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HomeMy WebLinkAboutminutes.council.19900108Reaular Meetina Aspen City Council January 8, 1990 ANNUAL MEETING ASPEN PUBLIC FACILITIES AUTHORITY 1 PROCLAMATION - Decade of the Child 1 CITIZEN PARTICIPATION 1 COUNCILMEMBER COMMENTS 2 CONSENT AGENDA 5 ORDINANCE #64, SERIES OF 1989 - Golf Course Pro Shop Lease 5 ORDINANCE ##76, SERIES OF 1989 5 ORDINANCE #77, SERIES OF 1989 - Pitkin Row Subdivision Exemption 5 ORDINANCE #78, SERIES OF 1989 - Historic Designation 127 East Hallam 6 ORDINANCE #79, SERIES OF 1989 - Kraut Lot Split 7 ORDINANCE #81, SERIES OF 1989 - Increase Sales Tax .45 Percent 7 BILLINGS CONCEPTUAL PUD 9 CITY CLERK REPORT ON RECALL PETITIONS 12 RESOLUTION #l, SERIES OF 1990 - Ballot Issues 13 ORDINANCE #l, SERIES OF 1990 - Housing Replacement Program 18 729/731 CEMETERY LANE SUBDIVISION EXEMPTION 19 RESOLUTION #2, SERIES OF 1990 - Utility Underground District 19 RESOLUTION #5, SERIES OF 1990 - Ute Avenue Special Improvement District 19 21 Regular Meeting Aspen City Council January 8, 1990 Mayor Stirling called the meeting to order at 5:00 p.m. with Councilmembers Tuite, Gassman, Peters and Crockett present. ANNUAL MEETING ASPEN PUBLIC FACILITIES AUTHORITY President William Stirling called the annual meeting to order with members Bill Tuite, Kathryn Koch, Cindy Wilson, Frank Peters, Steve Crockett, and Michael Gassman present. There was no business before the authority. Crockett moved to adjourn the annual meeting; seconded by Gassman. All in favor, motion carried. PROCLAMATION - Decade of the Child Mayor Stirling read the proclamation into the record affirming the 1990's as the decade of the child in Colorado and resolving to join forces with others in a statewide effort to improve children's lives by making them number one priority. CITIZEN PARTICIPATION 1. Richard Neiley told Council he is attempting to form a special improvement district on Ute Avenue. Neiley said he has been working with staff . This item was on the December 18th meeting and was supposed to be tabled to this meeting. Neiley said they would like to schedule a public hearing on February 26 and request approval of the resolution be placed on the consent agenda. Fred Gannett, city attorney's office, reminded Council they have encouraged the residents of Ute avenue to form a special improve- ment district, staff drafted a resolution. This resolution sets a public hearing date for members to appear before Council and either elect in or out of the district. Gannett said if they are going to get into the 1990 construction season, this resolution should be adopted tonight. Councilman Peters said the city is just studying the sidewalk and street scape plan. Councilman Peters said a special improvement district describes specifically what improvements are made. Councilman Peters questioned adopting this resolution if there is no way to know what the city's pending plan is. Neiley said he has been working with the staff and will try to adopt a plan which is consistent with the city's plan. Neiley said there is a bike path they would like to complete, they would like to install some low intensity lighting to encourage pedestrian traffic, try to deal with parking issues. Councilman Peters said any descriptions of improvements should be coordinated with the planning office. 1 Regular Meeting Aspen City Council January 8, 1990 Mayor Stirling moved to place Resolution #4, 1990, as item (g) on the action items; seconded by Councilman Tuite. Mayor Stirling said he is happy to initiate this whenever citizens are prepared to do something that is in the overall best interest of the town. All in favor, motion carried. 2. Chuck Vidal requested a work session to go over the golf course lease for the Zoline property. Council scheduled this for January 15 at 7:15 p.m. COUNCILMEMBER COMMENTS 1. Councilman Tuite said the housing authority, at their last meeting, agreed to try and help Snowmass finance some single family lots. Councilman Tuite said he feels this is a good idea as long as the housing authority is not financing something which will give preference to Snowmass residents first. Councilman Gassman said this was just to talk about financing in general. Councilman Gassman said he does not think there was commitment to any one project, but he will report back to Council. 2. Councilman Tuite told Council at the end of January RFTA will be announcing the formalization of the car pool for the valley. Councilman Tuite said there will be a phone number, programs to match people up, and perhaps some incentives. 3 . Councilman Tuite moved to place on the consent calendar as ( f ) the rezoning request by Hadid Aspen Holdings on the Bavarian Inn site per the memo conditioned upon specific development review; seconded by Mayor Stirling. Councilman Crockett asked if the Council can initiate a rezoning request from someone who does not own the property. Sandy Stuller, city attorney's office, said they have an option. Amy Margerum, planning director, recommended Council sponsor the rezoning. The substantive issues will be dealt with through the process. All in favor, motion carried. 4. Councilman Crockett asked about the Rio Grande/Hallam Lake agreement on the consent calendar. Bob Gish, city engineer, told Council this agreement finalizes the meeting Council had during the budget. 2 Regular Meeting Aspen City Council January 8, 1990 5. Councilman Crockett asked what is going on with the Aspen School district property. Amy Margerum, planning director, told Council it would be a good idea to have a work session with the BOCC, who owns some of one of the school sites. Ms. Margerum told Council she is meeting with the school board this week and will report back to Council. 6. Councilman Peters said he would like to respond to some repeated challenges made by Hadid Aspen Holdings about his conflict of interests and that he should be disbarred from voting on various proposals. Councilman Peters read a prepared statement into the record. Councilman Peters concluded that he feels he does not have a direct and substantial personal or financial interest in the outcome of the Ritz Carlton hotel approval such as to create a conflict of interest. Councilman Peters stated his interest in the hotel Lenado and Sardy House does not prevent him from exercising reasoned and balanced judgement in the best interests of the city. Councilman Peters said all actions take to date and in the future have been and will be based on the information presented and his opinion of what is in the public interest and not on any perceived benefit to him. 7. Councilman Peters said he recalls allocating $12,000 to Hallam lake for a tree planting program. This has not made it into the 1990 budget. Councilman Peters requested Council allocate this out of the land fund for 1990. Mayor Stirling, Councilmembers Tuite and Gassman all remember allocating that $12,000. Mayor Stirling requested staff research this. Cindy Wilson, finance director, told Council she will put this into the next appropriation ordinance. 8. Councilman Peters moved to put on the January 22, 1990 agenda the proposal from Jim Kent, SRM, to represent the city and county in NEPA mitigation efforts to try and achieve a light rail system in the Rio Grande right-of-way corridor; seconded by Councilman Crockett. All in favor, motion carried. 9. Mayor Stirling requested Council schedule a study session with the police department on manpower, safety and service. Council scheduled this for January 15 at 6 p.m. and moved the goals work session to February 5. The Wheeler Opera House Board has also requested a work session. Council scheduled for this January 29 at 5 p.m. 10. Mayor Stirling said staff indicates they will be doing tenant finish in the parking garage and that the ACRA is interested in taking that space. Mayor Stirling asked if it is the intention of the ACRA to vacate the Lift One space. Bob Gish, city engineer, 3 Regular Meetinct Aspen City Council January 8, 1990 told Council he does not have a firm commitment from the ACRA. Spence Videon, ACRA, told Council they would prefer to move the entire ACRA to the new parking garage but a lot depends on the cost of the move and the number of telephone lines available. 11. Mayor Stirling said there has been an informal request to include a ski museum in the new library. Chuck Vidal said the library board does not feel the new library would be an appropriate site for this ski museum. 12. Mayor Stirling brought up the neighborhood advisory committee for the pedestrian trails and walkway plan. Amy Margerum said they are trying to get a representative from each neighborhood. Staff has received 14 letters of interest. Ms. Margerum said she intends to forward these to Council and have them chose the members of the committee. Councilmembers Gassman, Peters and Mayor Stirling said the Council should appoint the members. 13. Mayor Stirling said the Maroon Creek hydropower has been shut down until March because of a lack of water. Mayor Stirling asked if the pro formas took into consideration this would not be operating. Bob Gish, city engineer, told Council the proposal did show this would be down for 3 or 4 months. 14. Mayor Stirling said there is a non-compliance hearing on the Aspen Mountain Lodge January 17, 1990, which will be a continued hearing. 15. Bill Efting told Council if they would like a site visit of the parking garage to let staff know. 16. Bill Efting, acting city manager, reported the snow melter is not in operation currently as the staff has caught up on snow melting. 17. Bill Efting, acting city manager, told Council staff has received a bill from $11,277 from the title company on the parking garage. Efting reminded Council any change over $10,000 has to come back to Council for approval. Efting told Council there is money in the contingency for this. 18. Bill Efting, acting city manager, requested a study session with Council and the Commissioners after the meeting with the Harvard Design Group January 18 at 6:30 p.m. 19. Councilman Gassman said January 17 at 3 p.m. the housing authority is having a meeting at Truscott Place to start discussing goals and priorities and revising the guidelines. Councilman 4 Regular Meeting Aspen City Council January 8, 1990 Gassman said Council has raised several issues, like housing utilization and priorities, which he will bring up. CONSENT AGENDA Councilman Gassman moved to approve the consent agenda as amended; seconded by Councilman Peters. The consent agenda is: A. Minutes - December 11, 18, 1989 B. Attorney Contract - Fred Gannett C. Liquor License Renewals - Crossroads, Charlemagne, Shooters D. Resolution #4, 1990 - Polling Places Special Election E. Rio Grande/Hallam Lake Agreement F. Hadid Aspen Holdings Request to Sponsor Rezoning of Bavarian Inn All in favor, motion carried. ORDINANCE #64, SERIES OF 1989 - Golf Course Pro Shop Lease Bill Efting, acting city manager, pointed out that Aspen Sports has agreed to go with electric carts. The city's costs will be to get electricity to the building. There may already been that capa- bility. Mayor Stirling opened the public hearing. There were no comments. Mayor Stirling closed the public hearing. Councilman Crockett moved to adopt Ordinance #64, Series of 1989, as amended on second reading; seconded by Councilman Tuite. Roll call vote; Councilmembers Peters, yes; Gassman, yes; Tuite, yes; Crockett, yes; Mayor Stirling, yes. Motion carried. ORDINANCE #76, SERIES OF 1989 Mayor Stirling opened the public hearing. There were no comments. Mayor Stirling closed the public hearing. Councilman Crockett moved to adopt Ordinance #76, Series of 1989, with conditions 1, 2, and 3 on second reading; seconded by Councilman Tuite. Roll call vote; Councilmembers Gassman, yes; Peters, yes; Crockett, yes; Tuite, yes; Mayor Stirling, yes. Motion carried. ORDINANCE #77, SERIES OF 1989 - Pitkin Row Subdivision Exemption Leslie Lamont, planning office, pointed out that the language in condition #3 that the subdivision exemption agreement will be filed with the city attorney which cannot be altered, deleted or amended 5 Rectular Meeting Aspen City Council January 8, 1990 without the express written consent of the city, and that these units shall be deed restricted to six month minimum leases. Ms. Lamont told Council the city attorney's office felt to include this in the covenants with the condominium declarations would be fine. Mayor Stirling opened the public hearing. There were no comments. Mayor Stirling closed the public hearing. Councilman Peters moved to adopt Ordinance #77, Series of 1989, on second reading; seconded by Councilman Tuite. Mayor Stirling said that one block south there are some condo- miniums without six month rental restrictions because of their location and that they are really in a short term zone. Mayor Stirling asked if Council is interested in deleting the six month rental restrictions on this building. Ms. Lamont said this is not something the applicant pursued. Bil Dunaway pointed out these duplexes replaced a series of houses occupied by permanent resi- dents. The duplexes on Hyman replaced no housing. Roll call vote; Councilmembers Tuite, yes; Gassman, yes; Peters, yes; Crockett, yes; Mayor Stirling, yes. Motion carried. ORDINANCE #78, SERIES OF 1989 - Historic Designation 127 East Hallam Roxanne Eflin, planning office, told Council there are no changes from first reading. This will be the 102 landmark designation. Ms. Eflin said staff is also recommending the $2,000 designation grant. Mayor Stirling opened the public hearing. There were no comments. Mayor Stirling closed the public hearing. Councilman Gassman moved to adopt Ordinance ##78, Series of 1989, on second reading; seconded by Councilman Tuite. Roll call vote; Councilmembers Crockett, yes; Gassman, yes; Tuite, yes; Peters, yes; Mayor Stirling, yes. Motion carried. Councilman Gassman moved to approve the $2,000 historic designation grant to 127 East Hallam; seconded by Councilman Tuite. All in favor, motion carried. Councilman Gassman asked if these grants do any good. Ms. Eflin said they do good. This is the seventh grant this year and they do go into architectural fees or maintenance. 6 Regular Meetinq Aspen City Council January 8, 1990 ORDINANCE #79, SERIES OF 1989 - Kraut Lot Split Kim Johnson, planning office, told Council this lot split complies with all the code requirements. Mayor Stirling opened the public hearing. There were no comments. Mayor Stirling closed the public hearing. Councilman Peters moved to adopt Ordinance #79, Series of 1989, on second reading; seconded by Councilman Gassman. Roll call vote; Councilmembers Tuite, yes; Gassman, yes; Crockett, yes; Peters, yes; Mayor Stirling, yes. Motion carried. ORDINANCE #81, SERIES OF 1989 - Increase Sales Tax .45 Percent Councilman Peters suggested an additional use for this money might be affordable housing for kids, day care centers. "Day Care Center" can be added to both the Ordinance and to the ballot question. Councilman Peters said he feels day care fits in with the overall question of affordable living in Aspen. Councilman Tuite said the cost for licensed child care is expensive. Councilman Tuite said this money could be made to support the physical plant. Mayor Stirling opened the public hearing. Phoebe Ryerson said the present day care facility at the community center may be in a threatened condition and it behooves the city to look into this. Richard Roth said he favors the tax increase; there is no money available to build affordable housing. Roth said this is desperately needed. He is in favor of having this in effect for 10 years. Roth told Council he also supports the inclusion of day care. Roth said he would like Council to consider increasing the food rebate to $60 so this increase does not impact local people as much. Mary Martin asked how much money this would generate. Mayor Stirling said about $900,000 and the ordinance states the monies shall be expended to create public or private affordable housing opportunities within Aspen and Pitkin county. Rachel Richards said the city has to have revenues for affordable housing in order to start making an impact. Ms. Richards said she favors this tax and favors the inclusion of day care. Lee Ambrose said he does not have a problem with this tax; however, there seems to be a general distrust of the free enterprise system. Ambrose said he would like to see something that gives incentives to the private sector to create affordable housing and/or day care. Ms. Stuller pointed out the language does state "public or private 7 Regular Meeting Aspen City Council January 8, 1990 affordable housing opportunities", which was designed to be an incentive or to give the potential for cooperation. Lowell Nelson asked if there has been a projection for the loss of revenue should the fur ban ordinance be passed. Fred Peirce said there has been nothing that indicates how this money would be earmarked, where it would be spent, how much is expected to be generated, what kinds of projects it would be spent on, what the current funds are available for affordable housing. Councilman Peters said the city attorney's office is actively looking at 16 affordable housing projects. Councilman Peters said he is looking for a more pay as you go approach rather than relying entirely on bonding. Councilman Peters said this is a fiscally conservative approach and would allow projects to be more afford- able. Councilman Peters pointed out to make the Marolt project affordable will take an extra subsidy from the city besides the bond money. Councilman Crockett said the city now has to go onto the market and buy land for affordable housing projects. Council- man Crockett said the city needs the ability to be able to seize the opportunities when they become available. Mary Martin said the list of properties Council is looking at for affordable housing should be available to the public. David Myler, city attorney's office, said he is not anxious to discuss the properties the city is looking at for obvious reasons. Myler said before any acquisi- tions are made, he will have to bring the terms and contract to Council. Mayor Stirling said the city is competing in the open market with everyone else. Ms. Stuller said negotiations for acquisitions are privileged and are as a matter of law. Mayor Stirling closed the public hearing. Councilman Peters moved to adopt Ordinance #81, Series of 1989, as amended; seconded by Councilman Crockett. Councilman Tuite asked for c used for historic structures down the development rights. legislation feels that is w~ said the primary purpose of there is an opportunity to cr structure, that could achievE said there is an 8 cent ceilii it would only leave about .O1! city has not yet analyzed all last 6 months. Mayor Stirlir estate transfer tax for affor larification if this money could be in town that the city wants to buy Ms. Stuller said the sponsor of the thin the intent. Councilman Peters this is for affordable housing. If 'ate affordable housing in a historic two things at once. Mayor Stirling g on sales tax. If this were passed, cents left. Mayor Stirling said the the work they have been doing in the g said there is a new graduated real ~abl P hnt~~i ncr_ ThA ri tv hac nnt- r7nno a cooperative program with the county yet. The city is working on scattered site legislation, waiving tap fees on affordable housing 8 Regular Meeting Aspen City Council January 8, 1990 projects, buying down existing rents on smaller project. Mayor Stirling said Council needs to evaluate all this progress and do an assessment of the employee housing programs. Mayor Stirling pointed out the city needs money for transportation, air quality, highway 82 and if the full .45 is used for employee housing, it will deplete the last penny. Councilman Crockett said the city has not done enough to generate new affordable housing units. Roll call vote; Councilmembers Peters, yes; Tuite, yes; Gassman, yes; Crockett, yes; Mayor Stirling, no. Motion carried. BILLINGS CONCEPTUAL PUD (Mayor Stirling left the room due to conflict of interest) . Leslie Lamont, planning office, said this is an application for redevelop- ment of approximately 18,000 square feet on Ute Avenue. This parcel is currently zoned R-6/PUD; the applicant would like to rezone the property RMF/PUD. The applicant is proposing to demolish the existing 12 units, 4 of which are legal, and replace this with 3 free market units and 7 deed restricted unit. Ms. Lamont told Council this is the second step of a 4 step process. P & Z conceptually approved the development plan with conditions. Ms. Lamont told Council the rezoning will not occur until steps 3 and 4; however, this is a threshold issue and Council should address it conceptually. Ms. Lamont told Council under PUD the applicant are requesting variances to vary the height from 25 to 30 feet at certain portions; to vary open space from 35 percent to 29 percent, and to vary side yard setbacks. Ms. Lamont told Council there are two special reviews in step 3, parking reduction and FAR increase to 1.1:1 from 1:1 which is a bonus for providing affordable housing on site. The applicants will be seeking a GMQS exemption for affordable housing on site and condominiumization. Ms. Lamont told Council GMQS exemption for replacement of the legal units on site is a planning director sign off. Karinjo Devore, applicant, told Council her family has lived on this property for 30 years; all of the residents have lived there at least 10 years . The owner decided to sell the property and gave all the tenants notice. The potential buyer was going to replace this with a luxury second home. There was a reprieve because of the multi-family demolition moratorium. Ms. Devore told Council the residents discussed with the planning office how they might save their property and were able to buy the property last November. Ms. Devore said she feels their proposal is the best solution to a very critical problem. 9 Regular Meeting Aspen City Council January 8, 1990 Bill Lipsey showed the plan presented to P & Z which had 4 free market units along Ute avenue. These units are going to generate the ability to finance the rest of the project. Lipsey said the height was 30 feet but the buildings were set back an extra 10 feet. Lipsey said at that point they did not want to put any habitable space below grade because they had not had a chance to do any soils studies. The affordable units are on the back of the site with access off Ute avenue off the road that goes up to the Aspen Alps. There is a 2 story structure with 2 two-bedroom units and a 3 story structure with some studio units of 400 square feet and two-bedroom units of 800 square feet and a resident occupied unit which will be about 1800 square feet. Lipsey said there was sensitivity of the height on Ute avenue and some criticism of parking and pedestrian access to the back of the units. Lipsey said he revised the plans to have 3 free market units on Ute avenue with a split level scheme with some habitable space below grade. This allowed the buildings to be dropped to 25 feet in some places and 30 feet in others. The width of the parking spaces for the affordable units was increased. Lipsey said they are requesting some flexibility in the rear yard setback and the side yard setback. Lipsey said the plan was received well by planning and P & Z. Ms . Lamont told Council P & Z did not feel the open space issue was a problem. Ms. Lamont said P & Z was concerned about the setback because of the potential for development behind the Billings property. Councilman Gassman opened the public hearing. Charlie Tarver asked about the parking. Ms. Lamont told Council P & Z wanted the applicants to explore reducing the free market parking if it could help reduce the height. Lipsey said he is studying this; it is not an easy solution to remove one parking space and expect the height of residential space will drop. Ms. Devore told Council currently there are 2 parking places at the project; this proposal is for 16 off-street spaces. Molly Campbell, Gant, said when the Gant was built in 1974, Council then tried to disincentivize the auto and granted 105 parking places for 140 units. Parking over there is very difficult. Ms. Campbell said a substantial amount of parking has been eliminated on Ute avenue. Pam Cunningham, Aspen Alps, told Council the Board is generally very much in favor of the project; however, they are concerned about the height and setback variances. Ms. Cunningham pointed out no one currently maintains the Aspen Mountain road. Rick Neiley, 10 Regular Meeting Aspen City Council January 8, 1990 representing the Black Swan, told Council the owners have concerns regarding the extent of this redevelopment. Neiley said the project may be over sized for this site. Neiley said there may be some potential negative consequences. There are currently 4 legal units with 12 legal bedrooms; the applicants are proposing 10 units and 24 bedrooms. The applicants are seeking reductions in setback, open space, increase in height and an increase in FAR. Neiley said this project addresses some of the city's goals regarding housing; however, it may be too much for the site. The applicants should consider a reduction in some features of the site so that it is less intrusive on the neighborhood. Bill Hewitt said he feels there will be a parking problem whether these are part time residents or not. Hewitt said he does not feel Council or P & Z should make up new rules when there are rules for this applicant to follow. Hewitt said the project is too big and should be scaled down. The set of rules in the community should apply to everybody. Councilman Gassman said this is a PUD, which allow some things to be varied. Ms. Lamont told Council the RMF zone allows a FAR of 1:1. A special review allows in the RMF zone with affordable housing on site an increase in floor area of 1.1:1. This does not represent anything outside the existing code. Mary Gleason, 861 Ute avenue, told Council she favors this project. Councilman Gassman closed the public hearing. Councilman Peters said he favors this project and feels is an appropriate use of the site. Councilman Peters said he feels it is great someone would come forward with a project that closely resembles the affordable housing zone district but is doing it without the AH zone. Councilman Peters said he supports the rezoning. This property is right next to the LTR district, which has a bigger density. Councilman Peters said he would like the applicants present an 1/8" scale massing model. Councilman Tuite said he cannot think of a better project in which to allow some variances. Councilman Tuite pointed out these height variances would not cut off any views of the mountain. The project is trying to generate as much employee housing as possible. Councilman Crockett said he feels this is an excellent application of a PUD. Councilman Gassman said this project is being proposed without any public subsidy and is the type of project Council hoped would happen when they started talking about an affordable housing zone. Councilman Gassman moved to approve the conceptual PUD for the Billings affordable housing development plan with conditions recommended by P & Z; seconded by Councilman Peters. 11 Regular Meeting Aspen City Council January 8~ 1990 Ms. Lamont pointed out the applicants have already increased the width of the parking spaces to 8.5 feet so condition #2 can be eliminated. Ms. Lamont said condition #3 addresses no habitable space below existing grade and their engineer has revised his recommendation. Ms. Lamont said she would like this condition subject to evaluation and approval by the engineering department. Condition #10 should have added "gas log fireplaces" shall be certified. Ms. Lamont told Council she is going to replace conditions #11, 12, 13, and 14 will be one condition stating, "The owner shall provide an approved and recorded copy of the deed restriction of the affordable units subject to review and approval by the housing authority". Councilman Peters said he would like to add a condition that the applicants provide a massing model of 1/10" to the foot scale. Councilman Gassman asked about the Aspen Mountain road and if this can be included in the Ute avenue improvement district. Councilman Gassman said he would like to see the ownership of and maintenance of the Aspen Mountain road by research added into condition #4. All in favor, motion carried. CITY CLERK REPORT ON RECALL PETITIONS City Clerk Kathryn Koch reported to Council she had received recall petitions for Councilmembers Frank Peters, Steve Crockett, Michael Gassman and Mayor Bill Stirling December 22, 1989. By city ordinance, the city clerk has 15 days in which to certify these petitions, which is January 8, 1990. Ms. Koch told Council the 4 petitions contain the required number of signatures, 532 for Mayor and 511 for Councilmembers. Ms. Koch told Council Ordinance #6, 1974, allows for a protest from any registered voter. Ms. Koch said she has spoken to two groups about protest of these petitions and may have to revoke her certificate of sufficiency of these petitions if a protest is filed by January 18, 1990. Ms. Koch recommended Council schedule the recall election 60 to 90 days and if there is to be a protest hearing she will advise Council of that at the first meeting in February and they can reschedule the election. Councilman Gassman moved to adopt Resolution #3, Series of 1990, setting a special recall election March 13, 1990; seconded by Councilman Peters. Councilman Peters agreed the recall election should be as soon as possible; however he would prefer to see it later in March. The city has a major election in February with a lot of ballot questions and people should be able to focus on these issues. 12 Regular Meeting Aspen City Council January 8, 1990 Mayor Stirling said he would like to accommodate the people who made the effort on the recall and have the election as soon as is legally possible, which is March 13, 1990. Mayor Stirling suggested moving the February 13th election to March 13th and combining the two elections. This would cost less money and would make it more convenient for the voters. Councilman Peters said he does not want to prolong the February 13th election. People have been expecting this election to happen for a couple of months. These issues should not be crowded with recall issues. Councilman Crockett said he does not support putting the two elections together. Councilman Crockett said he feels March 13 may be too soon after the February 13th election. Councilman Gassman said he would like to leave the February election scheduled for February 13th. There are some time concerns with issues on the February 13 election, and the issues are important to the community. Councilman Gassman said people should be able to count on that election. Councilman Gassman said the recall was not his idea and he is willing to do what the statutes require to put it to a vote. Councilman Gassman said there are different ways that communities can work. One way is that everyone is in it together. Councilman Gassman said as long as it is working that way he is willing to listen to what anyone has to say. Councilman Gassman said he feels the recall petitioners took a very different course which is mean spirited and says they cannot talk to Council any longer. Mayor Stirling moved to allow public comment. Motion DIES for lack of a second. All in favor, motion carried. RESOLUTION #1, SERIES OF 1990 - Ballot Issues Sandy Stuller, city attorney's office, told Council she was asked by the city's bond counsel to insert a recital at the end of the resolution that if this resolution is inconsistent with Resolution #40, which set the election, that this resolution will prevail. Ms. Stuller said this is because the Marolt bond issue question is different in this resolution. Question #1 is the issuance of a general obligation bond not to exceed $6,000,000 for the purpose of constructing and equipping a housing facility on a portion of the Marolt/Thomas property. Councilman Peters said he would like to modify the question to allow apartment-style as well as dormitory-style. Council agreed to language, "the housing project shall consist of 120 housing 13 Regular Meeting Aspen City Council January 8, 1990 units". Jim Adamski requested this also say "not to exceed 120 housing units". Council agreed. Mayor Stirling suggested the title be amended to read, "In order to insure an increasing supply of affordable housing, shall the city of Aspen issue " Councilman Gassman moved to approve the wording of question #1 as amended and place it on the February 13th ballot; seconded by Councilman Peters. All in favor, motion carried. Question #2 is a proposal to rezone and subdivide 5 acres owned by the city at the base of Red Butte adjacent to the West Aspen subdivision for the purpose of developing lots for affordable housing purposes or to sell, lease, exchange or otherwise dispose of such lots for affordable housing or open space purposes. David Myler, city attorney's office, told Council his research shows this to be a gift to the city by the developers of filing #1 and #2 of West Aspen subdivision in 1971. Myler said the subdivision was approved by the Commissioners but the gift of land was to the city prior to annexation. Myler said there is nothing of record connecting the gift of land to the subdivision or as open space. Myler said the gift was about 100 acres going over the butte to the northeast side. Councilman Gassman said he thinks this is a good project and putting it on the ballot was getting authorization to do some planning on the land. Councilman Gassman said based on discussions he has had, it is premature to put this on the ballot. There are some legitimate concerns with developing this property. The city should do a plan for the property before the city asks the voters to approve it so that people know what they are voting on. Councilman Gassman moved to not put question #2 on the February 13 ballot and to go ahead and develop a plan for the property; seconded by Councilman Crockett. Mayor Stirling asked the motion be amended to direct staff to work with the Parks Association to establish a survey and the relationship of their 35 acres, and to start an analysis of the wildlife habitat in order to determine whether this would preclude any development at all. Councilman Gassman said these are inherent in his motion. Jim Adamski, housing office, suggested the city have the neighborhood help plan the project. All in favor, motion carried. Question #3 is an amendment to the sixth penny sales tax ordinance limiting the use of sixth penny sales tax revenues to parks, trails and open space uses. Mayor Stirling said this was proposed to Council by the Parks Association. Councilman Tuite said this 14 Regular Meeting Aspen City Council January 8, 1990 amendment would be for future revenues. This would enable the city to use money already earmarked for restoration of historic buildings. Councilman Peters moved to place the sixth penny amendment on the February 13, 1990, ballot; seconded by Councilman Tuite. All in favor, motion carried. Councilman Peters moved to put question #4, the .45 percent sales tax on the ballot; seconded by Councilman Crockett. All in favor, Motion carried. Mayor Stirling circulated a proposed change for the language of question #5, authorizing the adoption of Ordinance #70, 1989, prohibiting the sale of furs. Mayor Stirling read "AUTHORIZATION TO PROHIBIT THE SALE OF FURS" "Shall the City Council adopt Ordinance #70, 1989, which prohibits the commercial sale of furs of wild animals within the city of Aspen? This Ordinance will take effect one year from the date of its adoption. This Ordinance does not prohibit the wearing of furs nor does it prohibit the sale or wearing of furs from domestic animals. Whereas the City of Aspen has previously shown its concern for the cruelty and dangers of the leghold trap by the adoption of Ordinance #10, 1986, which prohibits the use of the trap and Ordinance #56, 1986, which prohibits the sale of furs from animals caught in leghold traps and whereas it has become clear that even experts cannot know with any certainly the source of furs offered for retail sale and whereas ranched fur bearing wild animals suffer not only cruelty and death but cruel and unregulated conditions during their lifetime of unnatural confinement the purpose of this ordinance would be the lessening of suffering of fur bearing animals by prohibiting the commerce in fur products." Mayor Stirling moved to approve question #5 with the above language; seconded by Councilman Peters. All in favor, with the exception of Councilmembers Crockett and Gassman. Motion carried. Mary Martin presented a letter from Dennis Green questioning the legality of this question. Question #6 authorizes the adoption of Ordinance #69, 1989, in one of two forms. This ordinance approves the Aspen Mountain PUD subdivision including the Ritz Carlton hotel. Alternate (a) is the proposal as previously approved by Council subject only to the conditions stated in the first amended restated planned unit development. Alternate (b) is the scaled down proposal by Council which was discussed at the last meeting in December. Amy Margerum, planning director, requested Council add language to alternative 15 Regular Meeting Aspen City Council January 8, 1990 (b) that the applicant would received credit for any reduction in housing which would be associated with the reduction in the size of the hotel. Roger Tomash, representing the applicant, objected to Councilman Peters participating in this proceeding. Tomash said earlier in the proceedings Councilman Peters read a statement indicating he did not feel he had a conflict of interest. Tomash said last Thursday evening Councilman Peters indicated his decision would be based on an opinion he was going to obtain from a lawyer. Tomash asked if the lawyer's opinion could be entered into the record in order to see the basis for Councilman Peters's conclusion. Councilman Peters said this is attorney client privilege which may protect him in a lawsuit filed against his personally. Sandy Stuller said this is appropriate; Councilman Peters solicited his own opinion from his own counsel and if he wishes to exercise attorney client privilege, that is his privilege. Tomash entered into the record the applicants objection to Councilman Peters participation in any matter involving the Ritz Carlton hotel and incorporated by reference all the objections, case citations and facts presented to Council in prior submissions on the subject. Tomash also objected to the interview with Councilman Peters in the January 2, 1990, issue of the Aspen Daily News in which Councilman Peters characterized the applicant's challenge to his ability to sit fairly as "a side show and a diversionary tactic". Tomash said this shows the prejudice and predisposition of Councilman Peters. Councilman Gassman said he would like the question to be clear so that everyone knows what they are voting for and after the vote is over everyone will know what has happened. Councilman Gassman suggested this be more like the form for the highway alignment with an introduction and explanation of both options. At the end there is a space for the voters to select (a) or (b) but not both. John Sarpa, representing the applicant, said they have wording for the ballot. Sarpa said it is difficult to put this on clearly, especially an alternative that has no definition. Sarpa said the way the question is will leave this up for challenge. Sarpa said alternative (b) cannot and will not be built by the applicant, and even if it were built, Ritz would not run it. Sarpa said it is a sham to ask the electorate to vote on something which if they support cannot be accomplished. Sarpa said if this is referred to the electorate, it should be referred in either approve or disapprove the hotel. Sarpa said if the question were to approve or disapprove, and the question lost the applicants would have to reassess the whole situation. Sarpa said the applicants believe 16 Regular Meetinq Aspen City Council January 81 1990 the community will vote yes in favor of a hotel. Councilman Peters said he feels alternative (b) is less onerous than the applicants proposal. Councilman Peters said he feels Council should have a voice in what they deem an appropriate use for the site given the Ossola remand. Councilmembers Crockett, Gassman and Peters were not in favor of public comment. Sarpa passed out proposed wording for alternative (a). Sarpa said the applicants do not believe that the Bavarian Inn can be part of this question. Sarpa said they believe the only way this can be done legally is through a separate ballot question. Ms. Stuller said what the city had said what if the applicants want to add something to their question to enhance the possibility of its passage they could bring that forward. Ms. Stuller said the city cannot guarantee in advance the approval of the Bavarian project. Sarpa said the applicants are asking to voters to tell the city what they would like done with the Bavarian Inn. Councilman Peters asked if the voters can predetermine a result of a rezoning. Council agreed to reconvene Tuesday January 9, 1990, at 5:00 p.m. to complete this question. Question #7 is repealing the GRETT and enacting a 1 percent RETT. Carolyn Christensen told Council the realtors and members of the bar association have been meeting with staff and working on this ordinance. Ms. Christensen said they would like to see the first $100,000 exemption re-instated in this ordinance. This would help the middle income people buying units like Hunter Creek or Smuggler Run. Ms. Christensen said another change they would like is to have the date later than March 1, 1990, which is very close to the election and may not have been disclosed to people who have property under contract. Councilman Peters said he would prefer to only exempt deed restricted housing and make this exactly like the RETT. Councilman Gassman moved to adopt question #7 as written changing the effective date from March 1 to April 1, 1990, including the $100,000 that is in the GRETT and for deed restricted housing; seconded by Councilman Crockett. All in favor, with the exception of Councilman Peters. Motion carried. Mayor Stirling moved to suspend the rules and continue the meeting until 9:30 p.m.; seconded by Councilman Tuite. All in favor, with 17 Regular Meeting Aspen City Council January 8, 1990 the exception of Councilmembers Crockett and Gassman. Motion carried. Question #8 is the entrance to town question. Councilman Gassman said the question should refer to the area of open space in each alternative. Sandy Stuller, city attorney's office, said the graphics will show these open space parcels and their acreage. Councilman Tuite said the highway department has indicated they would not want to pay for the open space but may be willing to offset this with improvements they may not normally do. Tom Baker, planning office, told Council this has been separated into two questions; ones is the authorization to dispose of land under the Charter. Baker said the voters have to be able to vote no on the open space question. Councilman Gassman moved to put question #8 on the ballot as written; seconded by Councilman Peters. All in favor, motion carried. Councilman Gassman moved to adopt question #9 as written with the addition that the acreage involved in each alternative will be shown on the graphics; seconded by Councilman Peters. All in favor, motion carried. ORDINANCE #1, SERIES OF 1990 - Housing Replacement Program Councilman Gassman moved to read Ordinance #1, Series of 1990; seconded by Councilman Peters. All in favor, motion carried. ORDINANCE #1 (Series of 1990) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN AMENDING THE MUNICIPAL LAND USE CODE AS FOLLOWS: REPEAL ARTICLE 5, DIVISION 7 OF CHAPTER 24, HOUSING REPLACEMENT PROGRAM AND REPLACE IT WITH A NEW CHAPTER 18 RESIDENTIAL MULTI-FAMILY HOUSING REPLACEMENT PROGRAM; AMEND SECTION 8 -10 4 (a) (1) (A) (1) , (4 ) AND ( C ) GROWTH MANAGEMENT QUOTA SYSTEM EXEMPTION BY PLANNING DIRECTOR AND AMEND ARTICLE 3 DEFINITIONS was read by the city clerk Councilman Gassman moved to adopt Ordinance #1, Series of 1990, on first reading; seconded by Councilman Peters. Tom Baker, planning office, requested Council schedule a special meeting January 29, 1990 to have the first public hearing on this ordinance. Councilman Peters suggested considering a provision that would increase the replacement percentage if the FAR is under 18 Regular Meeting Aspen City Council January 8, 1990 utilized. Councilman Tuite said he has a problem with the 80 percent build out of the lot. Councilman Tuite said Council was discussing certain square footages where this would kick in. Councilman Tuite said very small lots should be exempt. Roll call vote; Councilmembers Crockett, yes; Tuite, yes; Gassman, yes; Peters, yes; Mayor Stirling, yes. Motion carried. 729/731 CEMETERY LANE SUBDIVISION EXEMPTION Councilman Tuite moved to table this indefinitely; seconded by Councilman Gassman. All in favor, motion carried. RESOLUTION #2, SERIES OF 1990 - Utility Underground District Chuck Roth, engineering department, told Council staff met with the other utility companies last week. Mountain Bell will not pay their own primary undergrounding costs. Roth suggested this may be put into the underground district. Roth said there is about $100,000 left in the electric improvement budget from the $3,000,000 bond. Councilman Gassman moved to adopt Resolution #2, Series of 1990; seconded by Councilman Peters. Person representing Holy Cross told council they are not in agreement with all the areas in the proposed district, like along highway 82 and at the water plant. Fred Gannett, city attorney's office, pointed out this resolution mandates the utility companies to come up with a cost and feasibility report amongst themselves. Gannett said the resolution was drafted to say the utility com- panies will either do this or the city will hire a consultant and do it. Gannett said the details can be worked out between the utility companies. All in favor, motion carried. Mayor Stirling moved to suspend the rules and meet for 5 more minutes; seconded by Councilman Tuite. All in favor, with the exception of Councilmembers Crockett and Gassman. Motion carried. RESOLUTION #5, SERIES OF 1990 - Ute Avenue Special Improvement District Fred Gannett, city attorney's office, told Council Rick Neiley asked staff to draft a resolution, which mimics what the city ordinance allows. Gannett said it will take 5 to 6 months to get the district in place. Gannett said the Council can put the public 19 Reaular Meetina Aspen City Council January 8, 1990 hearing date in April, which will allow the applicants to help fund the cost through the engineering department and to coordinate this with planning and come up with something compatible with the city' s proposed street scape. Councilman Gassman moved to adopt Resolution #5, Series of 1990, with a public hearing date of April 23, 1990; seconded by Council- man Tuite. All in favor, motion carried. Mayor Stirling moved to continue the meeting to Tuesday, January 9, 1990 at 5:00 p.m. with finish the ballot questions; seconded by Councilman Peters. All in favor, motion carried. The meeting is also continued to January 17, 1990 for the non-compliance hearing with the Aspen Mountain Lodge, Resolution #55, 1989. Council left the Council meeting at 10:40 p.m. -' ,/ .; Kathryn S,' Koch City Clerk 20 Continued Meeting Aspen City Council January 9, 1990 Mayor Stirling called the meeting to order at 5:10 p.m. with Councilmembers Peters, Gassman, Crockett and Tuite present. RESOLUTION #l, SERIES OF 1990 - Election Questions Sandy Stuller, city attorney's office, redrafted and circulated a new version of the question regarding the Aspen mountain Lodge hotel and the two options. Crockett option B has a reduction of 63,000 square feet and by re-inserting the 190,000 leads to more understanding of the issue. Mayor Stirling said including the language about the Bavarian Inn, he is concerned about this being a rezoning of the Bavarian Inn through this process and pre-empting the role of the P & Z. Councilman Crockett said the goal is additional affordable housing. There is no telling what could happen to the Bavarian Inn in the future. The applicants are trying to give an assurance that if alternative A is approved, they will contribute X amount of additional affordable housing. Councilman Crockett said that is the spirit and intent of this addition. There could be a better deal in the future, and the language could be more generic that the applicant will contribute and additional number of affordable housing units. Councilman Peters agreed and said the Bavarian Inn question probably distracts from the question which is Ritz option A or Ritz option B. Councilman Peters said the inclusion of the Bavarian in the question seems to pre-prejudice the public hearings on the rezoning of the Bavarian. Councilman Peters said when the city was talking about purchasing the Bavarian Inn, they determined to preserve the lodge and a maximum density application is in conflict with one of Council's goals and previous discussion. Councilman Peters said he would rather see a generic number of affordable housing units to be provided. John Sarpa, representing the applicant, said Council told them they could write their own proposal particularly when the applicant's objected to the city's proposal. Sarpa said Council hopes the citizens will vote for Council's proposal and against the ap- plicant's proposal, which put the applicants and Council in an adversarial role. Sarpa accepted Council's terms and has worked diligently with staff on phrasing of the question. Sarpa said it is a reneging of Council's position to not let the applicant's phrase theirs in their way. Sarpa said Council ought to give the applicants more deference to how the applicants feel, particularly about the Bavarian Inn. Sarpa reminded Council the applicants have already gone on record about the difficulties with option B; it cannot and will not be built. Sarpa said if option B is voted in there will be nothing but legal confrontations, there is the old Aspen mountain approval, the ice rink and properties will come back. Sarpa said if Council wants this clear, all that ought to be put in option B. Sarpa said when Council has the audacity to 1 Continued Meeting Aspen City Council January 9, 1990 rewrite the applicant's alternative A and then tell the applicants how to handle the Bavarian Inn, this is out of line. Mayor Stirling pointed out on December 18, 1989, the city attorney told the applicants they had the right to draft their ballot question. Mayor Stirling said this was a unilateral statement from the attorney, not a directive from the City Council. Mayor Stirling said in alternative A he has a problem with using a specific reference to a property like the Bavarian Inn. Sarpa told Council the applicants have looked carefully at how to preserve the public process necessary in a zoning effort. Sarpa told Council the applicants worked with the city attorney to come up with this wording. Mayor Stirling suggested not referring to the Bavarian Inn and to state, "facilitate a land use application for affordable housing suitable for X number of employees". Sarpa said they are not willing to do this and object to putting the number of employees in the question. Sarpa said the applicants do not feel it is appropriate to put the number in the ballot question and that the Bavarian Inn ought to be left in the question. Bob Hughes, representing the applicant, said the Bavarian Inn is put in the question to make the voters aware this is part of the proposal. Hughes said this has to be done in the format they set up for a variety of legal and technical reasons. Councilman Peters said he never intended to give the applicants carte blanche to word the ballot questions. Councilman Peters said the applicant's ballot question is full of editorial comments and is inappropriate. Councilman Peters said what he had intended was to allow the developers to add amendments to their own proposal if they so chose. Councilman Peters said these amendments would have to be attractive to him; housing is a positive amendment. Councilman Peters said he expected the developer to put a number of affordable units or persons to be housed. Councilman Peters said he feels the site specific is inappropriate. Sarpa said if the applicants feel they have a more specific proposal, why shouldn't it be in the ballot question. Sarpa said putting on the ballot building homes for 100 people is not as meaningful as having a specific piece of property under contract. Councilman Peters said this type of proposal is what the applicants should convey during the campaign. Councilman Peters said Council will have to review the housing proposal. Mayor Stirling said the city attorney did give a direction to the developer to craft their own ballot language. The Council did not object to that. Mayor Stirling said Council has an obligation to work with the language presented by the developer. Councilman Tuite said the developers are making a specific offer about affordable housing and that the offer be put in the ballot question the way it is worded. Councilman Crockett said the goal is 2 Continued Meetina Aspen City Council January 9, 1990 affordable housing and he cannot support any reference in the ballot question to Bavarian Inn. Councilman Crockett said Council has afforded the developer the opportunity to craft their own language. Councilman Crockett said he cannot agree to letting the developer write whatever they want. Councilman Crockett said there is a lot of editorializing in the applicant's question. Hughes said the applicant's position was to adopt Ordinance #69 yes or no. Council decided they did not want to do that and came up with an alternative. Hughes said this proposal is Ordinance #69 as it was adopted on December 18, 1989, with the added bracketed language where the applicants have offered something more. Hughes said their version is not editorializing. Hughes said if Council wants more affordable housing they should put it in their ballot question, not the applicant's. Councilman Gassman said if Council is trying to give voters a choice on the hotel, the question has to say what the choice is. Councilman Gassman said the ballot language by the applicant is their proposal and is what the offer is. In order to give people a rational choice, their wording has to be put on the ballot. Councilman Gassman said it does not do much good to wish that the applicant has proposed something else because they did not. Councilman Gassman said he would like to get both proposals on the ballot in the most neutral way possible. Mayor Stirling said the Council controls the preamble to question #5 and should come to an agreement over alternative A and would like to hear comments on that. Ms. Stuller suggested taking the language in brackets and say, "in additional to affordable housing provided for in previous approval, the developer shall in good faith process and the city shall, to the extent permissible, facilitate a land use application, etc." Ms. Stuller suggested that the ballot question restate what the applicants are offering. Hughes said the applicants have a problem in that the ballot language does not suggest final action by the electorate but authorizes the adoption of Ordinance #69, which can be read that the voters pass it and it has to come back to Council for further action. Mayor Stirling said it is adopted at the election point; it does not come back to Council. Hughes said he does not read the question that way. Hughes said the more clear way to do this is to let the electorate know they are adopting an ordinance. Hughes suggested language stating, "this is the adoption by the electorate of Ordinance #69 in one of two forms, option A or B". Ms. Stuller agreed the question start, "Shall the electorate adopt Ordinance #69". Mayor Stirling said this was fine with him. Hughes said all Ordinance #69 does is amend an existing subdivision planned unit development. This language implies there is no approval for a subdivision and 3 Continued Meeting Aspen City Council January 9, 1990 there has not been one. Ms. electorate adopt Ordinance #69, forms, which ordinance approves subdivision invalidated by court Stuller suggested, "Shall the Series of 1990, in one of two the amended Aspen Mountain PUD order" be the title in capitals. Roger Tomasch said it would be prejudicial to them to have "invalidated by court order" language in the title to the question and not in their question. Tomasch said if the city is going to raise this issue in the ballot, then the applicants are entitled to say in their alternative that it cures that problem. The city is introducing the problem and the applicants should be able to say they are curing it. Councilman Peters said he prefers that language in neither alternative rather than in both. ~~ Council agreed on the title reading, Shall the electorate adopt Ordinance #69, Series of 1990, in one of two forms, which ordinance approves the amended Aspen Mountain PUD subdivision". Mayor Stirling said the language about the court order can be deleted in all places. Tomasch said the applicants object to this entire process. Tomasch incorporated all comments made previously about this. Tomasch stated the applicants are reserving all rights to make these arguments. Faced with what they are faced with, the applicants are present to try and work with Council on this ballot language. Tomasch said to the extent the applicants are indicating they are willing to compromise, the applicants are doing that given the fact they have no alternative. Tomasch said the applicants have always maintained this entire process is inappropriate. Ms. Stuller suggested Council drop the reference to the invalidation. Council agreed with the exception of Councilman Crockett. Option A will read "(Hadid/Ritz-Carlton Proposal)". Council would like to add, "Shall the Aspen Mountain PUD/Subdivision a 5 lot subdivision including 190,000 square foot hotel on lot 1 be approved subject to the following:". Hughes objected to the inclusion of the 5 lot subdivision of 190,000 square feet on lot 1. Perry Harvey said the amendment that is being brought to the electorate does not include all 5 lots. Galena Place is covered by a separate amendment; Top of Mill is only in the conceptual stage; phase two is under a separate amendment. Harvey said this should only include the Ritz Carlton hotel. Ms. Stuller said the PUD agreement refers to all 5 lots but postpones the phasing in terms of detailing. Mayor Stirling recommended not putting the 5 lot subdivision including 190,000 square feet in option A. Mayor Stirling said Council can work this into option B if they are interested in that. Councilman Crockett said he is interested in stating the facts. Sarpa said if Council puts in that comparison in option B, the applicants would like to compare the way this compared to the original PUD, showing the reduction from the previous approval. 4 Continued Meeting Aspen City Council January 9, 1990 Hughes said this comparison is like telling half the story. Councilman Peters said if there is one significant issue surround- ing this hotel, it is its size, which is a, simple statement of the facts. Harvey said 128,941 square feet listed in option B has no bearing to any plan, any site design, any elevations, any room count, anything. Harvey said the numbers in option B are totally out of the sky, yet Council is saying they have to have numbers that are totally accurate in option A. Council is putting contrasting numbers in so that it looks good to the voters, but it is deceiving. Harvey said Council owes it to the voters not to be deceiving. Mayor Stirling moved to not include 190,000 square feet or reference to number of lots in option A; seconded by Councilman Tuite. Councilman Peters said that is the essence of what is being discussed. Councilman Crockett agreed this is critical informa- tion. Councilman Gassman moved to adjourn into executive session to discuss litigation; seconded by Councilman Peters. All in favor, motion carried. Council reconvened in session at 6:25 p.m. Mayor Stirling read the language: "Option A(Hadid/Ritz Carlton Proposal, Shall the Amended Aspen Mountain PUD/Subdivision be approved subject to the following: (1) Ordinance 69 is hereby adopted in the same form as Resolution 29, Series of 1989, by which the Aspen City Council previously approved the amendment of the Aspen Mountain Subdivision/PUD (including the Ritz-Carlton Hotel)." The new (2) would read, "In addition, the developer shall, in good faith process and the city shall, to the extent permissible, facilitate and land use application for affordable housing suitable for the 8/10ths of an acres on Main street known as the Bavarian Inn property". Mayor Stirling said the question will be consistent using "amended Aspen Mountain PUD". Tomasch said the context in which the applicants find themselves is that the Council approved an amendment to the Aspen Mountain subdivision by Resolution #29, 1988. A judge found that that resolution should have been put in the form of an ordinance and remanded with instructions to take appropriate action. Tomasch said it is their position that the appropriate action would be to enact the substance of Resolution #29 as an ordinance, thereby curing the technical defect. Tomasch said if Council is unwilling to do that, there are only two fair alternatives. One is to go ahead with the election with the wording as the applicants have written it, "Should Resolution #29 now be done as an ordinance". Tomasch said that is the only appropriate question in the alterna- tive A/B scenario. Tomasch said the applicants think they are 5 Continued_Meetinct Aspen City Council January 9, 1990 entitled to this as the spirit of the judge's remand. Tomasch proposed the applicants be allowed to go to the electorate with the question they phrased as alternative A and the Council can go with the proposal they want. Tomasch said to force the applicants to an election but not to allow them the question they feel they are entitle to deprives them of any kind of due process. Tomasch said if Council is determined not to give them the language the applicants think best expresses what the judge asked to have done, which is the first sentence in their proposal. Mayor Stirling said he would be willing to accept the applicants proposed language. Councilman Peters said one of the arguments is that Council adopted the Aspen Mountain PUD by ordinance exactly as it was before. Councilman Peters said the first few lines in the applicants proposed language express legal opinions, which he would like to stay away from. Councilman Peters said he is willing to put on the ballot the rubber stamp reapproval of the Aspen Mountain PUD without any other amendments. Councilman Peters said the city is complying with the judge's instructions by putting the complete reconstruction of the PUD on the ballot as well as the question the city thinks should be on the ballot given changed conditions. Councilman Peters said the chance for the voters to vote on the original development application is on the ballot. Councilman Crockett said the court remanded this application to Council to take appropriate action. Councilman Crockett said it is critical for the city to stay within the boundaries of what they consider to be appropriate action. Councilman Crockett said he does not feel editorializing or legal opinions in the question are appropriate on the ballot. Ms. Stuller said she has never heard the argument that Ordinance #69, 1989 is any different from the approval given in Resolution #29, 1988, except for the form. Sarpa said the applicants feel very strongly about this. Sarpa said if this simply restates what the judge has asked and asks the voters if the Council should adopt by ordinance that which was adopted by resolution, that that be put on the ballot. Mayor Stirling moved to accept the first 1 ine up to the word "Ritz- Carlton hotel" in the alternative A as provided by the developer; seconded by Councilman Tuite. Mayor Stirling pointed out the city attorney told the applicants to draft their approach to this question, presuming the city and the applicant would work together on it. Councilman Crockett said he does not feel the elected officials can give carte blanche. It is not appropriate nor does it serve the public. Councilman Crockett said the questions should be as fair and impartial as possible. Tomasch said neither the city attorney nor the ap- plicant's attorney feel this is a legal opinion. Ms. Stuller told Council she has never read the case to say that the judge was 6 Continued Meeting Aspen City Council January 9, 1990 telling the city to take the 1988 approval and rubber stamp it. Ms. Stuller reminded Council they made the decision at the beginning of the process that they were not j ust going to reaffirm what was done in resolution form and redo in ordinance form. Ms. Stuller said the city took statements from the judge that he found that there was lack of public notice and participation and that the ordinance adoption was not merely a change in form but also invited changes in circumstances. Ms. Stuller said the applicants are proposing a different theory of how to proceed than the city has proceeded to date. Councilman Tuite and Mayor Stirling in favor; Councilmembers Gassman, Crockett and Peters opposed. Motion NOT carried. Councilman Tuite moved to accept #2 in alternative A, "In addition developer shall, in good faith .; seconded by Mayor Stirling. Herb Klein said there is some concern about the Bavarian and the obligation on the part of the city is a very significant. Klein said he feels the language may be prejudicial. Klein said there is a process for the developer to go through. Klein said it is not appropriate to commit the city to facilitate this housing applica- tion. Councilman Peters agreed and said the language is redundant. Councilman Peters said the Council will do everything possible to move the housing application along and to put the burden on Council is unnecessary with Council's track record. Council agreed to strike the language about the city. Sarpa said if they take action to leave language about the city out of alternative A in the ballot question, the applicants request Council deny Ordinance #69. Sarpa said Council has been myopic in what they have been listening to and have not reflected what the applicants came to do. Sarpa said the applicants will not go to an election on that wording as it does not reflect what they are trying to accomplish. Sarpa objected to Council piecemealing alternative A in such a way that it does not reflect a clear option to the voters. Harvey said the applicants want the language in the ballot question about the city facilitating the process because they want the city to work with them on the housing and they want the citizens to know that the commitment is being made by the applicant. Tomasch said the Council and the applicant disagree on what is appropriate action from the court remand. Tomasch suggested there are 3 ways to let the electors decide what is appropriate. The first is for Council to turn down Ordinance #69 and allow the applicants to initiate whatever legal remedies they have. The second is for the applicants to put their wording on the ballot, the city put their wording on the ballot and go to the electorate. The third way is for Council to enact Ordinance #69, let the 7 Continued Meetinct Aspen City Council Januarv 9, 1990 developers initiate their wording for the ballot and meet at the election. Tomasch said Council is not letting the developers give the voters a clear choice because Council is insisting on changing the ballot language proposed by the applicant. Councilman Crockett said the judge remanded this to Council for appropriate action. Councilman Crockett said the issue is whether they want the Bavarian Inn amendment as part of the applicant's alternative. Mayor Stirling said the city is editorializing in their proposal. Mayor Stirling said he does not mind their language editorializing in his previous motion. Mayor Stirling suggested the most efficient and best approach is to let the applicants have their language in A, the city has their language in B. Harvey asked what is wrong with Council saying in alterna- tive A that they will facilitate the process for the Bavarian Inn to the extent it is permissible. Mayor Stirling said Council has voted 5 to 0 to sponsor the rezoning process. Amy Margerum, planning director, said Council already has a stated policy that agrees to fast track affordable housing projects. Harvey said the applicants do not want to short circuit the public hearing process. Tomasch said there is no acceptable compromise that does not use the applicant's language in the first sentence through the words "Ritz-Carlton hotel". Mayor Stirling said alternative 4 is for Council to place their wording on the ballot and proceed, which the majority of Council wants to proceed with. Councilman Gassman moved to reconsider the first sentence wording on alternative A; seconded by Mayor Stirling. Councilmembers Gassman, Tuite and Mayor Stirling in favor; Councilmembers Peters and Crockett opposed. Motion carried. Councilman Tuite moved to approve the first sentence of the applicant's language for alternative A, stopping at the word "hotel"; seconded by Councilman Gassman. All in favor, with the exception of Councilmembers Crockett and Peters. Motion carried. Mayor Stirling asked if the applicant would agree to delete "and the city shall to the extent permissible facilitate". Harvey said he would like it to read, the developer shall in good faith process a land use application for affordable housing under the city's adopted fast track affordable housing process". Councilman Gassman suggested "process a land use application for affordable housing". Mayor Stirling said implied in that is 100 percent affordable housing go to the top of the agenda list. The ap- plicants agreed. Mayor Stirling reiterated the motion, "in addition developer shall in good faith process a land use application for affordable housing suitable for 8/10 acres on Main street known as the Bavarian Inn 8 Continued_Meetina Aspen City Council January 9, 1990 property; seconded by Councilman Tuite. All in favor, motion carried. Tomasch suggestion option B as worded is incomplete as the developer is on record in saying that option B will not be built. Tomasch said to put it on the ballot without stating that does not give the voters the full information. Tomasch said the voters should also be told that if B were to pass and the hotel were not to be built, there is a situation where the developer has given to the city a number of things which he would be entitled to recover or to be paid for, like utility upgrades of $6,000,000, affordable housing, the Koch lumber property, the escrow, the open space commitment would be cancelled. Councilman Peters moved to approve option B as amended; seconded by Councilman Crockett. All in favor, motion carried. Councilman Gassman moved to place question #6 on the ballot; seconded by Councilman Peters. All in favor, motion carried. Councilman Peters moved to place question #7 on the ballot; seconded by Councilman Tuite. All in favor, motion carried. Councilman Tuite moved to adopt Resolution #1, Series of 1990; seconded by Councilman Peters. All in favor, motion carried. Council continued the meeting to January 17, 1990, at 5:00 p.m. for the non-compliance hearing. Council adjourned at 7:20 p.m. n n Kathryn Koch, City Clerk 9 Continued Meeting Aspen City Council January 17, 1990 Mayor Stirling called the meeting to order at 5:05 p.m. with Councilmembers Tuite, Crockett, Peters and Gassman present. ASPEN MOUNTAIN LODGE NON-COMPLIANCE HEARING Sandy Stuller, city attorney's office, previously delivered to Council a revision of Resolution #55, incorporating further findings of earlier meetings, for Council's consideration at this meeting. Ms. Stuller said this resolution contains more support for findings she drafted earlier. This resolution finds Hadid Aspen Holdings in substantial non-compliance with the conditions of approval and advises no other action. John Sarpa, representing the applicant, said he hopes Council and the applicant come to agreement about the facts, and if there is non-compliance found, what the remedies would be. Sarpa reminded Council the applicants presented a response earlier addressing the specific items raised by the city attorney. Sarpa said the applicants feel there are very strong reasons why the applicants are in compliance. Sarpa said he would like Jay Hammond, previous city engineer, to speak to clarify the contents of a letter discussed at the last hearing. Bob Hughes, representing the applicant, said much of their position on how they were not in non- compliance was driven by the letter from Hammond. Hughes told Council his clients proceeded in good faith on that interpretation agreement. Jay Hammond told Council he wrote a letter February 24, 1989, to one of the superintendents of PCL construction. Hammond said he wrote the letter in response to submission of a 90 day schedule of the construction of the hotel dated February 6. Hammond said at the time of submission of that schedule, a PCL representative called Hammond and said their construction staff was looking at the overall schedule for the hotel and was projecting a fall 1990 completion and asked how would city staff respond to that. Hammond told Council staff reviewed the PUD agreement and felt it was somewhat vague and anticipates of spring of 1990 completion. Hammond said staff did not look at the agreement and see an automatic preclusion of the applicant's ability to request an extension to the fall of 1990. Hammond said he responded reacting to the concept of a longer time frame and stated staff did not object to that concept. Hammond said he did not feel the wording stated that staff approved an extension to the fall of 1990. Hammond said the 90 day schedules did not show a completion date but were for 3 month 90 day time frames. Hammond pointed out staff was looking at the 90 day schedules from the point of disruption to adjacent streets and businesses. Hammond said in these schedules, staff had seen some overall slippage. Hughes asked if Hammond's letter could have engendered a belief that everything was all right. Hammond answered it could have; however, the agreement 1 Continued Meeting Aspen City Council January 17, 1990 is clear about who can approve an overall extension. Hughes asked if Hammond had a problem with the pace his clients were proposing to complete the project. Hammond said only he and the planning director were aware of the concept of a fall completion. Hammond said he did not have a concern with that 90 day schedule. Sarpa told Council the applicants were working with staff and at that time were under the belief they had gone to the appropriate officials and had received an answer. Roger Tomasch said Resolu- tion #55 is more of a brief than findings. Tomasch said Council has already passed Resolution #39, which lists the areas the city feels are potential non-compliance. Tomasch said Council should go through the list of findings in Resolution #39 and make a finding on each one rather than just adopt Resolution #55. Resolution #39 lists 6 areas of non-compliance. Ms. Stuller pointed out that Resolution #39 also talks about other elements, like compliance with excavation permits. Ms. Stuller said addendum D to the resolution is the record and subsequent to drafting this there is a January 3, 1990, letter from Bob Hughes and meetings of December 19, 1989, January 4, 17, 1990. Ms. Stuller said the applicants had a chance to the respond to Resolution #39 at the hearing. The purpose of Resolution #55 constitutes a record of the testimony given and the findings based on that testimony. This is not a brief but is a summary of testimony, documents submitted, documents relied on, the references and the history of this application. Councilman Tuite asked about Councilman Peters's testimony. Ms. Stuller said Council does ask questions and the evidence solicited by those questions is part of the record. That is what Councilman Peters was doing. Hughes objected and said it was testimony. Mayor Stirling asked if this resolution is passed, what does the applicant do to get into conformity. Ms. Stuller suggested Council let this rest until after the February 13th election. Ms. Stuller reminded Council the city started this process before the Judge's ruling was received based on the needs perceived by the city to find out what was going on and to make a record. Tomasch told Council the applicants have had a number of conversations with the city attorney about the upcoming election. The city attorney has represented that regardless of the outcome of the election, whichever hotel is decided upon, the applicants will be able to build it and will get all the necessary approvals. Ms. Stuller has represented that if option A is approved by the voters, the city will provide the permission to build that hotel. Tomasch said the electorate could be concerned if Council defers their remedies for non-compliance that they are holding back further means of delaying the hotel. Tomasch said it would be in the best interests to get some definitive resolution at this meeting as to what Council would 2 Continued Meeting Aspen City Council January 17, 1990 want to make in the way of a finding so that there is no suspicion that if the voters vote for one of the hotels that is not the one Council prefers that they will resurrect this matter to protract the proceedings further. Sarpa said if Council does find the applicant in non-compliance, they are prepared to discuss their suggested remedies at this meeting. Councilman Peters said he preferred to postpone action on non- compliance until after the election. Councilman Peters said Council is being asked to plan for a project that has not yet been approved by the voters and has not been ratified by the builder. Mayor Stirling said if option A is chosen, he will do everything he can to implement the process and get it going as rapidly as possible. Tomasch said some of their recommendations for remedy would involve new timing. Tomasch asked if, regardless if option A or B were voted in, would failure to comply with timetables that related to an earlier approval have any relationship to the hotel chosen by the electorate. Tomasch said a threshold issue is what impact would any failure to comply with the old time table have on either of the new hotels up for election. Mayor Stirling said on February 14 a new time table could be set in motion. Ms. Stuller told Council her comments to the applicants were that the ballot questions was framed in the form of an ordinance approval, which constitutes development approval for the project. Ms. Stuller told Council getting into a dialogue about the repercussions of this vis a vis the election is a waste of time. Ms. Stuller said she cannot think of all the alternative ways this can be handled. Ms. Stuller said the only thing the city has brought forward is a hearing on non-compliance. Ms. Stuller said Council is entitled to limit their actions to that deliberation. Ms. Stuller said once the election establishes which hotel project will be brought forward, a schedule is established. Councilman Crockett moved to adopt Resolution #55, Series of 1989, with the changes incorporated and all the addenda and new ref- erences in addenda D; seconded by Councilman Peters. Councilman Gassman said he feels the way to remedy this is to come up with a new schedule, and which hotel is approved will have an effect on the schedule. Councilman Gassman said he would put this discussion off until after February 13th. Councilman Peters agreed. Councilman Tuite agreed. Mayor Stirling said staff should bring back the revised schedule at the February 26, 1990, meeting. Sarpa said the applicants recognize the difficulty of being specific with a remedy because they do not find alternative B as an alternative. Sarpa asked the impact of finding non-compliance at this meeting if option A wins at the election. Ms. Stuller said she cannot tell what the impacts are until Council undertakes to 3 Continued Meeting Aspen City Council January 17, 1990 impose some remedies or sanctions. Councilman Peters said the discussion tonight is non-compliance and on what issues. Council agreed to meet with the applicants after the election and work out a schedule. Tomasch asked if Council believed it is within their power to extract some penalty over and above what they otherwise would have set for the schedule on option A because of the non- compliance; could the schedule include some penalty because of the non-compliance. Councilman Crockett said he wants to discuss this after the election. Councilman Crockett said he is not ready to commit to anything until after the voters have responded. Mayor Stirling said to establish a new schedule is what he sees as compliance. Councilman Gassman said he does not want to get into the specifics of the remedy for compliance. Councilman Gassman said he wants to put this to the electorate to get the process over with. Council- man Gassman said his intent is that if the town wants option A, that is what they should get in a timely fashion. Councilman Gassman said he has no intent to obstruct that. Councilman Peters agreed. Mayor Stirling said Council could have put a stop work order on the project and decided not to do that. All in favor, motion carried. Tomasch objected to Councilman Peters participating for the reason stated previously. Council adjourned at 5:45 p.m. Kathryn Koch, City Clerk 4