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HomeMy WebLinkAboutminutes.council.20150824Regular Meeting Aspen City Council August 24, 2015 1 CITIZEN COMMENTS & PETITIONS ...................................................................................................... 2 COUNCILMEMBER COMMENTS ............................................................................................................ 2 AGENDA ADDITIONA AND DELETIONS .............................................................................................. 2 BOARD REPORTS ...................................................................................................................................... 3 NOTICE OF CALL UP ................................................................................................................................ 3 CONSENT CALENDAR ............................................................................................................................. 4 Resolution #86, Series of 2015 – Easement for Pitkin County Courthouse ......................................... 4 Resolution #90, Series of 2015 – Castle Creek Over Crossing Bridge Repair Contract ...................... 4 Resolution #88, Series of 2015 – Authorizing the Expenditure of Funds Generated through the Renewable Energy mitigation Program ........................................................................................................ 4 Resolution #89, Series of 2015 – Truscott Site improvement and Burlingame Phase 1 Parking – Construction Contract ................................................................................................................................... 4 Minutes – August 10, ............................................................................................................................ 4 Resolution #87, Series of 2015 – Contract for Security Services ......................................................... 4 CERTIFICATION OF BASE 2 REFERENDUM PETITION ..................................................................... 5 RESOLUTION #93 SERIES OF 2015 – Armory Building Use Ballot Question ........................................ 8 RESOLUTION #92, SERIES OF 2015 – Coordinate November 3, 2015 Election with Pitkin County ...... 9 ORDINANCE #31, SERIES OF 2015 – 110 E. Bleeker – Establishment of Transferable Development Rights ............................................................................................................................................................ 9 ORDINANCE #32 & #33, SERIES OF 2015 – Ranger Station Subdivision, Lots 1-3, Growth Management Allotments ............................................................................................................................. 10 ORDINANCE #34, SERIES OF 2015 – Certificates of Affordable Housing Credits Code Amendment . 11 ORDINANCE #35, SERIES OF 2015 – Code Amendment – Residential Mitigation Requirements ........ 12 RESOLUTION #85, SERIES OF 2015 – Annexation 705 W Hopkins – To Be Continued to 7/28/2015 . 13 ORDINANCE #23, SERIES OF 2015 – 620 E Bleeker Aspen Historical Society, Lot Split and TDRs ... 14 ORDINANCE #26, SERIES OF 2015 – Obermeyer Place – Rezoning and Minor PD Amendment ........ 14 ORDINANCE #27, SERIES OF 2015 – Land Use Code Reliance Code Amendment .............................. 14 RESOLUTION #96, SERIES OF 2015 – Reinstating the Base 2 Application ........................................... 16 RESOLUTION #95, SERIES OF 2015 – Ballot Language for Base 2 Question ....................................... 18 ORDINANCE #23, SERIES OF 2015 – 620 e Bleeker – Aspen Historical Society – Lot Split and TDRs .................................................................................................................................................................... 19 ORDINANCE #26, SERIES OF 2015 – Obermeyer Place – Rezoning and Minor PD Amendment ........ 21 Regular Meeting Aspen City Council August 24, 2015 2 At 5:00 pm Mayor Skadron called the regular meeting to order with Councilmembers Mullins, Daily, Myrin and Frisch present. CITIZEN COMMENTS & PETITIONS 1. Ron Krajian lives at the Aspen Square and handed out pictures of the trees blocking the views in front of the windows of his second floor corner unit. The City planted trees that are now 40 feet high and spread out like crazy. He is asking permission per section 21.30.050 to trim the top 12 to 14 feet of the trees. Mayor Skadron said pruning is one thing, loping 10 feet off the top is another. Mr. Barwick said parks will come by to see what pruning can be done. Councilman Frisch said he spoke to parks and loping off 10 to 12 feet isn’t trimming. The hierarchy in this town is trees, buildings, dogs and people. He does not think they were planted to block your view. We would be opening a big can of worms. Councilwoman Mullins said the pictures are very effective but they seem to be deciduous so you have the view six months of the year. We could talk to the forester about thinning the trees. 2. Jim Smith from Concept 600 said they had an owners meeting last Saturday. The owners wanted to express their appreciation to Community Development and Council for returning their property rights. 3. Matt O’Reilly, 225 N 6th Street and representing the Victoria Square owners said he is in opposition of the rezoning, variance and TDR’s for the Historical Society. He is a part time resident here. He supports staff’s point of view against this. Can the property be rezoned. You can argue the development rights have been sterilized. None of the Victoria Square residents received notice about the July 27 first reading. Why go for TDRs and rezoning without committing to selling the TDRs or building the residence. They may build in the future or they may sell the TDRs in the future. He supports employee housing, happy to pay the transfer tax, suggest AHS consider 16 TDRs. COUNCILMEMBER COMMENTS 1. Councilman Frisch said the bike race was very well handed. Hats off to parks and special events. It was mellower and a nice trade off from last year’s start. He thinks it is a great asset for the town. 2. Councilman Myrin thanked the sponsors of the bike race including Shane Aspen Real Estate, Aspen Snowmass Related, Aspen 82, Marmot, Aspen Club, Colorado Mountain Express, KSPN, We Cycle, Aspen Times, Cycling Club and Energy Smart. 3. Councilman Daily seconded the appreciation for everyone associated with the race. 4. Councilwoman Mullins also said the race was great. She mentioned the article in paper talking about the downsides of the race. She said a follow up work session may be good. 5. Councilwoman Mullins said she was in Anderson Park the other day and one of the buildings is falling down and one of the other ones is almost falling down. She wants to know why. 6. Councilwoman Mullins met with Eden Vardy of Aspen Tree and what they are doing at Cozy Point. She encourages everyone to visit. 7. Mayor Skadron concurs with Council on the bike race. It showcases our community and emphases Aspen as a bike destination. While the television coverage was less extensive as in the past the marketing impact is worth the financial investment and the inconvenience the community sustains. He is curious to hear how the community feels about no cars in the downtown core. AGENDA ADDITIONA AND DELETIONS Resolution #85, Annexation of 705 West Hopkins will be continued to September 28 after hearing briefly from the City Clerk. Ordinance #26, Obermeyer Place Rezoning will be continued to tomorrow, August 25. Ordinance #23, 620 E Bleeker Aspen Historical Society will also be continued to tomorrow, August 25. Regular Meeting Aspen City Council August 24, 2015 3 BOARD REPORTS 1. Councilwoman Mullins stated the Red Brick has a terrific outdoor seating area and a great exhibit inside. The Plein Air festival two weeks ago was very successful. 2. The Board of health met last week. It is a combined City/County board. They discussed funding strategies. The health and human service grants are in now. She is representing the City on the grant committee and will update as they happen. 3. The BOCC met mainly on the landfill. It was alarming information on the short life expectancy and the effort to divert trash. The City has one staff member that is dedicating 30 to 50 percent of her time to managing the Rio Grande center. 4. Councilman Frisch said CORE is doing great things and we will hear from Mona with the consent item. 5. Mayor Skadron stated RFTA met last Thursday. One key issue is corridor access. RFTA has responsibility with managing the bike trail along the Rio Grande corridor. He is concerned that there is no global RFTA policy with trail access. There was a request last meeting from Aces and he voted against it. The second key issues is the integrated transit system and long term strategic plan. He believe Aspen has met its bus threshold. NOTICE OF CALL UP 308 S Hunter Sara Nadolny, community development, told the Council Native Roots is located in the top level and Little Ollies and Zanes are located in the bottom level. On August fourth, P&Z granted unanimous approval for reskinning of the building. The applicant is looking to replace the wood siding with ceramic C channel trim. Councilman Myrin asked about the lighting for Native Roots and if the backlit sign is allowed. Ms. Nadolny said the sign was not part of this application and any new sign would have to go through zoning. She will look in to it. Councilman Frisch said he is supportive of it. Councilwoman Mullins said she has four questions that are straight out of the guidelines. Does this material reflect, compliment, and enhance the context of the commercial core or the brick buildings that are adjacent to it or across the street. Does it reduce the perceived scale of the building. It is compatible with traditional masonry in town. Does it have proven durability in weathering in this climate. She is not sure the treatment complies with all or some. Ms. Nadolny replied they see ceramic tiles as a form of masonry compatible to what is used around town. It is very similar to the L’hostria building a block over. It was approved with very similar tile. Staff has no issues regarding the scale and how it is perceived as a larger massing. It softens up the building a bit. It has been proven durable for our weather. Councilwoman Mullins said it looks out of character with the commercial downtown core. It is going in a direction she is not sure is in character with the downtown. Councilman Frisch asked is the concern the guidelines are wrong or the board made the wrong call. She replied that’s the problem with guidelines. They are not black and white. Is it compatible. Is it reinforcing the downtown. It does not look thought out but simplistic. Chris Bendon, community development, said it is not in the historic district. The exterior materials now are grooved plywood. It is a very simple exterior refreshing of the building not an extensive remodel. We saw this used successfully at the L’hosteria building. It was a 7 to 0 vote at P&Z. Councilwoman Mullins stated she wants to be careful since we are seeing more and more of these remodels come through. Mr. Bendon said it might be different if they were taking the proposed material and replacing it with the grooved plywood. Councilman Myrin said he would support Councilwoman Mullins to call this up. Councilman Myrin moved to call up 308 S Hunter; seconded by Councilman Daily. All in favor, motion carried. Regular Meeting Aspen City Council August 24, 2015 4 CONSENT CALENDAR Resolution #88 REMP Mona Newton, executive director Mayor Skadron said REMP stands for renewable energy mitigation program and gives a property owner a choice for mitigating for excessive energy use through the installation of onsite renewables or paying into an impact fee. Annually the funds are distributed. A citizen board reviews applications and makes applications to the CORE board and City Council and Pitkin County are the final authorizing body. The combined total is 1.6 million dollars and spread across four programs including the Randy Udall energy pioneer grant, REACH, energy smart and net zero buildings. Councilman Myrin said CMC is receiving 75,000 dollars. They have their own district tax and asked if they can raise that within their district. Ms. Newton replied it will be matching. All of the grants will not be fully funding a project. They are partial or matching. CMC has already raised some money and will be matching. They requested 100,000 dollars and CORE is recommending 75,000. Councilman Frisch said if you build in the City of Aspen you might have to kick in to the REMP. Pitkin County has the same rules. He asked about Snowmass. Ms. Newton said they have a similar program, REOP. Since up till recently there has been no building going on in town the fund balance has been low. Councilman Frisch said he wants to make sure Snowmass is collecting their fair share but is happy to stick with this for now so CORE is not caught in the middle. Councilman Daily said some of the approved funding is significantly less, what are the questions to determine the funding. Ms. Newton said they use a matrix. The requests are scored on community assistance and affordable housing, cost effectiveness, public visibility and education, market influence, new technology, energy savings and carbon savings. Ms. Newton said this is the third year for REACH. It is a rolling grant that supports low to moderate income families. It provides energy assessment for their home. They provided assessments for 27 homeowners last year. This is only for Pitkin County. The zero energy incentive program provides up to 10,000 dollars as an incentive to get to zero. Mayor Skadron said it is exciting and CORE is doing great work. Resolution #87 security services Councilman Myrin asked what happens if construction runs early or goes late. It looks like a fixed amount will there be an adjustment in the amount. Jack Wheeler, asset, replied it is set for three months but it may come in early and we would negotiate the contract. It depends on how early. There is a rate schedule tied to the contract. Resolution # 90 Castle Creek Over Crossing Bridge Repair Austin Weiss, parks, said this is for the pedestrian bridge by Prince of Peace Church. It was struck by a truck. Jim True, attorney, said claims have been submitted and insurance will cover it.  Resolution #86, Series of 2015 – Easement for Pitkin County Courthouse  Resolution #90, Series of 2015 – Castle Creek Over Crossing Bridge Repair Contract  Resolution #88, Series of 2015 – Authorizing the Expenditure of Funds Generated through the Renewable Energy mitigation Program  Resolution #89, Series of 2015 – Truscott Site improvement and Burlingame Phase 1 Parking – Construction Contract  Minutes – August 10, 2015  Resolution #87, Series of 2015 – Contract for Security Services Regular Meeting Aspen City Council August 24, 2015 5 Councilwoman Mullins moved to adopt the consent calendar; seconded by Councilman Daily. All in favor, motion carried. CERTIFICATION OF BASE 2 REFERENDUM PETITION Linda Manning, city clerk, told the Council on June 15 she received an intent to file a referendum petition for Ordinance 1, Series of 2015 by Ward Hauenstein and Marcia Goshorn. On July 8 they submitted the petition and it contained about 1300 signatures. She verified the petition contained sufficient signatures. 733 signatures were verified when it was required to have 617. This was the first available Council meeting after the signatures were verified in which to notify Council. Jim True, city attorney, stated upon receipt of information that the signatures were verified the applicant indicated to City Staff he intended to withdraw, vacate, abandon the application. On August 19, 2015 he sent a letter stating he formally wished to withdrawal the PD application and forfeiture of the associated approvals. Mr. True said if a vacation, forfeiture, abandonment has legal effect, and he believe it does, then no further action is required on this item. The charter does state that when a petition is deemed appropriate for a referendum, Council shall reconsider the referred ordinance by voting its repeal. Our code does have provisions such as abandonment of an application deemed void and there was clear vacation and forfeiture of all rights, he does not believe there is any referred ordinance that is appropriately reconsidered by Council. It is his opinion there is no further action required. There is no vote required. This application has been effectively vacated, forfeited, abandoned. If however, Council wishes to take further or different action it is up to Council. Mayor Skadron opened the public comment. 1. Ward Hauenstein said the successful completion of a petition requires one of two actions of Council; repeal to go to a vote. Mr. Hunt indicated there would be no election. The solution is for Council to repeal Ordinance 1 of 2015. It requires 75 percent of Council to repeal. In the absence of that it automatically goes to a vote. The letter in the packet indicates there is no desire to go to an election. 2. Maurice Emmer stated he agrees the application may be dead as a legal matter but it is irrelevant. When Council passes an ordinance and the people raise a petition the Council must repeal the ordinance or must allow the matter to go to a public vote. The Council should follow the law. Council needs to stand up and make a choice. 3. Marcia Goshorn said we need to make sure we don’t have unintended consequences in the future. The ordinance was passed and the ordinance follows the land. If it is rescinded at this point it is not an unintended consequence that could accidently happen in the future. Get rid of the ordinance and there is no question of what can happen in the future. Mr. True said the ordinance has never taken effect under the law. He does not think it is necessary to take further action. Council could take the action of repealing or setting the election. There is also a provision that would allow the applicant to ask for the application to be reinstated. He has no problem with Council taking one of these actions. He is not suggesting the vacation is not ineffective. Mr. Emmer said the people have spoken and want Council to repeal the ordinance. He said he heard it said today that some on Council were advised it would be dangerous to repeal the ordinance. If there is that belief it should be discussed in open meeting. Councilman Frisch interpreted that as there are two legal options from a legal standpoint but only one option from a community standpoint. Council should take some kind of action tonight. Councilwoman Mullins asked for the difference between repeal, rescind or revoke. Mr. True said the charter says following a petition Council shall reconsider a referred ordinance by voting its repeal. The proper term is repeal. At this point the application is withdrawn, vacated, abandoned, forfeited and no further action is necessary. Councilwoman Mullins said in your opinion there is no Regular Meeting Aspen City Council August 24, 2015 6 standing ordinance because it did not take effect because of the petition. Mr. True said it never went into effect and before it ever finished the process to become in effect the applicant withdrew it. Mr. Hauenstein replied Council did pass the ordinance. It is on the books. Council must repeal or send it to a vote. Mr. True said he respectfully disagrees. The ordinance did pass but never became effective and now it has been withdrawn. 4. Mark Hunt said he really did think it was over. He acknowledged there were enough signatures from the petition and that he sent a letter abandoning the application. From that time he started reading that the people have spoken but he does not believe the people have had the option to speak. He always believed in Base and it is the right thing for the community. When it finally came down to repeal or go to a vote, he thought he was protecting Council. Now there is one of two choices, send to a vote or repeal. If it is something Council believes in and they still believe in the project he is willing to take it to a vote. He is a believer that Council should vote for what they believe in. If he has a right to campaign and take it to the ballot that is his two sense. Councilman Frisch said we should either repeal or put it on the ballot. Are you suggesting if it were to go to the ballot you could verbally let the community know or commit to the community you would build the lodge. Mr. Hunt replied yes I would. If it truly went to a vote and won I would build a lodge. If it went to an election I would build it if it was approved. Councilman Frisch asked him to add some clarity to the letter. How would you walk that line of not stirring the pot and championing this project. Mr. Hunt said it started out with meeting with some of the people involved with the petition. My biggest frustration is getting the information out. Getting the right information out. We are also working with a bunch of other applications that we are proud of. I’ve showed them every single property I’m working on down to the detail. 5. Rubin Sadowsky said he was really bummed when he saw the letter in the paper the project was over. It is good for the community and people his age. He really hopes it goes to a vote. He hopes there is a counter voice to it. 6. LJ Erspamer said it was a misdirected process initially. These things should be mitigated properly. The compatibility is not consistent. Is the application vacated or not. Mr. True said the letter makes it clear the application is vacated. 7. Peter Fornell asked what is the cost to the community for a special election. This could be a litmus test for the process. He thinks you will find very little participation. It will be more worth wile to direct effort to the land use code. Mayor Skadron close the public comment. Councilman Myrin said if there is Council support to rescind it would be supportive of the memo from the applicant and this would be finished. For some reason this has turned into rehashing of the approval which creates extreme distrust of the leadership at this table. The City Attorney has said the application has been vacated and he agrees somewhat with him that the ordinance does not go into effect once the petition process starts. Because we are having this conversation makes it clear we are not being clear with the community. If there is support at the table he would move to support a motion to rescind the ordinance. It would keep in line with the expectations out there. Trusting the applicant is the wrong conversation to have. Mr. True said we have a resolution repealing Ordinance 1 if that is the direction you want to go. If you wish to go toward an election it would require further discussion with the applicant and Council. It would take four to repeal. To put it on the ballot Council would have to make the determination that the applicant is asking for a reinstatement of the application and it is in the best interest of the City to do so and direct the community development director to do that. There are risks to do so. There are risks to the applicant. He believes the applicant is aware of those risks. Regular Meeting Aspen City Council August 24, 2015 7 Councilman Daily stated he voted in favor of the project. He thought it was a good one and still do. There were enough signers to take this to an election. Less than a week ago you submitted a very clear withdrawal of the application. We don’t have an application before us tonight. You have not reinstated it tonight. Where does that leave this City Council. I’m not sure it has any further effect. If we were to say let’s take it to an election I’m not sure what we would be taking to an election. What are you suggesting this Council do. I’m not sure we have anything to take to the electorate. I have every confidence in our electorate making the right decision. I don’t see a very clear picture. Mr. Hunt stated if it’s going to a vote or Council doesn’t want to get in the habit of repealing I would ask the question of can you withdraw the withdrawal. Mr. True said part of the dilemma is he submitted the letter vacating it. It would take some action on the part of the applicant and Council to reinstate the application. I do not recommend you send it to a vote that would be a hollow vote. The applicant could ask on the record for the application to be reinstated and it is in the best interest of the city to be reinstated. There are risks associated with reinstating the application. I do believe Council can take those steps. Mr. Bendon said it would need to be a decision by Council to accept the reinstatement. There is a provision in code that says no multiple applications for the same property. Another section states “an abandoned application shall render all previously issued land use approvals which do not constitute the approval of site specific development plan void unless the community development director determines that reinstatement of the application is in the best interest of the city”. It implies that one can reinstate if it is in the best interest of the city. Councilman Myrin said this goes against our top ten goals of being open and communicate with the city. We did not ask for this letter or abandonment. Now we are trying to play a game and it is not the right message to send to the community. Councilwoman Mullins said the biggest mistake would be to take no action tonight. She said she can’t support repealing because it muddies the water. The ordinance has not taken effect, the application has been vacated and there is nothing to repeal. Why add that layer of confusion. The other alternative is to go to a vote but as Councilman Daily said she has no idea what we would be voting on. Mr. True said it would clarify the situation if Council would repealed the ordinance. Mr. Emmer said we had an application and we also have an ordinance. They are separate but related. The ordinance is put in the world of repeal or put to a public vote. We are caught by the state and city law that says whenever an ordinance is passed the people may do what they did in this case. Councilman Frisch said he does not think Council is rehashing the application. The number one issue facing the community is the land use code and AACP are not matching up. We need more lodging not retail. His gut reaction is to bring more lodging to the community. We heard from Bert, Maurice and Marcella that Referendum 1 is not a land use decision but a process. Referendum 1 is saying if Council gave a variance you must take it to the voter and they will make the right decision. This is as good as an application that we have seen in a long time. I stand by that decision. There are a lot of people who want to see it voted on. I think 75 to 80 percent of the community want to vote on it. The up side is the lodge gets approved and it makes me happy and makes the community much better off. Between now and November the community can become aware of the options. The downside of a vote is it can become divisive to the community. Outside of the legal mumbo jumbo he would like to see the community vote on it. The legal term is to ask for a do over. If we can’t get there we should take action to formally repeal it. Put it on the ballot or repeal it. Mayor Skadron said he thinks Maurice is right. There is an ordinance on the books and a decision is necessary. He also thinks Councilman Myrin is right. This is a case to give voters a chance to compare principles. When we vote we make the government and community better. Voting is morally significant. The petitioners asked us to let the people speak and I say we should let the people speak and I think this should go to a vote. Regular Meeting Aspen City Council August 24, 2015 8 Councilwoman Mullins stated she would prefer it go to a vote. Councilman Myrin said he prefers to repeal it. Councilman Daily stated he very much supports it going to a vote. He would like a level of confidence that if the voters vote in support of the project that it will move the project forward in spite of letter we received. Mr. True said in order to take it to a vote there will be further action required. We do not have ballot language or a resolution. There will need to be specific action on Mr. Hunt’s part. It will be appropriate to ask him to submit his position asking him that his abandonment be rescinded and his application be reinstated. We should set the matter for tomorrow and have ballot language available and Mr. Hunt can submit his request to reinstate the application. Council will have to make a determination that reinstating the application is in the city’s best interest. Councilman Frisch stated he supports going to a vote. Councilman Myrin said the Mayor is making us all look like fools as leaders of the community. If we had not received a letter that withdrew the application, which is very clear then we would not have been having this conversation. Right now we are discussing if this letter is valid or not valid. My concern was it is just a piece of paper and things seem to always turn around in this town and that is exactly what happen. You can’t trust any developer in this town especially Mark Hunt. Mr. True said the letter very clearly vacated the application and forfeited the approvals. It has legal effect. He is requesting at this point to request reinstatement. He is requesting that be withdrawn and his application be reinstated and it lead to a vote at this point. Mayor Skadron asked if it is as black and white as Councilman Myrin just laid it out. Mr. True replied he went further than I would personally care to go. This was vacated and no further action was needed by Council and there was nothing left to do. There is a different step by Mr. Hunt at this stage by suggesting the application be reinstated. Councilman Daily said the only question is can he legally reinstate. Mr. True said we can look at it further but we do believe the code allows for reinstatement of an abandoned application. Mayor Skadron thanked the community for their patience and valuable input. This item will continue at 4:00 pm tomorrow. RESOLUTION #93 SERIES OF 2015 – Armory Building Use Ballot Question Jack Wheeler, asset, told the Council this would place a question on the ballot stating which use for the Aspen Armory site (current City Hall) do you prefer for a long range 50 year plan, choose only one – renovation for community public use or city offices. Councilwoman Mullins said she talked a lot last meeting of all the public participation of the last few years and asked how we disseminate that information so people can vote well informed on this. Mr. True said there are limitations of participation by governments on any issues submitted to electorates. There is authority to submit a summary of facts including pros and cons that can be submitted to the electorate. Council itself is authorized to pass a resolution taking a position on a ballot issue. We do need to be cognizant of the code restrictions. Mr. Barwick said individual Council Members can take their own positions as they choose. Regular Meeting Aspen City Council August 24, 2015 9 Councilman Frisch said there is a tradeoff between the amount of square feet that is actually built, the cost, the duration of construction, the efficiency for the workforce and the community. That is the discussion point. It’s as simple as can be. He supports where we are and looks forward to seeing it on the ballot. Councilman Myrin said he is ok with it as is. Councilman Daily said he respects the direction it is going. He is ok with the ballot question. Mayor Skadron said he is ok with it too. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Frisch moved to adopt Resolution #93, Series of 2015; seconded by Councilman Daily. All in favor, motion carried. RESOLUTION #92, SERIES OF 2015 – Coordinate November 3, 2015 Election with Pitkin County Ms. Manning stated this resolution will coordinate with Pitkin County for the November third election. The intergovernmental agreement lays out what we are responsible for including a minimal financial responsibility of 1,000 dollars. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Frisch moved to adopt Resolution #92, Series of 2015; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE #31, SERIES OF 2015 – 110 E. Bleeker – Establishment of Transferable Development Rights Amy Simon, community development, told the Council this request is to remove two TDRs. HPC reviewed the project and Council did not ask for a call up. It is a substantial restoration of the Victorian house. It has been painted, the front bay window is gone and the porch is enclosed. The owner will put it back to the way it was originally designed. HPC has given approval for an addition. It leaves 500 sq ft unused and the applicant has proposed to convert it to two TDRs. Councilman Frisch asked when an applicant usually ask for the TDR’s. Ms. Simon replied they can ask at anytime they like. Councilman Frisch asked if it is in the renovation process now. Ms. Simon replied it is not under construction. Councilman Frisch asked if they have anything by right in terms of TDRs. Ms. Simon said no. Councilwoman Mullins asked if they were given the 500 sq ft bonus. Ms. Simon stated yes. Councilwoman Mullins asked is the purpose of the bonus to turn it into two TDRs. Ms. Simon said just because they ask for TDRs they should not be ineligible for the floor area bonus. They really have earned it. It could be argued they are using the bonus for the project and selling other floor area. Councilwoman Mullins said she thought the bonus was for exceptional restoration not for TDRs. Mayor Skadron said the program is on the verge of being abused if it isn’t already. We are fabricating a development right. Ms. Simon replied they could have built a bigger addition. Councilman Frisch said there is some kind of economic value. Councilwoman Mullins said if the FAR bonus is a monetary incentive that is the way it should be viewed if that is what it is turning into. Councilman Frisch asked if the TDR program was taken away how is the community worse. Ms. Simon said the TDR program offers another alternative Regular Meeting Aspen City Council August 24, 2015 10 than onsite development. If the program is gone we go back to what we had where a deserving project asks for a bonus and puts that square footage on the site. Councilman Myrin said he thinks it is an appropriate conversation for some other time but he will support this for now. Councilman Daily said he will also support this proposal tonight. It is timely to revisit TDRs. Mayor Skadron concurs. Councilman Frisch moved to read Ordinance #31, Series of 2015; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE #31 (SERIES OF 2015) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO APPROVING TWO TRANSFERABLE DEVELOPMENT RIGHTS FOR THE PROPERTY LOCATED AT 110 E. BLEEKER, LOTS L AND M, BLOCK 65, CITY AND TOWNSITE OF ASPEN, COLORADO Councilman Frisch moved to adopt Ordinance #31, Series of 2015 on first reading; seconded by Councilman Daily. Roll call vote. Councilmembers Frisch, yes; Myrin, yes; Daily, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #32 & #33, SERIES OF 2015 – Ranger Station Subdivision, Lots 1-3, Growth Management Allotments Jennifer Phelan, community development, said the ranger station subdivision is comprised of five lots via a plat that was created and recorded by the US Forest Service in 2013. The property is located in the west end off of Hallam, 7th and 8th. In 2013 the City did not object to the subdivision but did note the lots would need to be developed meeting city requirements inclusive of gaining development rights for each lots. Two lots have gone through this process and have been granted development allotments. This application is similar and is requesting three development allotments. The request includes providing mitigation through cash in lieu or affordable housing credits. One lot is requesting a determination that the slopes on the site associated with the SI Johnson ditch are man-made. Second reading is proposed for September 28th. Councilman Frisch said we treated a couple lots a month ago one way and Staff is asking to continue the consistency and treat all the lots the same way. Ms. Phelan said the application requests the same consideration. Councilman Daily asked if the intent of the mitigation requirements for the affordable housing is for a physical unit but subject the lots do not permit more than one unit on the property and where is that restriction derived from. Ms. Phelan replied the underlying zoning only allow one resident per lot so there is not the opportunity for a second unit for each lot. Councilman Daily has no objections. Councilman Myrin asked if this requires notice to the neighbors. Ms. Phelan said the notice is 15 days prior to second reading. Mayor Skadron asked if determination of man-made slopes result in greater development rights. Ms. Phelan said it will allow for the lot size to be larger allowing for greater floor area. Councilman Frisch moved to read Ordinance #32, Series of 2015; seconded by Councilwoman Mullins. All in favor, motion carried. Regular Meeting Aspen City Council August 24, 2015 11 ORDINANCE NO 32 (SERIES OF 2015) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING GROWTH MANAGEMENT RIEVIEWS, DETERMINING THE PRESENCE OF MANMADE SLOPES, AND VESTED PROPERTY RIGHTS FOR LOTS 1 AND 2, RANGER STATION SUBDIVISION, CITY OF ASPEN, PITKIN COUNTY, COLORADO Councilman Daily moved to adopt Ordinance #32, Series of 2015 on first reading; seconded by Councilman Frisch. Roll call vote. Councilmembers Daily, yes; Mullins, yes; Frisch, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. Councilman Frisch moved to read Ordinance #33, Series of 2015; seconded by Councilman Myrin. All in favor, motion carried. ORDINANCE NO 33 (SERIES OF 2015) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING GROWTH MANAGEMENT REVIEWS, DETERMING THE PRESENCE OF MANMADE SLOPES, AND VESTED PROEPRTY RIGHTS FOR LOT 3, RANGER STATION SUBDIVISION, CITY OF ASPEN, PITKIN COUNTY, COLORADO Councilman Myrin moved to adopt Ordinance #33, Series of 2015 on first reading; seconded by Councilman Frisch. Roll call vote. Councilmembers Myrin, yes; Daily, yes; Mullins, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #34, SERIES OF 2015 – Certificates of Affordable Housing Credits Code Amendment Jessica Garrow, community development, told the Council the public hearing is scheduled for September 15th. The proposed code amendment would clarify when and how housing credits are established. There are six changes including limiting the program to private developers, requirement for units to be built for credits to be full units, units in a mixed use development to be for sale units or subject to a deed restriction, section related to fractional units, two options related to category limitations and limitation for credits for projects created only within the City of Aspen boundaries. Councilwoman Mullins asked for the category limitations if APCHA is working on a determination of cash in lieu. Ms. Garrow said they may bring it forward in the future. Councilman Myrin asked about the letter from Mr. Fornell about the cash in lieu amounts. Ms. Garrow said it is not in the scope of this amendment. Cash in lieu amounts are not tied to this amendment. Councilman Myrin said what is important is to listen to the people who may see things differently than Council and he wants to make sure that voice is heard. Councilman Frisch said he does not thinks Peter’s letters are specifically addressed to this but the general scope. Councilman Frisch said ADU has popped up. He does not buy the fact that 25 percent are actually utilized. What is the dollar amount we are going to be telling people. What number are we talking about. Ms. Garrow said that is the next item relating to mitigation. Councilman Frisch said the greatest demand is for category two and three and it needs to be balanced with supply. Do we want to provide housing for a wide variety of categories. Are we solely focused on a demand problem. It is important for APCHA to remind us where the demand is. Mayor Skadron asked for the housing board position on Next Gen’s desire. Ms. Garrow said it will be included in the second reading packet. They recommended as well as P&Z that the code language allow credits be established for any category that has cash in lieu rates within the guidelines. Regular Meeting Aspen City Council August 24, 2015 12 Councilman Frisch moved to read Ordinance #34, Series of 2015; seconded by Councilman Myrin. All in favor, motion carried. ORDINANCE NO 34 (SERIES OF 2015) AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING AMENDMENTS TO CHAPTER 26.540 – CERTIFICATES OF AFFORDABLE HOUSING CREDIT, OF THE CITY OF ASPEN LAND USE CODE. Councilman Frisch moved to adopt Ordinance #34, Series of 2015 on first reading; seconded by Councilman Myrin. Roll call vote. Councilmembers Mullins, yes; Frisch, yes; Daily, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #35, SERIES OF 2015 – Code Amendment – Residential Mitigation Requirements Chris Bendon, community development, said this would adopt changes to eliminate voluntary occupancy ADU’s as mitigation for residential development. It would allow homeowners to remove the ADU with a replacement mitigation. The requirements will be based on construction and maintenance employment based on the RRC study. It does not include employee generation from remodel activity. The ordinance maintains the deferral option for a local working resident to be paid in the future. The current fee in lieu requirement is just below 80 dollars per sq ft to mitigate with a cash payment. Based on the new figures at a category two rate it would drop to just below 40 dollars. There are also changes to the temporary use standards. There may be a desire to delay the adoption of this ordinance based on the fee in lieu discussion with APCHA. He is suggesting the public hearing be September 28. APCHA considered the fee in lieu rates and the City is proposing an amendment to the fee ordinance to synchronize with this ordinance. Councilman Frisch asked about the specific dollar amount rather than a percentage. Mr. Bendon suggested there be a way to buy out of your ADU. A property owner could buy out of the requirement by mitigating for .38 FTEs. They are assuming a roughly 25 percent occupancy rate of ADUs. A typical unit is somewhere between a studio and one bedroom, housing 1.25 FTEs or .38. At the newly proposed category two cash in lieu number would be 261,000 dollars or 95,000 dollars. Anything up to 25 percent occupancy would be a safe assumption. Councilman Frisch asked if this a place for another option for a certificate. Mr. Bendon replied absolutely. Councilman Frisch stated at the time of ADUs being allowed it was more than 95,000 to put someone in there. Because the program has not worked the price to buy out has become really low. The failure of the program has driven down the ability to buy out. If everyone had the chance at the time to pay 95,000 dollars or put in an ADU they would have all written a check for 95,000 dollars. Is the success of the program the only way to legally come up with a number to buy out of a program that didn’t work. Mr. Bendon replied the folks that provided an ADU did so to provide the required mitigation for the community. If they are going to remove that mitigation what is its actual value to the community knowing it has a 25 percent occupancy rate. Councilwoman Mullins asked why are we basing it on the actual occupancy rather than the potential. Mr. Bendon replied it is hard to base it on the potential when it literally could be zero. There is a 25 percent chance that the ADU is going to be occupied. Councilman Myrin said there is an APCHA meeting coming up. Mr. Bendon said they met last week and considered the fee in lieu rate structure that was considered by Council and chose not to adopt it. Councilman Myrin asked if there is information about that it in the packet. Mr. Bendon replied no, APCHA or managers staff will be bringing that forward in the fee ordinance amending the city’s fee structure bringing the cash in lieu rates out of the guide lines and bringing them in to the fee ordinance. Councilman Myrin said if we applied the 95,000 dollar with APCHAs numbers what will we get. Mr. Regular Meeting Aspen City Council August 24, 2015 13 Bendon said he used the numbers that were reviewed by Council and 20 to 30 percent higher than the existing APCHA numbers. Councilman Myrin said the 95,000 may be the minimum. Mayor Skadron asked how did we get to 95,000. Mr. Bendon said if a homeowner has an existing ADU and would like to get rid of it physically or the deed restriction. It is based on the actual impact of the housing inventory and based around removing one quarter of a housing unit or .38 FTE. At a category two level it equals 95,000 dollars. Councilman Frisch moved to read Ordinance #35, Series of 2015; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE NO 35 (SERIES OF 2015) AN ORDINANCE OF THE ASPEN CITY COUNCIL ADOPTING AMENDMENTS TO THE CITY OF ASPEN LAND USE CODE CHAPTER 26.520 – ACCESSORY DWELLING UNITS, AND CHAPTER 26.470 – GROWTH MANAGEMENT Councilman Frisch moved to adopt Ordinance #35, Series of 2015 on first reading; seconded by Councilman Daily. Roll call vote. Councilmembers Frisch, yes; Daily, yes; Myrin, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. RESOLUTION #85, SERIES OF 2015 – Annexation 705 W Hopkins – To Be Continued to 7/28/2015 Mayor Skadron opened the public hearing. Councilman Daily recused himself. Jim True, city attorney, stated the owners of 705 West Hopkins have petitioned the City for annexation. It is a multi-step process and this is the second step in the process. The first step was the passing of Resolution 71, Series of 2015 on July 13 found the petition substantially complied with the requirements of the statutes and set this required public hearing. There were some errors with the statutory notice for this hearing. At this point Mr. True would like to take testimony from the Clerk to meet the statutory requirements and then continue until September 28. Mr. True questioned Ms. Manning about the notice that was published in the paper, the letters that were mailed to the special districts and the proof of delivery of the notifications. The statutes changed for the notice requirements and the notices were sent pursuant to Resolution 71 assuming a 20 day notice to the county, county attorney and school district instead of 25 day notice. We are requesting the public hearing be continued until September 28. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilwoman Mullins moved to continue to September 28, 2015; seconded by Councilman Myrin. All in favor, motion carried. Councilman Frisch said at some point the community will want to hear actual stuff and the sooner we will hear what is proposed there the better the community will feel. Tom Todd, representing the applicant, said it is a parallel step to pursue the annexation and the land use application. They are in the early steps of the annexation and are working on the land use application. They would expect to have the land use application submitted by the end of year. Mr. Bendon said there needs to be a certain number of these formal steps before the City can accept the land use application. Councilman Myrin said he is not happy with the process. The annexation discussion should not be in parallel with something we are enticed with or opposed to because of what it is. Mr. True said a zoning is going to have to be placed on the property that will be subject to referendum. The applicant could request a condition where if the zoning is not approved the annexation is terminated. At this point we are Regular Meeting Aspen City Council August 24, 2015 14 still a ways away from making a decision on this. Councilman Frisch asked if the applicant is not allowed to show their physical cards until this is done. Mr. True said the applicant submitted with their annexation petition some description of what they are doing. There is nothing that prohibits them from submitting it to the public or council. Councilwoman Mullins said they don’t have to be tied together. The fear is if the city accepts the annexation we accept the application. If the property is annexed it does not mean the application is approved. Mr. Bendon stated the message is, there are a few initial administrable steps before we can accept an application. The application will have to go through public hearings and will have to stand on its own merits. There are many steps that are much more substantial. ORDINANCE #23, SERIES OF 2015 – 620 E Bleeker Aspen Historical Society, Lot Split and TDRs Councilman Frisch moved to continue to 8/25/2015 at 4:00 p.m.; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE #26, SERIES OF 2015 – Obermeyer Place – Rezoning and Minor PD Amendment Councilman Frisch moved to continue to 8/25/2015 at 4:00 p.m.; seconded by Councilman Myrin. All in favor, motion carried. ORDINANCE #27, SERIES OF 2015 – Land Use Code Reliance Code Amendment Chris Bendon and Jessica Garrow, stated over the years they have received a number of inquires of how vested project are handled when an amendment is requested as well as what code a project is subject to when multiple steps are required. This amendment addresses two specific areas including when amendments are requested to a vested approval and when an application requires multiple review steps. Vested projects are governed only by the duly adopted laws and regulations in effect at the time the application is submitted to local government. The act also states vested rights are grated when a project receives final approval as well as completes it public noticing. During the vesting period a project is immune to changes to the land use code that occur after the initial application unless those changes are necessary to public health and safety. Projects are entitled to a minimum of three years of vesting. The proposed amendment contains minor and major amendments. Major or substantial amendments currently within a vesting period would be required to come in under the new code that they made the application under. An example would be the Boomerang. They were approved in 2006 under a 2005 code as a lodge. In 2010 the owners requested an amendment to change from a lodge to a 100 percent affordable housing project. This would be considered a significant change. It would be processed under the code in effect at the application date of 2015 as opposed to the code they were vested under in 2005. A minor amendment would come under the code they received approval under. An example would the Aspen Club. They received final approval in 2011 with a five year vesting approval. Last year they applied for an amendment to change the roofing material. The material was an insubstantial change. Under this code amendment it would be considered a minor change. The Chart House was approved in 2006 and received an extension of vested rights. In the last year they came in to do some material changes and reconfigure interior changes. These are considered a minor amendment and could continue under the code they were vested under. The first part of the amendment is to clarify when a vested project requests an amendment how it is dealt with in terms of the land use code. The second part of the amendment is changes that require a multi-step review. Within the vested rights property act it defines what an application is. Within the definition it says “if a local government that has provided for a review and approval of site specific development plans in multiple stages, application means the original application at the first stage in any process that may culminate in the ultimate approval of a site specific development plan”. Staff recommends approval of the proposed amendments. They are intended to clarify common questions that they get and to codify state law and city policy. Regular Meeting Aspen City Council August 24, 2015 15 Councilwoman Mullins said they did a really good job with this and it gets back to how clear major versus minor is defined. The way it is written will work. What recourse is there if you think it is substantial and they think it is insubstantial. Ms. Garrow said Council is the final arbitrator. Councilman Daily said he is OK with it. Councilman Myrin said it should be two ordinances major versus minor and multi-step review process. There is value in this but he is not sure it is ready yet. Ms. Garrow stated they could split the ordinance in two. Mr. Bendon said that both are necessary. Councilman Myrin agreed that both are necessary but we can then better understand where on the continuum we are. There is something between minor and major. He would like to see all of those and where Staff would like to be, where the law allows us to be and where Council wants to be. Councilman Frisch said the multi-step process is a concern of timing but minor and major isn’t. Councilman Myrin said he is not clear on what minor versus major is and a list or a range of checklist would help. Councilwoman Mullins replied one of the reasons a list doesn’t work well is you don’t want to exclude something. Councilman Myrin said for multi-step he would like to better understand where the law allows / requires us to go. Ms. Garrow said the state law is fairly clear is stating in a multi-step process you are subject to the code in effect when the initial application is deemed complete. Councilman Myrin asked if the state law is already there why do we need this. Mr. Bendon said it was a worth wile policy discussion. Councilman Frisch said there was concern a while back about what conceptual was and it did not really mean anything because all the action was at the end. Now it is conceptual plus, plus, plus. What we don’t want to have happen is something drawn on the back of an envelope and turned in as a place holder. Mr. Bendon said they are only accepting full applications. This language is trying to differentiate changes by review and those should be accommodated and changes just to change stuff. Changes are part of the review process but it does not authorize other changes. Mayor Skadron opened the public comment. 1. Marcella Lawson said she mostly agrees with Mr. True. She sent a letter from her, Mick Ireland and Howard Wallach asking to reject this outright. The major/minor issue language has improved from the first draft. It will be helpful to hear examples. There should be a two way appeal process. The proposal tips the balance in favor of the developers. She applauds council for taking the time to consider the options. She brought up how Telluride enacts code changes. 2. Maurice Emmer said he fully supports Councilman Myrin’s suggestion of two code amendments. These are principally for the benefit for the developers not the citizens. Council has the ability to define a point at which an application is live. This needs work. Councilwoman Mullins said Marcella’s comments made a lot of sense. She trust Staff to not err on the side of insubstantial versus substantial. Neighbors should be notified. Mr. Bendon said any substantial change causes notice. Councilwoman Mullins said she would like to hear more about Tellurides policy code changes. Mayor Skadron said to come back with the option of breaking out the amendment into two ordinances. Councilwoman Mullins said it is clearly in the interest of the community and not the developer. Councilman Frisch moved to continue Ordinance #27, Series of 2015 to October 12, 2015; seconded by Councilman Myrin. All in favor, motion carried. Regular Meeting Aspen City Council August 24, 2015 16 Councilman Frisch moved to continue to 4:00 p.m. August 25, 2015; seconded by Councilman Myrin. All in favor, motion carried. At 4:08 p.m. on August 25, 2015, Mayor Skadron opened the continued regular meeting. RESOLUTION #96, SERIES OF 2015 – Reinstating the Base 2 Application Jim True, city attorney, presented a letter from Haas land planning to the City. The letter says specifically that Mr. Hunt wishes based on information and recent events to rescind the substance of the 2015 letter to vacate, withdrawal and forfeit the approvals and application for ordinance 1 and approvals prior to it. He then request that City Council consider the reinstatement of all such land use approvals and development applications. “Mr. Hunt request that to the extent necessary, Chris, as the community development director and the Aspen City Council determine that a reinstatement of such matters is the best interest of the city. Given the recent decisions of the need for a public vote regarding Base 2 lodge land use approvals the community’s need for additional affordable housing, lodging and the stated goals of the Aspen Area Community Plan”. Resolution 96 acknowledges the receipt of the letter and reinstates the application and approvals. The second resolution will submit the question to voters. We have a resolution to repeal as well. Mayor Skadron opened the public comment. 1. Mark Hunt thanked the Council for having him back. He clarified that he was confused but not about Base. It was good for the community and it fit the long term goals of Aspen. He heard last night there were two roads to go down, repeal or public vote. His first instinct was what are we repealing and what are we sending to a vote. His feelings changed regarding what to do. It is a slippery slope to go down and start repealing things that were already approved. He presented a letter today to support the reinstatement of the application of 232 Main and hope it goes to a public vote. He said he meant it when he sent the original letter. He did not come here to pick a fight or put a wedge in the community. There is a level of distrust in this community and the only way to get a real honest answer is to have a public vote. 2. Mario Zulian Talked to Mark two months ago and had a good conversation. This whole process of political exercise is beautiful. What Mark is doing is great. He congratulated everyone on the process. He suggested making the gas station a green gas station with a waterless car wash. There are more solutions than just a bank or a pharmacy. 3. Ward Hauenstein stated everyone in the process is trying to pursue what they feel is best for the City of Aspen. They collected 1312 signatures which was about 45 to 50 percent of the people that voted in the last election. It’s a well documented process to overturn an ordinance. It is not something to be taken lightly and a difficult task. There is no precedent for vacating a development then reinstating it. I would prefer you not reinstate the ordinance because of the slippery slope and precedent it sets. Mayor Skadron closed the public comment. Councilman Daily said we got the request to reinstate the application and he is prepared to move ahead with Resolution 96. Councilman Myrin stated it is improper to do something without a process in place. What we are doing tonight is consistent with the whole process and definitely not in the best interest of the City. If the goals are to reduce affordable housing and parking, and increase FAR we need to tell the community that and be upfront with them and not do it one variance at a time. His concern is one of fairness. This application has not been perceived as fair from the beginning. He said he spoke too strongly of all developers last night. Aspen does have trustworthy developers. We need to project there is a level playing field. This decision with no criteria or references in the code doesn’t show fairness. There is a level of distrust. It is not resolved by a vote. We were advised last night this could set us or the applicant up for litigation. We need to convey to the community where we are coming from. People contacted me Regular Meeting Aspen City Council August 24, 2015 17 today and said this is something that could have been planned all along as a way to avoid a November election and bring it back after the election has passed. He is not clear we have a set process for this. He is not clear how the meeting is noticed for the resolution to bring the application back. There are a number of things we could have done better and still have the opportunity to do better if we rescind the ordinance. He apologized for saying all developers are untrustworthy. Mayor Skadron said he thought the stated goal the last several months of referendum 1 and the petitioners is to have the electorate review Council decisions when variances are granted. Councilman Myrin replied the stated goal of the petition was to have it on the ballot. Once it was withdrawn that no longer is possible. Mayor Skadron said the stated goal was to have it on the ballot, if so doesn’t Mark’s change of mind support that goal. If the goal was simply to kill the project, putting your position and beliefs in the place of Councils, that can still be accomplished by convincing the public your position is right by sending this to a vote. It’s a matter of a sheet of paper that was dropped off, no action was taken on it, the applicant changed his mind and were back to where we started four days ago. I think it is overly dramatic to suggest the entire process is unfair or corrupt or that the shenanigans of council simply because the outcome you desire isn’t the one that is the majority opinion at the time. Mayor Skadron asked if that is an unfair statement. Councilman Myrin replied it is unfair. It was very clear what the process is. There is a referendum on an ordinance. The applicant withdrew, vacated, forfeited but did not abandon it. We have a process with no criteria. We are making a resolution without the best interest of the town and created division in the town that is completely unnecessary. Mayor Skadron said what he does not see is how sending this to a vote and letting the people speak as the petition intended is all of a sudden a bad thing. Councilman Myrin replied because there is a letter that happened in between. It changed the very dynamic. We are being dishonest with the voters. Mr. True said the code doesn’t provide criteria for determining the best interest of the city. It is within the discretion of Council to determine it at this stage. A resolution of this sort can be placed on the agenda at any time. It was a request by Mr. Hunt and we are dealing with timeframes with a deadline of September 4th. The code does not have a criteria of dealing with the best interest of the city within this circumstance. Councilwoman Mullins said 96 is not a discussion of the application. Councilman Frisch made a very strong argument why we pursued this project. One of the AACP goals is to provide affordable housing in town. She feels strongly we are following that. We went through the normal process, did not short cut and no scheming. While the people not in favor are quite loud there were a great number in support of the project. She was looking forward to a vote and was disappointed when things seemed to change. She is not in support of repeal since there was nothing to repeal. Going to a vote was not an option last night. Now with the letter it can go to a vote and that is great. She is not sure why it could be argued it is a bad process. As a supporter of the process she is looking forward to seeing the outcome of the vote. Whatever the vote is she will take that direction. Councilman Frisch thanked Ward for his comments. The incentives in the land use code and those in the AACP are different. This application went through the normal process until the withdrawal letter. There are a lot of options for a retail option to have lots of cars with no parking here. He will support this going to the ballot. We are better off with a moderately price lodge than a retail space. It is unfair for the Mayor or community development or anyone in city hall to take blame that an applicant had an idea and somehow people convinced the applicant to try something else. Councilman Daily said it has been mentioned if Mr. Hunt pursues this and the voters choose to support this than someone will take it to the courts. What will they be challenging. The decision being made tonight is Council will determine the reinstatement is in the best interest of the city. He thinks it is a laudable and marvelous one. It is one the opponents wanted for three months and one referendum 1 was all about. If the election comes out against it what basis will they litigate. He think it is a red herring. The standard is if it is determined by Council it is in the best interest it is reinstated. He is looking forward to giving our electorate a wide open opportunity to make a clean decision. Regular Meeting Aspen City Council August 24, 2015 18 Mayor Skadron said he does not see how sending this to a vote and letting the people speak just how the petitioners intended is a bad thing. Councilman Frisch moved to adopt Resolution #96, Series of 2015; seconded by Councilman Daily. Councilman Myrin stated he cannot support this. There is no criteria in front of him as to what is the best interest of the city. The best interest of the city is not to divide the community on an issue that we have the opportunity to rescind. He respectfully disagrees with Councilman Daily. The city has a record of failures including Cooper Street Pier. The Brewery has not been rezoned for a restaurant. Caution is in the best interest of the city. Caution would be to rescind the ordinance. Mayor Skadron said we often say at the Council table decisions should relate to a set of criteria and move forward not because the like or dislike of something. Mr. True said the code authorizes the reinstatement of an abandoned application. It is an appropriate statement that it is equivalent. The determination is it in the best interest of the city. It is a broad term and a discretionary one. There is no set criteria and but not an unusual term for Council to consider. This is simply codified and within Councils discretion. Mayor Skadron said when the Aspen Institute comes through and Mendel Mintz facility came through and the Aspen Club came through they used SPA and it has subjective criteria that speaks to best use the criteria asked Council to render a judgment. Mr. Bendon said the attorney read the standard that an application can be reinstated if it is in the best interest of the city. It grants the authority to me as director and by extension it is the City Council. The criteria is simple and broad and asks Council in its own determination what is best for the city. It is analogous that you need to make a decision that is best for the community. Councilman Myrin said the abandonment is only one piece of it. He is surprised we don’t have this piece of code in front of us that says the power is discretionary and neither does anyone in the community. Mr. Bendon read the section of code 26.304.070f. Mayor Skadron called the vote. All in favor except Councilman Myrin. Motion carried. RESOLUTION #95, SERIES OF 2015 – Ballot Language for Base 2 Question Ms. Manning read the question. Mr. True said they were asked to write the question to vote yes for the lodge or vote no for no lodge to avoid confusion about a yes means no vote. Mayor Skadron asked if this would have been more or less the language if Mr. Hunt had not dropped off the sheet of paper then picked it back up. Mr. True said it would have been the language. The discussion about section one of ordinance one is what is actually subject to referendum. There is some technical legal jargon in here. If people vote no, section one is repealed and the application cannot go forward as submitted. Councilman Frisch moved to adopt Resolution #95, Series of 2015; seconded by Councilwoman Mullins. Councilman Myrin said he will vote against this. He said he would have voted against the project as well and it would have been consistent with that vote. Mr. Hauenstein said the petition was never about referendum 1 but ordinance 1. Councilman Frisch said if referendum 1 did not pass, Council would have been the final review. My take away of referendum 1 is there was enough of the community based on four instances that it should go to a vote by the community. Mayor Skadron called the vote. All in favor except Councilman Myrin. Motion Carried. Regular Meeting Aspen City Council August 24, 2015 19 ORDINANCE #23, SERIES OF 2015 – 620 e Bleeker – Aspen Historical Society – Lot Split and TDRs Jennifer Phelan, community development, said the request is to memorialize the conditional use as a museum, grant a lot split to create a 9,000 sq lot from the fathering parcel, grant a side yard set back variance for the museum due to the proposed new lot, establish 12 TDRs from the newly created lot that equal 3,000 square feet of allowable floor area that that would be removed from the newly created lot in the form of TDRs. She received some late comments and added some to the packet as the last exhibit, now named Exhibit I. There is also an email that was sent to Council from Sara Garton in support of the request. She included the public notice as Exhibit J and did check the mailing list and Mr. O’Reilly from last night did receive notice. The property is located in the medium density residential zone district. The entire property equals 53,586 sq ft. It was designated a historic landmark in 1973 and purchased in 1969 by Aspen Historical Society. In 2005 there was discussion to enforce a covenant between the applicant and the Paepcke estate. At the time the previous city attorney said the city had no role to enforce the covenant. The first land use review is the conditional use. These are generally compatible with other uses in the zone district but require individual review of location, design, configuration and density to ensure the appropriateness with the zone district. It does allow other uses as conditional uses. This property is substantial in lot size. It provides an example of a late 1800’s Victorian estate. The museum property hosts a number of functions throughout the year including weddings and fundraisers. It requires additional services like tents, bathrooms and catering services. Staff feels the expansive site can accommodate these uses in addition to the museum use. In looking at what type of residential development could occur on a lot of this size, the allowable square footage for a single family would be just over 5,600 sq ft or for a duplex just under 6,100 sq ft. The existing museum and archive building are just around 5,800 sq ft. The request is also for a lot split to create two lots. The new lot is proposed to be 9,000 sq ft. The applicant is required to ask for a set back variance due to the location of the existing museum building. The historical society anticipates the creation of two deed restricted affordable housing units as they have the need for housing employees. The smaller acreage on the fathering parcel could permit a single family or duplex. The existing buildings would exceed the allowances for a single family or duplex. When variances are granted there needs to be a showing of hardship. This is a self-created condition and no unique site conditions for a variance to be granted. In regards to TDRs, if a lot is created the TDRs do meet the standards of review. It would allow 4,008 sq ft of new floor area. 12 TDRs equal 3,000 sq ft of floor area and would leave 1,000 sq ft of floor area to develop affordable housing in the future. Overall, the historical society is a great asset and Staff supports its mission. We don’t find the criteria in regard to conditional use, lot split and variance are met. Staff does not recommend approval of the project. Mayor Skadron asked if this is a revenue generator for the historical society. Mitch Haas, representing the applicant, along with Kelly Murphy the CEO of the Historical Society said the goal is not to create a lot line and TDRs but a reliable long term source of additional funding for the historical society. Comdev is not enamored with TDRs and a lot split to get there. We tried to be proactive with addressing real world concerns with the lot split to get there. He suggest tabling the discussion about the lot split and TDRs and come to a better solution about funding. They discussed internally and with staff the historic preservation program needs a long term archivist or a covenant prohibiting future development or increasing the mil levy. The hope is to begin the discussion tonight. Mayor Skadron asked why was the first offer on the table in the search for a long term funding to subdivide and created TDRs. Mr. Haas said there was staff support for it 10 years ago. They are asking for less now, proactively addressing may of the issues that were on the table then and it seemed like a reasonable request. Regular Meeting Aspen City Council August 24, 2015 20 Sara Oates, legal counsel for historical society, said at the time the mil levy was adopted it was always meant to be one leg of a three leg stool with grant money and fund raising. The TDR program was always viewed as a way to add to fundraising. Staff and P&Z supported us. Mayor Skadron said the historical society is an organization with a funding obstacle to the mission. They are a taxing entity with taxing as a funding source. Ms. Oates replied they thought they need all three sources of revenue. Councilman Myrin said it is an odd tool to come in with a land use application in what he thinks should be a taxing district conversation. He understandings coming in and looking for different sources of revenue. Councilwoman Mullins said she appreciates stepping back a bit. She was somewhat confused by the memo. It is a really treasured block in town, not just the building. It makes more sense to know that it is a fundraising question. Her other concern is not discussing the covenant. She is hesitant selling off development rights when historical society does not have them. Mr. True said he is not saying they are prohibited from talking about it but try to evaluate the circumstances of the purchase and deed. It is private and between the grantor and owners of the property. He does not think it is appropriate that the city can mediate or make a determination of a private dispute. Councilman Frisch thanked Kelly and staff for all they do. They came in here asking for four things now you changed your mind and want to open the discussion about something else. You have a funding issue and an affordable housing issue. There has been a lot of staff time and the neighbors are all riled up. If you want to have a talk about memorializing the property I’m happy to do it. If you want to talk about funding you should talk to your board. This was one option and I think you realized this is not the way to do it. Mr. Haas said he feels he can justify the lot split and TDRs very well. He’s trying to use the time more constructively. Councilman Frisch replied he is happy to have that conversation after the internal conversation has happened. He does not think now is the time to have a work session discussion. Councilman Daily said he supports the idea of putting aside the current land use issues. He agrees that we don’t really need to dwell on those. Is the city interested in exploring long term funding for the historical society. Absolutely. He would like to explore those more fully before the land use. He is not excited about reducing the size of the parcel the museum sits on. What are the taxing district conversations. He is prepared to work very closely with them but they need help identify what they have been exploring. Ms. Murphy said she feels like she is being scolded a little bit. She does not want council to think it was not well thought out. She still stands behind their application. Mayor Skadron said he is open to tabling this item and have them come back with a more direct proposal for a funding request. Councilman Myrin said he would like to see a long term plan. Ms. Phelan said through a land use review process tabling provides one year to look at it. They would need to renotice. Mr. Bendon said they did approach the application with full honesty and integrity around the request. There may be services or relationships with the historical society that may have benefits with the city. Councilman Frisch said there are more and more questions at the first reading level to flush out where everyone stands right away. Councilwoman Mullins said she is thrilled to hear let’s talk about something else. She was really disturbed about the application. She likes the Mayor’s idea of the work session. Regular Meeting Aspen City Council August 24, 2015 21 Mayor Skadron opened the public comment. 1. Steve Falendar, his wife Debbie wrote the letters. He agrees it is important for the historical society to have viable long term funding. That discussion should happen. Memorialize the use of the property. It is a fee simple determinable deed. TDRs are the wrong way to go. Mayor Skadron closed the public comment. Councilwoman Mullins moved to table Ordinance #23, Series of 2015; seconded by Councilman Frisch. Councilman Myrin apologized to Ms. Murphy for making her feel like she was scolded. All in favor, motion carried. ORDINANCE #26, SERIES OF 2015 – Obermeyer Place – Rezoning and Minor PD Amendment Sara Nadolny stated there was an issue with the notice and recommended continuing to October 12. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilwoman Mullins moved to continue to October 12, 2015; seconded by Councilman Frisch. All in favor, motion carried. Councilman Frisch moved to adjourn at 6:20 p.m.; seconded by Councilwoman Mullins. All in favor, motion carried. Linda Manning City Clerk