.00
5
LITIGATION13397293.1
1
1111111111111111 @1p ;11111111t111111111111 1111118 a 6 03:55
JANICE K Vos CRUOILL PITKIN COUNTY CO R 20,00 D 0.00
EXCEPTIONS
I. Distribution utility easements(including cable TV).
2. Those specifically described rights of third parties not shown by the public records of which
Buyer has actual knowledge and which were accepted by Buyer in accordance with
paragraph 8b of contract Form No, CBS 1-9-99[Matters Not Shown by the Public Records].
3. Inclusion of the Properry within any special taxing district.
4. The benefits and burdens of any declaration and party wall agreements,if any.
5. Unpatented mining claims; reservations or exceptions in patents, or an act authorizing the
issuance thereof;water rights,claims or title to water.
6. Taxes for the year 2005 and subsequent years not yet due and payable.
7. Exceptions and reservations as set forth in the Act authorizing the issuance of the Patent for
the City and Townsite of Aspen recorded Mardi 1, 1897 in Book 139 at Page 216 as
Reception No, 60156.
8. Covenants and restrictions as set forth in Deeds recorded September 22, 1960 in Book 191 at
Page 594 as Reception No. 110261 and recorded May 13, 1963 in Book 202 at Page 299 as
Reception No. 115444.
9. Patent reservations of record as follows: Any vein or lode of quartz or other rock in place
bearing gold,silver,cinnabar lead,tin,copper or other valuable deposit claimed or known to
exist on March 23, 1885 as reserved by patent recorded July 17 1949 in Book 175 at page
246.
10. Terms, conditions,obligations and restrictions as set forth in Encroachment Agreement with
The City of Aspen recorded September'7, 1988 in Book 572 at Page 663 as Reception No.
303634.
11. Terms, conditions, obligations, easements and restrictions as set forth in Memorandum RE
Settlement between Martha M. Aspegren and Theresa M. Hubbert Schiff recorded
September 28, 1992 in Book 6.89 at Page 805 as Reception No.349046.
12, Terms, conditions, obligations, easements and restrictions as set forth in Settlement and
Release Agreement between Martha Aspegren and 'Therese M. HEubbert. Schiff (said
Agreement is attached as "Exhibit C" to a recorded document entitled "Easements,
Me Numberr 44266A
Stevan rule OrCOJDrada,Inc.-Aspen X)Vrnoa
ftrmntyDeed—ExhibMt 1(Exceohonsl
Page i of 2
6
LITIGATIOM3397293.1
Restrictive Covenants and Mutual Obligations") recorded January 13, 1994 in Book 738 at
Page 820 as Reception No.365788.
13. Easements, rights of way and all matters as disclosed on Plat of subject property recorded
November 4, 1957 in Ditch Book 2A at Page 240 and on the Plat recorded August 14, 1986
in Plat Book 18 at Page 88 and recorded April 5, 1999 in Plat Book 49 at-Page I1 as
Reception No.429535.
11111111111111111IlrllIIII811111111111111111Iilllfll 0 °1008 03:55
JAWCE K VDS CAUDILL PITKIN MUNTY GC R 28.00 D 0.00
7
LITIGATIONl3397293,l
_...... _._ _,i, _..
Jennifer Phelan
From: Gilbert[gilbert@studiobarchitects.net]
Sent: Friday, November 04, 2011 12:46 PM
To: Jennifer Phelan
Subject: RE: 190 Park Ave: Zale residence
Jennifer,
I've requested the letter from the Owner's attorney and will bring that by upon receipt.
Thanks,
g i l b e r t s a n c h e z, L E E D g r e e n a s s o c i a t e
p r i n c i p a l
s t u d i o b a r c h i t e c t s
5 0 1 r i o g r a n d e p l a c e s u i t e 1 0 4
a s p e n , c o 1 o r a d o 8 1 6 1 1
9 7 0 9 2 0 9 4 2 8 t
9 7 0 9 2 0 7 8 2 2 f
www.studiobarchitects.net
FIRM OF THE YEAR
AIA Colorado West 2011
-----Original Message-----
From: Jennifer Phelan (mailto:Jennifer.Phelan @ci.aspen.co.us1
Sent: Thursday, November 03, 2011 11:32 AM
To: Gilbert
Subject: 190 Park Ave: Zale residence
Hi Gilbert: Attached is the completeness review for your application.
The material you submitted for disclosure of ownership does not meet the city requirement.
Please submit an adequate disclosure at your convenience. Thanks, Jennifer
Jennifer Phelan, AICP
Deputy Director
Community Development Department
City of Aspen
130 S. Galena Street
Aspen, CO 81611
PH: 970.429.2759
FAX: 970.920.5439
www.aspenpitkin.com
-----Original Message-----
From: Jennifer [mailto:jennifep @ci.aspen.co.usl
Sent: Thursday, November 03, 2011 9:40 AM
To: Jennifer Phelan
Subject:
This E-mail was sent from "RNPB6141E" (Aficio MP 7500).
1
THE CITY OF ASPEN
Land Use Application
Determination of Completeness
Date: November 3, 2011
Dear City of Aspen Land Use Review Applicant,
We have received your land use application and reviewed it for completeness. The case number
and name assigned to this property is 0069.201 LASLU—190 Park Ave.
❑ Your Land Use Application is incomplete:
We found that the application needs additional items to be submitted for it to be deemed
complete and for us to begin reviewing it. We need the following additional submission
contents for you application:
1) Proof of Ownership. As noted on pre-application summary, the city requires either a title
report (the easiest form may be an Ownership and Encumbrance report) or a letter from a
Colorado licensed attorney listing all owners, liens, mortgages, etc. affecting the property.
Please provide either an O&E or attorney letter at your earliest convenience.
Please submit the aforementioned missing submission items so that we may begin reviewing
your application. No review hearings will be scheduled until all of the submission contents listed
above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the
land use application.
❑ Your Land Use Application is complete:
If there are not missing items listed above, then your application has been deemed complete
to begin the land use review process.
Other submission items may be requested throughout the review process as deemed necessary by
the Community Development Department. Please contact me at 429-2759 if you have any
questions.
Tha u,
Jennifer Ph n, Deputy Director
City of Aspen, Community Development Department
For Office Use Only: Qualifying Applications:
Mineral Rights Notice Required SPA PUD COWOP
Yes No__,X_ Subdivision(creating more than 1 additional lot)
GMQS Allotments Residential Affordable Housing
Yes No Commercial E.P.F.
File Edit Record Navigate Form Report Format Tab Help
lump 1 ;
0 Fees Fee Summary Main Actions Attachments Routing History Valuation ArchlEng 'Custom Fields '5ub Permits 'Parcels
Permit type aslu Pspen Land Use Permit# 0069.2011.ASLU
Address 190 PARK AVE AptjSuite
o City ASPEN state CO Zip 81611
v
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x Permit Information
p Master permit Routing queue asluGl Applied Ot31011 r
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F Project Status pending Approved •
z
0
y Description RESIDENTIAL DESIGN VARIANCE. Issued
ClosedlFinal
Submitted Clock Running Days❑1 Expires 10!?5l2012
Submitted via
Oomer
Last name ZALE First name IIALTON 190 PARK AVE
C ASPEN CO 81611
G Phone (312)516-4821 Address
Applicant
Q Owner is applicant? Q Contractor is applicant?
Last name ZALE First name MILTON 190 PARK AVE
ASPEN C081611
Phone (312)516-4821 Cust# 29151 Address
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Lender
Last name First name
Phone ( ) Address
Displays the permit lender's address AspenGold5(server) angelas r 1
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