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HomeMy WebLinkAboutminutes.boa.19850314 C I T Y OF A S P E N BOARD OF ADJUSTMENT Thursday, March 14, 1985 City Council Chambers 4:00 p.m. A ENDA (revised on March 7, 1985) I. Case #85-2/Chart House, continued hearing II. Case #85-3/Gracey ' s-Terese David Estate III. Adjournment * Next meeting scheduled for March 28, 1985 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14, 1985 Vice Chairperson Francis Whitaker called the meeting to order at 4 : 05 p.m. with members Charlie Paterson, Josephine Dann, Rick Head, and Anne Austin present. CONTINUED HEARING CASE #85-2/CHART HOUSE Whitaker introduced and read sections from a memo from the city attorney. " I would like to make some comments about the variance granting procedures it gave me some concern while attending your last meeting. I think our processes have become distorted for the benefit of applicants and feel compelled to state the basic premises identified in our code. . . The variance is granted to render justice in unique or individual cases of practical difficulties and unnecessary hardships resulting from the literal application of the zoning ordinance. . . Without exception the courts have held that proof of unneces- sary hardship or practical difficulties must be present before the variance may be granted. . . Only after determinations made that practical difficulties or unnecessary hardships exist, you must determine before you grant a variance that in addition those four paragraphs. . . " He researched cases. He cited a Pennsylvania case in 1965 which is pertinent : "A variance is designed as an escape hatch from literal terms of an ordinance which when strictly applied would deny a property owner all beneficial use of his land and this would amount to confiscation. " Whitaker cited a Connecticut case in 1973 : "So they, the regulatory measures do not operate in arbitrary, unreasonable or confiscatory manner or in any manner which would be unconstitutional . " Whitaker opened the public hearing . He introduced a former member of the Board of Adjustment, Fred Smith, who has asked to appear and present his case. Fred Smith, an adjacent property owner, represented the owners of 1 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14. 1985 Aztec Condominiums located across the street. To his knowledge he did not receive any notification of this hearing. The clerk noted the association was notified at 131 East Durant , the address presented in the application. Smith replied that address is incorrect. The proper address is : Aztec Condominium Association c/o Fred Smith P. O. Box 1388 Aspen, Colorado 81612 Smith recalled a previous variance awarded to the Chart House in 1973. The case was #73-6. The Chart House had requested not to provide sidewalks when the new modern front addition was com- pleted. The primary concern of the Board at that time had been the provision for proper trash and utility service area. He read the motion from the 1973 meeting : "Lavagnino moved to grant the variance due to the practical difficulties of the location of the building on the site. Conditions for granting the approval are one, to construct a service area on the property with the approval of the city engineer , and, that the addition not encroach on city property. " First, the addition does encroach on city property. The service area was never constructed. The proposed service area the Chart House agreed to construct is represented on a site plan. (Smith presented two maps to the Board. ) He indicated on the map the addition the Chart House applied for and built. The steps extend on the city property. Bill Drueding, building department , explained steps can encroach on city property 30 inches. Smith presented photographs of the current situation. One photograph documented the location of the dumpster. There is an illegally installed shed. The shed probably does not meet the setback requirements. An out building in the front yard is illegal. Smith clarified the Chart house received approval for the 1973 addition with two requirements: the addition not encroach and the service trash area be built. The Chart House completed the addition without meeting the requirements. The Chart House originally requested an exemption from sidewalks. He could not recall if there had been a parking requirement in 1973. The minutes of 1973 did not reflect parking. The Chart House had requested the exemption from the sidewalks because sidewalks would destroy cottonwoods . Smith had originally suggested shortly after the 1973 hearing the Chart House construct a temporary sidewalk with a log in the street. That area is not 2 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14, 1985 shovelled or maintained. Angle parking not parallel parking solves the problem of walking up the hill. Many buses use that street. Whitaker requested convincing proof of a unnecessary hardship. Whitaker clarified his parking suggestion applied to the piece of property not indicated ors the site plan. Pat Trott, architect for the applicant, argued Whitaker ° s solution to the parking problem is unreasonable. she presented a site plan with sketches to prove her client has a hardship for situating the parking as proposed by Whitaker . Her client would have to remove five aspen- trees and three fir trees for the spaces. The area is densely planted. A condominium is located adjacent to this proposed area. Several balconies at the condominium front the area. That complex is already surrounded on three sides of the condominium. The owners of those condominiums whose units look over the landscaped area are partial to that area. They do not want their view impacted by parking. She presented a photograph of the existing trees. Head asked if the applicant has any letters of support from the condominium owners. Trott replied no. But, she could retrieve an owner of the condominium immediately. Whitaker noted second-hand testimony is not acceptable. Paterson asked are there letters of objection. Whitaker answered there are no letters of objection or support. Trott continued. Her client is not adding extra dining space. Her client is not trying to generate more income with extra dining spaces . Her client is remodeling outdated bathrooms, increasing office space, and adding employee space. Her client wants to concentrate his money on the interior remodeling. Whitaker noted trees can be transplanted. Second, the applicant enjoys 330 feet of street frontage. Two head-on parking spaces require 16 feet. The applicant does not have to push the stalls in 18 feet. The 18 foot requirement applies to parallel parking. Head-on space is considerably shorter. Trott interjected the city requires 18 feet. Whitaker replied the Board can grant a variance on that requirement. Drueding noted the requirement is 8-1/2x18 feet. He agreed the Board can grant a variance to reduce that requirement. Whitaker expressed the public concerns. The Chart House already received a variance and has not provided any public amenity. In the area there is no place for people to walk except in the street. That is extremely hazardous. Sidewalks were never constructed, even where there were no trees. The guidelines state that the Board rarely finds practical difficulties or unnecessary hardships when the applicant appeal is a matter of 3 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14, 1985 aesthetics or design or economics or if a reasonable legal alternative is available. He claimed there is a legal reasonable alternative. Trott disagreed. The alternative is not reasonable. Locating parking in the view of the condominium owners is unreason- able. Locating parking as proposed by Whitaker demolishes the Chart House ' s only view. Paterson recalled at the last meeting this situation was settled. The Board had tabled to allow the attorney to explore other parking arrangements, for example, renting space elsewhere. At the last meeting all the members except Whitaker agreed the parking solution was impractical. He wanted a response from the attorney, is there a plan. Whitaker argued it was reasonable to allow Smith to present his case since he was not notified. Head echoed Paterson° s sentiments. The Board agreed Trott did not have to present the adjacent condominium owners. Smith conceded the Chart House is the most delightful bar to sit at and view the private courtyard. But, the Chart House has not acted in good faith. Trash is located on the street. Plastic is on the windows. Austin asked can the approval be subject to a condition to clean the area. Can the previous condition be incorporated. Can that condition be enforced? Paterson commented on dumpsters. Very often the trash collectors move the dumpsters on to the street . The owners are not at fault. Smith argued the property owner is responsible for maintaining a shoveled, clean space on the property for the dumpster. Austin asked can the Board condition an approval : trade an exemption from the parking requirement for sidewalks and service area . Paul Taddune, city attorney, explained the Board should not be concerned about land use planning matters. The Board should be concerned about adjudicating the issue not about negotiating the city' s land use requirements. Either a hardship or practical difficulty is presented or not. Smith informed Taddune that as part of the Chart Houses ' 1973 approved variance the Chart House was required to provide an enclosed trash area. The Chart House has not implemented those conditions. Taddune clarified the Board can grant a variance based on conditions. He is concerned the Board may be operating as a planning and zoning board with discretion. Head clarified the Board directed the city attorney, the city manager, or the planning commission to create a benefit package for the city in this particular case. Paterson argued health, safety, and welfare of the public come under the Board ' s jurisdiction. These conditions protect the public. A service area on the property is necessary. Get 4 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14, 1985 the trash off the street. Taddune said many times in the past the applicant has agreed to a condition that is in the public ' s best interest to induce a favorable decision. Head asked did the city and the applicant agree to anything. Trott replied she had talked to Uhlfelder. She involved a contractor on the parking design and on cost. She also talked to the owners of the Chart House who agreed to building the parking stalls or to. financing a substitute. She did not talk specifics, e. g, sidewalks. Uhlfelder had reported to her that there were precedents on this issue. Head understood the postponement was to allow the city and the applicant to explore and to present a deal. Mann expanded the purpose of the delay was to investigate the alternatives. The applicant was not directed to return with an agreement. Elyse Elliot, engineering department, reviewed the application. No definite parking proposal has been submitted. Two on-street parking spaces are being exchanged for two on-site spaces. That is superfluous. Whitaker corrected his proposal , head-on not parallel, provides two on-site spaces with the loss of only one on-street space. Paterson asked Uhlfelder if he had reached any solution for relocating parking. Uhlfelder repeated the Board is capable of making a deal . The basis for that determination was the section of the code he had read last week. This action has been applied to two cases in the past. Paterson asked did the solution work, did the applicant actually pay for the parking spaces. Taddune clarified the Denver-Buick case was a subdivision exaction case, a landmark land use case. That case is different from the city ` s case Whitaker has referred to, Rubey Park. In the later case the city extracted payments for parking spaces without providing the parking spaces. Whitaker suggested the applicant agree to install a sidewalk without disturbing the trees . The construction of sidewalks would compensate the public interest greatly. Walking in the area of the Chart House is dangerous. This town is suppose to be pedestrian-oriented. Taddune discouraged the Board encouraging the applicant to pay for two parking spaces, wherever, in return for granting a variance. That is not the perogative of the Board of Adjustment. However, talking about how to best accomplish a particular zoning result for a particular piece property is acceptable. If the applicant wants to induce the Board by agreeing to fit the request to install sidewalks within the context of the use of his property, the Board is then within 5 RECORD OF PROCEEDINCQS Regular Meeting Board of Adjustment March 14, 1985 its discretionary powers. Avoid requesting future parking spaces or contributing cash. Bunn addressed unnecessary hardships and practical difficulties. She emphasized the accumulation of several small difficulties. The prominent hardship is the distance of the property line from the street. Installing two on-site parking spaces at the expense of losing one on-street space is unreasonable. She would favor the variance. Austin argued removing the trees is also unreason- able. Taddune interjected the applicant will have to apply for a tree permit for the removal of the trees. He discouraged the Board waiving the tree permit. Smith presented another location for the parking stalls. Paterson said that location fronts large windows. The Commission discussed this suggestion. Whitaker closed the public hearing. Paterson proposed a motion : to grant the variance based on practical difficulties and unnecessary hardship. Austin asked if the motion should include a condition on the service area or the sidewalks. The motion is withdrawn for further discussion. Head was not ready to vote on the variance without further information. Something needs to be accomplished with the sidewalks and the service area. He would then agree to exempt the Chart House from the two parking spaces. He cannot grant the variance also because the applicant has not presented a hardship. Austin said the applicant should approach the Board with a plan for the service area and the sidewalks. A1ann suggested the Board make a recommendation that the applicant address these two issues, not a condition. The area could change with the construction of a new hotel. It will be obvious to the Chart House at that time not to clutter the street with a dumpster. Paterson agreed Dean Street will be an important thoroughfare from the hotel. Austin argued the applicant does not have to comply with a recommendation. Whitaker favored a condition not a recommendation. The failure to enforce the previous conditions is the enforcing agency' s respon- sibility, not the Board ' s fault. Austin repeated the applicant should return with a plan for the sidewalks and the dumpster before granting the variance. Trott requested assistance from the Board on the design. The Board discussed the location of five foot sidewalks on Dean and Monarch, e.g. , sidewalks can be built off the property near the curb. Locate the dumpster off the city property, tightly cover the dumpster according to code, and screen the dumpster. Trott noted 6 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14. 1985 she will agree to the condition if the Board will define the location of the five foot sidewalk and the dumpster. Whitaker directed the applicant to return with a proposal. Indicate on the plan or elevation the proposal for the dumpster ' s location. Smith repeated the applicant should locate the dumpster on the property according to what works for the applicant. Whitaker noted the dumpster has to be on casters or positioned for easy access by the garbage truck. Smith cited the Crystal Palace as a good example. Trott asked can the Board vote on the request today with the present sketch on the plan, with the proposed location of a screened dumpster, and with an agreement to construct the five foot sidewalk. She will submit a final drawing later. She preferred not to postpone the vote. Motion: Charlie Paterson moved to grant the variance conditioned upon replacing the dumpster on the property, screening the dumpster, and installing a five foot sidewalk off the curb along Dean Street and Monarch. Seconded by Anne Austin. Discussion. Whitaker asked if a sidewalk should only be constructed on Dean. Paterson answered yes. Colette Penne. planning office, noted the lodge improvement district is installing sidewalks in the area. CCLC is working on a plan for sidewalks throughout that lodging area. Paterson asked is this request premature. Penne replied may be. She does not know how this request fits in with the improvement districts plan. T,lhitaker noted a defined, constructed sidewalk helps avoid encroachments, helps identify the property line , and helps define the public right-of-way. Drueding requested a time for complying with the conditions. Amendment to the Motion: Paterson amended his motion to read: "To grant the variance conditioned upon replacing the dumpster on the property, screening the dumpster , and installing a five foot sidewalk off the curb along Dean Street and Monarch, all prior to the issuance of the certi- ficate of occupancy. " Seconded by Anne Austin. Discussion. Penne commented the Chart House is landscaped along 7 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14, 1985 Pionarch. Beautiful pine trees are growing there. Whitaker encouraged the applicant to meander the sidewalk around the trees. Whitaker called for a vote : Austin aye Head aye Whitaker aye Mann aye Paterson aye All in favor ; motion carried. CASE#85-3/GRACEY' S-TERESE DAVID ESTATE Whitaker opened the public hearing. Whitaker read the request for the variance: " Section 24 -13 . 4 (x) : expansion of nonconforming use . Property is located in "0, " office zoning district. Use as a commercial retail store according to applicant is a pre- existing nonconforming use. Applicant appears to be requesting expansion of a nonconforming use of an undetermined amount. " Gideon Kaufman, counsel for the applicant, presented a notarized affidavit for posting the public notice and a polaroid shot. He explained Gracey' s is situated in the "0" office zone. In any zone district there is a permitted use, an absolute right. Second is the conditional use, a use granted by the planning and zoning commission. Third is a nonconforming use, a use not allowed in the zone district. Gracey ' s is a nonconforming use . The reason for designating Gracey' s a nonconforming use contributes to the hardship. That designation was a mistake. When the area around Gracey ' s on Plain Street was rezoned, every existing use was made a conditional use, the furniture shop, the book store, the floral shop, except retail clothing. The retail clothing store is the oldest use in the area. Terese David opened the shop in 1952 . The "0" office zone was established in 1975. The oldest use in the zone district was deleted in the rezoning process without any justification. The oldest use is a nonconforming use by virtue of the 1975 rezoning ordinance. The oldest use is also affected by the overbearing language of Section 24-13 . 4 (a) . The language does not permit simple, small changes. He quoted: 8 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14. 1985 "No existing structure devoted to use not permitted by this code in the district in which it is located shall be enlarged, extended, constructed. . . reconstructed, moved or structurally altered. . . " The language prevents any modification to the building. For example, even if windows did not meet current health and safety requirements, the windows could not be altered to meet fire egress requirements. That conflicts with the intent section of the code. He quoted the intent of nonconforming uses: "Further the intent of this article that nonconformities shall not be enlarged upon, expanded, or extended. . . " His client is caught between a mistake made in terms of conditional uses and overbearing code language. The HPC approves the proposal. The second hardship is the building. Two individual buildings are each historically designated. Connecting the two buildings with a four foot walkway will help the integrity of the buildings. Many people who shop the store are older . The walkway will provide a better method for walking between the two buildings. Finally, the neighbors unanimously support the applicant. Kaufman reported Reverend Lewis and the Community Church unconditionally supported the application. Kaufman presented a letter of support from the Sardy' s. Other neighbors are present today to voice their support. Kaufman emphasized the hardship is not created by the applicant. The ambiguity of the code, the oversight of City Council , the historic nature of the building all contribute to the hardship. Kaufman read the four criteria for granting a variance. This application meets all the criteria: "Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the zoning lace you can modify them so that the spirit of the ordinance will be observed and public safety and welfare secured and substantial justice down. " There is no better situation than Gracey ' s that meets all those criteria. Kaufman read into the record the letter from Sardy ' s to the Board: "G7e have lived at 128 East iiain Street across the street 9 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14. 1985 from the Terese David property for over forty years. In all these many years that property has never looked as good and well kept as it has since having been taken over by Gracey' s. Mor has there been any kind of problem in the way they have conducted a business and maintained the premise, We are happy that they are planning to continue to improve through this variance. . . . definitely need the applicant ' s expertise. " Drueding disagreed with one of Kaufman ' s comments ; changing windows. There is a 10% maintenance rule. Altering structurally a nonconforming building which increases the nonconformity is not allowed. Kaufman emphasized his client is not adding new space to extend the sale of clothes. His client wants a covered walkway between the two spaces. The sale of clothes, not the walkway is noncon- forming. Head asked if the use were changed would the walkway construction be permitted. Kaufman replied if there were a permitted use or a granted conditional use his client would be able to construct the walkway without a variance. Bill Lipsey, architect for the applicant, detailed the design. The height of the covered walkway will be the minimal height necessary to perform the function. The drawing indicates the walkway is setback and is situated between the shadows of the two buildings. The structure is single story and below the eaves of the existing roof. The structure will be sided with existing white clapboard siding. A temporary fence exists now. That fence probably impacts the front of the site more than the proposed design which will be setback in the shadows. The temporary fence will be removed. Penne noted because the buildings are individually, historically designated, Gracey ' s can expand even sale area. Gracey ' s is exempt from GMP. Gracey ' s could also change the use of the building without being subject to a change in use exemption. The reason for the variance is the violation of the setback between the two buildings. Drueding corrected Penne. Gracey' s is a retail shop in "0" office, and retail shop is a nonconforming use in this zone. The three lots are contiguous and under single ownership. Gracey ' s is a nonconforming use not a nonconforming structure. Penne indicated a grandfather clause may exist for Gracey ' s for the continued use of retail sales out of that building. There is a practical difficulty. If Gracey ' s operates both stores they need the connection, for employees, for the prevention of shoplifting, etc. Whitaker asked if a recommendation from HPC 10 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14. 1985 is required before the Board votes. Drueding replied no. Penne as a representative for HPC assured the Board she would authorize the connection. Penne argued if the retail clothing use is not allowed to continue the building is jeopardized. If the building were sold, the buyer would probably use the space commercially. Permitting the clothing use for both buildings is good and insures that the buildings will remain in their present configu- ration. Perry Harvey, chairman of the Aspen Planning and Zoning Commission, commented one goal of the Commission is to eliminate nonconforming uses wherever possible. The best example is the L-3 lodge zone. This action enabled the Applejack and the Nugget to upgrade and to be more viable operations. The city created the hardship. When "0" office zone was enacted, all the existing uses were listed as conditional uses in order to eliminate nonconformity. May be in the planning there was an agreement that retail stores should not be a conditional use. Perhaps, the city wanted to keep retail clothing businesses in the commercial core, an intelligent planning decision. But, this action burdened this one clothing operation with a nonconformity. Perhaps in the future the P&Z can rectify this nonconformity. The appropriateness of retail clothing stores on the Main Street corridor warrants further reviewed. This applicant is a recipient of a hardship over and above all the other stores. The goal was to create conditional uses to eliminate nonconformity. Consider the city ' s imposition on the applicant. Polly Whitcomb, representative of the Thrift Shop, commented Gracey' s and the Thrift Shop have a reciprocal relationship. Gracey ' s donates its unsold clothing to the Thrift Shop. The same clientele shop at both stores. She supported the variance. Whitaker closed the public hearing. Austin agreed that this application meets all the guidelines. The variance is minimal . Head agreed. Mann noted Harvey ' s clarification is very important and supportive. Granting the variance is in the spirit of zoning ordinance ' s attempts. Paterson said granting the variance is in the best interest of the public. Whitaker said a major concern is the preservation of the building. Motion- Anne Austin moved to approve the variance requested by Gracey ' s; seconded by Rick Head. Whitaker called for a roll call vote: Austin aye 11 RECORD OF PROCEEDINGS Regular Meeting Board of Adjustment March 14, 1985 Head aye Whitaker aye Diann aye Paterson aye All in favor ; motion carried. Whitaker asked for the Board ' s approval to compose a letter to the City Council addressing signs and stores with no street frontage. The Board directed Whitaker to write the letter. Rick dead moved to adjourn the meeting at 5 : 20 p.m. ; seconded by Charlie Paterson. All in favor; motion carried. Barbara Norris, Deputy City Clerk 12