HomeMy WebLinkAboutlanduse case.boa.820 W Smuggler.005-01
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NOTICE OF PUBLIC HEARIl\
CASE #01-05
Before the City of Aspen Board of Adjustment
TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE
DESCRIBED BELOW:
Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the
BASEMENT MEETING ROOM, City Hall, Aspen, Colorado, (or at such other place as the meeting may
be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority
for variance from the provisions of the Zoning Ordinance, Chapter 26, Official Code of Aspen. All persons
affected by the proposed variance are invited to appear and state their views, protests or objections. If you
cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you
have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions
of surrounding property owners and others affected in deciding whether to grant or deny the request for
vanance.
Particulars of the hearing and requested variance are as follows:
Date and Time of Meeting:
Date: November 15,2001
Time: 4:00 P.M.
Owner for Variance:
Representative for Variance:
Name:
William and Dana Powell
Alan Richman
Address:
II Lynn Batts Lane, Suite 100
San Antonio, TX 78218
Box 3613
Aspen, CO 81611
Location or description of property:
820 West Smuggler Street, Condominium Unit B, Tree House Condominiums (Lots M, N, and 0 in Block
8, City of Aspen)
Variances Requested:
The applicant is requesting a five-foot (5') side yard setback variance for the east side yard and a twenty-
foot (20') combined side yard setback variance to enclose a second story deck.
Will applicant be represented by Counsel: YES: NO: X
The City of Aspen Board of Adjustment
130 S. Galena Street
Aspen, CO 81611
Charles Paterson, Chairman
,'''.
RESOLUTION NO. 07
Series of 2001
A RESOLUTION OF THE BOARD OF ADJUSTMENT OF THE CITY OF ASPEN
GRANTING A VARIANCE IN CASE NUMBER 01-05 RELATING TO PROPERTY IN
THE CITY OF ASPEN WITH AN ADDRESS OF 820 WEST SMUGGLER, LOT 12,
BLOCK 1, PITKIN MESA.
WHEREAS, William and Dana Powell have made application,
dated October 19, 2001 to the Board of Adjustment for a
variance from the dimensional requirements of Chapter 26 of the
Aspen Municipal Code; and
WHEREAS, this matter came on for hearing before the Board of
Adjustment on January 3, 2002 where full deliberations and
consideration of the evidence and testimony was presented.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF
THE CITY OF ASPEN, COLORADO:
Section 1. Findings of Fact.
The Board of Adjustment makes the following findings of fact:
1. A development application for a variance was initiated
by: William and Dana Powell on October 19, 2001 for property
with a street address of 820 West Smuggler, Aspen, Colorado.
2. Notice of the proposed variance has been provided to
surrounding property owners in accordance with Section 26-
304-060(E) (3) (c)of the Aspen Municipal Code. Evidence of such
notice is on file with the City Clerk.
3. The grant of variance will be generally consistent with
the purposes, goals, objectives, and policies of the
Aspen Area Community Plan and Chapter 26 of the
Aspen Municipal Code.
4. The grant of variance is the minimum variance that
will make possible the reasonable use of the parcel,
building or structure.
-
5. The literal interpretation and enforcement of the
terms of Chapter 26 of the Aspen Municipal Code
would deprive the applicant of rights commonly enjoyed
by other parcels in the same zone district, and would
cause the applicant unnecessary hardship or practical
difficulty. In determining that the applicant's rights
would be deprived absent a variance, the Board
considered certain special conditions and circum-
stances which are unique to the parcel, building or
structure, which are not applicable to other parcels,
structures or buildings in the same zone district and
which do not result from the actions of the applicant.
Section 2. Variance Granted.
The Board of Adjustment does hereby grant the applicant the
following variance from the terms of Chapter 26 of the Aspen
Municipal Code by a 5 to 0 vote:
A five (5) foot side yard setback variance
yard and a twenty (20) foot combined
variance to enclose an existing deck.
for the east side
side yard setback
Said variance is granted with the following condition:
1. The applicant voluntarily agrees
remaining ninety-nine (99) square feet
limit the size of the approved deck to
(110) square feet of floor area.
to
of
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sterilize
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hundred and
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APPROVED AS TO FORM
City Attorney
INTRODUCED, READ AND ADOPTED by the Board of Adjustment
of the City of Aspen on the 3rd day of January, 2002
Chairperson
I, the undersigned duly appointed and acting Deputy
City Clerk do certify that the foregoing is a true and accurate
copy of that resolution adopted by the Board of Adjustment of the
City of Aspen, Colorado, at a meeting held on the day hereinabove
stated.
Deputy City Clerk
3
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AGENDA
ASPEN BOARD OF ADJUSTMENT
SPECIAL MEETING
THURSDAY, NOVEMBER 15, 2001
4:00 PM
CITY COUNCIL MEETING ROOM
I.
COMMENTS
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A. Commissioners
B. Planning Staff
C. Public
II. MINUTES
III. DECLARATION OF CONFLICTS OF INTEREST
IV. PUBLIC HEARINGS
A. Case #01-05: William and Dana Powell, 820 West Smuggler
Street Condominium Unit B, Tree House Condominiums (Lots M, N, 0
in Block 8, City of Aspen). The applicant is requesting a five-foot (5')
side yard setback variance for the east side yard and a twenty-foot (20')
combined side yard setback variance to enclose a second story deck.
V. ADJOURN
MEMORANDUM
TO:
Board of Adjustment
Joyce Ohlson, Deputy Director~
THRU:
FROM:
Sarah Oates, Zoning Officef$O
RE:
820 West Smuggler-Williams and Dana Powell
DATE:
November 15, 2001
~-------------------------------------------------------------
--------------------------------------------------------------
SUMMARY: The applicants request a variance from the side yard setback requirement
and the combined side yard setback requirement to enclose an existing deck, Currently, the
property encroaches into both side yards and does not meet the required combined side
yard setback. The variances requested are: a five (5) foot side yard setback variance for the
east side yard and a combined side yard setback variance of twenty (20) feet. The property
is located in the R-6 zone, is one-half of a duplex on a 9,000 square foot lot and has the
following dimensional requirements as it relates to the variances requested:
Required Side Yard -
Required Combined Side Yard-
10 feet
30 feet
The applicants are proposing the following:
Proposed Side Yard-
Proposed Combined Side Yard-
5 feet
10 feet
Please refer to the attached drawings and written information provided by the applicants for
a complete presentation of the proposed variance,
APPLICANT:
William and Dana Powell, represented by Alan Richman
LOCATION: 820 West Smuggler Street, Condominium B, Tree House
Condominiums (Lots M, N and 0 in Block 8, City of Aspen)
REVIEW STANDARDS AND STAFF EVALUATION: Pursuant to Section 26.108.040
of the Municipal Code, in order to authorize a variance from the dimensional requirements
of Title 26, the Board of Adjustment shall make a finding that the following three (3)
circumstances exist:
1. Standard: The grant of the variance will be generally consistent with the purposes,
goals, objectives, and policies of the Aspen Area Comprehensive Plan and this title,
Response: Granting the variance will not conflict with the goals of the Aspen
Area Comprehensive Plan or the requirements of the Aspen Municipal Land
Use Code. The proposed physical changes and uses of the property will not
bring about a change which is very different than the current development.
2. Standard: The grant of the variance is the minimum variance that will make
possible the reasonable use of the parcel, building, or structure,
Response: Reasonable use of the parcel already exists, as there is an existing
duplex on the parcel.
3. Standard: Literal interpretation and enforcement of the terms and provisions of
this title would deprive the applicant of rights commonly enjoyed by other parcels
in the same zone district, and would cause the applicant unnecessary hardship or
practical difficulty, In determining whether an applicant's right would be deprived,
the board shall consider whether either of the following conditions apply:
a. There are special conditions and circumstances which are unique to the parcel,
building or structure, which are not applicable to other parcels, structures or
buildings in the same zone district and which do not result from the actions of the
applicant; or
b. Granting the variance will not confer upon the applicant any special privilege
denied by the Aspen Area Comprehensive Plan the terms of this title to other
parcels, buildings or structures, in the same zone district.
Response: The applicants would not be deprived of any rights commonly
enjoyed by other parcels in the same zone district should the variance not be
granted.
Staff finds no special circumstances exist on the site which are unique to this
parcel that would warrant a setback variance to allow for the owner's rights to
be enjoyed. Therefore, staff cannot establish an unnecessary hardship or
practical difficulty. Staff feels that allowing the variance would give the
applicants a special privilege having to do with dimensional standards which
bind other properties in the same zone district.
ALTERNATIVES: The Board of Adjustment may consider any of the following
alternatives:
. Approve the variance as requested.
. Approve the variance with conditions.
. Table action to request further information be provided by the applicants or interested
parties.
. Deny the variance finding that the review standards are not met.
RECOMMENDATION: Staff recommends that the request for a five (5) foot side
yard setback variance for the east side yard and a combined twenty (20) foot side yard
setback variance be denied finding Criteria #2 and #3 have not been met.
RECOMMENDED MOTION: "I move to approve the request for a five (5) foot side
yard setback variance for the east side yard and a combined twenty (20) foot side yard
setback variance finding that the criteria have been met."
RESOLUTION NO. 07
Series of 2001
A RESOLUTION OF THE BOARD OF ADJUSTMENT OF THE CITY OF ASPEN
GRANTING A VARIANCE IN CASE NUMBER 01-05 RELATING TO PROPERTY IN
THE CITY OF ASPEN WITH AN ADDRESS OF 820 WEST SMUGGLER, LOT 12,
BLOCK 1, PITKIN MESA.
WHEREAS, William and Dana Powell have made application,
dated October 19, 2001 to the Board of Adjustment for a
variance from the dimensional requirements of Chapter 26 of the
Aspen Municipal Code; and
WHEREAS, this matter came on for hearing before the Board of
Adjustment on November 15, 2001 where full deliberations and
consideration of the evidence and testimony was presented.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF
THE CITY OF ASPEN, COLORADO:
Section 1. Findings of Fact.
The Board of Adjustment makes the following findings of fact:
1. A development application for a variance was initiated
by: William and Dana Powell on October 19, 2001 for property
with a street address of 820 West Smuggler, Aspen, Colorado.
2. Notice of the proposed variance has been provided to
surrounding property owners in accordance with Section 26-
304-060(E) (3) (c)of the Aspen Municipal Code. Evidence of such
notice is on file with the City Clerk.
3. The grant of variance will be generally consistent with
the purposes, goals, objectives, and policies of the
Aspen Area Community Plan and Chapter 26 of the
Aspen Municipal Code.
4. The grant of variance is the minimum variance that
will make possible the reasonable use of the parcel,
building or structure.
5. The literal interpretation and enforcement of the
terms of Chapter 26 of the Aspen Municipal Code
would deprive the applicant of rights commonly enjoyed
by other parcels in the same zone district, and would
cause the applicant unnecessary hardship or practical
difficulty. In determining that the applicant's rights
would be deprived absent a variance, the Board
considered certain special conditions and circum-
stances which are unique to the parcel, building or
structure, which are not applicable to other parcels,
structures or buildings in the same zone district and
which do not result from the actions of the applicant.
Section 2. Variance Granted.
The Board of Adjustment does hereby grant the applicant the
following variance from the terms of Chapter 26 of the Aspen
Municipal Code by a to vote:
A five (5) foot side yard setback variance for the east side
yard and a twenty (20) foot combined side yard setback
variance to enclose an existing deck,
APPROVED AS TO FORM
City Attorney
INTRODUCED, READ AND ADOPTED by the Board of Adjustment
of the City of Aspen on the 15th day of November, 2001
Chairperson
I, the undersigned duly appointed and acting Deputy
City Clerk do certify that the foregoing is a true and accurate
copy of that resolution adopted by the Board of Adjustment of the
City of Aspen, Colorado, at a meeting held on the day hereinabove
stated.
Deputy City Clerk
2
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ALBERT GARY & KATHLEEN
725 W SMUGGLER ST
ASPEN CO 81611
AULD ROBERT H & CAROL C
PO BOX 186
BELMONT MA 02178
CITY OF ASPEN
130 S GALENA ST
ASPEN CO 81611
DIGIGLIA LE RAY
DIGlGLIA JOHN WILLIAM
PO BOX 4305
ASPEN CO 81612
FELDER RICHARD B & DEBORAH S
11498 E CAROL WAY
SCOTTSDALE AZ 85259-2620
GALLUCCIO VINCENT P
PO BOX 8065
ASPEN CO 81612
HOLMES ROBERT & AUDREY
45 BERMUDA RD
WESTPORT CT 00880
KRETSCHMAR WILLIAM J REVOCABLE
TRUST
3965 INVESTMENT LN STE A-9
WPALMBEACH FL 33404
MEDICINE BOW EQUITY VENTURE LLC
710 E DURANT AVE #W7
ASPEN CO 81611,2070
POWELL WILLIAM E & DANA D
II LYNN BATTS LN STE 100
SAN ANTONIO TX 78218
.....;~....,
ANTHONY JULIE KATHLEEN
655 MEADOWS RD
ASPEN CO 81611
CAMALOTTA ENTERPRISES L TD
DUNCAN CIO
675 MEADOW RD
ASPEN CO 81611
COLGATE S A & R W TRUST U/Drr 12-29-
89
422 ESTANTE
LOS ALAMOS NM 87544
DOREMUS JOHN
822 W SMUGGLER ST
ASPEN CO 81611
FIRST BAPTIST CHURCH
761 W FRANCIS ST
ASPEN CO 81611
GOLDRICH MELINDA
825 WEST NORTH STREET
ASPEN CO 81611,l173
JENSEN ROBERT N
PO BOX 7847
ASPEN CO 81612
LRM LIMITED P ARlNERSHIP
751DAVISRD
CORAL GABLES FL 33143
MORRIS JOHN S JR
PO BOX 8991
ASPEN CO 81612
SAUNDERS ASPEN QPRT TRUST
401 S BOSTON AVE STE 230
TULSA OK 74103
'.'-..
ASPEN CENTER FOR PHYSICS
700 W GILLESPIE ST
ASPEN CO 81611
CHOUMAS JOHN JAMES & PATRICIA G
BLDG 300 BAYS 313-314
1601 E OLYMPIC BLVD
LOS ANGELES CA 90021
COORDES HEINZ E & KAREN V
908 W FRANCIS
ASPEN CO 81611
ESTRIN JUDITH L
25311 W FREMONT RD
LOS ALTOS CA 94022
FOREST SERVICE ASPEN
HEADQUARTERS
UNITED STATES FOREST SERVICE
H & C MARQOSEE INC TRUSTEE
GARFIELD & HECHT PC
60 I E HYMAN
ASPEN CO 81611
KELTNER DONALD H
KELTNER VIRGINIAP
12100 WILSHIRE BLVD #730
LOS ANGELES CA 90025
MARQUSEE CHARLES B
PO DRAWER X
BOCA RATON FL 33429
NORTONIOHN
NORTON ROBIN
817 WNORTH ST
ASPEN CO 81611
SCHUHMACHER ASPEN PARTNERSHIP
NO II LTD
505 N 8TH ST
ASPEN CO 81611
SCHUTTER CAROLE ANN REVOC LIVING
TRUST
504 N 8TH ST
ASPEN CO 81611
WALDECK VIVIAN G
915 W NORTH ST
ASPEN CO 81611,1171
-"-
SLADE ELLIOTT K III
40 E 67TH ST
NEW YORK NY 10021
V ANDEMOER H H 10/24
1755 MONACO PKWY
DENVER CO 80220
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County of Pitkin }
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State of Colorado }
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, being or representing an
AFFIDAVIT OF NOTICE PURSUANT
TO ASPEN LAND USE REGULATIONS
SECTION 26.304.060(E)
Applicant to the City of Aspen, personally certify that I have complied with the public notice
requirements pursuant to Section 26.304.060(E) of the Aspen Municipal Code in the following
manner:
I, By mailing of notice, a copy of which is attached hereto, by first-class postage prepaid U.S.
Mail to all owners of property within three hundred (300) feet of the subject property, as indicated
on the attached list, on the .!.:.. day of e ~.\..\,,-,,- , 200...L (which is \ ~ days prior to the public
hearing date of \\\\S \.\ ),
2, By posting a sign in a conspicuous place on the subject property (as it could be seen from
the nearest public way) and that the said sign was posted and visible continuously from the "L ~ day
of t\o"'-~\-. , 200~, to the ~ day of ~ , 200~, (Must be posted for at least
ten (10) full days before the hearing date), A photograph of the posted sign is attached hereto,
<4., ~~+J. ,...... "'" .'th\ \0 \ -\-0 .h\o ~
S' tur fu_~
19na e ~
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Signed befon
200J., by Al
WITNESS M
My Commiss
Notary Publi~
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POWELL RESIDENCE
VARIANCE APPLICATION
SUBMITTED BY
ALAN RICHMAN PLANNING SERVICES
BOX 3613
ASPEN, COLORADO 81612
920-1125
OCTOBER, 2001
'P~ Se'Wfeu
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Zen: 3613 .rl4{UH-, ~ %1612
'PM.ul7tU (970) 920-1125
October 9, 2001
Ms, Sarah Oates
Zoning Enforcement Officer
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
RE: VARIANCE APPLICATION FOR POWELL RESIDENCE
Dear Sarah,
This is an application for a variance, to permit the enclosure of an existing deck on the
residence located at 820 West Smuggler Street. The legal description of the property is
Condominium Unit B, Tree House Condominiums (located on Lots M, N, and 0 in Block
8, City of Aspen). A copy of the Board of Adjustment application form is attached as
Exhibit #1.
This application is the being submitted by the owners of the property, William E. Powell and
Dana D. Powell (hereinafter, "the applicants"), A copy of the Deed of Trust, which
demonstrates that the Powells are the owner of this property is attached as Exhibit #2.
Mr. and Mrs, Powell have designated Alan Richman Planning Services and Baker Fallin
Architects as their representatives for purposes of this application. A letter from Mr. Powell
authorizing Alan Richman and Richard Fallin to act as his representatives is provided as
Exhibit #3.
I held a pre-application conference with you on August 3, 2001, to discuss this project.
Based on this meeting, it was confirmed that the proposed development would require the
applicants to submit an application to vary the side yard setback limitations applicable to this
property, Following is an explanation of why this variance is necessary,
Need for Variance
The subject property is located in the R-6 zone district. The total area of the property is
9,000 sq. ft. The setback requirements for a property of this size in this zone district are as
follows:
Minimum size of each side yard: 10'
Total size of both side yards: 30'
Ms, Sarah Oates
October 9, 2001
Page Two
The property is improved with a duplex that was built in 1977. This duplex is shown on the
improvements survey that accompanies this application. It illustrates that the duplex units
have a very unusual orientation to the street and to the property lines, Rather than having
a standard north/south orientation, with the edges of the building being parallel to the side
property lines, these units are oriented in what appears to be a diamond shape. Much of
the mass of each unit is located in the center of the property, in compliance with the
required setbacks, However, the corners of each unit stretch to within 5' of the east and
west property lines, making the actual side yard setback for each duplex unit 5', and the
actual total of both side yards 10',
The deck which the applicants propose to enclose is located in the eastern corner of Unit
B. The deck is located within the side yard setback, since it is situated just 5' from the
property line, The roof in this area, however, is currently stepped back from the edge of
the deck, so it is located approximately 11' from the property line.
The applicants do not propose to extend the deck any closer to the property line. Rather,
the applicants propose to enclose the deck with an extension of the roof. Proposed
elevations and floor plans depicting the enclosure also accompany this application,
There are two primary reasons that the applicants need to enclose this deck, which provide
the basis of this variance request.
1. Deck leaks into house,
The deck has had a leakage problem since the applicants purchased the unit. Snow builds
up on the deck in the winter and when it melts, it leaks through the door, The deck has a
drain but this has not solved the problem, nor have other structural changes the applicants
have tried. Enclosing the deck will be the most effective way of solving this leakage
problem.
2. Impacts from adjoining property.
The deck located on the neighboring property has been built right up to the property line
that separates these two units (see photographs provided on the next page), and may have
been constructed without the necessary permits from the City of Aspen. The tenants who
occupy this neighboring residence use this deck on a frequent basis and this use has made
the Powells' deck unusable due to the noise the tenants generate and the total lack of
privacy that their presence on the deck causes to the Powells. Mr. and Mrs. Powell cannot
even open the blinds in their bedroom or the door to the deck without feeling a total lack
of privacy in their home, since this part of their home is just 5' from the edge of this deck.
The applicants seek this variance to enclose this deck, so that the family can feel more
comfortable and private in this part of their home.
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Photographs illustrating
proximity of the two decks on
the neighboring properties
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Ms. Sarah Oates
October 9, 2001
Page Four
Attached as Exhibit #4 is a letter from Vince Galluccio, the owner (not the occupant) of the
neighboring duplex unit, located at 818 West Smuggler. Mr. Galluccio has reviewed the
plans for the proposed enclosure and his letter states that he would have no objection if the
Board of Adjustment approved this variance application.
Response to Standards for Variance
Section 26.314.040 of the Aspen Land Use Code establishes the standards applicable to all
applications for variances. Following are the applicants responses to each of the applicable
review standards.
A. In order to authorize a variance from the dimensional requirements of Title 26, the
appropriate decision making body shall make a finding that the following three (3)
circumstances exist:
1. The grant of variance will be generally consistent with the purposes, goals, objectives and
policies of the Aspen Area Community Plan and this Title.
Response: In 1977, the minimum side yard setback for all properties (regardless of lot
size) in the R-6 zone district was 5', Therefore, this duplex was conforming as to setbacks
when it was built. This remained the case until the late 1980's, when the City established
a new type of "progressive side yard setback, which increased the amount of the side yard
setback as the size of the lot increased, The City also established a new combined side yard
setback standard at this time.
As one of the participants in those Code revisions, it was my understanding that the City's
intent in adopting these new side yard setback standards was twofold. First, the City wanted
to make new residences develop in a more vertical manner, instead of covering the entire
lot, as had been happening in the West End in the 1980's. This would create development
that was more urban and victorian in character, instead of the suburban-style houses that
were being built. Second, the new standards required that one side yard be more generous
than the other, in an effort to replicate the large side gardens and similar open spaces that
been a key element of Aspen's residential neighborhoods,
We believe that the design of this duplex, although not in conformance with the letter of the
side yard setback standards, is nonetheless consistent with the intent of these standards. The
unusual orientation of the units slices the setbacks into many pieces, several of which have
been used to create large patios, gardens, and similar open areas, As described below with
respect to standard #3, this orientation was established to preserve some of the large trees
in the front of the house. So we believe this design created the kind of garden areas that
the setback is intended to encourage, even though this is accomplished in a different manner
than Title 26 anticipates, These garden areas would be preserved with the proposed design.
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Ms. Sarah Oates
October 9, 2001
Page Five
We would also like to point out that recent changes to Title 26 deleted the combined side
yard setback requirement for 2 detached residences built on a single lot. One of the primary
reasons this change was adopted was to encourage infill development of smaller residences
around the City's residential areas. Infill development is a high priority recommendation of
the Aspen Area Community Plan.
As the applicants were preparing this application, it occurred to us that the City might also
want to consider deleting this requirement as it applies to duplexes. A duplex makes more
efficient use of the City's limited land area and infrastructure as compared to a single-family
residence, and produces two smaller units rather than a single large unit. But our
experience indicates that it is more difficult for a designer to fit a side-by side duplex onto
a 90' wide lot if 30' of the lot is dedicated to setbacks.
You raised a question during the pre-application conference as to whether enclosure of the
deck would have any impact on Fire Department access to the property. This is of
particular concern given the limited 5' setback that is present between the existing deck and
the deck on the neighboring residence,
To answer this question, I held a meeting on September 19, 2001 with Ed Van Walraven,
Fire Marshall of the Aspen Volunteer Fire Protection District. I showed him what was
planned and he told me that the Fire Department had no objections, or special conditions
to apply to this proposal. Fire access will not be affected, since there will be no changes to
the ground level separation between the two structures, and the Department does not have
any special structural requirements it would apply to a dwelling unit of this size.
Richard Fallin made contact with the Building Department to see if they would have any
particular concerns about this proposal. They too indicated that they would not anticipate
any special structural requirements applying to the proposed enclosure.
2. The grant of variance is the minimum variance that will make possible the reasonable
use of the parce~ building or slntcture,
Response: Enclosing the deck is a minimal impact solution to the two problems that we
have identified, these being the leaking deck and the lack of privacy from the neighboring
property. The applicants have measured the existing structure and find that approximately
57% of the walls needed to enclose the deck are already built. So the majority of the mass
of the proposed structure is already in place, Therefore, enclosing the deck will change the
appearance of the structure in a minimum manner, making this a minimum variance with
minimal impacts on surrounding residences,
Ms. Sarah Oates
October 9, 2001
Page Six
3. Literal interpretation and enforcement of the terms and provisions of this Title would
deprive the applicant of rights commonly enjoyed by other parcels in the same zone
district and would cause the applicant unnecessary hardship or practical difficulty. In
determining whether an applicant's rights would be deprived, the board shall consider
whether either of the following conditions apply:
a. There are special circumstances which are unique to the parcel, building or
strUcture, which are not applicable to other parcels, strUctures or buildings in the
same zone district and which do not result from the actions of the applicant; or
b. Granting the variance will not confer upon the applicant any special privilege
denied by the Aspen Area Comprehensive Plan and the terms of this title to other
parcels, buildings or strUctures in the same zone district.
Response: There is, in fact a special circumstance that is unique to this parcel and
structure that is not applicable to other parcels in the R-6 zone district and that is not the
result of the applicants' actions. The special circumstance is the unusual orientation of these
units to the property lines, which is what causes the units to penetrate the current setbacks.
What is particularly significant about this unusual orientation is why it has occurred, The
improvements survey shows that there are severallarge trees in the front of the "Tree House
Condominiums" that were avoided by the original design of these units. It is apparent that
a decision was made when these units were built to have this type of design to preserve the
trees, while also creating distinct areas of usable, private open space on the parce1. I spoke
with John Doremus, the owner of the other unit in the complex, and he confirmed for me
that this is, in fact, the reason the units are oriented in this manner.
It is also important to note that the applicants are currently being deprived of rights
commonly enjoyed by other properties in this zone district. First of all, the applicants are
being deprived of the right to use their property in comfort and privacy. As described in
detail in the introduction to this application, this is due to the deck on the adjacent property
that is located right on the line between these two properties. Enclosing the applicants' deck
will allow the applicants' family to feel private and secure in this part of their home.
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Secondly, the applicants are being deprived of the right to use the property's allowable floor
area to resolve the deck leakage problem. The maximum allowable floor area for a duplex
on this property is 4,080 sq. ft. Calculations made by the architect show that Unit A
contains 2,384.4 sq. ft. of floor area, while Unit B contains only 1,488.2 sq. ft, of floor area,
The total floor area on the property, therefore, is 3,872.6 sq. ft., which is 207.4 sq. ft. below
this property right. The applicants could solve the leakage problem by covering the deck
and using a small portion of this allowable floor area, leaving them with what will still be a
relatively modest dwelling unit containing under 1,700 sq. ft. of floor area.
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Ms. Sarah Oates
October 9, 2001
Page Seven
We would point out that the applicants applied for and received a building permit earlier
this year for an addition to this unit along the alley, to make the master bedroom more
functional. The applicants have decided not to build part of this addition, and to instead
seek approval for this variance as the preferred use of the remaining floor area. After the
original addition was designed and approved, the applicants recognized that an addition
above the garage would have a significant effect on the views from Unit A, which has been
the long time residence of Mr. John Doremus. The applicants do not want to cause such
negative impacts on their neighbor, and would prefer to enclose the deck, which has the
support not only of Mr. Doremus, but also of Mr. Galluccio, the owner of the residence on
the adjacent property, closest to the proposed enclosure.
Conclusion
The applicants have provided all of the materials you requested during the pre-application
conference, and those materials required by the Land Use Regulations to permit your review
of this application. We look forward to your scheduling of this application for hearing by
the Board of Adjustment. Please let me know if there is anything else we can provide to
you.
Very truly yours,
ALAN RICHMAN PLANNING SERVICES
At~fL..()
Alan Richman, AIep
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EXHIBITS
Board of Adjustment Application Form
Proof of Ownership of Property
Letter Designating Applicant's Representatives
Letter of Support from Vince Galluccio
MAILING ADDRESS
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EXHmIT #1
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THE CITY OF ASPEN
BOARD OF ADJUSTMENT
APPLICATION PACKET
DATE Oc..\',,'oU-.
20~\
CASE#
PHONE .';). \.Q - '7.. d. "is - l. \ S \
APPLICANT ""\\,p.",,, ~"'o 1;)11."''' ~O""it.\\
OWNER
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PHONE
MAILING ADDRESS
LOCATION OF PROPERTY "6 J<> ""it...,\ C;'--,,~~ \eA. C. LD~ 1M, "'* 0 \ (1,\.oL\i- ~ ')
(Street, Block Number and Lot Number)
WILL YOU BE REPRESENTED BY COUNCIL? Yes v"No
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Below, describe clearly the proposed variance, including all dimensions and justification
for the variance (additional paper may be used if necessary), The building permit
application and any other information you feel is pertinent should accompany this
application, and will be made part ofthis case.
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Applicant's Signature
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REASONS FOR DENIAL OF BUILDING PERMIT, BASED ON THE ASPEN
CITY CODE, CHAPTER 26. AN OPINION CONCERNING THIS V ARlANCE
WILL BE PRESENTED TO THE BOARD BY THE ZONING DEPARTMENT
STAFF
i!
DATE PERMIT DENIED
DATE OF APPLICATION
OFFICIAL
HEARING DATE
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COCD-3006-C-l
EXHIBIT #2
WHEN RECORDED RETURN TO:
NORWEST MORTGAGE, INC,
CSLD '
1200 MIDWEST PlAZA EAST
800 LASALLE AVENUE STE. 1000
MINNEAPOLIS, "'N. 66402.2021
I11111111111111111111111111111111111111111111111111111I
410ee0 11/12/1997 04:00P DT DAVIS SILVI
1 of 13 R 66.00 D 0.00 N 0.00 PITKIN COUNTY CO
[Space Above This Line For Recording Data]
DEED OF TRUST
c\'r.
PUBLIC TRUSTEE
THIS DEED OF TRUST ("Security Instrument") is made on NOVEMBER 12, RlE. LEA S, ig
the grantor WILLIAM E POWELL AND DANA D POWELL, HUSBAND AND WI
, ~2~
P\'TKIN COUNT{
the Public Trustee of PITKIN
NORWEST MORTGAGE, INC.
("Borrower"),
County ('Trustee"), and the beneficiary,
which is organized and existing under the laws of THE STATE OF CALIFORNIA . and whose
address is 7495 NEW HORIZON WAY, FREDERICK, MD 21703
("Lender"), Borrower owes Lender the principal sum of
FIVE HUNDRED NINETY FIVE THCUSA1nl ~lD 00/100
Dollars (U,S. $ *****595,000.00 ),
This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which
provides for monthly payments, with the full debt, if not paid earlier, due and payable on
DECEMBER 01, 2012 , 'Ibis Security Instrument secures to Lender: (a) the
repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the
Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this
Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument
COLORADO,Single Family,FNMA/FHLMC UNIFORM INSTRUMENT
.~6RICO) '97071 F~:ert~
Page 1 of 8 Initials lJ-'
VMP MORTGAGE FORMS -18001521-7291
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11111111111I1111111111111111111111111111111111111111111
410SS0 11/12/1!97 04:00P DT DAVIS SILVI
2 of 13 R 66.00 D 0,00 N 0.00 PITKIN COUNTY CO
and the Note, For this purpose, Borrower, in consideration of the debt and the trust herein created, irrevocably grants
and conveys to Trustee, in trust, with power of sale. the following described property located in
PITKIN County, Colorado:
CONDOMINIUM UNIT B, TREEHOUSE CONDOMINIUMS, AS DESCRIBED ON THE CONDOMINIUM MAP
THEREOF RECORDED IN PLAT BOOK 6 AT PAGE 33 AND THE CONDOMINIUM DECLARATION
THEREOF RECORDED OCTOBER 12, 1977 IN BOOK 336 AT PAGE 569, AND FIRST AMENDMENT
THERETO RECORDED OCTOBER 21, 1991 IN BOOK 659 AT PAGE 476. STATE OF COLORADO
COUNTY OF PITKIN
THIS IS A PURCHASE MONEY SECURITY INSTRUMENT.
TAX STATEMENTS SHOULD BE SENT TO: NORWEST MORTGAGE, INC" 7495 NEW HORIZON WAY,
FREDERICK, MD 21703
[Street. Cityl.
which has the address of 820 W3!:T SMUGGLER, AS!?E.r
Colorado 81611 [Zip Code] ("Property Address");
TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements,
appurtenances, and fixtures now or hereafter a part of the property, All replacements and additions shall also be
covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property,"
BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to
grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower
warrants and will defend generally the title to the Property against all claims and demands, subject to any
encumbrances of record.
THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants
with limited variations by jurisdiction to constitute a uniform security instrument covering real property,
UNIFORM COVENANTS, Borrower and Lender covenant and agree as follows:
1. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due
the principal of and interest on the debt evidenced by the Note and any prepayment and late charges due under the
Note,
2. Funds for Taxes and Insnrance. Subject to applicable law or to a written waiver by Lender. Borrower shall
pay to Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum ("Funds")
for: (a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property;
(b) yearly leasehold payments or ground rents on the Property. if any; (c) yearly hazard or property insurance
premiums; (d) yearly flood insurance premiums. if any; (e) yearly mortgage insurance premiums, if any; and (I) any
sums payable by Borrower to Lender, in accordance with the provisions of paragraph 3, in lieu of the payment of
mortgage insurance premiums. These items are called "Escrow Items," Lender may, at any time, collect and hold
Funds in an amount not to exceed the maximum amount a lender for a federally related mortgage loan may require
for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of ]974 as amended from
time to time, 12 U,S,C, Section 2601 el seq, ("RESPA"), unless another law that applies to the Funds sets a lesser
amount, If so. Lender may. at any lime, collect and hold Funds in an amount not to exceed the lesser amount, Lender
may estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of funlre
Escrow Items or otherwise in accordance with applicable law,
The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or
entity (including Lender, if Lender is such an institution) or in any Federal Home Loan Bank, Lender shall apply the
Funds to pay the Escrow Items. Lender may not charge Borrower for holding and applying the Funds. annually
analyzing the escrow account, or verifying the Escrow Items. unless Lender pays Borrower interest on the Funds and
applicable law permits Lender to make such a charge, However. Lender may require Borrower to pay a one,time
charge for an independent real estate tax reporting service used by Lender in connection with this loan. unless
. applicable law provides otherwise, Unless an agreement is made or applicable law requires interest to be paid, Lender
shall not be required to pay Borrower any interest or earnings on the Funds, Borrower and Lender may agree in
writing, however. that interest shall be paid on the Funds. Lender shall give to Borrower, WithOUij'P annual
Initials;
~6R(CO) 197071 Page 2 of 8 Form 3006 1/91
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410550 11/12/1997 04:00P DT DAVIS SILVI
3 of 13 R 66.00 0 0.00 N 0.00 PITKIN COUNTY CO
accounting of the Funds. showing credits and debits to the Funds and the purpose for which each debit to the Funds
was made, The Funds are pledged as additional security for all sums secured by this Security Instrument.
If the Funds held by Lender exceed the amounts permitted to be held by applicable law, Lender shall account to
Borrower for the excess Funds in accordance with the requirements of applicable law, If the amount of the Funds
held by Lender at any time is not sufficient to pay the Escrow Items when due, Lender may so notify Borrower in
writing, and. in such case Borrower shall pay to Lender the amount necessary to make up the deficiency. Borrower
shall make up the deficiency in no more than twelve monthly payments. at Lender's sole discretion,
Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower
any Funds held by Lender. If, under paragraph 21, Lender shall acquire or sell the Property, Lender, prior to the
acquisition or sale of the Property, shall apply any Funds held by Lender at the time of acquisition or sale as a credit
against the sums secured by this Security Instrument.
3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under
paragraphs I and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable
under paragraph 2; third, to interest due; fourth, to principal due; and last. to any late charges due under the Note,
4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and imp'Jsitions attributable to the
Property which may attain priority over this Security Instmment, and leasehold payments or ground rents, if any,
Borrower shall pay these obligations in the manner provided in paragraph 2, or if not paid in that manner, Borrower
shall pay them on time directly to the person owed payment. Borrower shall promptly furnish to Lender all notices of
amounts to be paid under this paragraph. If Borrower makes these payments directly, Borrower shall promptly
furnish to Lender receipts evidencing the payments,
Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:
<a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b)
contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the
Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an
agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part
of the Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower
a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within
10 days of the giving of notice.
S, Hazard or Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on
the Property insured against loss by fire, hazards included within the term "extended coverage" and any other
hazards, including floods or flooding, for which Lender requires insurance, This insurance shall be maintained in the
amounts and for the periods that Lender requires. The insurance carrier providing the insurance shall be chosen by
Borrower subject to Lender's approval which shall not be unreasonably withheld, If Borrower fails to maintain
coverage described above, Lender may, at Lender's option. obtain coverage to protect Lender's rights in the Property
in accordance with paragraph 7,
All insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause,
Lender shall have the right to hold the policies and renewals, If Lender requires. Borrower shall promptly give to
Lender all receipts of paid premiums and renewal notices, In the event of loss, Borrower shall give prompt notice to
the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower.
Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applic-d to restoration or
repair of the Property damaged. if the restoration or repair is economically feasible and Lender's security is not
lessened, If the restoration or repair is not economically feasible or Lender's security would be lessened, the
insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with
any excess paid to Borrower, If Borrower abandons the Property, or does not answer within 30 days a notice from
Lender that the insurance carrier has offered to settle a claim. then Lender may collect the insurance proceeds, Lender
may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, whether or
not then due, The 30,day period will begin when the notice is given,
G-6R(COJ 197071
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410550 11/12/1997 04:00P DT DAVIS SILVI
4 or 13 R 66.00 D 0.00 N 0,00 PITKIN COUNTY CO
Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not
extend or postpone the due date of the monthly payments referred to in paragraphs I and 2 or change the amount of
the payments, If under paragraph 21 the Property is acquired by Lender, Borrower's right to any insurance policies
and proceeds resulting from damage to the Property prior to the acquisition shall pass to Lender to the extent of the
sums secured by this Security Instrument immediately prior to the acquisition,
6. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application;
Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty
days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal
residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent
shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control.
Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate. or commit waste on the
Property. Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal, is begun that
in Lender's good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien
created by this Security Instrument or Lender's security interest. Borrower may cure such a default and reinstate, as
provided in paragraph 18, by causing the action or proceeding to be dismissed with a ruling that. in Lender's good
faith determination, precludes forfeiture of the Borrower's interest in the Property or other material impairment of the
lien created by this Security Instrument or Lender's security interest. Borrower shall also be in default if Borrower,
during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed
to provide Lender with any material information) in connection with the loan evidenced by the Note. including, but
not limited to, representations concerning Borrower's occupancy of the Property as a principal residence, If this
Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower
acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in
writing.
7. Protection of Lender's Rights in the Property. If Borrower fails to perform the covenants and agreements
contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the
Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or
regulations). then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's
rights in the Property, Lender's actions may include paying any sums secured by a lien which has priority over this
Security Instrument, appearing in court, paying reasonable attorneys' fees and entering on the Property to make
repairs, Although Lender may take action under this paragraph 7, Lender does not have to do so,
Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by
this Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear
interest from the date of disbursement at the Note rate and shall be payable. with interest, upon notice from Lender to
Borrower requesting payment.
8. Mortgage Insurance. If Lender required mortgage insurance as a condition of making the loan secured by
this Security Instrument, Borrower shall pay the premiums required to maintain the mortgage insurance in effect. If,
for any reason, the mortgage insurance coverage required by Lender lapses or ceases to be in effect, Borrower shall
pay the premiums required to obtain coverage substantially equivalent to the mortgage insurance previously in effect.
at a cost substantially equivalent \oJ the cost to Borrower of the mortgage insurance previously in effect, from an
alternate mortgage insurer approved by Lender. If substantially equivalent mortgage insurance coverage is not
available, Borrower shall pay to Lender each month a sum equal to one, twelfth of the yearly mortgage insurance
premium being paid by Borrower when the insurance coverage lapsed or ceased to be in effect. Lender will accept,
use and retain these payments as a loss reserve in lieu of mortgage insurance. Loss reserve payments may no
longer be required, at the option of Lender, if mortgage insurance coverage (in the amount and for the period that
Lender requires) provided by an insurer approved by Lender again becomes available and is obtained. Borrower shall
pay the premiums required to maintain mortgage insurance in effect, or to provide a loss reserve, until the
requirement for mortgage insurance ends in accordance with any written agreement between Borrower and Lender or
applicable law.
cQ.-6RICO) 197071
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Form 3006 1/91
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410550 11/12/1997 04:00P DT DAVIS SILVI
5 0' 13 R 66.00 D 0.00 N 0.00 PITKIN COUNTY CO
9. Inspection. Lender or its agent may make reasonable entries upon and inspections of the Property, Lender
shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection,
10. Condemnation. The proceeds of any award or claim for damages. direct or consequential, in connection
with any condemnation or other taking of any part of the Property. or for conveyance in lieu of condemnation, are
hereby assigned and shall be paid to Lender,
In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Security
Instrument, whether or not then due, with any excess paid to Borrower, In the event of a partial taking of the
Property in which the fair market value of the Property immediately before the taking is equal to or greater than the
amount of the sums secured by this Security Instrument immediately before the taking, unless Borrower and Lender
otherwise agree in writing, the sums secured by this Security Instrument shall be reduced by the amount of the
proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the taking,
divided by (b) the fair market value of the Property immediately before the taking, Any balance shall be paid to
Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately
before the taking is less than the amount of the sums secured immediately before the taking, unless Borrower and
Lender otherwise agree in writing or unless applicable law otherwise provides, the proceeds shall be applied to the
sums secured by this Security Instrument whether or not the sums are then due,
If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers
to make an award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the
notice is given. Lender is authorized to collect and apply the proceeds, at its option, either 10 restoration or repair of
the Property or 10 the sums secured by this Security Instrument, whether or nOllhen due,
Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not
exlend or postpone Ihe due date of the monthly payments referred to in paragraphs I and 2 or change the amount of
such payments.
H. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or
modification of amortizalion of the sums secured by this Security Instrument granted by Lender to any successor in
inleresl of Borrower shall not operate to release the liability of the original Borrower or Borrower's successors in
interest. Lender shall nol be required to commence proceedings against any successor in interest or refuse to extend
time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any
demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising
any righl or remedy shall not be a waiver of or preclude the exercise of any right or remedy,
12. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The covenants and agreements of
this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the
provisions of paragraph 17. Borrower's covenants and agreements shall be joint and several, Any Borrower who
co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to
mortgage, granl and convey Ihat Borrower's interest in the Property under the tenus of this Security Instrument; (b)
is not personally obligated to pay the snms secured by this Security Instrumenl; and (c) agrees thaI Lender and any
other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the tenus of this
Security Instrument or the NOle without that Borrower's consent.
13. Loan Charges. If the loan secured by this Security Instrument is subjecl to a law which sets maximum loan
charges. and that law is finally interpreted so that the interest or other loan charges collected or to be collected in
connection with the loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount
necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which
exceeded permitted limits will be refunded to Borrower. Lender may choose to make Ihis refund by reducing the
principal owed under the Note or by making a direct payment to Borrower, If a refund reduces principal, the
reduction will be Ireated as a partial prepayment without any prepayment charge under the NOle,
14, Notices. Any notice to Borrower provided for in this Security Inslrument shall be given by delivering it or
by mailing it by firSI class mail unless applicable law requires use of another method. The notice shall be directed to
the Property Address or any other address Borrower designates by notice 10 Lender. Any notice to Lender shall be
given by first class mail 10 Lender's address stated herein or any other address Lender ~:,:~.g'lJ~nolice to
".6RfCOJ 197071 Page 5 of 8 Form 3006 1/91
.,
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111111I1111I111111 1111I11111111111 1111111I11111111I1111
410550 11/12/1997 04:00P DT DAVIS SILVI
6 0' 13 R 66.00 D 0.00 N 0.00 PITKIN COUNTY CO
Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or
Lender when given as provided in this paragraph,
15. Governing Law; Severability. This Security Instrument shall be governed by federal law and the
law of the jurisdiction in which the Property is located, In the event that any provision or clause of this Security
Instrument or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security
Instrument or the Note which can be given effect without the conflicting provision, To this end the provisions of this
Security Instrument and the Note are declared to be severable,
16. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security
Instrument.
17. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any
interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a
natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full
of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is
prohibited by federal law as of the date of this Security Instrument.
If Lender exercises this option, Lender shall give Borrower notice of acceleration, 'The notice shall provide a
period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all
sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period,
Lender may invoke any remedies pennitted by this Security Instrument without further notice or demand on
Borrower.
18. Borrower's Right to Reinstate. If Borrower meets certain conditions, Borrower shall have the right to have
enforcement of this Security Instrument discontinued at any time prior to the earlier of: (a) 5 days (or such other
period as applicable law may specify for reinstatement) before sale of the Property pursuant to any power of sale
contained in this Security Instrument; or (b) entry of a judgment enforcing this Security Instrument. Those conditions
are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as
if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses
incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) takes
such action as Lender may reasonably require to assure that the lien of this Security Instrument, Lender's rights in the
Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unchanged,
Upon reinstatement by Borrower, this Security Instrument and the obligations secured hereby shall remain fully
effective as if no acceleration had occurred, However, this right to reinstate shall not apply in the case of acceleration
under paragraph 17.
19. Sale of Note; Change of Loan Servicer. The Note or a partial interest in the Note (together with this
Security Instrument) may be sold one or more times without prior notice to Borrower. A sale may result in a change
in the entity (known as the "Loan Servicer") that collects monthly payments due under the Note and this Security
Instrument. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note, If there is a
change of the Loan Servicer, Borrower will be given written notice of the change in accordance with paragraph 14
above and applicable law, The notice will state the name and address of the new Loan Servicer and the address to
which payments should be made, The notice will also contain any other information required by applicable law,
20. Hazardous Substances. Borrower shallllot cause or permit the presence, use, disposal. storage, or release
of any Hazardous Substances on or in the Property, Borrower shall not do, nor allow anyone else to do, anything
affecting the Property that is in violation of any Enviro1llDental Law, The preceding two sentences shall not apply to
the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally
recognized to be appropriate to normal residential uses and to maintenance of the Property,
Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action
by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or
Enviro1llDental Law of which Borrower has actual knowledge, If Borrower learns, or is notified by any governmental
or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Property is
necessary. Borrower shall promptly take all necessary remedial actions in accordance with Enviro1llDental Law,
cQ-6RCC01197071
..
Page 6 of 8
'n"..d~
Form 3006 1191
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111111I1111I1111111111I11111111111 1111111I1111111111111
410550 11/12/1997 04:00P DT DAVIS SILVI
7 0' 13 R 88.00 D 0.00 N 0.00 PITKIN COUNTY CO
As used in this paragraph 20, "Hazardous Substances" are those substances defined as toxic or hazardous
substances by Environmental Law and the following substances: gasoline, kerosene, other flanunable or toxic
petroleum products. toxic pesticides and herbicides, volatile solvents, materials containing asbestos or fonnaldehyde,
and radioactive materials, As used in this paragraph 20, "Environmental Law" means federal laws and laws of the
jurisdiction where the Property is located that relate to health, safety or environmental protection,
NON-UNIFORM COVENANTS, Borrower and Lender further covenant and agree as follows:
21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following
Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration
under paragraph 17 unless applicable law provides otherwise). The notice shall specify: (a) the default; (b) the
action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to
Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date
specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the
Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to
assert in the foreclosure proceeding the non-existence of a defanlt or any other defense of Borrower to
acceleration and sale. If the default is not cured on Or befon' the date specified in the notice, Lender, at its
option, may require immediatc p:lyment in full of all sums secured by this Security Instrument without further
demand and may invoke the power of sale and any other remedies permitted by applic:lble law. Lender shall be
entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, including, but
not limited to, reasonable attorneys' fees and costs of title evidence.
If Lender invokes the power of sale, Lender shall give written notice to Trustee of the occurrence of an
event of default and of Lender's election to cause the Property to be sold. Lender shall mail a copy of the notice
to Borrower as provided in paragraph 14. Trustee shall record a copy of the notice in the county in which the
Property is located. Trustee shall publish a notice of sale for the lime and in the manner provided by applicable
law and shall mail copies of the notice of sale in the manner prescribed by applicable law to Borrower and to
the other persons prescribed by applicable law. After the lime required by applicable law, Trustee, without
demand on Borrower, shall sell the Property at public auction to the highest bidder for cash at the time and
place and under the terms designated in the nolice of sale in one or mOre parcels and in any order Trustee
determines. Trustee may postpone sale of any parcel of the Property by public announcement at the time and
place of any previously scheduled sale. Lender or its designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's certificate describing the Property and the time the
purchaser will be entitled to Trustee's deed. The recitals in the Trustee's deed shall be prima facie evidence of
the truth of the statements made therein. Trustee shall apply the proceeds of the sale in the following order: (a)
to all expenses of the sale, including, but not limited to, reasonable Trustee's and attorneys' fees; (b) to all
sums secured by this Security Instrument; and (c) any excess to the person or persons legally entitled to it.
22. Release. Upon payment of all sums secured by this Security Instrument, Lender shall request that Trustee
release this Security Instrument and shall produce for Trustee, duly cancelled, all notes evidencing debts secured by
this Security Instrument. Tmstee shall reicase this Security Instmment withom further inquiry or liability, Borrower
shall pay any recordation costs and the statutory Trustee's fees,
23. Waiver of Homestead. Borrower waives all right of homestead exemption in the Property.
24. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together
with this Security Instmment. the covenants and agreements of each such rider shall be incorporated into and shall
amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this
Security Instmment. [Check applicable box(es))
o Adjustable Rate Rider [i] Condominium Rider
o Graduated Payment Rider 0 Planned Unit Development Rider
o Balloon Rider 0 Rate Improvement Rider
OVA Rider DOther(s) [specify]
01-4 Family Rider
o Biweekly Payment Rider
fXJ Second Home Rider
. -6R{CO) 19707}
'"
,n;,;."J yO
Form 3006 1/91
~
Page 7 of 8
PAID IN FULL
11111111111I111111111I1111111111111111111I1111111111111
410550 11/12/1997 04:00P DT DAVIS SILVI
8 or 13 R 68.00 D 0.00 N 0.00 PITKIN COUNTY CO
(Seal)
-Borrower
BY SIGNING BELOW. Borrower accepts and agrees to the tenns and covenants contained in this Security
Instrument and in any rider(s) executed by Borrower and recorded with it,
Witnesses: l
(Seal)
~Borrower
(Seal)
.Borrower
(Seal)
.Borrower
STATE OF ~
~V'~~~~
DANA D POWELL
~ County ss:
The foregoing instrument was acknowledged before me this 12TH day of NOVEMBER
1997 . by WILLIAM E POWELL AND DANA D POWELL, HUSBAND AND WIFE
Witness my hand and official seal.
My Conunission Expires: / - :?S-;?(JO/
SUSAN M. WERNETTE
Notaly Publfc, StateofTexu
My CommIssion Expires Jan. 25. 2001
cD-GReCO) 197071
.,
I~ ~. L0-41diu
,
Notary Public
Page a of 8
PAID IN FUll
(Seal)
-Borrower
(Seal)
.Borrower
(Seal)
-Borrower
(Seal)
-Borrower
Form 3006 1/91
''r
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,
,
ALAN RICHMAN
970'92011125
PMra2
EXHIBIT #3
Ms. Sarah Oates
Zoning Enforcement Officer
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
RE: VARIANCE APPLICATION FOR POWELL RESIDENCE
Dear Ms. Oates,
I hereby authorize Alan Richman Planning Services and Baker Fallin Associates, Inc. to act
as my designated representatives with respect to the application being submitted to your
office for my property, located at 820 West Smuggler Street in Aspen. Alan Richman and
Richard Fallin are authorized to submit a variance application on my behalf, to enclose a
deck on my residence. They are also authorized to represent me in meetings with the City
of Aspen staff and the Board of Adjustment.
Should you have any need to contact me during the course of your review of this application,
please do so through these designated representatives, whose addresses and telephone
numbers are included in the land use application.
Sincerely, / fJ
LL. ~tf--; ~ GL~( ((
William E ne Powell
Bitterblue c.
11 Lynnbatts Lane, Suite 100
San Antonio, Texas 78218
210-828-6131
09/13/2001 THU 12: 40 [TX/RX NO 9733] 141002
''t'
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TO:
, FROM:
I DATE:
I
RE:
EXHIBIT #4
MEMORANDUM
Board of Adjustment
CITY OF ASPEN COLORADO
Vince Galluccio
October 5, 2001
Leiter in Support of Requested Variance at 820 West Smuggler
Gentlemen,l am the Owner Oflhe duplex located at 818 West Smuggler, Aspen, Colorado.
1 understand that my neighbor, Wm. Eugene Powell, at 820 West Smuggler has filed for a
variance to enclose the upstairs deck on the east side of his unit.
The Comer oflbe existing deck at 820 West Smuggler projects five (5') feet into the City's ten
(10') foot side yard setback. The deck was built in 1977 when the side yard setback requirement
was five (5') feet.
It is my understanding that Mr. Powell wants to extend the existing walls surrounding the deck
upward approximately 55 inches to full wall height and then roof over the deck, It is my
understa!'ldillg that Mr, Powell wants to enclose this deck to expand his master bedroom and
provide him with additional privacy from the activities of my tenants on my second story deck,
As the owner of the adjoining property I support Mr, Powell's request for the variance and have
no objection to the committee approving the request.
1?d2~
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MAPS AND DRAWINGS
1. Improvement Survey
2. Site Plan!Floor Plans
3. East Elevation
4. South Elevation
5. West Elevation
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