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HomeMy WebLinkAboutSave Aspen Appellate Brief re 1020 E Cooper Appeal 124 West Hyman Ave, Ste 1A Aspen, Colorado 81611 telephone: 970-544-5900 www.praxidicelaw.com ________________ Peter W. Thomas Esq. peter@praxidicelaw.com April 9, 2021 Nicole Henning, City Clerk James R. True, Esq., City Attorney 130 South Galena Street Aspen, Colorado 81611 Property: 1020 E. Cooper Avenue Applicant/Appellant: 1020 E. Cooper, LLC Date of Decision Appealed: February 17, 2021 To the Aspen City Council: My firm represents Save Aspen, an independent non-profit organization formed by local residents who seek to preserve and protect the unique character of our community against out-of-scale development proposals which threaten to erode Aspen’s core values. This is not organized opposition to affordable housing. Save Aspen fully supports Aspen’s affordable housing program and the critical needs it serves. Save Aspen seeks only to ensure that new development on this historic property be compliant with the stated policies of the City of Aspen Land Use Code (“LUC”) and the incorporated Historic Preservation Design Guidelines (“HPDG”). Save Aspen submits this brief in support of the Historic Preservation Commission’s (“HPC”) February 17, 2021 Decision and in opposition to the Applicant’s appeal of the HPC’s determination. This brief is filed pursuant to Resolution No. 33 (Series 2021) and Section 26.316.020 of the LUC. I. Introduction The City Council is familiar with the history of this storied and historically designated Property. The home of the late Su Lum, 1020 E Cooper Avenue reflects a snapshot of Aspen’s past with a small miner’s cabin of historic significance to the Aspen community. Developers twice have sought to redevelop the lot; the HPC twice has rejected developer plans based, in part, upon the incompatible mass Save Aspen Brief in Opposition to Applicant Appeal April 9, 2021 Page 2 of 7 and scale of the proposed development which would dramatically overwhelm the historic resource. See e.g., T2, p.131, ln.12-15; p.132, ln 10-13; T1, p.57, ln.13-21 & 25; T2, p.104, ln.8-13. For context, the current Applicant seeks to shoehorn a new 5,000 square foot, twelve bedroom, three story, 32-foot tall structure behind a 15-foot single story 1,093 square foot historic cabin onto a non-conforming 4,279 square foot lot. 0373, 0421, 0470; 0477-78, 0783-84 T1, p.21, ln 3-4; pp 89-90. The Applicant’s proposed building would tower over twice the height of the historic cabin, leaving a mere 7 feet of distance between it and the neighboring Cooper Avenue Victorian building, a setback of only 5 feet in the front yard, and eliminating any meaningful open space. Ibid; see also 0481. The Applicant insists that its proposed development is fully compliant with the LUC. T1, p.16, ln.22-23. But as detailed below, that simply is not accurate. II. Standard of Review under Section 26.316.030.E The LUC establishes the applicable standard of review governing this appeal, providing that “A decision or determination shall not be reversed or modified unless there is a finding that there was a denial of due process or the administrative body has exceeded its jurisdiction or abused its discretion.” Section 26.316.030.E. “Shall not” is mandatory language which does not permit the Council to reverse even if you happen to disagree with the HPC. Rather, your review on appeal is restricted to the above standard in Section 26.316.030.E. It is a limited review to ensure only that the Applicant was afforded due process and that the HPC didn’t make ad hoc findings out of thin air or in contravention of the Code. III. Defining the Legal Parameters of and Constraints Upon the Council’s Review A. The HPC Did Not Deny the Applicant Due Process Due process is just another way of expressing guidelines of fairness in a proceeding. Our courts define due process, in this context, as requiring notice and an opportunity to be heard. See generally, Save Aspen Brief in Opposition to Applicant Appeal April 9, 2021 Page 3 of 7 Van Sickle v. Boyes, 797 P.2d 1267, 1272 (Colo. 1990). Save Aspen is not aware of any basis for the Applicant to claim a deprivation of either. The Applicant was permitted full opportunity to present evidence and arguments before an impartial board. The Applicant was afforded its due process rights. B. The HPC Did Not Abuse its Discretion or Exceed its Jurisdiction Abuse of discretion is a legal term of art which carries precise definition capable of clear and consistent application. The Colorado Supreme Court defines the term as follows: “Abuse of discretion means that the decision under review is not reasonably supported by any competent evidence in the record.” Van Sickle v. Boyes, 797 P.2d 1267, 1272 (Colo. 1990), emphasis added. The Court further defines “no competent evidence” to mean “that the ultimate decision of the administrative body is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.” Id. at 1309. So long as there is some supporting evidence, that is legally sufficient. Even a mere scintilla of evidence is enough to overcome the “no competent evidence” standard. Moreover, “administrative proceedings are accorded a presumption of validity and all reasonable doubts as to the correctness of administrative rulings must be resolved in favor of the agency.” Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990). The Council must therefore extend deference to the HPC and presume its determination is proper. Stated otherwise, you can’t reverse just because you disagree This is an impossibly high burden for the Applicant to meet on appeal. The record is extensive and replete with evidence pertaining to and supporting the relevant review criteria. Reasonable persons might disagree or reach different conclusions from evidence presented to the HPC, but that doesn’t matter. This is not a “call up” appeal at which the City Council may review the evidence de novo and draw its own conclusions. It is not within the purview of the City Council on this appeal to substitute its judgment for that of the HPC. Rather, the City Council is required to uphold the HPC’s decision so long as there is any supporting evidence in the record. Van Sickle v. Boyes. The City Council would Save Aspen Brief in Opposition to Applicant Appeal April 9, 2021 Page 4 of 7 commit reversible error itself and exceed its own jurisdiction if it were to reverse or modify the HPC’s decision based on the record before it. IV. The Record Amply Supports the HPC’s Determination and Thus Must Be Upheld The Applicant requested various land use approvals for the Property including, among others, Conceptual Major Development pursuant to Section 26.415.070.D seeking to modify the site and historic resource to construct a new detached building and Relocation approval pursuant to Section 26.415.090 to relocate the historic home to a new position on the lot. The LUC incorporates the Aspen Historic Preservation Design Guidelines (“HPDG”) which sets forth the governing policies and review criteria for new construction on historic sites. The HPDG “set forth the standards necessary to preserve and maintain the historic and architectural character of designated properties and districts.” HPDG Introduction. All of the applicable HPDG review criteria were detailed in the Staff Memoranda. Bates 0470-0492. The HPDG requires that the HPC “determine that a sufficient number of the relevant guidelines have been adequately met in order to approve a project proposal”. HPDG Introduction. All parties agreed that Chapter 11 sets forth the applicable provisions of the HPDG. T2, pp.113-114. Chapter 11 governs applications for New Buildings on Landmarked Properties. The stated policy of Chapter 11 is to “reinforce the original character of many of Aspen’s neighborhoods” by designing new buildings “in a manner that reinforces the basic visual characteristics of the site.” HPDG 11. In furtherance of this objective, Chapter 11 mandates: “Mass and Scale [of] A new building must be compatible in mass and scale with its historic neighbor and not overwhelm it.” HPDG 11. Any new building must instead “reflect the heights and proportions that characterize the historic resource.” HPDG 11.3 The guidelines further mandate that “the front shall not appear taller than the historic structure.” HPDG 11.4 To provide uniform alignment of front yards, “Maintaining Save Aspen Brief in Opposition to Applicant Appeal April 9, 2021 Page 5 of 7 the established range of setbacks is therefore preferred.” HPDG 11. Height, mass, and scale are central policy considerations of the HPDG expressing the overriding objective of prohibiting development that overshadows and dominates the historic resource that the Guidelines are designed to protect. The Applicant presented the HPC with arguments, plans, elevations, drawings, and other data addressing these guidelines and criteria. Members of the public also were provided opportunity to speak, with many presenting written materials detailing their objections to the height, mass and scale of the proposed structure. Bates 0616-749. Public comment is proper evidence for the HPC to consider. Western Paving Constr. Co. v. Jefferson Cty., 689 P.2d 703, 706 (Colo. App. 1984). In the interest of efficiency, Save Aspen incorporates and refers the Council to the comprehensive inventory of evidence detailed throughout the Briefs of the Riverside Condo Association and Cooper Avenue Victorian Condominium Association. Save Aspen underscores, however, that it is not the weight of all evidence which is determinative on appeal, but rather the existence of “any competent evidence in the record” that dictates the outcome of this appeal. Van Sickle, 797 P.2d at 1272. The inquiry for this Council on appeal can thereby be reduced to the simple exercise of looking to the basis of the stated findings of the Commissioners who voted to deny the application and asking whether there is any evidence in the record to support their decision to deny. The application’s failure to comply with the LUC (which incorporates the HPDG) was of significant and rightful concern to at least two of the four Commissioners. They found the proposed structure failed to comport with the criteria of the HPDG by being entirely out of proportion to the historic structure in both mass and scale, and in eliminating desirable open and transitional spaces. See T2, p.131, ln.12-15; p.132, ln 10-13. Commissioner Moyer considered the evidence and concluded: “I feel that the mass and scale is too much period.” T2, pg.114, ln 1-2. Commissioner Moyer supported his determination by cross referencing the evidence to specific criteria in the HPDG: “I think it’s too close to the sidewalk. I think Save Aspen Brief in Opposition to Applicant Appeal April 9, 2021 Page 6 of 7 we really need to look at 1.1 and 1.7, 11.3 and 11.4 and discuss those further if you want to keep going with this but to me, it’s simply too large in mass and scale.” T2, pg. 123-124, ln 23-2. This is a textbook example of a well formulated finding predicated upon the evidence as applied to specific review criteria. Commissioner Kendrick agreed, finding from his review of the evidence presented to the HPC “it’s still too dense for the -- for the site and it still overwhelms the historic resource” in violation of the LUC. T2, pg. 113, ln. 22-24. He then proceeded to identify specific evidence in the record before him (the number of units) which he found to be causative: “I mean realistically I think it just needs to be less units so the overall scale of the building can be smaller.” T2, pg. 120, ln 17-19. The concerns and findings by Commissioners Kendrick and Moyer mirrored the reservations stated by other Commissioners at the initial hearing on February 10, 2021. Commissioner Thompson noted “I mean my…biggest concern is the mass and scale.” T1, p.115, ln.5-6. Commissioner Halferty similarly expressed that “Although the building isn’t attached on the proposed application, I feel like the mass and scale is just too large.” T1, p.98, ln.15-17. “I just think the scale is just too tall.” T1, p.99, ln.12-14. The HPC articulated rational reasons, based on their consideration of evidence of the structure’s size and scale, why the application fails to comply with the LUC and the plain policies and language of the Historic Preservation Design Guidelines Review Criteria. Nothing more is required to meet the requisite standard of review under Section 26.316.030.E of the LUC and the interpretive legal authority enunciated by the Colorado Supreme Court in Van Sickle. Notably, their findings also directly refute the Applicant’s refrain that the proposed structure is “fully compliant” with the LUC. In the words of Commissioner Kendrick: “the whole idea that this project is LUC compliant I think is -- you know -- a bit misleading.” T2, pg.114, ln 7-10. The four Commissioners initially split and deadlocked over the mass, scale, and separation between the historic resource and the proposed new building. T2, pg124, ln 23. The HPC thus offered Save Aspen Brief in Opposition to Applicant Appeal April 9, 2021 Page 7 of 7 the Applicant the opportunity for a continuance in order to address the Commissioner’s stated concerns. The Applicant rejected the offer and forced a vote, advising: “We request an action from HPC on the project tonight and a clear decision so that we can decide the next steps for this project.” T2 pg127 ln2- 5. The Commissioners adopted a motion to deny the application and passed the motion with a 3-1 vote. V. Conclusion It is beyond cavil that the HPC was acting within the proper scope of its jurisdiction and made sufficient findings, supported by competent evidence in the record and based, that the height, mass, and scale of the proposed building would overwhelm the historic resource and is inappropriate for this site. That is all that the HPC was required to do, and that is all that this Council is permitted to ask. Extending a presumption of validity to the HPC’s determination, as this Council is required to do, the Council would commit error if it reversed or modified the HPC determination. LUC Section 26.316.030.E. (the determination “shall not be reversed or modified unless [the HPC] exceeded its jurisdiction or abused its discretion.”) The HPC did neither. As such, the HPC determination is valid and must be affirmed regardless of whether any member of the City Council might have decided it differently. Sincerely, PRAXIDICE, P.C. _________________________ By: Peter W. Thomas, Esq.