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HomeMy WebLinkAboutlanduse case.boa.Cooper&Monarch-LotsC-I.024-74 " . ,,\PPE;~-:-...r 'i'C) 'Ec..~,~~r.D OF Z. <1-:,:G i\D~fl~~>.i'~',:-~:<T ----- ,: iO ,71; .;,', ~IO,:\O CITY OF ASPEN DATE June 19, 1974 CASE NO. 1~'^! APPELLANT Limelite, Inc. ADDRESS P.O. Box 1089 Aspen, Colorado 81611 'OWNER Mr. Glenn Paas ADDRESS P.O. Box 1089 Aspen, Colorado 81611 LOCATION OF PROPERTY Cooper Ave. and Monarch St., Lots C,D,E,F,G,H, & I e>loo:.\<. " of Subdivision Blk. & Lot No.) (Street & Number Building Permit Application and prints or any other pertinent data must accompany this application, and will be made a par~ of CASE NO. The Board will return this application if it does not contain all the facts in question. Description of proposed exception showing justifications: Exception *1 View Plane @ Northeast Corner, 7940.2 elevation Proposed third addition, 7941.2 elevation The nQ~theqqt cQrne~ o~ the building Cqnnot be ~een from the Wheeler Opera House View Planelocatioh'. 'The variancewoula only be needed for the first 38 feet of the 172 foot north elevation, and the first 28 feet of the 85, foot east elevation; SEE BACK OF APPEAL SIGNED / Appel ant Exception *2 provisions of the Zoning Ordinance to forward this application to the for not granting permit: requ~r~ng the Building Inspector Board of Adjustment and reason Application is made for a building permit to build a third story addition to an existing building. The proposed addition will project one foot into the Wheeler Opera House View Plane. The existing building is partially located in the c-l district and partially in the AR-l district. The proposed addition will have one half unit more than permitted in the C-l district, however there will be one half unit less in the AR-l district. ~he total number of units proposed is 14 ~~~~}=~=u~}ts. - Sec. 24-9 (h) Mountain View Height Lot Area. Status Limitations and Sec. 24-7(a) Min. ~~.~ SJ.gned r DECISION, DATE PERMIT REJECTED, DATE APPLICATION FILED DATE OF HEARING MAILED Secretary ,#''', - ~ Rescheduling of NOTICE OF PUBLIC HEARING Case No. 74-24 BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the 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 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. yorrviews by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. The particulars of the hearing and of the requested variance are as follows: Date and Time of Meeting: Date: Time: July 18, 1974 3:00 p.m., City council Chambers Name and address of Applicant for Variance: Name: Limelite, Inc. Address: c/o Glenn paas, P. O. Box 1089, Aspen, Colorado 81611 Location or description of property: Location: Description: Cooper Avenue & Monarch Street Lots C, D, E, F, G, H, ~, Block 77 Variance Requested: SEE ATTACHED. Duration of Variance: (Please cross out one) T~ ~ BY OF ASPEN BOARD OF ADJUSTMENT ~' lL1J Chairman By AP THE CITY - I""'- - NOTICE OF PUBLIC HEARING Case No. 74-24 BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the 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 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. yorrviews by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. The particulars of the hea~ Date and Time of Meet~ and of the requested variance are as follows: .,,~, Date: July 1l;'1~4 Time: 3:00p.m., city.~ Chambers Name and~ddress of Applicant for Variance: Name: Limelite, Inc. Address: P. O. Box 1089, Aspen, Colorado 81611 Location or description of property: Location: Description: Cooper Avenue & Monarch Street Lots C, D, E, F, G, H, I, Block 77 Variance Requested: See Attached Duration of Variance: (Please cross out one) lOeKlPlDJOaJt'JY Permanent BY OF ASPEN BOARD OF ADJUSTMENT ~ I),Jj Chairman By AP THE CITY HEMORANDUM , n n! ~ - 1(' I )~~t~ '''>Y TO: Mem~ers of Planning and Zoning commission FROM: Sandy Stuller RE: Application of Limelight Lodge; Elimination of Off-street Parking Spaces DATE: August 5, 1974 Members of the commission: It is my understanding that the Limelight Lodge has processed an application for extension of the lodge in such a manner as would require elimination of their present off-street parking area and creation of only such addition spaces as are required by the new, additional units. Bore specifically, it is their contention that inasmuch as the original structure was built before the off-street parking requirements were established, they may eliminate any spaces they voluntarily supplied subsequent to the effective date of the off-street parking ordinance, dedicate that area to open space, rely on this dedication for increased density, and replace only as many spaces as are attributable to the increased density. This proposal is in contradiction to the doctrine of abandonment of nonconforming use and cannot be accepted. . General principles Zoning ordinances are prospective only, i.e., no retroactive ap~lication of them is made. Consequently, all uses contradictory to a zoning ordinance are permitted to remain as "nonconforming" uses with restrictions imposed against their enlargement, expansion, restoration, etc., all designed to eventually eliminate them. There is an additional concept in the law designed to eliminate ~onconformities, that is, the theory of abandonment. This doctrine provides that when an owner has a nonconforming use, and discontinues that use in such a manner so as to indicate he is Page Two Members of the Planning and Zoning Commission abandoning it, this serves to terminate a right to a nonconforming use. If the cessation of use is involuntary, i.e., caused by external conditions (e.g. unable to procure a tenant, insufficient funds to do needed repairs, etc.) or if the cessation is due to governmental intervention (e.g. condemnation of the property) courts will very often find no abandonment of a nonconforming use because an owner will be found to not have intended to discontinue the nonconforming use, "zoning: Right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by difficulties unrelated to governmental activity", 56 ALR 3rd 14, "zoning: Right to resume nonconforming use of premises after involuntary break in the continuity of nonconforming use caused by governmental activity", 56 ALR 3rd 138." However, when an owner voluntarily makes his use conforming (here, by providing off-street parking) or decreases its nonconformity, ,the courts will not allow him to revert to the nonconforming use, holding he has abandoned the same, "zoning: Right to resume nonconforming use of premises after voluntary or unexplained break in the continuity of nonconforming use, 57 ALR 3rd 279." Voluntary Abandonment The author in the last noted cite states in the annotation: "zoning ordinances, which are ordinarily . said to have no retroactive effect and to work no disturbance of existing uses of property, often provide, in effect, that where a lawful use of property is in existence on the date at which such ordinance comes into effect such use may be continued, even though the continued use does not conform to the mandates of the ordinance (i.e. ordinances are not given retroactive effect) zoning ordinances also often go on to proclaim that, if such a nonconforming use is discontinued (abandoned), and resumption of activity with regard to the property shall be in ,.....' Page Three Members of the Planning and Zoning commission conformity with the provisions of the ordinance ... (T)he courts have generally held that the word 'discontinuance' is the equivalent of 'abandoned', hence, it has uniformly been stated that the dis- continuance of a nonconforming use results from the occurrence of two factors (1) the intent to abandon (2) and voluntary conduct, whether affirmative or negative, which carries the implication of abandonment". And further: "(I)t would appear to be a widely accepted fundamental of zoning law that a right to exercise a nonconforming use will continue to exist until there is an abandonment of such, i.e., that such right will not survive the abandonment of such use. THUS IT WOULD APPEAR TO BE WELL SETTLED on the basis of the following zoning cases involving the right to resume nonconforming use of premises after an alleged voluntary or unexplained break in the continuity of nonconforming use - that the actual legal abandonment of nonconforming uses is fatal to its resumption." Courts will find an abandonment of a nonconforming use on evidence of (1) a definite and regular conforming use of property over a period of time (2) a voluntary compliance with a zoning ordinance subsequent to the establishment of a permissible npnconforming use or, (3) intervention of a conforming use for a sufficient period of time to justify a conclusion of abandonment of the former use. It is submitted that the Limelight Lodge, in voluntarily supplying off-street parking (overt act) over an extended period of time has, under the common law principles described above, abandoned a corresponding degree of nonconformity and lost its immunity against application of the off-street parking requirements for the existing structure. #"', """.,." Page Four Members of the planning and Zoning commission A voluntary period of actual conforming use will break the chain of continuity in the exercise of nonconforming uses. colorado Caselaw In Service Oil v. Rhodus, 500 P2d 807 (1972) the Colorado Supreme Court overturned the Denver Buick case's earlier holding that nonconforming uses could not be terminated, in Rhodus the Court stated a ruling in harmony with most jurisdictions to the effect that (1) nonconforming uses may be terminated by abandonment (2) if an intent to abandon is shown. See also Beszecles v. Board of Commissioners of Arapahoe county, 178 P2d 950 (Colo. 1947), Fishman v. Tupps, 257 P2d 579 (Colo. 1953) and Board of Adjustment of the City and County of Denver v. Abe Perlmutter Construction, 280 P2d 1107 (1955). General policies Generally, one enjoying \,nonconforming use cannot substitute it for one of a less restrictive nature, cannot increase its intensity of use, nor extend nor enlarge the same. The policies behind the doctrines concerning nonconforming uses are: 1. nonconforming uses are to be looked upon with disfavor because the detract from the effectiveness of a comprehensive zoning plan; 2. nonconforming uses are to be gradually eliminated, if possible, because they, in addition to detracting from a zoning plan, give their owners hidden advantages or monopolies not enjoyed by the balance of the community. The concept of nonconforming uses was adopted to eliminate manifest injustices or hardships that may result from forced compliance by a landowner, of all new zoning ordinances. But if an owner voluntarily complies he defeats any argument that any new ordinance creates as economic hardship beyond his ",~...... Page Five Members of the planning and Zoning commission ability to sustain and waives any immunity against compliance. conclusion I can only conclude that the Limelight must, for a permit to issue, maintain those parking spaces presently existing needed to support its present density, and, in addition, supply any new spaces correlating to the new units to be constructed. . CIANCARY 1974 ~)Zt;~ ~)C/~~'t ' ,...... - - OVINERSHIP 'LIST -- 210 Cooper Condominium Association unit Owner l-A John R. Adler, 224 Homewood p.oad, Los Angeles, Calif. l-B Investment Properties Co:, c/o Phil Eggstaff ~~~~XN~XN>>~lj~~X~~&~1 scottsdale, Arizona 85257 P.O. Box 3263 l-C Susan Lugo, P.O. Box 1523, Aspen l-D Edith Lounsbury, 8473 S.\~. 137th Ave., Miami, Florida l-E l-F l-G 2-A 2-B ~ 2-C 2-D 2-E /2-F 2-G 3-A 3-B ,...4 >~-C 3~D ,/ 3-E 3-F 3-G Joseph E. and Rita M. Doussard 10136 West Iowa Ave., Lakewood, Colo. 802] 5 John W. Colleran, 7 Whitney Avenue, New Haven, Conn. Kenneth 1I. & Lynnette Gutner 3285 Dato Ave., Highland Park, Illinois Friedrich Stammberger, P.O. Box 1201, Aspen B.F. Walker, Inc., c/o A.M. 'Dinges 650 17th Street, Denver, Colo. Michael Ohnniacht, P.O. Box 1172, Aspen Robert A, & Genevieve Jacobson 149 Parrish Road, New Canaan, Conn. Joseph 1I. & Seline Clark Ehrhardt 2734 N. Mildred, Chicago, Ill. 60614 Frances H. Johnston, P.O. Box 3734, Aspen Floyd B. Joy, 765 S. Garfield'St., Denver, Colo. 80209 Henrietta Clausen, 650 Black Thorn Rd., Winnetka, Ill. Paul G. & Elinor H. Anderson, P.O. Box 2916, Aspen . James E. Scull, P.O. Box 2051, Aspen Joseph L. Tita, 18 Carolane Trail, Houston, Texas Lt. Col. Richard O. Merritt, USMC, hq. Battery, 1st Bn. 11th Marines, 1st Mar. Div., Camp J.H. Pendleton, Calif. Dr. Kenneth C. Sawyer, Jr., 401 Gilpin St., Denver George II. Tesar, 205 Winnetka Ave., Winnetka, Ill. 2165 Carroll Ave., St. Paul, Minnesota 55104 Percenta'J~ 5.12 4.70 3.87 4.70 3.87 4.70 5.12 5.53 4.90 4.10 4.90 4..10 4.90 5.53 5.53 4.90 4.10 4.90 4.10 4.90 5.53 July 23, 1974 Mr. Spencer Schiffer, Chairman Planning & Zoning Co~nission Ci ty of Aspen P. a Box V Aspen, Colorado 81611 RE: P & Z Referrals to Board of Adjustment Dear Spencer: .ie are writing on referrals made to us by the P & Z Commission. TIle case that pointed out the problem of lack of communication is our Case No. 74-24, Lime lite , Inc. Ordinance 19 review -- conceptual approval was granted conditionally by your Commission on June 11. 1974. We are enclosing the minutes of July 18 in which the Limelite's requested variances were discussed on their proposed third floor. We thought that our minutes would be of interest to you as yours were to us. In the future, we would greatly appreciate an expression of your wishes as well as some background on referrals made to us. Sincerely, John Dukes, Chairman Board of Adjustment JD:ap Enclosure " f ...~ ~,I , ~~'!;~?~~ {;-"'.-'~\' ,.i'--:f ~,: .-;'-:.. .J ~ ~ -"{',,. " ,.--/.;' "'! - '~. -r ~. ,':~;. ~~ '/..:.:' -. ~ -~ " ~ ,.-, "-f,',.. ~~.;:~ - ~~ ~ ,. TITA LACKSHIN 8< NATHAN ATTORNEYS AND COUNSELORS AT LAW 707 CENTRAL NATIONAL BANK BUILDING 2100 TRAVIS STREET HOUSTON, TEXAS 77002 (713) 224 -3222 July 10, 1974 Aspen Board of Adjustments City Council Chambers Aspen, Colorado RE: Case No. 74-24 Application for Variance of Limelight, Inc. Located at Cooper Avenue and Monarch Street in Aspen, Colorado Dear Sirs: I have just returned from Aspen where during the weekend I learned of a hearing on July 11, 1974, at 3:00 o'clock p.m. to consider a variance to permit the Limelight Motel to build a third story on the existing facility at Cooper Avenue and Monarch Street. I own Apartment 3-D in a condominium complex known as 210 Cooper; no formal notice has been sent to me either in Houston or Aspen. The purpose of this letter is to vigorously protest the granting of a variance to the Limelight, Inc. Without adequate notice there has been no opportunity to examine the proposed building plan and the necessary submissions under the controlling ordin- ances. However, based upon the available information the pro- posed addition will provide for fourteen units and increase the height of the Limelight by one story. The combination of these two factors will be highly detrimental to the neighborhood gen- erally and particularly to 210 Cooper. It would permit an in- crease in population density in an area which is already satur- ated with recreation accommodations, and multiple residences. The addition will further aggravate and compound the already inadequate parking facilities occasioned by the present population density. This is due to the simple lack of physical space for cars (and in part because of the increased utilization of Wagner Park as a recreational area.) There are not adequate off street parking facilities for the residents in the area, nor are there adequate parking on street facilities for the guests of the Limelight and adjoining recreational accommodations. There is a serious question as to whether or not any application for bUilding~eir.mit1 could comply with Section 2 of Ordinance 19 and more parti~~~lY ...: .. ' ~ ,,'/J"~/;; /''') ,,'\. . . \.~l 'Wd{ TITA LACKSHIN 8< NATHAN ATTORNEYS AND COUNSELORS AT LAW 707 CENTRAL NATIONAL BANK BUILDING 2100 TRAVIS STREET J',:L,i",!.j HOUSTON, TEXAS 77002 \ '" .,....../ /. .~ .:..I':-~., ': ---- II. l r .JeC 6f c~ ~ Aspen Board of Adjustments City Council Chambers \ Aspen, Colorado , Aspen Board of Adjustments July 10, 1974 Page 2 Subsection C. It is hoped that Aspen ultimately will resolve its parking problems and I am an ardent supporter of the notion of malls and pedestrian walkways. However, aspects of that plan are still in the planning stage and have not yet been implemented. To permit the Limelight to create the need for at least fourteen new parking places at a time when there is a gross inadequacy of parking spaces under the existing conditions would be contrary to the spirit and letter of Ordinances 19 and 24. Beyond these serious considerations there is the question of aesthetics and the dimunition of the land values of the adjacent owners. In reading Ordinances 19 and 24 there is a clearly stated mandate for the preservation of scenic views and more particularly the views of Independence Pass, Shadow Mountain and Aspen Mountain. While I realize that the preservation of these views is directed primarily to public places it seems inconsistent that taxpayers should be afforded less right to the visual benefits of Aspen than tourists. A third story on the Limelight would virtually eliminate any view of Independence Pass and Aspen Mountain to two-thirds of the owners of 210 Cooper. It would severely com- promise the view of the remaining owners. There is nothing aesthetic or scenic about the side of a three story motel. It should not be necessary to emphasize to an administrative body in Aspen, Colorado that the view of the mountains is one of the joys of living in the community. Along with the loss of view comes an immediate loss of value. At the time that the owners acquired their interests in the condominium they relied upon existing zoning ordinances to insure the existing view of Independence Pass and Aspen Mountain. This reliance should not be frustrated by the permitting of a variance which by its nature is an exception to be granted only upon the Showing that there will be no substantial impact on the surrounding neighborhood. In short, the addition of a third story to the Limelight would aggravate an already existing problem involving density and parking, and cause irreparable harm to adjacent landowners by denying them visual access to Independence Pass and Aspen Mountain. Aspen Board of July 10, 1974 Page 3 Adjustments For all of the above reasons I urge that the variance not be granted and that the Limelight be denied its application to con- struct a third story on the existing structure. We have been supporters of the Planning Commission's attempt to control and direct the growth of Aspen. Only by such conscientious effort can the beauty and uniqueness of the community be maintained. That beauty and uniqueness should not be erroded by granting variances which create the very abuses which Ordinances 19 and 24 seek to specifically avoid. Thank you for your kind attention. Sincerely, c Z ,.!.. Lc5?:h- seph L. Tita JLT/jg /....~ ",.." COUNTY ATTORNEY PITKIN COUNTY p,O,oo, 3707 ASPEN, COLO, 81611 July 9, 1974 HAND DELIVER Mr. John Dukes, Chairman City of Aspen Board of Adjustment c/o Ms. Lorraine Graves, City Clerk Re: Case No. 74-24,- Limeli te Lodge Dear Mr. Dukes: As you may know, Pitkin County owns Wagner Park. The Limelite Lodge borders on Wagner Park. Pitkin County, as an adjacent landowner, was not given notice of the variance hearing of the Limelite scheduled for July 11, 1974 as is required by the Aspen Code, Section 2-22 (c) (1) and (2). I learned informally of the proposed hearing yesterday. That is not enough time for the County to assess its position and therefore, as a landowner within 300 feet of the Limelite, the County formally objects to the hearing taking place on Thursday. Sincerely, CLARK, OATES, AUSTIN & McGRATH County Attorneys By ) \J\~l w. ,\"" ~ {,vnrL. l . J. Nicholas McGrath, 'Jr. JNM:jg .J-"J 1< ,I" ' J\, ,," V ?y~~;/ June 21, 1974 Mr. Clayton Merring Building Inspector ci ty Hall P.O. Box V Aspen, Colorado 81611 CLAYTON - I am submitting a list of adjacent property owners concerning the Limelite Lodge Project. Your office indicated this was required to process the Appeal Application for var- iances that I delivered yesterday, ~ North Limelite, Inc. P.O. Box 1089 Mr. Glenn Paas J,W.,{t ~ ,"-0 vzl ~ .~~......... ;(10 €~~ hI ,/ \!) / J' ./.. / 'J [f~ ~'{i\/ ,\/;~'" J\f' ,} V vi ,~~,}~"I . 1isl" Y{~~ Deep Powder Gus & Marge Hallum p.O. Box 3038 South - Aspen Manor V . A . & J, Adam P,O. Box 310 The Pines I could not locate Mr. Sabbatini, the owner, to obtain his P.O. Box, (925-7100) ~O?<. '-7 e \ If you have any questions concerning the above information, or the Limelite Lodge project, please call. Sincerely, CAUDILL ASSOCIATES . ARCHITECTS AlA <q)~~ Don Ball pm CAUDILL ASSOCIATES ARCHITECTS A.I.A. . P. Cl. BOX r-=:F, ASPEN. COLORADO 816"1l . PHONE 303-825-3383