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HomeMy WebLinkAboutlanduse case.boa.214Bleeker.013-71 - Jo ~- APPEAL TO BOARD OF ZONING ADJUSTI'~NT City of Aspen Date July go I ICOI .' Case No.. 7j~d' I Appel1ant'N. ~.lOU:5Jhra,",. Sr. Ad<3ressal1 W. Bleeker 9o~ 3/07 owner\J.~.~hraY") Address.;l.11 W. ~ Fh~310'7 Location of PropertYc?l4 W. F51~1' ~ No Wl4.! W.:l6' Lo+p lS1 ~o . Street & Number of Su c ~vision Bloc ( & Lot No. ' . . Building Fe-rn,it application an'~ prints or any other pertinent cata must accompany this application, ano will b~ ~a0e a part of Case No. 7/~/3 . The Boar0 will return this application if it coes not contain all the facts in question. D . t' - escr~p ~on 0:': proposed exception showing justification: -S...e A-l+<>.<:h.eel ~+e..,.,'<zn-t- Signed W.l.J. L~' hrt:l'rl, Sr . b... ~p6 a ao.;:. . .~ l'rO\lisions of: the zoninG or<1inance re;uirtn~B ~ cwg tns-p';c'l~ nn~~_~--t-6=f6rwaYcT this application to'the Board ofAc'justr.1entanc1reason- fo~~t~\a;;~ng~-~e~~~,... '~o-Y c;.. b",\\r,""~'- \>Q....r-v<t -\-0 b",',\d. Q.... - ""we -~~, ,\\.1' .",,~\\~....\ \"'~ e\~~ R'<>~ \,.WC -st"'''''''\~V'J.Q.\\\7'a 'N'\\ 'oil. ~~ro i''^-t.,~ 0'(\ 0, 0, "-o.~ c-.X:-f'\~ 5000'\"1. o~1 \c~C\. c'-"'^.d hOt Y'iY'\A. ,^. 0-\. V'i \ I\. '\-" t< B 5 ,~<:>...,\ l. " "'-.<1.. m ''\>Y\ "">" .Q ~ or"a. \0'\ Ov-<-0...... \ b ooD S' ,'T'" ........., ,.... Q>. '"YY'\ .Y\\ 'Y'<' '''''' lD~~\t\y,. o~. bO~~-\"v' .c:-y-y , Status S~gncd Pfrm~t r:j"c~:0 ~ate:",,\"1 e -~ I Df. cis ion Apphcat~on nle.: ...\_\",!!! - 1_' Date 01 Hearing }ia ilee' Date Secretary ~ - - NOTICE OF PUBLIC HEARING C N 71-13 ase o. 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 Offi~ial Code of Aspen of June 25, 1962, as amend- ed, a public hearing will be held in the Council Room, City Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoping Resolution, Title XI, 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 your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious con- sideration 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: July 15, 1971 Time: 4:00 P. M. Name and Address of Applicant for Variance: Name: W. H. Loughran Address: 214 West Bleeker Location or description of property: Location: 214 West Bleeker Description: Block 50, Lots M, N, 0 and West 20' of Lot P. Variance requested: Application is made for a building permit to build a two-family dwelling. The proposed two-family dwelling will be constructed on a lot containing 5000 square feet of land and having a lot width of 50 feet. The minimum required lot area is 6000 Square feet,with a minimum lot width of 60 feet. Duration of Variance: (Please cross out one) ~ Permanent THE CITY OF ASPEN BOARD OF ADJUSTMENT ?~~ C ha irman . !:1'0: BY "---,._.-~~-I _W___,.,'~_W=."'~_~'_"____'_'4.__'"" _'_"'_"_,_~.,<.._,,. '"," .-.._"....>v_..= BLOCK 50 Lots A, B,C Lot D, W. 14.54' Lot t E. 16.46' Lot t Lot F Lots K and L E. 10' Lot P Lots Q, R, S BLOCK 51 Lots A, B, C Lot D Lot E Lot F LIST OF ADJOINING LAND OWNERS CASE NO. 7/./3 ~sther Benninghof P.O.Box 575 Aspen, Colorado 81611 Joseph Krabacher P.O. Box Aspen, Colorado 81611 Robert S. or Wymmefred W. Callender, Tr. P.O. Box 1062 Newport Beach, California 92663 Nasie NI. Pecjak P.O.. Box 193 Aspen, Colorado 81611 Lois W. Wilson General Delivery Incline Village Tahoe', Nevada Grace E. Huffman Broadbrook Rd. NIt. Kiscro, New York 10549 Nick E. and Dolores S. Gust 4191 Irving Street Denver, Colorado 80211 Gretta M. Kettlekamp 3408 morris Ave. Pueblo, Colorado 81003 mary Horton (Baud en) lV!oorara Bingara Road Narrahri, NSW 2390 Australia 'r , POST OFFICE DEPARTMENT ICATE OF MAILING Affix 5' L=:=: \~=-'- ~<< 7 S P ~4i "-.~=-- -T~ : "<,- 'V~._ / Ii C;,pnSTAGEI3 ~,,~ ~'ltmar"L . ~ ? ' .,.... ~ ,'.l, I... .f,. _ . I... '. . " . i... ."'\;." I. e O' (1 E,'~ -.~, -~\._ 1,,- A "r"'n Colorado ,()l, , '~'tJ ~~d~ One piece of orcrlnory mod addressed to: J' - [ \, ,!ij:LJba:j 8 )_t;:;:'~," CE~ Received from: Gretta M. Kettlekam l!,~ Pueblo Colorado 8100 ~~ MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAil, OVIDE FOR INSURANCE. - POSTMASTER ~~~.F~:~3 3817 I< GPO un OP-7IZ-US CE~ POST OFFICE DEPARTMENT lCATE OF ~~c :J' \,~~-- ~.. "'v~- -. P'~M\.~. .," r!U.S,~U.\IM"l!' ~<'~ ~~t":'ark. "':: , i' iq)- . i: :. ~/" ~ '<< I-j ~ >4 E T ~ ~ I I.. , 1_1 :5.<:' ~,O~,' 1._ ._ ---1-11: S'? EN, ~ ~'JUl 0 \~ i Received From: P. o. Box V Aspen, Cnl nrRdn One piece of ordinary mail addressed to: Mar r Moorara, Bingara Road Narrahri, NSW 2390, Aus MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL 0 FOR INSURANCE. - POSTMASTER ' :~~.~::3 381 7 *GPOI.": POST OFfiCE DEPARTMENT CE~ Received From: As en Colorado MAY BE USED FOR DOMESTIC AND INTERNATIONAL MA FOR INSURANCE. POSTMASTER :~~.F~:~3 3817 - VIDE "GPor.":OF-712-U. CEr POST OFFICE DEPARTMENT ICATE OF MAILING . ~ MRS. WARREN E"u'ILSON 559 Tyner - , Gen.[lI1 DeIiYe.y Incline ViII.... Nev. 89450 Received Froml n Incline Villa e Tahoe Ne MAY BE USE D FOR DOMESTIC AND INTERNA TtONAl MAil DOES FOR INSURANCE. - POSTMASTER ' :~~.F~:~3 3817 CEr 'ICATE OF Received From: "GPO"" Of 71Z.U5 --'---- POST OFFICE OEPARTMENT CEr ICATE OF MAILING L= Received From: -",,5 P f: Ji'" of As en Robert S. ( Onder p, 0, Bo.~_,14 Palm Desert, CA 92260' , :, ~ o o. Aspen. Colorado o\... One piece of ordinary mail addressed to: Robert s. or Wvmmefred Po 0 Rnx 1062 W. ;JlI alifornia 92663 MAY BE ED FOR DOMESTIC AND INTERNATIONAL MAil, DOES NOT PROVIDE FOR INSURANCE. - POSTMASTER ~~~/~:~3 3817 "GP01U3 0'_71Z_U' CEr POST OFFICE OEPARTMENT ICATE OF MAILING Affix.5~ ._ \~~_ -=.J" -=- - p~. ...:.p!'r-==: ~\...? 1:.1:' - ;,n....-..,-.. , 'v, _ I.,::i" u~IAul:: ~ ~ ~strl'I rK. ... , " .~ ,. r . Received From: f P. O. Box V Aspen. Colorado One piece of ordinary mail addressed to: s en Nick E. & Denver Colorado MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAil, DO FOR INSURANCE. - POSTMASTER E :~~.F~::3 3817 * GPO 1.U 0' 71Z-IU CEr ~~. ~: \,~~.- .0, ~,AGE\,: stmark. ;... :. .,.... ~:: '. ~ ~ - 1 161- Colorado MAY ~~SE;~R DOMESTIC AND INTERNATIONAL MAil, DOES NOT PROVIDE FOR INSURANCE. - POSTMASTER 1< GPO 1..3 , 0,_7U.U' ~~~.'~::3 3817 00\...0' Aspen, Colorado One piece of ordinary mail addressed to: Mt. Kisco New york 105 9 MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAil. FOR INSURANCE. - POSTMASTER ~~.~::3 3817 1<GPOllU:O' 712.U' -____~^.~---.- --. -- -~-_.>-~---,-I PROPOSED EXCEPTION Petitioner owns Lots, M, N, 0 and the West 20 feet of Lot P, in Blol!:k 50, City of Aspen, Pitkin CouBty, Colorado. There is now existing on Lot 0 a residential structure numbereu 214 West Bleeker Street (hereinafter referred "to as "214"). Petitioner seeks a variance from the Aspen Zoning Code which would allow the construction of a two family dwelling unit on Lot M and the West 20 feet of Lot N, which area contains 5,000 sqUiere feet. (See attached plot plan.) Petitioner states the following reasons in support of his request for a va~arce: 5t)' (,!l-jfUThe special conditions, and circumstances surrounding -this request do not result from actions of this apPlicant7~ ~y ~FOQeQeSsor in title in that: J \ 1. Applicant acrquired the entire parcel on AUgUst. 24, ,/1946, long prior to enactment of the Zofting Code. 2. At thE) 1;':'''1'' vI cH.:qui".i.L':'oil there.wer-ema;nyresi- nAl1+-La-l- pI'U}JC.L 1iie:El (r."aila1:rl~ ~.u ,3,i::iJH::::.u but lhe ~r'"'j......cL property was purChased because it inclucl ed Lots IV! cmd N which Petitioner then planned to develop at some future' da t e . ad ,;.:;tf a . r ~ ~<<..0 3 fer b ti 'onA to ~ s (~) That special conditions or circumstances apply to the li1'l"jj _c t property which dOG?not 8pply to other properties in the same vicinity and z,one, among which are: c1' '3:~, J:lct.L Cl.is.L a}!' ~_~ <. G) 1 and. ~ above. ,? The request Coes ~~ n of less~n\;j fQr the 8UX_'tfu_......:t1. __ nti.;;RI be mi tted ~er the Zonipg Co' 'cree q~;ectio!1 11- (b)..u:~>--i-f"-rots If, N, 0 and e We~t...2o.--.f~~ T~+ ~ ""1 :If:::fte-n l1Jll" as a single p aY.-j;ha-.--t-i1JleOf er.LtWtnlent vi' Lhe z,oning~e. <.~r()posed structure' .provides fo::~-open arees~~rom all ad1RQeht DUJ.ld~ngs. (See a ttalC~.F1.Qt....pJ.anor------- 4 .SVen after constructlo:t'l. of the proposed structure there will be but four resi~e~t~UJ..'ldin~S on the Bleeke.r street side of Block 50.~ '~r ~ (' r ~, ~" 0 2 d, i@' PJ1fl~~. ~. u ure/wi 1 e ,0,11 1 , 0 l r e / j)' ',if,' /' n. h~ ag ee;ate. m r Al!;3:!i , , _ a qu~r_ . b~ ~ o~' ~~~ e s~~es. .~ (' .~ ) ~'~-:fg ]I 0 '-p/'~/ ) -~'" . -- . ~ C--J 2- ~ '0' ~;-~./i;i; ~~ ~ ;---L'7 ~L ~ ,r- 0<:.1. .1..-- ~Jii-~~ . ..... .-) 7 0v-=J~-f/' '. ?{~/~/~ ~,..,-- '~M ~Q / c1 ~3r )-,I:-.~~-~i . - L'/-- (J ~//~ /' - ~ ~- ~ ~ u~,~ ('i ~ granting of th, :::ion" io ""nti'0l the~ ment of a substantial property right enjoyed by oth properties in the same vicinity and zone, but cenied to the . t p "_~ bJ ~ecause of the special ~ extraordinary circumstances in that: /, 1. The ';H.l\' j eet pro"erty is exteIHli':9 ;,., ",;?:p and fully amenable to development.1 "~ J-' .~~' ~... '~~'pe i t~9neY]is1lJcec~d JroJn s d 10 f~.. " easab~ece.n6mgAiti ~ti~ f e p c n t be . / 3. i If t1J.e~/ ariance ~ not gran~, the ef~' c:t of the ZoningCod~VUpo t1J.e prop rty will be t,o confi cate ''8) v'>i-u- a.bl~prop I'ty r which co].l.ld reaso ably be e 'oyed(bYj'the Pet1ti er and which is enjoyed by others in the vicinity an one. ~ cv~~ 4. By depriving Potitienel of the valu~property V' ~ right to apply his lands to reasonable ~- ~se the Zoning Code has imposed upon him a. h:;lFa.:.l,ll' which can be relieved only by the granting of a variance.~B Ie~ttcstcd. ($) The granting of the variance will not adversely affect the general purpose of the Comprehensive Plan in that: 1. ~ variance .~efeda-i:7tt~; intent and purpose of the Code Mf"that it I S grant,~ will not (i) adversely affect the health, safety or welfare of1 thelcommunity, (ii) increase conjestion in the streets or place added or undue burdens on the municipal services, or (iii) overcrowd , / '( land or create undue concent;ratJ' on Of_f}pulation~~ :? ~...-v- , Jv /" -/.1 ~ t:-" t '-Y ~/ .'7 d~ ... .71'/ ~;..I. . _? C--,,-- ,) ~1l"~~~~~ --0->/-'/, 3. ~, -purpos;/f to m st :pp~~pr;d e €~~;t~~~/ e" w of the Code. ) ~', r?~' )V.' The C,o~ expr"es~' y provides that pa,rcels of land eXi~ing.A>efog:renactmen of the c~e consiating of ,0 sq1?-a r, e~Ele,t, ar aC,ceptalr e for tl"[!O fam,il,y 'ill' elliIlf; con s1;i-uq.t'iCln. (aa Sec. ltilil-90?H4 Implic.tly t):1'n te/ 1fam~:i1ti oX. tI: C de re ogniyed t at 5!OOO qua~ a /~ n,ot ~nWf~c~ent groun a tw f~ly d :I~ng. inclu~:1th~t~~~~~~,s' :er/a:}i}iW\,in/E1ip.Y9I't'~P~ti~,,/iO/~~st ! l!;r:::~ropo ed dwei~ing win provide/perll\8.nenr ~id~ti.a 'propei;y for i wo families, con enieI1tly B . t- able fi5#' a amil of f as . 'one ~.an a mily of,/ two or three as to e other uni--U. It will be de '., 'in //iItJ '1.5'''''''~ /J, '-~ , ~...e; ~ (J..J.~ ~ ~(t r<-""'--- .c ~- / . /Z-<I ~~ . . '--.. I--,,-.~._~~ . . -3- such a manner that the entire structure ean be utilized as a single family dwelling. 2. The proposed structure will be aesthetically pleasing, well constructed. 3. Adequate offstreet parking at the alley will be provided to accomod8.te both the proposed strucutre and the building at 214. 4. Petitioner does not seek this variance for the purpose of dividing his property. He fully intends to retain title to the entire 3-2/3rds Lots. The effect there- fore is that a maximum of three families will occupy 3-2/3ros Lots on a permanent basis. ........ ... ~.." ~.; ME:MOH.ANDUM H.e: Application of legal principals in certain matters before the Board of Adjustment INTRODUCTION This memorandum has been prepared as a result of the applica- tion of W. H. Loughran for an area variance allowing the construction of a two family dwelling on Lots M and N, Block 50, City of Aspen, Pitkin County, Colorado. During the cour se of the hearing of the Board ci Adjustment held on July 15, 1971, it appeared that members of the Board are generally not cognizant of the legal principals applied in such matters or of the extent of the powers of the Board. The position of the applicant is set out in his Appeal to Board of Zoning Adjustment, a copy of which is attached. 1. What arc the responsibilities of the Board of Adjustment? In order to frame the duties, powers and responsibilities, cer- tain of the provisions of the Zoning Code (tj1e Code) are significant: 11-1-12: BOARD OF ADJUSTMENT, VARV\NCES "(a) Organization, Powers and Duties: The Board of Adjust- ment shall have the following powers and duties, all of which shall be exercised subject to the laws of the State of Colorado and appropriate conclitions and safeguards, in harmony with the purpose and intent of this chapter, and in accordance with the public interest and the most appropriate development of the. area~ "3. Where there arc .P.I.actical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter, in passing upon appeals, to vary or modify the applica- tion of these regulations and provisions relating to the use, con- sLuction or alteration of buildings or structures, or the use of land, so that spirit bf the ordinance will be observed, public, safety and welfare secured, and substantial justice done. "(b) Procedure: "4. The fol1owing shall be considered valid reasons for granting a variance ~ "a. That the special conditions and circumstances do not result from the actions of the applicant. "b, That special or extraordinary circumstances apply to the subject property thClt do not apply similarly to other properties in the same vicinity and zone,' .,O,~.;c'",,--""'-'.~_ ._,..._.;."',...._'..J.,_,.....,....,._,."'....,""",.;.."."'..,""-...............:;,,~..;,..;;-",~"""'.,/~-'" ....... - 2.. - '-' ,'.... .,1 "c. That the grantillF of a variance is essential to the enjoyn,.ent of a sllbsta,;'tial property right enjoyed by other properties in the same vicinity and zone, but denied the subject property because of the special conditions or extraordinary circumstances. "d. That the granting of the variance will not adversely affect the general purpose of the conprehensive general plan. (P. I, Ord. No. 21, Series 1967.)" Other provisions of the Code point to the proposition that the Board should permit reasonable eonomic use of property where the Code, for one reason or amther, has denied such use: 11-1-12 BOARD OF ADJUSTMENT, VARIANCES "(b) Procedure: "3. The Board of Adjustment shall hold a public hearing on all applications and appeals, with the following special con- ditions required: "f. The Board of Adjustment shall make a finding that the conditions in this section are satisfied by the reasons set forth in the application and that the variance is the minimum variance that will make possible the reasonable use of the land, building and structure. " 11-1-1 INTENT AND PURPOSE "(a) In accordance with the General Plan of the City of Aspen, Colorado, and as authorized by Article 60, Colorado Revised Statutes 1963, as amended, this Chapter is intended to encour- age the most appropriate use of land throughout the City and to insure the following benefits to its citizens: "3. To conserve the value' of buildings and encourage the most appropriate use of land throughout the municipality. " When a Board of Adjustment fails to act within the g,"idelines of its authority, it has either abused its discretion, committed an error or acted arbitrarily. From such we draw the conclusion that if all statutory standards ar e met by an applicant, he has a right to the vari- ance sought. In Yokley, ZoniillL-Law and Practice, S. IS-I, it is stated: ~ "When the requisite facts and conditions detailed in an ordinance are found to exist, the applicant therefor will be entitled to a special exception unless there is legally competant evidence to support a finding that the granting of such exception is adverse to the public interest. .. (1) "Thus, where an ordinance authorizes the granting of an exception as a matter of right, upon a showing of compliance with the safeguards enumerated therein, the only function of the Boal'd with regard to exceptions is to decide if the conditions exist which make the case an appropriate one." (2) (1) ;L~cobi ~_on~:'.g,_Do'll.cLo~Acliustn::..ent 196 A.2d 742 (Pa.) (2) SI"~!.LOil Co~--",-,-....t'r<1,!chestc~ 133 A. t.d 501 (N. II.) "..-.-.__.:..",- - '"'" -.. ./ 3. Objectors. It appears that the Board of Adju:-;trnent places an extreme elnphasis on the objections of persons in th"c neighborhood where those objections cite no specific or relevant reasons. Of course we cannot look into the thought process of any 1>)ember of the Board and hence this is a presumed fact. If an actual fact, 'the law is being subverted. In Appeal of Lindquist 73 A. 2d 378 (Pa.) it was stated: "Board docs not properly exercise its discretion on an applica- tion for a variance if it considers the number of protestants rather than the nature and quality of the objections." The objections must be based on the failure of the applicant to meet one of the require<:t standards. Rathkopf, p. 44- 6, Kent v. Zoning Board of Review 58 A. 2d 623 (R. 1.). 4. Improper Limitations. A suggestion was made by the Board that limiting construction to a single family dwelling might be a compatible way of resolving any questions in the matter. The Code calls for the same lot area (6,000 square feet) for the construction of any dwelling unit in the R-6 Zone, regardless of whether such is a one or two family structure. The imposition of such a restriction would be contrary to the powers char- acteristicly granted to a Board of Adjustment. Such would constitute an attempt to amend the provisions of the Code. Black v. Board of Appeals of Village East Hills, 203 N. Y.S. 2d 9, by analogy supports this proposition that such a restriction is beyond the power of a Board of Adjustment. , . ", .". _"~. .. __"~_~'_,_'-',,";'...~ . ~ '_"_"' -,c:.;,__::,:__.".'_'.; ;__""."-.:.'.,':":"':. "-..","' ,. !.'".."~,-~.-,~,.""-,,,,;,'_~~.'W-,"'......,;'-""Z=-="""~'-L'.'_-,,,,:;,; ',,':::1\".'-"_ ,.... -.. '-# -/ It IS further stated in Yokley, .!:_'-'-1.'.in~ L;1\'/ and Practice, S. 15-1; lIA denial would be arbitrary, for cxanlple, if it was c'stablished that all of the standards specified in the ordinance as a condition to granting the pern1.it have been met. II Zylkav. Crystal167N.W.2d45 (Minn. 1969) "In a Delaware decision the court held that a Board of , Adjustment was not authorized to refuse a permit for the opera- tion of a trailer park in an agricultural and general purposes district where the applicant met all the standards that were lawfully imposed. " Zoning Board of Adjustment of New Castle County v. Dragon Run Terrace, Inc. 222 A.2d 315 - .1- ....... -, ....... / The standards arc set forth in (he Co~le, uSlng the phrases gen- erally applied to zoning matters, in Paragraph 11-1-12 (b) (4), set forth above. Thus the Board has a duty to grant a variance where it finds that all standards have been met. There is no other avenue available despite the number of protestants and any desire of the Board to molify the objectors must be subserved to the right of the applicant to his variance, 2, What standards are applicable? In V. 2 Rathkopf, The Law of Zoning and Planning, p. 45-1, it states: "The two types of variances with which the cases custom- arily concern themselves are 'use' variances and 'non-use' variances. The latter consist mostly of variances of bulk restric- tions, of area, height, density, set back, side line restrictions and restrictions covering miscellaneous subjects including the right to enlarge non-conforming uses or to alter non-conforming structures. "As the name indicates, a 'use' variance is one which permits a use other than that prescribed by the zoning ordinance in the particular district; it permits a use which the ordinance prohibits. "An area variance, on the other hand, has no relation to a change of use; it is primarily a grant to erect, alter or use a structure for a permitted use in a Hlanner other than that pre- scribed by the restrictions of the zoning ordinance. "Use variances are customarily concerned with 'hardship, 1 i, e. that the land cannot yield a reasonable return if used only in accordance with the use restrictions contained in the ordinance. Consequently, a use not permitted by the ordinance must, under such circuinstances, be permitted by the board of appeals in order that the ordinance will not operate in such manner as to confiscate the value of the land. "Area variances are custOlnarily concerned with 'practical difficulty,' i. e. that the property or a structure thereon cannot, as a practical matter, be used for a permitted use without coming into conflict with certain of the restrictions of the ordinance such as side-yard, rear yard, set back or area restrictions or those affecting bulk or del~sity." The Code in Sec. 11-1-12 (a) (3), supra, makes reference to "practical difficulties or unnecessary hardships" as grounds for varying or modifying the application of the regulations. Rathk.21?i at p. 45-23, in discussing a similar phrase in a New York ordinance states: "In New York, a practical distinction is made iri the law applicable to the two types of variances, i.e. a use variance and an area variance, it distinction possibly engendered by the use in _ ::-1.. ,.... ......, '"" ..I the enabling act of the disjunctive 'or' in the power groll1ted to boards of appeal s to Val' y the application of the ",oning ordinance in case of 'practical difficulties .Q!. unnecessary hardship.' Re- garcUess of its genesis, the fact that there is a difference in the powers of the board of appeals in the two cases is supported by the language of the Court of Appeals of New York in the leading case of Otto v. Steinhilber, in which the prerequisites for a use variance are set forth (1) and by the subsequent case of Matter of Bronxville v. Francis (2). "In the Matter of Bronxville v. Francis, the Appellate Division stated that the New York courts have 'consistently held' that the requirement of unnecessary hardship has application only to a variance in the -,,-se of premises and that, in the absence of a statutory provision to the contrary, an area variance may be granted on proof of practical difficulty only. The basis for this lesser requirement with respect to area variances is stated to be that in such case, there is no change in the character of the zoned district (and, therefore, no need to balance the effect of the grant of relief upon the character of the district against the deprivation of the owner's property). " In Otto v. Steinhilber, supra, the requirements for use variances were set forth and quoted in RathkQEi at p. 45- 2: "Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that (l) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonablenes s of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality. " Rathkogf, at p. 45-28, further summarized the questions properly before the board in applying the practical difficulty test in an area vari- ance case: "I) Whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner fron'1 using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome. "2) Whether a grant of the variance applied for would do substantial justice to the applicant as well as to other property owners in the district, or whether a lesser relaxation than that applied for would give substal;tial relief to the owner of the pro- perty involved and be more consistent with justice to other pro- pertyowners. . "3) Whether relief can be granted in such fashion that the spirit of the ordinance will be observed and public safety and welfare secured. "In considering these basic questions the board should take into consideration the nature of the zone in which the property lies, the character of the immediate vicinity and the uses contained therein, whether, if the restriction upon the applicant's property were removed, such removal would seriously affect such neigh- boring property and uses; whether, if the restriction is not (1) Olto v. Steinhilber 24 N. E. 2d 851 (N. Y.) (2) Matt(,l~ of Br()n;:-;'ill('__.\f._I~>:i}D.<:il!. 1 ',0 N. Y. S. 2d ')OG ,,.... ......., -..... / renlovcd, the restriction would have a tendency to create hard- ship (to any extent) to the owner in relation to his efforts to make nonnal irnprovements in the character of that use of the property ~hich is a pern1ittccl use uncler the use provisions of the ordinance. II It should be noted that the standards expressed above by RathkoJ2f eliminate certain standards expressed by the Code, namely, those d uniqueness and no fault in the applicant in creating the condition. RathkoEf states at p. 45-29: "In the later case of Turiano v. Gilchrist (I) the same court held, in a case involving a substandard lot and in which a variance of the minimum lot area and minimum lot width provisions of the ordinance were applied for, that plaintiff need not establish a con- dition unique and peculiar to his property or uneces sary hardship in connection therewith. " We think that this application of the uniqueness requirement is probably consistent with the terms of the Code. "Uniqueness" is defined in Rathk~, p. 45-4: "The authorities seem uniform on the proposition that the difficulties or hardships relied on must be unique to the parcel involved in the application for a variance. They must be peculiar to that particular property, and not general in character, since difficulties or hardships shared with others in the area go to the reasonableness of the zoning generally, and will not support a var- iance. If the hardship is one which is common to the area the remedy is to seek a change of the zoning for the neighborhood rather than to seek a change through a variance for an individual owner," Elwyn v. City of Miami (Dist. Ct. ApI'. Fla 1959), 113 SO,2d 849. An area difficulty or non-use type of practical difficulty must in each instance be peculiar to one particular parcel and cannot be general in, the neighborhood. Thus, the application logically must be directed solely to use variances or implicitly included in non-use variances as a condition met. A similar argU111ent, by analogy" can be applied to the "no fault" requirement, thereby eliminating consideration by the board of that requirement in area or non-use variance cases. Such is further ar.:;ued to be inapplicable to area variances On the basis that since i'hardship" is an inapplicable standard as to area variances, the standard of "no fault" is als 0 inapplicable. _ ____~___..C_____.....___ ___ SUMMONS IN CIVIL ACTION / , ., P R'VI" Off\<ftl'#. / ' u ~" '~'('t 0.>""' ~tP) pL- ..~ ,aRM D.t-tOM ~.. COpy Court Filing Stamp IN THE DISTRIcr COURT IN AND FOR THE ~x~ COUNTY ot~ AND STATE OF COLORADO OVIL AcrION NO......!!!!9.Z..........................DIV................. uJ;;P V W. H. LOUGHRAN and CAROLYN LOUGHRAN, PLAINTIEt....... SUMMONS VI. BOARD OF ADJUSTMENT, CITY OF ASPEN, DEFENDANf...... THE PEOPLE OF THE STATE OF COWRADO To the above named defendant....... GREETING: You are hereby summoned and required to file with the clerk an answer to the compl.int within 20 days after service of this summons upon you. H you fail so to do, judgment by default wilfbe taken against you for the relief demanded in the complaint. H service upon you is made outside the State of Colorado, or by publication, or if a copy of the comJ?laint be not served upon you with this summons, you are required to file your answer to the complaint within 30 days after service of this summons upon you. This is an action. under the prov1s1ons of Rule 106 of the Colorado Rules of C1v11 Procedure as more fully set out on the attached Compla1nt. Dated...~:P.te.Jll.h8.l'...~O........,~ n....... 6 / /t~?~,- n. - ........n.u........nn...nnnnn..n.un.n.n.n........n............... Auomey for Plainrifl Clerk 01 the District Coon ~- , -;, By...........n..................................................................... ,-,;cc"::E Deputy Clerk . '. . (SEAL OF TIlE COURn Bruce K1stler p.~.Q.~....!?~.!...}.!p.Z.!...!!:.~.P..~~.L.s:~~.?.~.?..!~.~ 1 Address 01 Auomey !J . : N~ - Tbi, summons is issued pursuant to Rule 4. CoIomdo Rules Civil Procedure. . ~1f i~e Summons is published or served without. copy of the complaint, after the word "action"" state the relief demanded. I ~f :body execution is sought the summons must ltate, '''l"hiI is aD action founded upon tort." L:;:. 1-1" 'i';" < . " . !Ii 'Oi "lit/,ll, I,! 'J 'J' <: 6 ....,- ("-"lUI-'-1iUI , ~ ..1.- ,- '-' ~"' ) , OI'I'ICI> , \lt6-\~tO ~-rl ~ p$.f ~v. P 1-..- {JI' q ,J..i. . 'Of'~'-- / f'. I:' (j'''''' IN THE DISTRICT COURT IN AND FOR THE COUNTY OF PITKIN AND STATE OF COLORADO W. H. LOUGHRAN and CAROLYN LOUGHRAN,) ) Plaintiffs,) ) v. ) ) BOARD OF ADJUSTMENT, CITY OF ASPEN, ) ) Defendant. ) COM P L A I N T Plaintiffs, pursuant to Rule 106 Colorado Rules of Civil Procedure, complain and allege as follows: 1. Plaintiffs are the owners of Lots M, N, 0 and the West 20 Feet of Lot P, Block 50, City of Aspen, and have been owners of said lands since August 24, 1946. 2. The Zoning Code of the City of Aspen was enacted into law in the year 1956. 3. Pursuant to the said Zoning Code the Board of Adjust- ment was duly established. 4. In July, 1971, Plaintiffs filed with the building inspector of the City of Aspen an application to construct a two family dwelling on the above described property. 5. The said application was denied as being contrary to the lot area requirements of the Zoning Code insofar as there existed a two family dwelling unit on Lots 0 and the West 20 Feet of Lot P. 6. Plaintiffs filed their appeal of such denial to the Board of Adjustment on or about July 8, 1971, pursuant to Section 11-1-12 of the said Zoning Code and such was docketed as Case No. 71-13. 7. On or about July 15, 1971, the said appeal came on for public hearing and after discussion was tabled until July 22, 1971, at which time the Board of Adjustment granted a variance from the provisions of said Zoning Code which allowed Plaintiffs to build a dW~lling structure on Lot M and the West 20 Feet of Lot N of said Block 50, but imposed restrictions on such authority to build .- '-" ''''\ ./ whlch (a) 11mlted the use of such bul1dlng o~~,~ _,,,,,,,'It.tl ~'\"t ~ ~,~t# f."0!1.1.../ 0', q. 'J.'(f(' " ~. ~!' / to that of a slngle 1;1;) faml1y dwelllng and (b) made the provlslon that four off-street parklng spaces be provlded for both the proposed structure and that of the exlstlng adjacent structure. 8. The act of 11mltlng the rlght to bul1d and occupy only a slngle faml1y dwelllng and the lmposltlon of the provlslonfor four off-street parklng spaces as a condltlon to the varlance were 111egal, erroneous, dlscrlmlnatory and constltuted a palpable abuse of dlscretlon by the Board of Adjllstment whlch prejudlced Plalntlffs ln the reasonable use of thelr land. 9. The Board of Adjustment made the necessary flndlngs of fact upon whlch the rellef sought by Plalntlffs should have been granted as a matter of law. 10. There exlsts no other plaln, speedy or adequate remedy for p1alntlffs under the clrcumstances other than provlded by Rule 106 of the Colorado Rules of Clvl1 Procedure. WHEREFORE, P1alntlffs pray for an order (1) requlrlng the return to the Court of all proceedlngs of sald Board of Adjustment on sald appeal wlth certlfled or sworn coples of all papers, proofs and testlmony before or acted upon by the sald Board and (2) dlrectlng sald Board of Adjustment to show cause why the declslon should not be modlfled to grant to the Plalntlffs the rellef sought on such appeal wlthout the 1lmltatlon to constructlon of a slngle family dwelllng and wltho'lt lmposlng off-street parklng restrlctlons, and for (3) such other and further rellef as to the COllrt appears proper. jl-y~!..u-<-- /ut~\._ Bruce Klstler Attorney for Plalntlffs P.O. Box 3107 Aspen, Colorado 81611 Telephones 925-7139 Plalntlffs' address: 765 south Alton Way Denver, Colorado - -. -' " ./ AND STAm OF COLUH!\;JO ~iY;/ ,Ad,:'" N, '-1997 , ~\~<A- OJ -,~ ~ 0>" -~~~ <;,' J1.V ; ~ ql.}.J-( / ,'I" ~.f .\,,8 f/i' I . H IN THE DL>THICT C(1'!IlT llJ AND FOR TIm CO'JNTY Of' PITKIN w. H, LOUGHRAN and CAROLYN LO:JGHHAN,) ) Plaintiffs,) ) v. ) ) BOAED OF ADJU3TI'iZ:,T, CITY OF AS]"::':N, ) ) Defendant. ) A F F I D A V I T Bruce Kistler, being first duly sworn upon his oath deposes and says: 1. He is the attorney for Plaintiffs in the above captioned matter and so acted in connection with and was personally present at their appeal to the Board of Adjustment as referred to in their Complaint. 2. The facts set forth in Plaintiffs' Complaint are, to his best knowledge and belief true and correct. J. The Eoard of Adj:lstcent in refusing to grant to PlaintJffs their requested relief abused their discretion and imposed illegal restrictions on the use of the property of Plaintiffs in th~t they restricted the use of such property to a use not limited by the Zoning Code, namely a single family dwelling and imposed excessive off-street parkins requirements as a condition of such variance. Dated September 20, 1971. I. /~_1-Uv~,~ / / ,I' /Gd-e~ 13r'.-1ce Ki.stler SJbscribed and sworn to before me the 20th day of September, 1971, b;y B~r.cs KI3TL~~R. h,~~. C' , ;\C;f:t.~ Lot- J .rlblic f i-iy commission expires: 0ft<l Re r<LOliC Hearing on Case # 71-1; July 15, 1971 Mrs.Eleanor Hubbard,Chairmsn The City of Aspen Board of Adjustment City of Aspen Box V Aspen,Colorado 81611 r.tr dear lIrs.Hubbard. In the matter of the petition to the City of Aspen Board of Adjustment requesting a varianoe on the zoning or use of Lots N, N,O and West 20' of Lot P in Block 50,Aspen, I object to such var- iance being granted. I have written to lIr.John Bemti.nghoff, another property owner in Block 50, authorizing him to speak in OW behalf at the public hearing. Mr.and Mrs.Bruce Kistler have entered this petition in the name of W.H.Lougbran from whom they lease this property. The Kistlers plan to cram a two-fsmi.ly dwelling onto 5000 square teet of land 1ibich is a substandard. site tor even a one-tsmi.ly dwelling under the estab- lished zoning for Block 50. As the owner of the adjoining property - Lots Q,R,S and the East 10' of Lot P - containing a one-fsml.ly dwelling on 10,000 square feet of land, I strongly object to such variance being granted and sin- cerely hope that your Board will see f'i t to deny the petition. Such a use as the Kistlers propose would seriously alter the character of Block 50 and would reduce the value of the surrounding property in the minds and feelings of present residents of the area. It would also start a subtle deterioration of the relatively quiet ,stable and mainly residential area which currently surrounds the school. Thank you tor your consideration in this matter. MRS, WARREN E, WILSON 559 Tyner Way General Delivery Incline Village, Nev. 89450 Sincerely, , \..o.:...~ ~ .....uc:J2.. ~ &.,........ July h, 1()71 CiC:j of Aspen Board of Adjustments Ci ty Hall Aspen, Colorado Dear Sirs: In regard to the request for a variance from the present status of the lots H, N, 0, and part of P, Block 50, I wish to go on record against the granting of this variance. '~aisie Pecjak 232 ',ves t Bleeker Aspen, Colorado Respectfully yours, /iCUA-Q tf'r .~ 'C@~~ 71 jV 17 I~, /97/ ~ll1~j ?.l~0 ~o.hJ f!. /v...vT/m <-LAJ..- SOMd 0 rill/ u-if n<.R.-tt t tLr, -t~. I j 1!Ilo-J~ '. ~;"~~~;/~~~ 1:= /Te~.Y /fdJuCVl(e-e) U<,~ ~7 loW ~?J i d 1,-'/ tV, J~JI,/~ ~~ -(fLU a.;.y.Yvj'~ ~1'>V ~ --10 mA, Ik~ ~dlvu .~:i, (Lu ~ J~<-nu /. / ~<J trY'-'- 9 C~{~ J) tlu-- /~~e-J v~ 1~f- 'j,dL '&~1uA,,,,, '" -cL ~. 0 W --' ,,:,j [/)L:if ' \ ;/. /~~; ,.'.~'~Y' ,/ ,;2/7 W ~A/ July, 12, 1971 City of Aspen Board of Adjustments City Hall Aspen, Colorado Dear Sirs: In regard to the request for a variance from the present status of the lots M, N, 0, and part of P, Block 50, I wish to go on record against the granting of this variance. Respectfully yours, ~~, ROBERT S. CALLENDER ~-:>.8. BOA JVO-' . NEWPvld lJE-ACn. \.du...U'ORNIA Y~OO.1 .July I?, 1 '71 lIre: ~leo,nor Y1ubbr.rd, Chrmn. The c=- t:" 0= A~~~J8n Bo:-:ord of Adju;:;tment Ci ty Edl A~~0n, ColorEdo ~1611 I ~':i~h to ~ldv.l~)8 ~rou thet I :::-1 ~:.goi ru::;t:'{rt!ltin<r tho vorirYlce rerue:::lted in C-_ ~,'; - o. 71-13. 1l1he [:.-:-Y01ic::~nt beinG -:'-[. ~.Lou~7hr[:n. 3inc~'r0~__Y f20~.xI~ Robert S. Ce.llender Board of Adjustment City of Aspen, Colorado " '., I (we) concur with and approve of the Petition for a Zoning Variance of W. H, Loughran on Lots M, N, 0 and the West 20 feet of Lot P, Block 50, City of Aspen, County of Pitkin, Colo,rado. , Date: , ) I !'.... _-J(-' \ ' . I , Y------ . '\ ~... I , / " , .'~ / ' o o Board of Adjustment City of Aspen, Colorado I (we) concur with and approve of the Petition for a Zoning Variance ofW. H. Loughran on LotsM, N, o and the West 20 feet of LotP, Block 50, City of Aspen, Pitkin County, Colorado. (l' iT.. xz .l! mpd.~ Date: ~.-I '-" "#,, . . Board of Adjustment City of Aspen, Colorado I (we) ,concur with and approve of the Petition for a Zoning Variance of W. H, Loughran on Lots M, N, 0 and th", West 20 feet of Lot P, Block 50, City of Aspen, Pitkin County, Colorado. '. ~ ~_/ ."...M. ~ - ...4~ n ' Date: . - - _.............._._.._~..~.......~._...._. ...... - ~F" " /J Ci2 ~~ '7~ , .... 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