HomeMy WebLinkAboutLand Use Case.233 W Main St.0068.2012.ASLU THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER 0068.2012.ASLU
PARCEL ID NUMBERS 2735 12 4 54 001
PROJECTS ADDRESS 233 W. Main St
PLANNER Jennifer Phelan
(4 W)4 0
CASE DESCRIPTION 804rt��
REPRESENTATIVE Holland and Hart
DATE OF FINAL ACTION 10/29/12
CLOSED BY ANGELA SCOREY ON: 12.7.12
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Projed Status Approved
Des4tbn PPLICAT ON FOR AN APPEAL OF THE INSjBSTANTIAL PLD AMENDMENT TO CITY issued
COUNCd ORD NANCE N0.32,SERIS OF 2004,THE INNSBRUCK PUD
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Last name NJNSBRUG SUITES INVEST j Fist name 422 E HYMAN AVE
ASPEN CO 81611
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Phone (614)236 3000 Address
Applicant
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Last name HOLLAND&HART First name ARTKJR C DAILY 600 E MAIN ST
Phone 970)925-3467 Cust t 26341 Address ASPEN CO 81611
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Alison E.t Eastley
HOLLAND&HART. Pq
Associate
Phone 970-429-6880
Fax 970-315-3524
AEEastley @hollandhart.com
October 11, 2012
VIA HAND DELIVERY
City of Aspen Community Development Dept.
Chris Bendon, Direcotr �°;
Jennifer Phelan, Deputy Planning Director a E D
130 South Galena St. P f T 1 1 2012
Aspen, CO 81611
James R. True, Esq., City Attorney C`M '11'('), DEVELOPM f
Aspen City Hall
130 South Galena St.
Aspen, CO 81611
Re: Requested Appeals Fees and Information Relevant to the Appeal of the
Insubstantial PUD Amendment and the Appeal of the City Interpretation
Dear Mr. Bendon, Ms. Phelan, and Mr. True:
Enclosed please find the requested appeals fees for the Appeal of the Insubstantial PUD
Amendment and the Appeal of the City Interpretation, sent via email on October 8, 2012. In
addition, please find the requested completed and signed "Agreement to Pay Application Fees"
and"Attachment 2—Land Use Application."
Please know that we received a copy of Mr. Jody Edwards' amended letter of earlier today
regarding our Appeal of the City Interpretation and the notice which was published in August in
the Aspen Times Weekly relating to the City's interpretation action. We represent numerous
fractional interest owners in the Innsbruck condominium who hold constitutionally and
statutorily protected property rights. Our clients were entitled to actual, advance, and effective
notice of the various City proceedings which substantially affect those property rights. The
published notice referred to by Mr. Edwards was wholly inadequate to cure the absence of any
actual, advance, effective notice to our clients. To the degree necessary, please consider this
information as an amendment to our Appeal of the City Interpretation.
Sincerely,
Alison E. Eastley
for Holland & Hart LLP
Enclosures
cc: Arthur C. Daily, Esq., Karen Dennison, Esq.
Holland&Hart U.P Attorneys at Law
Phone(970)925-3476 Fax(970)925-9367 www.hollandhart.com
600 East Main Street,Suite 104 Aspen,CO 81611-1991
Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington,D.C.
L T,. Alison 25-347 y
Phone 970 0 923475
Fax 970-925-9357
AEEastley @hollandhart.com
81701.0001
December 3,2012
VIA E-MAIL
James R. True,Esq., City Attorney
Aspen City hall
130 South Galena St.
Aspen., CO
81611
co.us
4�.ip4•Ltl.*xo.us
Re. Withdrawal of Appeal of the Insubstantial PUD Amendment and Request for
Return of Appeals Fees.
Dear Mr, True:
On Monday October 8th, this firm submitted an appeal on behalf of a number of fractional.
owners in the Innsbruck regarding the City of Aspen Community Development Department's
approval of an Insubstantial PUT) Amendment and the City of Aspen's Amendment to the
Planned Unit Development (PUD) & Subdivision Improvements Agreement for the Innsbruck
Inn Timeshare bodge Project(collectively, -Appeal of the Insubstantial PUD Amendment").
Having resolved the above matter with the Innsbruck Condominium Association, Inc., Innsbruck
Suites Investments, LLC, and Bluegreen Vacations Unlimited, Inc., we are writing to withdraw
the Appeal of the Insubstantial PUD Amendment and seek return of the $1,260.00 appeal fee
tendered therewith. In addition, we are seeking return of the $1,260.00 appeal fee tendered with
the appeal of the City of Aspen Community Development's interpretation of the City of Aspen
Land Use Code timeshare requirements, given that such appeal was denied on October 18, 2012.
Please contact us with any questions.
Respectfully Submitted,
Ason E. Eastley
for Holland&-hart i..L.p
cc: Karen Dennison, Esq.,
Arthur C. Daily, Esq.,
J. Bart. Johnson, Esq., and
Christopher Payne, Esq.
5$73725 l.t?t C,X
Holland&Hart ur Attorneys at Law
Phone(970)t925�3476 Fax(974)425-9367 www,hollandttart.com
600 East Main Street Suite 104 Aspen,Co 81611-1991
ASGen Ali" HOW 61"I fey C arrni Gtv Q--V r4 C(ik,00 Swin'TS Dcmer I-i� I eth C:enter)a<wl f 0p I'm,vv)as Reno)salt l.awe City Santa Fe n'aSNn;trsn,U,C.
Arthur C. Daily
HO L LAND&HART. Phone 970-925-3476
Fax 970-925-9367
ADaily@hollandhart.com
81701.0001
October 8, 2012
VIA E-MAIL AND HAND DELIVERY
City of Aspen Community Development Dept.
Chris Bendon, Director
130 South Galena St. 0'-r 2012
Aspen, CO 81611 ;]
chris.bendon(cr�ci.aspen.co.us
James R. True, Esq., City Attorney
Aspen City Hall
130 South Galena St.
Aspen, CO 81611
jim.true(c ci.aspen.co.us
Re: Appeal of the Insubstantial PUD Amendment to City Council Ordinance No. 32,
Series of 2004, the Innsbruck PUD.
Dear Mr. Bendon:
This firm represents a number of fractional owners in the Innsbruck, a condominium located at
233 West Main Street ("Appellants"). We are writing to appeal the approval by the City of
Aspen Community Development Department for an Insubstantial PUD Amendment, granted on
September 18, 2012, and the Amendment to the Planned Unit Development (PUD) &
Subdivision Improvements Agreement for the Innsbruck Inn Timeshare Lodge Project, made on
September 18, 2012 by the City of Aspen (collectively, the "Insubstantial PUD Amendment").
Appellants request both a reversal of the Insubstantial PUD Amendment and an immediate stay
of the effect of that action until such time as this appeal can be heard and decided by the City
Council or an Administrative Hearing Officer, as appropriate.
The original Innsbruck PUD, dated March 30, 2005, allowed ownership of 1/12 fractional
interests in 17 condominium units. However, between 2005 and 2012, various fractional
interests in the condominium units remained unsold. Ori August 8, 2012, Blue-green Vacations
Unlimited, Inc. (`Bluegreen"), a prospective purchaser of various Innsbruck condominium units,
submitted a formal request for approval of an Insubstantial PUD Amendment, seeking to divide
ownership interests into smaller fractions of time "in order to enable lower buy-in prices [and] to
encourage greater occupancy and turnover rates . . . ." As the recorded Insubstantial PUD
Amendment recites,the changes between the amended and original PUD are as follows:
The room count [is] seventeen (17) timeshare lodge units (with twelve (12) estates "°r
unk with not less than twelve (12) time-span estates per timeshare lodes) . . . .
Owner has the right to sell at least twelve (12)time-span estates per timeshare lodge unit.
Holland&Hart LAP Attorneys at Law
Phone(970)925-3476 Fax(970)925-9367 www.hollandhairtcom
600 East Main Street,Suite 104 Aspen,CO 81611-1991
Aspen Billings Boise Boulder Carson City Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Vegas Reno Salt Lake City Santa Fe Washington,D.C.
HOLLAND&HART !7 Page 2
Staff in the Community Development Department evaluated Bluegreen's formal request,
concluding that the criteria for granting an Insubstantial PUD Amendment were met because the
Innsbruck will continue to function as a timeshare lodge, no physical changes are proposed, and
an increase in timeshare fractions is consistent with the original approvals. This is an insufficient
justification for a finding that the proposed amendment is insubstantial. The grounds for this
appeal are as follows:
1. According to the City of Aspen Land Use Code Section 26.445.100, the Community
Development Director may authorize an insubstantial amendment to an approved
development order for a final development plan, unless the proposed amendment fits into
one of nine circumstances. If the proposed amendment fits into these circumstances, the
proposed amendment is effectively considered substantial, and approval of an
insubstantial PUD amendment is inappropriate. Bluegreen's proposed amendment is
substantial—not insubstantial—and approval of Bluegreen's request for an Insubstantial
PUD Amendment was erroneous. Appellants point to Sections 26.445.100 A. (1) and (9).
Under Section 26.445.100 A. (1), a proposed PUD amendment is considered a substantial
amendment if it changes the use or character of the PUD. Bluegreen's argument that the
proposed amendment does not change Innsbruck's use or character simply because the
development is still a timeshare lodge with more owners evades the practical implication
of the proposed amendment. Merriam-Webster defines "use" as a particular service of
use; "character" is defined as a feature used to separate distinguishable things into
categories. Bluegreen's proposed amendment creates substantially more owners, lower
buy-in prices, shorter turnover rates, and increased occupancy, all of which undeniably
change the use and character of Innsbruck for existing and prospective owners.
Furthermore, the proposed amendment correlates with more move-ins and move-outs,
greater disruption and wear and tear, different clientele, and a lower resale value of the
whole project. Ultimately, since all 1/12 fractional ownership interests have been
purchased in certain condominium units, and in other condominium units some or all
ownership interests remain unsold, the proposed amendment creates three completely
different sets of ownership structures in the condominium units: Units with purely 1/12
fractional ownership interests; hybrid units with both 1/12 fractional ownership interests
and considerably smaller interests; and units with purely smaller interests. Such a change
fosters three different sets of owner-expectations and values and simply cannot be
classified as insubstantial.
Under Section 26.445.100 A. (9), a proposed PUD amendment is considered a substantial
amendment if it is inconsistent with a condition or representation of the project's original
approval or if it requires granting a variation from the project's approved use. As a
condition of the original Innsbruck PUD, only 12 ownership interests were allowed to be
sold in each condominium unit. See Section 4.q. ("The following development
requirements will be satisfied by the Owner pursuant to the Ordinance. . . . Owner has the
right to sell twelve (12) timeshare estates per unit."). Allowing the sale of considerably
HOLLAND&HART.
.;' Page 3
more than 12 ownership interests in each condominium unit is undeniably inconsistent
with the original Innsbruck PUD.
2. As additional grounds for this appeal, Appellants point to state and local law regarding
board and owner authorization. City of Aspen Land Use Code Section 26.590.070 I.
states, "If the development that is proposed to be timeshared is a condominium, the
applicant shall submit written proof that . . . one hundred percent (100%) of the owners of
the condominium units have approved the timeshare development." While the City of
Aspen Land Use Code requires 100% approval from the owners of the condominium
units, Colorado statutory law requires written approval by each and every board member,
where no board meeting is held. See C.R.S. §7-128-202 (1) ("Unless otherwise provided
in the bylaws, any action required or permitted . . . to be taken at a board of directors'
meeting may be taken without a meeting if each and every member of the board in
writing either: (a) Votes for such action; or (b) (I) Votes against such action or abstains
from voting; and (II) Waives the right to demand that action not be taken without a
meeting."). William Guth, President of the Innsbruck Condominium Association, Inc.
(the "Association"), submitted a letter to the Community Development Department on
August 6, 2012, indicating that the Association, "authorize[d] Bluegreen . . . and its
representatives . . . to file and process . . . an application for amendment to the Innsbruck
PUD . . . to permit timeshare interests at the Innsbruck of up to and less than 1/12
fractions." However, Mr. Guth failed to notify fellow Association board members or
Innsbruck owners about the proposed PUD amendment. Accordingly, Bluegreen did not
obtain valid approval from the Association, and the Insubstantial PUD Amendment
should be reversed.
3. Until recording was made of the Development Order and the Insubstantial PUD
Amendment in the Office of the Pitkin County Clerk & Recorder on September 24, 2012,
Appellant had no notice or other knowledge of these proceedings, despite the effect on
Appellants' constitutionally protected property interests.
Appellants tender this notice of appeal within 14 days of receiving notice. Please contact the
undersigned with any information regarding this appeal.
Respectfulby miffed,
Arthur C. Daily
of Holland& Hart LLP
cc: Karen Dennison, Esq., Alison Eastley, Esq.
5788940_1
J 11 2012
COMMUNITY DEVELOPMENT DEPARTMENT
Agreement to Pay Application Fees
Anagreement between the City of Aspen ("City") and
Property Eve Feigelis, Ron Schreiber, Phone No.: 970-925-3476
Owner("I"): Howard Klein Email: aeeastley @hollandhart.com
Address of Innsbruck Inn Billing c/o Holland & Hart LLP
Property: 223 West Main Address: 600 E. Main, Ste 104
(subject of Aspen, CO 81611 (send bills here) Aspen, CO 81611
application) p
I understand that the City has adopted, via Ordinance No. , Series of 2011, review fees for Land Use applications
and the payment of these fees is a condition precedent to determining application completeness. I understand
that as the property owner that I am responsible for paying all fees for this development application.
For flat fees and referral fees: I agree to pay the following fees for the services indicated. I understand that these
flat fees are non-refundable.
$ n/a flat fee for $ n/a flat fee for
$ pl a flat fee for $ n/a flat fee for
For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed
project, it is not possible at this time to know the full extent or total costs involved in processing the application. I
understand that additional costs over and above the deposit may accrue. I understand and agree that it is
impracticable for City staff to complete processing, review, and presentation of sufficient information to enable
legally required findings to be made for project consideration, unless invoices are paid in full.
The City and I understand and agree that invoices mailed by the City to the above listed billing address and not
returned to the City shall be considered by the City as being received by me. I agree to remit payment within 30
days of presentation of an invoice by the City for such services.
I have read, understood, and agree to the Land Use Review Fee Policy including consequences for non-payment.
I agree to pay the following initial deposit amounts for the specified hours of staff time. I understand that payment
of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs
exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the
processing of my application at the hourly rates hereinafter stated.
$ 1 ,2hn_nn deposit for 4 hours of Community Development Department staff time. Additional time
above the deposit amount will be billed at$315 per hour.
$ n/a deposit for hours of Engineering Department staff time. Additional time above the deposit
amount will be billed at$265 per hour.
City of Aspen: Property Owner:
. 1&w�— I "a2
Chris Bendon
Community Development Director Name:Alison E. Eastley, for Holland & Hart LLP
City Use:
Title: Representative of Appellants
Fees Due:$ Received: $
Noveni ber. 2011 Clt\ of Aspen 1 130 S. Galena St. 1 (970)920-5090
OCT 2
ATTACHMENT 2-LAND USE APPLICATION
ftoiEcr:
Name: Innsbruck Inn
Location: 223 West Main, Aspen, CO 81611
(Indicate street address,lot&block number,legal description where appropriate)
1 Parcel ID#(RE—QUIRED) 2715-i?4_54_io1
APPLICANT:
Name: Eve Feigelis, R Schreiber, Howard Klein,
Address: c/o Alison E. Eastley, Holland & Hart LLP,- as representative, 600 E. Main St., #L04
Phone#: Aspen, CO 81611. 970 925-3476
REPRESENTATIVE:
Name: Arthur C. Daily & Alison E. Eastley,
Address: Holland & Hart LLP, 600 E. Main St, Ste 104
1
Phone#: 970-925-3476
TYPE OF APPLICATION:(please check all that apply):
F-1 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, condominiurnization) Amendment)
Mountain View Plane
❑ Commercial Design Review ❑ Lot Split ❑ Small Lodge Conversion/
Expansion
❑ Residential Design Variance ❑ Lot Line Adjustment -ZI Other: Appeal
❑ Conditional Use
EXISTING CONDrMNs: (description of existing buildings,uses,previous approvals,etc.)
L
PROPOSAL: (description of proposed buildings,uses,modifications,etc.)
Have you attached the following? FEES DUE:$1.260.00
❑ Pre-Application Conference Summary
❑ Attachment#1,Signed Fee Agreement
❑ Response to Attachment#3,Dimensional Requirements Form
❑ Response to Attachment#4,Submittal Requirements-Including Written Responses to Review Standards
❑ 3-D Model for large project
All plans that are larger than 8.511 X I I"must be folded. A disk with an electric copy of all written text
(Microsoft Word Format)must be submitted as part of the application. Large scale projects should include an
electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model.
Owners of fractional interests in the Innsbruck Inn. This group represents
numerous other fractional interest owners in the Innsbruck.