HomeMy WebLinkAboutlanduse case.boa.926-934 East Cooper.016-76
NOTICE OF PUBLIC HEARING
Case No. 76-16
BEFORE THE CITY OF ASPEN BOARD OF ADJUSTl1ENT
TO ALL PROPERTY OWNERS 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 bearing 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 filed with the said Board of Adjustment requesting
authority for variance f~om the provisions of the Zoning Ordinance, Chapter
24, Official Code of Aspen. All persons affected by the proposed vqriance
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.
you: views by letter, particularly if you have objection to such variance,
as the Board of Adjustment .vill give serious consideration to the opinions
of surrounding property owners 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 follol-Is:
Date an~ Time of Meetin&:
Date: September 29, 1976
Time: 4:00 P.M.
Name and address of Applicant for Variance:
Name: Mr. and Mrs. Charles Curtis Slavens
Address: 934 E. Cooper
Loc atSg.':1.. or..d.,:script i~_of _J?yopertE
Location: 926-934 E. Cooper Street, Aspen, Colorado
Description: Block 35, Lots Q,R,and S, East Aspen Townsite
Varianc~_~~quested:
Application is made for a variance to subdivide a.three lot 9000 sf parcel into
a one lot 3000 sf parcel and a two lot 6000 sf parcel. The single 3000 foot lot
would become non-conforming since a mmimum lot area of 6000 square foot and a
minimum width of 60 feet is required. Sec. 24-3.4--Area and Bulk R/MF Zone.
Duration of Variance: (Please crOSB out one)
:C"lllpurar~
?C-l:tuanent
THE CITY OF ASPEN BOARD OF ADJUSTNEN1'
BY lL~ }~c!<X;.~-~ (V~_
ChEUr"1a~- ~.~
Section ~4-12.7 Lot reduction; states in part, "No lot or parcel of land,
nor any lnterest therein, shall be transferred, conveyed, sold, subdivided or
acquired either in whole or in part, so as to create a new non-conforming use
to avoid circumvent or subvent any provision of this chapter, or so as to
leave remaining lot or width or area below the requirements for a legal build-
ing site as described in this code."
,
APPEAL TO BOARD or ZONING ADJUSTflErlT
CITY OF ASPEN
,DATE Auqust 30, 1976
CAS E.. tip, ',,'
27699/1 ****10.00
APPELLANT Mr; & Mrs. Charles Curtis ADDRESS 934 E. Cooper Street
Slavens
PHONE 925-3550
OHNER
Mr. & Mrs. Charles Curtis ADDRESS 934 E. Cooper Street
SlaVens
, .
'.
Aspen, Colorado
LOCATION Of PROPERTY 926 - 934 E. Cooper Street, Aspen
Lots Q, Rand S, Block 35, East Aspen Townsite
(Street & Number of Subdivision Blk. & lot No.)
Building Permit Application and prints or any other pertinent
data must accompany this application, and will be made part of
CASE NO.
THE BOARD HILL R~TURN THIS APPLICATION IF IT DOES NOT CONTAIN
, ALl THE FACTS IN QUESTION.
DESCRI PTION OF PROPOSED EXCEPTION SHO\nNG JUSTIFI CATIOnS:
Mr. and Mrs. Slavens own 3 lots at the corner of E. Cooper and S.
Cleveland. Their house is on Lot S; Lots Q and R are vacant. They
have lived in the house on Lot S since their marriage, 41 years ago.
In 1936 they 'bought Lots Q and R and tore down the old house tbat then
stood on those lots. For the last 40 years, Lots Q and R have been a
well tended side yard.
Mr. Slavens is 69 and retired; Mrs. Slavens is 64. They want to
continue living in their family home but economic pressures are forcing
them to sell some or all of their real estat~. They 'want to sell Lots
Q and R so that they can retain their home on Lot S. Subdivision
approval is required, S20-4, Aspen Code, but cannot be obtained with-
, out a variance because the remaining Lot S will then. be a nonconforming
(continued on Page 21
by counsel ? Yes X No
SIGN~D:~:O
. Appell ant
Will you be. represented
James T. Moran
Holland & Hart
434 E. Cooper St.
Phone: 925-3476
s~ ~a .~
--
PROVISIONS OF THE ZONING ORDINANCE REQUIRING THE BUILDING INSPECTOR
TO FORWARD THIS APPLICATION TO THE BOARO OF ADJUSTMENT AND REASON
" FOR NOT GRANT! NG: ,
APPLICATION IS MADE FOR A VARIANCE TO SUBDIVIDE A,THREE LOT 9000 SQUARE FOOT
PARCEL INTO A ONE LOT 3000 SQUARE FOOT PARCEL AND A TWO LOT 60.00 SQUARE'FOOT
PARCEL. The .single 3000. foot lot wou1d beco,me noi)-corrforming since a minimum
lot area of 600.0 square foot, and an minimum width of~60 f~et is required.
.Sec. 24-3.4 Area. & Bulk 'Requirements R/MF Zone. .
Sec.. 24-12.7 Lot reduction; stat;esiz{ part,"No lot or parcel of, land', nor any
interest therein, shall be transferred, conveyed, sold, subdivided or acquired
. either in whole or in part, so as to create a new non-conforming use, to avoid
circumvent or subvent any provision of this chapter, or so as to leave re-
maining any. lot or width or area below the requirements for a legal building
si te'.as describC:9. in th.:i,.s c.od.e.~' ,
". ~~"t
Clayt . Rl9M*ing . .
DECISION DATE
DATE IF HEAR,ING o/f)..J/~J;L--Io lOll
SECRET^RY~ tv~
Chief Building In~pector
Status
PERMIT REJECTED, DATE
APP~ICA1,!r FILED ~
~lAI CED--1t 0
~.~. rr q6,
Page Two
lot, 5520-9(c), 24-2.7, Aspen Code. Without a variance Mr. and Mrs.
Slavens, sooner or later, will have to sell their family home with
all 3 lots and move elsewhere.
When the Aspen Zoning Code forces the displacement and relocation
of long time permanent residents, it imposes a hardship. In this case
the hardship is totally unjustified because the City does not thereby
achieve any density reduction. The property is zoned R-MF. The
Slavens' house contains 2 bedrooms and 1 bath. If the variance is
granted and if 524-12.3 (Nonconforming structures) is applicable, the
existing house cannot be enlarged or expanded. In any event, Lot S,
if subdivided from Lots Q and R, cannot be used except for a single-
family dwelling, 524-12.6, Aspen Code.
The following table indicates that granting the requested variance
will not increase the allowed density for the 3 lots considered as a
single developable parcel. For some configurations granting the
variance will actually decrease the density by 1 bedroom.
Lots Q,R and S,Unsubdivided,9000 sq. ft. Variance Granted-Subdivision Approval
Total
Bedrooms
Unlimited
2
8
7
7
Lots Q&R + Lot S =
Dwelling Units Bedrooms Dwelling Units ISF-2Br
SF Unlimi ted SF SF
1 Dup Unlimited No Dup SF
9 St 9 6 St SF
7-1Br 7 4-1Br, 1 St SF
4-2Br 8 2-2Br, I-lBr SF
2-2Br, IBr,
3 St 8 2-2Br, 1 St SF
2-3Br, I-lBr 7 l-3Br, 1-2Br SF
2-3Br, 1 St 7 1-3Br, 2 St SF
7
7
7
Right now the Slavens have only two choices: sellout and move, or
continue to maintain and pay taxes on a 6000 square foot side yard. They
are the victims of a zoning accident which hurts them but does not bene-
fit the City.
CITY
130 so
aspen,
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81611
September 21, 1976
The public hearing previously set for September 29, 1976
for Case No. 76-16, Mr. and Mrs. Charles Curtis Slavens,
has been rescheduled for October 14, 1976, at 4:00 PM in the
Aspen City Council Chambers.
Sincerely,
IX . luJ:ir--
Ha~son
Secretary to the Board of Adjustments
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MEMORANDUM
TO:
Aspen City Council
FROM:
Planning Staff (HC)
RE:
Subdivision Exemption - Slaven Parcel
DATE:
December 22, 1976
This is a request for Subdivision Exemption by Charles and Anne Slavens,
who are represented by attorney Jim Moran, to divide lots Q, R, and S
of Block 35, East Aspen Townsite into two parcels. Their single family
residence is located on Lot S; Lots Q and R are vacant. They wish to
sell lots Q and R, and retain Lot S as their residence. All the property
in question is zoned R/MF.
On November 4, 1976 the City of Aspen Board of Adjustment approved a
variance to create a non-conforming lot by dividing Lots Q and R from
Lot S. A copy of this variance motion is attached for your review.
The Aspen Planning and Zoning Commission on December 14, 1976 recommended
granting the subdivision exemption.
The comments of the Planning Office are as follows:
1. We are concerned about the precedent of approving the
creation of a non-conforming lot of record. Such a
practice is inconsistent with the City Zoning Code and
may prove to be an awkward precedent to establish. However,
the merits ot this application seem to weigh in favor of
granting the exemption.
2.
The small lot parcel, Lot
a single family dwelling.
separately by the Slavens
S, is presently developed by
Lots Q and R were acquired
in 1936, and are undeveloped.
3. All lots are zoned R/MF and appear suitable for develop-
ment at R/MF densities. This development could be accomp-
lished by removing the existing single-family home, and
building out at R/MF density. The applicant could also
condominiumize the existing home as part of a development
on the adjacent Lots Q and R. Either alternative would
produce development with equal or greater land use impacts
as the proposed exemption. The allowance of this Subdivision
Exemption would foster a reduction in the R/MF density
since Lot S would be counted only for the single family
unit leaving 6,000 square feet for R/MF calculations.
4. The City Zoning eode restricts non-conforming residential
lots for use by a single family dwelling only.
5. We agree that the practical effect of denying the Subdivision
Exemption would be to eventually force sale of the whole
parcel; the removal of the single family house; and, the
loss to Aspen of another long term resident.
The Planning Office recommends approval of the subdivision exemption for
the parceling of Lot "s" from Lots Q and R.
'.
RECORD OF PROCEEDINGS
100 Leaves
....... e. ,. MOtCltU I. 1.8 l. eo.
Continued Meeting
Board of Adjustments
November 4, 1976
Case No. 76-16, Charles Curtis Slavens (cont.)
'.
'''4
,
Boardmember Smith moved to grant the requested variance
in accordance with the following findings:
,
"
1. The applicants have established that strict en-
forcement of Section 24-12.7 creates practical difficul-
ties and unnecessary hardships with respect to their
use and enjoyment of Lots Q, R, and S, Block 35, East Aspc~
Townsite;
2. Granting the requested variance will do substan-
tial justice without violating the spirit of the zoning
ordinance or adversely affecting the comprehenisve general
plan;
3. Special conditions and circumstances apply to
the subject property which do not apply similarly to
other properties in the same vicinity and zone; these
special conditions and circumstances do not result from the
actions of the applicants, and
~
./
THEREFORE IT IS RESOLVED that the applicants be and
they are hereby resolved granted a variance from the strict
application of Section 24-12.7 of the zoning code and, by
said variance, are authorized to subdivide and transfer
Lots Q and R, Block 35 as one parcel, and to retain Lot S,
Block 35 as a separate parcel.
John Dukes seconded. Roll call vote: Boardmembers Cole-
stock, Smith, Dukes, Paterson, aye; Boardmember Lavagnino,
nay. Motion approved.
Dukes moved to adjourn, seconded by Lavagnino. All in
favor, motion carried. Meeting adjourned at 4:58 PM.
"
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HOLLAxn & BAHT
ATTonNEYS AT LAW
TELf:PHONE 292-9200
500 EOUITll,OLE: OVIL':"JH"G
CABLE ADDRE5S
AREA CODE 30.3
730 SE"'=:NTCf-~r,;TH S,I~'Lt:r
OENVER,COLOR~DO 80202
HOLHART, DENVER
Fl.EA5f- R~. ~'LY TO: MOUN'AIN PLAZA BUILDI~;G
P. O. 60X "23, r,'3?E:",COLOFiAOO 81611
TELEPf-'()N~~ 92S"347G A..EA CODE 303
November 24, 1976
Hr. Hal Clark
Land Use Administrator
130 S. Galena Street
Aspen, Colorado 81611
Re: Slavens Subuivision Exemption
Dear Hal:
As you know Mr. and Mrs. Slavens received a variance
from the Board of Adjustment on November 4, 1976 authorizing
them to subdivide Lots Q and R from Lot S in Block 35, East
Aspen Townsite. They have neogtiated a sales contract on
Lots Q and R and we now wish to apply for subdivision
exemption. The application has been drafted and a copy
is enclosed for your information. We are waiting on a
certified copy of the variance resolution which we propose
to attach to the enclosed application. Margie Wilson in
the City Clerk's office has indicated that we should be
able to have this by Friday, December 3.
From a tax standpoint it is quite important to Mr.
and Mrs. Slavens to close the sale and receive the down
payment before December 31, 1976, so that the tax burden
can be spread over two years. For this reason I respect-
fully request you to place us on the P&Z agenda for December
7. I believe this exemption should receive a favorable
recommendation as a matter of course which should allow
us to go to the City Council on December 20. I realize
that our proposed schedule is tight but we were at the
Board of Adjustment from August 30, when the application
was filed, until November 4, when the variance was granted.
In the past I have not made a practice of asking you
for expedited scheduling nor do I intend to do so in the
future. On this particular case, however, I would appreciate
your help. I'm sending copies of this letter to Margie
,,- ....
"
.
HOLL\'o:ll c\c HART
-,-""
Mr.Hal Clark
Novenilier 24, 1976
Page Two
Wilson and Kathy Hauter so that they can tentatively reserve
some time for me at the December 20 City Council Meeting.
The appliation fee and the formal application will be
submitted as soon as I get the certified copy of the
variance. I understand that the only standard referral
on town lot exemptions is to the City Engineer. Please let
me know if I should contact Dave Ellis at this time.
Yours very truly,
Moran
JTM:mm
cc~ Ms. Kathy Hauter
Ms. Margie Wilson
Mr. Dick Fitzgerald
Mr. and Mrs. Slavens
r-,
,
.
, ,
PLANNING AND ZONING COMMISSION
CITY OF ASPEN
STATE OF COLOliliDO
APPLICATION OF
CHARLES C. and ANNE SLAVENS
FOR SUBDIVISION EXEMPTION
Charles C. and Anne Slavens, Applicants, hereby
apply, pursuant to Sec. 20-19 of the Municipal Code
of the City of Aspen, for an exemption from the
definition of subdivision with respect to Lots Q and
R, Block 35, East Aspen Townsite. In support of said
application, the Applicants state the following:
1. Applicants own three town lots at the corner
of E. Cooper and S. Cleveland Streets, namely Lots Q,
Rand S, Block 35, East Aspen Townsite. Their single
family residence is located on Lot S; Lots Q and R
are vacant.
2. Under Sec. 20-4(cj all three lots are considered
an undivided parcel and the proposed conveyance of Lots
Q and R would constitute a subdivision. It is for this
reason and purpose that an exemption is sought.
3. The necessary variance required under Sec. 24-12.7
was granted by the Aspen Board of Adjustment on November
4, 1976. A certified copy of the Board's Resolution is
attached hereto.
4. Pursuant to Sec. 7-l43(gl as enacted by Ordinance
No. 63, Series of 1976, Applicants request that any park
dedication fees which may be due by reason of Chapter 20
be postponed to the time of building permit issuance.
The subdivided lots are in Zone District R-MF and must
be used for residential purposes but the number of bed-
rooms to be constructed is not known at this time.
5. The division of land requested herein is not
..
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within the inten, :nd purpose of the Aspen, Colorado,
Subdivision Regu' ,"ions.
WHEREFORE, Applicants request that an exemption
be granted to them.
APPLICANTS:
Mr. & Mrs. Charles C.
934 E. Cooper Street
P.O. Box 215
Aspen, Colorado 81611
925-3550
HOLLAND & HART
Slavens
J es T. Horan
434 E. Cooper Street
Aspen, Colorado 81611
925-3476
ATTORNEYS FOR APPLICANTS
-2-
.- .- -^". ~ ~
MEMORANDUM
(2/1'1 fov"'C'J I
TO: Aspen Pl...ul.ulu5 evw.u.ias4 ^U
FROM:
RE:
DATE:
Planning Staff (HC)
Subdivision Exemption - Slaven Parcel
December~, 1976
ll.
This is a request for Subdivision Exemption by Charles and Anne Slavens,
who are represented by attorney Jim Moran, to divide lots Q, R, and S
of Block 35, East Aspen Townsite into two parcels. Their single family
residence is located on Lot S; Lots Q and R are vacant, They wish to
sell lots Q and R, and retain Lot S as their residence, All the property
in question is zoned R/MF.
On November 4, 1976 the City of Aspen Board of Adjustment approved a
variance to create a non-conforming lot by dividing lots Q and R from
MtGV Lot S. A copy of this variance~is attached for your review.
p....... &- ,"0110/0-'
The comments of the Planning Office are as follows:
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1.
We are concerned about the precedent of g~tab14?h4ng a
non-conforming lot of record. Such a practice is
inconsistent with the City Zoning Code and may prove
to be an awkward precedent to establish. However, the
merits of this application seem to weigh in favor of
granting the exemption.
2. The small lot parcel, Lot S, is presently developed by
a single family dwelling"wl.iea is grB8eEUi 8R +-h.a 1 "r
Lots Q and R were acquired separately by the Slavens
in 1936J hv,j 4J.e uIWJ~velol't!d'
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3.
All lots are zoned R/MF and appear suitable for de-
velopment at R/MF deJities. This development could be
accomplished by removing the existing home, and building
out at R/MF density. The applicant could also condo-
miniumize the existing home as part of a development on
the adjacent lots Q and R~ The allowance of this Sub-
divlslon ~xemption wOULd foster a reduction in the R/MF
density since Lot S would be counted only for the single
family unit leaving 6,000 square feet for R/MF calculations.
1}/4 "fit low/IV" €o De /.!cp.) -( 0" fdn",,~l, R'~/J)-t"'nql uTS
but 8 .:.1.8")1 rI h- J__d restrict(tlft for use lIS a single family
dwelling only. S b~
4.
5. We agree that the practical effect of denying the Subdivision
Exemption would be to eventually force sale of the whole
parcel; the removal of the single family house; and, the
loss to Aspen of another long term resident.
IR -~,l[he Planning Office recommends approval of the Subdivision
Exemption~~Ra":"L";"vL1t:d UPUl1 c1 d~o;:;:d .L1:::>LJ,...;.......L..:...vu b........:..1.0 yl.:tcs-ei QR lat S-
rPql1i ring .....-:- 8:7 ~ g':Rgl~ [.)mil] eiuBlliRg alll,.. N'(' 7JI.t-- ,/J-tt~~ /,:v,
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PLANNING AND 20NING COHHISSION
CI'l'Y OF l\SPEli
STATE: OF COLORADO
APPLICATION OF
CHARLES C. and ~~NE SlAVENS
FOR SUBDIVISION EXEHPTION
Charles C. and Anne Slavens, Applicants, hereby
apply, pursuant to Sec. 20-19 of the Municipal Code
of the City of Aspen, for an exemption from the
definition of subdivision with respect to Lots Q and
R, Block 35, East Aspen Townsite. In support of said
application, the Applicants state the following:
~
1. Applicants own three town lots at the corner
of E. Cooper and S. Cleveland Streets, namely Lots Q,
Rand S, Block 35, East Aspen Townsite. Their single
family residence is located on Lot S; Lots Q and R
are vacant.
2. Under Sec. 20-4(c) all three lots are considered
an undivided parcel and the proposed conveyance of Lots
Q and R would constitute a subdivision. It is for this
reason and purpose that an exemption is sought.
3. The necessary variance required under Sec. 24-12.7
was granted by the Aspen Board of Adjustment on November
4, 1976. A certified copy of the Board's Resolution is
attached hereto.
4. Pursuant to Sec. 7-143(g) as enacted by Ordinance
No. 63, Series of 1976, Applicants request that any park
dedication fees which may be due by reason of Chapter 20
be postponed to the time of building permit issuance.
The subdivided lots are in Zone District R-MF and must
be used for residential purposes but the number of bed-
rooms to be constructed is not known at this time.
5. The division of land requested herein is not
.
f""
'-
within the intent and purpose of the Aspen, Colorado,
Subdivision Regulations.
WHEREFORE, Applicants request that an exemption
be granted to them.
APPLICANTS:
Mr. & Mrs. Charles C.
934 E. Cooper Street
P.O. Box 215
Aspen, Colorado 81611
925-3550
HOLLAND & HART
Slavens
J es T. Horan
434 E. Cooper Street
Aspen, Colorado 81611
925-3476
ATTORNEYS FOR APPLICANTS
-2-
,...-....1....-.......
HOLLAND & HART
ATTORNEYS AT LAW
TELEPHONE 292-9200
AREA COOE 303
500 EQUITABLE BUILDING
730 SEVENTEENTH STREET
DENVER,COLORADO B0202
CABLE ADDRESS
HOLHART, DENVER
PLEASE REPLY TO:
MOUNTAIN PLAZA 8UILDING
P. O. BOX 1128, ASPEN,COLORADO 81611
TELEPHONE 925-3476 AREA CODE 303
November 24, 1976
Mr. Hal Clark
Land Use Administrator
130 S. Galena Street
Aspen, Colorado 81611
Re: Slavens Subdivision Exemption
Dear Hal:
As you know Mr. and Mrs. Slavens received a varian7e.
from the Board of Adjustment on November 4, 1976 authorlzlng
them to subdivide Lots Q and R from Lot S in Block 35, East
Aspen Townsite. They have neogtiated a sales contract on
Lots Q and R and we now wish to apply for subdivision
exemption. The application has been drafted and a copy
is enclosed for your information. We are waiting on a
certified copy of the variance resolution which we propose
to attach to the enclosed application. Margie Wilson in
the City Clerk's office has indicated that we should be
able to have this by Friday, December 3.
From a tax standpoint it is quite important to Mr.
and Mrs. Slavens to close the sale and receive the down
payment before December 31, 1976, so that the tax burden
can be spread over two years. For this reason I respect-
fully request you to place us on the p&Z agenda for December
7. I believe this exemption should receive a favorable
recommendation as a matter of course which should allow
us to go to the City Council on December 20. I realize
that our proposed schedule is tight but we were at the
Board of Adjustment from August 30, when the application
was filed, until November 4, when the variance was granted.
In the past I have not made a practice of asking you
for expedited scheduling nor do I intend to do so in the
future. On this particular case, however, I would appreciate
your help. I'm Sending copies of this letter to Margie
_ ,~,~,_,_,,_,__,____;_,C"_'"""'_
HOLLAND &HART
Mr.Hal Clark
November 24, 1976
Page Two
Wilson and Kathy Hauter so that they can tentatively reserve
some time for me at the December 20 City Council Meeting.
The appliation fee and the formal application will be
submitted as soon as I get the certified copy of the
variance. I understand that the only standard referral
on town lot exemptions is to the City Engineer. Please let
me know if I should contact Dave Ellis at this time.
Yours very truly,
JTM:mm
cc: Ms. Kathy Hauter
Ms. Margie Wilson
Mr. Dick Fitzgerald
Mr. and Mrs. Slavens
----I
"I-'A ,1'
,.,It,/,~_
.
RECORD OF PROCEEDINGS
100 Leaves
,0000'lI C,'.W01CUll....L.ta.
--.
RESOLUTION OF THE ASPEN PLANNING AND
ZONING COMMISSION RECOMMENDING A PROPOSED
AMENDMENT TO THE ASPEN MUNICIPAL CODE
WHEREAS, the Commission has considered a proposed amend-
ment to the Aspen Municipal Code such as to restrict short term
rentals of multi-family units within certain zone districts in
the City, and
i
WHEREAS, the Commission, after appropriate notice, has
conducted a public hearing on the proposed change, is ready to make
its recommendations with respect thereto, and wishes to enjoy the
interim benefits of Section 24-11.7 of the municipal code and must,
to do so, incorporate its recommendations for approval to the City
Council in resolution form,
NOW, THEREFORE, BE IT RESOLVED BY THE ASPEN PLANNING
AND ZONING COMMISSION:
1. That it does hereby find and determine that the
intents and purposes of the R/MF, 0, and C~l districts to provide
/
/'
_residential housing is being undermined by the condominiumization
of, and short term rental of, multi-family units within these
districts; and that the purposes of these zone districts can be
accomplished only by restricting the short term rental of units
within these zone districts.
2. That, consequently, the Commission does recommend to
.
,
.\
the Aspen City Council the adoption of an amendment to the supple-
mentary regulations of the Aspen Municipal Code which would provide
that, from and after the effective date of such amendment:
a. No multi-family unit within the R/MF, 0
and C-l district shall be leased for any period
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of less than six (6) successive months; or, in the
alternative, be leased not more than twice for
short-term periods within any calendar year (in
addition to occupancy by the owners or any
,
)
.
RECORD OF PROCEEDINGS
100 Leaves
rOlIllI" (:.'.MOECllfl.l....I..CO'
lessee for a six-month lease term).
b. The provisions of this amendment shall apply
only to units constructed after the effective date
of such an amendment, or the condominiumization of
existing units after that date.
c. The provisions hereof shall not apply to
single family or duplex structures within these dis-
tricts; nor apply to multi-family units in existence
at its effective date (unless condominiumization
of these units is proposed).
d. In the ~vent that any existing multi-family
unit within the above-described zone districts
shall be purchased by several owners on a time
sharing basis, such arranged time sharing for
./
multiple use (as required by Sec. 20-3(s)) shall be
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deemed to constitute a subdivision and (for purposes
of this amendment) condominiumization of the unit
making the above-described leasing limitations
applicable.
Dated
,,,z/Le.
1: It?) 1,('
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Chairman
I, ~~ V ';z;;lSdr---: Deputy City
Clerk and secretary to the Aspen Planning and zoning commission
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do hereby certify that the foregoing is a true and accurate
copy of that resolution adopted by the Aspen planning and zoning
Commission at its reqular.meeting held December 7,1976.
D~~V~
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RESOLUTION OF THE ASPEN BOARD OF ADJUSTMENT ACTING
UPON THE APPLICATION OF MR. & MRS. CHARLES CURTIS SLAVENS
Cas.e Number 76-16
This matter having.come before the Board of Adjustment
at its meeting held October 14f 1976f continued to October 21,
19.76, and then to October 28, 19.76, for further deliberation;
and the Board having considered the evidence submitted and argu-
ments made in support of the application for variance, does make
the following findings, conclusions, and determination with respect
thereto:
FINDINGS
1. The applicants, husband and wife, approximately
41 years ago, purchased and have since resided in the single
family home situate on Lot S, Block 35, East Aspen Addition.
In 1936 they purchased the two adjoining lots, Q and R, then
improved, but subsequent to purchase the structures on these lots
were destroyed. Consequently Lots Q and R have been used as a
side yard to complement the residential use of Lot S since the
time of acquisition.
2. Applicants wish now to parcel their entire ownership
into two tracts (1) one 6,000 square foot lot (the unimproved
lots), and (2) a second 3,000 square foot lot (Lot S) which they
propose to continue using as their homesite.
3. All three lots lie within the Residential Multi-
family Zone District which imposes a minimum lot size of 6,000
square feet (see Sec. 24-3.4 of the Aspen Municipal Code).
4. Other provisions of the zoning code are relevant,
specifically Sections 24-12.7 and 24-l2.6(d) which (respectively)
provide as follows:
No lot or parcel of land, nor any interest
therein, shC\ll be transferred, conveyed, sold,
subdivided or acquired either in whole or in part,
so as to create a new nonconforming use, to avoid,
circumvent or subvert any provision of this chapter
or so as to leave remaining any lot or width or
area below the rf~quirements for a legal building
site as described in this code; nor shall any
lot or portion of a lot required for a legal
building site under the provisions of this
code be used as a portion of a lot required
a.s a site for another structure. :'10 building
permit shall be issued for any lot or parcel
of land which has been transferred,. conveyed,
sold, subdivided or acquired in violation of
this paragraph,
And:
If two (2) or more lots or cbrnbinations of lots
a.nd portions of lots with continuous frontage
in single ownership (including husband and wife
as in all cases a single owner) are of record
at the effective date of adoption or amendment
of this zoning code, regardless of diverse times
of acquisition, and if all or part of the lots
do not meet the requirements established for lot
and width area, the lands involved shall be considered
to be an undivided parcel for all the purposes of
this code, and no portion of said parcel shall be
used or occupied which does not meet the width and
area requirements established by this code.
Both sections preclude the intended parcelling by
applicants of Lots Q, ~ and S,
5. Applicants state, in support of the requested
variance that (1) a hardship exists because unless they are per-
mitted to parcel Lots Q, Rand S they cannot both maintain their
homestead and enjoy an economic return from these lots, (2) the
zoning code, "when it forces the displacement and relocation of
long time permanent residents, ~t)imposes a hardship", and (3) the
strict application of the zoning code will not result in a reduction
'in density in the area.
6. Applicants will not consent to the imposition of a
condition on the requested variance which would curtail or limit
the allowable uses or densities on Lots Q, Rand S.
CONCLUSIONS
Taking the evidence, arguments and relevant legal
authority into consideration the Board has concluded that:
1, The applicants argue that application of the code
provisions will (a) result in deminis!1ed return from their land
holdings, nnd (b) will result in the displacement of or reduced
economic return to lor.g term residents of the community. :Iowever,
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(1) the City does not (nor should it) apply its
codes to its citizens in such a way as to distinguisb
between new and old resinents, young and old
landowners, nor according to how long land has been
held.
(2). the applicants do not argue that they can enjoy
no econoroic ~eturn from their property (i.e., they
do not argue. that the R/MF zoning is inappropriate
for this site.l. but only that they cannot construct
according to the structural configuration they
propose.
(3) "diminished return" is not sufficient to con-
stitute a hardship; only when the zoning code pro-
vides no reasonable use of property does the doctrine
of hardship apply,
2. Applicants argue that the Board should not "slavishly
adhere" to the zoning code provisions. However, to compromise the
code on a case by case basiswillerrode the provisions of the code
and undermine their purpose. ~o of the chief purposes of zoning
regulations in effect today are (al to reduce allowable densities
and (b) bring structures into conformance when possible. At least
the latter objective will be undermined if the requested application
is granted.
3. Applicants argue that the application of the zoning
code to their lands will result in a "zoning accident" - something
the City Council did not consider, but if they had, would have
provided for as applicants suggest, lIowever, Ca) this is not a
zoning accident - Sec. 24-l2.G(d) specifically and directly addresses
the issue at hand, and Cbi if indeed, it is an oversight, that
can only mean that the applicants should present their quandry to
the City Council ;t'or legislative relief (i;t' the Council thinks it
appropriate).
4. Applicants argue that their proposal will result in
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development that now is permitted on the site. :~wever (a) strict
application of the code would, ~ they maintained their home, result
in no further development on the. f'iite" Cbl. speculating on what would
happen if they removed their house is only that ~ speculation,
eel. inasmuch as the applicants refuse to accept any development
restrictions on either remaining parcel, we can only anticipate
(ultimately) the maximum build out, and (d) even though the City
Council approved multi-family zoning for the area, we cannot
second guess their desires but must hold that they approved only
the densities and configurations adopted (i.e. we cannot assume
that they would prefer a single family and multi-family structure
on three lots when the code requires a 6,000 square foot minimum
lot size for each) .
5. Applicants cited three cases, none of which is dis-
positive (or even helpful) in their application:
(a) In City & County of Denver v. Redding Miller,
347 P2d 954 (Sup. Ct. 1960) the Court merely affirmed
the grant of a variance from the City's FAR and off-
street parking requirements. The Court did not review
the record or findings of the board of adjustment so
the case gives us no information on what facts the
Court based its ruling.
(b) In Marker v. City of Colorado Springs, 336 P2d 305
(Sup. Ct. 1959), the Court approved the grant of a
variance to construct a medical office in a residential
zone district where it found the property (1) had
never been improved, (2) was adjacent to a hospital, (3)
was not a suitable site for residential development,
(4) would probably remain a junkyard (a public
nuisance) if not developed commercially because it
was not an appropriate residential site, and (5) was
such that all other reasonable potential uses (other
than office uses) would be more disruptive to the
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residential neighborhood. Here, applicants make
no argument that the R/MF zoning is not appropriate
zoning for their land.
(c) In Bohn v. Board of Adjustment, 271 P2d 1051
(Sup. Ct. 1954) the Court approved the grant of
a variance to construct additional units on a motel
located in a residential zone after finding that
(1) the property bordered on an adjacent commercial
zone, (2) the property was located on the intersection
of Wolf and Colfax Avenues, and Colfax, as it extended
to the east, was improved with commercial buildings,
(3) there were a myriad of nonconforming commercial
uses in the area, (4) the proposed construction would
not depreciate surrounding lands; in sum, that what
was once designated as a residential district had
evolved into predominantly commercial and business
uses. Again, here applicants make no argument that
the R/MF zoning is not appropriate zoning for their
site.
6. Applicants further argue that (a) many of their
neighbors enjoy the benefit of having single family homes on 3,000
square foot lots, (b) the board should address itself to the "social
engineering" being argued for here, i.e., being supportive of long
term residents by enhancing the development potential of their long
held property, and (c) asking the applicants to go through some pro-
longed code procedures to resolve the matter without the benefit of
a variance itself creates a hardship because of the tedious time
delays and lack of guaranty of success in such an approach. However,
with respect to the first argument note that only this particular area
of the City is addressed and we have no idea of how this argument has
or will apply city-wide; in addition, if (as stated above) it is a
purpose of local zoning to bring land use into conformance, all
applicants' neighbors will be subject to these code requirements
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in the future. Secondly, all "social engineering" should be
reserved to that body elected to make such policy judgments,
namely, the City Council. Finally, it has never been held that
conformance with the zoning code procedures constitutes a "hard-
ship" for purposes of securing a variance.
7. Finally, applicants' request ignores some basic
principles on the law of variances, including that:
la) an applicant must establish 'unnecessary
hardship or practical difficulties to support
an application; and
(1) generally the requisite hardship is shown
only where the use of land for a permitted
purpose is so impractical as to warrant the
conclusion that the lawful use of the land
will be destroyed by a literal application of
an ordinance (this is not argued by the present
applicants).
(2) unnecessary hardship exists only if the
problem is unique to the landowners and not
shared by others in the applicable zone district
(it is arguable that many landowners in the
area (and City) have and will be required in
the future to allocate adjacent unimproved
property to support existing single family homes
under the code sections recited above).
(b) no hardship is established where the evidence
merely suggests that a requested variance will be
harmless (as is argued here).
(c) financial hardship alone usually is not sufficient
to constitute "unnecessary hardship" except where
the effect of an ordinance is so severe as to amount
to a confiscation of property (which is not argued
here).
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Cd) to constitute unnecessary hardship, the hard-
ship complained of must originate in the ordinance
and not stem from the actions of the applicant (here
it is the history of ownership and improvement con-
struction, the hope of enjoying the benefits of
an existing use plus the more profitable multi-
family use of applicants' property, which create
applicants' problem).
Cel a variance should not be relied on to achieve
substantial changes in applicable zone districts
which constitute, in effect, a rezoning of the
applicants' property.
Therefore, considering the foregoing the Board of Adjust-
ment does, on October 28, 1976, hereby deny the requested variance.
Chairman
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Case No. 76-16
, Slavens, Charles C. and Anne
Applicants request a variance authorizing them to sub-
divide two vacant City lots from the remaining single lot
on which stands their residence, a two bedroom, single
bathroom dwelling. The property is located at the corner
of E. Cooper and S. Cleveland Streets in the eastside
R-MF Zone District. Subdivision cannot be accomplished
without a variance since the remaining single lot and
residence will be nonconforming under the present zoning.
Applicants purchased the single lot and house (Lot S,
Block 35, East Aspen Townsite) some 41 years ago. The two
adjoining lots (Q and R) were purchased a year later.
Applicants have resided continuously in their house since
its purchase. Mr. Slavens is now 69 and retired; Mrs.
Slavens is 64.
The evidence establishes that the present use of the
land involved is considerably below the buildout density
permitted in the zone district. Strict enforcement of
the letter of the zoning laws will deny to the applicants
any use of their excess land unless:
1. Their dwelling is razed or moved to a new
location in order to permit a multi-family
dwelling to be erected utilizing the land area
of all three contiguous lots; or
2. Their dwelling is incorporated into and
made part of a condominium project utilizing
the land area of all three contiguous lots.
The first alternative clearly involves unnecessary
hardship which is not shared by any other land in the
vicinity. The evidence establishes that there is only
one other 3 lot parcel in the zone district which has
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similar characteristics. With respect to that parcel
the existing residence is used as rental income property,
not as the owner~s family home, and the entire parcel has
recently been placed on the market. On the other hand,
there are ten or a dozen non-conforming single lot-single
family residences in the district. The unique conditions
and circumstances applicable to the applicants' 3 lot
parcel do not result from the actions of the applicants;
their hardship is not self inflicted but results from a
strict application of the zoning laws in a manner which
does not similarly affect any other land or landowners in
the same zone district.
The second alternative, forcing the applicants to
join a condominium association, in order to realize the
highest and best use of their property under the R-MF
zone regulations, just as clearly involves practical
difficulties for them. Entering into an ownership sharing
arrangement with strangers and having, at best, a minority
interest in the entire project will create a new and complex
set of ongoing responsibilities, obligations and expenses
for these applicants. We believe the foregoing conclusions
are self-evident. Additional support for our views is
found in H.B. 1058 recently enacted by the State Legis-
lature wherein it is said:
"The general assembly further finds and
declares that it is the policy of this state
to enable and assist persons sixty years of
age or older who do not need skilled and
intermediate care facilities, and who so
elect, to live in normal residential sur-
roundings, including single-family resi-
dential units."
By enacting this policy statement, the State of
Colorado has implicitly recognized the hardships and
difficulties encountered by senior citizens in attempting
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to maintain a normal single-family residential living
pattern. Where the evidence discloses that strict
enforcement of o~r municipal zoning law would force
these applicants either to ,relocate or to assume the
disadvantages of condominiumizing their residence of
41 years, we are forced to conclude that the requisites
for relief by way of a variance, i.e. "practical diffi-
culties or unnecessary hardships" have been established.
No neighbors appeared in opposition to the granting
of the variance. One neighboring landowner submitted a
letter in support of the application; another landowner
in the general vicinity testified at the hearing in
support of the application. A representative of the
Planning Department suggested that the applicants' desire
to retain their family home could be accomplished by
including it in an overall condominium plan for the entire
three lots. He voiced a vague and unspecific concern that
granting the requested variance could create a troublesome
precedent. We regard it as significant that no land use
considerations were raised in objection to applicants'
request. As we have noted above, the condominium approach
involves practical difficulties for these applicants. We
reject the "troublesane precedent" argument on the basis
of our long standing policy that each case is decided on
its own merits and none creates a precedent which binds
this Board.
The evidence amply establishes that granting the
requested variance will neither change the character of
the surrounding neighborhood nor adversely affect the
general purpose of the comprehensive general plan.
ACCORDINGLY, THE BOARD OF ADJUSTMENT FINDS:
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1. Applicants have established that the strict
enforcement of S24-12.7 creates practical difficulties
and unnecessary ~~rdships with respect to their use and
enjoyment of Lots Q, Rand S, Block 35, East Aspen
Townsite;
2. Granting the requested variance will do sub-
stantial justice without violating the spirit of the
zoning ordinance or adversely affecting the comprehensive
general plan;
3. Special conditions and circumstances apply to
the subject property which do not apply similarly to other
properties in the same vicinity and zone; these special
conditions and circumstances do not result from the
actions of the applicants; and
THEREFORE IT IS RESOLVED that the applicants be and
they are hereby granted a variance from the strict applica-
tion of Section 24-12.7 of the zoning code and, by said
variance, are authorized to subdivide and transfer Lots
Q and R, Block 35 as one parcel, and to retain Lot S,
Block 35 as a separate parcel.
VOTE FOR:
VOTE AGAINST:
VARIANCE GRANTED this
day of November, 1976.
Chairman
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Adjacent property to Lots Q, R & S, Block 35, East Aspen Townsite
Block 35:
Lots F
Lot H:
Lot I:
Lot p:
& G: Frank A. Loushin & Hazel A. Loushin
Charles D. Tower
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Ludwick J. Loushin
Block 34:
Lot A: Leland F. Bartlett and Josephine M. Bartlett
Lot K: Joyce K. McDonald (Murray)
Block 118:
Lot G:
Lot H:
Lot I:
Mrs. Louis Zelnick
Wm. J. Sheehan & Nancy E. Sheehan
"
Block 37:
Lot A: Jennie H. Cowling & Earl Cowling & to West of Lot 1W~
75' x 100' in Cleveland Street, Block 37
Sepp H. Kessler & Jane Kessler-West of Lot K 57'xlOO'
Addresses:
Bartlett
Box 936
..re.J.S Ie r
BIJy. 33
Cowling
Box 601
Loushin, Frank
Box 582
Loushin, Ludwick
Box 252
McDonald
Box 352
Sheehan
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~/41'7J)
Zelnick
Box 204
Tower
Box 3014
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IIOLL\XD "" IlAHT
AT~-':'lRN EYS AT LA"'.;
AREA CODE 303
sec.! E'';llITAOLE BUI~DiNG
7':<0 ~~L_VE.NTt:"'.~,Tfl _STREET
CABLE I'.DDRESS
TELEPHONE 292-9200
DENVER,COLORADO 80202
HOLHART, DENVER
F'L[ASE RL""LY TO: MOUNTAIN PLA1A 8UILDING
P. o. BOX 1128, ASPE N, CDLOF/ADO 81611
TELLJ"OHONi: 8;:":>3476 AREA CODE 303
November 24, 1976
Mr. Hal Clark
Land Use Administrator
130 S. Galena Street
Aspen, Colorado 81611
Re: Slavens Subdivision Exemption
Dear Hal:
As you know Mr. and Mrs. Slavens received a variance
from the Board of Adjustment on November 4, 1976 authorizing
them to subdivide Lots Q and R from Lot S in Block 35, East
Aspen Townsite. They have neogtiated a sales contract on
Lots Q and R and we now wish to apply for subdivision
exemption. The application has been drafted and a copy
is enclosed for your information. We are waiting on a
certified copy of the variance resolution which we propose
to attach to the enclosed application. Margie Wilson in
the City Clerk's office has indicated that we ~hould be
able to have this by Friday, December 3.
From a tax standpoint it is quite important to Mr.
and Mrs. Slavens to close the sale and receive the down
payment before December 31, 1976, so that the tax burden
can be spread over two years. For this reason I respect-
fully request you to place us on the P&Z agenda for December
7. I believe this exemption should receive a favorable
recommendation as a matter of course which should allow
us to go to the City Council on December 20. I realize
that our proposed schedule is tight but we were at the
Board of Adjustment from August 30, when the application
was filed, until November 4, when the variance was granted.
In the past I have not made a practice of asking you
for expedited scheduling nor do I intend to do so in the
future. On this particular case, however, I would appreciate
your help. I'm sending copies of this letter to Margie
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HULl.A;">]) 8: [lAlt T
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Mr.Hal Clark
November 24, 1976
Page Two
Wilson and Kathy Hauter so that they can tentatively reserve
some time for me at the December 20 City Council Meeting.
The appliation fee and the formal application will be
submitted as soon as I get the certified copy of the
variance. I understand that the only standard referral
on town lot exemptions is to the City Engineer. Please let
me know if I should contact Dave Ellis at this time.
Yours very truly,
JTM:mrn
cc: Ms. Kathy Hauter
~ Ms. Margie Wilson
Mr. Dick Fitzgerald
Mr. and Mrs. Slavens
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PLANNING AND ZONING CO~~lISSION
CITY OF ASPEN
S~ATE OF COLOFADO
APPLICATION OF )
CHARLES C. and ANNE SL~VENS )
FOR SUBDIVISION EXEMPTION )
Charles C. and Anne Slavens, Applicants, hereby
apply, pursuant to Sec. 20-19 of the Municipal Code
of the City of Aspen, for an exemption from the
definition of subdivision with respect to Lots Q and
R, Block 35, East Aspen Townsite. In support of said
application, the Applicants state the following:
1. Applicants own three town lots at the corner
of E. Cooper and S. Cleveland Streets, namely Lots Q,
Rand S, Block 35, East Aspen Townsite. Their single
family residence is located on Lot S; Lots Q and R
are vacant.
2. Under Sec. 20-4(c) all three lots are considered
an undivided parcel and the proposed conveyance of Lots
Q and R would constitute a subdivision. It is for this
reason and purpose that an exemption is sought.
3. The necessary variance required under Sec. 24-12.7
was granted by the Aspen Board of Adjustment on November
4, 1976. A certified copy of the Board's Resolution is
attached hereto.
4. Pursuant to Sec. 7-143(g) as enacted by Ordinance
No. 63, Series of 1976, Applicants request that any park
dedication fees which may be due by reason of Chapter 20
be postponed to the time of building permit issuance.
The subdivided lots are in Zone District R-MF and must
be used for residential purposes but the number of bed-
rooms to be constructed is not known at this time.
5. The division of land requested herein is not
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within the intent and purpose of the Aspen, Colorado,
Subdivision Regulations.
WHEREFORE, Applicants request that an exemption
be granted to them.
APPLICANTS:
Mr. & Mrs. Charles C.
934 E. Cooper Street
P.O. Box 215
Aspen, Colorado 81611
925-3550
Slavens
HOLLAND & HART
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James T. Moran --
434 E. Cooper Street
Aspen, Colorado 81611
925-3476
ATTORNEYS FOR APPLICANTS
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RESOLUTION OF THE ASPEN BOARD OF ADJUSTMENT ACTING
UPON THE APPLICATION OF MR. & MRS. CHARLES CURTIS SLAVENS
Case Number 76~16
This matter having come before the Board of Adjustment
at its mee,ting held October 14, 1976, continued to October 21,
1976, and then to October 28, 1976, for further deliberation;
and the Board having considered the evidence submitted and argu-
ments made in support of the application for variance, does make
the following findings, conclusions, and determination with respect
thereto:
FINDINGS
1. The applicants, husband and wife, approximately
41 years ago, purchased and have since resided in the single
family home situate on Lot S, Block 35, East Aspen Addition.
In 1936 they purchased the two adjoining lots, Q and R, then
improved, but subsequent to purchase the structures on these lots
were destroyed. Consequently Lots Q and R have been used as a
side yard to complement the residential use of Lot S since the
time of acquisition.
2. Applicants wish now to parcel their entire ownership
into two tracts (1) one 6,000 square foot lot (the unimproved
lots), and (2) a second 3,000 square foot lot (Lot 5) which they
propose to continue using as their homesite.
3. All three lots lie within the Residential Multi-
family Zone District which imposes a minimum lot size of 6,000
square feet (see Sec. 24-3.4 of the Aspen Municipal Code) .
4. Other provisions of the zoning code are relevant,
specifically Sections 24-1.2.7 and 24-12.6(d) which (respectively)
provide as follows:
No lot or parcel of land, nor any interest
therein, shall be transferred, conveyed, sold,
subdivided or acquired either in whole or in part,
so as to create a new nonconforming use, to avoid,
circumvent or subvert any provision of this chapter
or so as to leave remaining any lot or width or
area below the requirements for a legal building
site as described in this code; nor shall any
lot or portion o~ a lot required ~or a legal
building site under the provisions o~ this
code be used as a portion o~ a lot required
as a site ~or another structure. ~o building
permit shall be issued for any lot or parcel
of land which has been trans~erred( conveyed (
sold( subdivided or acquired in violation o~
this paragraph.
And:
If two (2l or more lots or combinations of lots
and portions of lots with continuous frontage
in single ownership (including husband and wife
as in all cases a single ownerl are of record
at the e~~ective date o~ adoption or amendment
of this zoning code, regardless of diverse times
of acquisition ( and i~ all or part of the lots
do not meet the requirements established for lot
and width area, the lands involved shall be considered
to be an undivided parcel for all the purposes of
this code, and no portion o~ said parcel shall be
used or occupied which does not meet the width and
area requirements established by this code.
Both sections preclude the intended parcelling by
applicants of Lots Q, ~ and S.
5. Applicants state, in support o~ the requested
variance that (ll a hardship exists because unless they are per-
mitted to parcel Lots Q, Rand S they cannot both maintain their
homestead and enjoy an economic return from these lots, (2) the
zoning code, "when it forces the displacement and relocation of
long time permanent residents, at)imposes a hardship", and (3) the
strict application of the zoning code will not result in a reduction
in density in the area.
6. Applicants will not consent to the imposition of a
condition on the requested variance which would curtail or limit
the allowable uses or densities on Lots Q, Rand S.
CONCLUSIONS
Taking the evidence, arguments and relevant legal
authority into consideration the Board has concluded that:
1. The applicants argue that application of the code
provisions will (a) result in deminished return ~rom their land
holdings, and (bl will result in the displacement o~ or reduced
economic return to lor.g term residents o~ the community. :Iowever,
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(1) the City does not (nor should it) apply its
codes to its citizens in such a way as to distinguish
between new and old residents, young and old
landowners, nor according to how long land has been
held.
(2) the applicants do not argue that they can enjoy
no economic return from their property (i.e, they
do not argue that the R/MF zoning is inappropriate
for this site) but only that they cannot construct
according to the structural configuration they
propose.
(3) "diminished return" is not sufficient to con-
stitute a hardship; only when the zoning code pro-
vides no reasonable use of property does the doctrine
of hardship apply.
2. Applicants argue that the Board should not "slavishly
adhere" to the zoning code provisions. However, to compromise the
code on a case by case basiswillerrode the provisions of the code
and undermine their purpose. ~wo of the chief purposes of zoning
regulations in effect today are (~) to reduce allowable densities
and (b) bring structures into conformance when possible. At least
the latter objective will be undermined if the requested application
is granted.
3. Applicants argue that the application of the zoning
code to their lands will result in a "zoning accident" - something
the City council did not consider, but if they had, would have
provided for as applicants suggest. However, (a) this is not a
zoning accident - Sec. 24-12.6(d) specifically and directly addresses
the issue at hand, and (b) if indeed, it is an oversight, that
can only mean that the applicants should present their quandry to
the City Council for legislative relief (if the Council thinks it
appropriate) .
4. Applicants argue that their proposal will result in
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development that now is permitted on the site. ZOwever Cal strict
application of the code would, i;f; they maintained their home, result
in no further development on the ~ite, Cbl speculating on what would
happen if they removed their house is only that - speculation,
(cl inasmuch as the applicants refuse to accept any development
restrictions on either remaining parcel, we can only anticipate
(ultimately) the maximum build out, and (d) even though the City
Council approved multi-family zoning for the area, we cannot
second guess their desires but must hold that they approved only
the densities and configurations adopted (i.e. we cannot assume
that they would prefer a ~ingle family and multi-family structure
on three lots when the code requires a 6,000 square foot minimum
lot size for each) .
5. Applicants cited three cases, none of which is dis-
positive (or even helpful) in their application:
(a) In City & County of Denver v. Redding Miller,
347 P2d 954 (Sup. Ct. 1960) the Court merely affirmed
the grant of a variance from the City's FAR and off-
street parking requirements. The Court did not review
the record or findings of the board of adjustment so
the case gives us no information on what facts the
Court based its ruling.
(b) In Marker v. City of Colorado Springs, 336 P2d 305
(Sup. Ct. 1959), the Court approved the grant of a
variance to construct a medical office in a residential
zone district where it found the property (1) had
never been improved, (2) was adjacent to a hospital, (3)
was not a suitable site for residential development,
(4) would probably remain a junkyard (a public
nuisance) if not developed commercially because it
was not an appropriate residential site, and (5) was
such that all other reasonable potential uses (other
than office uses) would be more disruptive to the
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residential neighborhood. Here, applicants make
no argument that the R/MF zoning is not appropriate
zoning for their land.
(c) In Bohn v. Board of Adjustment, 271 P2d 1051
(Sup. Ct. 1954) the Court approved the grant of
a variance to construct additional units on a motel
located in a residential zone after finding that
(1) the property bordered on an adjacent commercial
zone, (2) the property was located on the intersection
of Wolf and Colfax Avenues, and Colfax, as it extended
to the east, was improved with commercial buildings,
(3) there were a myriad of nonconforming commercial
uses in the area, (4) the proposed construction would
not depreciate surrounding lands; in sum, that what
was once designated as a residential district had
evolved into predominantly commercial and business
uses. Again, here applicants make no argument that
the R/MF zoning is not appropriate zoning for their
site.
6. Applicants further argue that (a) many of their
neighbors enjoy the benefit of having single family homes on 3,000
square foot lots, (b) the board should address itself to the "social
engineering" being argued for here, i.e., being supportive of long
term residents by enhancing the development potential of their long
held property, and (c) asking the applicants to go through some pro-
longed code procedures to resolve the matter without the benefit of
a variance itself creates a hardship because of the tedious time
delays and lack of guaranty of success in such an approach. However,
with respect to the first argument note that only this particular area
of the City is addressed and we have no idea of how this argument has
or will apply city-wide; in addition, if (as stated above) it is a
purpose of local zoning to bring land use into conformance, all
applicants' neighbors will be subject to these code requirements
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in the future. Secondly, all "social engineering" should be
reserved to that body elected to make such policy judgments,
namely, the City Council. Finally, it has never been held that
conformance with the zoning code procedures constitutes a "hard-
ship" for purposes of securing a variance.
7. Finally, applicants' request ignores some basic
principles on the law of variances, including that:
(il) an applicant must establish unnecessary
hardship or practical difficulties to support
an application; and
(1) generally the requisite hardship is shown
only where the use of land for a permitted
purpose is so impractical as to warrant the
conclusion that the lawful use of the land
will be destroyed by a literal application of
an ordinance (this is not argued by the present
applicants) .
(2) unnecessary hardship exists only if the
problem is unique to the landowners and not
shared by others in the applicable zone district
(it is arguable that many landowners in the
area (and City) have and will be required in
the future to allocate adjacent unimproved
property to support existing single family homes
under the code sections recited above) .
(b) no hardship is established where the evidence
merely suggests that a requested variance will be
harmless (as is argued here) .
(c) financial hardship alone usually is not sufficient
to constitute "unnecessary hardship" except where
the effect of an ordinance is so severe as to amount
to a confiscation of property (which is not argued
here) .
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(d) to constitute unnecessary hardship, the hard-
ship complained of must originate in the ordinance
and not stern from the actions of the applicant (here
it is the history of ownership and improvement con-
struction, the hope of enjoying the benefits of
an existing use plus the more profitable multi-
family use of applicants' property, which create
applicants' problem).
(e) a variance should not be relied on to achieve
substantial changes in applicable zone districts
which constitute, in effect, a rezoning of the
applicants' property.
Therefore, considering the foregoing the Board of Adjust-
ment does, on October 28, 1976, hereby deny the requested variance.
Chairman
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Case No. 76-16
, Slavens, Charles C. and Anne
Applicants request a variance authorizing them to sub-
divide two vacant City lots from the remaining single lot
on which stands their residence, a two bedroom, single
bathroom dwelling. The property is located at the corner
of E. Cooper and S. Cleveland Streets in the eastside
R-MF Zone District. Subdivision cannot be accomplished
without a variance since the remaining single lot and
residence will be nonconforming under the present zoning.
Applicants purchased the single lot and house (Lot S,
Block 35, East Aspen Townsite) some 41 years ago. The two
adjoining lots (Q and R) were purchased a year later.
Applicants have resided continuously in their house since
its purchase. Mr. Slavens is now 69 and retired; Mrs.
Slavens is 64.
The evidence establishes that the present use of the
land involved is considerably below the buildout density
permitted in the zone district. Strict enforcement of
the letter of the zoning laws will deny to the applicants
any use of their excess land unless:
1. Their dwelling is razed or moved to a new
location in order to permit a multi-family
dwelling to be erected utilizing the land area
of all three contiguous lots; or
2. Their dwelling is incorporated into and
made part of a condominium project utilizing
the land area of all three contiguous lots.
The first alternative clearly involves unnecessary
hardship which is not shared by any other land in the
vicinity. The evidence establishes that there is only
one other 3 lot parcel in the zone district which has
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similar characteristics. with respect to that parcel
the existing residence is used as rental income property,
not as the owner's family home, and the entire parcel has
recently been placed on the market. On the other hand,
there are ten or a dozen non-conforming single lot-single
family residences in the district. The unique conditions
and circumstances applicable to the applicants' 3 lot
parcel do not result from the actions of the applicants;
their hardship is not self inflicted but results from a
strict application of the zoning laws in a manner which
does not similarly affect any other land or landowners in
the same zone district.
The second alternative, forcing the applicants to
join a condominium association, in order to realize the
highest and best use of their property under the R-MF
zone regulations, just as clearly involves practical
difficulties for them. Entering into an ownership sharing
arrangement with strangers and having, at best, a minority
interest in the entire project will create a new and complex
set of ongoing responsibilities, obligations and expenses
for these applicants. We believe the foregoing conclusions
are self-evident. Additional support for our views is
found in H.B. 1058 recently enacted by the State Legis-
lature wherein it is said:
"The general assembly further finds and
declares that it is the policy of this state
to enable and assist persons sixty years of
age or older who do not need skilled and
intermediate care facilities, and who so
elect, to live in normal residential sur-
roundings, including single-family resi-
dential units."
By enacting this policy statement, the State of
Colorado has implicitly recognized the hardships and
difficulties encountered by senior citizens in attempting
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to maintain a normal single-family residential living
pattern. Where the evidence discloses that strict
enforcement of our municipal zoning law would force
these applicants either to relocate or to assume the
disadvantages of condominiumizing their residence of
41 years, we are forced to conclude that the requisites
for relief by way of a variance, Le. "practical diffi-
culties or unnecessary hardships" have been established.
No neighbors appeared in opposition to the granting
of the variance. One neighboring landowner submitted a
letter in support of the application; another landowner
in the general vicinity testified at the hearing in
support of the application. A representative of the
Planning Department suggested that the applicants' desire
to retain their family home could be accomplished by
including it in an overall condominium plan for the entire
three lots. He voiced a vague and unspecific concern that
granting the requested variance could create a troublesome
precedent. We regard it as significant that no land use
considerations were raised in objection to applicants'
request. As we have noted above, the condominium approach
involves practical difficulties for these applicants. We
reject the "troublesane precedent" argument on the basis
of our long standing policy that each case is decided on
its own merits and none creates a precedent which binds
this Board.
The evidence amply establishes that granting the
requested variance will neither change the character of
the surrounding neighborhood nor adversely affect the
general purpose of the comprehensive general plan.
ACCORDINGLY, THE BOARD OF ADJUSTMENT FINDS:
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1. Applicants have established that the strict
enforcement of ~24-l2.7 creates practical difficulties
and unnecessary hardships with respect to their use and
enjoyment of Lots Q, Rand S, Block 35, East Aspen
Townsite;
2. Granting the requested variance will do sub-
stantial justice without violating the spirit of the
zoning ordinance or adversely affecting the comprehensive
general plan;
3. Special conditions and circumstances apply to
the subject property which do not apply similarly to other
properties in the same vicinity and zone; these special
conditions and circumstances do not result from the
actions of the applicants; and
THEREFORE IT IS RESOLVED that the applicants be and
they are hereby granted a variance from the strict applica-
tion of Section 24-12.7 of the zoning code and, by said
variance, are authorized to subdivide and transfer Lots
Q and R, Block 35 as one parcel, and to retain Lot S,
Block 35 as a separate parcel.
VOTE FOR:
VOTE AGAINST:
VARIANCE GRANTED this
day of November, 1976.
Chairman
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