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HomeMy WebLinkAboutminutes.council.20020624Regular Meetin~ Aspen City Council June 24, 2002 CITIZEN PARTICIPATION .......................................................................... 2 COUNCiLMEMBERCOMMENTS....~i,2..2..~i~,~2..~i.~,~ ...... ~i ..... ,, ........ ~3 CONSENT AGENDA ..................................................................................... 4 [] Resolution #53, 2002 - Adopting Records Retention Guidelines ....... 4 [] Resolution #54, 2002 - Contract - Rienks Third Floor Remodel ........ 4 [] Minutes - June 10, 2002 ...................................................................... 4 FIRST READING OF ORDINANCES .......................................................... 4 [] Ordinance #23, 2002 - 635 West Bleeker Historic Lot Split .............. 4 [] Ordinance # 19, 2002 - Frost Property Rezoning - 216 E. Hallam ...... 4 [] Ordinance #20, 2002 - Frost Property Alley Vacation - 216 E. Hallam ......................................................................................................... 4 ORDINANCE #21, SERIES OF 2002 - Code Amendment Fractional ownership ........................................................................................................ 5 ORDINANCE #22, SERIES OF 2002 - Banning Fireworks ......................... 6 ORDINANCE #13. SERIES OF 2002 - Supplemental Appropriations ......... 7 ORDINANCE #14, SERIES OF 2002 - 320 West Main Historic Lot Split .. 8 ORDINANCE #18, SERIES OF 2002 - Code Amendment Water Rates ...... 9 RESOLUTION #52, SERIES OF 2002 - Declaration Stage One Water Shortage ......................................................................................................... 10 REPORT ON CITIZEN PETITIONS ........................................................... 10 APPEAL OF DALE HOWER FROM A ZONE DISTRICT INTERPRETATION ..................................................................................... 11 APPEAL OF PQPSICLE VENDING ........................................................... 17 Regular Meeting Aspen City Council June 24, 2002 Mayor Klandemd called the meeting to order at 5:00 p.m. with Councilmembers Paulson, McCabe, Hershey and Semrau present. CITIZEN PARTICIPATION 1. Bill Dinsmoor told Council the trolley representatives have been approached by a foundation encouraging them to apply for a grant to do cosmetic restorations on one of the trolleys. Dinsmoor said the monies gifted by the foundation need to have a significant public benefit. Dinsmoor said this goal could be met by a public display of the trolleys. Mayor Klanderud suggested the trolley group work with staff to find suitable locations so that Council can have this information before a regular meeting to make a decision. Councilm Paulson said this foundation needs a letter from the city with their Federal tax ID number. City Manager Steve Barwick said this can be provided. 2. Tom Alpern requested Council reconsider their decision about allowing a popsicle peddler and also requested an immediate temporary permit. Alpern said he will meet with the Commercial Core and Lodging Commission in early July, but would like to get started on this business right away. Alpern said the grounds for appeal are that city stafftold him that he had permission to begin his business and to sell popsicles in the parks. Alpem relied on that to rent freezer space and to order a bicycle for this business. Councilman Hershey moved to add this to the agenda as action item (d); seconded by Councilman Paulson. All in favor, motion carried. 3. Anne Murchison, Fifth Avenue resident, presented pictures of various bear enclosures in her neighborhood. Ms. Murchison pointed out that some of these enclosures do not have roofs or tops and the people with these enclosures have said they cannot cover the bear enclosures or it will count against their FAR. Ms. Murchison requested Council look into this and amend the code if necessary as the bear enclosures without roofs do not seem to be very effective. 4. Bert Myrin told Council in 2-1/2 weeks a committee collected 806 certified registered voter's signatures which seems to show strong support that the government save the small town entrance rather than build a four- lane. Myrin requested Council direct the city manager not to transfer the 2 Regular Meetin~ AsPen City Council June 24~ 2002 open space land until after there is an election on this issue. Mayor Klanderud asked these comments be presented under action item (c) Report on Citizen Petitions. 5. Toni Kronberg reminded Council there is a work session July 9th with the Obermeyer COWOP group. Ms. Kronberg told Council she is going to do a citizen's petition to reclaim the recycle and snowmelt lands as park. The parks department will be meeting with the Obermcyer COWOP group to discuss this land. 6. Jane Hatem told Council she supports the popsicle cart and their application to sell in the public rights-of-way. COUNCILMEMBER COMMENTS 1. Councilman Hershey said he will recuse himself from the appointment of the hearing officer as he is the person whO has filed the protest. 2. Councilman Semrau presented Council with an original Chris Cassatt cartoon to help remind everyone of the proper balance in life. 3. Councilman l~aulson stated the Council is adopting a resolution declaring a stage one water shortage. Councilman Paulson cautioned everyone to be extremely careful with barbecue grills. 4. Mayor Klanderud thanked staff and the fire department for putting a large effort about how the community can make the areas around houses defensible and help make the community safe. 5. Steve Barwick, city manager, requested an executive session at the end of the meeting to discuss personnel issues. 6. Councilman Semrau reported the housing board will come up with less onerous ways for homeowners in affordable housing units to requalify. 7. Councilman McCabe told Council the Obermeyer COWOP has been discussing various topics, trading land, office space, the financial aspects. Councilman McCabe said the COWOP was asked whether they WOUld 3 Regular Meeting Aspen City Council June 24, 2002 consider a 6th floor. This decision has not been made; it is one component of the project. 8. Mayor Klandemd thanked RFTA for publishing decisions made at the last board meeting. 9. Mayor Klandcrud noted thc ACRA report was given to Council at the work session last week. CONSENT AGENDA Councilman McCabe moved to adopt the consent calendar; seconded by Councilman Hershey. The consent calendar is: [] Resolution #53, 2002 - AdOpting Records Retention GUidelines a Resolution #54, 2002 - Contract - Rienks Third Floor Remodel [] Minutes - June 10, 2002 All in favor, motion carried. FIRST READING OF ORDINANCES [] Ordinance #23, 2002 - 635 West Bleeker Historic Lot Split [] Ordinance #19, 2002 - Frost Property Rezoning - 216 E. Hallam [] Ordinance #20, 2002 - Frost Property Alley Vacation - 216 E. Hallam Councilman Hershey moved to read Ordinances #23, 19 and 20, Series of 2002; seconded by Councilman Paulson. All in favor, motion carried. ORDINANCE NO. 23 (Series of 2002) AN ORDINANCE OF THE ASPEN CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO GRANT APPROVAL FOR A SUBDIVISION EXEMPTION FOR AN HISTORIC LANDMARK LOT SPLIT AT 635 W. 4 Regular Meeting Aspen City Council June 24, 2002 BLEEKER STREET, LOTS A, B, AND C, BLOCK 24, CITY AND TOWNSITE OF ASPEN Ordinance No. 19 (Series of 2002) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN APPROVING THE REZONING FROM SCI TO R-6 OF A TRIANGULAR PORTION OF LOT 4, TRUEMAN NEIGHBORHOOD PROJECT PROPERTY LOCATED NORTH OF LOTS D AND E OF BLOCK 71, ORIGINAL ASPEN TOWNSITE, LOCATED AT 216 E. HALLAM STREET, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO. ORDINANCE NO. 20 (Series of 2002) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO VACATE A PORTION OF THE ALLEY IN BLOCK 71, WITHIN THE CITY OF ASPEN, PITKIN COUNTY, COLORADO. Councilman Hershey moved to adopt Ordinances 23, 19, and 20, Series of 2002, on first reading; seconded by Councilman Paulson. Roll call vote; Councilmembers Semrau, yes; Paulson, yes; McCabe, yes; Hershey, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #21, SERIES OF 2002 - Code Amendment Fractional ownership Councilman McCabe said P&Z member Bert Myrin brought up a point about not allowing timeshare offices in the commercial core. Council has discussed how important it is to maintain the vitality of the commercial core. Myrin suggested considering a restriction against timeshare offices on ground floor space in the CC zone. Mayor Klanderud noted that issue is separate from timeshare of properties themselves. Alan Richman told Council one question is whether the city could differentiate between a timeshare real estate office and other real estate sales office. Richman said P&Z was comfortable with the fact that this will be studied as one of the infill issues. Richman said P&Z had trouble seeing this 5 Regular Meeting Aspen City Council June 24, 2002 as a direct consequence of timeshare ora property. Richman pointed out this becomes a very large issue if the city cannot differentiate between timeshare and real estate offices and moving all the offices to second floor locations. Richman said this ordinance requires the applicants to state whether there will be an off-site office, which will b~ a considerati°n in reviewing the PUD. Councilman Semrau suggested staff tell Council where this discussion would be appropriate at second reading. Stan Clanson, economic sustainability committee, told Council they have discussed both timeshare and real estate offices on ground floor spaces. These are important issues to the committee. There is concern about the proliferation of real estate offices. Mayor Klanderud said she does not want to see the timeshare ordinance get sidetracked on this issue. Councilman Hershey moved to read Ordinance #21, Series of 2002; seconded by Councilman Semrau. All in favor, motion carried. ORDINANCE NO. 21 (SERIES OF 2002) AN ORDINANCE OF THE CITY OF ASPEN TO AMEND CHAPTER 26.590; 26.590, TIMESHARE, AND RELATED SECTIONS OF THE CODE, THESE BEING SECTION 26~ 1042100, DEFINITIONS; 26.710.320, LODGE PRESERVATION OVERLAY ZONE DISTRICT; 26.710.190, LODGE/TOURIST RESIDENTIAL ZONE DISTRICT; 26.710.140, COMMERCIAL CORE ZONE DISTRICT; 26.710.200, COMMERCIAL LODGE ZONE DISTRICT; 26.480.030 SUBDIViSION EXEMPTIONS; 26.480.040 SUBDIVISION PROCEDURES; 261510.030} PROCEDURES FOR SIGN PERMIT APPROVAL; AND 26~4701070, GMQS EXEMPTIONS ORDINANCE #22, SERIES OF 2002 - Banning Fireworks John Worcester, city attorney, proposed this as an emergency ordinance with second reading tomorrow. Worcester pointed out this ordinance prohibits fireworks of any kind or form including sparklers, cones, volcanoes and is banning fireworks more comprehensively than the state law. Worcester said the fire-burning ban will ban charcoal grill fires. Worcester requested Regular Meefin~ Aspen Ci~, Council June 24~ 2002 Council amend Ordinance #22 to strike "in extraordinary circumstances" in the line about getting a permit to bum from the Chief of Police. Councilman Semrau asked how this will be enforced. Richard Prior, assistant police chief, told Council the police department will issue citations for any violations. Councilman McCabe said he would like to not ban charcoal grills at private residences. Mayor Klanderud pointed out there are a lot of homes in wooded and shrubbed areas. No charcoal grills is onerous but this is a very serious situation. Councilmen Hershey and Semrau agreed about allowing charcoal grills in private residences. To not allow them would be an enforcement nightmare. Councilman Paulson moved to amend Ordinance #22, Series of 2002, to allow charcoal grills at private residences; seconded by Councilman Semrau. Roll call vote; Councilmembers Paulson, yes; McCabe, yes; Semrau, yes; Mayor Klanderud, yes. Motion carded. Councilman McCabe moved to adopt Ordinance #22, Series of 2002, on first reading, striking "in extraordinary circumstances" and striking charcoal grill fires at private residences; seconded by Councilman Semrau. Roll call vote; Councilmembers Paulson, yes; McCabe, yes; Hershey, yes; Semrau, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #13. SERIES OF 2002 - Supplemental ApprOpriations Kathleen Von Achen, budget director, presented additions to the supplemental appropriations. Council said they would prefer to go over these changes and to continue the public hearing. Councilman Hershey moved to continue Ordinance #13, Series of 2002, to July 8th; seconded by Councilman McCabe. Mayor Klanderud said she is concerned about using the 1/2-cent sales tax for the Ute Cemetery project. She would prefer this come out of the 1 cent sales tax. Mayor Klanderud opened the public hearing. There were no comments. Mayor Klandemd closed the public hearing. All in favor, motion carried. 7 ReRular Meetin~ Aspen City CounCil June 24, 2002 ORDINANCE #14, SERIES OF 2002 - 320 West Main Historic Lot Split Amy Guthrie, community development department, reminded Council this request was submitted awhile ago and Council was not comfortable with a lot split in the office zone. Council said they preferred to wait for the overhaul of the historic preservation district. Ms. Guthrie noted this is the first proposed lot split in the O, office district. Ms. Guthrie told Council this is a 9,000 square foot lot with 2 historic structures. The proposal is to divide this into two 4500 square foot parcels. The unique issues are that the FAR will be determined by the use of the building on each lot. Currently this is a mixed-use property and is allowed thc maximum floor area of 6,750 square feet. Ms. Guthric said a residential structure on one of these lots would have a slightly reduced FAR. Ms. Guthrie told Council the 500 square foot bonus was granted by HPC to the Smith/Elisha house because it is a fairly large structure. In order for HPC to grant this bonus, several criteria have to be met. One is that all relevant design guidelines have to bc complied with. There is a guideline stating one must maintain a good paint surface on all exposed wood. There is some deterioration on this structure and it should be corrected and some financial assurance should be submitted to the city. Ms. Guthrie noted these are two large, significant historic structures and I-IPC put a condition that no fence can go between these two buildings. Ms. Guthrie pointed out condition #4 stating "no new sidewalk can be Created from Main street to thc carriage house as long as it remains the only building on that parcel" and would like this amended to add "without the approval of I,IPC". Caroline MacDonald told Council she has submitted pictures on what will be corrected. Bob Starodoj noted the time frame for Plan for the repairs is June 30 and suggested it should be extended. Ms. Guthrie agreed this could be changed to July 31 st. Mayor Klanderud opened the public hearing. There were no comments. Mayor Klanderud closed the public hearing. Councilman Hershey moved to adopt Ordinance #14, Series of 2002, on second reading amending the date for repairs to July 31, 2002, and amending condition #4 about the sidewalk to say "without approval °fHPC"; secOnded by Councilman McCabe. Roll call vote; Councilmembers McCabe, yes; 8 Regular Meeting Aspen Ci,ty Council June 24, 2002 Semrau, yes; Hershey, yes; Paulson, no; Mayor Klanderud, yes. Motion carded. ORDINANCE #18, SERIES OF 2002 ' Code Amendment Water Rates Phil Overeynder, water department, recommended Council adopt stage 1 water shortage to include a 10% water reduction in outside water use, changes in use of public facilities to redUce their water use, increase in water rates and a public education program. Overeynder said not only is this the driest year since 1977 but the Governor has asked all communities to share helping with the shortages: Overeynder told Council Aspen's streams are holding up well for water supply; however, water supply is so critical on a statewide basis, the stream water may be called for use in some other location. That is the principal reason staff is recommending a stage I drought and a 10% reduction in water use. Overeynder explained water rights senior to AsPen's and how they can call on that water. Overeynder told Council he will report in July on what is happening with the Call on Aspeffs water sources. Overeynder pointed out a major component of the water shortage is amending the water rate structure. This temporary charge will only apply when a shortage exists. This will increase the amount paid for water when users use over 12,750 gallons/month for a typical household. Users will be charged 1.5 times the water rate for excess usage. Overeynder told Council staff looked at what other communities are doing when establishing these rates. Overeynder said if there are eXtra revenues generated from this, Council can discuss what to do with that money. Mayor Klanderud opened the public hearing. Caroline Macdonald asked if rather than raising water rates, couldn't the city reduCe the water pressure. Overeynder answered the water pressure in town is a result of the tank levels and there is nothing the city can do to change that. Richard, owner of laundrOmat, t°Id CoUncil they have taken a lot of steps to conserve water at the laundromat, including replacing leaking valves and installing water efficient Washing machines. Richard said there should be some other way to address this than making it a financial burden on a business like a laundromat in the highest season. Overeynder suggested staff and Richard visit the rating for his business. If the rating is high enough for the year, it should cover this period. 9 Regular Meetin~ Aspen City Council June 24~ 2002 Bert Myrin said people who live and work here will end up paying more for water; this increase will impact residents more than part-time residents, who can afford to pay more for their water. Mayor Klanderud closed the public hearing. City Clerk Kathryn Koch pointed out this should be adopted as an emergency ordinance so that it will take effect immediately upon publication. Councilman Hershey moved to adopt Ordinance #18, Series of 2002, on second reading, declaring that an emergency exists to protect the life, health and safety of the community; seconded by Councilman Semrau. Roll call vote; Councilmembers McCabe, yes; Semrau, yes; Hershey, yes; Paulson, yes; Mayor Klanderud, yes. Motion carried.. RESOLUTION #52~ SERIES OF 2002 - Declaration Stage One Water Shortage Councilman McCabe moved to adopt Resolution #52, Series of 2002, declaring a state one water shortage; seconded by Councilman Semrau. All in favor, motion carried. REPORT ON CITIZEN PETITIONS City Clerk Kathryn Koch told Council she has certified the petitions on the Entrance to Aspen as having 806 registered city voters. The requirement is 797 registered voters. Ms. Koch noted a protest has been filed and the hearing date is set for Wednesday, June 26. Councilman Semrau moved to continue action on determination of the sufficiency of the citizens' petition to the first regular meeting after the protest hearing; seconded by Councilman McCabe. All in favor, motion carried. Ms. Koch suggested Council appoint a hearing officer, other than herself. Ms. Koch recommended the appointment of Karen Goldman, previously city I0 Regular Meeting Aspen City Council June 24, 2002 clerk in Lakewood, Colorado, for 10 years and who has conducted at least 6 other protest heatings in cities around the state. Councilman Semrau moved to approve the appointment of, Karen Goldman as protest hearing officer; seconded by Councilman McCabe. All in favor, with the exception of Councilman Paulson. Motion carried. APPEAL OF DALE HOWER FROM A ZONE DISTRICT INTERPRETATION John Worcester, city attorney, told Council this code appeal is from an interpretation he authored, which was signed by the community development director. Worcester has engaged Tom smith to act as counsel to the Council. Worcester will be acting as a proponent of the code interpretation on behalf of staff. Mayor Klanderud noted she lives on Riverside Drive and did go to view this property. Mayor Klanderud said she is not sure whether she was in office at the time or not. Mayor Klandemd asked the appellant if she would like the Mayor to recuse herself`. Cindy Tester, representing Ms. Hower, said theY would like the MaYor to sit. Mayor Klanderud submitted a letter from Lorrie Winnerman. Tom Smith, counsel, said this appeal is a letter from Dale Hower, dated April 26, 2002, including attachments. Smith said the procedures for this appeal come from the Municipal Code, 26.306, InterpretatiOns Of'Title. There was an initial decision on the zoning of this property October 26, 2000, which was cOnfirmed November 22, 2000. There was an appeal filed by Cherie Oates November 27, 2000, from the determination that R-6 zoning applied to this property. Smith noted this appeal was scheduled bef,ore Council in December 2000, and it was continued indefinitely for mediation. Smith said in December 2000, a copy of' a zoning map was presented as evidence. Smith said mediation did not work and the city received a letter from Ms. Hower. Smith told Council this appeal heating is based on the record. Cindy Tester, attorney for Dale Hower, pOinted out Ms. Hower's letter of April 22, 2002, requested Council reverse the zoning interpretation submitted by staff because of a denial of due process, because staff exceeded its jurisdiction and because there has been an abuse of, discretion. Ms. Hower further requests Worcester's memorandum of April 8, 2002, be expunged from the record as it was not properly submitted to the City Regular Meeting Aspen City Council June 24, 2002 Council and that it has prejudiced the City Council. Ms. Tester requested Council rely on the initial zoning interpretation drafted by Julie Arm Woods October 26, 2000 and reaffirmed November 18, 2000. Ms. Tester agreed the standards for this proceeding is 26.306.010, which indicate that the community development department shall maintain an official record of all interpretations of the zoning code. If someone questions their zoning, they ask for a zoning interpretation from community development department. Ms. Hower met with Julie Ann Woods and Fred Jarman and a zoning interpretation was tendered. The staff looked at the zoning maps of 1963, 1967, through 2000, and issued a decision that Ms. Hower's property was zoned R-6. Ms. Tester cited 261316.030(a) that an individual has 14 days to object to any zoning interpretation. Ms. Tester stated there has been no appeal of the October 26, 2000, zoning interpretation. If an appeal was not made, the Council does not have subject matter jurisdiction to hear this issue. Following the October 26, 2000, memorandum written by the planning department, a zoning interpretation was requested by the adjacent landowner, Cherie Oates, who requested an interpretation of the zoning district on November 8, 2000. On November 22, 2000, Ms. Oates was given the answer that this is R-6 zoning, which allows for duplexes. There was an appeal filed by the Oates November 27. Ms. Oates found documents in the newspaper archives showing the zoning as R-15. This occurred after Ms. Hower had been told twice in writing that she had R-6 Zoning. December 18, 2000, the appeal filed by the Oates was in front of Council and was continued to try and resolve this through mediation. Ms. Tester pointed out there were at least 3 ordinances passed in the last 10 years that would have repealed and reenacted the zoning and would have reaffirmed R-6 zoning on Ms. Hower's property. These ordinances are #5, 1988; #15, 1988, and#10, 1999. Ms. Tester noted according to the appeal procedure, 26.316.030, the decision making body authorized to hear the appeal shall follow the general hearing procedures set forth in 26.304.060(c). Ms. Tester said that section indicates any person may appear at a public hearing and submit evidence. Ms. Tester said if Council allows anYone other than herself to speak, then everyone 12 Regular Meeting Aspen City Council June 24, 2002 should be allowed to speak. Mayor Klanderud said Council should hear only from people who have a specific interest in this parcel. Ms. Tester reiterated this is a moot issue; there was never an appeal filed and Ms. Hower has vested rights when no appeal was filed within 14 days. Ms. Tester said Ms. Hower was told both orally and in writing by city staff that she had R-6 zoning. There is case law supporting Ms. Hower's position. An individual has the right to rely on the statements made to them by staff when the statements are within staffs authority. Ms. Tester said the Oates found an old zoning map in the archives; however, one cannot be expected to go through archives to find out what the zoning is on their property. Ms. Tester said people need to be able to rely, as a matter of policy, on what the city tells them. Ms. Tester asked Council to look at both the procedural and substantive standpoint as well as a fairness standpoint. Worcester stated the issue before Council is what is the proper zoning for this parcel, which is what his memorandum on the code interpretation addresses. Worcester noted he does not typically write code interpretations. The people who work w/th the codes on a daily basis should do these. The community development department wrote the October and November 2000 memoranda. Worcester told Council the parties met in mediation and spent almost a year trying to get to a resolution. The appeal in December was from the Oates. Before that appeal was held staff changed their mind. Worcester said after the staff changed their mind because of new evidence, there was no incentive from the Oates to pursue the appeal. Worcester said he heard from Ms. Hower's attorney that he should write a code interpretation so that Ms. Hower could appeal that. Worcester said he wrote that interpretation so that the issue could get before Council. Worcester told Council the community development director read and signed off on his interpretation. Worcester reminded Council the original interpretation was that the property should be R-6. The community development department had maps going back to the original annexation. Staff had the original annexing and zoning ordinance; however, the map could not be found. When the original code interpretation was issued, staff only had the old zoning maps. Worcester showed Council where the Hower property is located and where the Oates house is. Worcester presented city of Aspen zoning maps from April 1967 to 1968 showing the Hower property is in an R-15 zone district. The next exhibit Regular Meeting Aspen City Council June 24, 2002 shows the property from 1963 to 1974 was zoned R-15. The 1975 zoning map shows the zoning for this parcel was also R~I5 and this exhibit has a dark line running through the Hower property. Worcester said he feels this is where the error was made. Worcester said this official zone district map shows the zone cutting through the middle of the property, part of it is R-6 and part of it is R-15. Worcester presented a later zone district map showing this parcel to be both R-15 and R-6. When the GIS maps were created, staff used the most current zoning map and continued dividing the property by two-zone districts. Worcester said exhibit 2 was attached to the original rezoning when this property was first annexed into the city and shows the property to be R- 15. Worcester told Council when the appeal was brought before them in December of 2000, staffhadjust seen the original map. This was the first time staff could determine what legislative action Council took to zone the property. Worcester said there is no evidence in the city records that this property was zoned anything other than R-15 from the original map. All the early zoning maps show R-15. Worcester agreed the code states the zoning map is the official zoning ora property; however, the city code also states the only way properties can be rezoned is through a process by which the entire city has notice, including the neighbors. Worcester said this property was not rezoned through an official process. Worcester stated the proper zone for this property is the initial zoning, R-15. Worcester noted counsel for Ms. Hower has made an argument for equitable estoppel, ifa person relies upon advice given by a staff member, they ought to be able to rely on that information. Worcester said this is a court created equitable relief and Ms. Hower may be entitled to that. Worcester stated Council is not the body to grant that relief. The only decision Council can make is what is the proper zoning for this particular parcel of land. Worcester agreed with counsel that people should be able to rely on the process. The city's land use code sets forth a process, which requires someone to go through a lengthy process to rezone property. A mistake by city staff ought not to be held to be the same as that process. Councilman Hershey agreed the city ought not to abort the required zoning process for a mistake made by a city staff member. Ms. Tester said this is not a rezoning issue; it is an estoppel issue and an equitable issue. Individuals should not have to worry about mistakes made by sticky tape on a zoning map. Councilman Hershey noted the neighbors 14 Regular Meeting Aspen City Council June 24, 2002 rely on what the zoning is and they have not had a chance to comment on this issue through the public hearing process. Ms. Tester pointed out there were letters and conversations between Ms. Hower and staff on the zoning of this property. Mayor Klanderud asked if Ms. Tester agreed that the estoppel issue is a Court issue. Ms. Tester said she does not agree as that would deprive the City Council of the ability to decide constitutional issues and to decide issues of due process, and to insure people are treated fairly and justly. Ms. Tester pointed out the city's code states the community development department will render an opinion on zoning interpretations, not the city attorney. This is an example of exceeding jurisdiction. Mayor Klanderud said Council often receives memoranda from the city attorney on his opinion about various city matters. Julie Ann Woods, community development department, said she signed the memorandum referred to and agrees with what Worcester has told Council. Councilman Hershey reiterated the city code has a system for zoning and rezoning. Residents, neighbors, real estate agents, developers all rely on that. When property is zoned there has to be a public hearing, there has to be notice in newspapers, there are two appearances before Council on zoning or rezoning. Council~ Hershey said granting what Ms. Hower wants would be short-circuiting the process. Councilman Semrau asked how much reliance a citizen can have on written communication on zoning from the staff. Worcester said staff has struggled with this, has recognized an error was made, and has attempted to be fair to Ms. Hower and to the affected neighbors. Worcester said a Court may say there is no reliance until a building permit is issued. A building permit was not issued in this case. Worcester said the issue before Council is what is the proper zoning for this parcel today. COuncilman Semrau said generally people rely on the zoning officer before purchasing property. Worcester answered there is no evidence in this record to indicate Ms. Hower relied on anything staff said prior to purchasing the property. Smith stated the record before Council is incomplete to make a determination whether equitable estoppel should apply. Smith reminded Council they are looking at an appeal from a decision made by staff and the only staff decision was interpreting the code, not on dealing with equitable estoppel. 15 Regular Meeting Aspen City Council June 24, 2002 Mayor Klanderud said she chooses not to open this to public comment as Council is sitting in a quasi-judicial capacity. Mayor Klanderud said Council is deciding upon the record and if there were any additional evidence, this should have been in the record. MS. Tester noted the city's code 26,304.060 (c), general hearing procedures would allow comments from the public. Mayor Klanderud said this is not mandatory. Councilman Paulson said he would like to continue this until any missing evidence is part of the record. Councilman Paulson moved to hear public on this issue. Motion DIES for lack of a second~ Ms. Tester said it was her understanding in 26.304.060 that all public would have a right to speak. Smith told Council he said there would not be testimony; the heating was for the purpose of summarizing the facts of record. Ms. Tester told Council there is a provision in the city's code that to the extent there might be additional information, there can be an offer of proof made to Council to decide whether they want to receive that information. Smith pointed out the appeal by Cherie Oates was made November 27, 2000, on a November 22, 2000 decision. This matter was continued and not resolved. Councilman Hershey moved to suspend the rules and extend the meeting to 10:00 p.m.; seconded by Councilman McCabe. All in favor, motion carried. Smith said there have not been vested rights. Vested rights means a building permit was issued for approval of construction. Under Colorado 1aw, one does not get vested rights without getting a building permit or a site specific development plan approval. The appropriate motion would be to confirm or to reject the interpretation of the applicable zoning as reflected in the April 8th memorandum and whether or not to grant relief based on the issue of equitable estoppel. Councilman Hershey said people have a right to rely on what staff tells them; however, the equity relates to everyone, not just the appellant. Councilman Hershey said if COuncil were to grant relief, they would be thumbing their nose at the entire zoning code and procedures on which the community relies. Councilman Hershey said he would support affirming 16 Regular Meeting Aspen City Council June 24, 2002 staffs decision that the property is zoned R-15 and rejected relief for equitable estoppel. Councilman Hershey moved to affirm the city staffs decision that this is R- i 5 and to reject their relief for equitable estoppel by changing the zoning to R-6; seconded by Councilman McCabe. Councilman Semrau noted the city's code states the zoning map is the zoning; it also states zoning is done by ordinance. The planners tell citizens what the zoning is. At some point, there has to be reliance on the city. Mayor Klandemd said one key issue to her is that this conflict was known as early as December 2000, when it went to mediation. Councilman Semrau said it is unfathomable to expect citizens to go back and check zoning maps. Worcester agreed with these concerns; however, there is a remedy through the courts or submitting to the city request for damages. Worcester reiterated the question before Council is what is the proper zoning. Councilman Hershey said given the city code, this property is properly zoned R-15. Councilman McCabe said this is very difficult becaUse there are conflicting standards, the zoning map and requirement for ordinances. Councilman McCabe said based on the narrow interpretation, he would have to support R-15 zoning. Councilman Semrau said this is too narrow of an interpretation and he would support a more broad interpretation. Smith said the basic rules of statutory construction is that Council needs to look at the provisions in their code as a whole and an effort should be made not to view them as inconsistent but to harmonize them as much as possible. Council should view these two positions, the requirement of an ordinance to enact zoning changes versus the zoning map, and make an effort to give them both meaning and try and make them compatible. If it is not possible, Council should decide how the underlying intent of Aspen's land use regulations is best served by honoring one over the other. Roll call vote; Councilmembers Semrau, no; Hershey, yes; Paulson, no; McCabe, yes; Mayor Klanderud, yes. Motion carried. APPEAL OF POPSICLE VENDING 17 Regular Meeting Aspen City Council June 24~ 2002 Mayor Klanderud suggested Council focus this discussion on the narrow issue of this particular vending issue and let the broader issue of vending in general be discussed by CCLC with a recommendation to Council. Steve Barwick, city manager, noted that through the process, the applicant was given indications there may be a problem; however, someone on staff should have said a vending license was needed. Tom Alpern told Council he submitted a business license to the city for the popsicle vending business. All departments signed it and Alpem was told he could start business. Alpem told Council based on that, he ordered the bicycle, rented a refrigerated space, and started selling popsicles around town. Alpern requested he be allowed to continue this business. Alpern told Council he will concentrate on the parks, skateboard park, and events. Alpem said he will ke~ moving around town and not sell where similar product is available. Councilman Paulson moved to authorize the city manager to'enter into a vending agreement for this particular situation and only for the remainder of this summer season; seconded by Councilman Hershey. Barwick read the application, "a roving mobile service at ballgames, parks, events". Barwick said staffwill define where this vending can take place in the vending agreement. All in favor, motion carried. Councilman Hershey moved to go into executive session at 9:45 p.m. for the purpose of discussing personnel issues pursuant to C.R.S. 24-6-402(4)(f); seconded by Councilman Semrau. All in favor, motion carded. Councilman Hershey moved to come out of executive session at 10:15 p.m.; seconded by Councilman Paulson. All in favor, motion carried. Councilman Hershey moved to adjourn at 10:15 p.m.; seconded by Councilman Paulson. All in favor, motion carried. ~ S. Koch, City Clerk 18