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HomeMy WebLinkAboutminutes.council.19910624Aspen City Council Regular Meeting June 24, 1991 PROCLAMATION - Native American Indians 1 CITIZEN COMMENTS 1 COUNCILMEMBER COMMENTS 2 CONSENT CALENDAR 5 LIQUOR LICENSE RENEWALS - 5 LIQUOR LICENSE TRANSFER - Silve r City Grille 5 SPECIAL EVENT PERMITS - Eagle's Club; Aspen Theater Co. 6 REQUEST TO MODIFY PREMISES - Le gends of Aspen 6 ORDINANCE #25, SERIES OF 1991 - RFTA GMQS Exemption 6 ORDINANCE #26, SERIES OF 1991 - Aspen Mountain Lodge PUD Section M Amendment 7 ORDINANCE #24, SERIES OF 1991 - Newspaper Racks 7 ORDINANCE #18, SERIES OF 1991 - Institutional Controls Smuggler Superfund Site 8 CONCEPTUAL SPA RIO GRANDE 2 0 ORDINANCE #21, SERIES OF 1991 - Electrical Code Revision 20 ORDINANCE #27, SERIES OF 1991 - West Hopkins AH Rezoning 20 ORDINANCE #28, SERIES OF 1991 - PUD Amendment Clarendon 21 ELECTION OF MAYOR PRO TEM 22 COUNCIL APPOINTMENTS 22 ~. 23 Aspen Citv Council _____ Regular Meeting June 24, 1991 Mayor Bennett called the meeting to order at 5:15 p.m. with Councilmembers Richards, Reno, Peters and Pendleton present. PROCLAMATION - Native American Indians Mary Martin told Council she is chairman of a benefit sponsored by the Smithsonian Institute. The activities will be held in Ashcroft and will be celebrating native Americans. Mayor Bennett read a proclamation declaring August 18 to 25 the Aspen celebration week of Native Americans. Council presented the proclamation to Ms. Martin CITIZEN COMMENTS 1. Jeff Yusem, representing the Rotary Club, said in the past they have given money to local organizations. The Rotary Club has decided they would like to do a capital improvement project on a Rotary Park. Yusem said there is not a larger park in Aspen for people to have large events. Yusem said he has been working with Carol O'Dowd, city manager, and George Robinson, parks department, on the property next to Iselin park. Yusem said they would like to have this designated as an area to develop a Rotary park. Ms. O'Dowd said staff would like the ability to work on this proposal and bring it back to Council. Yusem told Council the Rotary club will be doing the work and donating the labor. Councilwoman Pendleton said she would like to see something closer to town. This area gets a lot of use from the schools. Yusem said some ideas are to have a tot lot behind the pool, picnic areas toward the river, volleyball courts. Yusem pointed out that nothing in town is really large enough for this kind of park. Councilwoman Richards said she would like to see how this meshes with the long range comprehensive plan. Councilman Peters said this review should start in the planning office so that the Rotary club does not spend a lot of money on something that is not going to get approved. Amy Margerum, planning director, told Council she can review this quickly. The land is owned by the city but is located in the county. Staff will put together the long term parks plan and work up preliminary comments for Council. 2 . Hal Clifford asked i f the Ordinance # 2 4 , newspaper racks , wi 11 be tabled. USA Today has not been able to get someone from their staff to be present for the hearing. Jed Caswall, city attorney, said Council will take testimony at the public hearing and can agree not to take final action until another date. 3. Mickey Herron, representing the applicant for Ordinance #17, Tagert lot split, requested Council table this applications. Neighbors have voiced concerns and they would like to work this out 1 Aspen City Council Regular Meeting June 24, 1991 before the public hearing. John Foley, neighbor, concurred they would like this tabled. Councilman Peters moved to table Ordinance #17, Series of 1991, to July 8; seconded by Councilwoman Richards. All in favor, motion carried. COUNCILMEMBER COMMENTS 1. Councilman Reno said he spent time at the Colorado Municipal League conference and found the seminars very helpful. Councilman Reno encouraged Council to participate next year if possible. Mayor Bennett agreed. 2. Councilman Reno brought up the electric underground project; last Tuesday there was a neighborhood meeting and people are generally concerned that the project is too expensive. People want to have their lines buried but are not willing to pay the price. Councilman Reno said he does not want staff to continue spending time and money if the city is going to end up with no result. Carol O'Dowd, city manager, said she will report back to Council exactly where the project is and if it should be ended. 3. Councilman Reno pointed out that the city day camp ends two weeks before school starts. Councilman Reno said he has heard different reasons for this. It puts a burden on a lot of parents. Councilman Reno requested staff look into this. Councilman Reno said the junior golf program is being offered free and perhaps the day camp could get involved in this program. Carol O'Dowd, city manager, said she will investigate these two issues and report back. 4. Councilwoman Pendleton said she has no interest in the electric underground program and would like to have staff drop this. Carol O'Dowd, city manager, said there have been a series of meetings to collect information. Staff is going to meet June 27 to see if there is a recommendation to go forward. Councilwoman Pendleton agreed with Councilman Reno there is not a realistic price and suggested the process be stopped unless the citizens come back stating they are willing to pay for it. Councilwoman Richards said she feels uncomfortable making that decisions not having heard from the homeowners. Councilwoman Pendleton said a duplex would be charged $11, 0 0 0 per s fide to have the 1 fines buried to the structure . Councilwoman Pendleton said if the neighbors are interested in the undergrounding, they should bring this forward rather than wasting staff time. Councilman Peters asked about putting the secondary connections into the improvement district so the costs are easier to bear. Councilman Peters agreed if the citizens do not want this, Council should drop it. Mayor Bennett suggested Council get 2 Aspen City Council Regular Meeting June 24. 1991 a summary of data to date without additional time being put into this and discuss it at a future meeting. 5. Councilwoman Pendleton said as an advocate of employee housing, she would like to see the city get moving on affordable housing. Councilwoman Pendleton said there is a proposal from the owners of 939 East Cooper to trade that property for the east Hopkins site. Carol O'Dowd, city manager, told Council staff met with the owners of 939 East Cooper and will report back to Council. 6. Councilwoman Richards requested staff draft a proclamation to Esprit and Global Re-leaf for all the trees that were donated to the art park. 7. Councilwoman Richards said for the transportation work session scheduled July 1st, it is important to bring forward the existing work towards making a pedestrian orientation to the town, the elements that came out of the community comprehensive plan, the town meetings, the pedestrian trails and bikeways committee, bring up the discussion of delivery trucks and possible implementation for this summer. 8. Councilwoman Richards said she would like to see a proposal from the recreation department on how to survey their users. Councilwoman Richards said she would like to find out if the needs of the users are being met by the day camp and whether there are enough afternoon programs to meet the needs of the families in the area. Carol O'Dowd, city manager, said she had started some work on the survey for the day camp users and will expand that work. 9. Councilwoman Richards moved to direct the planning staff to evaluate the impacts of Burnt Mountain Ski Area on the city in terms of transportation impacts, employee impacts to the affordable housing program and to offer assistance to the county planners who are working under a tight timeline to evaluate that development; seconded by Councilman Peters. Councilwoman Richards said Burnt Mountain is very close to Aspen and she is concerned about the impacts to the affordable housing program and how it relates to the transportation system. Council- man Peters agreed Burnt Mountain development will create a major impact on Aspen. Councilwoman Richards said the forest service is compiling a new EIS including off-site impacts. The planning office should be prepared to offer input on off-site impacts. Amy Margerum, planning director, told Council the planning office is working on Burnt Mountain and has been working with the County on how to fit the process into the IGA. Ms. Margerum said she will give Council an information memorandum for the next meeting. All in favor, motion carried. 3 Aspen Citv_Council Reaular Meeting June 24, 1991 10. Councilman Peters complemented the streets department and city staff for putting down road base by the art park. It keeps the dust down and is an enhancement for the area. 11. Councilman Peters asked that the police department begin preliminary work on bicycle and pedestrian safety issues. Councilman Peters said there are a number of decisions that need to be made on where to concentrate police activities for monitoring speed, crossing, etc. There are some street safety issues the public works department would like to address, like Main street and pedestrians. Carol O'Dowd, city manager, told Council some of these issues will be covered in the transportation work session, Monday, July 1st at 5 p.m. 12. Councilman Peters brought up the open house at the Marolt project Sunday. Councilman Peters said Harry Teague and Richard Shaw deserve applause; it is a public project that works well is aesthetically pleasing. 13. Councilman Peters said he and Carr Kunze went to Frisco to a meeting sponsored by region 12 on housing issues. Councilman Peters told Council HUD will have money available to provide affordable housing development. To get that money the state will have to develop a comprehensive affordability strategy. The state is looking for input on how to spend this money. Kunze was very articulate in explaining local issues. Mayor Bennett said there will also be housing authority discussions on July 1st after the transportation work session. 14. Carol O'Dowd, city manager, requested Council reaffirm the efforts to improve Independence Pass with ERG. Councilwoman Richards moved to support Good Road Day on Independence Pass; seconded by Councilman Peters. All in favor, motion carried. 15 . Carol O' Dowd, city manager, told Council there will be traffic routing changes by the highway department at highway 82 and Cooper Avenue next week. There will be no stop outbound on Original; inbound will have a stop sign. 16. Jed Caswall, city attorney, told Council Tom Smith has requested the appeal of code interpretation be tabled to July 8. Councilwoman Richards moved to table appeal of code interpretation to July 8; seconded by Councilwoman Pendleton. All in favor, motion carried. 17. Amy Margerum, planning director, announced there is a community planning meeting Thursday June 27th at 5:30 p.m. at city hall. The two topics are growth management balance and carrying capacity. 4 Ashen City Council Regular Meeting June 24, 1991 18. Carol O'Dowd, city manager, said the Roaring Fork Valley Forum will also meeting June 27th. There will be a bus to that meeting. The trails task force is making a presentation on a trail from Rifle to Aspen. The highway department is sponsoring a presenta- tion by an English firm who has been working on their EIS and to review the latest intelligent vehicle system technologies and how this might be included in the EIS. CONSENT CALENDAR Councilwoman Richards moved to approve the consent calendar; seconded by Councilwoman Pendleton. The consent calendar is A. Minutes - May 29, 1991 B. Extension of Deadline for application Ice Rink/Park C. Request from Aspen/Snowmass Repertory Theater D. Forum Trails Task Force Appointments E. Reconsideration of HPC appointments Councilwoman Richards asked if the trails task force would be working at cross purposes with the train group. Carol O'Dowd, city manager, said there are no conflicts. Councilman Peters said Council has not had the opportunity to interview the trails task force appointments and talk about the potential conflict with the railroad. All in favor, motion carried. Councilman Peters moved at the earliest convenience before or at the next regular meeting both the Roaring Fork trails representa- tives met with Council to discuss the trails and train goals; seconded by Councilwoman Richards. Councilwoman Pendleton suggested Lee Ambrose, the railroad representative, be invited also. All in favor, motion carried. LIQUOR LICENSE RENEWALS - Councilwoman Richards moved to approve the liquor license renewals for Takah Sushi and Home Plate; seconded by Councilman Reno. All in favor, motion carried. LIQUOR LICENSE TRANSFER - Silver City Grille Councilwoman Richards moved to approve the liquor license transfer to DSG Inc.; seconded by Councilman Peters. Councilwoman Richards said over the past winter several outside ownerships of liquor license establishments have left employees without pay. Councilwoman Richards asked if there is an ability for the city to require out-of-state owners to post bond toward payment of employees. Council requested the city attorney's office research this and report back. 5 Aspen City Council Regular Meeting June 24, 1991 All in favor, motion carried. SPECIAL EVENT PERMITS - Eagle's Club; Aspen Theater Co. Councilman Reno moved to approve the special event permits for the Eagle's Club and Aspen Theater Co; seconded by Councilwoman Pendleton. Jed Caswall, city attorney, told Council the state statutes require a special event permit be posted for 10 days before the hearing in order to allow the public a chance to comment. Caswall told Council this event was only posted for 5 days. City Clerk Kathryn Koch told Council this event for July 10th is with the French National Rugby Club. There was not enough time to post for 10 days, get Council approval and get this to the state for the to issue a license. Mayor Bennett said he is willing to take a risk in not having this posted for 10 days. All in favor, motion carried. REQUEST TO MODIFY PREMISES - Legends of Aspen Councilwoman Richards moved to approve the request to expand the liquor licensed premises and have outdoor seating; seconded by Councilman Peters. All in favor, motion carried. ORDINANCE #25, SERIES OF 1991 - RFTA GMQS Exemption (Councilman Reno stepped down due to conflict of interest). Dianne Moore, planning office, recommended approval of this ordinance approving a GMQS exemption for essential public facilities and vested rights for the 440 square foot expansion of the Rubey Park Transit center. Ms. Moore reminded Council at first reading they requested staff to investigate whether other types of trees could be planted on Durant avenue. George Robinson, parks department, said the installation of 3 more trees would impede the movement of pedestrians about the transit center. The parks department will enhance the other landscaped areas. Councilwoman Richards said on the plat of Rubey park and the hearing before the citizens, urban treescape was very important to the program. Councilwoman Richards pointed out this is the view of Aspen for many guests getting off at Rubey park. Patrick Stuckey said the concern is getting a tree that could live in this area. Councilwoman Richards asked if there is adequate irrigation to the tree wells. Councilwoman Richards said the plan approved by the public has a line of tall willows and is a major feature. Councilwoman Richards said she is not willing to let these trees go. Stuckey told Council the circulation problem is 6 Aspen City Council Regular Meeting June 24, 1991 one reason the trees were not planted in the first place. Councilman Peters agreed with planting some trees and see if they grow. Mayor Bennett opened the public hearing. Bil Dunaway agreed the trees are valuable and should be planted. Mayor Bennett closed the public hearing. Councilwoman Richards moved to adopt Ordinance #25, Series of 1991, amending it to include planting of trees as shown on the original landscape design of the building; seconded by Councilman Peters. Roll call vote; Councilmembers Pendleton, yes; Richards, yes; Peters, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #26, SERIES OF 1991 - Aspen Mountain Lodge PUD Section M Amendment Jed Caswall, city attorney, told Council this formally ratifies the extensions on the construction schedule for the Ritz Carlton hotel and other aspects of the Aspen Mountain Lodge. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilwoman Pendleton moved to adopt Ordinance #26, Series of 1991, on second reading; seconded by Councilman Reno. Councilman Peters said the second whereas addresses the reasons for the extensions and asked if this should say "some of the reasons". Caswall pointed out the findings are attached to the ordinance and show that some but not all of the reasons were found. Caswall said he does not feel this is necessary in the ordinance. Councilwoman Richards asked if there is a more clear cut answer as to what will happen to the Ritz. Joe Imbriani told Council there is nothing more known than what has been reported in the newspapers. Caswall told Council one of the first conditions is that Savanah is to come to an agreement with staff the form of the security to insure demolition of the hotel if that is necessary. Caswall told Council he and the applicant have agreed in principal to the form of the security. Roll call vote; Councilmembers Richards, yes; Reno, yes; Pendleton, yes; Peters, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #24, SERIES OF 1991 - Newspaper Racks John Worcester, city attorney's office, told Council there have been minor changes since first reading. 7 Aspen City Council Regular Meeting June 24, 1991 Mayor Bennett opened the public hearing. Bil Dunaway, Aspen Times, said Council has a letter from USA Today requesting this be tabled so they can be in attendance. The letter also praises the city staff for preparing an ordinance that meets many questions and satisfies much of the First Amendment. The preamble of the ordinance explains the complications. Dunaway said if there are going to be permits, the ordinance should state that permits cannot be withheld. Dunaway said there is no good reason not to allow newspaper racks in the mall area. Dunaway said by limiting the number of racks in a certain area and having a raffle for other areas, the city is bound to discriminate against other papers. Dunaway suggested this be tabled so the problems can be worked out before final adoption. Councilwoman Richards moved to continue the public hearing to July 22, 1991; seconded by Councilman Peters. Councilman Peters said the mall exclusions for newsracks are not appropriate especially if the malls be expanded in the future. Councilman Peters said he would like the city to get out of the newsrack business. Councilman Peters said he does not want the ordinance to define what is news. Councilman Peters said there ought to be an automatic feature of the ordinance that allows permits to issue without a lot of hassle. There should be some guidance for the public works director that permits shall not be unreasonably denied. This should be incorporated into the ordinance. Councilman Peters said not requiring insurance may not be a valid criticism. Councilman Peters requested the legal staff investigate requiring insurance further. Mayor Bennett agreed with Councilman Peters. Mayor Bennett apologized to CCLC for any lack of knowledge that this had been going on so long and the CCLC had met as often with the media as they had. Councilwoman Richards said she much prefers the condo rack configuration. Councilwoman Richards said she does not see any sense in passing an ordinance which does not address the premise of aesthetics. Councilwoman Richards amended her motion to include a work session July 15; seconded by Councilman Peters. All in favor, motion carried. All in favor, motion carried. ORDINANCE #18, SERIES OF 1991 - Institutional Controls Smuggler Superfund Site Jed Caswall, city attorney, told Council this ordinance arises out os EPA's efforts to remediate the Smuggler area. The ordinance 8 Aspen City Council Regular Meeting June 24, 1991 resulted from negotiations between the county and EPA representa- tives to try and minimize the remedy previously proposed for the site. Caswall told Council because certain contaminated materials are to remains on site after the remediation is completed, the remedy calls for the local governmental entities with jurisdiction over the site to adopt institutional controls; the purpose is to try to preserve the integrity of the remedy once it is installed. The ordinance is designed to operate for enforcement purposes out of both the building department, which regulates excavations and the environmental health department. The environmental health department has been involved in this clean up plan and has a lot of expertise which the building department does not have. The environmental health department can contribute to the enforcement and monitoring functions of the ordinance. Caswall said the institutional controls are part of the remedy when it was chosen. In March the city executed the superfund contract, between the Colorado Department of Health, EPA, county and city. One of the provisions in the agreement calls for the city to adopt institu- tional controls. Caswall said there have been changes on whether or not apartments and condominium complexes other than Hunter Creek and Centennial would be required to submit maintenance plans. This requirement may not be appropriate for all complexes in the area. Staff agreed with the Justice department to put more flexibility in the ordinance to allow the director of environmental health department to make a determination whether a particular condominium or apartment needs to prepare a maintenance plan. Councilwoman Pendleton said she withdrew for conflict of interest at first reading of this ordinance as she offered concrete bids on this clean up. Councilwoman Pendleton said she has conferred with the city attorney who has opined she does not have a conflict. Councilwoman Pendleton asked Council if she could be part of this discussion. Caswall said he does not believe her participation is conflicted out. Council agreed Councilwoman Pendleton should stay in the discussion. Mayor Bennett opened the public hearing. Richard Cohen asked the liability that faces the city if this ordinance is not passed. Cohen asked the liability for the city if the process goes through, the containment site is built and the city does not enforce the regulations as the EPA set them out. Nancy Mangone, assistant regional counsel assigned to Smuggler, listed options of EPA if Council decides not to pass the institu- tional controls; EPA could consider this a breech of the state superfund contract; EPA has the option of ordering implementation of institutional controls; the option of beginning the remedy on certain areas; the option of designing a new remedy which does not 9 Aspen Citv Council Regular Meetna___ June 24, 1991 incorporate institutional controls because they are not assured this remedy without the institutional controls would be protective of health and the environment. The EPA believes in this remedy and believes it is protective of health and the environment with the institutional controls. If the remedy goes forward, it will address both the health risks and the financial uncertainties. Ms. Mangone said if the institutional controls are not passed, the health risks and financial uncertainties will be prolonged. This would also jeopardize any settlements that have been entered into or are being negotiated with private parties. Mark Alston, chief Colorado section of superfund branch, said the June 21st letter responded to questions of Council, went over factors involved in identifying hazardous waste sites in arriving at decisions proceeding into the remedial action at Smuggler. Alston said there is data showing extremely high levels of lead and cadmium at this site, averaging 3300 ppm. Lead is a very high priority contaminate for EPA. The target level in soils is 500 to 1000 ppm. This site is 3 times that. Alston told Council any lead levels in blood are not thought to be of natural occurrence. Blood level studies are one way of assessing exposure. There is a state blood level study of which preliminary results have been released. This study showed low blood levels at this site. Alston said the superfund program is intended to and mandated to be very conserva- tive in addressing risk from hazardous waste and in trying to cut pathways of exposure. Alston said the EPA has determined there is a potential risk to health at this site. The EPA feels the remedy selected of excavation and replacing with clean soils is a protective remedy. Alston said the EPA feels strongly that the air monitoring and dust control measures will be protective and there will not be elevated levels of blood due to the remediation. Alston said the EPA's experience across the county let them say that. Alston said the EPA feels it is important to go forward and requested Council pass the institutional controls ordinance John Moscato, Department of Justice legal representative for EPA, said the first alternative would be an action on the contract which would either be for specific performance of the contract or more probably damages. The damages would be of 2 types; damages incurred by the EPA because of loss of time, contract costs, etc., and damages for obtaining alternative performance, some alternative means to remedy the site. Moscato said under 104, the EPA has ability to compel responsible parties to do work. Under 106, there is authority to direct through unilateral orders that parties take abatement actions. These do not have to be responsible parties. The city has not been approached to date as a responsible party. Moscato said there are actions under 107 that would allow the EPA to go forward and do the work and collect the costs from responsi- ble parties. Moscato said there are sanctions in superfund that permit the imposition of treble damages should EPA prevail on 104, 10 Aspen City Council Reqular Meeting June 24, 1991 106 and 107 orders. This is in addition of penalties of up to $25,000 per day. The damages would be triple the additional costs. These are the legal options. There is the option of re-evaluating the remedy. In this instance, this would prolong the difficulties of this community. Moscato said people have a chance to comment during the Record of Decision, a chance 90 days after a site is listed on the National Priorities List to take an appeal to the Court of Appeals. After 90 days, one has lost the opportunity to challenge the listing. Moscato said there has been one site that has been removed; it was not a listed site, it was a proposed site. Moscato said the only way to remove a site from the NPL, short of remediating it, is an act of Congress. Nick DeWolfe said the reason this community has not risen earlier is that no one could believe this audacious project was for real. DeWolfe urged Council to review the very basis, the premises on which the entire project rests. DeWolfe urged Council not sign the remediation and surrender their rights to go to Congress. DeWolfe said it would be irresponsible to lie down and let this irresponsi- ble project go on. DeWolfe said the first move is to demonstrate there is no danger in the site in the first place. DeWolfe said proper technical advice, which does not come from the EPA, should be sought. DeWolfe invited Council to a hearing June 29th on lead poisoning. Tom Clapper asked if the cure for a certain disease is greater than the disease, CERCLA law states the clean up will not be done. Clapper said the people have shown that the cure is a lot worse than the disease. Clapper said there is a greater danger due to the trucks rolling and dust in the air than to leave it where it is. Clapper requested Council vote against this ordinance. Alston said if anyone in the community has scientific evidence to submit that has been overlooked, it can be forwarded to EPA. Alston said the EPA has been conducting their business in the open. This testimony seems a bit late. Under the statute, if the remedy poses a threat of endangerment, it will be re-examined. The EPA would be happy to consider evidence on that point. Alston stated the program people have assured that the remedy can be conducted so that no additional lead will be introduced into the air. The EPA has worked with the environmental health department on air monitoring to insure there is a means to detect any problems and to stop work immediately and to correct the situation. Alston said also in CERCLA there is great deference to the agency's decision to remediate a site and to its expertise. In any challenge, whether or not a remedy is needed, the plaintiff would have an unusually high burden. 11 Aspen Citv Council Regular Meeting June 24, 1991 Jim West said the key word is potential; the potential in the future for children to become lead contaminated, to develop lead poisoning. West said he sees no point in disturbing the soil when it has been compacted over a period of time and has been covered by lawns or other things to the point where there is no demonstrable high level of lead poisoning at this time. Ten years from now if there is a case of lead poisoning it would make sense to tear up the land. West said there is no guarantee that if the soil is disturbed there will not be consequential problems in the future. The EPA is speculating. Roxanne McClure asked about the air monitoring and how the EPA will water down the soil, and not erode into the river. Ms. McClure asked what will control the exposure of lead to the residents. Alston said the EPA is comfortable with the experience they have at other sites that their dust mitigation measures can keep exposures to zero or to where they cannot be detected with air monitoring equipment. Ray Pliness, Bureau of Reclamation, told Council tests have been done in the 0 to 12 inch range. Of those tests, the first tier was 0 to 2 inches. Pliness said runoff can effect very quickly 0 to 2 inches worth of soil. Pliness said within that 2 inches there was very high levels of lead in many areas. There already is a drainage problem. Pliness said to mitigate this and where they are digging, they keep in contact with the weather service. This is bordered. If there is a potential chance for rain storms, this is bordered with either sand bags or an air bag. The first defence is that the contractors are only allowed 8 hours. Anything that is excavated out has to be replaced within 8 hours or a geotextile has to be laid over the top. Geotextile will not prevent water from going down but it will prevent surface water from bringing soils back up. Someone asked about Molly Gibson, which is going to be open for the next 5 or 10 years, will this have sand bags. Pliness said the Molly Gibson has 2 solutions; one is slope backed during the remediation. There is a starter dike in front and the water stays behind. It is also sloped to the back of the berm and it filters down. Any water on the surface is caught at the bottom with the toe drain and re-directed down to the ground. Stan Lauriski said the dirt is being moved about 400 feet from people's houses to a higher elevation. Lauriski asked how many cubic yards of dirt will be moved. Pliness said this is estimated at 26, 000 cubic yards of dirt to be moved. Lauriski said this will also have to hauled back in. Mayor Bennett said it was stated in the earlier meeting that one repository would be 30 feet high and the other 40 feet high. Lucy Dunn said her primary concern is for her 2 children. Ms. Dunn said she asked a toxicologist how he would feel about the safety of 12 Aspen Citv Council Regular Meeting June 24, 1991 children. This toxicologist suggested Ms. Dunn stay inside with the doors and windows closed and have dust blinders on the house. Ms . Dunn asked how the EPA can say the remedy is not dangerous when it is recommended to stay inside. Alston stated the EPA believes they can monitor the levels that go off site and can do this mitigation and that the remedy is protective and the measures used will not result in increased exposures. Alston said for families with children there are temporary relocation plans. Alston said if there are concerns about health and the EPA has concerns about site safety, they can offer temporary relocation. Bob Elkington said the EPA cannot tell people they have to keep children in the house for up to 6 days while their property is being remediated. Elkington said a fence has to be erected and the EPA has to maximize the ability to get construction equipment in to move dirt around. Elkington said people with children and dogs can be relocated. Ms. Dunn said she was told by the EPA that she will be told where she can relocate. Someone said a written relocation program is needed. Elkington told Council the final relocation plan has not been approved but it is very close. Pliness said the relocation program is to give an option for people with children if they so wish. Ms. Dunn said the EPA is telling her they can protect her children. Ms. Dunn said that is her job and she does not need the EPA to do this. Moscato said relocation is to protect people from the hazards of construction activity. Moscato said to protect people from the hazards associated with remediation, they are instituting dust control measures and air monitoring. Relocation is not because of the threat of dust, principally, but from construction activity. Moscato said in terms of where people will be relocated, the EPA is looking for places locally. If people chose to go elsewhere, it presents a problem to the EPA as they are accountable for that expense. Pliness told Council they have contractors in the competitive range. The average remediation will be 6 days. They require all lots to be done within 12 days. A person said their concerns are lead in the air; airborne lead is supposed to be more hazardous. This person told Council she and her son were tested and were below the range. They asked what happens if there are elevated blood levels after this is over; do they get to sue the EPA. Alston said the EPA is somewhat liable for negligence. Moscato said there is an sovereign immunity which says one cannot sue the government unless it lets you. Moscato said there are federal torts and claims which allows people to bring action against the U. S. government for negligence, gross negligence, intentional misconduct, etc. should people believe injuries to themselves are caused by negligent acts of agents of the govern- ment. 13 Aspen Citv Council Reqular__Meeting June 24, 1991 Mike Garrish told Council he has lived in this area for 79 years. Garrish said his relatives lived here and lived to 80s and 90s and none of them had lead poisoning. Garrish asked if the residents just sit and pay taxes with no recourse to a not favored project. Garrish said there are tons and tons of mine tailings that have been scattered all over this town. Garrish asked how come other sites have not been inspected. Garrish said the Smuggler area is victim of selective sampling that has been going on. Garrish said he wants to know what kind of soil will be brought in to put on his garden. Garrish says he does not want dirt from the airport. Pliness said they will use soil that is representative of both growth potential as well as free of contaminants. Material at the airport has been provided cost free from the county as a potential source as backfill, not top soil. The remedy is 8 inches of backfill and 4 inches of top soil, except for gardens which is 18 full inches of top soil. Amy Brownstein said there is a lot of support for Council not to adopt the institutional controls. Council is the last hope of the residents. Ms. Brownstein said there have been allegations of misuse of funds in Washington. Ms. Brownstein said just because no one has not been delisted does not mean this site cannot get delisted. Ms. Brownstein said when the EPA is finished with operable unit 1, they will go up Smuggler. Ms. Brownstein said this will make a terrible mess for the entire town. Ms. Brownstein said the EPA is wrong here; the agenda of the EPA is not wrong and there are places that need remediation but not here. Ray Devega said the issue confronting the community is not lead but land. Devega said the EPA seems to be into the land grabbing business. The EPA has closed down thousands of small gas stations around the country. People cannot borrow money from banks because the EPA has condemned their land. People cannot sell their land for the same reasons. Devega said the land in the Smuggler area is owned by people of modest means. They cannot borrow money against their land. Wink Jaffee said lawyers are explaining the danger rather than doctors and scientists. Jaffee said it has not been proven medically or academically that this area is in danger. Jaffee said if this area is really in danger, it should be cleaned up. Ward Hauenstein said each component of the institutional controls look logical; however, .the root of the problem is the residents feel they are getting raped. The whole process is wrong. Hauenstein said the people on site want to get delisted. There is nothing that has demonstrated there is a problem with the health of the people on site. Hauenstein said it is the chance for Council to say the law is not right. Pat Simpson told Council last summer a resident went and got the health department to do blood level testing; the EPA fought that. The EPA then said people should not 14 Aspen City Council Regular Meeting June 24, 1991 take credence in the results of these tests because the blood lead levels are only good for one month. Ms. Simpson said the lead in one's blood after a time is absorbed in one's marrow and does not show up in blood tests. Ms. Simpson said the residents should be tested all during this and any time one's blood level goes up they should be able to litigate against the EPA. Ms. Simpson begged Council not to sign the agreement with the EPA. Alston said the EPA realizes there is disagreement over the risk at the Smuggler superfund site; in the judgement of the EPA there is potential risk at the site. Alston said the blood lead screening request was honored. The position of the EPA is that they are pleased the levels turned out low. The EPA feels blood level screening is a snapshot and that there is a risk in the Smuggler area that should be remediated. Terry Hale said the issue is should this work be done. Hale said for the last 8 years the county government has relied on the experts of the EPA and never went outside the community. Hale said when the residents called the Colorado School of Mines and public health pediatricians, and lead toxicologists who all said this is bullshit. Hale said the community is united in giving this issue the light of day and will find out the answers. Hale urged Council to delay signing the institutional controls until the community can amass some opinions that do not come from the EPA. Phoebe Ryerson asked for hands of people who would like the EPA to gracefully remove themselves. Richard Compton said Council should ask themselves if there is a demonstrated need for the institutional controls. Compton said that need has not been demonstrated through the whole process. Compton urged Council to join with the residents and community who want to take this to Congress and get the law changed; get the site delisted, and work to get the EPA working in a way that serves the residents. June Kirkwood said it is totally unacceptable to have this remediation done. Ms. Kirkwood said the residents are not asking "Big Brother" for help. Ms. Kirkwood said she does not feel like she has freedom of choice and that her rights and dignity are being offended. Dave Harris said he tested out of the clean up. Harris asked the EPA if he would be involved in the institutional controls. Harris said the EPA told him it is what is under the 18 inches of soil tested that he has to be part of the institutional controls. Harris said this is not logical, which would determine that his property is clean. Harris questioned having the institutional controls on this property. Moscato said the institutional controls apply over the site. Kirk Baker said people working for the EPA in the superfund site have agreed this is totally ridiculous. Baker urged Council not go to along with the institutional controls. 15 Aspen City Council Regular Meeting June 24, 1991 Patti Wade asked if the geotextile liner has any drainage through it. Pliness said this is a felt material with more drainage that the adjacent soil. It is highly permeable and will not stop any water. The intent of the geotextile is for a noticeable barrier. Ms. Wade asked if a resident breaks this, do they get sued for destructing the remediation. Moscato said one point of the institutional controls was to return to the locality a discretion on how to enforce the regulations. The institutional controls address when replacing trees and how to do it. There is no intent on the part of the United States to sue someone for digging up a bush. Ms. Wade asked if it is recommended that residents put things that need to go in the ground more than 18 inches prior to the remediation. Dunlop said there are interim guidelines established by the guidelines. Kirk Baker said what is recommended for dust control has been to water it down. Baker said the earlier remediation totally flooded the Molly Gibson and the dirt went right into the river. Baker said this dust control is just moving the lead from one place to another, into the river. Pliness said the material put on the Molly Gibson park was to eliminate any wind erosion . The work done on the Molly Gibson was a soil stabilizer. The operator of the vehicle did dump some soil stabilizer in the streets. There was a problem and it was dealt with. Pliness said the soil stabilizer reduces wind blown contaminants. Baker suggested that the area would stay more stable if left alone rather than tearing it up. Baker asked if it causes more erosion by digging the area up. Pliness said digging this area up, moving it to a repository and covering it with permanent facilities will reduce the opportunities for erosion of that lead contaminated materials. Stephanie Costello said the problem is the potential risk of lead contamination. Ms. Costello said the residents do not appear to have lead toxicity in their bloods, the EPA is basing this clean up on a potential health risk. Ms. Costello said 25,000 cubic yards of dirt will be moved; thousands of particles of lead will be flying around into the .air. Ms. Costello pointed out this is a valley and the particles will be caught in the valley. Ms. Costello said the clean up will create a potential health risk. Tim Anderson said the EPA does not appear to know what they are doing or this would have been much more concise and done in a more timely fashion. Anderson agreed with getting some help from outside the community to help the process. The EPA has taken over the residents lives. Grafton Smith supported Council not passing this ordinance. Smith said there will be about 10,000 dump truck loads. The danger from that outweighs the potential risk. Smith asked what the EPA will have to destroy to bring in thousands of yards of dirt. Smith asked how much money has been spent to date on this process and how 16 Aspen City Council Regular Meeting June 24, 1991 much money is yet to be spent. Mayor Bennett asked how many truck loads there will be. Pliness said 5,000 round trip. DeWolfe suggested the community prepare to make the EPA liable. Jeff Winagle told Council he has grown up on the superfund site. Winagle asked what the EPA is willing to do for the city in replacing roads, bridges; 2500 dump truck loads coming from out of town is a lot. Mangone told Council the EPA started out with a remedy calling for 4 feet of excavation and progressively have tried to work with the community to get a remedy that was more palatable. This remedy includes institutional controls and takes into account getting a remedy that was less intrusive than the original remedy. Peter Wirth said the EPA went from 4 feet to 1 foot of soil because there was no place to put the soil. Barry Siegel said the issue here is not health. There are mine tailings all over town. Siegel said he wants to know what the Molly Gibson repository will look like. Siegel said this neighborhood will have a true dump site; the residents were promised Molly Gibson would be a park. Siegel asked when Council ever approved a project without knowing what it looks like. Moscato said there will be more trees on site when this is finished than there are now. The EPA has made steps to preserve trees over 6 inches in diameter. Pliness said he believes the people he is working with have the ability to make the decisions regarding the clean up. Pliness said the repository will be a rock based 40 foot hill on 2.5 to 1 slope at the bottom with a 6 foot high fence. The EPA has this shown as a rock topped. The dimensions are 100 by 150 feet. Siegel asked what happens when one of the boulders runs down the hill. Pliness said there are 3 to 8 inch size cobbles which will be held in place by the slope. Caswall pointed out the repository is not within the city's jurisdiction. Councilwoman Richards said she did go to the BOCC and asked for a mock up of the repository site. Richie Cohen asked why it takes 6 days to clean up on trailer site down 1 foot of dirt. Cohen asked if there is a way to delay the start of this project in order to get more mitigation measures or to come to another conclusion. Alston said this project has been going on for a long time and prior to this time the EPA has been proceeding because they felt people wanted this finished and it would be best for the community to get it over. Ms. Mangone said the EPA has tried to work through a number of issues with the community. The city indicated they wanted to go forward by signing the superfund contract and starting the institutional controls. Moscato said this site has been annexed into the city recently. Cohen said there will be an enormous structure built on the other side of town from the Ritz. Cohen said he would support Council turning this down. 17 Aspen Citv Council Regular Meeting June 24, 1991 Jan Wirth read a letter to Council stating Council has been charged with the public health and safety of the entire community. Council cannot be pressured into this action without satisfactory answers to all questions. Ms. Wirth said the sequence of events over the last 8 years has been totally inappropriate and mistakes have been made. Ms. Wirth said the city has not been involved for most of the last 8 years. Ms. Wirth said if another entity came into town and wanted to build a hotel, a ski area or a mine, the first thing that would be required would be an EIS . The community needs to the city have the EIS done right now in order to analyze the secondary impacts of the clean up on the community before one truck load of dirt in moved. Questions that needs to be answered are what is the impact of thousands of truck loads of dirt going through town; how will this affect the roads and bridges; what will the noise levels be; what will be the effect on the overall air quality and the quality of life; what are the long term costs and effects of the institutional controls; what does the permit process really mean and how does that affect everyone; what will happen when the sewer lines need to be replaced; what are the hidden costs everyone will pay after the EPA is gone. Angie Griffiths told Council she has lived in this area all her life, owns a home and has had a business in town. Ms. Griffiths recently tried to get a loan and was turned down due to her house being in the superfund site. Bob Cox, Smuggler Caucus, told Council he has been involved since 1981. The medical community has started coming in to answer the question of whether there is a problem or not. The EPA has always said they do not have to prove this. The medical community has offered assistance to bring in other experts and they should be given a chance to see whether there is a problem. Cox asked about page 6 of the institutional controls where it says if one digs up their dirt below the geotextile liner and leave it open for more than 5 days, a 6 foot fence has to be put around and it has to be covered with an impermeable top. Cox said surface contamination has been sitting around for years and asked why there is now concern to cover it. Moscato said the reason there is a requirement in the institutional controls that applies after a property is remediated is because the United States will have gone through the expense of remediating that property and asks that property owners take safeguards to contain that soil when it is dug up. Cox said from the day the EPA walked in to do their testing it was skewed. Cox said the EPA started with digging up 4 feet of soil, which the residents negotiated down to 1 foot with the EPA. Walt said if Council says no, the community will not have to keep talking. Council decided to continue the hearing for two weeks. Ms. Mangone requested Council come up with a list of questions to help clarify the issues. Councilwoman Pendleton said if the lead is so low in 18 Aspen City Council Regular Meeting June 24, 1991 this neighborhood, why isn't the EPA willing to find out why it is so low. Councilwoman Pendleton asked if it is so unreasonable for the EPA to consider why this area is so low and to look into this a little deeper and not go by the rules and regulations. Council- woman Pendleton said she would like some willingness of the part of the EPA to look at this again. Alston said because of the correlation across the county between soils and blood leads that the preliminary results of the state have not shown and the EPA has not explained that discrepancy. Alston said there are different tools to look at risks. The state's blood level study did not show an actual risk that correlates to the potential risk that the EPA thinks is there. Alston said the EPA has been asked to prove there is a risk. To the EPA this means damage has already occurred. The mandate of the EPA is to prevent the risk and to remove the potential risks if they exist. Alston said blood level studies do not meet the EPA's statutory, their highest statutory mandate is to have a permanent and protective remedy. Councilwoman Pendleton requested the EPA look at "their" law. Councilwoman Pendleton said there is a point where people have to look at what is going on. Just because the word is in EPA's by- laws does not make it right. Councilwoman Pendleton requested the whole process be looked at by both sides. Moscato said the EPA did not happen into the question of lead yesterday and have not ignored blood lead studies. EPA has determined that blood lead studies are one means of predicting the health of the community and the potential risks. The EPA has determined over time there are general correlations between lead in soil and lead in blood. The agency has tried hard over the last year to move forward to solve what is wrong in the Smuggler area. Blood lead studies are not a definitive predictor of health threats. Mayor Bennett said what Council would like to hear is hard evidence that there really is a health risk. Alston said the EPA is not saying there is an actual risk; they have not proven that. Mayor Bennett said in theory if there has been a risk in this area and it has been there for 100 years, it should have shown up somewhere. Moscato said lead is insidious because its effects are subtle. Councilwoman Pendleton said the EPA's policy is not to accept blood levels. Councilwoman Pendleton said she is challenging the word "potential" and requesting the EPA look at it and see if it a realistic way to deal with this situation. Councilman Peters moved to suspend the rules and extend the meeting to 10:15 p.m.; seconded by Councilwoman Pendleton. All in favor, motion carried. 19 Aspen City Council Regular Meeting June 24, 1991 Moscato said a presentation to Council on risks and safeguards during the remedy will be helpful. Council agreed. Councilwoman Pendleton moved to continue the public hearing to July 8, 1991; seconded by Councilwoman Richards. All in favor, motion carried. CONCEPTUAL SPA RIO GRANDE Leslie Lamont, planning office, told Council there are 3 applica- tions for this property; the trolley, art park/theater, recycling. The application will need at least one hour. Councilwoman Pendleton moved to continue the conceptual SPA on the Rio Grande to July 22; seconded by Councilman Peters. All in favor, motion carried. ORDINANCE #21, SERIES OF 1991 - Electrical Code Revision Tom Parry, building department, told Council the last reference to an electric code is 1978. This is the 1990 code and should be adopted by Council. Councilwoman Pendleton moved to read Ordinance #21, Series of 1991; seconded by Councilman Peters. All in favor, motion carried. ORDINANCE #21 (Series of 1991) AN ORDINANCE AMENDING SECTION 7-156 THROUGH 7-162 AND SECTION 7-166 OF ARTICLE VI OF CHAPTER 7 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO, SUCH SECTIONS ADOPTING AND AMENDING CERTAIN PROVISIONS OF THE NATIONAL ELECTRICAL CODE, 1990 EDITION was read by the city clerk Councilman Reno moved to adopt Ordinance #21, Series of 1991, on first reading; seconded by Councilwoman Pendleton. Roll call vote; Councilmembers Peters, yes; Richards, yes; Reno, yes; Pendleton, yes; Bennett, yes. Motion carried. ORDINANCE #27, SERIES OF 1991 - West Hopkins AH Rezoning Councilwoman Richards moved to read Ordinance #27, Series of 1991; seconded by Councilwoman Pendleton. All in favor, motion carried. ORDINANCE #27 (Series of 1991) 20 Aspen City Council Regular Meeting June 24, 1991 AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING A REZONING FROM MEDIUM-DENSITY RESIDENTIAL (R-6) TO AFFORDABLE HOUSING (AH) LOTS K, L, M & N, BLOCK 19, THE SOUTHWEST CORNER OF WEST HOPKINS AVENUE AND SOUTH SEVENTH STREET, ASPEN, COLORADO, was read by the city clerk Bob Nevins, housing authority planner, told Council the rezoning is the first step in this affordable housing project and will allow them to move forward with the production plan. Councilwoman Richards moved to adopt Ordinance #27, Series of 1991, on first reading; seconded by Councilwoman Pendleton. Roll call vote; Councilmembers Reno, yes; Peters, yes; Pendleton, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #28, SERIES OF 1991 - PUD Amendment Clarendon Councilman Reno moved to read Ordinance #28, Series of 1991; seconded by Councilwoman Richards. All in favor, motion carried. ORDINANCE #28 (Series of 1991) AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING A PUD AMENDMENT FOR THE ADDITION OF BEDROOMS AND BAY WINDOWS, AND THE EXPANSION OF LIVING ROOMS AND GENERAL LIVING SPACE TO THE CLARENDON CONDOMINIUMS, LOT 1 CLARENDON SUBDIVISION, WEST END STREET, ASPEN, COLORADO was read by the city clerk Leslie Lamont, planning office, told Council this is not considered an insubstantial PUD amendment. This is a two step process; the P & Z reviewed the proposal and recommends approval. Ms. Lamont told Council at second reading staff will have a presentation including graphics. Councilwoman Richards asked if the increased square footage means the applicants have to address employee mitigation. Ms. Lamont said only a residential growth management application has to mitigation employee housing. Ms. Lamont said there are no new units. Councilman Peters asked if this were not expanding a non-conforming use. Ms. Lamont said this is an R-6 PUD overlay and they are using the PUD amendment process. Councilwoman Richards asked if there are any objections from the neighbors . Ms . Lamont said no. Spencer Schiffer, representing the applicant, told Council this project has the lowest density in the entire area. Councilman Reno moved to adopt Ordinance #28, Series of 1991, on first reading; seconded by Councilman Peters. Roll call vote; Councilmembers Peters, yes; Pendleton, yes; Reno, yes; Richards, yes; Mayor Bennett, yes. Motion carried. 21 Aspen City Council Regular Meeting June 24, 1991 ELECTION OF MAYOR PRO TEM Councilwoman Richards moved to nominate Councilman Peters as Mayor Pro Tem; seconded by Mayor Bennett. All in favor, with the exception of Councilmember Pendleton and Reno. Motion carried. COUNCIL APPOINTMENTS CAST - Mayor Bennett CML - Carol O'Dowd, city manager, NWCCOG - Councilman Peters Housing - Councilman Peters Ruedi Water and Power Authority - Councilwoman Pendleton Roaring Fork Forum - Mayor Bennett Sister Cities - Councilman Reno; Mayor Bennett Nordic Council - Council will talk to the Nordic Council Energy Committee - Councilmembers Pendleton, Richards and Bill Stirling In-town School Sites - Councilmembers Peters and Reno and Bill Stirling ASAP Community partnership for a healthy community - Council- woman Pendleton Councilwoman Richards nominated Councilwoman Pendleton to serve as the Council representative to RFTA; seconded by Councilman Peters. All in favor, motion carried. Councilwoman Pendleton nominate Councilwoman Richards to the Snowmass Aspen Arts Council; seconded by Councilman Reno. All in favor, motion carried. Jed Caswall, city attorney, told Council he had received a letter from the regional administrator for the EPA in response to a request made by Senator Wirth. Sheer will be available in Denver to meet with Council the afternoon of July 3 or July 5th. The earliest Sheer can come to Aspen is July 10. Mayor Bennett suggested Sheer be invited to Aspen to meet with Council July 10. Council scheduled a work session on the Kraut property on Monday, July 15th at 5 p.m. Councilwoman Richards moved to adjourn at 10:25 p.m.; seconded by Councilwoman Pendleton. All in favor, motion carried. Kathryn S- Koch, City Clerk 22