HomeMy WebLinkAboutminutes.boa.19900412 CITY OF ASPEN
BOARD OF ADJUSTMENT
APRIL 12 , 1990
4.00 PM
COUNCIL CHAMBERS--MAIN FLOOR
A G E N D A
I. CALL TO ORDER
ROLL CALL
II. CASE #90-2
PAUL F. HAYES (CONTINUED)
RECORD OF PROCEEDINGS
BOARD OF ADJUSTMENT APRIL 12, 1990
Chairman Remo Lavagnino called meeting to order at 4 : OOpm.
Answering roll call were Ron Erickson, Charlie Paterson,
Josephine Mann, Rick Head, Anne Austin and Remo Lavagnino. Bill
Martin was excused.
CASE #90-2
PAUL F. HAYES
CONTINUED
Dennis Cyrus, Architect for applicant: We have looked at the 2
things that seemed to be of concern. That is that we were, in
fact, seeking the minimum variance and that there were reasonable
legal alternatives to our request.
Based on last week' s comments from the Board we would like to
reduce the amount of variance we are requesting.
Remo: I think you heard everyone' s point of view last time. And
I know it was mine, the basic premise that there is not hardship
or practical difficulty shown. However, there were other members
who indicated to you that if it were minimized that they would
consider it.
Dennis: In light of that what we would like to do is present you
with an alternate proposal which reduces significantly the
requested amount of variance. The square footage of this new ,
proposal is 242sgft. The old one was 410sgft. So we have
reduced that by 40%.
What we have done as you can see from the illustrations--rather
than use the line of the existing encroachment we are proposing
using the face of the existing building which is--so we would be
adding 4ft to the existing roof and enclosing that area which is
presently a covered terrace--an addition of 4ft on that roof line
at the front of the building. That would give us a proposed
front yard setback of 10ft and a proposed corner lot side yard
setback of 12ft. And reducing the amount of the variance we
would like to project into the setback from the 28ft of the
original proposal to only lift on this proposal.
The other thing we looked into is our legal reasonable
alternatives. And we have gone back and looked at those. And I
have presented you with a rough outline of where we see the
reasonable alternatives to adding this living space would be both
from the north elevation, the west elevation and again in section
indicating the additional mass that we feel would be required to
create an equally useful living space. You will notice that it
is raised up on the second floor essentially which we felt would
BAM4 . 12 . 90
be necessary to gain--due to the topography on the lot which you
can see on the small site plan the hillside rises up in this
house significantly to the southeast on the property as much as
16 feet above our floor level where we would press for variance.
So in order to get up to where we can have an equally useful
living space we felt we needed to get up at least 8ft above that
existing floor level to get up to our solar access as well as
light, air and all the things which make the living space useful .
Ron: On this diagram where will you put the existing setbacks?
Several people talking
Remo: It is a corner lot.
Ron: I wouldn't design it that way.
Dennis: This is the mass. It is an example of the mass which we
would require to create an equivalent living space within the
setback--an approximate equivalent square footage and useful
space. This is showing what could be done. We have taken the
time you have given us to look at alternatives.
Paul Hayes: As Dennis has suggested I submitted a revised
request which doesn't reflect what I would like to have but what
is in keeping with the code as I have read it. I spent some time
here at City Hall reading the code and trying to understand it
and going back in the minutes of past meetings.
These drawings show not what I would like to have but it is a
grant that would result in the minimum variance that will make
possible the reasonable use of the space that I have on this
property or in this home. The results of granting the variance
would have a minimal impact for these reasons.
#1. It avoids creating a sprawl which other alternatives would
suggest. It condenses the needed space in one spot and is in
keeping with the low profile design of this small house which if
the 242ft were added would result in a total floor space of
1, 730sgft. It avoids the tear-down and upheaval and it doesn't
protrude further than the back of the house. The side where we
would come out would be on a straight line with the back of the
house.
There are a number of restrictions that are not self created.
And which deprive me of the reasonable use of the space. I
should emphasize the design of the structure and placement of the
2
BAM4 . 12 . 90
lot were pre-existing code in that the nature of the
encroachments are historic.
I feel that I should enjoy reasonable use of the construction of
the house furthering a design which was beyond my control. If I
am deprived of this it is certainly a practical difficulty and a
hardship. The property has not been given privileges or
encroached on the zoning. The zoning has encroached on the
property. Various governments have been given privileges and
privileges that are necessary to be given to the government to
control the use of land.
Nonetheless,- it - makes no -difference whether - I- am -the -original-
owner or the owner in due course, there are restrictions
impacting on the property not applicable to other structures in
the area which create a hardship for me and deprives me of a
right commonly enjoyed by others in the area. For example a
living room or in effect' the reasonable use of space.
I might say that my proposal is universally supported by the
neighbors except for a single instance.
The house was built where it is in innocence. If this were a new
structure obviously I don't think I would be sitting here. But
you can't go back and do it all over again. You work with what
is there in the best way you can consistent with the rights of
others. And the plan that I have submitted I believe
accomplishes this. To be deprived of the plan results in the
hardship.
The second hardship that I would site is that, and perhaps I
mistook this as an inference, but I took it as one that space is
space and adding space anywhere is not reasonable use. I need . a
living room. I don't have a living room and I am attempting to
add one. The same space elsewhere doesn't provide this. You
could add a lot of square footage in the back but I wouldn't have
access to a kitchen and having to walk from the kitchen through a
bedroom out a door perhaps a separate dwelling is a hardship.
So it is not mere preference or convenience, it is a hardship not
to add the space where I propose adding it.
The third hardship is this living room could be created by going
straight up as Dennis has illustrated. But I already have a roof
and if you say you can raise a roof, you really don't have more
living room. You just have another room. Again 500ft that is
one room is clearly a more reasonable use of space than 4 rooms
of 250ft which would be twice as much space but, in my
estimation, not a reasonable use.
3
BAM4. 12 . 90
It is not an economic or aesthetic matter. It is just a
practical difficulty and unnecessary hardship. It has been said
consistently that economics is not a consideration. Again, I
would like to suggest that this is an accumulation of hardships.
I really couldn't accomplish the same thing by going to that. It
would be at least two fold the expense which can't be entirely
factored out.
The fourth hardship I would site is that not approving this
request deprives me of the proper use of light and air which
would be gained in the plan that I have submitted. - Because of
the solar gain afforded by the west southwest exposure and being
able to distribute the benefits over relative to the house is a
significant area. Because of the topography and the wider solar
use virtually the entire solar gain would be lost were I to do
this elsewhere, or to be more specific, in the back of the house.
I don't know that this is relevant but it would seem the granting
the use of the space as I have submitted would further certain of
the goals of the Aspen Area Comprehensive Plan or be more in
keeping with them.
This last point is somewhat more nebulous but I feel compelled to
make it. Living space should be reasonably organized. Creating
a reasonable living space is something you work for, you dream
about, you strive to achieve. It is not convenience or
preference. It is a reasonable need. And not having it is a
true practical difficulty and a true hardship. The hardships
that I have cited warrant the granting of this minimal request.
And the grant would be generally consistent with the purposes,
goals, objectives and policies of the Aspen Comprehensive Plan
and what I understand would be an overall sense of what this
Board is trying to accomplish.
Ron: Have you done anything to determine whether the back of the
lot can be excavated in any way?
Dennis: They can't remove that dirt back there. In fact there
is already a terrace excavated back there to a certain depth.
Ron: How are you going to improve the solar gain with this
building with this as opposed to a second story or any other kind
of addition?
Dennis: Solar gain would be approximately the same if we go to a
second story.
Paul: I wouldn't put that second story on it. It would be an
eyesore. It doesn't really create more living space for me. To
me it is not a reasonable use of space. I am deprived of the
4
BAM4 . 12 . 90
original design of the building by having to resort to such a
ghastly alternative.
Remo: The other argument is the same argument that I used last
week. That is you are already enjoying encroachments on the site
that other people aren't enjoying. And you haven't addressed
that. You have taken the other tack by saying that you are stuck
with a house that you bought knowing that it was in the setbacks.
Paul: They are not self created and I am not enjoying anything--
the State, or whatever governmental authority, enjoyed the right
of being able to encroach on the property which was built in good
faith along in a certain portion of the lot with a certain
design.
Remo: And they are allowing you to keep that. They are not
telling you to tear it down.
Paul: They are not allowing me anything.
Remo: Well, they are not telling you to tear it down. Their
concern is now that they put these setbacks it applies to
everyone in that same vicinity and zone.
Paul: But it becomes a hardship when it doesn't allow me to make
some minimal request that is consistent with the original design
of the construction and location.
Josephine: Are you not concerned about a time in the future when
the City or the State would need more highway space and would be
digging up to your front door perhaps?
Paul: I am not only concerned. It frightens me to the point
where I immediately push it down because it would totally devalue
the property. What I have or whatever I added on and so, yes, I
am concerned and it would obviously just destroy the value of it.
Dennis: I would also like to point out that by building this as
a second story you are exposing yourself as much or more to the
highway, the noise and the visual impact and the dirt from the
highway than you would be by doing this addition. This addition
is intended to be down low behind what berm is there and what
vegetation is there.
Nick McGrath, 229 McSkimming Road: I am a neighbor. To put Mr.
Hayes and Dennis somewhat at ease, I am not necessarily opposed
to this. I do find the application very confusing. One of the
things that most of us are concerned about in Aspen Grove is the
increasing proliferation of very large houses.
5
BAM4 . 12 . 90
The other thing is big houses cost more and keep local people
out. Mr. Hayes is from out of state and we certainly welcome
him. But I really am much happier when we have people who are
living here full time. We can't do much about that. But the
price of houses affect that.
One of the questions I have is regarding the extent to which the
existing house complies with he existing lot. It looks to me
like there are encroachments on the back as well as the front.
Remo: Their application is only for the side yard and the front
yard setbacks.
Nick: My concern is the sale from Mr. Hayes to somebody else who
then wants to put a second floor on the whole thing. And I agree
with him that a little development on the first floor even if it
requires your discretion is a lot better than a development on
the second floor.
On that lot he could build a house of 2 ,720sgft which would
really be onerous. There ought to be room for compromise since
he has a small house as long as somebody else isn't going to come
along and make a big house out of a small house. It is a
tasteful house now as is. It is abnormally small. He proposes
200sgft. He could put it legally on the top and that would be a
much greater intrusion on everybody. So if it is a small
variance I certainly, as a neighbor, don't have an objection.
Remo: It does not deprive the owner of eventually doing that
also along with this variance.
Anne: Unless we deed restrict it which is what I had brought up
at the last meeting.
Remo: I don't think we can do that.
Drueding: Reading from letter: Without exception the courts
upheld the proof or unnecessary hardship or practical difficulty
must be present before a variance is granted.
I talked to Sandy. She said you have the 2 step process that the
Board has entrusted to you. First you must find the hardship.
And then your second step--you give a minimum variance. The fact
that the man could build larger by right on the rest of the
property is none of your concern. You don't wheel and deal. It
is not your concern. He has the deal with the variance and the
hardship must be found or the practical difficulty and then it
must be the minimum variance.
Anne: Bill said the intent of the new zoning particularly is to
6
BAM4 . 12 . 90
reduce the bulk. That has been the biggest complaint in this
community. And to me this addition keeps the bulk to an absolute
minimum. And what we are saying is "Sure go ahead and increase
the bulk. " And I think we are trying to conform with what the
code is saying.
Drueding: The new code also tries to decrease the bulk increased
in the R-6 and R-15 zoning by increasing the setbacks to help to
decrease the bulk. They have a maximum FAR in the R-15B zone
which the man is allowed to build. And the R-15B zone has a no-
restricted 30ft setback where the other R-15 are 25. So you do
have an extra 5ft in the R-15B zone to stay with that
neighborhood.
Dennis: Can you explain how increasing setbacks decreases bulk?
Everyone talking.
Drueding: This is the setback--30ft. They increased the
setbacks to get the perception of houses being further apart from
each other and not so close.
Larry Frederick: I spoke last week. With this new proposal my
initial problem was with the concept of violating setbacks to
begin with and second the bulk which would have appeared. In my
opinion the original application was a very large encroachment.
I think the applicant this time has made a very positive
direction and I don't think the bulk would be anywhere near as
noticeable. I think he has made a real honest attempt at trying
to solve that problem. Granted it still is a setback violation
but that lot is a unique situation.
In this particular case I think the applicant has come back with
a reasonable approach. I don't think you are going to notice the
bulk.
Remo asked for further comments from the public. There none and
he closed the public portion of the meeting.
Josephine: I am struggling with this idea of the hardship here
and the practical difficulties. We all know and recognize there
is no question about this. This is a non-conforming lot of
record. Another thing mentioned as a hardship was that he could
not choose his front yard.
Remo: Even if he could pick his front yard he still wouldn't be
within the framework of the setback requirements. And my
consideration was to be lenient on the side yard setback because
I thought that would have a minimal impact and because it is a
corner lot it seems like he is being penalized again
BAM4 . 12 .90
extraordinarily because #1, he can't choose his front yard
setback and #2 , it takes away more of an ordinary setback on a
more ordinary lot. And the impact coming down McSkimming Road in
that particular area would not go against the intent of setbacks
in a corner lot in my view.
But that is not what is being proposed here. It is still all
within the 30ft front yard setback mostly.
Charlie: What I consider to begin with #1 it is a very difficult
lot. The original placement of the house was in itself very
difficult under the conditions that were imposed upon it at that
time. And the house was placed in such a way that they used as
much of the flat area as they could. The contours will show you,
as you see toward the back where the railroad ties are, how steep
the hillside becomes. That is on the east end corner.
The second thing is that there is a practical difficulty or a
hardship that was created by the changing of the ordinance when
the setbacks were set in a different location. I am pleased with
what I see as a positive direction to solve our concerns which
were voiced by the Board last week that there was too much
encroachment--not necessarily too much bulk but too much
encroachment.
#3 . I have no problem that this is a minimum variance. A house
of a total number of 1, 700sgft I don't think is at all called a
large house and it is not something that is unreasonable to
expect someone to own.
The fourth thing that I would like about this proposal is that
there is something about this that avoids something else
happening to this property cdhich I don't think would be tenable
in my view. I know we can't talk about aesthetics and we can't
talk about financial aspects of it. But when you look at what
could happen with a second story on the back of the property I
think that is much more objectionable to the neighborhood and to
the general comprehensive plan and we are not solving the
problem. So I would be in favor of this variance.
Ron: I think the revisions presented today represent an
acceptable example of minimizing the variance request. And I
would be more than willing to grant this minimum variance if I
could find a hardship. However I don't find any hardship. I
really don't find a practical difficulty. There are a lot of
things about the lot that make it a difficult lot but the reasons
you consider to be a hardship--one was design of structure, two
was the floor plan which presents practical difficulties because
you can't get the living room anyplace else except where you want
to put it.
8
BAM4 . 12 . 90
Zoning encroached on the property--not the other way around which
means the house was built and then they zoned it. And we are
talking about reasonable use. Now I think reasonable use is a
very subjective term. It is one that I venture 3 out of 4 people
in this room would disagree with. What would be reasonable to
one person would not be reasonable to another. So I don't see
where that would be a hardship or a practical difficulty.
The expense factor is not an issue here. And a few other small
things that I don't think had validity. One was the solar gain
thing. So I would say that based on all the things, my
conclusions are that I can't see any reason why you bought this
house. It doesn't meet your needs at all that the granting of a
variance will make this house meet your needs. That, to me, is
not a hardship or a practical difficulty. That is a personal
situation so I would not grant the variance.
Rick: As Mr. Frederick points out, the applicant has come in and
significantly reduced the request from last week by 50% or more.
And it is a minimal request. I think there are some problems
with the lot. And I am sure that without bulldozing the whole
house he could do anything to get what he is trying to accomplish
with this variance.
I might add that I don't think that this addition is going to
impact the views from McSkimming Road going east which is a
consideration on corner lots. I agree with Nick that I would
hate to see a second story go up over there although the existing
setbacks are such that I doubt that you could get a second story
on that house in any fashion without excavating and going towards
the back of the lot.
I am kind of struggling with Joe as to where the hardship or
practical difficulty is and if someone could give me some thread
to hang onto, I would be in favor of granting this variance.
Anne: How about the statement that Mr. Hayes made saying that
the zoning encroached on the property. More than half of the
living area of this house, to me, seems to be in the
encroachment. That is something that is well beyond the owner
whether he was the original owner or not.
Remo: Why don't you make that distinction? He bought it knowing
that the zoning was in effect--the setbacks were in effect when
he bought the property.
Anne: Maybe he should have known. I don't think that everyone
necessarily would know, Remo. I think maybe he should have known
but not everyone necessarily knows that. They think that a small
9
BAM4 . 12 . 90
addition under a roofline can be done and they don't realize that
they can't do that because more than half of the house is within
the setbacks.
Remo, you made a comment that really disturbed me. I can't
remember exactly how it was phrased but it was that 'when they
changed the zoning, they didn't make them tear down the house. I
don't see that anyone has the right to come in and just totally--
Remo: No. I didn't mean it literally. I was saying that they
are enjoying that property right even with--we are not telling--
Anne: But that's not a privilege. We didn't give them a
privilege. They had that house before the zoning was ever
imposed on them.
Remo: But the privilege that they are allowed to build on the
rest of the property that is not in the setback.
Anne: But you made it sound like a privilege that they were
allowed to still keep the house there.
Remo: No. I am saying that the encroachment is there and they
are allowed to keep the encroachment. But my major problem--
Anne: They are not allowed. I think that is their right to keep
that house.
Remo: My major objection is that you can't expand a non-
conforming structure in a setback. That is the other side of the
same coin.
Anne: The sad statement is that we are trying to preserve small,
low-impact houses in this community. And what we are saying here
is we don't like what you have. Take a bulldozer to it. Build a
2 story structure up behind it. That is a financial reality in
this community. This house is worth nothing unless he can
bulldoze it and build a big massive 2 story, excavate the whole
hillside. That is what is happening across the street at the
Aspen Club. And that is what is happening in this community. I
would rather see this house stay small. I would like to put a
restriction that you couldn't do a second story on it.
Ron: You can't do that.
Anne: We have done it in the past. I want a legal opinion that
tells me that we can't do it before I deny this variance.
Remo: I thought Bill explained that. Unless we find that there
is a hardship in what is available to us now that we shouldn't be
10
BAM4 . 12 . 90
going into things like that.
Anne: There is a hardship in working with this property. I see
a hardship. I don't see that you can do an addition on the back
side. I think that this is a minimal request. They are staying
within that roofline. There is no impact from the road either
way. From all 4 sides of this lot there is no impact. And I
hate to see us turn down something like this which is so minimal
in this community.
Ron: You made a statement that we are trying to preserve current
small homes. And the thing is who is the single biggest ogre
when it comes to not preserving small houses. It is the economy
and the people who are trying to maximize the economic value of
their real estate.
There are 2 things where I find fault. If we grant the variance
we are enlarging the house. We are not making it any smaller.
So it is getting larger. And #2 we are not stopping this house
from getting any larger in the future because he still has the
right to build another 800 or 1, OOOsgft on it. So what we are
doing is we are not preserving any small houses. We are just
doing it piecemeal. One piece at a time.
Anne: If we restrict from putting a second story on the house
then we are preserving a small house.
Ron: But Anne, the way I heard the City Attorney speaking saying
was "Look before you do anything, you have to find a very strong
hardship or practical difficulty. If you can't find that it
doesn't make any difference. The rest of it is mute. " Why make
a deal?
Anne: I would like to go back over some of the back reference
then because we have put deed restrictions on property. And I
don't know that we had those guidelines. It depends on who is in
the lawyer' s seat at the time we are discussing this. We keep
getting a new set of rules or a different opinion.
Charlie: I would like to strengthen a point. I feel that in
granting this variance we are avoiding something else happening.
I don't think you got the drift of what I am trying to say. And
what Anne is trying to say. By putting this addition on the
chances of this house being bulldozed and becoming a monstrosity
is significantly reduced. That is the point that Anne and I are
making. That is why I am in favor of the variance. I am not so
much in favor of making more space. I am in favor of trying to
preserve a small house with a small addition. If this can't be
done possibly the owner might sell this house because it is not
adequate for him. And the next person that buys it will bulldoze
11
BAM4 . 12 . 90
the house and really put a monstrosity on that corner which you
have no control over.
Remo: Hey, we have a code out there.
Anne: And look at the size of the houses in Aspen that have been
built with that code in effect.
Charlie: But then you are really into a design which is going to
impact that neighborhood a lot more. As an architect I know that
you could take this hillside out. My point and Anne's point is
that there is right now a practical difficulty in maintaining the
small house.
Josephine: In addition to what we have already said--we know
this is a non-conforming lot of record and that the new codes
have really impacted them. Charlie mentioned that this is a
unique lot and I am going to agree with that and say that that is
one of the hardships present here.
Mr. Hayes talked about an accumulation of hardships. And I think
some of his points there were worth looking at. I liked this
quote of his. He was talking about the code when he said this.
According to the code it seems like "Adding space is not a
reasonable use" . I think that adding space in this case is a
reasonable use. The smaller space I feel more comfortable about
it--the proposed new addition as being a minimum.
The design of the house was not in his control. It is what he
has. It happens to deprive him of a use of a reasonable living
room. That, I think, is part of the accumulated hardship. I see
this variance as a temporary one. Taking a look at where we are
now with all of these huge structures going in. There is a need
for more smaller houses around here. There is a need for that
particular lot to have a small low house upon it and yet to be
livable so somebody doesn't bulldoze it. I see the granting of
this variance as an opportunity to keep what is there, there
longer. Every house needs a reasonable living room.
I think there are an accumulation of hardships there and I am in
favor of granting the variance.
Remo: My feeling hasn't changed from last week. And I think my
major objection is that I don't think a practical difficulty or
hardship has been shown even with your new arguments. And my
major objection is expanding on a non-conforming structure. I
don't object to a second story within the setbacks if that is
your property right.
We don't control monstrosities. They are out of our purview.
12
BAM4 . 12 . 90
And I would like the Board to stay within the guidelines that we
are empowered to. And that we can't really be subjective about
what we would like to see in this town. We would all like to see
smaller houses but I don't think this Board controls that aspect
of it. And this does not deprive the owner to eventually build--
and I don't even want to use this argument--I will state it but I
think we have to show that there is a hardship or there isn't a
hardship. But if I could go beyond that I would say that this
does not deprive the owner to eventually build out to its maximum
capacity including a second story and including bulldozing out
the-back side or- whatever.
I still feel that all the things that I mentioned last week--the
small lot--it doesn't meet requirements of code in that vicinity.
It doesn't have the maximum front yard that is required. There
are so many things in encroachment on this piece of property that
I don't believe that we should add to it and mainly because they
haven't shown hardship or practical difficulty in my point of
view.
Josephine: I would like to add to my statement that I do think
that the granting of this variance would be within the spirit--
within the spirit--of the general plan.
Anne: I agree. If we turn someone down on a variance request,
can they appeal to City Council?
Drueding: That is their next step.
Remo reopened the public portion of the meeting.
Paul: I would like to hear more about Ron' s comment that I
shouldn't have bought the house.
Ron: It just seems to me that all the reasons that you presented
as a hardship, Mr. Hayes, were ones that made the house unlivable
for you. The living room is not in the right place. It doesn't
have enough room. It is situated wrong on the lot. The code
puts tremendous hardship on this building. But you bought the
house. You are the one who made that decision.
My knowledge of this town is that most buyers are relatively
sophisticated when it comes to buying a piece of property. And
when they come in and they say "Well, this doesn't work at all
and it is because of the code", I don't buy that. You should
have every opportunity to read the code before you buy a piece of
property.
Charlie: My opinion about that is quite different. I know that
when somebody buys a piece of property, their situation changes.
13
BAM4 . 12 . 90
After you move into a house or you add to your .family
Charlie was cut off here.
Paul: Well, again, it won't serve me too well to aggravate the
point. tut I am really shocked--genuinely shocked by that
comment. Let me tell you why. To say that buyers are
sophisticated--that is a broad assumption on your part. I have
bought 5 houses in my life and I have never looked at a survey.
I assume that the house is what it says to be and when I clear
the title that I don't have a problem. That - could -be erroneous
or naive.
Also it is like saying "Well, gee you should have known" . Well,
I should have known a lot of things at 21 that I do know now.
And it falls in the same category of things. Also I bought the
house initially as a place or retreat in Aspen, Colorado. Now I
have decided I want ultimately to live here. And that changes my
needs--the character of what I need. Mr. Drueding alluded to
talking to the City Attorney's Office in respect to a point. I
talked to them also to, again, glean as much perspective as I
could and again it is an accumulation of things. Again,
according to our conversation--you just can't totally ignore
economics. That is not the thrust of my hardship but when you
are talking about 3 times the amount of money, it is a factor.
I am entitled to having a living room. It is having a living
room where I want it. I am not trying to satisfy some ultimate
personal need. It is the only logical place where you could add
space that gives you access to the things you would normally
expect in a living room. It is a hardship to build somewhere
else. You have some right to live in a manner of comfort that
would be consistent with today' s environment. And the present
space is confining. It is restrictive. 1, 400sgft is a tiny
little house if you are going to live in it. And the
restrictions that apply and the fact that it encroaches on things
that happened subsequently--it was grandfathered--like most
things in this country are when they pass a law that impinges on
a right that was granted in the past.
The house was built in a certain place on the lot. It was built
with a certain architectural style and the design is laid out in
a certain manner and it is an extraordinary practical difficulty
and a hardship to add some space or a minimal amount of space and
not be able to add it contiguous to the living space that is
already there.
Again, I have got to walk through a bedroom out a back door, go
through my kitchen to "my living room" . I am using that in
quotes because it is not a living room. If anybody sat in that
14
BAM4 . 12 . 90
living space they would feel constricted.
I would sit here and tell you Ron's assumption "You should have
known"--
Ron: That wasn't my assumption. What I said was that based on
the reasons you gave me as a hardship were all the reasons why
you should not have bought that house in the first place. So, to
me, you didn't present a hardship to me.
Paul: The reason most people are successful is because they have
a single minded dedication to one activity and outside of that
they are virtual vegetables. And I would plead guilty to that
stereotype. When I go outside of my business and I would say 95%
of the people building or buying a house, they simply wouldn't
look at that in a hundred years.
I did look at it. I didn't know what it said. There were the
lines and it looked like the house was there. And I don't think
I am atypical. So to say that I should have known--that is
hypothesis and contrary to fact. I think the definition of
hardship has been severely and overly defined.
Remo: But that is our constraints. We have definitions about
our guidelines that allow us--and quite frankly, on a personal
basis, I find you an honorable man. I like what you are going to
do. In any other situation I would say this is everything we
want here. It is a reasonable request and yet within the
confines of how we grant variances it is very difficult to grant
you one. I want you to understand that. We don't come from an
adversarial point of view here. I think most of us really agree
with you and what you are trying to attempt here.
I am just saying that it is very constrictive and you really have
to show a practical hardship and difficulty on our terms--not
yours. That is the difference I think.
Paul: Why isn't it a hardship to not in the easiest manner
possible with the addition of the least amount of space to be
able to add it to this space which would be logically contiguous?
Why is it not a hardship if someone says "You can't do that. You
have got to put it in an area that has no--
Remo: It is because you are expanding a non-conforming use.
That hardship as defined by you is not the same hardship in my
point of view that the City tells us that we should look at.
Paul: I talked to the City Attorney and he more or less gave me
the broad outline of the concept that all of this was there. The
design was there. The structure was there. It was where it was
15
BAM4 . 12 . 90
on the lot. So what I am telling you is that these are
legitimate considerations.
Remo: But he didn't hear the whole case. He just referred to
information that you gave him. And according to that information
he would say "Well, you probably have a legitimate reason for
going before the Board of Adjustment" . I am sure he didn't say
"It is a good reason to grant the variance" .
Charlie: I would like to remind everyone that every case that
comes before us is unique. And when we start talking about what
somebody else did after having been granted a variance, I don't
think that is fair to the applicant.
Josephine: If we gave a strict construction to our guidelines
and never granted a variance for any side yard setbacks or
anything else, we wouldn't be in existence, you know. So there
is one end to this continual. The other end of this continual is
that every time somebody comes and makes a request we hear it and
we say "Oh yes this is in the spirit of the plan. We will just
grant them that variance" .
I think what we must keep in mind is that the code is words that
are made at a certain time. The world is in continual change and
we in Aspen of all people should know that that is just happening
faster than we would like it to happen_. It is the basic fact of
life on planet earth. The basic one.
Rick: I agree with Jo. In the 8 or 10 years that I have been on
this Board I could probably count on one hand the number of cases
that have demonstrated by the letter of the law a hardship or
practical difficulty. If we had gone by the letter of the law
each and every single time we would never grant a variance. It
is so difficult to prove a difficulty or a hardship.
Remo then closed the public portion of the meeting.
MOTION
Anne: I move that we grant the newly requested variance for case
#90-2 with the new proposal of the smaller addition of the living
room--242sgft.
Charlie seconded the motion.
Roll call vote. Charlie, yes, Josephine,- yes; Rick, yes, -Anne, -
yes, Remo, no.
Variance granted.
16
BAM4 . 12 . 90
The Board thanked Mr. Hayes for his patience and his tenacity.
Bill Drueding: For the record. The purpose is we have to find a
hardship. You found the hardship. I don't care what you decide
what is the hardship in a sense. And then you give that man a
variance.
If you have a restriction on some other part of his property as
Nick McGrath had suggested and deed restricting off part of his
property, that would have been out of line. That isn't the point
I was trying to make. Hardship and practical difficulty--just
deal with the hardship. That is the point I was trying to make.
Sandy Stuller is saying you can't do that. Sandy Stuller wrote
this in 1974 and she maintains it is still in effect. Fred has a
different opinion and he is not City Counsel right now.
Rick made a motion to adjourn.
Anne seconded the motion with all i favor. Time wad-)15: 35pm.
Janie M. Carney City Deput y,.0 erk
17