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HomeMy WebLinkAboutLand Use Case.1550 Homestake Dr.0060.2007.ASLUUPDATE: (10/29/2012) The court of appeals handed down its decision in this case and the preceding case. The decisions are rather lengthy and too complicated to summarize here. Council members have been provided with a memorandum from the city attorney's office summarizing the decisions in this and the preceding case. As in the preceding case, the Supreme Court has now denied the Petitions for Certiorari. After a status conference with the judge, it was determined there are no further issues to be resolved. This case is now closed. PROJECT: JEROME VENTURES LLC, ET AL. VS. CITY OF ASPEN DEPT: City Attorney Status: Open CONTACT: James R. True Date Opened: 9/10 DESCRIPTION: This is a declaratory judgment action involving the City's effort to collect the, Real Estate Transfer Taxes (RETT) on a transaction that involved the transfer of property through a deed in lieu of foreclosure. The Plaintiff in this case obtained ownership of the Jerome Hotel by acquiring a loan that was given to the prior owner by Morgan Stanley Mortgage Capital, Inc. Traditionally, the holder of the note acquires the property at the completion of a foreclosure action then sells_ the property to a new buyer to recoup the bad debt. On that sale to the new buyer, the City collected the RETT. In this case, the holder of the note has retained ownership and seeks to avoid the RETT by asserting that this was a foreclosure action. Although the Council has amended the code to address this purported loophole, the City disagrees with the Plaintiff's interpretation of the old code. UPDATE: (10/29/12) This case and all issues related to it have been dismissed. PROJECT: CAROLE C. FISHER V. THE CITY OF ASPEN DEPT: City Attorney Status: Open CONTACT: James R. True Date Opened: 11 /08 DESCRIPTION: Carole Fisher has filed an action against the City seeking judicial review of P&Z's decision to reject a variance for improvements done in the front yard of her home on Homestake Drive. Counsel has just accepted service of process and will commence certifying the record in this case. UPDATE: (10/29/12). The denial of the variance request could not be appealed to City Council. We have tried to reach a resolution that would be acceptable to the owner and the City but have not done so yet. Production of the record has been completed. It is possible that the Plaintiff here may just seek a discussion before Council in executive session through a settlement conference. If Council is willing to do this, such would be scheduled at some time in the future. Plaintiff has filed its opening brief. The City has until February to respond. However, at an executive session on January 25th, the Council and Ms. Fisher discussed a settlement proposal that will involve an amendment to the code and a resolution of this matter. This will return to Council in -a public context in the future. However, the work required to make this conform to our agreement has now been ompleted. It is elieved that his ma ter is resolved. C. 6 I� &/ VV� � � , L 2 PROJECT: ASPENITALL, LLC. v. CITY OF ASPEN DEPT: City Attorney Status: Open CONTACT: James R. True Date Opened: 4/09 DESCRIPTION: Aspenitall, LLC, apparently owned by the Birdman family, filed suit against the City of Aspen alleging that the City had improperly removed 2 hour parking signs in front of their house on South Mill and replaced them with "No Parking" signs. The removal of public parking in this location was based on standards related to road width. It is also associated with changes that occurred on the street due to development on the other side of the street. The parking that was previously allowed and that has been removed was within the City right-of-way. The Birdman's exhausted their administrative remedies. Since there was no procedure that allowed the Birdman's to appeal to Council, they filed this suit. UPDATE: (10/29/12). A trial was conducted on December 6, 2010. On April 9, 2012, the Court issued an Order finding in favor of the City on all issues. The City filed a Bill of Costs for $2,700 incurred in this case. That request was granted on May 29th However, the Plaintiff has filed a notice of appeal. PROJECT: MARKS v KOCH DEPT: City Attorney Status: Open CONTACT: James R. True Date Opened: 10/09 DESCRIPTION: Marilyn Marks sued the city clerk claiming that the city clerk unlawfully denied Ms. Marks request to inspect ballot images created as part of the tabulation process in the last municipal election in May 1009. Ms. Marks claims that the Colorado Open records Act entitles her to inspect the ballot images. The city denied her access to the images as there is a state law that requires the city clerk to secure the cast ballots for a period of 6 months after an election and thereafter destroy them. In addition, the city clerk is of the opinion that to release the ballots would cause substantial injury to the public interest in that voters have a right to a secret ballot. Public disclosure of cast ballots, or images of ballots, may be used to identify individual voters and thus violate the right of voters to cast a ballot in secret. The city filed a motion to dismiss. A few days before the scheduled hearing (March 22-23, 2010) Judge Boyd granted the City's motion to dismiss. UPDATE: (10/29/2012) On September 29, 2011, the Court of Appeals reversed the lower court's decision and remanded the case with directions. A Petition for a Writ of To: Carole Fisher 1550 Homestake Drive Aspen, Colorado 81611 Date: April 30, 2012 Project- 1550 Homestake Berm From: Jeffrey A Tuttle P.L.S. Tuttle Surveying Services 727 Blake Avenue Glenwood Springs, Co. 81601 Ph. (970) 928-9708 Fx. (970) 947-9007 Email jeff@tss-us.com I, Jeffrey Allen Tuttle being a Professional Land Surveyor in the State of Colorado hereby certifies to the City of Aspen, that the top of the berm (located on Lot 19, West Aspen Subdivision also known as 1550 Homestake Drive) is no higher than 42' (42 inches) from a point at the toe of the berm, using an elevation of 1000.65 at the said toe of berm, it was determined that the highest point of the b3.88 which is a difference of 3.23 feet (39 inches). - r"Q�p Jeffr uttl e. p.L: ��;tY63 8 NA L LA' 6/0 i/2!G) Z--- Please Reply To: 2o1 North Mill Street, Suite lot Aspen, Colorado 81611 (970)925-9393 Fax (970) 925-9396 HAND DELIVERY James R. True, Esquire Assistant City Attorney 130 South Galena Street Aspen, CO 81611 Dear Jim: NPILEY & ALDER ATTORNEYS RICHARD Y. NEILEY, TR. EUGENE M. ALDER jOHN F. NEILEY November 6, 2009 Re: Carole C. Fisher v. The City of Aspen, Pitkin County District Court, Case No. 2008 CV 38 6800 Highway 82, Suite 1, Upper Level Glenwood Springs, Colorado 816o1 (970) 928-9393 Tax (970)928-9399 As we have discussed, I am requesting the opportunity to discuss settlement of the above -referenced litigation with- the Aspen City Council in Executive Session. This letter constitutes a settlement proposal and offer of compromise which, pursuant to Colorado Rules of Evidence, Rule 408, is inadmissible in judicial or other proceedings. BACKGROUND We represent Carole C. Fisher, the owner of the real property at 1550 Homestake Drive, Aspen, Colorado 81611. During 2006 and 2007, Ms. Fisher constructed a new residence on her property pursuant to a building permit issued by the City of Aspen. During the course of construction, she excavated for the basement of the home and determined that it would be more cost efficient and less environmentally degrading to utilize the excavated materials on site. She, therefore, recontoured the property with the materials from the excavation and avoided the necessity of trucking those materials to an alternate site. In early-2007, Ms. Fisher obtained a Certificate of Occupancy for her home following complete inspections of the property. At the time the Certificate of Occupancy was issued, the excavated materials had been placed on site in essentially the same configuration as exists today. In the spring of 2007, Ms. Fisher began a landscaping project for her residence that involved the installation of trees and bushes and an underground irrigation system. The landscaping minimized the amount of grass so as to utilize irrigation water most efficiently. At Letter to Mr. True November 6, 2009 Page 2 the time the landscaping was installed, there was no requirement in the Municipal Land Use Code for any permit associated with that work. In September of 2007, after the project had been completed, Ms. Fisher received a Notice of Violation from Todd Grange, the Community Development Zoning Officer. That Notice of Violation asserted that Ms. Fisher had constructed a berm on her property in violation of § 26.410.040 of the Residential Design Standards, which prohibit manmade berms in the front yard set back. Ms. Fisher, through the undersigned's office, timely responded to the Notice of Violation. Although she denied violating the Residential Design Standards and denied that her landscaping constituted a berm, at the direction of City Staff, we prepared and submitted an Application for Variance from Residential Design Standards. The Application was heard on February 5, 2008 by the Aspen Planning & Zoning Commission which voted to deny the requested variance. At the February 5, 2008 Planning & Zoning Commission meeting, Ms. Fisher presented letters from 16 of her neighbors in support of her landscaping.: Ms. Fisher explained that she had proceeded with her landscaping project in the good faith belief that the recontouring of her lot was approved by the City of Aspen when her Certificate of Occupancy had issued. She also explained that, in reliance on the Certificate of Occupancy, she had spent tens of thousands of dollars on landscaping. Nonetheless, she was not successful before the Planning & Zoning Commission. As a consequence of the denial of the application, on February 19, 2008, the undersigned submitted a Notice of Appeal of the action of the Planning & Zoning Commission pursuant to Chapter 26.314 of the Land Use Code, which provides for appellate review by the City Board of Adjustment. City Staff refused to allow the appeal. Thereafter, we commenced the above -referenced litigation seeking review pursuant to C.R.C.P.. 106 and also seeking declaratory relief. MS. FISHER'S POSITION Although the litigation involves a number of claims related to the Notice of Violation and the procedures surrounding the denial of her application, there are three principal areas that we believe justify an equitable resolution as proposed below. First, Ms. Fisher relied in good faith on the City's issuance of a Certificate of Occupancy for her property with the current site contouring in place. She spent tens of thousands of dollars installing landscaping based upon that reliance and only after her project was completed was she served the Notice of Violation. We believe that equity and good conscience dictate that Ms. Fisher's landscaping should be allowed to remain in place. Notwithstanding, she is willing, reluctantly, to modify the landscaping as described below. Second, we do not agree that the landscaping on the Fisher property constitutes a berm. The landscaping within the setback varies from several inches to approximately 55 inches Letter to Mr. True November 6, 2009 Page 3 above natural grade. The landscaping does not obstruct the relationship between the public right-of-way and the house but merely softens that relationship and provides an element of privacy. The Residential Design Standards depict a "berm" as a solid wall of dirt substantially higher than the height permitted for fencing and hedgerows, topped with a solid line of trees. This is not what was placed on the Fisher property. There is no definition in the Land Use Code of what constitutes a "berm." Furthermore, 16 of Ms. Fisher's immediate neighbors like the landscaping and consider it consistent with the character of the neighborhood. Additionally, Ms. Fisher's home is heavily impacted by the traffic on Homestake Drive. She is immediately across the street from the Aspen Municipal Golf Course and has experienced numerous errant golf balls landing on her property which, on occasion, have damaged automobile windows. The shoulder of the street directly across from the Fisher residence is heavily used in the winter for parking for cross- country skiing and for dog walking. Thus, the extent of landscaping installed is reasonable. Third, Ms. Fisher was denied an opportunity for an appeal to the Board of Adjustment as required by Chapter 26.314 of the Land Use Code. The Land Use Code is clear that an adverse decision from a decision making body may be heard in an appeal before the Board of Adjustment. Staff at Community Development refused to allow this appeal to go forward. We believe there are significant issues presented in the litigation in the Pitkin County District Court upon which Ms. Fisher is likely to prevail. However, we would prefer to reach a negotiated resolution of this dispute. MS. FISHER'S PROPOSAL Ms. Fisher is willing to modify the landscaping so that it does not exceed a height of 42 inches at any point within the front yard setback. This would be consistent with the height allowed for fences, hedgerows and planter boxes. Since Ms. Fisher can, by right, construct a fence of 42 inches in the front yard setback, we think allowing landscaping of a similar height would be consistent with the intent of the design standards that an element of openness be maintained in the front of residences. In addition, Ms. Fisher is willing to remove, if require by City Council, decorative boulders placed within the City right-of-way as part of the landscaping. In exchange for this proposed settlement, Ms. Fisher requests a revocable license for landscaping within the City right-of-way. In this regard, we note that without exception residences on Homestake Drive and within the neighborhood have installed landscaping within the City right-of-way with no objection from the City. Letter to Mr. True November 6, 2009 Page 4 Appended hereto are the following: 1. A survey of the Fisher residence which depicts the landscaping in place and highlights in red the area in excess of 42 inches in height; 2. A photograph of the front of the Fisher residence showing the landscaping as installed depicting the area in excess of 42 inches with a red line; 3. Copies of the letters of support received from Ms. Fisher's neighbors; and 4. A copy of our Notice of Appeal dated February 19, 2008. CONCLUSION Ms. Fisher respectfully requests that City Council exercise its discretion to settle the pending litigation based upon the proposal set forth herein. Please contact me to discuss setting. Executive Session to discuss the litigation and settlement with City Council. V F ly yours, N" & ALDER Richard Y. Neiley, Jr. .RYN/aglc Enclosure pms, IL A t Vjr�-( -, who reside at 2 77 approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: TAe LA. t,� l> & c4s.. �� t �l � &r i 5 S a 1�s � 61 � �P tt-F� ��, �-� c�-o iZ►�-�-vD, 7���A rNl U Signature Date 3ev I/V1/e `- who reside at & approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen." Comments: Sign Date 1/We W, �! , who reside at / 4� approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen." Comments: /C)o u✓I �I�.-, s u,�. a Signatur Date � — 4y— c� I/We , who reside at 1r approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: Ajo No%sQ, No U7i 0 �-1s Q Grneer» Td ec�. wooldp `f �Io--rre, l.cv�il s S uv� ram+ Signature � ox� Date Cl/We WL/l/ o reside at approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: ;vw,y�M,v-eS L A, Signature Date 2-� �t 1 � � FROM STITT FAX NO. : 561 659 211111 ,,,b. 04 2008 04: 16PM Pi F%jl t 1 Ic" ull ul Ll to uOi d Idl lus(48 MAW Tr6l 11 thC,, u"Ity d kyol: 11- b. Comments: Sionatu F--i4x. q46-9)-b-g95o Feb 05 08 01:59p Curtis Kaufman 970-54"060 P.1 eb Ub Utl Ul:b7lD ureaz !Ice bzUOLGS P.1 • Me e � -O V who resift Ed approve of Carde Fisheez emis&v Im xhlaa4m design at 1550 Horrwstalm Dr. and sup- port Er I! qq r.., all port her effoft W obtgn a U- - 1.1,11 ",. vadmm from the City of Aspen.- 'X,*: a I I q I N* a c- ib 5-- J. 2 L, P 17 K� c- PN I-k%Q S L r y SignatureL_ Data I I/We , who reside at O approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: Signature_V��7� Date a%i ' � • � T 4 Uwe C, who reside at v Off F Pt-___ approve of Carole Fish is existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen." Comments: Signature - Date I/We O i v.� .� 4�r� CTQVAf reside at � �21 D �rOw�-�5'�'a� _ QYI�t., approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen.` Comments: SignaturecgAe,, .a - 05 IMe lk who reside at approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: L ,/-Ujoi 3 1iVUe A-� 1G __r al U T H- 2 i who reside at /S",Z S Si G v g 12 e14 approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City. of Aspen: Comments: Signature Date D� _U57__br 1/1IVe r 1 who reside at %50 approve of Caro a Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen.' Comments: Signature Date ZS ;o: Planning and Zoning Commissior From: Marilyn Marks RE: 1550 Homestake Drive proposed variance Hearing Feb 5, 2008 I am writing in support of the application for variance filed by Carol Fisher for 1550 Homestake Drive. I have received proper notice of the application, and have carefully observed and considered the landscape design in question and the impact on the neighborhood. I am fully supportive of the landscape plan, and the plantings and diversity it adds to the otherwise somewhat barren area of street frontage on Homestake. I own the property next door to Ms. Fisher (1520 Homestake), and encourage the additional plantings, trees, and shade which help break up the masses of large houses facing the street and the cleared area of the golf course. I plan to build my personal residence on the adjoining lot at some time in the future, It is likely that I am the neighbor most impacted by this landscape plan, which I feel enhances the neighborhood. Please let me know if you have further questions of my support of this variance request. I will be out of the country on February 5. Otherwise, 1 would .plan to attend and speak personally on behalf of this variance which I believe enhances the design elements of the street. I may be reached at 970 404 2225 or Marilvn@AsDenOffice.com Marilyn Marks I/we �] O 5.c � � Sb cl I O -DD cal who reside at � & a o approve of Carole l=iOWS 4wdsting landscape design of 1550 Homestake Dr, and sup- port her efforts io obtain a landscape variance from the City of Aspen. comments_ Can d s c ck-f -e-t- JSSo 5i-oA-2 looks a r,Je- fie- hope- - 44-io+ 1'4-- , -S- —5 41— d -<� r- f o4-P) er-5 'j-e-) :%rLi6;-n up 4-P-ie:+y- /a&--idscaBc,,5 9 NEII,EY & ALDER ATTORNEYS Please Reply To: 2oi North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Fax (970) 925-9396 VIA HAND DELIVERY Mr. Chris Bendon Community Development Director City of Aspen 130 South Galena Street Aspen, CO 81611 RICHARD Y. NEII,EY, JR. EUGENE M. ALDER JOHN F. NEII,EY February 19, 2008 6800 Highway 82, Suite 1, Upper Level Glenwood Springs; Colorado 816o1 (970)92$-9393 Fax (970) 928-9399 Re: NOTICE OF APPEAL PURSUANT TO LAND USE CODE, CHAPTER 26.316 Denial of the Carole Fisher Application for Interpretation of the Residential Design Standards or, -Alternatively, for the Grant of. a Variance for 1550 Homestake Drive, Lot 19, West Aspen Subdivision, Filing No. 2, City of Aspen, Colorado, Pitkin County, Colorado, Parcel ID No. 2735-024-01-022 Dear I&. Bendon: Please accept this letter as our Notice of Appeal in connection with the above -referenced matter. A public hearing was held on the Carole Fisher Application before the City of Aspen Planning & Zoning Commission on Tuesday, February 5, 2008. The Application involved two matters. First, the Application sought an interpretation of the Residential Design Standards that the landscaping on the . Applicant's property did not constitute a "berm." Second, the Application sought a dimensional -'variance in the event that the Planning & Zoning Commission determined that the landscaping was a berm to allow the landscaping to exceed the 42 inch maximum height for walls and fences established by the Residential Design Standards. The Planning & Zoning Commission determined that the landscaping " constituted a berm and denied the request for a dimensional variance. We believe the Planning & Zoning. Commission's decision was in error for several reasons. The Residential Design Standards do not define what constitutes a "berm." The Residential Design Standards include an illustration showing a berm as a continuous earthen barrier planted with trees. The Applicant's landscaping does not constitute a berm based upon the depiction shown in the Residential Design Standards. Even if the landscaping could properly be characterized as a berm under the pictorial definition'of the Residential Design Standards, a dimensional .variance should have been grante&based -upon the evidence presented. The Planning & Zoning Commission concluded that the Applicant's landscaping was not in character with the neighborhood and did not represent an appropriate pattern of development in the neighborhood. This finding was patently incorrect and not supported by the evidence. Letter to Mr. B endon February 19, 2008 Page 2 The Applicant presented 16 letters from adjacent property owners in support of the variance application. There was no public opposition to the granting of the variance. Photographs submitted by the Applicant demonstrated that similar landscaping features have been incorporated into many properties in the neighborhood. The Planning & Zoning Commission also improperly concluded that the Applicant's property was not uniquely impacted by proximity to the Aspen Municipal Golf Course. The Planning & Zoning Commission improperly concluded that all of the residences on Homestake Drive were equally impacted by golf balls landing on and damaging their properties. This conclusion was not supported by the evidence presented, which demonstrated that the other residences along Homestake Drive within the trajectory of golf balls from the tee boxes were protected_ by landscaping and vegetation screening. Without the landscaping, such protection will not be available to the Applicant. Additionally, the Applicant's installation of landscaping on her property occurred only after the City of Aspen Community Development Department had issued a certificate of occupancy for the property. At the time the certificate of occupancy was issued, the Applicant's property had been fully contoured with the materials that were on February 5, 2008 deemed to constitute a berm. The Applicant relied upon the issuance of the certificate of occupancy in installing the landscaping vegetation on her property. It would work a substantial hardship on the Applicant to require that the landscaping now be removed. It is my interpretation of the Land Use Code, after consultation with City Attorney James R. True, that this appeal will be heard by the .City of Aspen Board of Adjustment pursuant to Chapter 26.314 and. Land Use Code §§ 26.316.020 and 26.410.020.D.2. Please let. me know at your earliest convenience what, if any, additional materials are needed for the appeal hearing. and when the hearing will be scheduled. We recognize that under the terms of the Land Use Code, appeal hearings are generally supposed to be held within 30 days of the initiation of the appeal. In the event it is not possible to schedule the appeal within that time frame, please let me know so an appropriate date can be arranged. Thank you for your courtesy and prompt attention to this matter. Very truly yours, NEILEY & ALDER w `C-i�GUC.G� Richard Y. Neiley, Jr. RYN/agk - cc: Carole Fisher James R. True, Esquire (for the Aspen Planning & Zoning Commission) Jessica Garrow, Planner 'IW •r. � y r-i �. '•�.- �.cJ _ `• ,tiwr'j5,'I� '.+1 1 ►"`-u..d• -- ~ .-�''. p ' +T'"�', ; "'�.+•.1�" .'-r�:.� /s +T,X •'trr"-F' ' i;r!' 'r , +r._ .i�. . +. q s.._ �lM. •'..I � .� •.+��• r� �� ' , . � "'y��.r1'� f,�.� r '/:'ti _ � IMF- wr ^' 7s � ' �''!`- y, : i � ` �ti ',. , ' *'M��' yM • �s.41� .r f1 ili„ co "�'�,.rF_�.fi �C'.'a1uniyi.l'1`_.JfS .� �.�-'�ir 4"�' 1.' (.. r.����,i`•'''__' .J--'fy-,4 ��,a `,-r•�Rr 1 �y- , ,, I �I ) ,. - -....� ` .i i .. •r-�'�+C��Mr1'.111i�!��er•� �, �i�-i:�tir,M9i, - .. ' .. 1 - 1 I - i 1 : �44.. 'rl. •.•r i fl r r. 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I don't think that transplanting these trees will be easy, but i don't think that it's impossible. I would imagine that the root systems have not traveled very far in 2 years since their planting occurred, therefore much of the original root ball could be defined to give a good chance for transplant survival.... this means that they could root prune just outside the original root ball, dig 'em, wrap them in burlap and complete the move. I would not recommend doing this during the summer. I would recommend late fall, or very early spring prior to leaf emergence. I do expect that some of the plants/trees may not make it due to the shock of being planted, removed and replanted. I didn't see any that are stressed to the point where they couldn't be attempted. Please let me know what else may be helpful for you. Would you like me to ask Flynn if he is available for the meeting on thursday? Chris Forman, City Forester 585 Cemetery Lane Aspen, Colorado 81611 970-920-5120 p 970-920-5128 f chrisf(a)-d aspen.co. us NEII,EY & ALDER ATTORNEYS Please Reply To: 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Fax (970) 925-9396 VIA HAND DELIVERY Mr. Chris Bendon Community Development Director City of Aspen 130 South Galena Street Aspen, CO 81611 RICHARD Y. NEIhEY, JR. EUGENE M. ALDER JOHN F. NEII,EY February 19, 2008 6800 Highway 82, Suite 1, Upper Level Glenwood Springs, Colorado 816oi (970)928-9393 Fax (970) 928-9399 iRECEI� �J CITY OF LdtJ��;Y �' SP,��: z �E� PMEN! Re: NOTICE OF APPEAL PURSUANT TO LAND USE CODE, CHAPTER 26.316 Denial of the Carole Fisher Application for Interpretation of the Residential Design Standards or, Alternatively, for the Grant of a Variance for 1550 Homestake Drive, Lot 19, West Aspen Subdivision, Filing No. 2, City of Aspen, Colorado, Pitkin County, Colorado, Parcel ID No. 2735-024-01-022 Dear Mr. Bendon: Please accept this letter as our Notice of Appeal in connection with the above -referenced matter. A public hearing was held on the Carole Fisher Application before the City of Aspen Planning & Zoning Commission on Tuesday, February 5, 2008. The Application involved two matters. First, the Application sought an interpretation of the Residential Design Standards that the landscaping on the Applicant's property did not constitute a "berm." Second, the Application sought a dimensional variance in the event that the Planning & Zoning Commission determined that the landscaping was a bern to allow the landscaping to exceed. the 42 inch maximum height for walls and fences established by the Residential Design Standards. The Planning & Zoning Commission determined that the landscaping constituted a berm and denied the request for a dimensional variance. We believe the Planning & Zoning Commission's decision was in error for several reasons. The Residential Design Standards do not define what constitutes a "berm." The Residential Design Standards include an illustration showing a berm as a continuous earthen barrier planted with trees. The Applicant's landscaping does not constitute a berm based upon the depiction shown in the Residential Design Standards. Even if the landscaping could properly be characterized as a berm under the pictorial definition of the Residential Design Standards, a dimensional variance should have been granted based upon the evidence presented. The Planning & Zoning Commission concluded that the Applicant's landscaping was not in character with the neighborhood and did not represent an appropriate pattern of development in the neighborhood. This finding was patently incorrect and not supported by the evidence. Letter to Mr. B endon February 19, 2008 Page 2 The Applicant presented 16 letters from adjacent property owners in support of the variance application. There was no public opposition to the granting of the variance. Photographs submitted by the Applicant demonstrated that similar landscaping features have been incorporated into many properties in the neighborhood. The Planning & Zoning Commission also improperly concluded that the Applicant's property was not uniquely impacted by proximity to the Aspen Municipal Golf Course. The Planning & Zoning Commission improperly concluded that all of the residences on Homestalce Drive were equally impacted by golf balls landing on and damaging their properties. This conclusion was not supported by the evidence presented, which demonstrated that the other residences along Homestalce Drive within the trajectory of golf balls from the tee boxes were protected by landscaping and vegetation screening. Without the landscaping, such protection will not be available to the Applicant. dditionall_y, the Applicant's installation of landscaping on her property occurred only after the City of Aspen Community Development Department had issued a certificate of occupancy for the property. At the time the certificate of occupancy was issued, the Applicant's property had been frilly contoured with the materials that were on February 5, 2008 deemed to constitute a beim. The Applicant relied upon the issuance of the certificate of occupancy in installing the landscaping vegetation on her property. It would work a substantial hardship on the Applicant to require that the landscaping now be removed. It is my interpretation of the Land Use Code, after consultation with City Attorney James R. True, that this appeal will be heard by the City of Aspen Board of Adjustment pursuant to Chapter 26.314 and Land Use Code §§ 26.316.020 and 26.410.020.D.2. Please let me know at your earliest convenience what, if any, additional materials are needed for the appeal hearing and when the hearing will be scheduled. We recognize that under the terms of the Land Use Code, appeal hearings are generally supposed to be held within 30 days of the initiation of the appeal. In the event it is not possible to schedule the appeal within that time frame, please let me know so an appropriate date can be arranged. Thank you for your courtesy and prompt attention to this matter. Very truly yours, NEILEY & ALDER Richard Y. Neiley, Jr. RYN/agk cc: Carole Fisher James R. True, Esquire (for the Aspen Planning & Zoning Commission) Jessica Garrow, Planner N$II,EY & ALDER ATTORNEYS Please Reply To: 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Fax (970) 925-9396 VIA HAND DELIVERY Mr. Chris Bendon '= Community Development Director City of Aspen 130 South Galena Street Aspen, CO 81611 RICHARD Y. NEILEY, JR. EUGENE M. ALDER JOHN E. NEILEY February 19, 2008 6800 Highway 82, Suite 1, Upper Level Glenwood Springs, Colorado 816o1 (970) 92$-9393 Fax (970) 928-9399 RECEIVED CITY CF ASPEN COMMUNITY )FVFLOPMENT Re: NOTICE OF APPEAL PURSUANT TO LAND USE CODE, CHAPTER 26.316 Denial of the Carole Fisher Application for Interpretation of the Residential Design Standards or, - Alternatively, for the Grant of a Variance for 1550 Homestake Drive, Lot 19, West Aspen Subdivision, Filing No. 2, City of Aspen, Colorado, Pitkin County, Colorado, Parcel ID No. 2735-024-01-022 Dear Mr. Bendon: Please accept this letter as our Notice of Appeal in connection with the above -referenced matter. A public hearing was held on the Carole Fisher Application before the City of Aspen Planning & Zoning Commission on Tuesday, February 5, 2008. The Application involved two matters. First, the Application sought an interpretation of the Residential Design Standards that the landscaping on the Applicant's property did not constitute a "berm." Second, the Application sought a dimensional variance in the event that the Planning & Zoning Commission determined that the landscaping was a berm to allow the landscaping to exceed the 42 inch maximum height for walls and fences established by the Residential Design Standards. The Planning & Zoning Commission determined that the landscaping constituted a berm and denied the request for a dimensional variance. We believe the Planning & Zoning. Commission's decision was in error for several reasons. The Residential Design Standards do not define what constitutes a "berm." The Residential Design Standards include an illustration showing a berm as a continuous earthen barrier planted with trees. The Applicant's landscaping does not constitute a berm based upon the depiction shown in the Residential Design Standards. Even if the landscaping could properly be characterized as a berm under the pictorial definition of the Residential Design Standards, a dimensional variance should have been granted -based Upon the evidence presented. The Planning & Zoning Commission concluded that the Applicant's landscaping was not in character with the neighborhood and did not represent an appropriate pattern of development in the neighborhood. This finding was patently incorrect and not supported by the evidence. Letter to Mr. Bendon February 19, 2008 Page 2 The Applicant presented 16 letters from adjacent property owners in support of the variance application. There was no public opposition to the granting of the variance. Photographs submitted by the Applicant demonstrated that similar landscaping features have been incorporated into many properties in the neighborhood. The Planning & Zoning Commission also improperly concluded that the Applicant's property was not uniquely impacted by proximity to the Aspen Municipal Golf Course. The Planning & Zoning Commission improperly concluded that all of the residences on Homestake Drive were equally impacted by golf balls landing on and damaging their properties. This conclusion was not supported by the evidence presented, which demonstrated that the other residences along Homestake Drive within the trajectory of golf balls from the tee boxes were protected by landscaping and vegetation screening. Without the landscaping, such protection will not be available to the Applicant. Additionally, the Applicant's installation of landscaping on her property occurred only after the City of Aspen Community Development Department had issued a certificate of occupancy for the property. At the time the certificate of occupancy was issued, the Applicant's property had been fully contoured with the materials that were on February 5, 2008 deemed to constitute a berm. The Applicant relied upon the issuance of the certificate of occupancy in installing the landscaping vegetation on her property. It would work a substantial hardship on the Applicant to require that the landscaping now be removed. It is my interpretation of the Land Use Code, after consultation with City Attorney James R. True, that this appeal will be heard by the City of Aspen Board of Adjustment pursuant to Chapter 26.314 and Land Use Code § § 26.316.020 and 26.410.020.D.2. Please let me know at your earliest convenience what, if any, additional materials are needed for the appeal hearing and when the hearing will be scheduled. We recognize that under the terms of the Land Use Code, appeal hearings are generally supposed to be held within 30 days of the initiation of the appeal. In the event it is not possible to schedule the appeal within that time frame, please let me know so an appropriate date can be arranged. Thank you for your courtesy and prompt attention to this matter. Very truly yours, NEILEY & ALDER 6 , awla,�-Ol - - - ) . Richard Y. Neiley, Jr. Ila* RYN/agk cc: Carole Fisher James R. True, Esquire (for the Aspen Planning & Zoning Commission) Jessica Garrow, Planner D n L o -0 :�- ch CD Cl) o o. 0 5C/) 00G) = a, c) -D p C� 0 m (� 0 0 rn N O oCOO z o m Go Cf) r� o� COO tr1 CD a N Ro -+ rrl l RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION DENYING ONE RESIDENTIAL DESIGN STANDARDS VARIANCE FOR 1550 HOMESTA]KE DRIVE, LOT 19, WEST ASPEN SUBDIVISION, FILING NO.2, CITY OF ASPEN, CO, PIT]KIN COUNTY, COLORADO PARCEL NO. 2735-024-01-022 Resolution #8, Series 2008 WHEREAS, the Community Development Department received an application from Carole C. Fisher, represented by Richard Neiley, requesting approval of one (1) Residential Design Standards Variance to maintain a berm at 1550 Homestake Drive; and, WHEREAS, the subject property is zoned R-15 (Moderate Density Residential); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended denial, of the proposed land use request; and, WHEREAS, during a duly noticed public hearing on February 5, 2008, the Planning and Zoning Commission approved Resolution No. 8, Series of 2008, by a four to two (4 — 2) vote, denying one Residential Design Standards Variance to allow a berm in the front yard setback on the property located at 1550 Homestake Drive, Lot 19, West Aspen Subdivision, Filing No. 2, City of Aspen, CO; and, WHEREAS, the Aspen Planning and Zoning Commission has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; and, WHEREAS, the Planning and Zoning Commission finds that the development proposal does not meet the applicable development standards and that approval of the development proposal is not consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Planning and Zoning Commission finds that this resolution furthers and is not necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION AS FOLLOWS: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the Planning and Zoning Commission hereby denys one (1) Variance from the Residential Design Standards from the Fences standard (Land Use Code Section 26.410.040.A.3), to allow a berm in the front yard setback on the property located at 1550 Homestake Drive, Lot 19, West Aspen Subdivision, Filing No. 2, City of Aspen, CO. Section 2: This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 3: If any section, subsection, sentence, clause, phrase, or portion .of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED BY the Planning and Zoning Commission of the City of Aspen on this 5th day of February, 2008. APPROVED AS TO FORM: ity Attorney ATTEST: yg ckie Lothia , Deputy City Clerk PLANNING AND ZONING COMMISSION: Dylan Johns, Chair 4-or PX A i C'e G:\city\Jessica\Cases\1550 Homestake Dr\P&Z\1550HomestakePZ Reso_2 5 08FINAL.doc AGENDA ASPEN PLANNING AND ZONING COMMISSION REGULAR MEETING TUESDAY, February 05, 2008 4:30 p.m. — Public Hearing Sister Cities Meeting Room I. ROLL CALL II. COMMENTS A. Commissioners B. Planning Staff C. Public D. Next Resolution #6 III. MINUTES IV. DECLARATION OF CONFLICT OF INTEREST V. AGENDA ITEMS: A. Code amendment regarding voting — JT, Resolution No. 06 B. Code amendment regarding public notice — JT, Resolution No. 07 C. 1550 Homestake Drive, Residential Design Variance - JP/JG Resolution No. 08 D. Aspen Club, Conceptual Specially Planned Area and associated requests — JG, Resolution No. 09 VII. ADJOURN ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 COMMENTS:........................................................................................................... 2 DECLARATION OF CONFLICT OF INTEREST ................................................. 2 CODE AMENDMENT REGARDING VOTING .................................................... 2 CODE AMENDMENT REGARDING PUBLIC NOTICE ..................................... 3 1550 HOMESTAKE RESIDENTIAL DESIGN VARIANCE ................................ 5 ASPEN CLUB CONCEPTUAL SPECIALLY PLANNED AREA AND ASSOCIATED REQUESTS................................................................................... 10 1 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 Dylan Johns opened the regular meeting of the Planning & Zoning Commission in Sister Cities Meeting Room at 4:30 pm. Jim DeFrancia and Michael Wampler were excused. Commissioners Cliff Weiss, Stan Gibbs, Dina Bloom, LJ Erspamer, Brian Speck and Dylan Johns were present. Staff in attendance included Jim True, Special Counsel; Jennifer Phelan, Jessica Garrow, Community Development; Jackie Lothian, Deputy City Clerk. COMMENTS: Jennifer Phelan requested that the planning commission meeting end at 6:30 pm so that the P&Z Members could attend the caucuses. Phelan noted there was a conference in Denver next month for members of the planning commission to attend if interested. Brian Speck attended the Telluride conference 2 years ago and expressed how much he enjoyed meeting people from other communities. DECLARATION OF CONFLICT OF INTEREST Dylan Johns said that he was conflicted on the Aspen Club. PUBLIC HEARING: CODE AMENDMENT REGARDING VOTING Dylan Johns opened the public hearing. Jim True stated this calve from the attorney's office regarding a 2-2 vote, a tie vote has no action and a matter could sit in limbo in city council if all four of the council members kept their votes. True said if there was an ordinance on the table that received a 4-1 against that was considered a no action and there has to be a motion for a denial; the ordinance of denial would have to pass with at least 3 votes. True said the procedure for denial needed to be codified formally; particularly a 2-2 situation that is deemed a denial; a 1-4 vote is deemed a denial. This changes the denial to an affirmative denial. LJ Erspamer stated this was a good clarification/change brought by the attorneys. MOTION: LJErspamer moved to approve Resolution 006-08 seconded by Cliff Weiss. Roll call vote: Speck, no; Weiss, yes; Bloom, yes; Erspamer, yes; Gibbs, yes; Johns, no. Approved 4-2. Discussion of the motion: Dylan Johns said that personally he did not feel that a tie vote should result in a denial; he doesn't have a problem eliminating the need for an affirmative denial of the vote. Jim True explained that was in the charter that a 2-2 vote resulted in no action; there has to be 3 affirmative votes to pass an ordinance. Johns said that at least limbo gives the applicant a chance to re -plead 2 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 their case rather than a denial. Cliff Weiss said that a denial doesn't mean that you can't come back with some change in the facts and re -plead your case but limbo is totally nowhere. Johns said that you have to substantively change your application and it has to be a certain period of time after you have originally submitted the initial one. Stan Gibbs asked if the process was any different given a 2-2 tie and a 3-1 denial; does 3-1 denial mean that you have to go all the way back to square one with the process or do you still get to appeal the case, which you can do with a 2-2 as well. True replied it was the same thing; this makes all of that the same a 2-2 vote is the same as a 1-3 vote or a 1-4 vote or 2-3 vote, anything that's less than 3 positive. True said that 2-2 would be deemed denied, no more action has to take place. PUBLIC HEARING: CODE AMENDMENT REGARDING PUBLIC NOTICE Dylan Johns opened the public hearing. Jim True explained that this was to clarify some notice issues that have come up and most substantive one involves the content of the notice itself. True wanted to include the contact information for the applicant, which should be on the notices that were sent out in some form better than the way it is now. That would include the contact phone number, mailing address or email address of the applicant or representative and that should be in the notice; it makes it easier if the neighbors know how to contact the owner or the representative. True said another problem was that the notice says hearing at such and such a day, time and place; often the hearing is continued and sometimes the notice stays up through the whole process and sometimes it doesn't. But after the initial hearing it means nothing and the intent was to let people know the hearing can be continued; there was a question of whether or not the notice should just stay up the entire time with a requirement for that so the notice stays up. Currently there was no requirement that the notice stays up now; it would require an affidavit at every hearing that the notice was up prior to this hearing. The final thing was the list for mailing either comes from the assessors' office or GIS, so GIS should be codified. Cliff Weiss asked if the resolution required an email address or phone number or mailing address. Jennifer Phelan replied that the address of the owner was currently on the notice but this provides more flexibility that it could be either the mailing address, the email address or phone number and gives the option of the authorized representative. Phelan said that she will recommend the applicant's representative be put on the notice. True noted this changed the notice requirement 3 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 from address to mailing address or phone number or email address of either the applicant or the applicant's representative; now it was the name and address of the applicant. Weiss said that he was sensitive to the privacy side of this. True said this gave a better chance of someone being able to contact someone to talk about the project. Stan Gibbs asked if there was a difference in how the public should be informed of a continued hearing. True responded that he saw a difference because often the first hearing could be continued because the agenda was too crowded and the public shows up and the real hearing wasn't for two months; he thought the public should be notified and the posted notice has to be up before any continued hearing and the code currently does not say that. LJ Erspamer said the email address could be a problem with spain filters so email maybe should be an additional source rather than sole source. Phelan said that the other thing to consider with privacy issues was what kind of information should be out there and to what extent. Phelan said that if someone comes into the community development office to look at the application all of the contact information is there. Weiss said the point of this was to make it easier for neighbors to snake contact; he asked if it was possible for the date of the hearing on the sign to be updated. True replied that could be required but that change was not in the resolution; that could be done to change the date on the notice 15 days prior to the continued hearing. Gibbs asked what if there were continuances less than that 15 day notice period. True said that was correct and that time frame could be adjusted; people that were familiar with the process know that can happen. True said that it was the person that was not familiar with the process. Dylan Johns asked why couldn't the sign have the contact information for the City be the Community Development Department for the possible future meetings. No public comments. True asked if anyone proposed a re -draft of the resolution to include a requirement that the notice stay up throughout the process. Johns said that could be handy but not that it necessarily needed to be updated to reflect every single meeting date. Gibbs agreed that it was useful and important for the public to know that an action was pending on a property. Phelan suggested having something in the timeline to cover if a sign gets stolen or lost. True said that was the case now submitting an affidavit stating the sign was posted for 15 days. Phelan said maybe the reliance was on the first posting and it was just a requirement that a notice is maintained to the best of the applicant's ability so it doesn't create any legal issues if a notice has to be replaced. True said that it could be written to the best of the ability and not necessarily require the affidavit that it has been up the entire time. Erspamer wanted to see the date of every meeting posted on the sign; it could be done with a 4 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 sticker and indelible marker to make it current. Weiss stated that it was the applicant's responsibility to maintain that posted sign. Johns said that the contact info would be better to be filtered once with a phone call which was better than just an email or letter in the mail. Gibbs said that these were alternatives so the applicant can choose which one they want to put on the notice. Johns said the way it was written it looked like a phone number and a mailing address or an email address. True said that was not his intention; he intended all three to be alternatives. True said that he could make it clearer to either a mailing address or an email. Weiss said that the mailing address should be a requirement and the email or phone should be an either or. Gibbs asked why they had to have a mailing address. Weiss responded that you can send an email but you don't always have a way to confirm the recipient received it. Johns said registered mail would give you that. True clarified that a mailing address would be required and either a phone number or email. Weiss said it would be an option to add the email or phone. True said it was not consistent with the way Jennifer proposed the notice requirements to be one of the three; mailing address, phone number or email. Phelan said that she would be telling staff and publications to use the mailing address. Phelan said the notice in the newspaper now says applicant and address and the proposed change would be either applicant and mailing address or applicant's representative and mailing address; in any notice the planner on the case is included with contact phone number. Weiss said this was more complex than he thought and suggested the resolution be re -submitted with the changes made to keep the sign up during all continuances and the difference for a newspaper to a posted sign. True said that he would re -draft the resolution with the language to the best of the applicant's ability. MOTION.• Cliff Weiss moved to continue the public hearing on the Code Amendment for noticing Resolution #007-08 to February 19`h seconded by Dina Bloom. All in favor. PUBLIC HEARING: 1550 HOMESTAKE RESIDENTIAL DESIGN VARIANCE Dylan Johns opened the public hearing for 1550 Homestake Drive. Jim True stated the notice was accepted. Jessica Garrow explained the applicant was Carole Fisher represented by Richard Neiley; the applicant requested a variance from the 5 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 fence standard from the residential design standards to maintain a berm that had been previously constructed. Garrow stated that a portion of this berm was located in city right-of-way so regardless of the commission's action tonight the applicant will be required to obtain a right-of-way encroachment permit from the city engineering department for that portion of the berm that is in the right-of-way and that would be in order to maintain that portion. Garrow utilized applicant exhibit 6 in the packet to delineate the property line and the setbacks and the berm. Garrow stated the portion of the berm violated the residential design standards because the standards state berms cannot be constructed in the front yard setback; because it was in that setback area was why the variance was required. Garrow noted there were two criteria to review this request; the first was that the berm provides an appropriate pattern of development given the neighborhood context or that the berm was necessary due to a site specific constraint. Garrow said that staff did not find the berm was appropriate given the context of the area. Residential Design Standards encourage that use of the yard and the home be preserved from the public realm; low fences and hedges may be used to delineate the edge of a property but is important not to close off view of the front lawn and the house. Staff thinks this berm (shown in applicant attachment 4) cuts off any view from the public realm of the house and that front yard area. Applicant attachment 5 is the aerial map and the property was outlined; it is across from the golf course. Garrow said there were possible site issues with the berm and would be part of the encroachment license from the engineering department. Staff does not feel that this variance was needed for any context reasons; further staff does not find site specific constraints. Garrow said the applicant stated the berm was necessary because of the lot's unique location across from the golf course; again all lots on the golf course deal with errant balls more than likely but they are still required to abide by the residential design standards. All of the lots by the golf course and Cemetery Lane are required to abide by the residential design standards and all areas of town. Staff does not recommend in favor of granting this variance because it does not meet the review criteria. Rick Neiley stated that he represented Carole and Jamie Fisher. Neiley said they don't agree with the staff recommendation and when you understand this property and the context of where it is and how this berm came to be there's one of two possible outcomes that they would like. This isn't a berm as it's defined by the design regulations and secondly there are site specific constraints related to this particular house and the context of what's been developed on the street in relationship to the golf course that makes this a unique situation. Neiley said the ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 way this berm came about was that when Carole and Jamie were building the house they removed the excavation from the foundation when the new house was placed on the backside of the lot and used it to re -contour the front yard. Neiley said at the time that this was done a certificate of occupancy was issued by the city without any comment about this constituting a berm or without any indication that there was some need to go through a design standards review with respect to the landscaping of the property. Neiley said the certificate of occupancy was issued about a year ago the berm as it was referred to by the city was considered by Carole and Jamie to be landscaping of their front yard and was to avoid the trucking of the materials off site and to create some protection from what they discovered during construction were projectiles emanating from the golf course in the form of golf balls that were breaking automobile windshields of people who working on the property and the applicants vehicles. Neiley distributed photos (exhibits 7 to 29) to the commission; one photo showed last winter when they received the certificate of occupancy. Neiley said that Carole and Jamie thought they were engaged in landscaping, which does not require design review consideration or a building permit and in the summer of 2007 made arrangements to have some trees, shrubs and plantings on the berm and the Fishers' got served with a notice from Community Development Department and then this application was submitted. Neiley said they do not view this as a berm and the elevation doesn't change on the western end. Neiley said there was an area of about 200 square feet that was 6 inches higher and one area of about 30 square feet that was 13 inches above what would be permitted for a fence or wall across the front of this property, it goes up to 55 inches and that was intentional because the trajectory of golf balls that come across and this protects and shields automobiles that are located in the driveway. Neiley said that Homestake Drive has become a busy street and the proximity of the property to the cross country ski facilities the street across from the house is used extensively as public parking area. Neiley said they preferred landscaping to a 42 inch wall or a 42 inch fence, which could have been constructed immediately on the property line and would have been less aesthetically pleasing and less consistent with the neighborhood. Neiley said the objective was not to completely disassociate the house with surrounding properties, pedestrians on the street or with the community but to provide a reasonable amount of screening from the impacts of heavy traffic, the impacts of being immediately adjacent to a public facility and the impacts of golf balls flying across the golf course and causing damage to the property. Neiley said there were no design guidelines regarding a berm in the code. 7 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 Neiley submitted 16 letters (exhibit 29) from neighbors in support of the application. The letters were from Marilyn Marks, Shirley Doon, Linda Nevin, Allison Bone, Kelly Doherty, Sandra Pember, Ron & Selvy Gray, Austine Scott, Curtis Kaufman, Liz Stewart, Chuck Lyons, Clint & Caven Goodrich, The Phillips, Allison Daily, Janet Guthrie and Kurt Bresnitz. Carole Fisher noted the front yard was actually the back yard. Fisher said the house was finished and got the "co" and we thought great everything is done and 5 or 6 months later its summer and we went to plant what we thought was our finished front yard and she based her landscaping on what was in the neighborhood. Cliff Weiss asked when the home was built. Neiley replied it was built in 2006 and finished in January of 2007. Weiss asked when was R-15 put into place. Garrow replied this was part of the residential design standards that were adopted in 2003. Phelan said there was 2003 and 2005. Johns asked if there was a requirement for current properties to conform to design standards. Garrow answered that any property that would come in for a redevelopment would be required to abide by all applicable design standards and this standard is applicable to all properties. Stan Gibbs asked if a landscape plan was required on a development such as this. Garrow replied it was not; these kinds of things would be reviewed if there were a tree that the parks department was interested in saving or if there was tree mitigation that occurred as part of a redevelopment. Phelan said that the landscaping or berm may not have been very visible with snow in the winter. Johns asked if anyone had a copy of the grading and drainage plan or any other site plan. Garrow said she could pull the building permit file. Neiley said he did not have with him. Weiss asked how high the berm was at the highest point. Neiley said the highest point was 55 inches at about 30 square feet and all the rest of it was 42 inches or less. Neiley said it wasn't intentional that they went over the square footage. No public comments. Weiss said he lived on Cemetery Lane and there were many properties with berms; it was not in character with the neighborhood. Weiss requested that zoning walk around the neighborhood to let people know what is legal and what isn't. Weiss �n ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 said these folks had their "co" and in the same breath he did not like what this was doing to the neighborhood and he didn't like trees on the corners that you can't see past. Brian Speck said that he did not find the berm offensive and it did not seem inconsistent with the area. Dina Bloom agreed with Brian and said it was consistent with what she saw in the neighborhood. LJ Erspamer said that you can get zero landscaping without the rolling hills or whatever you want to call it but thought it was out of character with the new zoning in the area; he agreed with the staff findings. Stan Gibbs said that he did not believe this was a unique situation; everybody along the golf course has the same problem. Gibbs said the definition of a berm was pretty straight forward and he said there were alternate solutions like a fence at 42 inches. Gibbs said that the issue with the "co" doesn't qualify as a grant of any kind of rights beyond what the code would require. Gibbs agreed with staff. Dylan Johns agreed that it was somewhat in context with the neighborhood although a person who purchased a property in 2005 and there wasn't a new condition that sprung up since then should be automatically grandfathered. Johns did not see an overwhelming cause for a variance just because you live on a golf course; golf balls come. Johns said that he could not support this variance. MOTION: LJErspamer moved to approve Resolution #008-08 approving a variance from the Fence Residential Design Standards to permit a berm in the front yard setback on the property located at 1550 Homestake Drive; seconded by Stan Gibbs. Roll call vote: Speck, yes; Weiss, no; Bloom, yes; Erspamer, no, Gibbs, no; Johns, no. Motion failed 4-2. MOTION: Cliff Weiss moved to deny Resolution #008-08 approving a variance from the Fence Residential Design Standards to permit a berm in the front yard setback on the property located at 1550 Homestake Drive; seconded by LJ Erspamer. Roll call vote: Speck, no; Bloom, no; Gibbs, yes; Erspamer, yes; Weiss, yes; Johns, yes. Motion to deny approved 4-2. 011 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 PUBLIC HEARING: ASPEN CLUB CONCEPTUAL SPECIALLY PLANNED AREA AND ASSOCIATED REQUESTS LJ Erspamer opened the public hearing on the Aspen Club. Jim True stated the notices were accepted. Jessica Garrow said that because this was a large case and asked if the commissioners had any specific questions or any further clarification that was in the packet so that she can provide that information at the next meeting. Garrow said that the applicant would give a presentation on the idea behind this redevelopment project not getting into the specific review criteria but why we were seeing this application and continuing this meeting to February 19th where staff would give a formal presentation and the commission would take public comment. Sunny Vann stated he was the representative for the applicant and introduced Michael Fox. Michael Fox stated that the reason the Aspen Club was putting in this application was that the Aspen Club was unique, all the employees and members were very proud of and an integral part of this community. Fox said to date there were over two hundred employees, over nineteen hundred members and thousands of weekly visitors to the programs of sports medicines, physical therapy and the myriad of activities that go on at the club on a daily basis. Fox said that gathering places were slowly disappearing in Aspen and the Aspen Club was one of the places where people come and gather and there was still a sense of community. Fox said looking to the future of the Aspen Club there were a lot of choices and some were easy and some were much more difficult choices. Fox noted that town was changing and they were dealing with a change in competitive landscape with the Aspen Recreation Facility, which has become a direct subsidized competitor to the Aspen Club. Fox said there were increased operating costs; things were more expensive today than a year ago and certainly more expensive than 15 years ago when he first took over the club. Fox said the developers that have come to talk to him have told him that he could make more money tearing the club down and building houses. Fox said the reason they were here was because he did not want to do that and the Aspen Club was important and unique. Fox wanted to make something that continues to fit the needs of this community and continues to provide a service that you can't find anywhere else; he said they have an asset and a community and group of people that we can be proud of and we are putting together a program that says how do we make the Aspen Club better. Fox said the program that they have put together is unique and this facility upon completion will be the first in the country to combine holistic health and sustainable development; those two things haven't been put together in the past. Fox said this project would have a smaller carbon footprint 10 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 than it does today; this project will create less traffic when it's done on Ute Avenue than exists today. Fox said when the project is done it will bring employees who live down valley into town into the community and be able to give back 3 hours a day to somebody and have the employees live at the Aspen Club. Fox said the Aspen Club has an opportunity to bring people and keep people in the community with the new j ob opportunities in sustainable development and holistic health. Fox said they remodeled the club 15 years ago and so many things change in 15 years in terms of health and well being and a lot of the ideas that made sense 15 years ago don't make sense today, they are not relevant anymore. Fox said they were taking green building processes and applying them to individual buildings, residences, office, retail and then applies to a community. Fox said they were going to use solar pv, geothermal heating, smart building materials and in terms of traffic they were putting a plan together to mitigate traffic with the goal being having less traffic when they are done than they have today. Increased shuttle service, the ability to check out an electric car, bike share, car share programs for employees that live on site (they could create a model for the city), paid parking programs for guests as an auto disincentive; they were trying to look at all the different tools in how to get people out of cars and the goal of reducing traffic for their neighbors. Fox said that they were looking at modular construction for the project. The affordable housing would house 150% of the requirement on site. Fox said his analogy for the redevelopment of the club was sort of like the Jersey Shore to get to be with your whole family; what they were looking to do at Aspen Club Living was to have an interval project with 2 weeks fixed so that you can come out with your whole family and when you are here you are with the same 18 families every year and the whole thing is focused around living and staying healthy. It will be a 2 week retreat in Aspen. The sale of the interval units pay for the improvements to the club and the HOA will help keep the expenses low for the local memberships; the owners will underwrite new programs like stress management, weight management, living with diabetes and living with cancer etc. Fox said this makes the Aspen Club a better community resource, allows growth for the future, allows the creation of something everyone can be proud of, creates a facility with little developmental impacts yet in terms of community impacts it has a fantastic impact and allows them to be a better employer and allows them to be a better health club owner. Fox said this redevelopment allows them to develop better programs, develop integrative uses for the club that tie back into the larger Aspen community. Fox said that they were looking for the commissioners comments. 11 ASPEN PLANNING & ZONING COMMISSION REGULAR MEETING MINUTES February 5, 2008 Sunny Vann noted this was a conceptual review and this application was for the scope and the breath of the project and come back at final with the traffic study to help mitigate those concerns. LJ Erspamer asked which code this application came under. Jessica Garrow replied the current code. MOTION: Dina Bloom moved to continue the public hearing for the Aspen Club to February 19th seconded by Stan Gibbs. All in favor, approved. Adjourned at 6 : 3 0 pm. a Fie Lothian, Deputy City Clerk 12 Easy Peel Labels lA� i ♦ 1=1111110 See Instruction Sheet ; Use Avery® TEMPLATE 51600 lFer4, Paper for Easy Peel Feature! MILLER JOHN W TRUSTEE 50% MILLER KATHERINE L TRUSTEE 50% 1490 SILVER KING DR 1490 SILVER KING DR ASPEN, CO 81611 ASPEN, CO 81611 FINGERHUT BERT COUCHMAN DIANE P PO BOX 4580 4416 GRASSMERE ASPEN, CO 81612 DALLAS, TX 75205 TAYLOR RICHARD & MURIEL SCHUBERT INVESTMENTS LP 1595 SILVERKING DR 1575 SILVERKING DR ASPEN, CO 81611 ASPEN, CO 81611 GUTHRIE JANET BLUEPOINT PROPERTIES LLLP PO BOX 505 1450 SILVER KING DR ASPEN, CO 81612 ASPEN, CO 81611 TAYLOR J DAVID DALY THOMAS J & JUDITH J 221 N STARWOOD DR 1590 HOMESTAKE DR ASPEN, CO 81611-9724 ASPEN, CO 81611 AZOUZ REVOCABLE TRUST PINE PHILIP A 14900 VENTURA BLVD #330 50 S COMPASS DR SHERMAN OAKS, CA 91403 FORT LAUDERDALE, FL 33308 WAGNER DUER III CITY OF ASPEN 1830 CITY CENTER TOWER II 130 S GALENA ST FORT WORTH, TX 76102 ASPEN, CO 81611 ASPEN GOLF PRO SHOP SHLOMOS ON THE GREEN C/O SSI VENTURE LLC 39551 HWY 82 299 MILWAUKEE ST #502 ASPEN, CO 81611 DENVER, CO 80206-5045 aAVERY05160( i OLEARY J CAVANAUGH JR 1500 SILVER KING DR ASPEN, CO 81611 WESTERN DEVCO LLC 1490 LAFAYETTE ST #306/LEGAL DEPT DENVER, CO 80218 WALKER JOHN E & JEANNE B 2007 FOREST GARDEN DR KINGWOOD, TX 77345 MARKS MARILYN R 930 W FRANCIS ST ASPEN, CO 81611 ARESTY WENDY 1610 HOMESTAKE DR ASPEN, CO 81611 CITY OF ASPEN 130 S GALENA ST ASPEN, CO 81611 PYRAMID CREEK RESTAURANT C/O CITY OF ASPEN 130 S GALENA ST ASPEN, CO 81611 DEHAN STEPHEN E & ALISON G PO BOX 92889 AUSTIN, TX 78709-2889 Etiquettes faciles a peter Utilisez le gabarit AVERY® 51601D Sens de chargement Consultez la feuille wvw►r.avery.com d'instruction 1-800-GO-AVERY PUBLIC NOTICE RE: 1550 HOMESTAKE DRIVE -RESIDENTIAL DESIGN STANDARDS NOTICE IS HEREBY GIVEN that a public hearing will be held on Tuesday, February 5, 2008, at a meeting to begin at 4:30 p.m. before the Aspen Planning and Zoning Commission, Sister Cities Meeting Room, City Hall, 130 S. Galena St., Aspen, to consider an application submitted by Carole Fisher, 1550 Homestake Drive, Aspen, Colorado 81611, owner of the subject property, represented by Richard Neiley. The applicant is requesting approval of a Residential Design Standard Variance to allow a berm forward of the front fagade of the house. The property is legally described as Lot 19 of the West Aspen Subdivision, Filing No. 2, City of Aspen. For further information, contact Jessica Galrow at the City of Aspen Community Development Department, 130 S. Galena St., Aspen, CO, (970) 429.2780,jessicag@cl.aspen.co.us. s/ Dylan Johns, Chair Aspen Planning and Zoning Commission Published in the Aspen Times on January 20, 2008 City of of Aspen Account ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: % S 5 -5 — 2 ��% (/� , Aspen, CO SCHEDULED PUBLIC HEARING DATE: 200 O STATE OF COLORADO ) SS. County of Pitkin ) I, - Aw � /e?G G 11 , 101 &— f (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen (15) days prior to the public hearing and was continuously visible from the day of , 200, to and including the date and time of the public hearing. A photograph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed zoning map shall be available for public inspection in the planning agency during all business hours for fifteen (15) days prior to the public hearing on such amendments. L-d ���? 9, Signat re The foregoing "Affidavit of Notice" was acknowledged before me this day of , 200; by �- --� Sunday, Janu, PUBLIC NOTICE I RE: 1550 HOMESTAKE DRIVE - RESIDENTIAL DESIGN STANDARDS NOTICE IS HEREBY GIVEN that a public hearing will be held on Tuesday, February 5, 2008, at a meeting to begin at 4:30 p.m. before the Aspen Planning and Zoning Commission, Sister Cities Meeting Room, City Hall, 130 S. Galena St., As pen, to consider an application submitted by Car ole Fisher, 1550 Homestake Drive, Aspen, Colo rado 81611, owner of the subject property, represented by Richard Neiley. The applicant is re questing approval of a Residential Design Stan dard Variance to allow a berm forward of the front facade of the house. The property is legally de scribed as Lot 19 of the West Aspen Subdivision, Filing No. 2, City of Aspen. For further information, contact Jessica Garrow at the City of Aspen Community Development De partment, 130 S. Galena St., Aspen, CO, (970) 429.2780, jessicag@ci.aspen.co.us. s/ Dylan Johns, Chair Aspen Planning and Zoning Commission Published in the Aspen Times Weekly on January 20, 2008. (1073522) WITNESS MY HAND AND OFFICIAL SEAL My commission expires: (�� ((b I ao, (� Notary Public ATTACHMENTS: COPY OF THE PUBLICATION LAURA MEYER PHOTOGRAPH OF THE POSTED NOTICE (SIN) " issim FzoAl 08110/2010 OWNERS AND GOVERNMENTAL AGENCIES NOTICED BYMAIL Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake JOHNS: I will now open the public hearing for 1550 Homestake Residential Design Variance. And just also wanted to let everybody to know because of the caucuses tonight we are going to be adjourning at the latest 6:30 possibly earlier depending where we wind up. I don't think we reached a formal when we want to break by kind of thing. Do we have notice on this? NEILEY: We do. I missed your discussion but I, we did everything according to Hoyle. TRUE: The rules as they are now. NEILEY: As long as they haven't changed anything ERSPAMER: We're working on it JOHNS: Okay. Jessica, please. GARROW: I haven't been before you guys in awhile so I'm Jessica Garrow, long range planner up in community development. And this is the application for 1550 Homestake Drive. The applicant is Carole Fisher represented by Richard Neiley and the applicant is requesting a variance from the fence standard, the residential design standards, to maintain a berm that had been previously constructed. A portion of this berm is located Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake in city's right-of-way so regardless of your action tonight the applicant will be required to obtain a right-of-way encroachment permit from the engineering department for that portion of the berm that is in the right-of-way and that would be in order to maintain that portion. what I've done is I've taken the survey that was attached as applicant exhibit 6 in your packet. So the property line is delineated by this blue line on the property, so this blue line here and then the setbacks are in yellow, those are the setback line, this is the property line and outlined in red is where the berm is. So this portion of the berm is actually located in the city's right-of-way. So regardless of the action on this side of the berm the applicant will need to get an encroachment license for this portion. This portion of the berm violates the residential design standards, which say that berms cannot be constructed in the front yard setback, so because it is in that setback area that's why the variance is required. So you have two criteria to review this request. The first is that the berm provides an appropriate pattern of development given the neighborhood context or that the berm is necessary due to a site specific constraint. Regarding standard 2 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake one, staff does not find that the berm is appropriate given the context of the area. The Residential Design Standards encourage that use of the yard and the home be preserved from the public realm. This standard states that low fences and hedges may be used to delineate the edge of a property but it is important not to close off view of the front lawn and the house. Staff really thinks that this berm, which is shown in applicant attachment 4 which is picture up on the top here; that this cuts off any view from the public realm of the house and of that front yard area. Applicant attachment 5 is this aerial map and I outlined the property in silver so that that you guys could see that a little bit better. It is across from the golf course, there are holes that you tee off from here and that you hit this way, so you hit parallel to where the house is. ?? Speak for yourself. GARROW: Hopefully you are hitting and avoiding sand trap over here and you are also hitting back this way on this purple. So you are hitting toward the general direction of the site but the house is over here and you are hitting to this area over here. So, the Cemetery Lane area, a lot of times when we talk about the 3 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake residential design standards it says well those were meant to apply just to the west end. Well, even in Cemetery Lane, you are not permitted to have a berm in your front yard setback. It eliminates any kind of relationship to the street and in this case it would eliminate any relationship to the golf course, if that was something that you thought was important. And the other problem with this particular berm is that there are possible site issues and that's part of the encroachment license that would need to be obtained from the engineering department. But there is the tree that's on the corner of the berm, which I guess the easiest one is over here, and there are rocks here and the tree is there. There was some concern from the engineering department when they reviewed this that could result in site constraints that we wouldn't want to create. So, staff does not feel that this variance is needed for any context reasons; further staff does not find that there's site specific constraints. The applicant has argued in the application that the berm is necessary because of the lots unique location across from the golf course; again all lots on the golf course deal with errant balls more than likely but they are still required to abide by the 11 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake residential design standards. So, we don't feel that there is any kind of site specific constraint with this particular lot as opposed to any of the neighbors. All of the lots on the golf course are required to abide by the residential design standards and the standard does apply equally to the Cemetery Lane area as all areas of town. So, staff does not recommend in favor of granting this variance; because we do not feel it meets the review criteria. If I can answer any questions, otherwise. JOHNS: Why don't we get the applicants presentation. NEILEY: Thank you. I'm Rick Neiley. I represent Carole Fisher who is here with her husband Jamie this evening. Well, we obviously don't agree with the staff s recommendation but I think when you understand this property and the context of where it is and how this berm came to be, there's one of two possible outcomes that we would like. One is that this isn't a berm as it's defined by the design regulations or secondly that there are site specific constraints related to this particular house and the context of what's been developed on the street in relationship to the golf course that makes this a unique situation. The way this berm came about is that when Carole and Jamie were building the 5 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake house they removed the excavation from the foundation when the new house was placed on the backside of the lot and used it to recontour the front yard. At the time that this was done a certificate of occupancy was issued by the city without any comment about this constituting a berm or without any indication that there was some need to go through a design standards review with respect to the landscaping of the property. At the time the certificate of occupancy was issued, which was just about a year ago, the berm as it's been referred to by the city, was thought by Carole and Jamie to be really simply landscaping of their front yard and was done really, to avoid the trucking of the materials off site and to create some protection from what they discovered during course of construction were projectiles emanating from the golf course in the form of golf balls that were breaking automobile windshields of people who working on the property and of the applicants' vehicles. I am going to pass around a picture that was taken last winter. Do we need to mark these as specific exhibits or can we do them. That's a picture of the front of the house last winter before the trees were, had bushes and shrubs z Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestalce were planted that also has snow in the picture but that was the condition as it existed at the time of the issuance of the certificate of occupancy. So Carole and Jamie, thinking that they were engaged in landscaping, which is not something that requires design review consideration or a building permit, went ahead and in the summer of 2007 made arrangements to have some trees and shrubs and plantings, many of which are low growing lilacs, mugo pines and natural native vegetation planted on the berm, again as what they considered to be landscaping. Well they got served with a notice from the Community Development Department and hence we submitted this application. So at the time that the landscaping was done there was no indication that this might constitute something they would conceivably violate the design standards. You will notice from our application that we don't really view this as a berm. We had a survey done in order to depict the outlines of the landscaping but when you look in the design guidelines at what constitutes a berm you see a continuous dirt barrier that appears to have vegetation, trees planted on top of it which significantly obstructs the view of the residence from the road 7 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake and this really doesn't do that all in fact in the western corner of this property the elevation change is in certain respects almost non-existent. We have an elevation point here of 1000 and it's the same here, it's the same across the front it goes up one, two, three feet. There are two sections on the landscaping that exceed what is permitted within the front yard setback for fences and walls, which is 42 inches. There is an area of about 200 square feet, which is 48 inches or about 6 inches higher than a wall or a fence that could be constructed in the front yard and there's one area of about 30 square feet that is approximately 13 inches above what would be permitted for a fence or wall across the front of this property, it goes up to 55 inches right in this corner and that was intentional because the trajectory of golf balls that comes like this and it protects and shields automobiles that are located in the driveway. If I could steal back that exhibit for a minute I'm ,going to put this up, it's a little easier, I think, for you to see what we are talking about by looking at a blow up of the GIS aerial photo. This is the property we are talking about here. The tee boxes are all back here and there are some trees but what happens is as these tee H Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake boxes are used errant golf balls fly in this direction and have caused some significant damage. Carole told me today that she has a bucket full of golf balls that have landed in the front yard, some of which have caused broken windows etcetera. The house closer to the tee boxes already has extensive landscaping in front of it and barriers of trees and the house on the other side is protected by a line of very large spruce tree. I'll pass some additional pictures around. GARROW: The first one is labeled as applicant exhibit 7. How many other pictures? NEILEY: Oh, about a dozen. I'll mark them. GARROW: Can we one exhibit number for all of the pictures, or do we need to do separate? TRUE: Whichever, it doesn't matter as long as each picture is somehow delineated. It would be 7a, b, c, d or you could do it 7, 8, 9, 10. Let's just do it numerically. NEILEY: There are a couple other factors that we think are unique to this property. Homestake Drive has become a very busy street, you might not guess it from looking at the aerial photograph but this road I think this is Chapman down at the end provides access to I Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake the new bridge construction and there is a very large snow dump located right in this corner of the city property. As a result there has been extensive traffic generation on Homestake which ties into Cemetery Lane for considerable amount of the time that Carole and Jamie have lived here. I'm going to pass you some photographs; the first two show the signage put up on the road to notify people of what's transpiring on Homestake and then the second group of photos show you what they put up with on a daily basis. Now this isn't entirely unique to this property. It is a situation which is common to many of the properties on the street but I think in conjunction with the exposure to the golf course. Which we are not trying to create an association with we are more interested in creating a disassociation with, that creates some unique characteristics to this property. TRUE: Those were 8 and 9 right? NEILEY: We have two 9's. TRUE: I changed one of those to 12. NEILEY: Also because of the proximity of the property to access to the cross country ski facilities on the golf course, the street across Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake from the house is used extensively as public parking area. And we think it's appropriate again to create not a complete disassociation because when you look at the pictures of the house you'll see that it's not completely disassociated in fact there's a very apparent view of the structure from the street but it's fair to say that we preferred the concept of contoured landscaping to a 42 inch wall or a 42 inch fence, which could have been constructed immediately on the property line and which probably would have had a similar effect when planted with trees and shrubs but which nonetheless would have been I think less aesthetically pleasing and less consistent with the neighborhood. The next set of photographs that I'll pass around. What were we on 15 ? TRUE: 16. NEILEY: Okay, a couple other views of the house and then I'll pass around some photographs that show, actually just one view of the house, surrounding properties on the street and then on adjacent Cemetery Lane, so the objective is not to completely disassociate the house with surrounding properties, with pedestrians on the street, with the community but to provide a 11 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake reasonable amount of screening from the impacts of heavy traffic, the impacts of being immediately adjacent to a public facility and the impacts of golf balls flying across the golf course and causing damage to the property. Carole went around the neighborhood and contacted her neighbors about whether or not they felt that this was appropriate treatment for the property, whether they thought it was consistent. Of all the people she contacted she received no negative feedback. And I am going to submit as a bundle which will be exhibit 29, when we're done looking at the photographs, 16 letters from her neighbors, all of which are supportive of this application. TRUE: You can. This is 28. NEILEY: These are all people who are her neighbors, who are part of this neighborhood and who to the extent that there are impacts from this type of treatment in front of the house are arguably the most impacted or the most affected without exception they are saying things like great solution to the hazard of golf ball problem. It looks great, we love it. Matches scale of the street. It's a green idea, lawns won't have created any privacy, it's kind of a busy road in the winter and summer. I'll pass these 12 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake around, most of them are short, the one on top happens to be the longest one. But they are all supportive of this kind of treatment. When you look at the enlargement of the aerial view you can see that many of the houses particularly the newer residences have extensive landscaping or berms. Some of the older houses do not and undoubtedly there is an explanation for that and one is that they are looking straight across at the mountains and want to preserve the mountain view but the second is that historically this was a much quieter neighborhood than exists today, both in terms of truck traffic, the cross country facilities on the golf course, the golf course itself and we think that it is really to the extent that this landscaping exceeds the 42 inch height limit. It's so minimal as to be not a berm but even if this commission thinks that it constitutes a berm and I would point out that there is no specific definition of a berm in the design guidelines anywhere other than the picture which is a part of your packet. Even if it is considered a berm I think that site specific constraints are such that it is appropriate to have a minimal extension of the landscaping or the berm if you will above the 42 inch limitation for walls or fences to 13 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake protect the driveway area from golf balls and to create an element of some privacy from the public impacts on this property. I don't know, Carole do you have anything that you want to add? FISHER: I think that one thing that we didn't say is that on this particular side of the street, it faces south and it's facing the views and your front yard is kind of a unique situation. Your front yard is actually your back yard, but we don't have any yard behind us and that's where we live so if you had a flat lawn to the street, which is a complaint of a lot neighbors now is that you are basically living on the street with just a lot of activity and no privacy at all and this bind of alleviates that problem. NEILEY: I'll be happy to answer any questions or respond to any concerns that anyone has. Mr. True TRUE: For the record there was a packet of letters that is going around and we did list that as number 29 and there are 16 pages that are part of that. It's a little easier to describe the individual pages when they are the pictures that's why I did it differently. So that's one exhibit, 29. 14 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake JOHNS: Okay. Are there any questions, questions only for the applicant or staff? WEI S S : When the home was built ? NEILEY: The home was built in 2006 and finished in January of 2007. FISHER: In 2007 one year ago we got the C/O. Also Rick I don't know if I can say anything more but just that the area when we finished the house and when we got the C/O and we thought great okay everything is done and then 5 or 6 months later it's summer and you go to plant your front yard ,what we thought was our finished front yard and everything was in order. No one ever said anything and I lost my train of thought there. So, oh and I looked around at the neighborhood, that's where I was going, and thought okay what else is in this neighborhood and across the street there was the house at the very end of the street there's a berm in front of that house and it is very well done and they look really nice and going from what was in the neighborhood that's what I based the landscaping on. JOHNS: Thank you. WEIS S : Question for staff. When was the berm design element of R-15 put into place? 15 r, Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake GARROW: This is part of the residential design standards, which these were a part of the standards that were adopted in 2003. PHELAN: There have been changes over time, there's 2003 and 2005. So which is prior to both of us being here, so we are assuming that they were originally instituted in 2003. JOHNS: Is there was a requirement for current properties to conform to design standards. GARROW: Any property that would come in for a redevelopment would be required to abide by all applicable design standards and this standard is applicable to all properties in town. JOHNS: So pre-existing, pre -dating conditions are in PHELAN: We consider these to be established. ERSPAMER: So those pictures that we are looping at some of them could be pre-existing before this ordinance went into effect. PHELAN: Correct. NEILEY: LJ, I think some of them are pre-existing. There's a couple of along Cemetery Lane that were new this summer and we are not aware of a design variance application coming in for them. I don't know about some of the other ones on the street, some of the more heavily landscaped properties, I think are probably, 16 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake probably pre -date the adoption of the design standards because of the extensive amount of landscaping that exists. The reason we showed those pictures isn't to suggest that those are approvals that were granted since the design standards were adopted but to demonstrate that this is not inconsistent with the design patterns in the neighborhood and to emphasize that when Carole designed this, Carole and Jamie designed this they were looking around at what their neighbors had done over the years in order to be complementary to that. And frankly when you look at the picture of what constitutes a berm in here I don't think that a normal homeowner would look at that and say that's what we did with this landscaping up here. And there is no other definition of berm in the regulations which maybe a deficiency but I'm not sure that the homeowner ought to be charged with that. Certainly this was inadvertent in that the materials from the construction of the residence were used to re -landscape the property in an effort to avoid trucking it off site and to make the landscaping consistent with the neighborhoods, neighborhood and to protect the property from golf balls and traffic and etcetera. 17 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake JOHNS: Thank you. Any more questions? GIBBS: Yeah, I have a couple. Is a landscape plan required on a development such as this. GARROW: No, it's not; these kinds of things would be reviewed if they would be impacting a tree that the parks department was interested in saving or if there was some kind of tree mitigation that would have occurred as part of a redevelopment. I did talk with the parks department and the person who was involved in this particular project is no longer with the parks department, so I wasn't able to talk with that person but did talk with another person over there and was told that this that the parks department was involved because of some tree mitigation issues that were going on as part of the redevelopment but they signed off on it and we're not aware of any conflict with residential design standards and they did not notice or weren't aware that it was in the public right-of-way at the time that they signed off on. GIBBS: So a plan, a landscape plan is not required, the development still has to conform to issues such as berms or whatever we want to call them. So when a final inspection is done for co IN Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake they don't look at the landscaping because it is not part of the plan requirement. PHELAN: Parks isn't going to let. GIBB S : To generate a C/O. GARROW: When zoning looks at it and the building department looks at it for a co they should be looking for those issues and we are not sure why they weren't caught in this case. PHELAN: Well I don't know if the C/O was issued during the winter and there is snow. NEILEY: It was PHELAN: It might not have been very visible. GIBBS: There would be a process in place that should have been caught as part of the normal co plan check. GARROW: Yes. PHELAN: On a single family home they will go and do a site inspection. JOHNS: Do you have a copy of the grading and drainage plan or any other site plan? GARROW: I don't have one here I can pull the building permit file. JOHNS: Do you have one? NEILEY: I don't have one with us, no. 19 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake GIBB S : You mentioned that you had a lot of support from neighbors, what about the person that complained? Do you have anything to say about that? NEILEY: Other than being told that there was a complaint we don't have any information about it. We don't know GIBBS: Were you contacted by the person directly? NEILEY: We were not. We understand it was Mike Maple and Jamie and Carole went over to his house a couple of times in an effort to talk to him about it but didn't find him at home. He lives in a different neighborhood, apparently, over on Mountain View or. PHELAN: We don't go out and look for non-compliance issue. When we follow up on something it's on a complaint issuance basis so if we have received a written complaint they would not be here tonight more than likely. WEISS: Question. How high is the berm at its highest point? NEILEY: The highest point, which is this corner right here is 55 inches. And that's the area there's about 30 square feet there that's 13 inches over that 42 inch fence wall height. There's an area that then is the next layer down, which is 48 inches, that's about 200 square feet so that and other than that all rest of it is 42 inches 20 a Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake or less so you know we've got about 230 square feet right here which is sort of the line of the golf balls where it was built up to a total of 55 inches. JOHNS Any further questions? NEILEY: They didn't go out and measure it when they put it up, they did it in a way they thought was esthetically pleasing and would provide the protection from the golf balls. It wasn't intentionally 200 feet, 200 square feet over the 42 inches or anything that. The thought never arose until we got a letter from com dev. JOHNS: I will now open this hearing for public comments. If anyone would like to comment about this application please stand and state your name for the record. Okay, I don't think that we have anybody tonight so we will return to the commission for a discussion and what not. I just want to remind everybody again this is a design variance request and need to make sure that your comments and/or reasons for voting for or against this are referenced to the review criteria that we have in exhibit A. So with that being said, I'll open for discussion. 21 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake WEIS S : I live on Snowbunny Lane and first I'm very annoyed with the city because this is going on all over my neighborhood. There are pictures in here of homes I'm familiar with and we've got bandit berms everywhere and if it's not berms it's fences if it's not fences it's trees that block that make exiting from our streets so dangerous we've been here before. To me it's not in character with the neighborhood, I understand the purpose of why this design code was written but if you are not going to enforce it. I don't think that if you asked any of my neighbors about berms that any of them have a clue. I only built my own home 2 1/2 years ago, but I've been around a long time so I know about it but my next door neighbor doesn't know about it and he's got a berm and a not very pretty one either I might add. The character of the neighborhood is changing but it's not just the single home that's doing it, it's way too many homes now. I think that if you have a zoning officer and these people need to patrol at least once in awhile and should see what's going on out there. If nothing else let people homeowners know in the R-15 what's legal and what isn't. These folks had their C/o, they thought that there's no problem with this; in the same Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake breath I do not like what this is doing to the neighborhood; I don't like fences going up to the 6 foot high and I don't like berms that are way too high and I don't like plantings going up on every corner, trees that you just cannot see past. And I'll leave it at that. JOHNS: Okay. Brian do you have any comments? You've been awfully quiet tonight. SPECK: Actually I don't find the berm offensive and I certainly can understand this client's situation. There was one argument made by Mr. Neiley about the materials used on this site that I don't agree with to use his argument. If you have any materials that you can use on site so that was an interesting argument. If you move it and you are in violation, you're in violation whether it's from materials on site or not but in this case and with the scenario given I'm not objecting to this. I don't call it a berm, landscaping. JOHNS: And your basis on the review criteria would be? SPECK: Well my basis is that it's not really it doesn't seem inconsistent to me to the area. Only one person, I mean I read all of those letters I know most of the people in that immediate area support 23 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake it, which is very important to me and other than maybe I have some issue with the 55 inch height. JOHNS: So you generally find it consistent with the context of the neighborhood. SPECK: Or what was happening in the neighborhood. BLOOM: I'm going to go with Brian and it was really consistent with what I saw in the neighborhood, pictures. I don't really find it offensive. It goes very well with Cemetery Lane going by the pictures. JOHNS: LJ? ERSPAMER: I like those letters from the neighbors, however xerilandscaping is a very good idea and I think that you need xerilandscaping without these rolling hills or whatever you want to call it. I do think it's out of character with the new zoning in the area and it says it right here. We were talking about it earlier this looks different than this so I am going to agree with the staff findings. GIBBS: I don't believe this was a unique situation; everybody along the golf course has the same problem. I have a difficult time giving a variance. We either have control over development and if we adhere to the code and if people don't like the code we change 24 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake the code. Or we get in a situation where we don't have anything to enforce anybody and they can just do what they want. I think - the definition of a berm is pretty straight forward and I don't think we really need to argue that this is not a berm. I think that in terms of protection of the property a fence along the property line that was 42 inches tall would probably do just as much if not more to protect the property, so there are alternate solutions to this particular problem. And I think the issue with the C/O I don't believe in a mistake by the city in this particular case at least and I don't think any mistake qualifies as a grant of any kind of rights beyond what the code would require. So I would have to agree with staff on this one myself. JOHNS: Thank you. Would anyone like to make a motion? This one's a little, I agree that it was somewhat in context with the neighborhood although I don't necessarily think that a person who's purchased a property in 2005 and there isn't a new condition that sprung up since then, should just necessarily be automatically grandfathered a condition such as this end. It's a tough one because the neighbors seem to be pretty supportive of what they've done. 25 a Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake SPECK: I want to remind you a sand trap is a berm on city property. WEIS S : No offense, but that's a rollover. JOHNS: It's not necessarily a front yard for the golf course but I think in this one I don't see an overwhelming cause here for a variance just because you live on a golf course; golf balls come. I lived on a golf course, this golf course, for 4 years and we got hit by some golf balls sometimes but that's part of getting great views and living on a golf course so I'm not going to support this one. JOHNS: This is resolution number 8, whoever wants to make a motion ERSPAMER: I move to approve Resolution #8, Series of 2008 approving a variance from the Fence Residential Design Standards to permit a berm in the front yard setback on the property located at 1550 Homestake Drive. JOHNS: Great, do we have a second? GIBBS: Second. JOHNS: Jackie, would you call the question please. LOTHIAN- You bet. Brian. SPECK: Yes. LOTHIAN: Cliff. WEISS: No. 26 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake LOTHIAN- Dina. BLOOM: Yes. LOTHIAN- U. ERSPAMER: No. LOTHIAN: Stan. GIBBS : No. LOTHIAN: Dylan. JOHNS: No. w LOTHIAN Did not pass. GARROW: That is a failed motion so we, in order to take action we need a second motion. So I would suggest move to approve Resolution 8 denying the variance. So you just change the word approving that is in the packet to denying. ERSPAMER: So we needed the motion in the positive first. GARROW: Yes. WEIS S : I move to make such a motion #9 ERSPAMER: Second. JOHNS: Jackie. LOTHIAN- Brian. SPECK: No. 27 Transcript February 5, 2008 - Planning & Zoning Commission - 1550 Homestake LOTHIAN- Dina. LOTHIAN- Stan. GIBBS : Yes. LOTHIAN- U. ERSPAMER: Yes. LOTHIAN- Cliff. WEISS: Yes. LOTHIAN- Dylan. JOHNS: Yes. LOTHIAN: Okay. 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YA IV ir It 40 iL Ir IL Aw �j• s, 1 tot. fig'•.{ �� •r. .,�. Y j ' rf • �,: HRH r.. • ' it ^1 f'• _ •f�i�=� .,,, � 1 1�' dl ■1 11��11. 'II �r - - o 0 0 .n t rn a� m co r U -IINW lee r Y , �lr •.A'► �`"" � �'..,. `� % ..� psi ' � • • or if •, r. Qi` � j a � c .' a t- - .� :: t r' �,1: " , � "fir ' _ ' • ' � _ � ;. �',. �:�` ,;- - ` Ir I.;, �.�\ ?'_S, 1 �►a il•' � �.j`�t �p__t�_ - r � '•�y'. Y� T'' i ` V'd • 1i i o: Manning and Zoning Commissior7 From: Marilyn Marks RE: 1550 Homestake Drive proposed variance Hearing Feb 5, 2008 I am writing in support of the application for variance filed by Carol Fisher for 1550 Homestake Drive. I have received proper notice of the application, and have carefully observed and considered the landscape design in question and the impact on the neighborhood. I am fully supportive of the landscape plan, and the plantings and diversity it adds to the otherwise somewhat barren area of street frontage on Homestake. I own the property next door to Ms. Fisher (1520 Homestake), and encourage the additional plantings, trees, and shade which help break up the masses of large houses facing the street and the cleared area of the golf course. I plan to build my personal residence on the adjoining lot at some time in the future. It is likely that I am the neighbor most impacted by this landscape plan, which i feel enhances the neighborhood. Please let me know if you have further questions of my support of this variance request. I will be out of the country on February 5.Otherwise; I would plan to attend and speak personally on behalf of this variance which I believe enhances the design elements of the street. I may be reached at 970 404 2225 or Marilyn@AspenOffice.com Marilyn Marks UWe Sb Di29 Who res"sde ;ed i 3 U ry V is . aloprove of Gaffe i=rshe► S ep("ng landscapedeSign at i SW Hmnestake Dr, and sup- port her efforts to obtain a landscape variance from the City of Aspen. comments_ Iti '1� --FF, ) n e5pe,c� nf--O hory-j-e- at-r, d 1aqdsc�� loo ks - 6� ti7R.So,✓��. L,,Je- hopes -1 ,o 4- 1- f- -5 +5 cam__ -e- -J�D r- o4--Pi er-:5 'j- r--) rIj i r-P_ TY) Oct-0- n c cq Y r a C-A Yi up Signature Date" S i wtv A IL A i VE;6J who reside at 94k&M�ehD F:Q&L> approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: &-r t 5 s a %fit. r�s�tC.E �s �6144-1 OE-P tqc- G-AP�'oR-t-4-C-vD. Signature Date Me.�� ` 14q1 • approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen: Comments: Sign Date Me A Q , who reside at I /J� approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen." Comments: Signatur Date -2 `— 0 r i I/We , who reside at 5 approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: No Norse, jo l�all�ti� — �-�S l.a.w/is rJ� `s 7Ui�tG� G� c� A-6)GtGQ Signature � � �i Date_ )I We 1 C/7tt �.(o reside at approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: Signature Date Z � �t � C) S? FROM : ST I TT FAX NO. : 561 659 211111 -reb. 04 2008 04: 16PM PI put L I IVI oil ul LIV uj ULNd idi tusmpe vanaw Tr* o W. silty d I 10, Comments: Signature Date Feb 05 08 01:59p Curtis Kaufman 970-544-0060 p.1 Feb Ub Uti Ui:?aYp tireat "`-wide ttuaios Diu-:dcu-Zito' p.1 ' r Me ww resift Id • i , - Lam, i!57.N approve # Carcie FW er's earsfing Yetim r desk at 1550 Honx s Ww Dr. aril sup port her efforts Wart a landls pe variance from fie City of Aspen. - Comments: L /Lt !A- S S Lam-' c tu, -- r4 -V `/14. t J4-).. �- ti p fit f4 ppr't L Lh <s Signature 7- Date - 1IVI/e zZ ,who reside at approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen. Comments: Signature V_-�7 Date � y" • f�� I/We , who reside at v OZf F7Z� G� approve of Carole Fish rs existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen: Comments: Signature Date /7 44 i F Me �, t CT6 AIJ� .,who reside at .161. d km-e'45+0-� approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and suP- port her efforts to obtain a landscape variance from the Cidy of Aspen. f E Comments: L4�-d �-s c a,�cw� ► s v�;� ce - s v i'i-s 4-A..5-E-��,.)t�.� Signature_6ue, l/� . - /. Uwe Ilk ► �� , who reside at C,4920 OJ approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen: Comments: J4109- 1/We JA-1Jf-_ -7- - ! q 7 H- f2 1 , who reside at approve of Carole Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen: Comments: Signature Date Op i UViJe � � ,who reside at 4Wk4"z approve of Caro a Fisher's existing landscape design at 1550 Homestake Dr. and sup- port her efforts to obtain a landscape variance from the City of Aspen.' Comments: rTo -,Lj� � 0, neA.,�-&nAmvf- �KQ__ Tt,�JA&c C) i Signature Date Z5 ATTACHMENT 7 AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE ADDRESS OF PROPERTY: I �;� , Aspen, CO SCHEDULED PUBLIC HEARING DATE: , 200V STATE OF COLORADO ) ss. County of Pitldn ) I, KN \4 t � - (name, please print) being or representing a\n Applicant to thJ City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fifteen (15) days prior to the public hearing. A copy of the publication is attached hereto. Posting of notice: By posting of notice, which form was obtained from the Community Development Department, which was made of suitable, waterproof materials, which was not less than twenty-two (22) inches wide and twenty-six (26) inches high, and which was composed of letters not less than one inch in height. Said notice was posted at least fifteen Q5) days r. to the public hearing and was continuously visible from the day of 200$ , to and including the date and time of the public hearing. A photo raph of the posted notice (sign) is attached hereto. Mailing of notice. By the mailing of a notice obtained from the Community Development Department, which contains the information described in Section 26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to the public hearing, notice was hand delivered or mailed by first class postage prepaid U.S. mail to all owners of property within three hundred (300) feet of the property subject to the development application. The names and addresses of property owners shall be those on the current tax records of Pitkin County as they appeared no more than sixty (60) days prior to the date of the public hearing. A copy of the owners and governmental agencies so noticed is attached hereto. (continued on next page) Rezoning or text amendment. Whenever the official zoning district map is in any way to be changed or amended incidental to or as part of a general revision of this Title, or whenever the text of this Title is to be amended, whether such revision be made by repeal of this Title and enactment of a new land use regulation, or otherwise, the requirement of an accurate survey map or other sufficient legal description of, and the notice to and listing of names and addresses of owners of real property in the area of the proposed change shall be waived. However, the proposed z ing map shall be available for public inspection in the planning agency d ri all business hours for fifteen (15) days prior to the public hearing on such ments. Si nature The foregoing "Affidavit of Notice" was acknowledged before me this day s�pFtY P(�8� EUGENE M. L ALDER WITNESS MY HAND AND OFFICIAL SEAL My commission expires:` �l Nota u 4 ' c ATTACHMENTS: COPY OF THE P UBLICATION PHOTOGRAPH OF THE POSTED NOTICE (SIGN) LIST OF THE OWNERS AND GOVERNMENTAL AGENCIES NOTICED BYMAIL 100 MEMORANDUM TO: Aspen Planning and Zoning Commission FROM: Jessica Garrow, Long Range Planner JMG� THRU: Jennifer Phelan, Community Development Deputy Director �p MEETING DATE: February 5, 2008 RE: 1550 Homestake Drive — Residential Design Guideline Variance — Resolution No. Series 2008 — Public Hearin (Parcel 2735-024-01-022) APPLICANT /OWNER: Carole C Fisher REPRESENTATIVE: Richard Neiley LOCATION: Lot 19 of the West Aspen Subdivision, Filing No. 2, City of Aspen, CO, commonly known as 1550 Homestake Drive, CURRENT ZONING & USE R-15 Moderate Density zone district. PROPOSED LAND USE: The Applicant is requesting approval of a variance to maintain a berm in the front yard setback. STAFF RECOMMENDATION: Staff recommends the Planning and Zoning Commission deny the requested variance. SUMMARY: The Applicant requests of the Planning and Zoning Commission approval one (1) variance from the Residential Design Standards to maintain a berm. LAND USE REQUESTS AND REVIEW PROCEDURES: The Applicant is requesting the following land use approval from the Planning and Zoning Commission: Residential Design Standards Variance from the Fences standard to maintain a berm in the front yard setback within the City of Aspen pursuant to Land Use Code Chapter 26.410. PROJECT SUMMARY: The Applicant, Carole C Fisher, represented by Richard Neiley, has requested a variance from the Fence standard to maintain a berm in the front yard setback at 1550 Homestake Drive. The property is located in the Moderate -Density Residential (R-15) zone district and contains a single-family home. The City was made aware of the berm located in the front yard setback when the Zoning Officer received a citizen complaint. Following this complaint, the Zoning Officer contacted the owner with a zoning letter citing the Residential Design Standards which Page 1 of 3 prohibit berms from being placed in the front yard setback.I The owner decided to make this variance application in order to maintain the berm in its current location. A portion of the berm is located in the public right-of-way. The Planning and Zoning Commission may only grant a variance for the portion of the berm on the property. All improvements in the right-of-way must be approved by the Engineering Department with an encroachment license. Regardless of the Planning and Zoning Commission's decision on the variance, the owner will be required to obtain an encroachment license in order to retain the improvements that are in the right-of-way. STAFF COMMENTS: RESIDENTIAL DESIGN STANDARDS REVIEW: As part of the land use review, the Applicant is requesting approval of a Residential Design Standard variance from the Fence Standard to permit the existing berm to remain in the front yard setback of 1550 Homestake Drive. The intent of the Residential Design Standards is to "preserve established neighborhood scale and character" and require "that each home, while serving the needs of its owner, contribute to the streetscape." Further, the Standards encourage views of yards and the home to be preserved from the public realm. Indeed, the Design Standards state that "Low fences and hedges may be used to delineate the edge of a property, but it is important not to close off views of the front lawn and house." The "Site Design" section of the Residential Design Standards, which the Fence standard is a part of, state that "where fences or dense landscaping exist or are proposed, it is intended that they be used to define the boundaries of private property without eliminating the visibility of the house and front yard from the street." The berm fails to meet the intent of the design standards, as it clearly eliminates views of the yard from the street. As the photographs of the property in the Application illustrate, the construction of the berm eliminates any relationship to the street. The house does not meet the street; instead it looks like the lot has been dug out and that the home sits half a story below the street, when in fact it is at the same level as the street. Some landscaping is appropriate for all front yards, but building a berm as was done in this case is not appropriate. Instead of providing a positive relationship with the street, berms cut a home off from the street. Staff does not find that this design meets the neighborhood context or provides a better design solution given the context. The Applicant states that the lot suffers a unique hardship because of its location across from the golf course. Staff does not find this standard of unique hardship is met. Staff recognizes the owners' concerns with regard to proximity to the golf course, but Staff does not find that this represents a site specific constraint. There are other lots in the vicinity of the golf course that are required to abide by the same design standards as this lot. Staff recommends against the requested variance to allow the berm to be maintained in the front yard setback. Staff does not find there are significant constraints on the lot which would dictate this variance. While the lot is near the golf course, it is being treated the same as all other lots near the golf course. Further, the proposed design does not meet the intent of the standard, and does not provide an "appropriate design" given the development pattern in the neighborhood. 1 Section 26.410.040.A.3, Fences, states "Hences, hedgerows, and planter boxes shall not be more than forty-two inches (42") high, measured from natural grade, in all areas forward of the front fagade of the house. Man-made berms are prohibited in the front yard set back." Page 2 of 3 b] RECOMMENDATION: In reviewing the proposal, Staff finds the project fails to meet the variance criteria for the Residential Design Standards. Staff recommends denying the requested Fence variance based on the findings contained within Exhibit A. RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMITIVE): "I move to approve Resolution No. _, Series of 2008, approving, a variance from the Fence Residential Design Standard to permit a berm in the front yard setback on the property located at 1550 Homestake Drive." dATTACHMENTS.. �ev) fa EXHIBIT A — Review Criteria and Staff Findings EXHIBIT B — Application with Site Plans Page 3 of 3 RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION APPROVING ONE RESIDENTIAL DESIGN STANDARDS VARIANCE FOR 1550 HOMESTAKE DRIVE, LOT 19, WEST ASPEN SUBDIVISION, FILING NO. 29 CITY OF ASPEN, CO, PITKIN COUNTY, COLORADO PARCEL NO.2735-024-01-022 Resolution # , Series 2008 WHEREAS, the Community Development Department received an application from Carole C. Fisher, represented by Richard Neiley, requesting approval of one (1) Residential Design Standards Variance to maintain a berm at 1550 Homestake Drive; and, WHEREAS, the subject property is zoned R-15 (Moderate Density Residential); and, WHEREAS, upon review of the application, and the applicable code standards, the Community Development Department recommended denial, of the proposed land use request; and, WHEREAS, during a duly noticed public hearing on February 5, 2008, the Planning and Zoning Commission approved Resolution No. , Series of 2008, by a to — vote, approving one Residential Design Standards Variance to allow a berm in the front yard setback on the property located at 1550 Homestake Drive, Lot 19, West Aspen Subdivision, Filing No. 2, City of Aspen, CO; and, WHEREAS, the Aspen Planning and Zoning Commission has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein; and, WHEREAS, the Planning and Zoning Commission finds that the development proposal meets the applicable development standards and that approval of the development proposal is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the Planning and Zoning Commission finds that this resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION AS FOLLOWS: Section 1: Pursuant to the procedures and standards set forth in Section 26 of the City of Aspen Municipal Code, the Planning and Zoning Commission hereby approves one (1) Variance from the Residential Design Standards from the Fences standard (Land Use Code Section 26.410.040.A.3), to allow a berm in the front yard setback on the property located at 1550 Homestake Drive, Lot 19, West Aspen Subdivision, Filing No. 2, City of Aspen, CO. The variance is from the following language, as stated in Land Use Code Section 26.410.040.A.3 in effect on February 5, 2008: "Fences. Fences, hedgerows and planter boxes shall not be more than forty-two (42) inches high, measured from natural grade, in all areas forward of the front facade of the house. Man-made berms are prohibited in the front yard setback." Section 2: Vested Rights The development approvals granted pursuant to this Planning and Zoning Commission Resolution shall be vested for a period of three (3) years from the date of issuance of the development order. Section 3: All material representations and commitments made by the Applicant pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission or City Council, are hereby incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by an authorized entity. Section 4: This resolution shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 5: If any section, subsection, sentence, clause, phrase, or portion of this resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. APPROVED BY the Planning and Zoning Commission of the City of Aspen on this 5`" day of February, 2008. APPROVED AS TO FORM: PLANNING AND ZONING City Attorney ATTEST: Jackie Lothian, Deputy City Clerk COMMISSION: Dylan Johns, Chair Exhibit A: Site Plan showing approved fence location and heights. G:\city\Jessica\Cases\218 S Third\P&Z\218sThirdPZ Reso_11 20 07.doc EXHIBIT A: REVIEW CRITERIA & STAFF FINDINGS The Planning and Zoning Commission may grant variances from the Residential Design Standards if the proposed application meets the following: a) Provides an appropriate design or pattern of development considering the context in which the development is proposed and purpose of the particular standard. In evaluating the context as it is used in the criteria, the reviewing board may consider the relationship of the proposed development with adjacent structures, the immediate neighborhood setting, or a broader vicinity as the board feels is necessary to determine if the exception is warranted; or, b) Be clearly necessary for reasons of fairness related to unusual site -specific constraints. The following are Staff s findings in regards to the variances being requested by the Applicant. Variance Requested 1. Fences. Fences, hedgerows and planter boxes shall not be more than forty-two (42) inches high, measured from natural grade, in all areas forward of the front facade of the house. Man-made berms are prohibited in the front yard setback. Yes No a) Provides an appropriate design or pattern of development considering the context in which the development is proposed and purpose of the particular standard. In evaluating the context as it is used in the criteria, the reviewing board may consider the relationship of the proposed development with adjacent structures, the immediate neighborhood setting, or a broader vicinity as the board feels is necessary to determine if the exception is warranted; or, Staff Finding. The property in question is located near the golf course at 1550 Homestake Drive. The Applicant states that the improvements are consistent with the scale and character of the area. To Staff s knowledge there are no other front yard berms on this block. All residential properties in Aspen, including lots near the golf course, are required to meet this design standard. Berms create a barrier between a home and the street, and the intention of the design standards is to ensure a street presence in all areas of town, not just the West End. Staff does not find that the variance should be granted under this standard. Exhibit A, Staff findings for 218 S. Third St, Page 1 b) Be clearly necessary for reasons of fairness related to unusual site -specific constraints. Staff Finding: The applicant states that the lot is uniquely situated across from the golf course and is subject to errant golf balls because of its location. While this may be true, Staff does not believe this is a site specific constraint. All lots located adjacent to the golf course deal with golf balls from the golf course, and all are required to abide by the provisions in the Municipal Code, including the Residential Design Standards. Staff does not find that this criterion is met. Exhibit A, Staff findings for 218 S. Third St, Page 2 -CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT Aereement for Payment of City of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and Carole C . Fisher (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an application for Variance from Residential Design Standards (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of 2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3.. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it . is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior to a determination of application completeness, APPLICANT shall pay an initial deposit in the amount of $ 1; 614.00 which is for hours of Community Development staff time, and if actual recorded costs. exceed the. initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review at a rate of $235.00 per planner hour over the initial deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until. all costs associated with case processing have been paid. CITY OF ASPEN By: By, V Chris Bendon Richard Y. , Jr., Attorney Community Development Director Date: % ;j% , O, T Bill To Mailing Address and Telephone Number: Neiley & Alder 201 North Mill Street, Suite 102 Aspen, CO 81611 970-925-9393 �� EIVED M,. NOV �O 1 2007 ASPEN BUILDING DEPARTMENT ATTACHMENT 2 —LAND USE APPLICATION " DPLICANT: Name: Carole C. Fisher Location: 1550 Homestake Drive, Aspen, CO 81611 (Indicate street address, lot & block number, legal description where appropriate) Parcel ID # (REQUIRED) 273502401022 REPRESENTATIVE: Name: Richard Y. Neiley, Jr. Address: Neiley & Alder, 201 North Mill Street, Suite 102, Aspen, CO 81611 Phone #: 970-925-9393 PROJECT: Name: Variance from Residential Design Standards Address: 1550 Homestake Drive, Aspen, CO 81611 Phone #: 970-925-1392 TYPE OF APPLICATION: (please check all that apply): ❑ Conditional Use ❑ Conceptual PUD ❑ Conceptual Historic Devt. ❑ Special Review ❑ Final PUD (& PUD Amendment) ❑ Final Historic Development ❑ Design Review Appeal ❑ Conceptual SPA ❑ Minor Historic Devt. r] GMQS Allotment ❑ Final SPA (& SPA Amendment) ❑ Historic Demolition GMQS Exemption ❑ Subdivision ❑ Historic Designation ❑ ESA - 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Small Lodge Conversion/ Margin, Hallam Lake Bluff, condominiumization) Expansion Mountain View Plane ❑ Lot Split ❑ Temporary Use 0 Other: R2 s i d en t i a 1 ❑ Lot Line Adjustment ❑ Text/Map Amendment Design Standards Variance EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) single family residence with landscaping PROPOSAL: (description of proposed buildings, uses, modifications, etc.) approval of existing landscaping or variance related thereto Have you attached the following. FEES DUE: $1, 614.00 11 ❑ Pre -Application Conference Summary ,, -�60 r © Attachment #1, Signed Fee Agreement ❑ Response to Attachment 0, Dimensional Requirements Form n/a ASPEN © Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards DEPARTMENT All plans that are larger than 8.5" x 11" must be folded and a floppy disk with an electronic copy of all written (Microsoft Word Format) must be submitted as part of the application. APPLICATION FOR VARIANCE FROM RESIDENTIAL DESIGN STANDARDS Property: Lot 19, WEST ASPEN SUBDIVISION, Filing No. 2 County of Pitkin, State of Colorado, with an address of 1550 Homestake Drive, Aspen, Colorado 81611 Property Owner: Carole C. Fisher P. O. Box 12372 Aspen, CO 81612 Representative: Richard Y. Neiley, Jr. Neiley & Alder, Attorneys 201 North Mill Street, Suite 102 Aspen, CO. 81611 (970) 925-9393 (970) 925-9396 fax aspenlaw@sopris.net APPLICATION FOR VARIANCE FROM RESIDENTIAL DESIGN STANDARDS In this Application, Carole C. Fisher ("Applicant") seeks a variance from the Residential Design Standards of Chapter 26.410 of the City of Aspen Municipal Code. Specifically, the Applicant seeks a variance from Code Section 26.410.040A.3. That Code Section provides, "Man-made berms are prohibited in the front yard setback." On September 17, 2007, the Applicant received a letter from Todd Grange, Community Development Zoning Officer for the City of Aspen, in which it is alleged that the Applicant was in violation of the Municipal Code for constructing a "berm in your front yard." Following receipt of this letter, the Applicant contacted and met with Mr. Grange. Mr. Grange, as a result of the receipt of a citizen's complaint, concluded that the Applicant had unlawfully constructed a berm in the front yard of her residence at 1550 Homestake Drive, Aspen, Colorado. The Applicant does not agree that she constructed a berm in her front yard. Rather, she installed contoured landscaping in conjunction with the construction of a new residence on her property. The landscaping does not conform to the depiction of a "berm" in the Municipal Code. The Residential Design Standards depict a "berm" as a ridge of earth upon which a line of trees is planted obscuring the front of the residence. As demonstrated by the pictures appended hereto, the landscaping on Applicant's property is not a continuous barrier lined with trees on the top blocking the fagade of the building. Because of the south -facing orientation of the property, the Applicant constructed the residence on the northerly portion of the lot along the rear yard setback line. The purposes of locating the residence in this area were to take advantage of solar gain, remove the residential improvements the greatest possible distance from the street, and be consistent with the residences surrounding the property on Homestake Drive. As a result, the Applicant has virtually no rear yard and uses the front yard for the patio and outside living area. During the course of construction, the Applicant used materials excavated from the site to contour the front yard. By so doing, the Applicant minimized the amount of trucking related to the construction project and reincorporated the native materials into the landscaping on the property. At the time the certificate of occupancy was issued for Applicant's new residence on the property, the contouring of the site had been completed. The Applicant received final approval and the certificate of occupancy was issued without any objection from the City. In the spring and summer of 2007, the Applicant added plantings to the landscaping. Applicant's property is immediately across Homestake Drive from the Aspen Municipal Golf Course. The Applicant purchased the property in 2005 and began construction in the fall of that year. During the construction season of 2006, the Applicant discovered that the proximity of the Aspen Golf Course resulted in errant golf balls landing on her property and occasionally breaking automobile windows. She, therefore, contoured the front yard so as to protect the driveway and parking area on the property from golf balls. The highest elevation of the contouring and landscaping on the property is immediately adjacent to the driveway and effectively screens automobiles from the impacts of the golf course. Although the Applicant does not consider her landscape improvements to constitute a berm, she has elected to pursue this Application for Variance so as to eliminate any possibility that she could be deemed in violation of the Municipal Code. Because of the proximity to the golf course and the history of having vehicles damaged by errant golf balls, the Applicant believes that her landscape Page 1 of 3 improvements are necessary and reasonable even if they are deemed by the Community Development Director to be a berm under the Residential Design Standards. The Residential Design Standards provide that landscaping should be installed in such a way that it does not eliminate "the visibility of the house and front yard from the street." (Section 26.410.040A) The Design Standards allow fences, hedgerows and planter boxes of up to 42 inches in height forward of the front fagade of the house as a matter of right. The majority of the contours of the Applicant's front yard are less than 42 inches. The grade of the front yard was contoured during construction such that the highest point is approximately 55 inches above natural grade. This point is the area adjacent to the driveway that was designed to protect against golf balls. The Design Standards do not prohibit the installation of trees, bushes and other plantings in the front yard. Indeed, the definition of "development" in the Land Use Code expressly excludes "landscaping" from that term. A building permit is not required to install landscaping. The Design Standards anticipate their application to neighborhoods that are pedestrian oriented. Particular emphasis is placed on neighborhoods with alleyways where parking areas and secondary structures can be located along the alleys. The Applicant's neighborhood is on the fringe of the municipal boundary. There are no alleyways, and many of the properties have dense landscaping, walls and fences that protect the residences from the automobile traffic of the neighborhood. The Applicant had no option but to place her driveway and parking area in the front of the house, exposed to the Municipal Golf Course. The Residential Design Standards state that, "... it is important not to close off views of the front lawn. and the house." The Standards state that their purpose is "to preserve established neighborhood scale and character ...." (Section 26.410.010) The Applicant's landscaping enhances the beauty of the front yard, compliments the landscaping in the neighborhood and does not obscure the views. of the house. The Applicant's improvements are consistent with the scale and character of her neighborhood. The Residential Design Standards recognize that variances may be granted by the Community Development Director so long as the variance provides "an appropriate design or pattern of development considering the context in which the development is proposed and the purpose of the particular standard ..." and is "clearly necessary for reasons of fairness related to site -specific constraints." (Section 26.410.020D.1) The Applicant recognizes that general consistency with the Standards should be maintained unless the unique circumstances of the subject property warrant the granting of a variance. In the instant case, the Applicant does not believe that her landscaping, for which a permit is not required under the Municipal Code (because it is not considered "development"), constitutes a berm. If the City concludes that the landscaping falls within the definition of a berm (a term that is not defined in the Residential Design Standards), the Applicant believes that a variance is appropriate for the following reasons: 1. The materials used in contouring the property in connection with the installation of landscaping came from the site and were used on site to minimize truck traffic, promote "green" building, and enhance the aesthetics of the property. 2. The property is located in unique proximity to the Aspen Municipal Golf Course where errant shots from the tee boxes to the southwest frequently land on the property with resulting damage that is mitigated by the landscaping. Page 2 of 3 3. Most of the contouring of the property is at or below the 42 inches expressly permitted by the Design Standards for front yard improvements. A small area of approximately 200 square feet is 48 inches above grade or 6 inches above that expressly permitted by the Design Standards. An area of approximately 30 square feet is no more than 13 inches above the maximum of the Standards. That area is adjacent to the driveway and parking area where it is necessary to shield the property from golf balls. 4. The recontouring of the site was in place at the time of final building inspection and the issuance of the certificate of occupancy, and the Applicant had no idea that this might constitute a violation of the Municipal Code.. 5. The landscaping does not obscure the front of the residence and in fact constitutes the front yard of the house visible from the public street. 6: The landscaping is consistent with the character of the neighborhood and does not reduce the relationship between pedestrian and the "built environment." The landscaping is appropriate considering the neighborhood context in which is it located. 7. The property is not located within the urban grid of Aspen. Rather, the neighborhood in which the property is located is on the fringe of the City in an area without sidewalks or other urban characteristics. Alt parking areas must be accessed from the street as there are no alleyways. Many of the properties in the neighborhood are screened by dense vegetation, walls and fences. 8. The property is subject Io a unique hardship, the proximity to the Municipal Golf Course, resulting in exposure to golf balls from the Municipal Golf Course, -which hardship was not created by the Applicant. Thus, the granting of a variance will not constitute a precedent applicable to other properties. In the unique conditions presented by this Application, it . is appropriate for the Community Development Director to determine either that (1) the landscaping on the Applicant's property does not constitute a "berm" and, thus, does not require a variance or (2) if it is considered a berm, a variance should be granted. to allow the landscaping to remain in place based upon the circumstances set forth above. Page 3 of 3 SCHEDULE OF ATTACHMENTS 1. Proof of Ownership; 2. Authorization to Represent; 3. August 23, 2007 letter from Todd Grange to Carole Fisher, received on September 17, 2007; 4. Photographs of property, depicting landscaping; 5. Aerial view of neighborhood; 6. Survey of property. ATTACHMENT 1 PROOF OF OWNERSHIP CITY OF rPEN HRETT PAID O"1' OF ASPEN DATE REP NO. WRETT PAID DATE FMp WARRANTYDEED THIS DEED, made January 3, 20051 Between THOMAS J. DALY and JUDITH J. DALY Of the County of PITKIN, State of CO, GRANTOR, AND CAROLE C. FISHER) GRANTEE whose legal address is: P.O. BOX 12372, ASPEN, CO, 81612 of the County of PITKIN, State of CO C_-�V ZI(° o;. 47e4 WITNESSETH, That for and in consideration of the sum of ten dollars and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the grantor has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey and confirm unto the grantee, her heirs and assigns forever, all the real property together with improvements, if any, situate and lying and being in the County of PITKIN, State of COLORADO, described as follows: LOT 19, WEST ASPEN SUBDIVISION, FILING NO.2, According to the Plat thereof recorded in Plat Book 3 at Page 308. 505702 TRANSFER DECLARATION RECEIVED 01/0412005 TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the grantor either in law or equity, of, in and to the above bargained premises, with.the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the grantee, her heirs and assigns forever. And the Grantor, for their, their heirs and assigns, does covenant, grant, bargain, and agree to and with the Grantee, her heirs and assigns, that at the time of the ensealing and delivery of these presents, their is well seized of the premises above conveyed, has good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and has good right, full power and lawful authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature soever, except those matters as set forth on Exhibit "A" attached hereto and incorporated herein by reference. The grantor shall and will WARRANT AND FOREVER DEFEND the above bargained premises in the quiet and peaceable possession of the grantee, her heirs and assigns, against all and every person or persons lawfully claiming the whole or any part thereof The singular number shall include the plural, the plural the singular, and the use of gender shall be applicable to all genders. IN WITNESS WHEREOF the grantor has executed this deed. The person authorized to receive this document is: SIGNATURES ON PAGE 2 RICHARD Y. NEILEY N. MILL ST., SUITE 102 OPEN, CO 81611 505702 Page: i of 3 01/04/2005 10:40i SILVIA DAVIS PITKINCOUNTY CO R 16. 00 0 310.00 SIGNATURE PAGE TO WARRANTY DEED PAGE 2 THO AS J. DALY JU TH ?J DALY STATE OF COLORADO COUNTY OF PITKIN The foregoing instrument was acknowledged before me thisY d by THOMAS J. DALY and JUDITH J. DALY. ay of JANUARY, 2U05 WITNESS my hand and official seal MY commission expires: N ary Public Joy S. Higens/Notaryy Public \ My Commi-sion expires 4%22/W ;r 'ta' of Colorado PCT1 9371 L 505702 Page: 2 of 3 SILVIA DAVIS PITKIN COUNTY CO R 16.00 1`0�D2005 40� 320.00 �NOT gRr' ;cr EXHIBIT "A" 1. Taxes for the year 2005 not yet due or payable. 2. Right of the proprietor of a vein or lode to extract or remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted as reserved in United States Patent recorded February 8 1955 in Book 180 at Page 334. ry , I Easements, rights of way and all matters as disclosed on Plat of subject property recorded September 5 196 Plat Book 3 at Page 308. 8 to 4. Existing leases and tenancies. 0 50570 Page; 3 of 3 01/04/2005 .10:40; SILVIA DAVIS PI7KIN COUNTY Co R 16.00 D 310.00 ATTACHMENT 2 AUTHORIZATION TO REPRESENT AUTHORIZATION TO PROCESS APPLICATION FOR VARIANCE TO: City of Aspen Community Development Department FROM: Carol C. Fisher RE: Real Property Described as Lot 19, WEST ASPEN SUBDIVISION, Filing No. 2 County of Pitkin, State of Colorado, with an address of 1550 Homestake Drive, Aspen, Colorado 81611 I hereby authorize Richard Y.. Neiley, Jr. and Neiley & Alder, Attorneys to process an Application for Variance with respect to the above -described property. CAROLE C. FISHER ATTACHMENT 3 AUGUST 23, 2007 LETTER FROM TODD GRANGE TO CAROLE FISHER, RECEIVED ON SEPTEMBER 17, 2007 Sep 18 07 03 : 07p Gre%' -Divide Studios 970-921" `­ 9950 l,,./ THE Date: August 23 Carol Fisher 1550 Homestake Dr, Aspen, CO 81611 Mailing Address P.O. Box 12372 Aspen, CO 81612 Re: Berm violation Dear Mrs. Carol Fisher: of AsPEN It had come to my attention, through a -citizen complaint and a visit by your property, that you are in violation of the City's Land Use Code against 'Ibuilding a berm in your front yard. Thank you for coming in the Community Development office August 61h to inquire about the complaint and inform yourseIf about the variance appeal process with, the Planning and Zoning Commission. Fol wing are the specific sections and regulations of the Land Use Code, 'Mis ellaneous Supplemental Regulations" 26.575.050 and "Design :Review tandards" (26.410.040); Bolded sections are for the purpose of emphasis only. 26.575,050. Fences. Fences shall be permitted in every zone district provided that no fence shall exceed six (6) feet above natural grade or as otherwise regulated by the Residential Design Standards (see Chapter 26.410). Fences visible from the public right-of-way shall be constructed of wood, stone, wrought iron or masonry. On corner lots, no fence, retaining wall, or similar object shall be erected or maintained which obstructs the traffic vision, nor on -corner lots shall any fence, retaining wall, or similar obstruction be erected or maintained which exceeds a height of forty-two (42) inches, measured from street grade, within thirty (3Q) feet from the paved or unpaved roadway. Plans showing prop sed construction, material, location and height shall be presented to the building inspector before a building permit for a fence is issued. Additionally, foliage shall be placid and 130 SOUTH GALENA STREET, ASPEN, COLORADO 81611-1975 PHONE 970.925,5090 FAX 970.6.5439 p.1 Sep 18 07 03:07p Greet Divide Studios 970-9209950 p.2 I maintained so that it will not obstruct vehicular visibility at intersections. (Ord No. 55- 2000, § 16) 26.410.040 Residential design standards. ` 3. Fences. Fences, hedgerows, and planter boxes shall not be more inches (42 ") high, measured from natural grade, in all areas forward of the the house. Man-made berms are prohibited in the front yard set back. T i Fence, no Violations of the City's code can result in a citation into Municipal Court and to $17000 per day. As I mentioned on the phone, I am sending this letter to ft you of the City's requirements, procedures and consequences. Your immedia of this berm would be very appreciated. In the alternative you may choose to appeal, if so please submit your Land Use Application packet, I well need res which action you will be taking within 15 days. If you have any questions regarding this matter, please call me at.429.2767. Regards, Todd Grange Community Development Zoning Officer City of Aspen Copy; David Hoefer, Assistant City Attorney forty-two facade of Ines of up lly inform e removal pursue an lonse as to 130 SOUTH GALENA STREET, ASPEN, COLORADO 81611-1975 PHONE 970.925.5090-FAX 970.420.5439 ATTACI MENT 4 PHOTOGRAPHS OF PROPERTY DEPICTING LANDSCAPING I, I.., :fit t f' z" � ' ''� � r f' �ti } �.v +. 1• r� rf � � 1� � Iw ,,� .t. � t �'' >� k ail ,�1 '•x� i' "�.,�. 41 s "�4t., �� i iA rRT'lw f i 4! f • 1 / � :' ' ti s� • �{ � . '-`` -.✓ s �•i � '�' ' _ -�' 4C, t, - ' �: - • � !. Irk � ► � •I ^t t , - . J 1` + � • � � 1 , � I�• � I I l DIY• • ` f . � - - - '� ( t.. .a` a'' • ��y ter• ,�. (_'• n f �• • r•� .�` 1 IA. A J � .� `�\•'�. � it y W1 t. s• I 41 .s �e j If I t . � .► `� "L' � .. t, ,t, y�� l r � 1 � i i� • It s, '.i' , �i' tr to J r' y 4 r � • . A y v a s rti'r ' MEN A k ye c %N, I X e♦ V�k r ,. `, �, ' � �� � ; 'tip .t I ♦ '�" '• JI t i � � i Arl I: 1 ,fw ATTACHMENT 5 AERIAL VIEW OF NEIGHBORHOOD 9 1001 fly, 4w 14 Aw 4i 2v- CA' 4A �l • 1.0000 41 A lima. iw el 'k �y lot rr % 110 kt 34 A, 11 . 4 , & I If I \, I k 1I.- 4L c ICU, T M"I MY -7- 'to Jkl� .4, ATTACHMENT 6 SURVEY OF PROPERTY THE CITY nT: A.SPET�T Land Use Application Determination Of Completeness Date: 10/10/07 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number, name, and property identification number assigned to this property is _not assigned . The planner assigned to this case is not assigned 1�dYour Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: 1. A land use application 2. _Written responses to the review criteria, section 26.410.020 D.2. 3. A clearer site plan showing the location of fence and at what point and for what length the variance is being requested. Please submit the aforementioned missing submission items so that we may begin reviewing your, application. No review hearings will be scheduled until all of the submission contents listed above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the land use application. ❑ Your Land Use Application is complete: If there are not missing items listed above, then your application has been deemed complete to begin the land use review process. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 if you have any questions. Thank You, (;ennifer lan,-Deputy Director City of Aspen, Community Development Department CADocuments and S.ettings\jennifep\My Documents\Templates\Completeness Letter Land Use.doc THE CITY OF ASPEN City of Aspen Community Development Zoning Complaint Form The Colorado Open Records Act stars that public records such as this complaint form may be open to public inspection. Therefore, you ma not wish to provide any information you consider confidential. In order to file a formal complaint, you will need provide a name, address and telephone number. Caller Informa ion: Name: te- Phone: Address: Caller Requests Contact After Follow Up? Complaint Information: Address: Owner Name: Cf.. -ro 1 �i When did offense occur?ae, 5701-.2> `i i Date: August 23 ._ Carol Fisher 1550 Homestake Dr. Aspen, CO 81611 Mailing Address P.O. Box 12372 Aspen, CO 81612 THE CITY of ASPEN �Sf7 r_V,. sp� 1 0 i �- Re: Berm violation Dear Mrs. Carol Fisher: It had come to my attention, through a citizen complaint and a visit by your property, that you are in violation of the City's Land Use Code against building a berm in your front yard. Thank you for coming in the Community Development office August 6th to inquire about the complaint and inform yourself about the variance appeal process with the Planning and Zoning Commission. Following are the specific sections and regulations of the Land Use Code, "Miscellaneous Supplemental Regulations" . 26.575.050 and "Design Review Standards" (26.410.040); Bolded sections are for the purpose of emphasis only. 26.575.050 Fences. Fences shall be permitted in every zone district provided that no fence shall exceed six (6) feet above natural grade or as otherwise regulated by the Residential Design Standards (see Chapter 26.410). Fences visible from the public right-of-way shall be constructed of wood, stone, wrought iron or masonry. On corner lots, no fence, retaining wall, or similar object shall be erected or maintained which obstructs the traffic vision, nor on corner lots shall any fence, retaining wall, or similar obstruction be erected or maintained which exceeds a height of forty-two (42) inches, measured from street grade, within thirty (30) feet from the paved or unpaved roadway. Plans showing proposed construction, material, location and height shall be presented to the building inspector before a building permit for a fence is issued. Additionally, foliage shall be placed and 130 SOUTH GALENA STREET, ASPEN, COLORADO 8161 1-1975 PHONE 970.925.5090 FAx 970.920.5439 maintained so that it will not obstruct vehicular visibility at intersections. (Ord. No. 55- 2000, § 16) 26.410.040 Residential design standards. 3. Fences. Fences, hedgerows, and planter boxes shall not be more than forty-two inches (42") high, measured from natural grade, in all areas forward of the front facade of the house. Man-made berms are prohibited in the front yard set back. f Fence, yes 1 Fence,no jai Violations of the City's code can result in a citation into Municipal Court and fines of up to $1,000 per day. As I mentioned on the phone, I am sending this letter to fully inform you of the City's requirements, procedures and consequences. Your immediate removal of this berm would be very appreciated. In the alternative you may choose to pursue an appeal, if so please submit your Land Use Application packet. I well need response as to which action you will be taking within 15 days. If you have any questions regarding this matter, please call me at 429.2767. Regards, Todd Grange Community Development Zoning Officer City of Aspen Copy: David Hoefer, Assistant City Attorney 130 SOUTH GALENA STREET, ASPEN, COLORADO 81611-1975 PHONE 970.925,5090 FAx 970.920.5439 • -•SECTION 1 / ®complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. 8 Print your name and address on the reverse so that we can return the card to you. 0 Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: CcuvoL A---i-sI T(o.�oX / a372- 4�WIO CO g r � 1-2, V�] Agent X--- i �ddresse B. Received by (Printed4nji C. M o f De6ew D. Is delivery address dimN ? ❑ If YES, enterdelivery address betgw: ❑ o 1,9 000 3. Service Type X Certified Mail ❑ Express Mail ❑ Registered ,Return Receipt for Merchandise ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes 2. Article Number 91 7108 2133 3933 3468 3562 (Transfer from service PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 r u } UNITED STATES POSTAL SERVICE First -Class Mail Postage & Fees Paid USPS Permit No. G-10 ® Sender: Please print your name, address, and ZIP+4 in this box Co 8f61I 975'-- 2�� ?cu ?� ion ;Gr°n(�e Please Reply To: NEILEY & ALDER ATTORNEYS RICHARD Y. NEILEY, TR. 2oi North Mill Street, Suite 102 EUGENE 1VI. ADDER Aspen, Colorado 81611 JOHN F. NEII,EY (970) 925-9393 Fax (970) 925-9396 September 25, 2007 HAND DELIVERY Mr. Todd Grange Community Development Zoning Officer City of Aspen 130 South Galena Street Aspen, CO 81611 Re: Carole Fisher; 515 Homestake Drive, Aspen Dear Todd: 6800 Highway 82, Suite i, Upper Level Glenwood Springs, Colorado 816ol (970) 928-9393 Fax (970) 928-9399 I represent Carole Fisher. My client has asked me to respond to your letter dated August 23, 2007 that she received on September 13, 2007. While my client does not acknowledge any violation of the Land Use Code of the City of Aspen, she has asked me to assist her in the preparation of an application for a variance to the Design Review Appeal Committee under Land Use Code § 26.410.020. We have just received a current survey of the property. I will be out of town from tomorrow through October 4, 2007. Thus, it will not be possible for me to submit the variance application until after I return. It is my hope that we can have a complete application filed by October 12, 2007. If you wish to discuss this matter, please feel free to call me. While I am away, I can be reached on my cell phone at 970-948-9393. Otherwise, I will contact you upon my return to Aspen to discuss the processing our variance application. V11r� truly yours, N Y & ALDER Richard Y. 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