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HomeMy WebLinkAboutminutes.boa.19880505 CITY OF ASPEN BOARD OF ADJUSTMENTS MAY 5, 1988 4:00 PM SECOND FLOOR COUNCIL CHAMBERS A G E N D A I. CALL MEETING TO ORDER Roll Call Minutes of April 14, 1988 II. CASE #88-5 Tom and Barbara Stanford III. ADJOURN RECORD OF PROCEEDINGS BOARD OF ADJUSTMENTS MAY 5, 1988 Chairman Remo Lavagnino called the meeting to order at 4:00 pm. Answering roll call were Remo Lavagnino, Anne Austin, Rick Head, Charlie Paterson, Francis Whitaker and Ron Erickson. Josephine Mann was excused . MINUTES OF APRIL 14, 1988 After corrections, Charlie Paterson made a motion to approve the minutes of April 14, 1988. Ron Erickson seconded the motion with all in favor . CASE #88-5 TON AND BARBARA STANFORD Variance requested is attached in records . Wayne Ethridge , representing the Stanfords: I would like to state for the record the property has been posted. This is an extremely complex case. There is some neighborhood concern regarding the property. The Stanfords filed for a building permit in 1986 and started construction through their contractor who is currently being sued by the Stanfords . The Stanfords are of the opinion that a large part of their problem is due to the lack of performance by the contractor. The Stanfords had previously applied for a variance through Pitkin County. There were 3 items--a front setback , a height and a FAR problem . The variance was denied by the County . Subsequent to that denial the property was annexed into the City and the R-15b zoning category was applied . As a result of annexation into the City, the property does not now have a variance problem as far as FAR. It is well under the County. Under The City's R-15b category it does not have a front setback problem. I know that there was concern expressed previously because of FAR. My point is that under the R-15b, the only problem now is the height . As a result of the annexation, unfortunately the height has gotten from a technical standpoint we are dealing with 25 feet to the midpoint of the ridge rather than 28 feet in the County. The house construction was started under County standards. The structural system was designed based on a 28 ft standard. The mere fact of the annexation now creates an additional 3 ft. My argument to you is that because of the way that this has evolved BAM5 .5 .88 we really should be talking about a County standard in terms of appropriate variance . You have no choice legally but to give us a variance that is in the neighborhood of 5 ft . Wayne then showed photographs to the Board members indicating the current status of the building. This has been dropped 6 & 1/2 ft in the front. This rear section was not dropped. The section in front has already been dropped 6 & 1/2 ft . I am not here to point any fingers at the Building Department There has been a lot of confusion about the site grading--what was and was not appropriate. At one point the Building Department indicated that a lowering of the roof would bring it into compliance . That was done at considerable expense to the applicant. Subsequent investigations by the Building Department determined that there still was a height variance required and a stop work order is still on the property. Given the background on this, the Building Department I think , is part of the problem. The contractor is part of the problem. I don ' t believe the Stanfords at this point have created the problem for themselves. I do think the Building Department has been very co-operative with us. It is a matter of information coming in perhaps not in the sequence that it should have. The applicants have already been under a hardship to lower the roof . They are willing to lower it another 2 & 1/2 ft. We are here to try to solve the problem in a practical way. We have met once with the neighbors . We can ' t solve all of the problems that the neighbors have . We can lower the roof . We have lowered it as far as we physically can lower it without destroying the structural integrity of the residence . That is the minimum variance that you can grant is what we need to do to make the house work . Based on some meetings with the neighbors, we have done a couple of things . The Doremus ' s expressed some concern about the proximity of the residence . Even though it meets the setback requirements , the Stanfords have agreed to frost the lower portion of this window which blocks the eye level view out these back windows. We have also agreed, because the driveway wasn' t graded properly, to grade the lower 2 ft in this area. That reduces the grade coming in here and effectively blocks the headlights turning into the driveway on the Doremus' s property. There is an additional landscaping program that is proposed as mitigation which is a voluntary process of about $10 ,000.00 which will go a long way to mitigate the impact of the home. I am not going to tell you this is the best designed home in the 2 BAM5 .5 .88 neighborhood. It is also not the worst if you look around . My goal is to get this done outside the courts. There is a separate suit going on with the contractors. We simply want to get the house out of it ' s current status. It is an eyesore in the neighborhood. The Stanfords are certainly handicapped. They can't occupy the residence . The landscaping plan that is proposed will mitigate a number of the concerns. The Aspen that are on the site are diseased and need to be replaced with Aspen brought in from outside the area. Spruce trees are proposed along the base and along the driveway area along with the supplemental planting of the Aspens. This is about a $10 ,000 . 00 item. It is not required as part of the variance but is being suggested as mitigation for the concerns. I know that the neighborhood still has some concerns. Frankly we can' t solve all of those problems but we are willing to work with the neighborhood. Tom can discuss his willingness to do what is within reason and you may want to place some conditions on the variance. Wayne then presented and explained the overlay landscape plan to the Board. He told the Board there would be 10 Spruce of 10 to 12 ft minimum height planted along with the Aspens in an effort to work with the neighborhood. We are willing to work with the Doremus ' s to find the exact location for the landscaping proposed to help solve the problem that they have with the view in the back . We know that financial hardship is not an issue as far as the Board is concerned . We are not attempting to make it an issue. Our position is that the variance is required because of a number of circumstances . We are trying to solve the problem as realistically as we can with your help. Remo: What portion of the roof are you requesting a variance for? Wayne : It is just this front section. This one section is a foot and a half higher--this portion right here. The rest of the house is in compliance. The variance we are requesting is based on figures by the Building Department not any figures done by the applicant but based on what the Building Department determined was natural grade. We can ' t go any lower than this and meet the building code requirements for side walls. We have gotten it down as far as we can go. That will be a total of 9 ft from the time it was 3 BAM5 .5 .88 approved from the Building Department until it is finally approved and lowered another 2 & 1/2 ft . Francis: You are confusing me and maybe other people by referring to the County's height standards. Then you say 3 ft must be added to each figure to equal the R-15b. Does that make the front edge 7 & 1/2 ft? Wayne :- What_ we are is 4 & 1/2 ft higher than the County standards. We are going to lower that another 2 & 1/2 ft so we need to add 3 ft to it which gives us a 5 ft height variance . That is a complex formula. The reason I use that is because it started under the County. The annexation has created another 3 ft . We are currently 4 & 1/2 ft in this portion which has already been lowered in the County or 7 & 1/2 ft in the City. We are going to lower the roof 2 & 1/2 ft which means we still need a variance of 5 ft to meet the 25 ft standard established by the City R-15b zone district . Francis: What about the other portions? Are you referring to all of the roof slope? Wayne: The entire section that has been lowered is indicated by the photographs. We are 4 & 1/2 ft at this point. We are 2 & 1/2 ft at this point and 1/2 ft at this point. And add 3 ft to that, it would be 7 .5, 5 .5 , 3 .5 . Remo: So that the edge is 7 .5 . Wayne: But when we lower it which we are proposing to do, then we are down to 2 & 1/2 ft, then we need a 5 ft variance . Remo: Did you ever meet County requirements for height? Wayne: To the best of our knowledge, no. The applicants thought they had . They thought the contractor had met those requirements. Remo: Would lowering 2 & 1/2 ft more meet County requirements? Wayne: No. Remo: So you still have not met County requirements of 28 ft . Wayne: Right. Remo: And you are under the City code now which is 25 ft . How 4 BAM5 .5 .88 far above were you on the County code? Wayne: 2 & 1/2 feet on the front edge would put us in compliance here and we would be lower than the County standards here. Remo: So 2 & 1/2 would be your minimum variance then under the County code by lowering 2 & 1/2 ft. Francis: I think you are still confusing it by talking about the County. This is the City. We have to go by the City code. Wayne : We agree but it is the history of the structure being designed in the County that is the problem. Rick : When you say you structurally can't lower the roof any more--what if you just took the rafters off and started from the first floor on up again? If the roof were taken off, the rafters were taken off, couldn't you just build again? Is that not a solution to the problem? Wayne: It is possible but , what you wind up with is a structure that may or may not meet the joint City or County Building Department standards for roof height. If you take another 2 & 1/2 ft , I don't believe we could meet the City Standards of the code . Ron: What is the measurement from the floor to the ridge beam? Wayne: I don' t have that answer right now. The problem is not the ridge. The problem exists on the side. Right now this is 10 ft measured at the base of the eave . Remo : If you had a flat roof straight across you would still need--we need elevations. We can't do it from a model. We need to be able to determine whether you have enough height from the deck to the roof to meet City code. Wayne: It was designed under the County standard. Those main beams coming out supporting the structure--If you change this from a peak roof to a flat roof you have totally changed the structural concept and because of the size of the beams necessary to carry this across, the snowloads and everything else if we could even meet the 7 ft 6 inch. It was designed and built by the contractor who is currently in court with the Stanfords. Tom Stanford: We are trying very hard to make this thing fit with all the regulations that are involved and to make the corrections which the neighbors asked for. As far as the changes made in the house , the X contractor went to the Building 5 BAM5 .5 .88 Department and got verbal approvement before that was done. So each time we figured everything was done correctly. We feel victimized by this thing and by the confusion of what is going on . But we have agreed to the plantings and want to get it corrected. There is a maximum point that we can go right now with this roof . I don't think any of the neighbors would like to see a flat roof in that neighborhood . Francis : If you lowered the roof pitch to this long addition would it then comply? Wayne: That is currently the way it is at this point. This is the old plan. When the roof was lowered the pitch was also lowered as you can see by these photographs . The section that has been lowered is essentially the same pitch as this currently. This peak is at the same design now. Remo: It is really imposing from the road as far as height goes . It sticks out a lot more than the surrounding neighborhood does and I don't know whether that is because of the terrain and I don't know whether the 2 & 1/2 ft is going to change it much more than that look now. PUBLIC HEARING Nick McGrath, Attorney representing homeowners in the area : I would like to start with a couple of photographs. He showed Board members photographs of the homes in the neighborhood. You will note with all of these homes, since compatibility with the neighborhood is an issue, all of these houses sit in the trees not above the treetops. This is to show the comparison between the homes in the neighborhood which sit in the trees as opposed to the imposing presence of the unfinished Stanford house looming above the rest. All of those houses as you go up McSkimming are tucked in the trees themselves. There is not one built out . As you go up to the Stanford house, you will find pilings on each corner so that the house is jacked up to be above the tree line. This model is deceptive . These pilings as presented on the original plans to the Building Department are 10 ft . If you take an architect' s scale, they are 18 ft 9 inches in place. How that came about has been the subject of a lot of discussion. We think it is relevant because of the self created hardship. The plans were changed. No one knows when but the pilings as shown on the building plans submitted to Jim are 10 ft. In place they are 18 ft 9 inches. 6 BAM5 .5 .88 We met with Wayne Ethridge on January 27 . I thought Wayne promised us a landscaping plan. He never came back to us. We thought that did not deal with us fairly. Attached to this chronology from the County is Board of Adjustment denial . Attached is an architect ' s report to see what could be done in mitigation. We presented that plan by letter July 6 , 1987 to Mrs. Stanford' s then attorney, Andy Hecht . We met with Wayne Ethridge and her next attorney, Dan Schiff and I have yet to meet these gentlemen--the 3rd set of attorneys. This plan that we presented and spent $500.00 for, they have never responded to. And it shows a flat roof. I am not saying that is the answer but we presented it to them from an architect and they have never responded. The drawing that Wayne presented at our meeting on January 27 , I made some notes on about what he was planning to do. Jeanne Doremus asked for 3 things--removing the windows in the back--or putting in stained glass. Remo: This does not come under our purview at this point. Nick: When you are talking about mitigation, there are lots of things that folks can do back and forth to compromise. We asked for a firm landscaping plan. My note says "OK Wayne will do" . And we have never seen it . We feel there is no satisfactory data here for this exercise. I am not willing to accept Wayne' s representation as to heights or as to structure. He is not an engineer. We think you need more data. It is the burden on the applicant to come in here and show you exactly what the measurements are in place . They have not done that. This model is inaccurate as to the length of the house and the overall size of the house. The County found at it' s Board of Adjustment hearing that it was several feet longer than what the plans had originally shown. No one had a clear explanation as to how the house had grown but it had. The County Board of Adjustment findings showed that the applicant knew or should have known that the setback measurement was wrong. There is a 30 ft front yard setback in the County. There is a 30 ft front yard setback in the City. The County found that they were at least 5 ft into the setback and it could have been 8 or 9 . What the County Board of Adjustment said was "Since we are going to deny the variance anyway on other grounds, we don't have to address how much of a setback violation they have" . But there is nothing in the annexation or in the R-15b zoning that changes it. At the first meeting with Mrs. Stanford that she called with Tom Smith and all of us attended, Mrs. Stanford wanted to measure 7 BAM5 .5 .8 8 her setback from her property line across the road . From her property line, all of us would agree is normally OK. Remo: I really have to stop you. The Building Department has not determined that they are now at this point in setback violation. Nick: I don' t think that is the case, Remo. Remo: But that is not what we are here for. Fred Gannet: What they are here for is a variance in height. They haven' t requested a variance for setback . Wayne: There is no setback violation in the City. There was, according to a rigid interpretation of the County, because of measurement from the road. Nick: There are height variations from 6 inches to 4 & 1/2 ft. 4 & 1/2 ft translated to the City standard is a 9 & 1/2 ft height variance . This was based upon evidence that the applicants presented . They have presented no evidence whatsoever , no drawings , no elevations . They have only had Wayne make representations. What is the height over the limit? Can you say? Do you know? Wayne: The numbers were supplied by the Building Department . They are not my representations . They are not Tom ' s representations. Remo: Nick, when we give a variance, it is going to be based on the determination of the Building Department telling us how much they have exceeded over that limit. We have no other basis for granting a variance above or below that. The Building Department has determined a certain figure that the applicant is above and that is what we are here to--we are not here to question the Building Department. Nick: I have to make a record for court. Part of my making a record, I am entitled to put any witness under cross examination and I want to ask Jim Wilson if in fact the building as in place- -what height is it according to your records? Bill Drueding: I handle the City Board of Adjustment. When an applicant wants a variance , I require a minimum at their request. I don't expect full drawings. I just deal with what they are requesting . At this point they have a right in requesting a variance and it was his request. I didn 't give him 8 BAM5 .5 .88 the figures. It was his request and I am telling you what he is requesting . I rejected his permit upon his telling me that he was this much over. I don't know exactly what the height of that building was , is , or is not because I don ' t have that full information. Nick: You don't have any reason to dispute the County findings that the roof was from 6 inches to 4 & 1/2 ft over the County' s 28 ft limit. Bill: I would say that is our official stance, yes. Wayne: Just to make certain we are dealing with the right figures I did ask the Building Department to go back through. They determined that exactly those figures that that was the figure to be used--4 & 1/2 ft, 2 & 1/2 ft and 6 inches over the 28 ft limit--exactly as stated in the application. Nick: So I think we have agreed on what the house is in place . Our position would be that the house is not compatible as is in mass. If they came to us and offered us a couple of compromises, we might not be so vehemently opposed to the extent of their height variance . We don't know what else they can do because they never followed up that January 27 meeting. But our strict position is they are asking for an extremely substantial height variation. It is more than you normally grant and we think that is inappropriate under the circumstances and request that you deny it. We feel that this is a self-created hardship because they are their own developers. They had their own architects and builders who are their agents and so for purposes here the building was built as they wanted it and it happens to violate the codes. Remo : Are all of the homes in the photos you passed out here encumbered by the same kind of topography that the applicant has? Nick: There are some that are. In fairness to them, their lot is steeper than a majority of the lots along the way. But they could have built--this house when it was originally submitted to the Building Department was turned. It did not protrude. But as soon as you build down on the steepest part of the hill and make pilings that are 10 ft on the plans and make them 18 ft in height , you create a larger mass. So it is not unique because they did not have to build down on the steepest portion. They had the house originally rotated and it would have been tucked in. If you go to the back part of the house, you will see an 8 ft piling the same material that is on the front. They could have had the house sit flat on the ground and been in the trees and we wouldn't have to be here today. 9 BAM5 .5 .88 Tom: The house was rotated at the request of the County Building Department. Wayne: Design is not a Board of Adjustment issue . That planting plan was presented at the homeowner ' s meeting . The unfinished nature of the house obviously makes it look worse . We are attempting to address that with a landscaping plan . The landscape context that Nick mentions is a problem on this site. It did not have the same kind of vegetated cover that some of the other lots have . Tom and Barbara are proposing to spend $10,000 to give this house a context that some of the other homes have . The removing of the windows when you have only 2 windows on the north side is not an issue. The height figures again were presented by the Building Department. They are not an issue as far as we are concerned. And when I add 4 .5 plus 3 I get 7 .5--not 9 in terms of the height variance. John Kelly, 1/2 owner of the lot directly across the road from this structure : I haven ' t seen anything that even vaguely resembles a hardship in this case . The reason is that house has never been in compliance with anybody--the County, the City or anybody. There has been problems with it since--I have been at the first meetings with this house before it was built. I just think it is outrageous the way it has been done. I don't see that there is any legal basis for you to grant a variance. Any hardship--it was their contractor, not ours. It was their architect--not ours. It was their lawyers--not ours . Whoever you want to blame for it , that is fine but they were all agents of Mrs. Stanford. And I think they are clearly a self-created problem. You have to get up next to it to see that there could have been something quite different built on that lot that would not have violated anything just like all the other houses around there. One thing of interest you might note is the location of the phone lines in relation to the view out of the living room. Larry Fredrick: I have addressed their application for variance paragraph by paragraph . My real objection to this is to the height which creates the bulk . And according to the land use code it says something to the effect that the concept of the land use code is to provide some natural scenic use, establish patterns compatible with the surroundings. This house does not do that. I also object to the idea that the applicant can come to you and try to get what they couldn' t get with the County. The County denied this. How can they come to 10 BAM5 .5 .88 you and ask for what the County denied them. Remo : Their recourse is to exhaust all administrative avenues left open to them. They can't litigate before these things are exercised. Larry: They are asking you to exceed even the County standards . It states in the first paragraph that the Stanfords agree to lower the height of the roof by 7 ft and it was determined that this action would bring them into compliance . At the County Board of Adjustments meeting, it was established that the height limitation could not accurately be determined because the Stanfords did not provide the Building Department with an accurate survey. Apparently they still haven' t to my knowledge. It is the responsibility by code of the applicant to provide adequate information to the Building Department . Therefore , I think that is a hardship created by the homeowner. With this undue hardship on the part of the applicant the landuse code states that variances cannot allow the applicant special privileges that the other people in the neighborhood cannot have . I don ' t think their situation is unique because it was created by them. This model is really inaccurate . This the original model of the house where it was supposed to be . This isn't where it was accepted by the Building Department. This is not where it is. It is not where the footprint was by the plan submitted to the Building Department. This house rotated and it grew. On the original plan these pillars were 10 ft tall. Today these pillars are actually 18 ft 9 inches tall. There is a huge amount of bulk and mass exposed which creates the violation to begin with. That was created when the house was mysteriously rotated. Not only that it grew in length. When it grew in length it went further down the hill and the pillars became taller . My objection to the fact of this mysteriously appearing is the fact that the applicant was on the property nearly every day of construction. And to think that the applicant didn 't know what was going on seems to be very naive to me. Underneath the structure there are some footings for pillars but they weren't used. I wonder if perhaps those would fall into the area of the original footprint. Janet Roberts, wife of Larry Fredrick : We live at the corner of McSkimming and Aspen Cemetery Rd so we bear a good brunt of the impact of this piece of property. My objections are with respect to the heights and of the mass of this property as it relates to the other properties in the neighborhood . This is one of the 11 BAM5 .5 .88 last properties to be built in the area and it also should conform to the guidelines of the Building Department. I don't care about the design. I am not here to ask about design changes. I am here to ask for something that meets the code . One of my concerns that I would like to address is the extent of the co-operation of the Stanfords with the neighbors . At a meeting of June 1986 before this property was built , Mrs . Stanford had a meeting with the neighbors most all of whom you see here today and with the County Attorney and the County Manager with regard to the location of the road--the Aspen Cemetery Road which goes by the property. At that point, Mrs . Stanford threatened within 2 days to move that road through my living room . Now if that represents co-operation , that surprises me. And frankly I have not seen any addressing by the Stanfords or representatives of the County' s denial with regard to the FARs, the setbacks or the height. All they have come back to us with is some representations that they might be willing to do some sort of landscaping which I find ludicrous or do some frosting of windows or some other thing with the back of the house which to me is the minor part of the violation. I believe that all the hardships, if any, are self-created and therefore should not be a part of your determination. I do believe that the Stanfords were an integral part of the design and concept of this building and the building of it . They should be held for their own errors and should be held to the standards which the rest of us are held to. Molly Swanson read a letter of objection from Georgia Taylor who had to go to another meeting. "As a resident of Aspen Grove who lives on McSkimming Road I would like to go on record against a variance for the Stanford house. The house is out of proportion with the rest of the neighborhood which defeats the purpose of zoning in the first place . " I myself live across highway 82 on an even lower grade than all the rest of the folks here. My concerns have been voiced very well. My house faces Aspen Grove . When I sit and look out any of my windows it honest to God looks like the prow of the Kittyhawk coming in my windows. It is unbelievable because of our grade and the impact. My friends come over and they say "Good God, where is the tape measure" . Nobody can believe the size and impact of this house. All the other homes up there are within the treeline. Now they say they are going to landscape . Do they have any idea what 50 foot , or whatever it is going to take , trees cost? $10 ,000 won't buy one! It can't be done. And we don't have 100 12 BAM5 .5 .88 years to wait till the trees grow tall enough so that this thing won't appear to be coming in through my windows. Helen Klanderud, 1380 Riverside Drive: I , too , would like to reiterate and add to the objections of this variance . One of the things that concerns me--I would have to agree with Nick ' s calculation that what we are really talking about here is 9 feet rather than 5 feet and that it would seem to me that had there been serious effort to bring this house into compliance with the County code where variance has been denied previously that they would not be before you at this meeting today because the annexation occurred after the permits were given to build that house. There are obviously problems that still exist and I would question why, if we are talking about good faith being demonstrated here . What concerns me is that it was rather comprehensive non-compliance with the Pitkin County code when this house first came before the County Board of Adjustment. I have a concern of what is happening here is there is an incremental ization going on that today there is a request for a variance in height and that if there is any other non-conformance to be dealt with later . When things are incrementalized like that over a time the impact seems to become less and less. I have to agree with Molly. Riverside Drive comes right onto 82 confronted by this house and it truly is an aggressive confrontation. It does look like the prow of a ship coming out of there. I think it is a classic and clear example of why we have the codes that we have in Aspen and Pitkin County to keep neighborhoods compatible in their development and this particular residence is clearly incompatible with everything in that neighborhood on both sides of the highway. Glen Crow, attorney for the applicant : When the Stanfords discovered that there was an invariance with the County, they went to the County--took architects with them. (presented affidavits attached in record) Where the Stanfords got approval to lower the house--the front roof--in any event the Stanfords did and are trying to do everything they can to bring the house into conformance and also to respond to the things that are contained in the letter from the architect that was submitted by Mr. McGrath. The Stanfords are doing everything they can to minimize the impact of the house. And that seems to be the gist of most of the complaints--to maybe bury it in the treeline. That is why there are a substantial number of trees in that submittal to the Board . If there is concern about whether there has been co- 13 BAM5 .5 .8 8 operation on behalf of anyone to do anything I would just ask the Board has the power to condition the variance, that can have the practical effect of addressing the concern about other houses being within the treeline. This house can likewise be that way. The sort of vegetation that Wayne has suggested will minimize the problem. You are looking at the under side of the house and that is why it seems so imposing. The Stanfords are -trying- to do everything they can to minimize this. We have had people who have said structurally it can't be lowered. They are willing to lower it to the minimum variance possible . They are willing to do other things that aren ' t necessarily required to gain a variance and to minimize the impact of this house on the neighbors. Wayne : The biggest request at the County level was for the height. The variance request for FAR was 47 sqft . The only reason there was a front setback problem in the County is because of an interpretation of a prescriptive easement for the road outside the quiet easement. In lowering it 2 & 1/2 ft--again under County standards it is only a very small portion of the front section of the roof that wouldn't meet County standards. It would still be 5 ft over the City standards if you grant the variance. John Kelly: I think it would be good for you to go back and look at the original height violation. Not after they had to move it down. It was not a diminimous type violation. I believe it was a 9 ft violation. Now that is not insignificant. It is not the kind of thing that happens because an architect makes an error or a contractor makes an error. Somebody told the contractor to build the pilings 18 ft instead of 10 ft. I think that bears on your definition of a hardship and whether it was self imposed or not. Remo then closed the public portion of the meeting . Fred Gannett: Just for the record: There is a suit against the contractor/architect . There is still an appeal in effect against the County Board of Adjustment. And would it be the applicants intent that if this variance is granted they will withdraw that suit? Wayne: Yes, it is. Fred: I think you would want to preserve for the record is that there is a jurisdictional issue and that is that the applicant has alleged that the County maintains jurisdiction over the project while it is in the court process and that if they were to 14 BAM5 .5 .88 prevail in that court process that they would , in fact , get a permit granting them relief based on County standards, not on City standards . And that the applicant has also made an application before the City asking for a variance from City standards. There is a potential here that you would have 2 types of permits issued--a variance from the City and then a Court ordered variance from the jurisdiction of the County. Jim Wilson of the Building Department : There has been some implications that the as-built design has been approved by the Building Department. That is not true at all. At one time they had a code complying design which was issued a permit as we have to do. From there they have deviated from that design. The County affidavits from the architect, the Building Inspector approved the plans. We spoke in conceptual terms only. They showed me a sketch showing the height and they gave no specifics on this . They said "If we built the house like this, which clearly shows that they are under the height line, would it comply? And I said "Yes , but you need to provide me with specifics and come in for a change order" . At that point the architect disappeared, the engineer disappeared, the contractor disappeared, the owner disappeared and they never came back for the change order . Weeks later we had to go out and everyone said "Oh, we forgot about that. We must have spaced it out" . The engineer is no longer involved in the job. He has officially withdrawn from the job and there has been no official Building Department approval for anything in conflict with any regulations. I need to make that clear to everybody. We do not issue verbal approval. Remo again closed the public portion of the meeting and asked for comments from the Board. Francis: I think we are being asked to make a decision based on figures which I still don't know which are City or County. I have not seen a plan or elevation. The model is inaccurate. I am impressed by the report of the County Board of Adjustments which says in paragraph 22 , "No survey was submitted at that time to indicate the height of the building based on the proposed modifications. Such a survey was not received until December 9 , 1986 and the stop work order was issued on the following day because the survey demonstrated the continuing nature of the height violations" . Finally the paragraph 31 , "The applicant is not entitled to a setback variance, height variance or FAR variance because any hardships that may exist are self inflicted, are based solely on 15 BAM5 .5 .88 financial considerations and are not the result of any other fact that is specified in Section 16-1 .3 of the Pitkin County Landuse Code" . I agree. Rick : I am very, very strongly in favor of denial on this variance. I agree that the hardships are self inflicted . I believe the massing , the imposing nature--none of this is compatible with the neighborhood. I think the overwhelming neighborhood objections weigh very heavily in my determination as well as the inaccuracy of the surveys or no surveys , no elevations. I think their hardship is basically financial and relief isn ' t given here . I think that their recourse for recovering financial monies expended should be gotten through civil action on the contractor. I am very, very strongly in favor of denial . Anne: I have to agree with what has been said so far. I don't see any hardship. They never were in compliance from the beginning. I think there was no sensitivity to the neighborhood. It is a self-created problem and not a unique situation but something the landowner or their agents created. They have been in violation since day one and I would be opposed to granting a variance. Ron: I agree . Charlie: I am pretty much in the same situation. I had a feeling earlier that there was a hardship because of the fact the applicant tried very hard to do something with that building to mitigate the height of the roof. You can see that by the photographs that were earlier presented on the front part of that section . But I still have tremendous problem with what the history of that building is and I don't see how this Board can show that there is a hardship with the applicant that isn ' t self-created. I could not see how we could grant this variance. Remo: What the extra height does is create something that does come under our purview and that is mass and bulk . I think that is what we would be creating even moreso by allowing this to exceed the height limit. I think the agents of the Stanfords were responsible for the conditions that exist now and I think that alternatives are available to them. They can reduce the impact both to the neighborhood and their neighbors by complying with the provisions of the code. I would be not in favor of granting this variance. MOTION Rick: I move that we deny the variance of this case #88-5 on the 16 BAM5 .5 .88 grounds as stated . Francis seconded the motion. Roll call vote : Francis, aye, Charlie, aye, Rick, aye, Anne, aye, Remo, aye. Variance denied. NOTION Rick made a motion to adjourn the meeting. Francis seconded, the motion with all in favor. Time was 5:40 . aez')- /city Jan, a M. Carney Depu Clerk 17 4 1 RONALD GARFIELD* { L �Rh I E llL �& HE H T, P.C.e TELEPHONE ANDREW V. HECHT** ATTORNEYS AT LAW (303) 925-1936 WILLIAM K. GUEST, P.C.*** VICTORIAN SQUARE BUILDING TELECOPIER (303) 925-3008 JEREMY M. BERNSTEIN 601 EAST HYMAN AVENUE CABLE ADDRESS JANE ELLEN HAMILTON ASPEN, COLORADO 81611 "GARHEC" -also admitted to New York Bar --also admitted to District of Columbia Bar ­also admitted to Nebraska and Texas Bar April 13 , 1987 HAND DELIVERED J. Nicholas McGrath, Jr. , Esq. 600 East Hopkins Ave. , Suite 205 Aspen, CO 81611 RE: Stanford Residence Dear Nick: As you know, we have filed a Complaint under Rule 106 (a) (4) and under Rule 57 , C.R.C.P. requesting a review and reversal of the Board of Adjustment' s denial of Barbara Stanford' s application for a variance. As a courtesy and for your convenience, I am enclosing a copy of this Complaint. I would like to emphasize that this Complaint was filed first to preserve Mrs. Stanford' s appellate rights and second to satisfy her obligation to mitigate her damages with respect to her lawsuit against Sutherland Construction. At the Board of Adjustment hearing, you and your clients clearly articulated the general concern that Mrs . Stanford' s neighbors have about Mrs. Stanford' s house. We would like to sit down with you and with any of the neighbors whom you do not represent to try to work out a solution to the various concerns raised by your clients and the other adjoining neighbors . We would like to arrange this meeting at your earliest convenience . If you will kindly give me several dates which would be convenient to you, I will contact the neighbors whom you do not represent and will set up a meeting at a mutually convenient time to discuss a solution to this problem. I understand that this may also involve some additional architectural input to fashion a solution that will be acceptable to everyone. I am optimistic that there is a solution to this problem. Thank you in advance for your cooperation. GARFIELD & HECHT, P.C. J. Nicholas McGrath, Jr. , Esq. April 13 , 1987 Page -2- Sincerely, GARFIELD & HECHT, P.C. Andrew V. Hecht AVH/cc cc: Mrs. Barbara Stanford pitkin county 506 east main street aspen, colorado 81611 Hand-Delivered January 14, 1987 Jeremy Bernstein, Esq. Garfield & Hecht 601 E. Hyman Avenue Aspen, CO 81611 Subject: Stanford Application to Board of Adjustment Dear Jeremy: I am in receipt of a copy of the application which you filed on behalf of Barbara Stanford with the Board of Adjustment. The application states, inter alia, that variances are unnecessary. It is not the job of the Board of Adjustment to resolve factual issues in the first instance where the Building Department has not had an opportunity to review the information relied upon and to make a decision. Variance requests are moot if, in fact, variances are unnecessary, as you assert. Accordingly, I hereby request that you submit information responding to the following issues by January 19, 1987, or I shall recommend that this application be tabled by the Board of Adjustment until such information is received by the Building Department. 1. Please indicate which of the various surveys submitted by and on behalf of Ms. Stanford are relied upon at this time. The recent surveys contain elevations different from those indicated on previous surveys. These differences must be explained. Also, please explain any additional changes on the recent surveys, if they are relied upon, including an explanation of the 30-foot setback from Aspen Grove Cemetery Road indicated thereon. 2. Your application asserts that the existing structure is 30 feet from the existing roadway, and therefore meets the setback limitation. Please explain the basis for this contention, since, if it is correct, a variance is not necessary. r Jeremy Bernstein, Esq. January 14 , 1967 Page 2 3 . Please indicate the factual basis for the assertion that the existing structure does not exceed the applicable height limitations. It is my understanding, based on previouE meetings, that the facts of this matter were not at issue. Also, please identify the "extenuating circumstances" whicl you rely upon to justify the grant of a variance. 4. Please state the basis for the contention that the residence does not exceed the applicable F.A.R. Also, please identify the extenuating circumstances which you rely upon to .justify the grant of a variance. Your prompt attention to these issues would be appreciated. Very truly yours, Thomas Fenton Smith Pitkin County Attorney cc: Peggy Seeger Jim Wilson Alan Richman Nick McGrath TFS:sm 2 r r- pitkin county 506 east main street aspen, colorado e1611 Hand-Delivered January 14, 1987 Jeremy Bernstein, Esq. Garf ield & Hecht 601 E. Hyman Aspen, CO 81611 Subject: Stanford Residence - Eastwood Subdivision Dear Jeremy: As a follow-up to our recent meeting regarding the above subject, this letter will summarize the position of the Building Depart- ment and myself regarding Land Use Code violations at the Stanford home, currently under construction. Based upon information submitted by surveyors retained by Ms. Stanford, the 28-foot height limitation applicable on this property has been violated. The violation is • based upon exceed- ance of the height limitation specified in approved plans, and through no fault of the Building Department. The violations range from 6" to V -6", depending upon the portion of the structure concerned. The County has indicated that substantial compliance with the 28-foot height limitation must be required, but that the County will be reasonable regarding de minimis violations. The applicable floor area ratio (F.A.R. ) is violated by approxi- mately 144 1/2 feet. The County has suggested a reasonable solution to this problem, i. e. , minor structural modifications to the mechanical room, to bring the building into compliance with the F.A.R. The structure violates the 30-foot front yard setback requirement contained in the Pitkin County Land Use Code. The extent of the violation, and the declared need for a variance, cannot be fully evaluated because information has not been submitted to precisely locate the Aspen Grove Cemetery Road, from which the front yard setback must be measured. Jeremy Bernstein, Esq. January 14 , 1987 Page Two As early as Auqust, 1985 , I informed Ms. Stanford that the existing Aspen Grove Cemetery Road is a public right-of-way by prescription, and that - the apparent location of a County Road on the Eastwood Subdivision Plat is in error. The Plat specifically states in the dedication language that "no areas shown on the Plat are dedicated to public use. . . . " Even if a dedication were construed to exist on this plat, the mere dedication of land to public use is not sufficient by itself to establish a public right-of-way. There must be both dedication and acceptance in order for the dedication to be complete. The mere recordation of a plat or map upon which are shown public places is an offer to dedicate to public use and there must be acceptance by the public or by the public authorities through maintenance, , improvements, or use by the ppublic. _Frazier D. Bobbitt, 526 P.2d 1343 (Colo. App. 1974) ; Litvak v. Sunderland, 353 P.2d 381 (Colo. 1960) . There has never been any acceptance by the public or by public authorities of the so-called "County Road" indicated on the Eastwood Subdivision Plat adjacent to the parcel owned by Ms. Stanford. Again, in 1986 , at a meeting in which property owners in this area were also in attendance, I informed Ms. Stanford that the subdivision plat was in error, and that the County had neither the inclination nor the ability to vacate the existing Aspen Grove Cemetery Road for her benefit. It was indicated by her at that time that attempts would be made to negotiate a solution to the problem with the Aspen Grove Cemetery Association. She gave no indication at that time that she intended to file an applica- tion for a building permit, or that she intended to contest the County's position regarding the location of - public right-of-way within the Aspen Grove Cemetery Road. On the occasion of both meetings Ms. Stanford was informed that maps which she presented showing a "gravel road" in the location of the Aspen Grove Cemetery Road, and a "County Right-of-way" in a location the same as that on the Eastwood Subdivision Plat, were in error. The County Land Use Code requires a 30-foot front yard setback, which must be measured from the Aspen Grove Cemetery Road to all points of the structure. The Pitkin County Land Use Code specifies, in Section 3-2, that "for purposes of measuring front yard setback, the access side of the lot shall be considered the front yard. Since access is off of the Aspen Grove Cemetery Road, the front yard setback must be measured from the side of the lot adjacent to, or coterminous with, the Aspen Grove Cemetery Road. 2 Jeremy Bernstein, Esq. January 14 , 1986 Page Three Your allegations that miscommunication between the County Attorney' s office and the Building Department are responsible for this error are without merit. As indicated above, Ms. Stanford gave no indication if and when she would file a building permit application, and at our last meetinq it appeared that she would acknowledge the County' s position and seek some other resolution to her problem. Since Ms. Stanford was completely informed regarding the County' s legal position in this matter, it must be considered her obligation to submit accurate plans to the Building Department for its consideration. The Building Depart- ment was qiv en no information at any time to indicate that the plans submitted were in error insofar as the location of public right-of-way or setback is concerned. It is my conclusion, therefore, that Ms. Stanford intentionally misrepresented facts to the Building Department, which she knew to be in error. I do not believe that it would be fruitful for either of us to press this issue, but if you or your client continue to persist in arguing that the County is responsible for this error, I shall have no choice. You have also alleged that my request to you that your client not come to our recent meeting demonstrates prejudice toward your client on behalf of the County. On the contrary, my request was based upon a desire to achieve a reasonable solution to this problem among all persons involved, and not to prejudice your client. The County has demonstrated a willinqness to be fair to your client, as evidenced by our stated intention to require substan- tial compliance, rather than absolute, 100% compliance. Also, the County has allowed Ms. Stanford to install a water meter on the premises and to place visqueen over exposed windows. If the County wanted to "turn the screws" on your client, there have been some obvious opportunities to do so. Finally, in this situation the County is responding to more than mere technical violations of the Land Use Code. The issues that have been raised are apparently the cause f or serious concern among neighboring property owners in the vicinity of the Stanford residence. This is well known to you and your client, and the County must respond in a reasonable manner to the leqitimate complaints of such persons. 3 Jeremy Bernste., . Esq. - January 14 , 198b Page Four Any claims or allegations that the County has acted with pre- judice to your client or has mishandled this matter will be taken very seriously by the County and dealt with accordingly. We remain interested in achieving a fair and reasonable solution to all the issues which now exist. Very truly yours, 71 ZP-"I\l Thomas Fenton Smith Pitkin County Attorney cc: Peggy Seeger Jim Wilson Nick McGrath Alan Richman TFS:sm 4 AFFIDAVIT OF TIMOTHY HAGMAN STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The Affiant, Timothy Hagman being first duly sworn, states and deposes as follows: 1 . The Affiant is a partner in Hagman Yaw Architects with its principal place of business located at 210 South Galena, Aspen Colorado 81611 ; (303) 925-2867. 2 . The Affiant served as a consultant to Sutherland Construction Company for the purpose of designing structural modifications to the existing roof at the Stanford residence to reduce the roof height to conform to the Pitkin County Building Code. 3 . That on or about October 30 , 1986 , the Affiant attended a meeting at the Aspen-Pitkin_ Regional Building Department. 4 . Present at that meeting were Jim Wilson, head of the Aspen-Pitkin Regional Buildir,a_ Department, the Affiant, Lawrence A. Doble and Bob Sutherland. A representative from the zoning /office was also present. Plaintiff, Barbara Stanford was in and out of the meeting. 5 . The Affiant and other parties present reviewed architectural renderings and sketches provided by the Affiant. 6 . At the conclusion of the meeting, Jim Wilson nave verbal approval of the propcszl to lower the Stanford residence roof pursuant to the architectural rende rings and sketches provided by the Affiant. The verbal approval given by Jim Wilson was not subject to any further conditions or stipulations . Mr. Wilson represented that the modification of the roof pursuant to the architectural renderings and drawings submitted by the Affiant would bring the roof in question into compliance with the Pitkin County Building Code . Mr. Wilson approved the modification and approved Mrs . Stanford' s plans to proceed with the approved modification. 7 . It has been the Affiant' s experience in dealing with the Aspen-Pitkin Regional Building Department that a building permit is not required for a modification such as the one proposed in this case. Further the Affiant sayeth not. Timothy Hagman AFFIDAVIT OF LAWRENCE A. DOBLE STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The Affiant, Lawrence A. Doble, being first duly sworn, states and deposes as follows: 1 . The Affiant is president of Integrated Engineering Consultants, Ltd. , a Colorado corporation with its principal place of business located at 411 East Main Street, Aspen, Colorado 81611 ; (303) 925-5193 . 2 . The Affiant served as a Consultant to Sutherland Construction Company for the purpose of designing structural modifications of the existing roof at the Stanford residence to reduce the roof' s height to conform to the Pitkin County Building Code . 3 . That on or about October 30 , 1986 , the Affiant attended a meeting at the Aspen-Pitkin Regional Building Department. 4 . Present at that meeting were Jim Wilson, head of the Aspen-Pitkin Regional Building Department, the Affiant, Tim Hagman and Bob Sutherland. A representative from the Zoning Office was also present. Plaintiff, Barbara Stanford, was in and out of the meeting. 5 . The Affiant and the other parties present reviewed architectural renderings and sketches provided by Tim Hagman of Hagman-Yaw Architects. 6 . At the conclusion of the meeting, Jim Wilson gave verbal approval of the proposal to lower the roof without setting forth any further conditions or stipulations . Mr. Wilson represented that the modification of the roof pursuant to the architectural renderings and drawings submitted by Hagman-Yaw Architects would bring the roof in question into compliance with the Pitkin County Building Code . Mr. Wilson approved the modifications and approved Mrs . Stanford' s plans to proceed with the approved modifications. 7 . It has been the Affiant' s experience in dealing with the Aspen-Pitkin Regional Building Department that verbal authorizations are common. Further the Affiant sayeth not. Lawrence A. Doble May 5, 1988 Board of Adjustment City of Aspen 130 South Galena Aspen, Colorado 81611 Dear Board of Adjustment: As a resident of Aspen Grove who lives on McSkimming Road I would like to go on record against a variance for the Stanford house. The house is out of proportion with the rest of the neighborhood which defeats the purpose of zoning in the first place. Sincerely, Geo: a H. aylo_r 31,4 k skimxing Road a_-d Aspen, Colorado l i el eoo ' .- ' rr . `1 /'t.�t ,t'" F'EI', t'<.._. .,.�.. J,5' T" ' .'•t. G ZY rs 41 iL ef�I �. �.;� .iii.�•r!�- 1/ <..�_.___ � � " b t�/r[., � •. ` yj Id1n a1'L kklllG - F4� rv. lot /0, a r- X> ole C.C�- 4�,AKe ✓ "ol ere /A-4�e------- ail epo _c4r4,4k e-- �.J�-'C ✓/O N�;!`'.y 4^4 •t,.;� :=.i Y e�." .. Y'/+? � y"�@' �j!F ..�.. i ` '�' � I ...L''C i.� Ile � U . . G .''T',0'!!�_,...., � '` � ���:;ju°:Gdt'.J. s'�a''j»� �1ri�✓!� r i...._ ;'.0 ?+= t�GG�.'�.'� r- 1' .�K7.�trtvv�Sf}j c.! Ile, s/ ^c r-� ���1''�.�� P le- 7 S, :C G_. f.`?�.��i e�_.._...:.. 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