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HomeMy WebLinkAboutlanduse case.boa.101wmainst.smugglerlodge.003-79 _.,-.-_._---------"~- ....._. ,"-. NOTICE Of PUBUC HEARING Case No. 79-3 BEfORE THE CITY Of ASPEN BOARD Of ADJUSTME1~ TO ALL PROPERTY OHNERS AfFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOH: pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the Council Room, City Hall, Aspen, Colo- rado, (or at such other place as the meeting may .be then adjourned) to consider an application filea with the said Board of Adjustment requesting authority for variance f;rom the provisions of the Zoning Ordinance, Chapter 24, 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, then you are urged to state. yo~views by letter, particularly if you have objection to such variance, as the Board of Adjustment will g~ve serious consideration to the opinions of surrounding property ovmers and others affected in deciding whether to grant or deny the request for variance. The particulars of the hearing and of the requested variance are as follows: Date and Time of Meeting: Date: April 5, 1979 Time: 4:00 PM, City council Chambers Name and address of Applicant for Variance: Name: Address: Russell A. Pielstick 520 E. Cooper Avenue, Aspen, CO 81611 Location or description of property: Location: Description: 101 W. Main Street, Aspen, CO Lots E, F, G, H & I, Block 59, :;) MU~lc""'R /...[X6E Aspen Townsite Variance Requested: Application is made for a building permit to remodel an existing nonconforming lodge. The proposed remodeling will exceed 10% of the current replacement cost of the nonconforming structure. Duration of Variance: (Please cross out one) %~~&r~ Permanent . THE CITY OF ASPEN BOARD Of ADJUSTHENT BY ~ ~"- j/';" -"""P'~ . sheryl mmen, Deputy City Clerk Secretary to the Board of Adjustment for Remo Lavagnino, Chairman APpr. TO BOflrID or zmH NG ADJU; niT Cl TY OF {ISPEtl DATE 3/1'?/7Q APPELLMT R'tJ<;s~L/ A"i>'Pt:::N. -J PW EhJ?Il~sr+ IP AspeN, ~.' UJCATION OF PROPERTY ~I \l'.~A-fU Sr. _ Lor::.E.F.G,f-I,tI ~oc~ sq ASfe:~ lOwj.J~'iE: (Street & Number of Subdivision'Blk. & Lot No.) OWNER CASE NO. 71- 3 A.L.)?IF:LS~ADDRESS 52DE. CooP~ A\~ PHONE C?22)-Ihfofo . ~elEi ~ L.o~~ ~DDRESS \.V.MAI"I ST. Building Permit Application and prints or any other pertinent data must accompany this application, and will be made part of CASE NO. :J!t- _~ THE BOARD WILL RETURN THIS APPLICATION IF IT DOES NOT CONTAIN ALL THE FACTS IN QUESTION. DESCRIPTION OF PROPOSED EXCEPTION SHOWING JUSTIFICATIONS: VA'?lAt.:sCE Fio~ 5G-C.Tlor-.t 24-/2(ClI) oJ=' "N-Ic- ~Pf:N M lJlJ I C- rpAL. Co D6-. S6E:- AlTP.c H ED Will you be represented by counsel? Yes PROVISIONS OF THE ZONING ORDINANCE REQUIRING THE BUILDING INSPECTOR TO FORWARD THIS APPLICATION TO THE BOARD OF ADJUSTMENT AND REASON FOR NOT GRANTING: APPLICATION IS ~~DE FOR A BUILDING PERMIT TO REMODEL AN EXISTING NONCONFORJ'UNG LODGE. .The proposed remodeling will exceed 10% of the current replacement cost of the nonconforming structure. Section 24-12.5(a) of the Zoning Ordinance permits ordinary repair and maintenance on a nonconforming structure containing a noncon- forming use provided the repair and maintenance does not exceed 10% of the current replacement costs of the nonconforming structure in . any period of twelve (12) consecutive months. PERMIT REJECTED, DATE APPLICATION FILED MAILED S~/1f ~ . Chipf Rlliln~Inspector Status " ~"....._^.--"..-.-~"--'--'". ... c MEMORANDUM TO: FROM: RE: DATE: Aspen Board of Adjustment Karen Smith, Planning Office Application for Variance - Smuggler Lodge April 19, 1979 Since I will be unable to attend your meeting continuing the Smuggler Lodge Variance Application this afternoon, April 19th, I would like to clarify my statements regarding the planning concerns and considerations underlying the Main Street Office District. Those statements were made at the Board's April 10th meeting and are paraphrased in a letter to you from Mr. Robert Hughes dated April 17th. In order that there be no misunderstanding, I would like to reiterate those considerations. It is my understanding that the purpose of the O-Office designation when applied to Main Street was to maintain the current mix of urban type uses within the overall single family residential character of the area. It was as Bob Hughes' letter states to "preserve the then mix of lodge, residential, office and shop uses." The Planning Office specifically recognized the existing lodge uses at the time and recommended their continuation. An early proposal to zone the existing lodges to a Lodge designation was rejected as spot zoning and the Office zoning offered as an alternative. The Office zoning did have the effect of bestowing non-conforming use status on those existing lodges, resulting in an intended prohibition against expansion or establishment of new lodge uses. On the other hand, you have the non-conforming use section of the zoning code which appears to be intended to disallow substantial improvements beyond the categorization of "ordinary repair". The policy contained in that section clearly is one designed to di scourage, though not abate, non-conformi ng uses, and to promote their discontinuance over the long term. There is then an apparent conflict between two sections of the code and it,is from this dilemma that the Planning Office and City Attorney feel it is appropriate to suggest a code amendment to correct the inconsistency. The amend- ment that we have discussed is one similar to a County Code provision called "Residential Preservation Clause", which exempts residential uses from the strict application of the non-conforming,use provisions and allows those uses to expand or improve through a special review procedure. What we would propose is to include residential and lodge uses in this kind of an exemption provision, using as justification, the apparant zoning intent for Main Street lodges as well as what appears to be a current public interest in encouraging all lodge uses to improve both their pnysical plant and operational management. The latter is a recently surfacing concern brought about by input from the travel industry. I do wish to make it clear that this will be a staff recommendation to the Planning and Zoning :ommission and to the City Council. Until we take a proposal through the process, we cannot guarantee that our analysis of the apparent inconsistency as well as of current land use goals is one that will be accepted by those Boards whicn must make the decision to mnend the code appropriately. What we can say, however, is that we feel comfortable.in making the' proposal. cc: Ron Stock Bob Hughes Clayton Meyring Dave Jones I"" -., MEMORANDUM TO: Aspen Board of Adjustment FROM: Karen Smith, Planning Office RE: Application for Variance - Smuggler Lodge DATE: April 19, 1979 Since I will be unable to attend your meeting continuing the Smuggler Lodge Variance Application this afternoon, April 19th, I would like to clarify my statements regarding the planning concerns and considerations underlying the Main Street Office District. Those statements were made at the Board's April 10th meeting and are paraphrased in a letter to you from Mr. Robert Hughes dated April l7th. In order that there be no misunderstanding, I would like to reiterate those considerations. It is my understanding that the purpose of the O-Office designation when applied to Main Street was to maintain the current mix of urban type uses within the overall single family residential character of the area. It was as Bob Hughes' letter states to "preserve the then mix of lodge, residential, office and shop uses." The Pl anni ng Offi ce speci fi ca 11y recogni zed the exi sti ng lodge uses at the time and recommended their continuation. An early proposal to zone the existing lodges to a Lodge designation was rejected as spot zoning and the Office zoning offered as an alternative. The Office zoning did have the effect of bestowing non-conforming use status on those existing lodges, resulting in an intended prohibition against expansion or establishment of new lodge uses. On the other hand, you have the non-conforming use section of the zoning code which appears to be intended to disallow substantial improvements beyond the categorization of "ordinary repair". The policy contained in that section clearly is one desi ne discoura e, t oug no a a e, non-conforming uses, and to pro elr discontlnuance ove There is then an apparent conflict between two sections of the code and it is from this dilemma that the Planning Office and City Attorney feel it is appropriate to suggest a code amendment to correct the inconsistency. The amend- ment that we have discussed is one similar to a County Code provision called "Residential Preservation Clause", which exempts residential uses from the strict application of the non-conforming, use provisions and allows those uses to expand or improve through a special review procedure. What we would propose is to include residential and lodge uses in this kind of an exemption provision, using as justification, the apparant zoning intent for Main Street lodges as well as what appears to be a current public interest in encouraging all lodge uses to improve both their physical plant and operational management. The latter is a recently surfacing concern brought about by input from the travel industry. I do wish to make it clear that this will be a staff recommendation to the P1anni ng and Zoni ng ':ommi ss i on and to the City Counci 1. Until we take a proposal through the process, we cannot guarantee that our analysis of the apparent inconsistency as well as of current land use goals is one that will be accepted by those Boards whic'l must make the decision to amend the code appropriately. What we can say, however, is that we feel comfortable in making the proposal. cc: Ron Stock Bob Hughes Clayton Meyring Dave Jones '" , Pielstick Gibson ().lIin , Rusaell A. Plelstick 520 E. COOper Ave, Aspen Colorado 81611 ,~ 303' 925 '1666 925'4252 David F. Gibson Richard A Fallin To: The Members of the Board of Adjustment From: Russell A. Pielstick, Architect RE: The Smuggler Lodge March 6, 1979 Pielstick Gibson Fallin is a jOint venture which is agent for the owners of the Smuggler Lodge operated by David Jones who is one of the Owners of this project as well as being the owner of the fine Molly Gibson Lodge. We are submitting this memo as written infor- mation for an appeal which will be presented at a public hearing before you. We will be before you under Section 2-Zl(b) of the Municipal Code, having been referred by a consensus of the City Attorney, the City BUilding Inspector, and the CitY/County Planner who have indicated that the Board has authority to act. The purpose of the public hearing will be to ask for variance from Section 24-l2(a) of the Municipal Code. We intend to show that special conditions and circumstances exist which do not result from actions of the applicant, that these special conditions and circum- stances do not apply to other properties in the same Zone and vicin- ity, that a variance is essential to the enjoyment of property rights enjoyed by others in the smae vicinity and zone which are denied the applicant, and that the granting of a variance will not adversely affect the general purpose of the comprehensive general plan. We intend to show further that, given its several Possible inter- pretations, Section 24-l2.5(a) should not be applied to our project, because practical difficulties exist in the way of precise interpre- tation of Section Z4-lZ.5(a) and in the way of carrying out the spirit of that section without impairing the public safety. A. We feel that the following constitute special conditions and circumstances which do not result from the actions of the applicant: 1. The Smuggler Lodge was built in 1954 which was prior to the existence of any zoning or building codes in Aspen. The bUilding and zoning codes came into existence in 1956 and later. Until the fairly recent rezoning of Main Street and density down zoning of the City, the Smuggler ~ was not non-conforming. The fact that it is non-conform_ oJG-S~~ ing did not result from actIons ot the applicant. Au-l$dILVk O~~ -' llsES COM_u~~ The fact that this structure and use predated the z01nng \,-l;\:::.A2J:lI-l~ and bUilding codes, we feel, represents a special condi- ~~ ~ tion since there existed no written code for the direction (.,\-'\1><. tJ ^-tSJ CII .,?t~ 2. .A .~..--,-,I "_" """'" " 3. of the builder, there existed no description of the community standard and there was no legal description of what was requlred to protect the public health, safety, and welfare. It's present Don-confnrm~ncp. i~ he result of actions by government rather than actions ;-"...~~ by t e app lcan . (~LI.. ~tJCoMPIt~("'v: t-J(}\\JlJlQ.~\O '3t-4-~~7 What we desire to do is to bring the structure into compliance with the present standards for safety and health as specifically defined in the Uniform Building Code, Uniform Plumbing Code, Housing Code, City Thermal Code, Uniform Mechanical Code, National Electrical Code, and other applicable City, State, and Federal laws. The fact that the cost of the attempt to comply exceeds 10% of the current replacement cost does not result from the actions of the applicant. B. We feel that special and extraordinary circumstances apply to the subject property that do not apply similarly to other properties in the same vicinity and zone, as follows: 1. Properties whose uses are still permitted in the zoning district are not restricted as to the amount of money they may spend to remodel. They may spend 10% or 90% or 120% of the current replacement costs, with no concern for the Zoning Code. 2. Under Section 24-l2.3(b) if a non-conforming structure is destroyed it may be replaced without any limitation on how much it costs or the length of time it takes to rebuild it provided it is replaced within two years. 3. Present zoning uses in the district may be changed by the action of the P&Z and City Council as has happened several times within recent years. Should they decide that rather than single and multifamily residences and professional and business offices, as are presently permitted, Main Street should provide Lodges so guests may use the bus routes, suddenly the 10% limit would be lifted. 4. Since the Smuggler Lodge predates the zoning and technical building codes, where many of the structures in the zone do not, and since many structures have not been zoned to non- conformity, it seems that to be zoned to non-conformity and then limited as to the amount of dollars you may spend to remodel is a discriminatory act by government directed at few owners in the district. C. We feel that the granting of a variance is essential to the enjoy- ment of a property right, denied the applicant, but enjoyed by others in the district, as follows: 1. Uses and structures which have not been zoned into non- conformity obviously have a property right which is denied the applicant in that they may remodel at any expense and during any time period they desire. 2. Uses and structures which are non-conforming but which were built under a contemporary technical standard of safety have a much better chance of complying with technical code within the 10% than a building which predated all building standard. Therefore, the 10% limitation favors the newer building which seems to violate the clear language in 24-12.9 D. We feel that the granting of this varlance will not adversely affect the general purpose of the comprehensive general plan as presented in the Aspen Area Genenal Plan, 1966; the Aspen Land Use Plan, 1973; The Aspen/Pitkin County Growth Management Policy Plan and Aspen Municipal Code Section 24-1.2. We submit the following: 1. The general purpose as described in the 1966 Aspen Area General Plan, the 1973 Aspen Land Use Plan and reinforced by the language of Section 24-1.2 of the Municipal Code is to promote the health, safety, and welfare of people; to promote coordinated, harmonious development in accor- dance with present and future needs of the community; and avoid the waste of physical, financial and human resources. The granting of a variance from the 10% requirement will have only a positive impact on these objectives. 2. The Aspen/Pitkin County Growth Management Policy Plan which states as its purpose "to guide land use decisions" is not pertainent to this decision since growth is not a consider- ation except possibly in that we are reducing the number of beds available and no land use is impacted by this desicion. 3. The purpose of the varlance is to allow us to do in one year that which we can legally perform within 27 months as shown on the attached overlays. However, we feel it is to our benefit and the benefit of the public to allow us to comply with existing codes and ordinances as rapidly as possible. It seems to be illogical to say that the tech- nical codes are adopted for the public safety and then to say that if the cost of compliance exceeds 10% of current replacement costs you are required to comply with these codes slowly. E. It is our feeling that there are several possible interpretations which can be given to this Section, which either indicate that it should not apply or that its application is an attempt at abatement in violations of Section 24-12.9. Possibility Number 1 - We believe that Section 24-l2.5(a) refers only to repairs and maintenance and that it is not directed to remodeling. That is to say that, it is defining a limit of what can be considered repair and maintenance. Implying that if you meet the criteria of this section you may proceed to get your building permit and the zoning code does not apply. -3- -, It is our contention that repair, maintenance and remodeling are three distinct and different concepts. If you replace a toilet valve which is broken that is repair. If you re- place a toilet valve, which is the same as the one that broke, before it breaks that is maintenance. If you take out a 1954 model old, high tanked, noisey toilet and replace it with a new, blue, low silouette, quiet,1979 model toilet that is remodeling. In our case the toilets work fine, they seem to have maintained and they don't need repair. We just want the 1954 model out and replace it with a 1979 model. process we want to bring the plumbing up to the 1979 been to take In the standard. What we wish to do to the toilets is analogous to what we want to do to the rest of the building. Our building is non-conforming under the Zoning portion of the code. What we are attempting to do conforms to Sections Z4-12.l, 12.2, 12.3 and 12.4. Sectlons l7..5(b), 12.6, 12.7 and 12.8 are not applicable to our project. Therefore, we believe that l2.5(a) under this possible inter- pretation should not apply to our project. Possibility Number 1 - It is possible that l2.5(a) is intended to limit the number of dollars that may be put into a remodeling toward the end of forcing non-conforming structures to decay so that l2.5(b) would be activated and the building could be declared unsafe. Thereby, forcing the non-conforming use to be abated. This possible inter~retation is in direct conflict with the rather clear language of Section 24-12.9 which says, "Nothing herein shall be construed to constitute an abatement ordinance and it is the intention of this Article that non-conforming structures and uses be permitted to continue to exist unless abandoned or destroyed but not extended, enlarged, or expand- ed II We believe that this interpretation is an attempt to construe 12.5(a) as an abatement ordinance which is specifically not the intention as stated in Section 24-12.9. Possibility Number 3 - It is possible that l2.5(a) is intended to limit the amount of work which can be done on a non-conform- ing structure so that the existence of non-conforming structures is not encouraged. That is to say that, if you do work valued at less than 10% of replacement cost you are not encouraging the existence but work valued at more than 10% is encouraging existence. This interpretation seems fallacious for three reasons. First, the points made in Possibility Number 2 apply and it would -4- ~~ ~# therefore be an attempt to construe 12.5(a) as an abatement ordinance. Second, the practical difficulties of determining the current replacement cost and the subsequent 10% seem ex- treme given the possible variations in the value of work. Third, the fact that under Section 12.9 structures and uses are specifically permitted to contiue but under this inter- pretation they are not to be encouraged to do so means that this elusive 10% is the exact dividing line between two con- cepts, namely, permitted and encouraged. We believe that this interpretation fails reasonable application as well as being an attempt to construe this ordinanace as an abatement ordinance. Given the above arguments which we feel are individually com- pelling and create a preponderance of evidence which is col- lectively compelling, we respectfully ask you to grant a var- iance from Section 24-12(a) of the Aspen Municipal Code. -5- " , , ..........' CIT PEN treet - 81611 RE: Case No. Adjustment ..~ W. Stock, C1~~ At~ 79-3, Russel~~elstick TO: Board of FROM: Ronald DATE: April 3, 1979 I will be unable to attend the regular meeting of the Board of Adjustment to be held on April 5, 1979. The purpose of this memo is to advise the Board of my opinion that the above application should be denied. My opinion is more fully described in the attached letter. CIT PEN MEMORANDUM TO: Board of Adjustment FROM: Tom Dunlop ~ Environmental Health Officer DATE: April 18, 1979 RE: Smuggler Lodge Variance Request It has been brought to the attention of this office that the above-referenced lodge is currently in a remodel process. A portion of the remodel involves moving the office/check-in room to an east side, Main Street, first floor location. One reason for this relocation is to offer a routine observation of the swimming pool area by desk personnel. It is the opinion of this office that the variance for such a move would be consistent with a common sense approach to good public health and safety. If for no other reason the routine observation of the pool area by Smuggler employess will afford constant monitoring of the pool, a situation which currently does not exist. TSD:mc '.,~ LAW OrrlCES OATES. AUSTIN, MCGRATH a JORDAN 600 EAST HOPKINS AVENUE LEONARD M. OATES RONALD D. AUSTIN ASPEN, COLORADO ale II J. NICHOLAS McGRATH, JR. WILLIAM R. ..JORDAN m April 17, 1979 AREA CODE 303 TELEPHONE 925-2600 ROBERT W, HUGH ES RICHARD A. KNEZEVICH Board of Adjustment City of Aspen 130 South Galena Street Aspen, Colorado 81611 Re: Application for Variance - Smuggler Lodge Ladies and Gentlemen: We represent the owners of the Smuggler Lodge which, as you know, is a con-conforming use situate on Main Street. In an effort to bring the lodge up to relevant health and safety codes the owners have proposed extensive repairs to the building in excess of the ten percent (10%) of current replacement cost limi- tation set forth in Section 24-12.5(a) of the Aspen Municipal Code. The owners have sought to vary this limitation in order to complete the repairs and work they have proposed at one time rather than over an extended period that would be required under a literal reading of this limitation. Full consideration and a formal vote on the application have twice been postponed because of a lack of a quorum at the Board's March , 1979 meeting and because the full voting member- ship of the Board was not present at the April 10, 1979 meeting. At the latter meeting, however, the application was extensively discussed, including by both the City Attorney and Karen Smith of the Planning Office. Given that the full Board has yet to be given an opportunity to hear the matter, we believe it appropriate and hopefully conducive to saving time at your April 19 meeting, to which the matter has now been referred, briefly to respond to the concerns expressed by some of you at the earlier meeting. There were essentially two: (a) the practical difficulties and unique hardships otherwise confronting the owners; and (b) concern with the scope of their proposal - e.g., repair or remodel. A. Practical Difficulties - Unique Hardships. As some of you will recall from the April 10 meeting, Karen Smith frankly acknowledged that, based upon her review of the relevant planning concerns, the inclusion of existing Main Street lodges, such as /,""" , OATES, AUSTIN, MCGRATH So JORDAN Board of Adjustment City of Aspen April 17, 1979 Page Two the Smuggler, within the sweeping terms of the Code's non- conforming use provisions was simply unintended when Main Street was rezoned to the O-office designation. Rather, the intent at the time of rezoning was to preserve the then mix of lodge, residential, office and shop uses and merely preclude new build- ings whose uses would be inconsistent with the office zone. Indeed, we have been given to understand that, with this in mind, the Planning Office intends to correct this apparent oversight by proposing to the City council new legislation that would render existing Main Street lodges permitted uses under appropriate review criteria in much the same fashion that the County has provided in its Land Use Code for the pomegranate and Holiday Inns on Highway 82. The practical difficulties that now confront the owners of the Smuggler, in these circumstances, are obvious. They are, it plainly appears, now caught in a gap between the over- inclusive non-conforming use provisions and likely corrective legislation that, given the legislative process, could not be adopted in time for them to complete the work for the next ski season. In these circumstances, the owners would simply have to abandon their plans, which is a consequence that all agreed at the earlier meeting would be unfortunate. Moreover, because what the owners have proposed could, in any event, theoretically be completed over a period of twenty-five calendar months, within the technical ten percent cost limitation set forth in Section 24-12.5, a situation totally incongruous to encouraging compliance with all relevant codes, given the public health, safety and welfare objectives of these codes, would result. The owners believe that it is to precisely these kinds of practical difficulties to which your variance authority specifically is directed. And, the plain reading of Section 2-21 of the Municipal Code bears this out. This situation, although in a broad sense common to all Main Street lodges, is in fact particularly unique to the Smuggler Lodge. For example, the fact that the Smuggler is one of the older Main Street lodges and was built before the codifi- cation of building, plumbing and other public health, safety and ""..., , OATES, AUSTIN, MCGRATH S. ,JORDAN Board of Adjustment City of Aspen April 17, 1979 Page Three welfare concerns clearly separates it from newer lodges, which had, at least, the opportunity of being code complying. Further- more, other Main Street property owners whose buildings are not non-conforming uses are, of course, without limitation free to upgrade their buildings to code requirements. Insofar as your variance power is concerned the zoning distinction between conforming and non-conforming uses is without legal difference. ? As you know, the variance is addressed to deprivations of property rights among and between all owners of property within the same vicinity and zone, regardless of the use to which their buildings may be put. See Section 2-22(d) (3), Aspen Municipal Code. And, we submit, what possibly could be thought more to inhere in property ownership than the unfettered right to bring one's building to optimum code requirements and specifications? The recent lawsuit against the owners of a local trailer park, which proceeds solely from allegations relating injury to code violations, unfortunately surely suggests the importance of this to any prudent property owner. B. Scope of proposal. At the April 10 meeting some of you, including the City Attorney, expressed concern with the scope of the work to be done on the Smuggler - i.e., whether repair as such or remodel was to be done. So-called" ordinary repairs" , of course, are not all that the owner of a non-conforming use might be permitted to do under Section 24-12.5(a) of the code. For example, replacement of non-bearing walls, fixtures, wiring and plumbing also are expressly permitted wi thin the ten percent limi- tation. As has been indicated by Russ Pielstick, the architecht for the owners, it is in relation to the most efficient, economical, and code related manner of accomplishing these that the smuggler proposal principally is directed. We have recently discussed the scope of this proposal with the City Attorney, who now agrees with the Smuggler owners that, indeed, the zoning code does seek to draw a line between building and other code related work such as is proposed for the Smuggler, and classic remodeling where fanciful restructuring to enhance profitability is the principal object, not public health, safety and welfare concerns. This is precisely the line the Smuggler owners have sought to abide in their proposal. I ~., """ ........ ~.... - OATES, AUSTIN, MCGRATH a .JORDAN Board of Adjustment City of Aspen April 17, 1979 Page Four We hope this brief review of the matter will be of some assistance to you at your April 19 meeting and naturally we will be happy to answer any questions that you might have. Thank you for your consideration. OATES, l Hughes By RWH/jms cc: Ronald W. Stock Karen Smith ., " . ,. . ~. .. .....j... ,',;l''?, -...I . CITY(~~F~!:A:SPEN '130 sJ~{jf~~~~~street .' ....,...U'... ..,....o.>'~. --:> asp e n':;'s61'oia:d~W 81611 ~ "'~;\.:~ . -~- "'"" -- ,......., March 28, 1979 J. ~icholas McGrath, Jr., Rsq. Oates, Austin, McGrath & Jordan 600 East Hopkins Aspen, Colorado 81611 . Re: Smuggler Lodge ~ Dear Nick: ! have reviewed your letter of February 14, 1979, wherein you requested an opinion that the smuggler Lodge may be remodeled despite the provisions of Section 24-12.5. I am of the opinion that Section 24-12.5 does not control this .situation. This section allows for the repair of. a.. non-conforming structure or portion of a structure containing anon-conforming use. iIistorlcally, repair has been defined as an act to mend, remedy or restore to a sound or good state after decay, injury, dilapidation or partial destruction. The word repair contemplates an existing structure which. has become imperfect, and means to sup~ly in the original existing structure that which is lost or destroyed, and thereby to restore it to the condition in which it originally 'existed, as near as may be. Your proposed remodel is clearly not a repair. Therefore, Section 24-12.5 cannot grant to you the right to make these alterations. Section 24-12.4(a) .of the Code is directly in point. It states, as follows: .. ': .. .'- \ "No existing structure devoted to a use not permitted by this code in the district in which it is located shall be'enlarged, extended, constructe.d, reconstructed, moved or structurally altered except in. changing the use of the structure to a use permi tted in the district in which it is located." . . , ____~...,-----I .. c ... " . J. ~icholas McGrath, Jr., Esq. Harch 28, 1979 Page 2 Since your proposal to remodel would not ~se of the structure to a use permitted proposal is specifically prohibited. .. Yours very truly, ....~SQ~~ "Ron~d w. Stock City Attorney RWS:r.lC ee: Karen Smith Clayton Meyring ..... ~. ,.-. .. ,"", ",/ . alter or change the in the district, your '. .