HomeMy WebLinkAboutagenda.council.worksession.20160809
CITY COUNCIL WORK SESSION
August 09, 2016
4:00 PM, City Council Chambers
MEETING AGENDA
I. Housing Fund Capital Project Update
II. Land Use code revisions
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MEMORANDUM
TO: Mayor and City Council
FROM: Cindy Christensen, Deputy Director, APCHA
Pat Hinch, Property Manager, APCHA
THRU: Mike Kosdrosky, Executive Director, APCHA
DATE OF MEMO: August 3, 2016
MEETING DATE: August 9, 2016
RE: Approval of Additional Expenditures within Capital Projects
at Marolt Ranch, Truscott Phase 1 and Truscott Phase 2
REQUEST OF COUNCIL: To approve the transfer of funds proposed for one capital project
for use of another capital project.
BACKGROUND: There are three items that staff is requesting approval:
1. The Marolt Ranch property sees a high use of the laundry facilities, not only in the
summer with the Music students, but in the winter with the seasonal employees. A
laundry room upgrade going to Smart Cards had been budgeted for partial replacement
in 2016 with completion in 2017. The completion portion had been moved to 2018 due
to direction from the Finance Department. The Marolt Finance Committee has
requested that the upgrade be completed prior to the beginning of the 2016 winter
season at a cost of $14,800.35. This includes the Smart Card Reader at $7,335.95 and
the Value Add Machine (which allows the user to add money to their card) at
$7,464.40. The variance to the budgeted amount of $6,000 is $8,800.35. This will not
impact the Marolt Ranch budget as $10,160 was saved on the exterior painting.
2. At Truscott Phase 1, Buildings 800 and 900, the handrail replacement of the stairways
was an additional $3,500. The project was budgeted at $13,000, but additional changes
had to be made to meet code requirements; therefore, the project cost $16,500.
3. Truscott Phase 2 will see an increase of $8,000 to make un-budgeted repair s to decks
and handrails because of safety issues found during the annual inspection of all units.
The formal approval for the $8,000 will be made to the APCHA Board as they are the
General Partner and approve the Truscott Phase 2 budgets.
DISCUSSION: The reasons behind the requests are as follows:
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1. The Smart Card system, along with the Value Add Machine, replaces the need for
quarters as well as APCHA staff going to the bank to deposit the quarters on a regular
basis. This allows a tenant easier access to the laundry rooms and will also maintain the
use by tenants only. Staff has reported other individuals using the machines due to the
lack of laundromats in town, as well as the cost is lower than that in town. The Value
Add Machine allows a tenant to do laundry 24 hours a day instead of waiting until the
Assistant Property Manager is on duty to add funds to their card. Hopefully, this will
create an increase in revenue for Marolt as well.
2. The handrail replacement for the 800 and 900 buildings was a safety issue. Due to a
newer code being in place, additional requirements were needed that were not
budgeted.
3. During the annual inspection of all units that are managed by APCHA, there were
certain decks and handrails within the Truscott Phase 2 units that were found to be
potential safety issues. The funds being requested are to remedy the potential safety
concerns.
FINANCIAL/BUDGET IMPACTS:
1. The Marolt Ranch addition of the Smart Card and the Value Add Machine will not
create any financial impact to the budget as there was a savings of $10,160 for the
exterior painting.
2. The handrail replacement for the 800 and 900 buildings has been completed due to the
safety issue; there will not be a negative financial impact to the budget as there was a
savings of $13,500 on a separate concrete project.
3. The Truscott Phase 2 increase to the budget is needed for safety reasons and will be
reviewed and approved by the APCHA Board.
RECOMMENDED ACTION: To recommend that this be added for formal approval in the
fall Supplemental Request.
ALTERNATIVES: Due to the safety issues, APCHA is recommending approval due to there
being no financial impacts.
CITY MANAGER COMMENTS:
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Memorandum
To: Mayor Skadron and City Council
From: Jessica Garrow, Community Development Director
Phillip Supino, Principal Long-Range Planner
Justin Barker, Senior Planner
Reilly Thimons, Planner Tech
Meeting Date: August 9, 2016, 4:00 PM
RE: Land Use Code Revisions – Commercial and Residential Use Mix and View Planes
REQUEST OF COUNCIL: As part of the work to update the Land Use Code, Council is asked to
provide feedback on commercial and residential use mix and view planes. Council is asked to identify
which options for commercial and residential use mix should be explored in more detail and brought
back at the August 29th work session (See Exhibit C for “checklists” with identified potential options).
BACKGROUND: One of City Council’s top ten goals is to update the Land Use Code to better reflect
the Aspen Area Community Plan (AACP). This includes a number of topics, including examining
commercial and residential mix and view planes. Focused on Commercial Design Standards, Use Mix
and Off-street parking, the public outreach and research efforts have yielded useful data and generated
increased public participation and understanding. All projects are on target for completion in the early
fall.
Over the summer, staff and consultants have been working to gather community input on all the
potential code amendment topics. Specific to commercial use mix, consultants Mark White and Alan
Richman have conducted small group and individual interviews with business owners, members from
City Council and CCLC, and community members. In addition, feedback has been gathered in pop-up
workshops throughout town and on the project website, www.AspenCommunityVoice.com. For
residential use mix, outreach to date has focused primarily on pop-ups and website comments, with
some small group participants providing comments on the issue. On View Planes, staff is requesting
additional direction from Council in order to ensure robust public outreach on this topic. To date, over
400 people have been engaged in the efforts to update the Land Use Code.
COMMERCIAL USE MIX: The objective of this work is to identify strategies to encourage a
sustainable mix of commercial businesses within the City’s downtown and commercial zone districts.
Aspen’s unique variety and density of commercial uses is an important aspect of its character. As stated
in the AACP (“The Commercial Sector, page 20):
“There is a concern that businesses providing basic necessities will be replaced with businesses
providing non-essential goods and services. High-profile locations in the downtown have
steadily converted from restaurants to retail spaces, some retail spaces have transformed to
offices, and high rents have resulted in a continuing shift towards exclusivity. The character of
our community is bolstered by a diverse commercial mix. While we have taken some steps to
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increase retail diversity, we must pursue more aggressive measures to ensure the needs of the
community are met, and to preserve our unique community character.”
The White & Smith, LLC team (Mark White and Alan Richman) is leading the use mix project, building
on prior work conducted in 2008. The 2008 Locally Serving Business Report, attached as Exhibit A,
identified a number of regulatory and non-regulatory tools to encourage locally serving businesses, and
to minimize market conditions that supplant them. Based on the information gathered to date, there are
a number of potential regulatory tools that could be further explored. These options are listed below,
and a more detailed discussion of each potential option will be presented at the work session. At this
point, these tools have not been fully investigated. Staff requests Council identify which, if any, of the
tools are of interest for further investigation and discussion.
1. Zone District Approaches
a. Expand/modify zone district boundaries – rezone some areas to NC/SCI or modify
district standards to include specific references to the desired business types.
b. Tailor use list and/or dimensional standards – revise list of uses and/or dimensional
requirements within commercial zone districts to allow or encourage desired uses and
disallow or discourage undesirable uses.
c. Create local serving business district (LSB) – create a new zone district or overlay
geared toward “local serving businesses.” This would require establishing a definition of
“local serving business.”
2. Use Limitations
a. Use size restrictions – impose either a basic cap on size or tie size to a requirement to
demonstrate use is locally serving.
b. Use caps and spacing requirements – limit the number of designated uses permitted in
a district or requiring a minimum distance between designated uses.
c. Chain store/formula retail restrictions – restrict, cap, impose discretionary review, or
outright ban chain stores.
d. Conditional use/special review – modify conditional use lists and review criteria or
apply a discretionary review to uses that exceed a designated threshold, such as FAR.
3. Design/Incentive Approaches
a. Modify design guidelines – modify guidelines to encourage second-tier business spaces,
or spaces less suited for high end retail uses.
b. Height/floor area bonus – create bonuses for encouraged uses. This could mean
downzoning current height or floor area allowances and providing incentives to certain
uses that would align with current zone district dimensions.
c. Parking or affordable housing reductions – allow reductions in parking or affordable
housing requirements to encourage desired uses.
d. GMQS scoring – create a competitive growth management system that encourages
certain uses. The City instituted a scoring system in 2007, but repealed it in 2014 due to
lack of competition for allotments.
e. Legacy business program – create a registry for qualifying businesses that could
provide incentives.
4. Impact-Oriented Systems
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a. Mitigation standards/fee-in-lieu – require mitigation or fee-in-lieu for new development
that would fund establishment of local serving businesses.
b. Ratio-based program – develop an optimum ratio of locally serving business and high
end commercial that could not be exceeded.
c. Commercial replacement requirements – require certain uses to be replaced when a
building is redeveloped.
STAFF RECOMMENDATION: A summary of the tools that, at initial glance, appear to be the most
appropriate or that require attention and clear policy direction include:
• Define local serving businesses. No matter what options are ultimately pursued, staff believes
the city needs to clearly define the kinds of businesses it is trying to encourage. This could
include businesses that serve day-to-day consumer needs, businesses that are “funky” and
unique, legacy businesses, or all of the above. The term “local serving business” has been used
throughout this memo to maintain consistency, however staff recommends further exploration
of the term, as it can be argued that nearly every store in Aspen serves a segment of the local
community.
• Update of the use list for NC and SCI. This option would provide a more comprehensive list
of uses than is found in the districts today, allowing the city to more effectively target the uses
that are allowed, where they are allowed, which require discretionary review, and which are not
permitted.
• Revise the Commercial Design Guidelines to provide opportunities for second tier
business spaces. There is a significant interrelationship between the design of a new building
and the uses it will likely contain. Staff would look further into this and provide more detailed
information at a future work session related to Commercial Design. Some discussion of the
trade-offs between how design standards can impact what types of businesses can locate in a
building should be part of the continued land use code discussions.
• Uses to restrict/uses to promote. This includes discouraging uses that impair policies for
downtown and the commercial districts – either by supplanting space needed for those
businesses, driving up costs, or by taking direct action to prohibit uses in the downtown area.
The City has done this in the past, most notably with the ground floor office space ban in the
Commercial Core and Commercial zone districts. On the other hand, the kinds of uses that
disappear often do so because of the cost of doing business in Aspen, and may need regulatory
incentives to remain in place.
• Analysis of chain/formula regulations. Restrictions on chain businesses have become
somewhat of a trend in resort communities throughout the nation. Residents and businesses
have expressed interest in this type of restriction in Aspen. For various reasons, staff does not
recommend that the Council further discuss these restrictions at this time. If Council is
interested in discussing this option in more detail, this can be included on the August 29th
agenda when the City Attorney and Mark White will be able to provide additional detail.
QUESTIONS FOR COUNCIL:
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1. Which regulatory tools does Council wish to pursue for further discussion?
RESIDENTIAL USES: One of the main reasons the moratorium was established was to address the
impact free-market residential uses have on commercial uses in the same building. The rationale behind
the 2004 infill regulations was to allow free-market residential uses in the downtown area and other
commercial zones in an effort to enable reinvestment in a deteriorating commercial base. The
unintended consequences of those changes have yielded some unwelcome impacts to commercial uses.
Thus, land use codes have changed, and new free-market residential units are no longer allowed in the
Commercial Core (CC) and Commercial (C-1) zone districts.1 While the issue was partially resolved in
the CC and C-1 zone districts through code changes in 2012 and 2015, the demand for free-market
residential units near the downtown has not gone away. Staff has used the moratorium process to
explore the relationship between commercial and residential uses downtown in the context of the
Commercial Design Standards and use mix analysis, including:
1. Research more information regarding what “micro units” are and how they have been used in other
communities.
2. Explore required physical separation of free-market residential units from commercial spaces
within the Mixed Use zone district.
3. Explore feasibility of an occupancy requirement for free-market units in commercial zones.
4. Work with APCHA regarding future feasibility of for-sale affordable housing units in mixed-use
buildings.
If City Council is interested in allowing free-market residential uses in commercial zone districts, the
regulatory options listed below could be considered. Staff recommendations are included in the
discussion.
Micro-Units: Following extensive research, staff has prepared white paper on micro units, which is
included as Exhibit B. The paper provides background information on micro housing nation-wide and
outlines some of the opportunities and challenges of implementing micro housing in Aspen. The white
paper may be used as a basis for discussion and further inquiry into the feasibility of micro units in Aspen.
Given the complexity of Building and Land Use Code changes required to facilitate micro unit
development, as well as the occupancy and deed restriction concerns revealed through staff analysis,
staff recommends Council not include micro units in the suite of code amendments that may emerge
from the moratorium process. Staff continues to have reservations about micro unit occupancy and
usage. In previous meetings, both Council and the Planning and Zoning Commission expressed
concerns, which staff shares, of an individual or entity purchasing all micro units in a building and
illegally converting them into a single unit. Further exploration of how micro units may be
implemented could be conducted after the moratorium process is completed.
1 Existing free-market residential units are currently allowed in the CC and C-1 zone districts. Staff recommends that any
code amendment regarding free-market residential units continue to allow those units that exist to remain as a legal use.
The code also allows the combination of existing free-market units in these zone districts as long as the overall square
footage associated with the free-market residential use does not increase on the property. Staff recommends this
allowance remain in any future code change.
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Physical Separation: The walking tours and small group meetings held during Commercial Design Week
yielded some interesting and useful input from members of the public regarding the built environment on
Main Street and the Mixed-Use Zone. Specifically, respondents noted the appeal of a mix of residential
and commercial uses and structures, the smaller scale of buildings within the MU zone and larger setbacks
from Main Street as character-defining aspects of the area.
While preservation and enhancement of these features would not necessarily preclude requiring the
physical separation of commercial and residential uses (as has been discussed in previous work sessions),
such changes to the development standards in the zone may have an effect on its future character and
physical form. As with other aspects of the moratorium analysis process, the results of Council action
regarding Commercial Design Standards will impact staff recommendations regarding physical separation
of uses in the MU zone. Thus, staff recommends further analysis of the options available following receipt
of the first draft of the consultants Commercial Design Standards report in late September.
Occupancy Restriction: If Council is interested in allowing free-market residential uses in commercial
zones, one option would be to only allow units that will be occupied by a local resident. This would be
similar to the current APCHA Resident-Occupied deed restriction, but would not necessarily require an
individual work in Pitkin County, just that they live a majority of the year in Aspen (RO Light). P&Z
strongly supported exploring occupancy restrictions as a way to invest in the local community and
ensure vibrancy. Staff recommends moving forward with options to require an occupancy restriction
for any “free-market” residential use allowed in the Commercial zone districts. From initial
conversations with APCHA this could take the form of the current RO deed restriction, or may need to
be a different type of deed restriction. Staff will continue to work with APCHA to refine potential
options for Council. If this option is pursued, staff recommends the allowed floor area for these
occupancy restricted units be different than more traditional affordable housing units.
Affordable Housing: There have been mixed comments during the community outreach sessions
regarding the appropriateness of affordable housing units in commercial zones. Comments are generally
split between those who think affordable housing is appropriate in these zones (because it provides
additional housing opportunities in town and more “lights on” throughout the community), and those to do
not (because it potentially displaces commercial uses). While the AACP encourages affordable housing
to be integrated throughout the community, including mixed use areas, the community outreach and
analysis process has not yet yielded clear direction on how best to reconcile that AACP language with
some of the challenges associated with implementing it.
Additionally, discussions with APCHA have revealed a tension between the desire for on-site affordable
housing units in a commercial or mixed-use building, as articulated in the AACP and the current land use
code, and the realities of the mortgage lending market. While the option for downtown residential
ownership properties is appealing, due to federal lending standards from the Department of Housing and
Urban Development, Fannie Mae and others, it is challenging to obtain a home loan for the purchase of a
residential condo in a mixed-use building. The federal standards have a spill-over effect in the private
lending market as well. Those challenges are compounded when a deed restriction is in place.
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Furthermore, private condo loans or those needed to purchase residential space in mixed-use buildings
typically require a higher down payment (as high as 20%) compared to more traditional townhome or
single family properties, raising the financial barrier to ownership. This has resulted in the APCHA Board
recommending any on-site affordable housing unit located in a mixed-use building be for-rent, as opposed
to for-sale. This is an issue that should continue to be part of the discussion as code amendments move
forward.
QUESTIONS FOR COUNCIL:
2. Does Council support staff’s recommendation to not pursue micro units at this time?
3. Does Council have any questions about the relationship between Commercial Design
Standards and use separation in the Mixed-use zones?
4. Should staff continue to explore the potential for use separation following the conclusion of
the Commercial Design Standards revision process?
5. Does Council support staff’s recommendation to pursue some kind of occupancy restriction
for new free market residential units?
6. Does Council support the concept of affordable housing units in commercial zones?
7. What other options should staff pursue in analyzing the feasibility of residential uses in
downtown?
VIEW PLANES: In February of this year, Council instructed staff to review the existing view plane
protections for effectiveness and assess the community’s priorities for view plane protection. At this
time, staff has conducted initial public outreach efforts to gauge the community’s feelings on how best
to regulate and preserve view planes. Staff recommends that the public outreach continue to take a
broad approach and ask the community to identify what views they believe are most critical to protect.
However, additional direction from Council is needed to set the parameters for the view plane discussion
and amendment process. Given the scope of the Commercial Design Guideline inquiry, much of the
view plane analysis may depend on the outcomes of the Commercial Design Guideline process. It may
be counterproductive for staff to spend time and resources on the view plane inquiry if the end result
were to conflict with the outcomes of the commercial design process. As such, staff expects the view
plane process to extend deeper into the fall.
Staff has identified three general courses of action for the view plane analysis and amendment process,
and asks Council for initial direction on which to pursue:
1. Seek to clarify and simplify the existing code language regulating development in view planes.
This could ease confusion in interpretation of the code without altering the protections currently
in place for view planes.
2. Explore minor amendments to the regulations such as limiting the linear distance from a given
view plane point, with the intent of clarifying and modifying the regulations without eliminating
them from the LUC.
3. Complete a holistic rewrite of the view plane regulations. This would require the most rigorous
public process, as well as requiring additional staff time and the assistance of outside
professionals.
Of the three options, staff recommends either clarifying and simplifying (option one) or minor
amendments (option two) to the language regulating view plane preservation. Additionally, staff
recommends waiting to engage the public more fully and contract with consultants regarding view plane
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regulations until after draft Commercial Design Guidelines have been discussed by Council in
September.
QUESTIONS FOR COUNCIL:
8. Which of the View Plane amendment options does Council wish to pursue at this time?
NEXT STEPS: Staff believes all projects – commercial design, public amenity, use mix, residential
mix, view planes, and off-street parking – are on target for completion in late 2016/early 2017. The next
work session is scheduled for 4pm on Monday, August 29 to review all of the code amendment topics.
This will be a longer work session, with dinner provided. All consultant teams will be at the work
session to present the information gathered to date, and so Council can ask questions regarding how
different efforts are coordinated. Staff’s goal is to get some initial direction on specific policies that
should be integrated into the code. The consultants will present different options related to their specific
work for Council to discuss and give direction. The tentative schedule for that work session is:
1. Discussion of AACP and how future code amendments will implement the AACP.
2. Overview of a code update “blueprint”
3. Discussion of all anticipated code amendment topic areas:
a. Commercial Use Mix options
b. Free-Market Residential options
c. Commercial Design Standards and Public Amenity regulations
d. View Planes
e. Off-Street Parking and Mobility requirements
Following the August 29th work session, a series of small group meetings and open houses will be held
over the week to gather additional community feedback on the topics. This information will be
compiled with the initial direction received tonight and presented to Council at September work
sessions, in anticipation of moving into specific code amendments in October. In either late September
or early October, a large community meeting or open house will be held to get final input prior to
moving into code language with City Council.
ATTACHMENTS:
Exhibit A – 2008 Aspen Locally Serving Business Report
Exhibit B – Micro Housing White Paper
Exhibit C – Regulatory Tools Checklists
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Mark White, White & Smith, LLC
230 SW Main Street, Suite 209 | Lee’s Summit MO 64063
816.221.8700 (p) | 800.756.2798 (f)
www.planningandlaw.com
City of Aspen
Commercial Mix
Strategies to Preserve
Locally Serving Businesses
June 25, 2008
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City of Aspen | Commercial Mix Strategies
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Contents
1. Introduction ................................................................................................................ 2
2. Steps to Creating Locally Serving Businesses.............................................................. 3
3. Police Power Options .................................................................................................. 6
3.1 Existing Zoning Tools ........................................................................................... 6
Use existing districts (S/C/I and NC) ........................................................................... 6
Expand and modify the S/C/I and NC Zone Districts .................................................. 6
Tailored Use Lists ........................................................................................................ 7
Local Serving Zoning District ....................................................................................... 8
Basic Size Restrictions ................................................................................................. 8
Discretionary Review .................................................................................................. 9
Reduce the amount of land zoned for HECU space .................................................... 9
Prohibit Offices in Basements or Pedestrian Malls .................................................. 1 0
Height / floor area bonus .......................................................................................... 10
3.2 Use Quota ......................................................................................................... 10
3.3 Mitigation .......................................................................................................... 11
3.4 Fee in Lieu ......................................................................................................... 13
3.5 Growth Management Quota System (GMQS) Scoring ..................................... 14
3.6 Ratio based program ......................................................................................... 14
3.7 Commercial Rent Control.................................................................................. 15
4 Fiscal or Public-Private Partnership Tools ................................................................. 15
4.1 Community Enterprise ...................................................................................... 15
4.2 Excise Tax .......................................................................................................... 20
4.3 Succession Planning / Proactive Redevelopment ............................................. 21
4.4 Economic Development Director or Building Staff Capacity ............................ 22
4.6 Development agreements ................................................................................ 26
Conclusions ....................................................................................................................... 27
Appendix A: Regulatory Approaches ................................................................................ 28
Appendix B: Palm Beach, FL Town-Serving Commercial Regulations .............................. 31
Endnotes ........................................................................................................................... 41
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1. Introduction
The City of Aspen is seeking ways to encourage a sustainable
mix of businesses in the community. In recent years, rising land
costs and market conditions have squeezed many of the City's
locally serving businesses, along with businesses that create the
unique character and flavor of Aspen's commercial core. As
land costs rise and demographics change, businesses that cater
to a luxury market or similar, high end businesses can outbid
locally serving businesses for limited space. The City fears that
this could:
1. Drive businesses that provide day to day goods and
services to more affordable locations downvalley;
and
2. Replace the "messy vitality" of the City's existing core
with a monoculture of luxury businesses; and
3. Undermine the traditional energy of the City's
downtown core with less active businesses - such as
a storefront that provides an address, but few retail
goods that generate pedestrian activity along the
street; and
4. Crowd out businesses that cater to the City's existing
permanent population with those that provide goods
and services that are largely within the exclusive
reach of its more affluent visitors.
While other communities have struggled with the issue of
commercial mix, there are surprisingly few good examples.
While many communities around the nation have dealt with an
influx of retail chains through "formula-based" ordinances, few
local governments have developed programs that are designed
to keep commercial or retail businesses affordable to local
residents, and fewer still have programs that are targeted to
character-based businesses. Land use regulations that are
targeted to affordable retail or retail gentrification are rare.
Some cities have developed "use quota" systems or
neighborhood commercial approaches that are offer loose
This report uses several
unique terms:
Locally Serving Business
refers to establishments
that provide products that
meet the day to day needs
of City residents. These
include groceries, medicine,
clothing, and similar items.
Several businesses, such as
Carl’s, currently provide
some of these products.
Otherwise, residents must
commute or order them
online.
Character Based Business
means an establishment
that contributes to the City’s
unique character, and that
has traditionally attracted a
local clientele. The Red
Onion is an example of this
type of business.
For brevity, this report refers
to locally serving and
character based businesses
collectively as “LSB.”
High End Commercial Uses
(HECUs) are those that offer
a limited product line that
caters principally to an
upper income or a tourist
oriented customer base.
These can include high-end,
designer clothing stores,
jewelry stores, art galleries,
and similar establishments.
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parallels to what Aspen is trying to achieve. The City planning staff and consultants
have summarized these approaches in prior correspondence to the City.
The City of Aspen recognizes that a combination of approaches is appropriate. While no
other jurisdiction that has addressed this issue is facing the same issues, or the same
type of market conditions, there are pieces of each approach that could apply to Aspen.
This memo summarizes the research we have collected. This involved a review of over
506 studies, reports, articles and other secondary sources, internet and Westlaw court
case searches, and desktop searches of the White & Smith, LLC digital library of 42,000
local code and planning documents. Specifically, this report focuses on tools that
involve not only mitigation, but also on direct public-private partnerships or financial
assistance.
2. Steps to Creating Locally Serving Businesses
Any program the City chooses to establish will involve the following logistical issues:
1. Creating or Preserving Space – how do we create space that is available for
businesses that provide day to day goods or a unique, local flavor? How do
we attract businesses to those spaces?
2. Institution/Staffing - who administers the program? Is the agency
independent, quasi-independent, or an arm of the local government?
3. Beneficiary selection - how does the agency choose businesses that
participate in the program? If program resources are limited, how does the
agency choose one business over another? What are the criteria?
4. Oversight - how does the agency monitor a business' compliance with
program criteria?
To address these logistical issues, each approach will require the City (or other
participating entities) to create an administrative program. Because provide LSB space
through regulations or public initiative is a unique issue with little precedent, it will
evolve over time. An example is the City and County’s pioneering employee housing
mitigation program. There were few examples of how this works when the City initially
established the program. The program is now a complete system with land use
regulations and public initiatives that create space for employee residences, and a
program to oversee how the units are occupied and maintained. A similar system is
needed to ensure that LSBs are created, occupied by appropriate business entities, and
maintained as a LSB over time. This involves the following steps:
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1 Define “locally
serving business”
Define what locally serving retail (LSR) means in Aspen. The
definition could reference the size, nature, or product line of the
business.
2 Draft code
amendments
If the program involves an exercise of the City’s police or taxing
powers, such as a mitigation requirement, the program will
require changes to the Land Use Code or the general code. A
program that involves a taxing power (such as an excise tax for
new construction) may also require voter approval in advance of
the tax.
3 Create
administrative
agencies
Any concerted effort to create LSBs will involve a significant
commitment of staff resources. The City could either add new
staff to existing departments, or create an economic
development agency that administers the creation and oversees
or inspects the ongoing operations of the LSB. The agency could
also assist with incentives for creating or maintaining the space.
4 Administration This involves a number of tasks:
(1) Day to day permitting activities that apply the code or
program.
(2) Administering the new space or money collected. The
City could seek external programs (State/Federal) that
encourage LSBs. The money could also support a
planning project that creates an LSB overlay district that
eases restrictions or that pays City regulatory and impact
fees.
5 Enforcement When the LSB space is created, it will constantly update its
management and inventory. Regardless of the type of business,
the product line will include a variety of goods and services at
various prices. As the product line changes, the business could
evolve from one that originally catered to a local clientele, to
one that begins to serve a luxury or tourist oriented customer
base. This could evolve slowly. For example, a clothing store
could have a single rack with a more expensive set of designer
items, and the balance of the store devoted to day to day
sundries (such as t-shirts and underwear) or affordable apparel.
This luxury items could provide a profit margin that subsidizes
the lower margin on the locally serving items. As the business
grows, it might start to allocate more rack space to designer
clothing, eventually crowding out the locally serving items. At
what point is the business no longer an LSB? What happens
then? Does the City issue a notice of violation and shut down
the business? Does it assess a penalty on the luxury items?
Who inspects the allocation of rack space and sales of luxury
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items, and how? These issues could become critical if the
program is to have its intended result. Otherwise, new HECUs
are approved or receive regulatory or financial incentives, while
the community benefit eventually disappears.
The regulatory, financial and public investment tools discussed in this report can create
or reserve space, maintain the space as LSB over time, or both. They can also be
classified as police power (regulatory) or financial or public-private partnerships (such as
a City Economic Development Director who seeks out financial incentives for LSBs). The
following table summarizes these techniques by their classification. These techniques
are discussed in greater detail later in this report. A separate matrix summarizes the
advantages and disadvantages of these techniques.
Technique
Re
g
u
l
a
t
o
r
y
Fi
n
a
n
c
i
a
l
/
Pu
b
l
i
c
Pa
r
t
i
c
i
p
a
t
i
o
n
Pr
o
v
i
d
e
s
o
r
Pr
e
s
e
r
v
e
s
S
p
a
c
e
Ma
i
n
t
a
i
n
s
S
p
a
c
e
Existing zoning tools*
Use Quota
Mitigation
Fee in Lieu
GMQS Scoring
Ratio based program
Commercial Rent Control
Community enterprises
Excise Tax
Succession Planning / Proactive Redevelopment
Economic Development Director
Direct financial incentives
Build staff capacity
Development agreements
* This includes using or expanding the S/C/I or NC districts, refining the list of permitted and conditional uses, creating a
Local Serving Zoning District, establishing size restrictions, discretionary review, downzoning, prohibiting offices in
basements or pedestrian malls, and establishing a height or floor area bonus for providing LSB space.
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3. Police Power Options
3.1 Existing Zoning Tools
The tools discussed below rely on the use of conventional zoning tools for LSB space.
Generally, these tools involve the fewest changes to the City’s existing regulatory
system, and the least aggressive approaches in terms of new forms of regulation or
financial impacts. (A notable exception is downzoning).
Use existing districts (S/C/I and NC)
The City’s existing Service/Commercial/Industrial (S/C/I) and Neighborhood Commercial
(NC) districts are already designed to encourage locally serving uses. S/C/I is designed
to accommodate employment based uses rather than the types of LSB uses discussed in
this report. Most uses limit retail uses to 25% of floor area. Commercial uses are
limited to a maximum FAR of 1.5:1 out of an overall FAR of 1.5:1.
The NC district allows “neighborhood commercial” and service oriented uses, and is
specifically designed to “accommodate the commercial uses serving the daily or
frequent needs of the surrounding neighborhood.” Commercial uses are limited to a
maximum FAR of 1:1 out of an overall FAR of 1.5:1.
The advantage of these districts is that they have worked well, are a familiar technique,
and accommodate LSB space where it is needed. The City would continue to use these
districts to provide LSB space if it believes that the current amount of LSB space is
appropriate and will continue into the future under the current mix of district
regulations.
However, the uses in these districts are not restricted to LSB space. There is nothing in
the standards that require space to accommodate the needs of local residents. In
addition, the permitted uses also accommodate a number of uses, such as office space,
that could supplant LSB space without providing local goods and services.
Expand and modify the S/C/I and NC Zone Districts
This alternative expands the S/C/I and NC Zone Districts by rezoning some areas from
existing zoning categories to S/C/I and NC. As an alternative, the City could modify the
district standards to include specific references to LSB businesses, such as grocers,
pharmacies, and similar uses. The district regulations could reserve a minimum FAR for
LSB uses or cap FAR that is devoted to HECU space.
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If the City believes that these districts currently work well in their current configuration,
these types of modifications could significantly disrupt the current economic and
neighborhood balance. In addition, any change in regulations would apply uniformly
throughout the districts. This could expose some sites to development of LSB space
where it is not appropriate, or will supplant space for other uses the City desires.
Tailored Use Lists
The list of permitted uses within each zoning district is typically very broad. For
example, the NC district allows “retail and restaurant uses” and “neighborhood
commercial uses” on all floors. The Land Use Code currently defines “neighborhood
commercial” uses as follows (Land Use Code § 26.104.100):
Commercial establishments engaged in the selling or renting of consumer
goods and merchandise to the general public and the rendering of
services incidental to the sale or rental of such products. Neighborhood
commercial uses shall include retail uses (with the exception of
restaurants and nightclubs and bars), post office branch, artist studio,
commercial kitchen, bakery, food market, neighborhood café,
broadcasting facility, movie theaters and the sale or rental of
motorcycles, motor-drive cycles and motorized bicycles as defined by
Section 42-1-102, C.R.S, nonmotorized vehicles such as bicycles, clothing,
sporting goods, jewelry, books, videos, prescription drugs, liquor,
hardware, furniture and art and similar uses and activities.
While this definition embraces a number of specific uses, many of these uses guarantee
that the business will furnish day to day goods and services. For example, a clothing
store could provide only high end merchandise and still qualify as a clothing store. In
addition, some uses – such as artist studios and jewelry stores – do not provide day to
day sundries at all. Others, such as motorcycle sales, might not be appropriate in a
neighborhood setting.
The City could revise the list of permitted uses the NC and other commercial zoning
districts to exclude uses that are too numerous or that are not locally serving. This
breaks the broad uses into specific use categories. This has the advantage of more
carefully calibrating the uses in each district to their intended function. The City can
then develop FAR allocations or growth management incentives that tie directly to the
newly defined uses.
A comprehensive revision of permitted uses is also a major zoning update that could
involve significantly more work than the City is looking for with this project. Opening a
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debate on the list of permitted uses becomes an extensive zoning update. This is a
worthy task, but beyond the narrow scope of this project.
Local Serving Zoning District
Instead of completely revamping the S/C/U or NC districts, this option involves a new
district that is geared to LSBs specifically. It could be a base district, or an overlay
district that has the same dimensional standards as the S/C/I or NC but a narrower
range of uses that are locally serving. The City could also tie LSB requirements to size,
type of use, or similar factors.
An example of an LSB district is the City of Palm Beach, Florida’s “C-TS” town-serving
commercial district. This district classifies all commercial uses over 2,000 square feet as
a special exception, and requires to demonstrate that they are “town-serving.” This
district, originally adopted in 1974, survived a court challenge in 1991 by an applicant
who attempted to convert an existing 7,000 square foot restaurant to a chain clothing
store. The court upheld the Town’s determination that the use would not be town
serving, and rejected a takings challenge.1
In conversations with the Palm Beach planning staff, the applicants demonstrate that a
use is town serving by having an accountant or similar professional certify this in the
application. The town serving requirement is time consuming - they require an annual
report at the time the applicant renews its business tax license. A CPA certifies that
they have reviewed the documents and determined that a percent of business is derived
from townspeople (defined as residents, etc.). Of 2100 businesses on the island, about
100 have to provide the report annually. Their staff indicates that no enforcement
actions have been brought, and that review of the submittal is cursory.
Palm Beach’s restriction is a district that is tailored to those that are locally-serving, and
also uses size restrictions and discretionary review (discussed below).
Basic Size Restrictions
A size restriction would limit the size of commercial uses, on the theory that smaller
uses are more likely than larger uses to be locally serving. This could be tied to a
requirement that uses that exceed the threshold demonstrate they are locally serving
(as in Palm Beach, discussed above), or reserve a designated amount of space for LSBs.
A fundamental problem with this approach is the lack of evidence that smaller uses are,
in fact, locally serving. Our anecdotal observations are that the opposite is true.
Smaller spaces can provide storefronts for luxury goods, while many types of LSBs –
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such as grocers – often demand larger floorplates and larger sites for delivery, loading,
parking and display than, for example, a small jeweler or designer clothing storefront.
Discretionary Review
This technique apply conditional use review to designated uses (e.g., luxury clothing or
jewelry stores), or uses that exceed a designated FAR threshold. The criteria could
range from a requirement that the applicant demonstrate that they are locally serving
(as in Palm Beach, above) to more flexible standards such as a point system.
This approach has been used in other places, but usually on a case by case basis for
larger scale projects rather than as part of a uniform set of criteria. For example, the
developer of the Upper Rock district In Rockville, Maryland converted an existing
suburban business park into a mixed-use neighborhood. The project includes 844
residential units at moderate prices, two office buildings and a small amount of retail.
This includes an 8,000 square foot market center designed to offer relatively cheap
space for startup businesses.
This approach could yield results, but is unpredictable. It could require several
applicants to shoulder a larger community need. It also relies on applicants and the city
to negotiate conditions of approval that are fair and effective. Staff reports that the
City has required LSB conditions in the past. However, they are not common today.
Reduce the amount of land zoned for HECU space
As with S/C/I and NC, the CC and C-1 districts also accommodate retail and
“neighborhood commercial” space. As with those districts, HECUs are also permitted
on space that could otherwise accommodate LSBs. These are the locations that absorb
most of the City’s HECU spaces. The City could rezone these areas to alternative
districts – either to NC or to a new, LSB district. An applicant who wishes to establish
and HECU would need to rezone to accommodate the use. Mitigation of impacts on
LSB space needs could be addressed as a condition of rezoning.
This approach requires downzoning, which is potentially controversial. In addition,
many of the HECU uses currently permitted are not necessarily inappropriate in these
locations. The real problem is the monoculture effect, where the aggregation of these
uses crowds out LSBs. Eliminating HECUs entirely could excessive in relation to the
problem, and could invite litigation. The City could address this situation by allowing
nonconforming HECUs to continue or expand. However, there are more flexible tools
to address the problem than a downzoning.
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Prohibit Offices in Basements or Pedestrian Malls
Offices are currently prohibited on the first floor in the CC district. This allows offices in
basements or second floors. LSBs are appropriate locations for basements or pedestrian
malls. Prohibiting offices in these locations eliminates absorption of these spaces by at
least one form of HECU. The disadvantage of this technique is similar to that of the
zoning techniques discussed above, because it does not proactively ensure that LSBs will
occupy the space. It also further limits office locations, which already compete with
housing for space.
Height / floor area bonus
Intensity (height, floor area) bonuses are a common way to incentivize public amenities.
The concept could also apply to LSB space. For example, Overlake Village in Redmond,
Washington has created a neighborhood-scale retail center. A focus of the commercial
development was to encourage small, local businesses to remain in the neighborhood.
In order to promote this, the city developed a plan that provides an incentive for
developers in the form of additional floor area and building height to incorporate a
percentage of ground floor retail space at or below market rate in order to provide
affordable retail space for small, local businesses in the area. The incentive program
also allows for a wider range of commercial uses as a bonus for provision of certain
public amenities.
Adding floor area entitlements could conflict with the City’s overall growth management
and carrying capacity policies. Height limits are a important issue to City residents. If
the City pursues this approach, the policy trade-off should be clear from the outset –
that the gain in LSB space is worth the additional height.
3.2 Use Quota
This technique limits the number of designated uses that are permitted in a district. It
strikes a compromise between allowing those uses without limitation and banning them
completely. By reserving spaces for other uses, it increases the likelihood that the
district will truly reflect a mix of uses, rather than a single use that happens to command
the highest rents at a particular point in time.
Use quotas have been used successfully by other communities, such as Berkeley,
California. As with restricting office space, the technique does not ensure that LSB’s will
occupy the space that is not available to HECUs. However, it does allow the City to
more closely calibrate its zoning districts to the desire mix of uses than does
conventional zoning.
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3.3 Mitigation
Mitigation relies on developer contributions to mitigate their impacts on the City's
commercial mix. This is similar in concept to the City and County's employee housing
mitigation program. The employee housing mitigation program calculates the number
of employees generated by new development, and requires applicants to provide
housing to mitigate the demand that this creates. Similarly, a locally serving business or
commercial mix mitigation program would require applicants to mitigate their impacts
on locally serving retail by providing affordable space. The applicant could provide the
space onsite, or through a contribution (such as a fee in lieu) to provide the space at
another location. This discussion assumes that the property owner would mitigate by
providing space onsite.
No local governments have used this approach to date for local retail. Therefore, Aspen
will pave new ground if it opts for a mitigation approach. In addition, if locally serving
retail space is allowed to remain under the developer's control or ownership, it is not
clear how courts would characterize this approach. However, there are general
principles involved in computing mitigation requirements that the City should follow in
order to ensure that the mitigation is equitable and legally defensible. These suggest a
number of steps to create a defensible mitigation system. These steps are:
1 Document how
LSB and HECU
space has changed
over time
The City has engaged a local business person and a real
estate broker to track business activity over time along
with changes in commercial real estate in the City. The
studies will assess the changes in commercial lease rates
and land use mix over time, along with the factors that
contributed to these changes. These studies should
document how luxury businesses contribute to the decline
in LSBs, and provide a basis for a predictive model that ties
increases in luxury businesses to changes in LSB space.
2 Prepare a nexus
study
This requires the following subtasks:
(1) Document that new development creates a need
for and benefits from locally serving goods and
services and. This establishes the “nexus"
between new HECU space and the demand it
creates for locally serving retail. This study could
use applicable industry literature (i.e., how local
retail "follows rooftops") coupled with some local
data such as building permits for residential, HECU
and LSB space, sales tax trends, trend in lease rates
and land costs, etc.
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(2) Document that the mitigation requirements are
proportionate to the demand created by the
proposed development. This includes how much
LSR is needed to serve unit of residential or
commercial, non-LSR development. This leads to
an important limitation of mitigation. While new
development or uses may increase the amount of
LSB space needed, there is probably an existing
need for LSB space. The City cannot require
developers to correct this existing “deficiency” of
LSB space. Developers can voluntarily do this (as
with development agreements) and can provide
surplus space as an incentive item. However, the
City cannot require mitigation for deficiencies, but
instead is limited to the marginal increment of
space required by new growth.
(3) Document the economic impact of the regulations
on new development. If the economic impact is
too severe, the City may consider either reducing
the mitigation amount or softening the regulatory
impact with incentives, additional height or FAR, or
similar compensatory measures.
3 Draft code
amendments
The Land Use Code would be amended to require
mitigation, set up reporting and monitoring requirements,
and provide for inspection and enforcement.
4 Administration This involves a number of tasks:
(1) Day to day permitting activities that apply the code.
Staff, the Planning Commission, or City Council must
determine whether a business is locally serving or
not, assess the mitigation requirement, and ensure
that it is delivered.
(2) Revenue collected: The City must decide what to
do with the new space (or, if an in lieu fee is allowed,
money collected). The space can remain under the
ownership and control of the applicant, subject to
inspection by the City, dedicated to the City or an agency
designated in the Land Use Code, established as a
community enterprise (see discussion in Part
4.1 Community Enterprise, below), or provided as part
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of an ongoing community enterprise.
5 Enforcement The program should include procedures for inspecting and
monitoring space provided through mitigation to
determine whether it remains locally serving. Because the
retail sector constantly turns over its inventory, this is a
difficult task because the City will need to set product types
or price levels and percentage of stock requirements (or
similar metrics) to determine whether the space is
considered an LSB. The City could rely on the existing
enforcement mechanisms in the Land Use Code to enforce
violations, or consider additional standards such as a
penalty for merchandise above the trigger level that is not
considered locally serving.
3.4 Fee in Lieu
The space provided by an HECU onsite might not work for an LSB enterprise. Because
lots and parcels in Aspen are small and FAR is restricted, the space available for an LSB
might be too small to operate the business, provide for delivery and loading,
accommodate parking and to maintain and display inventory. This makes it difficult for
the HECU to find the right tenants and, if they are available, to allow for the success of
the ongoing operation. The tight spaces could also create conflicts with the HECU’s
operations. In addition, because nexus studies are not completed, it is unclear how
much space is actually needed for LSBs at this point. If the amount of space needed
Citywide is small but individual operations require more space than an HECU applicant
can offer, and onsite mitigation requirement could simply result in a proliferation of
small spaces that exceed the City’s aggregate space needs but, individually, cannot meet
the needs of future retailers.
This type of situation is common with park land dedications. In most communities,
each new subdivision creates a need for an increment of park space. However, the
individual space a subdivision can provide is sometimes too small to provide the
recreational or open space functions for new parkland, or to be effectively maintained.
Most communities allow the subdivider to pay a fee in lieu of providing the space. This
provides funding for the community to establish space with sufficient land and at a
location where it is workable.
The same is true for LSB mitigation. A small area in the back of an HECU might not
provide space for an LSB to operate. However, a larger space at a better location could
make it easier to find the right tenants, that they remain successful, and that they are
able to deliver the types of products that the community is looking for with program.
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3.5 Growth Management Quota System (GMQS) Scoring
In 2007, the City moved from a mechanical growth management system to one that
ranks projects based on community objectives. This encourages projects to incorporate
features that coordinate with the City's goals and objectives for new development, and
allows preferred projects to move through the process quicker. The City could add LSB
projects, or those that include LSB space or mitigation, to the ranking system. This is a
powerful incentive for development, and could encourage businesses to work out
creative solutions to mitigation and the City's LSB needs before applications are
submitted.
3.6 Ratio based program
Based on the City's ongoing studies of its commercial mix over time, the City would
develop an optimum mix of LSB to HECU or unrestricted commercial development.
Using its growth management powers, it would then develop a "carrying capacity" for
HECU or unrestricted commercial space based on the amount of LSB space. This is
similar to an "adequate public facilities ordinance" (APFO) or "concurrency" program,
where a community develops a level of service (LOS) for infrastructure and then ties
new development approval to the availability of infrastructure. The community
typically develops a capital improvements program that shows when infrastructure will
become available and how it is financed. While an APFO does not require new
development to pay a fee or to mitigate, it must wait until infrastructure is available for
proceeding. Many programs give developers the option to mitigate by accelerating the
construction of improvements, and thereby moving through the process faster.
In a similar vein, a ratio based program would compute how much new unrestricted
commercial development (including, or limited to, HECU space) the City can
accommodate based on its existing LSB inventory. The City would also develop a long
term plan to provide LSB space through public-private partnerships, using the tools
discussed on Chapter 4, below. If insufficient LSB space is available, the applicant has
the option to scale back its proposed floor area to fall within the identified carrying
capacity, or to wait until LSB space is provided. If the applicant does not want to scale
back or or await the construction of LSB space, it can mitigate by providing space in kind
or paying a fee in lieu of mitigation in order to accelerate the program.
This program has the advantages of flexibility (because developers have different ways
to comply) and defensibility, as it is tied directly to the community's goals and objectives
for commercial mix. However, it is quite unusual in the context of community benefits
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other than infrastructure, and would also require a significant amount of study to
develop the appropriate numbers and metrics for the system.
3.7 Commercial Rent Control
Commercial rent control directly limits the rent levels that landlords can charge for
commercial space. While residential rent control is an established technique in other
states (other than Colorado, where it is prohibited), commercial rent control is rare. It
has been tried in New York City and Berkeley, California. In Berkeley, the program was
invalidated by a federal district court, and the City later replaced the program with a
system of use quotas. Rent control would make space more affordable to LSB tenants.
However, taken alone, rent control would not ensure that affordable space is occupied
by LSB tenants. Commercial rent control would rely on LSB tenants to seek out
affordable space in the marketplace.
4 Fiscal or Public-Private Partnership Tools
4.1 Community Enterprise
Community enterprises involve direct investment in and ownership of the enterprise by
the affected community. A notable example is the National Football League's Green Bay
Packers. The Packers are a business corporation2 whose shares are publicly traded and
owned principally by its fans. The entity is a publicly owned, non-profit corporation
with 4,750,934 shares of stock that are owned by 112,015 stockholders. Stock shares
include voting rights, but the redemption price is minimal. Stock does not pay
dividends, does not appreciate in value, and does not carry season ticket privileges.
The articles of incorporation prohibit any person from owning more than 200,000
shares.3 This arrangement keeps the team under the control of its fans, rather than a
unified ownership entity.
This type of cooperative arrangement can also apply to locally serving businesses.
Citizens in several western states have banded together to open community owned
stores in response to the closing of existing stores, to fill the local shopping needs of
residents. Others, such as the Willey Street Co-op in Madison, Wisconsin, simply
provide food at affordable prices to its owners. The Willey Street Co-op has operated
for 35 years in a traditional, compact neighborhood where most customers arrive on
foot or bicycle. Others, such as the Powell Mercantile in Powell, Wyoming, were a
response to an urgent community need for basic goods and services in a rural location.
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Local residents become shareholders, meet periodically to vote on store issues, provide
local civic and business leaders who oversee the community store, and forego dividends
and appreciation in exchange for providing a community asset. These stores can
provide a variety of products, such as clothing, shoes, furniture, and household items.
There are many ways to structure a community enterprise:4
Consumer
cooperatives
A cooperative is an enterprise that is owned by its members (such
as retail merchants), where each member has an equal say in
decisionmaking and receives a share of any profits generated.5
The International Cooperative Association (ICA) defines a
cooperative as an autonomous association of persons united
voluntarily to meet their common economic, social, and cultural
needs and aspirations through a jointly-owned and
democratically-controlled enterprise.6 A cooperative operates
under 7 general principles:
1. Voluntary, Open Membership: Open to all without gender, social, racial,
political, or religious discrimination.
2. Democratic Member Control: One member, one vote.
3. Member Economic Participation: Members contribute equitably to, and
democratically control, the capital of the cooperative. The economic
benefits of a cooperative operation are returned to the members,
reinvested in the co-op, or used to provide member services.
4. Autonomy and Independence: Cooperatives are autonomous, self-help
organizations controlled by their members.
5. Education, Training and Information: Cooperatives provide education and
training for members so they can contribute effectively to the
development of their cooperatives. They inform the general public about
the nature and benefits of cooperation.
6. Cooperation Among Cooperatives: Cooperatives serve their members
most effectively and strengthen the cooperative movement by working
together through local, regional, national and international structures.
7. Concern For The Community: While focusing on member needs,
cooperatives work for the sustainable development of their communities
through policies accepted by their members.7
A cooperative allows independent businesses to remain
competitive with national retailers by giving small merchants
greater purchasing power allowing them to lower the cost of
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goods through volume buying and purchasing. Coops are often
able to negotiate directly with manufacturers. Coops can also
provide additional advantages to independent businesses
including national advertising, brand identity, expert marketing
and business advice. These have a long history in food retailing.
A consumer cooperative is distinguishable from a membership
cooperative. Membership coops include hardware alliances and
grocery alliances such as the Independent Grocers Alliance (IGA).
Coop members can vary widely in their operations and can
individually tailor their own inventory. Independent retailers can
form trade associations to cooperatively market, purchase, and
engage in other joint ventures. One example in Boulder, Colorado
is the Boulder Independent Business Alliance that was created in
1998 and now represents more than 125 businesses in the City.
The role of the alliance is to represent independent businesses in
public policy, promote members through joint advertising, and
marketing, member to member discounts such as reduced rates
on advertising though locally run media outlets, and future
benefits such as pooled insurance programs and the formation of
a community investment fund.
Community Owned
Business
Under this option, the community provides start-up capital for a
business that is owned and operated by a local entrepreneur. For
example, local residents could capitalize a business, with modest
interest rates or discounts.
Community
Corporations
These are capitalized through stock shares sold to local residents.
The bylaws typically stipulate that stockholders must live in the
state. Community corporations are run by an elected board of
directors. Investors generally seek community benefits rather
than financial gains.
Owner Occupancy
by Private
Corporations or
Individuals
Local retailers can ensure a stable location at a reasonable price if
they buy their building or store. Cities can encourage this through
property tax or income tax incentives, or low-interest loan funds
dedicated to small business owners.
Commercial Land
Trusts (CLTs)
A commercial land trust (CLT) borrows from the community land
trust concept that has been applied to affordable housing. In the
context of affordable housing, a land trust is a private non-profit
corporation created to acquire and hold land for the benefit of a
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community and provide secure affordable access to land and
housing for community residents.8 A CLT can effectively establish
and maintain affordable housing and the same model could be
used for commercial buildings with the requirement that buyers
or lessees be independent businesses. Commercial Land Trusts
are funded mostly by CDBG funds.
Publicly Owned
Space
The city itself could buy a commercial building and contract for its
management with the stipulation that the space be leased only to
businesses that serve community needs. Rents should be stable
and below market.
Identify Spill-Over
Space
The City can identify underutilized commercial districts and focus
revitalization efforts there to make the district a viable location
for local stores.9
Most of these enterprises are the product of local, private civic cooperation. These
efforts do not typically involve local government. However, the City could play a role by
becoming a shareholder, providing space, writing down land costs, offering grants or
low-interest loans, or otherwise offsetting startup and maintenance costs. It could also
provide matching grants or investments – for example, a pledge to buy a given number
of shares for every designated increment of shares that are sold on the open market.
The City could also establish an economic development department or dedicated staff
to assist with ongoing management.
A community enterprise raises a number of institutional and operational issues. These
include:
Ownership - many cooperatives assign a vote to each share. Others offer shares in
blocks or other arrangements in an attempt to expand the sale of shares.10 Most
cooperatives control either the absolute number or percent of shares that an
individual investor can hold.
Share Price. Higher prices yield more startup revenue if the market can support it,
while lower prices could attract more investors. Most community owned
cooperatives have priced their shares $100-500. The Willey Street Co-op prices its
shares at $56, and allows this amount to be paid over time. It relies principally on
product sales for ongoing revenues.
Benefits of Ownership. Most community owned stores limit or deny dividends and
price appreciation for shareholders because the investment is seen as a civic benefit.
This also limits decisions that are motivated by solely by profit rather than the wider
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public interest. Instead, ownership provides voting rights and access to information,
such as newsletters.
Shareholder Location. A cooperative could limit the sale of shares to local
residents, in order to ensure that the operation and management is consistent with
local needs. However, most community owned cooperatives have sold their shares
on a statewide basis, which expands the universe of investors.
Management. With most community owned stores, management is selected by
shareholders.
The following table summarizes the characteristics of several community owned
businesses that provide locally serving products:
Business Location Population
(2000)
Products Started Structure Own or
Rent?
Annual
Sales
Employees Store size
Little
Muddy Dry
Goods, LLC
Plentywood,
MT
2,061 Clothing,
yarn,
bedding,
shoes, gift
items,
jewelry
1999 LLC
managed by
members
rent $240,000 5 6,000
Orono
Community
Pharmacy
Orono, ME 9,112 Pharmacy 1999 Business
Corporation
Own
(initially
rented)
5 5,500
Powell
Mercantile
(the
"Merc")
Powell, WY 5,373 Department
store
2001 Profit
Corporation
Own
(initially
rented)
$560,000 10-11 7,500
Garnet
Mercantile
Ely, NV 4,041 Department
store,
furniture
2004 Corporation Own 7 10,000
Washakie
Wear
Worland,
WY
5,250 Clothing 2002 Profit
Corporation
12,000
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Business Location Population
(2000)
Products Started Structure Own or
Rent?
Annual
Sales
Employees Store size
Willey
Street Co-
op
Madison,
WI
208,054 Groceries,
sundries
1973 Membership
Cooperative
Own $17M 150 9,500 sf
retail,
21,000 sf
with
basement
and back
room.
3,000 sf
kitchen
(production)
facility
offsite.
Figure 1 Willey Street Co-op (Madison, Wisconsin)
4.2 Excise Tax
An excise tax is a tax that is imposed on the performance of an act, engaging in an
occupation, or enjoyment of a privilege.11 Unlike exactions, excise taxes are not subject
to constitutional requirements governing nexus and proportionality.12 Other cities,
such as Boulder, have used housing excise tax to fund non-infrastructure public needs
such as affordable housing.13 This approach was chosen for several reasons. First, the
City wished to abandon on-site mitigation and to spread the responsibility for housing
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needs more equitably between the residential and non-residential sectors. Second, the
excise tax is not subject to the rational nexus test applied to impact fees such as
housing linkage fees. This has the following advantages:
monies collected need not be earmarked
the amount of the fee need not relate specifically to the needs created by, or the
benefit accruing to, a particular development or class of development
the "facilities" (in this case, LSBs), are not subject to spatial or temporal nexus
requirements.14
In other words, the City can set an excise tax at any amount that is justifiable politically,
subject to applicable restrictions imposed by the state constitution or state statutes.
The City does not have to demonstrate that new development creates a need for the
programs that are financed through the excise tax, or that the amount of the tax is
proportionate to the impacts of the development. This gives the City considerable
flexibility in setting the tax amount. An excise tax probably requires voter approval
under Article X, Section 20 of the Colorado Constitution (TABOR amendment).
By avoiding the nexus requirements, the City could collect the revenues needed to meet
the deeper subsidies required for locally serving products, as opposed to a higher end
product line.15 The linkage fee/excise tax approach provides for flexibility in the use of
funds and the ability to target funds for community serving businesses.
4.3 Succession Planning / Proactive Redevelopment
Succession planning is not a discrete technique, but rather a way that the City can target
is use of resources for LSBs. Once the City collects funds or negotiates agreements to
provide LSB space, the City could either attempt to put new businesses in new space, or
find new owners or operators for existing businesses that are at risk due to the
retirement, insolvency, or relocation of its owners. In addition, the City could simply
use staff resources or partner with the private sector to find new persons or entities to
take over a private concern.1 Under the succession planning approach, the City would
target current businesses for financial incentives that maintain the business as an
ongoing entity when its current ownership or management turns over. This may
involve the City entering into partnerships to either buy or lease space, or otherwise
provide financial incentives to ensure the ongoing success of an existing enterprise.
1 Note: this discussion does not suggest that the City is considering ways to replace owners who are
interesting in retaining their existing businesses.
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The City could also use redevelopment authority, such as an Urban Renewal Authority,
to target areas for the establishment of LSBs. This is an unusual use of the urban
renewal powers, which are typically used to clear sites for subsequent redevelopment.
However, urban renewal and redevelopment includes more than just construction
activities. An authority could consider the use of rehabilitation or conservation powers
to offset costs and encourage the retention of ongoing businesses.16
4.4 Economic Development Director or Building Staff Capacity
Under this approach, the City would retain staff to seek out and maintain business
development opportunities for LSB enterprises. Staff would assist in seeking ownership
and management opportunities, funding and financial incentives, and ensuring that the
enterprises are consistent with the City's goals and objectives to encourage locally
serving product lines.
Other entities could also provide targeted efforts to encourage LSB. Examples are
downtown development districts and business improvement districts. Most Downtown
Development Authorities (DDA) do not deal specifically with the choosing of businesses
and leave much of that to the discretion of the individual building owners or Economic
Development Departments. Most DDA’s provide a primarily supportive role in
downtown redevelopment. For instance, the Ann Arbor, Michigan DDA plays a role in
the infrastructure of the downtown area and does not deal specifically with business
related items. Ann Arbor DDA does serve as a support for the recently created, four
Downtown Merchants Association which operate separately as commercial
cooperatives.
Another example of the low level of DDA participation in commercial activity is in
Rochester, NY. Most downtown retail buildings in Rochester are individually owned, so
the building owners choose which businesses locate there. The DDA encourages
landlords to incorporate family friendly retail uses such as children’s clothing stores, toy
stores and similar family oriented activities. The DDA holds focus groups throughout the
year to gain an insight on the types of retail uses the community would like to see built
in the downtown area. The DDA does provide assistance to retailers looking to locate in
the City by finding appropriately sized spaces and locations while providing sign, lighting
and façade grants.
In Shreveport, LA, the DDA does not currently have space available that it promotes. It
owns three properties and has leased those spaces to arts organizations to spur
development of an arts district. It works with real estate brokers and individuals who
are looking for support in searching for space. They act more as a resource center for
prospective businesses interested in locating in downtown Shreveport.
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Downtown Development Authorities
City State Role of DDA
Rochester NY
Downtown properties are mostly individually owned. The building owner chooses
businesses, but usually tries to select family friendly businesses. Focus groups
throughout the year are held to hear citizen requests. Main stores include children’s
clothing, toy stores, and family friendly activities. The DDA assists retailers in finding a
suitably sized space and location, communicates the availability of signage, lighting and
facade grants, and introduces the town to merchants. Businesses conduct forums and
seminars to describe trends in the business community.
Shreveport LA
Does not have space currently available that they promote. They own three properties
and have leased those spaces to arts organizations to spur development of an arts
district. They work with real estate brokers and individuals who are looking for support
in searching for space. They act more as a resource center for prospective businesses
interested in locating in downtown Shreveport
Ann Arbor MI
The DDA plays a role in supporting infrastructure needs (such as streetscaping, alleys and
parking) in the downtown area, but does not directly partner with businesses. Ann Arbor
DDA does serve as a support for the recently created, four Downtown Merchants
Associations which operate separately as commercial cooperatives.
Ypsilanti AZ Downtown Development Authority provides support activities for business location.
Fort Collins CO Downtown Development Authority does not participate in tenant selection which is
decided by the landlords.
4.5 Direct financial incentives
A significant obstacle to establishing an LSB is the cost of starting up and maintaining
the business. The City could provide grants, low-interest loans, tax abatement, or use
tax increment financing (TIF) to subsidize project infrastructure, direct ownership by the
business entity of its space, start-up costs, or ongoing maintenance costs.
In Gardiner, Maine, the City decided to revitalize its downtown with the use of
community development grants to help restore downtown buildings that now house
locally serving businesses. Additional funds were used to create a façade improvement
program. $750,000 was used to create a revolving loan fund to help existing downtown
businesses expand and new businesses open.
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Examples of small business loan programs are included below.
Jurisdiction
Program
Description & Selection Criteria
Burbank, CA
Downtown
Tenant
Assistance
Program (DTAP)
The DTAP program focuses on attracting retail businesses to underutilized and vacant
properties downtown. Restaurant and office uses are excluded from the program.
Assistance agreements are done on a case by case basis. Initial funding was $1.5
million dollars.
DTAP selection Criteria
• Boutique or specialty shops such as gift/collectibles, vintage clothing, retail
clothing stores, art or music stores, community serving retail
• Amount of private investment
• Projected sales per square foot
• Proven track record of operating a business successfully in a downtown
environment, and meeting lease obligations
• Commitment by the property owner to participate in downtown business and
promotional activities
• Commitment by the property owner to participate in a Property Based Business
Improvement District (PBID)
• The ability to operate a business without emphasizing “bargain basement pricing”
• Discount or thrift stores are not eligible for this program
• All retail tenants that participate in the DTAP are subject to approval by the
Agency
Pasadena, CA
Redevelopment
and sales tax
rebates
The City utilizes a traditional redevelopment tools to facilitate business attractions and
expansion. The major program they utilize is the sales tax rebate program that was
adopted by an ordinance in 1990 and was exclusively for auto dealers. The ordinance
was amended in 1993 to broaden the program to include other sales tax generating
“qualified businesses.” Assistance agreements are done on a case by case basis.
Sales Tax Rebate Program Criteria
• Applicants must generate at least $100,000 in net new sales tax dollars
• Funds must be necessary for expansion of existing facilities or new
developments
• Total amount of sates tax rebate is determined on the merit of each case.
A business that meets these criteria is subject to the following provisions:
• Sales tax rebate is up to 50% of net new sales taxes generated above the base
year. A cap on the amount rebated in a single year is common, but not a
mandated feature of the program
• Term of agreement is up to ten years or, the full reimbursement of costs
incurred for the construction project, whichever comes first
• The City only rebates the funds after verification that the sales tax proceeds
have been generated
• Additional conditions may be imposed based on the specifics of the project
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The following table represents some other available loan programs to small businesses:
Small Business Loan Programs
City Loan Program Description
San
Francisco, CA
Micro-Enterprise Loan
Directed primarily at start-up businesses for borrowers
who are low or moderate income. Micro-enterprise loans
assist a sector normally avoided by traditional institutions.
They are available up to $25,000 and must involve the
creation of at least one full time job. Loan applicants
must participate in a self-employment and
entrepreneurship development program to be eligible for
the loan. Loan recipients must participate in follow up
programs for the duration of the loan. A micro enterprise
business is defined as a business with five or fewer
employees.
San
Francisco, CA
Small Business
Revolving Loan
Provides existing small businesses with loans that can be
used for a number of purposes, including working capital,
equipment purchase, and other business expansion
activities. Loans are available up to $100,000. A goal is to
create employment opportunities for low and moderate
income persons. Interested small businesses may apply
for this loan fund through neighborhood economic
development and non-profit organizations that provide
loan packaging services and other assistance to small
business persons.
Oak Park, IL
Commercial Loan
Program
Applicants can qualify for privately-funded, 2.5 points
below Prime Rate loans to acquire and or/rehab
commercial properties in Oak Park. The Oak Park
Development Corporation (OPDC)17 works closely with
developers to meet specific needs.
Oak Park, IL Micro Loan Program Offers prime rate loans to areas small and start-up
businesses to finance fixed assets, inventory and working
capital. Funding is available to repair or rehab property.
Loans may not be used by non-profits, home based
business or acquisition of real estate. Loans can range in
size from $2,000 to $75,000.
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Small Business Loan Programs
City Loan Program Description
Oak Park, IL Retail Support Grant Promotes and facilitates the location of new retail
businesses and the retention and expansion of existing
retail businesses. Provides matching grant funding for
retail businesses for interior build out or renovation of
existing or newly leased space, including
replacement/installation of building systems, demolition,
installation or permanent fixtures. This program is
administered by the Village of Oak Park.
Montgomery
County, MD
Small Business
Revolving Loan
Program
Provides financing for business development/expansions
of small business located in the County. To qualify, the
business must have gross revenues of less than
$5,000,000 annually and have less than 75 employees.
The program facilitates business development through
direct loans and participation in loans made by banks,
development corporations and other lenders. The
program intends to leverage private sector as well as
other governmental funds. The average size of the
program assistance is $5,000 to $100,000 with a
maximum term up to 5 years. Collateral is required.
Montgomery
County, MD
Micro Enterprise Loan
Program
Available only to companies and small businesses with
annual revenues of $250,000 or less and five employees.
Maximum loan amount of $15,000 with terms of three
years or less. Loans must be used to start, expand or
stabilize a business. Special consideration is given to
women and minority owned businesses.
Redmond,
WA
Heritage Grant
Program
Promotes and encourages continued maintenance and
prevent deterioration of historic structures or sites that
conveys a sense of the City's heritage and a sense of
place.
4.6 Development agreements
Colorado’s vested rights statute provides a useful framework for negotiating mitigation
conditions. Under the statute, the local government approves a “site-specific
development plan” (SSDP), which is typically a form of discretionary approval such as a
PUD or a conditional use permit.18 The developer obtains vested rights for a period of
three years, and becomes subject to the terms of the plan. Through development
agreements, developers may obtain a vesting period exceeding three years (CRS § 24-
68-104(2)).
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Accordingly, the state’s site specific development plan legislation can be used as a basis
to negotiate LSB conditions without triggering the nexus and proportionality
requirements of a unilateral exaction. In return, the local government relinquishes the
ability to impose new or different standards at a later point in the life of the
development or the development approval process.
Community Benefit Agreements allow a community to ensure that redevelopment
projects and new retail centers include locally serving business by stipulating how much
of the project’s retail space must be set aside for local businesses. The CBA is a legally
enforceable contract signed by a community group and a developer. The agreement
provides assurances about development outcomes, in return for the community’s
support for the project. CBA’s can involve public subsidies, but are more commonly
used by private developers to secure neighborhood support for a project or for a
rezoning.
5. Conclusions
The City of Aspen is discussing ways to encourage businesses that accommodate the day
to day needs of its residents, and that add to its unique character. The City Council has
discussed a mitigation approach that is similar to the City and County's current
employee housing mitigation program. This is a creative, unique approach that could
mitigate the demands of future development for locally serving space. It also raises a
number of program development, administration and enforcement issues. This report
summarizes those issues, and surveys other approaches that the City can consider.
The City can use a number of regulatory, fiscal, and contracting (public-private
partnership) tools to retain and establish LSBs. A number of these techniques have
been used successfully in other communities. While there are few examples of
regulatory techniques that encourage LSBs, other communities have used cooperative
arrangements to retain businesses that meet their residents' day to day needs.
However, few of these involve local government, where economic development efforts
are normally targeted to employment generators. Despite the lack of precedent, the
City can pull together the best of what has worked elsewhere, and craft a program that
is suited to its market conditions, regulatory climate, and local needs. We hope that
the City uses this memorandum to stimulate ideas as it continues this effort.
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Appendix A: Regulatory Approaches
Local Business Regulations
City Retail Sales Description Code Site
Carmel, CA No discount stores, manufacturers’ outlet stores, catalog stores, or stores devoting more than
15 percent to the sale of second-quality, irregular or discontinued merchandise or to the
liquidation of merchants’ or manufacturers’ stock shall be established. All retail sales shall be
conducted from within a fixed place of business.
http://www.codepubli
shing.com/CA/carmel.
html
Laguna
Beach, CA
The Local Business / Professional Zone and CN Zone is intended to serve needs of local
residents. Principal activities are office/professional uses, service-oriented businesses,
residential development and, secondarily, commercial retail functions. In addition, the zone is
designed to preserve the existing residential character and scale of development. (Ord. 1134
§ 2 (part), 1987). This zone is intended to serve the shopping and commercial service needs of
local residents. Principal activities are commercial retail functions, service oriented businesses,
office/professional uses, and limited residential uses. The commercial-neighborhood zone
differs from the local business-professional zone in that it features a stricter orientation to
resident-serving businesses and greater limitations on residential uses. (Ord. 1285 § 3 (part),
1994: Ord. 1147 § 2 (part), 1988).
http://qcode.us/codes
/lagunabeach/
Nantucket,
MA
No provisions for locally serving retail http://www.e-
codes.generalcode.co
m/codebook_framese
t.asp?t=tc&p=0948%2
D139%2Ehtm&cn=575
&n=[1][210]
Ketchum,
ID
No provision for locally serving business. Tourist District allows retail uses but limits the size of
the floor area of the store to less than 2,500 sq. ft.
http://www.ketchumi
daho.org/index.asp?T
ype=B_BASIC&SEC={4
B0C9095-1CBC-4ED7-
AFC1-
604D27A04151}&DE={
1A73BCA3-4E25-48E3-
B979-23473EC4422C}
Park City,
UT
HRC District allows for limited retail and commercial uses consistent with resort bed base and
the needs of the local community. Size of allowed commercial retail uses, including restaurants
must be less than 2,000 sq. ft then it will be considered an allowed use. Larger floor areas will
deem the retail use as conditional. In the RC District Retail and Service Commercial, personal
improvement are conditional uses as support use to primary development or Use, subject to
provision of LMC Chapter 15-6, Master Planned Development.
http://www.parkcity.o
rg/government/codes
andpolicies/municipal.
html
Santa Fe,
NM
No provision for locally sserving business http://70.168.205.112
/santafe_nm/lpext.dll
?f=templates&fn=site
_main-j.htm&2.0
Saratoga
Springs,
NY
NCUD Districts designed to encourge local retail by limiting size of floor space. Floor space
ranges from less than 1,200 SF to 2,000 SF)
http://www.saratoga-
springs.org/docs/bpw
ebsite.asp
Whistler,
BC
CL1, 2 and 3 zones intended for smaller scale, neighborhodd oriented retail businesses. http://www.whistler.c
a/images/stories/Byla
ws/Website_Bylaw%2
0303_November2007.
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Local Business Regulations
City Retail Sales Description Code Site
pdf
Key West,
FL
Limited Commercial district(b) In order to manage the impacts of future development on
transportation and public facilities, the city shall limit the intensity of development in the CL
district to activities generating no more than 100 trips per 1,000 square feet of gross leasable
floor area per day. Areas designated for residential and limited commercial development shall
not accommodate large scale retail sales and trade activities generally serving a citywide or
regional market. Such stores usually differ from limited commercial shops since the former
generally require a larger floor area, carry a relatively larger inventory, and require a
substantially greater off-street parking area.(c) Uses which are not accommodated within the
limited commercial area include the following: large scale discount stores or supermarkets;
department stores; wholesale and warehousing activities; sales, service or repair of motor
vehicles, machine equipment or accessory parts, including tire and battery shops; automotive
services centers; and fast food establishments primarily serving in disposable containers and/or
providing drive-in or drive-through facilities. In addition, the CL designation shall not
accommodate transient residential uses, including motels or hotels and conversions from
permanent residential use to transient residential use. However, existing motels within CL
designated areas shall be grandfathered as lawful nonconforming uses.
Within the HRCC, HRCC-1, HRCC-2, and HRCC-3 districts (when the uses are permitted or
conditional), the location of the following retail activities shall be governed by the criteria
listed:
Historic Districts: (1) Discount jewelry store. No discount jewelry store is permitted on a
parcel of land located within 200 feet of any parcel of land upon which another discount
jewelry store is located.
(2) Electronics/camera store. No electronics/camera store is permitted on a parcel of land
located within 200 feet of any parcel of land upon which another electronics/camera store is
located.
(3) T-shirt shop. No T-shirt shop is permitted on a parcel of land located within 200 feet of any
parcel of land upon which another T-shirt shop is located. As of March 21, 1995, no new T-shirt
shops shall be located in the HRCC, HRCC-1, HRCC-2, and HRCC-3 districts. A T-shirt shop
licensed by the city and in operation in the HRCC, HRCC-1, HRCC-2, or HRCC-3 district as of
March 21, 1995 may continue in existence as a nonconforming use. A change in ownership of
an existing T-shirt shop shall not affect such nonconforming use status. If an existing T-shirt
shop is enlarged or is increased in size or undergoes a structural alteration that exceeds 50
percent of the value of its building or structure as shown on the county tax assessment records
or is abandoned in use as a T-shirt shop for a period of six months, its nonconforming use
status shall terminate, and the use of the building or structure shall conform to this division and
the restrictions of the HRCC, HRCC-1, HRCC-2, and HRCC-3 districts. The requirements of this
subsection shall supersede conflicting requirements, if any, of section 122-1504.
(4) Combination business. No combination business is permitted on a parcel of land located
within 200 feet of any parcel of land upon which another combination business is located or
upon which a business is located which offers for retail sale any component of the combination
business; merchandise regulated in this division (i.e., one or more of the following: discount
jewelry store, electronic/camera store, or T-shirt shop, as defined by section 122-1501).
http://www.municod
e.com/resources/gate
way.asp?pid=10053&s
id=9
Boca
Raton, FL
No provision for locally serving business http://www.municod
e.com/resources/gate
way.asp?pid=10145&s
id=9
New York,
NY
The West Harlem Special District allows density bonuses for developers who create small
business incubators that incentivize affordable retail space for local and small businesses
http://mbpo.org/uplo
ads/WHSD%20Detaile
d%20Proposal.pdf
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Local Business Regulations
City Retail Sales Description Code Site
Palm
Beach, FL
Palm Beach, FL developed an ordinance that stated the commercial district should be humanly
scale and serve the needs of local resident while converting its main commercial district into a
“town-serving” zone. Retailers in the zone must be smaller than 2,000 square feet and must
primarily serve “town persons (hose living, visiting or working in Palm Beach).” Businesses
larger than 2,000 SF may apply for a special permit provided that they can demonstrate that no
less than 50% of the anticipated customers will be “town people” rather than shoppers from
outside the town. The ordinance was passed in 1991.
http://www.newrules
.org/retail/palmbeac
h.html
http://www.newrules
.org/retail/palmbeac
hruling.pdf
Carmel, CA Carmel, CA developed an ordinance in the mid-1980’s to outlaw formula restaurants defined in
the code as food service business required by contractual or other arrangement to offer
standardized menus, ingredients, food preparation, employee uniforms, interior décor, signage
or exterior design or adopts a name, appearance or food presentation format which causes it to
be substantially identical to another restaurant regardless of ownership or location
http://www.newrules.
org/retail/carmel.html
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Appendix B: Palm Beach, FL Town-Serving Commercial
Regulations
DIVISION 8. C-TS TOWN-SERVING COMMERCIAL DISTRICT*
Sec. 134-1106. Purpose and limitations.
The purposes of the C-TS town-serving commercial district are to:
(1) Create, preserve and enhance areas of attractive, small-scale, retail, personal and
professional/business services to be developed either as a unit or in individual parcels,
providing for the frequently recurring needs of townpersons.
(2) Enhance the general character of the district and its compatibility with its
residential surroundings, and, therefore, signs are limited to those accessory to
businesses conducted on the premises, including the number, area and types; retail
drive-in facilities are not permitted, and, in order to maintain the town-serving nature of
the district, limitations on gross leasable floor (GLA) area are imposed.
(Ord. No. 2-74, schedule B, 3-26-74; Ord. No. 3-77, § 2, 3-29-77; Ord. No. 5-78, §§ 10, 15, 3-31-78; Ord. No. 7-79, §§ 2, 5, 7, 3-30-79;
Ord. No. 4-80, § 3, 3-31-80; Ord. No. 6-81, § 2(a)--(d), (g), (h), 3-31-81; Ord. No. 7-82, § 3(a)--(d), 3-31-82; Ord. No. 2-83, § 3(c), 2-23-
83; Ord. No. 1-84, § 2(f)--(h), 3-1-84; Ord. No. 1-85, § 2(g)--(k), 2-11-85; Ord. No. 1-86, § 2(b), (c), 2-10-86; Ord. No. 1-87, § 2(c)--(f),
2-9-87; Ord. No. 2-88, § 1, 2-8-88; Ord. No. 1-89, § 2(a), 2-6-89; Ord. No. 1-90, § 2(f)--(i), 2-5-90; Ord. No. 1-91, § 2(b), 4-23-91; Ord.
No. 1-92, § 2, 2-3-92; Ord. No. 6-93, § 2(a)1--7, 2-9-93)
Sec. 134-1107. Permitted uses.
(a) Enumeration; maximum gross leasable area. The permitted uses in the C-TS town-
serving commercial district, with a maximum of 2,000 square feet of gross leasable area
(GLA), are as follows:
(1) Retail and service establishments, such as restaurants and bars/lounges,
hardware stores, food stores, clothing stores, drugstores, barbershops, beauty
salons and jewelry stores.
(2) Offices, executive office suites, professional services, business services, and
securities or financial brokerage and trust companies located above the first
floor.
(3) Nonprofit cultural centers.
(4) Professional or studio-type schools.
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(5) Essential services.
(b) Regulation of existing nonconforming commercial uses. Any existing uses contained
on the list of permitted uses shown in subsection (a) of this section which contain more
than 2,000 square feet of gross leasable area (GLA) shall be classified as existing
nonconforming uses under article IV of this chapter pertaining to nonconforming uses.
However, all future changes of use shall be limited to those uses listed as permitted uses
on the list contained in this section with a maximum gross leasable area of 2,000 square
feet, and if a change of use is contemplated from one general commercial category
(retail and services; office, professional and business services; or banks and financial
institutions) to another, or from one generic use (residential, commercial, public/private
group use) to another, wherein the new use will involve a gross leasable area exceeding
2,000 square feet, the contemplated new use shall be subject to prior approval of a
special exception application by the town council before the change is made (refer to
sections 134-227 through 134-233 pertaining to special exception uses). In effect, this
will allow any existing use over 2,000 square feet, in a district with a 2,000-square-
footage limitation, to continue operating at its existing scale or to change to another use
within the same general commercial category without town council approval. For
example, if a ladies apparel store of 8,000 square feet exists in any of the C-TS or C-WA
districts and the owner wishes to change to an antique store of the same size or
subdivide into two 4,000-square-foot stores, one being a toy store and the other a shoe
store, such a change would be allowed without prior town council approval. However, if
the owner of the same 8,000-square-foot ladies apparel store wanted to change to a
bank or an office or a business service or the owner wished to subdivide into two 4,000-
square-foot offices, the owner would need to apply for and obtain approval of a special
exception from the town council. No existing commercial use which is subject to the
2,000 square feet maximum gross leasable area (GLA) regulation may occupy additional
space within 1,500 feet of the existing licensed businesses, which distance shall be
measured along the public sidewalk, if such new space to be occupied will increase the
total gross leasable area (GLA) to more than 2,000 square feet.
(Ord. No. 2-74, schedule B, 3-26-74; Ord. No. 3-77, § 2, 3-29-77; Ord. No. 5-78, §§ 10, 15, 3-31-78; Ord. No. 7-79, §§ 2, 5, 7, 3-30-79;
Ord. No. 4-80, § 3, 3-31-80; Ord. No. 6-81, § 2(a)--(d), (g), (h), 3-31-81; Ord. No. 7-82, § 3(a)--(d), 3-31-82; Ord. No. 2-83, § 3(c), 2-23-
83; Ord. No. 1-84, § 2(f)--(h), 3-1-84; Ord. No. 1-85, § 2(g)--(k), 2-11-85; Ord. No. 1-86, § 2(b), (c), 2-10-86; Ord. No. 1-87, § 2(c)--(f),
2-9-87; Ord. No. 2-88, § 1, 2-8-88; Ord. No. 1-89, § 2(a), 2-6-89; Ord. No. 1-90, § 2(f)--(i), 2-5-90; Ord. No. 1-91, § 2(b), 4-23-91; Ord.
No. 1-92, § 2, 2-3-92; Ord. No. 6-93, § 2(a)1--7, 2-9-93; Ord. No. 1-96, § 4, 2-5-96; Ord. No. 1-98, § 5, 2-9-98; Ord. No. 1-02, § 9, 3-12-
02; Ord. No. 1-04, §§ 17, 22, 3-9-04; Ord. No. 1-05, § 2, 3-8-05)
Sec. 134-1108. Accessory uses.
The accessory uses in the C-TS town-serving commercial district are as follows:
(1) Off-street parking and loading.
(2) Signs.
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(3) Accessory uses customarily incident to the permitted or approved special exception
uses.
(Ord. No. 2-74, schedule B, 3-26-74; Ord. No. 3-77, § 2, 3-29-77; Ord. No. 5-78, §§ 10, 15, 3-31-78; Ord. No. 7-79, §§ 2, 5, 7, 3-30-79;
Ord. No. 4-80, § 3, 3-31-80; Ord. No. 6-81, § 2(a)--(d), (g), (h), 3-31-81; Ord. No. 7-82, § 3(a)--(d), 3-31-82; Ord. No. 2-83, § 3(c), 2-23-
83; Ord. No. 1-84, § 2(f)--(h), 3-1-84; Ord. No. 1-85, § 2(g)--(k), 2-11-85; Ord. No. 1-86, § 2(b), (c), 2-10-86; Ord. No. 1-87, § 2(c)--(f),
2-9-87; Ord. No. 2-88, § 1, 2-8-88; Ord. No. 1-89, § 2(a), 2-6-89; Ord. No. 1-90, § 2(f)--(i), 2-5-90; Ord. No. 1-91, § 2(b), 4-23-91; Ord.
No. 1-92, § 2, 2-3-92; Ord. No. 6-93, § 2(a)1--7, 2-9-93)
Sec. 134-1109. Special exception uses.
(a) The special exception uses require a site plan and review as provided in article III of
this chapter. The special exception uses in the C-TS town-serving commercial district are
as follows:
(1) Public or private parking lots or storage garages.
(2) Auto rental lots.
(3) Residential tenancy above the first floor.
(4) Private social, swimming, golf, tennis and yacht clubs.
(5) Service stations.
(6) Public structures.
(7) Supplemental parking.
(8) Public or private academic schools.
(9) Drive-in business service facilities.
(10) Churches, synagogues or other houses of worship.
(11) Any commercial establishment with greater than 2,000 square feet of
gross leasable area, provided the town council has found, as a fact, that the
proposed use is town serving.
(12) Banks and financial institutions, excluding securities or financial brokerage
and trust companies.
(13) Roof-deck automobile parking.
(14) Outdoor seating in conjunction with permitted restaurants (see section
134-1111).
(15) Reserved.
(16) Museums occupying building of unique value as designated historical
landmarks, as determined by the landmarks preservation commission and the
town council.
(17) Nightclubs.
(18) Offices (excluding executive office suites), professional services, business
services and securities or financial brokerage and trust companies on the first
floor provided that there are at least 50 percent existing office uses on all floors
of the building in which the office use is proposed and more than 50 percent
existing office uses on the first floor within 300 feet of the proposed office use in
the same zoning district.
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(b) An owner or tenant of a property, located within the C-TS district, which property
has received approval of a special exception after March 31, 1980, shall be required to
obtain approval by the town council under the provisions of section 134-229(12) prior to
being granted a new occupational license. This subsection shall not apply to renewal of
an existing occupational license.
(Ord. No. 2-74, schedule B, 3-26-74; Ord. No. 3-77, § 2, 3-29-77; Ord. No. 5-78, §§ 10, 15, 3-31-78; Ord. No. 7-79, §§ 2, 5, 7, 3-30-79;
Ord. No. 4-80, § 3, 3-31-80; Ord. No. 6-81, § 2(a)--(d), (g), (h), 3-31-81; Ord. No. 7-82, § 3(a)--(d), 3-31-82; Ord. No. 2-83, § 3(c), 2-23-
83; Ord. No. 1-84, § 2(f)--(h), 3-1-84; Ord. No. 1-85, § 2(g)--(k), 2-11-85; Ord. No. 1-86, § 2(b), (c), 2-10-86; Ord. No. 1-87, § 2(c)--(f),
2-9-87; Ord. No. 2-88, § 1, 2-8-88; Ord. No. 1-89, § 2(a), 2-6-89; Ord. No. 1-90, § 2(f)--(i), 2-5-90; Ord. No. 1-91, § 2(b), 4-23-91; Ord.
No. 1-92, § 2, 2-3-92; Ord. No. 6-93, § 2(a)1--7, 2-9-93; Ord. No. 1-96, § 3, 2-5-96; Ord. No. 1-98, § 5, 2-9-98; Ord. No. 1-02, § 8, 3-12-
02; Ord. No. 1-03, § 2, 3-11-03; Ord. No. 1-04, § 28, 3-9-04; Ord. No. 1-07, § 3, 4-10-07)
Sec. 134-1110. Accessory structures.
(a) Generally. Enclosed accessory structures in the C-TS town-serving commercial
district shall comply with front and side yard requirements for the principal structure to
which they are accessory and shall be not closer to any rear property line than ten feet.
(b) Dish antennas. A dish antenna shall be an accessory structure and shall be
constructed, erected or placed in compliance with all of the provisions of this chapter
applicable to accessory structures. Dish antennas shall not exceed three meters in
diameter. Only one dish antenna that exceeds one meter in diameter shall be permitted
on each building. Such dish antenna which exceeds one meter in diameter shall not be
attached to a building; shall not be closer than ten feet to any side or rear property line;
shall not exceed 12 feet in height above the average grade; and, shall not be located in a
required front yard, street side yard or rear street yard setback. Each residential unit or
commercial tenant space shall not be limited as to the number of dish antennas of one
meter or less in diameter and said antenna(s) may be attached or unattached to a
building. If said dish antenna(s) is unattached, said antenna(s) shall not exceed 12 feet in
height above the average grade; shall be located no closer than ten feet to any side or
rear lot line; and, shall not be located in a required front yard, street side yard or rear
street yard setback. All attached and unattached dish antennas in this commercial
zoning district shall be screened from public view, and private and public streets and
ways; be neutral in color; and, to the maximum extent possible, compatible with the
surrounding neighborhood appearance and character. In addition, no form of lettering,
advertising or identification shall be allowed on any such antenna or its framework
(other than the manufacturer's small identification plate). Note: One meter in the
metric system of measurement equals 39.37 inches or 3.28 feet.
(Ord. No. 2-74, § 5.51, 3-26-74; Ord. No. 3-76, § 3, 3-23-76; Ord. No. 5-78, § 11, 3-31-78; Ord. No. 7-79, § 11, 3-30-79; Ord. No. 4-80,
§ 4, 3-31-80; Ord. No. 7-82, § 4(i), (k), 3-31-82; Ord. No. 1-84, § 3(h), 3-1-84; Ord. No. 1-85, § 3(e), 2-11-85; Ord. No. 1-86, § 3(d), 2-
10-86; Ord. No. 1-87, § 3(e), 2-9-87; Ord. No. 1-90, § 3(g), 2-5-90; Ord. No. 1-92, § 3(e), 2-3-92; Ord. No. 1-93, § 3(g), 2-8-93; Ord. No.
1-94, § 3(c), 2-7-94; Ord. No. 1-95, § 1(b), 1-23-95; Ord. No. 1-97, § 5, 2-17-97; Ord. No. 1-99, § 10, 4-5-99)
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Sec. 134-1111. Special exception for stands, seated dining areas and open counters for
eating and drinking.
(a) No stands or open counters and no open seating arrangement, whether or not at
tables, intended for feeding or the dispensing of food or drink for profit or for any other
similar purposes for the sale of commodities to the public can be erected or permitted
anywhere in the town unless they are contained within a building. However, in the C-TS
town-serving commercial district, the town council may permit, as a special exception,
the serving of food and beverages to seated patrons in outdoor open air areas which are
operated as a part of a restaurant contained within a building, provided the additional
special exception can not increase the allowable capacity. The following are conditions
to the approval of any such special exception:
(1) Open air dining areas must be properly buffered to avoid noise, litter, light
and odor impacts upon neighboring properties, especially nearby residential
uses.
(2) Area associated with the outdoor portion of the restaurant will not count
toward any maximum square footage limitations associated with the town-
serving aspects of this chapter.
(b) In the C-TS town-serving commercial district, the town council may permit, as a
special exception, extra outdoor patron seating, over and above the inside seating
capacity, as part of a take-out food business contained within a building provided the
following conditions are met:
(1) The take-out food business inside tenant space does not exceed 2,000
square feet.
(2) Open air dining areas are properly buffered to avoid noise, litter, light and
odor impacts upon neighboring properties, especially nearby residential uses.
(3) The area associated with the outdoor seating of the take-out food business
will not count toward any maximum square footage limitations associated with
the town-serving aspects of this chapter.
(4) Area associated with the outdoor seating cannot encroach into the required
ten-foot unobstructed, pedestrian sidewalk.
(5) The amount of outdoor seating can not exceed eight seats, nor can it extend
beyond any property line of the take-out business tenant space.
(Ord. No. 2-74, § 6.61, 3-26-74; Ord. No. 3-77, § 14, 3-29-77; Ord. No. 1-89, 4(f), 2-6-89; Ord. No. 1-04, § 15, 3-9-04)
Sec. 134-1112. Commercial uses; site plan approval for new buildings, new building
additions or changes in permitted uses over certain floor area.
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All applications for new buildings or for new building additions or for changes in a
permitted use in section 134-1107 which involve more than 2,000 square feet of
building floor area of buildings in the C-TS town-serving commercial district shall require
a site plan approval in accordance with article III of this chapter. No certificate of
occupancy shall be issued for any building, unless all facilities included in the site plan
have been provided in accordance therewith. The maximum dimension of any structure
or group of attached structures shall not exceed 150 feet.
(Ord. No. 2-74, § 6.55, 3-26-74; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 14, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 7-82,
§ 5(d), 3-31-82; Ord. No. 1-85, § 4(h), 2-11-85)
Sec. 134-1113. Lot, yard and area requirements--Generally.
In the C-TS town-serving commercial district, the schedule of lot, yard and area
requirements is as given in this section:
(1) Lot area. The minimum lot area is 4,000 square feet.
(2) Lot width. The minimum lot width is 30 feet.
(3) Lot depth. The minimum lot depth is 90 feet.
(4) Density. A single dwelling unit, or multiple dwelling units not to exceed six dwelling
units per gross acre. See article III of this chapter for site plan review requirements.
(5) Front yard.
a. For one-story buildings, the minimum front yard setback is five feet.
b. For two-story buildings, the minimum front yard setback is five feet.
c. All buildings shall be set back so as to provide at least a ten-foot-wide
pedestrian walkway between the street curbline and the building, exclusive of
beautification strips, not more than five feet of which may be on the town street
right-of-way, where appropriate, and additionally, to provide for the minimum
building front yard setback, which shall be measured from the inside (lot side) of
the required pedestrian walkway. Where no front yard building setback is
approved or required, two feet of the required ten-foot-wide pedestrian
walkway, adjacent to the inside (lot side) of the walkway, may be landscaped by
placement of potted plants or removable planters. Such potted plants or
planters shall include xeriscape landscaping whenever possible.
d. For buildings in excess of 15 feet in height, increase all minimum yard
requirements one foot for each two feet of building height, or portion thereof,
exceeding 15 feet.
(6) Side yard.
a. There is no minimum side yard required for one-story structures, but a side
yard shall be five feet if provided. When the side yard of a C-TS property adjoins
property zoned in any R district, a ten-foot side yard is required on that side.
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b. For buildings in excess of 15 feet in height, increase all minimum yard
requirements one foot for each two feet of building height, or portion thereof,
exceeding 15 feet. Side yards shall be as calculated or five feet, whichever is
greater.
(7) Rear yard.
a. For one-story buildings, the minimum rear yard setback is ten feet.
b. For two-story buildings, the minimum rear yard setback is ten feet.
c. For buildings in excess of 15 feet in height, increase all minimum yard
requirements one foot for each two feet of building height, or portion thereof,
exceeding 15 feet. Side yards shall be as calculated or five feet, whichever is
greater.
(8) Height and overall height.
a. For one-story buildings, the maximum building height is 15 feet.
b. For two-story buildings, the maximum building height is 25 feet.
c. In this district, the maximum building height allows one story, with provision
for a special exception for two stories. See special exception provisions in
sections 134-227 through 134-233 (special exception use), section 134-1115
relating to allowable height and lot coverage, and article III of this chapter (site
plan review).
d. Maximum overall height of a building shall be the maximum allowable
building height, as defined in section 134-2, plus five feet for a flat roof and ten
feet for all other roof styles. When a parapet is used above the maximum
building height, as defined in section 134-2, the building overall height will be
calculated based on the flat roof style identified above. Parapet walls extending
above the maximum allowable building height shall have appropriate
architectural treatment.
(9) Lot coverage.
a. For one-story buildings, the maximum lot coverage is 70 percent.
b. For two-story buildings, the maximum lot coverage is 70 percent.
(10) Length.
a. For one-story buildings, the maximum building length is 150 feet.
b. For two-story buildings, the maximum building length is 150 feet.
(11) Landscaped open space.
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a. For one-story buildings, the minimum landscaped open space is 15 percent.
b. For two-story buildings, the minimum landscaped open space is 25 percent.
c. Additionally, not less than 35 percent of the required front yard must be
landscaped open space in the C-TS district.
(12) Floor area.
a. For one-story buildings, the maximum gross floor area of buildings is 15,000
square feet.
b. For two-story buildings, the maximum gross floor area of buildings is 15,000
square feet.
(Ord. No. 2-74, schedule A, 3-26-74; Ord. No. 7-79, §§ 2, 6, 3-30-79; Ord. No. 4-80, § 3, 3-31-80; Ord. No. 6-81, § 2(e), (f), 3-31-81;
Ord. No. 7-82, § 3(e), 3-31-82; Ord. No. 2-83, §§ 3(a), (b), 2-23-83; Ord. No. 1-84, §§ 2(a)--(e), 3-1-84; Ord. No. 1-85, § 2(b)--(f), 2-11-
85; Ord. No. 1-86, § 2(a), 2-10-86; Ord. No. 1-88, § 1, 2-8-88; Ord. No. 1-89, § 2(b)--(d), 2-6-89; Ord. No. 1-90, § 2(a)--(e), 2-5-90; Ord.
No. 1-92, § 2(a)1, 2, 2-3-92; Ord. No. 9-93, § 2(b), 6-8-93; Ord. No. 1-94, § 2(a), 2-7-94; Ord. No. 1-96, § 8, 2-5-96; Ord. No. 1-97, § 1,
2-17-97; Ord. No. 1-98, §§ 2--4, 2-9-98; Ord. No. 2-98, §§ 1, 2, 2-27-98; Ord. No. 1-04, § 31, 3-9-04)
Sec. 134-1114. Same--Exceptions.
(a) In the C-TS town-serving commercial district, cornices, solid canopies, or
architectural features may extend 48 inches over the sidewalk or required yard area,
provided they shall have nine feet of vertical clearance between any solid construction
and the sidewalk or yard.
(b) Marquees or canvas-covered fireproof canopies, no wider than entranceways, may
be constructed over main entrances to hotels, theaters and places of public assembly
and may extend to the face of the curb, provided that no support shall be nearer than
18 inches to the face of the curb, and the installation shall have a minimum of nine feet
of vertical clearance between any solid construction and the sidewalk.
(c) No projections shall be allowed in the required rear yard except open-type fire
escapes, and these must be provided with a counter-balanced bottom section to
provide for nine feet of clearance when up.
(d) Awnings may be suspended over sidewalks or ways, provided that they shall not
project nearer than 18 inches to the face of the street curbline or more than eight feet
from the exterior wall of the building, and the installation shall have at least seven feet
six inches of vertical clearance between any solid construction and the sidewalk or way.
Cloth front and side drops shall measure not less than six feet six inches from their
lowest point to the sidewalk or way.
(e) One open, one story pergola may extend five feet into a setback provided said
structure does not exceed a height of nine feet; the supporting beams do not obstruct a
sidewalk or walkway.
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(f) One arbor shall be allowed in a required setback on a property provided said arbor
does not exceed a height of eight feet nor cover more than 15 square feet in area; and,
does not block a sidewalk or walkway.
(Ord. No. 2-74, § 5.33(a)--(d), 3-26-74; Ord. No. 4-80, § 4, 3-31-80; Ord. No. 1-91, § 3(c), 4-23-91; Ord. No. 3-02, § 3, 7-9-02)
Sec. 134-1115. Special exception to height regulations; special exception structures.
In order to encourage increased open space, landscaped open space, reduced density
and lot coverage and architectural detail, the town council may at its discretion, upon
review of an application and public hearing thereon, allow for the increase of the
maximum building height in the C-TS town-serving commercial district, upon a finding
being made by the town council that the proposed increase in height for a
contemplated special exception structure is in the public interest, that careful attention
is given to architectural detail, and that it meets the standards of sections 134-227
through 134-233 and the following goals and guidelines:
Two-story guidelines. Lot coverage not more than 35 percent.
(Ord. No. 2-74, § 5.48, 3-26-74; Ord. No. 3-76, § 3, 3-23-76; Ord. No. 5-78, § 11, 3-31-78; Ord. No. 7-82, § 4(g), 3-31-82; Ord. No. 2-
83, § 4(d), 2-23-83; Ord. No. 1-84, § 3(e), 3-1-84; Ord. No. 1-85, § 3(d), 2-11-85; Ord. No. 1-91, § 3(e), 4-23-91; Ord. No. 1-92, § 3(d),
2-3-92)
Sec. 134-1116. Supplementary district regulations.
The supplementary district regulations which may be applicable to the C-TS town-
serving commercial district are contained in article VIII of this chapter.
Sec. 134-1117. Off-street parking and loading.
The off-street parking or loading requirements which may be applicable in the C-TS
town-serving commercial district are contained in article IX of this chapter.
Sec. 134-1118. Signs.
The sign regulations which may be applicable in the C-TS town-serving commercial
district are contained in article XI of this chapter.
Sec. 134-1119. Air conditioning and generator equipment.
Air conditioners and air handlers, cooling towers, generators, swimming pool filters,
pumps and heaters are regulated in section 134-1728 and 134-1729.
(Ord. No. 1-99, § 11, 4-5-99)
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Sec. 134-1120. Architectural tower features.
In the commercial zoning districts, a maximum of two towers as architectural features
may be constructed as integral parts of the building provided that no tower(s) exceeds
the allowable overall height by more than five feet; such tower(s) is set back an
additional five feet on the front, rear, side, and street side and street rear yards; and,
such tower(s) has no habitable floor area. The area of such tower(s) shall in combination
not exceed two percent of the gross floor area of the building. This section does not
apply to entry facades or parapets.
(Ord. No. 1-00, § 2, 2-22-00)
Secs. 134-1121--134-1155. Reserved.
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Endnotes
1 Handelsman v. Town of Palm Beach, 585 So.2d 1047 (Fla.App. 1991).
2 Wisconsin Secretary of State, Department of Financial Institutions, corporate records for Green Bay
Packers, Inc., at http://www.wdfi.org/apps/CorpSearch.
3 Green Bay Packers, Inc. website at http://www.packers.com/community/shareholders/.
4 Mitchell, “Home Shopping Networks,” at http://www.alternet.org/module/printversion/18158.
5 Mitchell, Stacy, 10 Reasons Why Maine’s Homegrown Economy Matters and 50 Proven Ways to Revive
It, Maine Business for Social Responsibility (May 2006), at 35.
6 See International Cooperative Association website at http://www.ica.coop/coop/index.html.
7 Summary by Willey Street Co-op (Madison, Wisconsin) at http://www.willystreet.coop/seven_principles.
See ICA principles at http://www.ica.coop/coop/principles.html. For a history of the cooperative
movement, see http://en.wikipedia.org/wiki/Co-operative_movement.
8 Institute for Community Economics, “Community Land Trusts,” at http://www.iceclt.org/clt.
9 Mitchell, supra, at 30.
10 Livingston, " Outside the Box: Community-owned department stores an alternative to big-box chain
stores," Rural Cooperatives 74:1 (Jan./Feb. 2007), at
http://www.rurdev.usda.gov/rbs/pub/jan07/outside.htm.
11 Bloom v. City of Fort Collins, 784 P.2d 304 (Colo. 1990).
12 White, "Using Fees and Taxes to Promote Affordable Housing," 43 Land Use L. & Zoning Digest, no. 9, at
3 (Sept. 1991).
13 See S. Mark White, Using Fees and Taxes to Promote Affordable Housing, 43 LAND USE L. & ZONING DIG.,
no. 9, at 3 (Sept. 1991).
14 White, supra; Strauss & Leitner, "Financing Public Facilities with Development Excise Taxes: An
Alternative to Exactions and Impact Fees," Zoning and Planning Law Report, No. 11 (March 1988).
15 S. Mark White, Affordable Housing: Proactive and Reactive Regulatory and Planning Strategies
(American Planning Association, Planning Advisory Service Report No. 441, 1992).
16 CRS § 31-25-103(10)(urban renewal project includes rehabilitation and conservation).
17 The OPDC was established in 1974 by area banks and businesses, and is a private, not-for-profit
corporation. It is a community economic development agency. See website at
http://www.oakparkdevelopmentcorporation.com.
18 A SSDP is described as follows (CRS § 24-68-102(4)): "Site specific development plan" means a plan
which has been submitted to a local government by a landowner or his representative describing with
reasonable certainty the type and intensity of use for a specific parcel or parcels of property. Such plan
may be in the form of, but need not be limited to, any of the following plans or approvals: A planned unit
development plan, a subdivision plat, a specially planned area, a planned building group, a general
submission plan, a preliminary or general development plan, a conditional or special use plan, a
development agreement, or any other land use approval designation as may be utilized by a local
government. What constitutes a site specific development plan under this article that would trigger a
vested property right shall be finally determined by the local government either pursuant to ordinance or
regulation or upon an agreement entered into by the local government and the landowner, and the
document that triggers such vesting shall be so identified at the time of its approval. A variance shall not
constitute a site specific development plan. "Site specific development plan" shall not include a sketch
plan as defined in section 30-28-101 (8), C.R.S., or a preliminary plan as defined in section 30-28-101 (6),
C.R.S.
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Micro-Unit White Paper
Council Work Session August 9, 2016
Page 1 of 4
Micro-Housing Units White Paper:
What is it, and could it work in Aspen
What is Micro-Housing?
Micro housing is generally considered to be apartment-style housing with efficient studio floor
plans of less than 500 square feet of floor area per unit. Units include private cooking and
bathing facilities and shared amenities like storage and gathering areas. While it is not
necessarily a new design, in the last ten years it has grown in popularity and prevalence in larger
cities such as Denver, Seattle, and New York City, particularly since the Great Recession.
The increase in popularity corresponds with the introduction of Millennial-age adults to the
workforce and rapid increases in real estate prices and rents in many parts of the country. In
areas where micro-housing units are built, they are generally perceived as a solution to housing
affordability, building efficiency and high land and construction costs. By increasing the number
of available housing units in desirable neighborhoods, typically young, single, location-specific
workers are able to live in proximity to transit, amenities and employment centers where they
would otherwise be priced-out of the local housing market.
The small unit size and high project density lowers per square foot construction costs, allowing
micro units to be brought to market for typically 30 percent to 40 percent below market price for
traditional apartment floor plans. It is noteworthy that, while the unit lease price for micro units
is lower than market, the per square foot lease price tends to be higher. This is due to the smaller
size of the units relative to the fixed development costs of residential construction. Micro
housing occupants cite location as the primary motivation for the decision to lease a micro unit,
and their lifestyle enables them to make such a compromise on living space.
Case Studies
Seattle, Washington
Seattle has experienced a relative boom in micro housing development in the last decade. The
trend began when savvy developers found a loophole in the land use code which allowed the
development of medium density, dormitory-style micro projects in urban neighborhoods without
having to provide parking equivalent to the residential square footage for other development
types. Outcry from neighborhood organizations led to revisions in the land use code which
simultaneously closed the micro-unit parking loop hole while formalizing standards to facilitate
development of more micro housing projects in urban neighborhoods around the city. The
results have been generally positive for the availability of housing and development impact
mitigation.
New York City, New York
Most of the micro housing in New York City has been constructed in the last five years in
Manhattan and Brooklyn, both high-density urban areas. Unlike Seattle, significant changes to
building codes and development standards were required before micro projects were built. The
City Planning Department included micro housing in a comprehensive, multi-year housing
planning process. The result has been policies and regulations which encourage the development
of micro housing to meet the City’s affordable housing and density needs. The City even
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facilitated a design competition for the first micro project, which yielded a modular,
prefabricated structure.
Denver, Colorado
The residential construction boom in Denver has kept pace with other, larger urban areas in the
country, and it has featured a handful of micro unit projects in recent years. Given the relatively
lower land costs in Denver compared to Seattle, New York and other first tier cities, Denver’s
projects have been more modest in scale. They also tend to feature more on-site parking due to
Denver’s higher parking requirements, and slightly larger unit sizes due to the availability of
land in the urban core.
Considerations for Aspen
While micro units have been built in large US cities and have provided new housing options in
those communities, there are a number of factors when considering scalability to Aspen
including free-market forces, location, and design.
Location
Typically, micro housing is located in a city’s dense neighborhoods, as its desirability is tied
directly to its location in attractive, expensive neighborhoods. Aspen’s small size relative to the
urban centers where micro housing has been successful makes it possible that micro housing may
be appealing to renters or buyers outside of the downtown area. However, the density needed to
make micro housing financially feasible on an individual project basis may only be appropriate
in certain areas. This discussion should be central to any further consideration of micro housing
in Aspen.
Triple Bottom Line
Given the sustainability benefits of the residential density that micro housing provides, it is
useful to look at its potential impacts on Aspen through the sustainability triple-bottom-line.
From an economic standpoint, allowing micro housing in mixed-use or commercial zones may
preclude those spaces from being used purely for commercial use. Should residential uses in
those zones proliferate over time, this may reduce the sale tax generation capacity of properties
within those zones. However, having more residents living in the urban core could provide a
larger customer base for downtown businesses, particularly those providing needed services to
year-round residents.
From a vitality standpoint, there are benefits to housing workers in downtown Aspen; the
preservation and enhancement of Aspen’s community character and the sustainability of the
year-round economy may be enhanced by the presence of more year-round residents in town.
Environmentally, the unit density of micro housing projects provides more efficient building
energy consumption, and the per-square-foot energy required to heat and illuminate a micro unit
is lower than traditional housing typologies.
Design and Zoning
There are a number of factors related to design and zoning standards to consider in micro
housing policies and standards. Some of them include:
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Minimum and maximum unit size Typically 250 and 500 square feet;
Minimum bathroom and kitchen area Typically 70 square feet;
Building code amendments are often required;
Minimum and maximum parking
requirements
Typically 0 to 1.25 parking spaces per unit;
Minimum and maximum project
density
Density is often dictated by project finances and
zoning standards;
Project design and construction Modular, pre-fabricated or traditional construction;
Affordability Deed-restricted or free-market product;
Occupancy Limit 1 to 2 individuals per unit;
Location and zoning Often developed in mixed-use projects;
Typically offered in dense neighborhoods;
Project density often drives building height and FAR;
Many communities in which micro housing has been developed were forced to amend their
building codes and zoning standards to allow for micro housing to be financially feasible.
Should the City choose to pursue micro housing, these amendments will need to be compiled and
analyzed to ensure that development rules and regulations allow for the types of projects the
Council deems desirable or appropriate.
In order to reduce project cost and bring micro units to market at affordable price points,
developers have employed some unique designs and construction techniques. Modular
construction and pre-fabrication are common practices in micro housing projects. While these
can be employed in tasteful and architecturally dynamic ways, the City may need to look at how
the Residential and Commercial Design Standards relate to the design and financial needs unique
to micro housing development.
An important consideration for whether micro housing is an appropriate and useful housing
typology for Aspen will also be determining those zone districts and areas of the City where
micro housing is appropriate. While it has been deployed most effectively in dense areas and the
sustainability benefits of increasing infill density are clear, not all downtown and commercial
zone districts are necessarily appropriate for micro housing.
Affordability
Discussions with stakeholders in the real estate and development community illuminated a
number of market factors which may affect the affordability of micro housing in the Aspen
market. Typically, micro housing is leased below market rent for more traditional housing units
in order to increase its appeal relative to its smaller size. On the surface, this seems like it could
be an appealing option for Aspen in terms of providing a wider variety of housing options for
residents and increasing infill density.
However, the unique development circumstances in Aspen, particularly the high land and
construction costs, create a significant barrier to developers seeking to bring micro housing to
market at a price point affordable to workers and residents. Recently, in Aspen’s commercial
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core and surrounding commercial and mixed-use zones, redevelopment project financing has
depended on the inclusion of high-end, free-market residential units to carry the cost of
associated commercial uses. If micro housing were permitted in these zone districts, the product
would have to be similarly expensive for-sale units to ensure the financial feasibility of the
project. This scenario could prevent micro housing from being offered for rent and at a price
point affordable to area workers.
Conclusion
Micro housing is a potentially compelling option for the City of Aspen. It has the potential in
increase the diversity of workforce housing units available in the City. It also could provide
developers with an alternative to meeting their on-site affordable housing requirements.
Additional benefits to allowing for micro housing could include increased housing opportunities,
reduced traffic counts, increased demand for year-round goods and services and the maintenance
of a vibrant downtown and commercial core.
However, there are significant challenges to the development of micro housing that need to be
addressed in order to ensure its financial feasibility and that it meets the objectives of the City
Council and needs of residents. These include design criteria, zoning standards and affordability.
In addition, discussion about an appropriate deed-restriction or permanent resident occupancy
restriction may be appropriate to ensure the units are available as a housing option for local
community members.
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Exhibit C, Regulatory Tools Checklist
YES NO
1. Zone District Approaches
a. Expand/modify zone district boundaries
b. Tailor use list and/or dimensional standards
c. Create local serving business district (LSB)
2. Use Limitations
a. Use size restrictions
b. Use caps and spacing requirements
c. Chain store/formula retail restrictions
d. Conditional use/special review
3. Design/Incentive Approaches
a. Modify design guidelines
b. Height/floor area bonus
c. Parking or affordable housing reductions
d. GMQS scoring
e. Legacy business program
4. Impact-Oriented Systems
a. Mitigation standards/fee-in-lieu
b. Ratio-based program
c. Commercial replacement requirements
YES NO
1. Micro-Housing Units
2. Physical Separation
3. Occupancy Restriction
4. Ban New Free-Market Residential Units
Consider?Menu of Commercial Mix Regulatory Tools
Menu of Residential Mix Regulatory Tools Consider?
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