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HomeMy WebLinkAboutminutes.council.20160808Regular Meeting Aspen City Council August 8, 2016 1 CITIZEN COMMENTS ............................................................................................................................... 2 COUNCILMEMBERS COMMENTS .......................................................................................................... 2 AGENDA ADDITIONS ............................................................................................................................... 3 CITY MANAGER COMMENTS ................................................................................................................ 3 BOARD REPORTS ...................................................................................................................................... 3 CONSENT CALENDAR ............................................................................................................................. 3 Resolution #113, Series of 2016 – A Resolution of the City Council of the City of Aspen concerning the Aspen Country Inn project and approving and authorizing the execution of a partnership agreement, a financing agreement, and a loan agreement and authorizing the purchase by the city of the Colorado housing and finance authority’s multifamily housing revenue bond (Aspen country inn project) ............... 4 Resolution #108, Series of 2016 – Revision to the EOTC 2016 ½ % Transit Sales and Use Tax Budget ........................................................................................................................................................... 4 Resolution #107, Series of 2016 – Vibroscreen Topsoil Screening Machine ....................................... 4 Resolution #102, Series of 2016 – Coordinate November 8, 2106 Election ........................................ 4 Resolution #103, Series of 2016 – Ballot Question – Wheeler RETT Extension ................................. 4 Resolution #104, Series of 2016 – Ballot Question – School tax Extension ........................................ 4 Resolution #105 – Series of 2016 – Ballot Question – Broadband Issue ............................................. 4 Minutes – July 25, 2016 ........................................................................................................................ 4 NOTICE OF CALL UP – 230 E Hopkins Ave. Mountain Forge Building .................................................. 4 ORDINANCE #22, SERIES OF 2016 – Code Amendment – Election Finance .......................................... 5 ORDINANCE #21, SERIES OF 2016 – Charter Amendment regarding appointment of Chief of Police and Community Development Director ........................................................................................................ 6 ORDINANCE #20, SERIES OF 2016 – 404 Park Avenue – Rescind Planned Development ..................... 7 RESOLUTION #109, SERIES OF 2016 – Red Onion Annex Vested Rights Extension ............................. 9 ORDINANCE #16, SERIES OF 2016 – Code Amendment – Tree Mitigation Valuation ......................... 12 ORDINANCE #18, SERIES OF 2016 – Code Amendment – Administrative Hearing Officer ................ 12 RESOLUTION #109; SERIES OF 2016 – Red Onion annex Vested Rights Extension ............................ 12 EXECUTIVE SESSION ............................................................................................................................. 13 Regular Meeting Aspen City Council August 8, 2016 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Myrin, Frisch, Mullins and Daily present. CITIZEN COMMENTS 1. Kristy Vetter stated she lives at Burlingame phase II in a lower level unit and she is commenting on the noise levels between the upper unit and their unit. They live below a family. The City brought in a sound engineer to do testing. The average decibel level when her husband did the testing was 78. Her last letter to the City was July 26th. She would like this fixed. They have a quote from a contractor to have this fixed. Mayor Skadron thanked her for coming down. Chris Everson, asset, said Staff has been working directly with the homeowners. We have a letter from DL Adams that states they did what they said they were going to do. Jack Wheeler, asset, said we tested multiple units and they all passed. Some were better than the Vetter unit and some were worse. Jim True, city attorney, said her complaints have not fallen on deaf ears. DL Adams is a nationally recognized acoustic company. Our positions is it complies with the technical standards. Ms. Vetter said it is a family of five. It is not acceptable. Mr. True stated we built it to code. Mayor Skadron said the City says it was built to code you disagree. Scott Miller, public works director, suggested bringing in a third party and do another test. Councilman Daily stated he appreciates the effort you made. The comments from the HOA board president are serious and I think this needs to be looked at further. Councilman Myrin said he is on the same page as Art. Councilwoman Mullins said to have someone else test it, who is more credible to you. Councilman Frisch said he is sorry for the situation you are in. His preference is to allow us to get back to you by the end of the week. We strive to do not just the legal minimum. Mayor Skadron said first we need to understand the problem. 2. Mike Maple commented on the Wheeler RETT ballot question. It has been tremendously successful and intended to create an endowment. It is at a 30 million dollar endowment. The challenge is to not just re-up a tax but to look at the fundamentals. On Ordinance #16, the tree mitigation value, why do we have a complicated program. Maybe its time has come and gone and the standard should be different. He encouraged council to take a look at the fundamental and why we have the program. 3. Emzy Veazy III talked about restaurant grades. He would like to see restaurant grades visible to the public. 4. Howie Mallory commented on the school tax extension ballot question and said he thinks the City has made the right decision in the past. It has been beneficial to the school district. He asked for a change to the approach in putting it on the ballot. The school is a major traffic generator in clogging the round a bout. He asked that the extension be conditioned in a written traffic reduction plan that is implemented starting this year in a meaningful reduction in traffic. Councilman Frisch said that he and Councilman Myrin are meeting with the Traffic department tomorrow at 2 to discuss how the school can reduce traffic. We will then set up a meeting with the school district. Councilman Myrin asked the school board to do this and their first response was is your support conditional. I said no but it is a genuine concern. 5. Chris Council, homeowner and board member at Burlingame II. Mr. Council submitted a memo on July 27 about the deficiency of the stain product applied to the siding. They have been working with staff for the past year. Staff had committed money to replace the siding if they waived the liability. This is not a capital reserve issue but a design issue. Mr. True said we are prepared to discuss this in executive session tonight. 6. Toni Kronberg requested that Resolution 108 be pulled from the consent agenda. COUNCILMEMBERS COMMENTS Councilman Myrin said he attended the climate action plan meeting on the 27th and one of the goals is to reduce carbon emissions by 30 percent by 2020 and 80 percent by 2050. It will takes the community to put together the steps to get there. We will needs support from the BOCC and the City to get there. Regular Meeting Aspen City Council August 8, 2016 3 Councilman Frisch thanked Chris for bringing the Burlingame siding issue up. On the Wheeler He doesn’t think the language is for an endowment. Instead of looking at it as an endowment I think we look at it for upkeep and programming. Mayor Skadron said to go see one of the arts and culture events. The tent is wonderful. August is wildfire season in the mountains. Be careful when you are in the back country. AGENDA ADDITIONS Mr. True stated he would like to add to the executive session C.R.S. 24.6.4.2 (a) and (e) negotiations involving purchase, acquisitions, lease. etc. CITY MANAGER COMMENTS Steve Barwick reminded everyone the community picnic is on September 11th out at the golf course from 11a.m. to 2p.m. There will be food, refreshments and lots of family activities. BOARD REPORTS Councilwoman Mullins said a little over a years ago the Aspen board of public health was combined with Pitkin County’s. During the last year they have taken a close look at changes. The consultant has been looking at structure and governance and the recommendations have been accepted. They have been separating public health from environmental health. We are establishing a new board of health who are subject experts. It is a phased approach that will reinforce and help the board in its effort to maintain environmental and public health in the county. CONSENT CALENDAR Resolution 105 – Broadband ballot issue Mr. True stated he submitted a modified resolution for the question for the Broadband that has Pitkin County changed to the City of Aspen. Resolution 104 – Ballot issue school tax Councilwoman Mullins thanked Adam and Bert for pursuing this with the traffic and parking situation and looks forward to that discussion. Mr. Barwick said we will do a staff report back to Council after we meet with the school board. Reso 112 – Burlingame single family home construction Councilman Myrin when said when the three bedrooms turn into five is it a qualification change. Can fewer people buy then add more empty bedrooms. Barry Crook, manager’s office, said people will qualify for a three then they can customize it to be a five. Councilman Myrin said he is less comfortable with that. The goal was to have the bedrooms filled up. He will support it tonight but he does not want to build empty bedrooms. Resolution 108 – EOTC Randy Ready and John Krueger Regular Meeting Aspen City Council August 8, 2016 4 Mr. Ready said this was approved at the Joint meeting for $414,000 for the entrance to Aspen study and cell phone data collection. Mayor Skadron said all this money is dedicated to up valley transit money. Snowmass has said they will chip in a certain amount of money. It is one pool of money with two names on it. Councilman Myrin said he is comfortable with that. His opposition is the fixed guideway transit alternative. He will support the whole thing. Councilwoman Mullins said she will support this as it has been 10 years since the last study. We need to look at all alternatives. She supports the study as it has been described. Councilman Frisch said when you look at the big picture you hope it matches with the time allocated. It is long overdue and much needed. There is a direction from the community that we have not done a lot with. Toni Kronberg passed out a handout. She said the study only includes light rail versus the busses. If both get voted down you are left with nothing. EOTC may also direct other modes for screening. She is asking for 50,000 dollars for the aerial study or 15,000 from each jurisdiction.  Resolution #113, Series of 2016 – A Resolution of the City Council of the City of Aspen concerning the Aspen Country Inn project and approving and authorizing the execution of a partnership agreement, a financing agreement, and a loan agreement and authorizing the purchase by the city of the Colorado housing and finance authority’s multifamily housing revenue bond (Aspen Country Inn project)  Resolution #108, Series of 2016 – Revision to the EOTC 2016 ½ % Transit Sales and Use Tax Budget  Resolution #107, Series of 2016 – Vibroscreen Topsoil Screening Machine  Resolution #102, Series of 2016 – Coordinate November 8, 2106 Election  Resolution #103, Series of 2016 – Ballot Question – Wheeler RETT Extension  Resolution #104, Series of 2016 – Ballot Question – School tax Extension  Resolution #105 – Series of 2016 – Ballot Question – Broadband Issue  Minutes – July 25, 2016 Councilman Frisch moved to adopt the consent calendar; seconded by Councilman Daily. All in favor, motion carried. NOTICE OF CALL UP – 230 E Hopkins Ave. Mountain Forge Building Jessica Garrow, community development, told the Council this was approved 6 to 1 by P&Z last month. It is a remodel of the existing structure and includes a decrease of floor area, the addition of two free market residential units and the demolition and replacement of a two bedroom affordable housing unit. The remodel includes decreasing some existing legally non-conforming structures relating to the window well and height of the structure. It was originally built in 1963 and had a significant remodel in the 1980s. Portion are built to the lot line, portions are in the right of way, and the height is currently at 34.8 feet and the maximum is 32. They are working to decrease it but they are able to maintain that non- conformity. There is an increase to the onsite public amenity space. P&Z met three times to review the project. Councilwoman Mullins said they are replacing the affordable housing unit. Ms. Garrow replied yes. It will be replaced on site and slightly larger. Regular Meeting Aspen City Council August 8, 2016 5 Councilwoman Mullins asked to see the image of the site plan and public amenity space. Ms. Garrow said the requirement for offsite public amenity is for a parks and engineering review that they are consistent for access and egress. Councilman Myrin said he did not see the minutes from the June 21 vote. Ms. Garrow said there was a lot of discussion on the affordable housing unit. Councilman Myrin said the recycle area should be 200 square feet and is reduced to 150. Can it be called up for that? Ms. Garrow said it is under the purview of environmental health and not a commercial design issue. Councilman Myrin said the window wells that extend past the property line are not review for Council either. Ms. Garrow said they don’t extend any longer. They are pulling anything that is in the right of way out so it is all within the property. Councilman Myrin said the height is measured by filling something up. Ms. Garrow said the height is measured from the bottom of the light well. Councilman Myrin asked is the height changing. Ms. Garrow said it is decreasing by two inches. There are some changes to the roof form. Councilman Myrin said he is not excited about this building. He is concerned about the mass from the sidewalk and the Monarch side. The mass and scale feels enormous. The offsite public amenity space is nice to have but he is not sure why it is calculated. The recycling area has shrunk. It has a massive feel to it. Councilman Frisch asked which concerns are in our bucket of review. Ms. Garrow stated the recycle is not, mass, scale, roof and public amenity space are. Councilman Frisch said from a top level standpoint, Hopkins sits well. He appreciates where Bert is coming from on Monarch. Councilwoman Mullins said she agrees with Adam that the Hopkins side is very successful. Monarch is boxy and massive. It is a large mass between the two more articulated bookends. She is not sure that you could come up with a better alternative. The three different masses help quite a bit. It is acceptable and she would not ask it to be called up. Councilman Frisch said there is nothing in the guidelines that says a sloped roof needs to honor that. Ms. Garrow replied no. Mayor Skadron said he is curious about the massing between the two end units. The building today has a more welcoming nature. He was going to suggest we take a look at this. Councilwoman Mullins moved to call up 230 E Hopkins Avenue; seconded by Councilman Myrin. All in favor, motion carried. ORDINANCE #22, SERIES OF 2016 – Code Amendment – Election Finance Mr. True stated this is a code amendment to Section 9.04.030 b – campaign finance report filing. The City has adopted the Colorado Fair Campaign Practices Act and has made various amendment to file additional reports. One has made the requirement to file an additional report seven days prior to the election. The city also amended the Act by stating that donations could not be accepted after seven days prior to the election. There is a timeframe in the Act that would allow someone to make a donation Seven days prior to the election but after that reporting period and not get picked up by the reporting period five days in the Act that is then back dated another five days. We have proposed to fix that so there are three reports prior to the election, 21 days, 10 days by this amendment and then five days prior to the election. All of the reporting done pursuant to the act will be required to report as of the date of the report. This will then allow that five days report to contain all donations to be made prior to the election. Regular Meeting Aspen City Council August 8, 2016 6 Councilman Frisch moved to read Ordinance #22, Series of 2016; seconded by Councilman Daily. All in favor, motion carried. ORDINANCE NO 22 (SERIES OF 2016) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING SECTIONS 9.04.030 DEADLINES FOR AND PUBLICATION OF CONTRIBUTIONS AND EXPENDITURES OF THE MUNICIPAL CODE. Mr. True said this does not go to the electorate. It is an ordinance. There was an error in the daily news. Councilman Frisch moved to adopt Ordinance #22, Series of 2016 on first reading; seconded by Councilman Daily. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Daily, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #21, SERIES OF 2016 – Charter Amendment regarding appointment of Chief of Police and Community Development Director Mr. True said this proposes a charter amendment regarding the appointment of police chief and community development director. When the previous community development director resigned there were questions raised about Council’s involvement. Under the charter at the present time, Council is prohibited in that selection. Council asked about the possibility of amending that to be like the clerk and finance director. During those discussions it was brought out if it might be appropriate for the chief of police. We have proposed a charter amendment that would add Section 6.11 Community Development Director and would set for the city manager with approval of council shall appoint a community development director. The same language is used for 6.12 Chief of Police. This is proposing a charter amendment and can only be amended by a vote of the electorate. This ordinance also sets out the ballot language. A charter amendment has to be done by ordinance. The ballot issue is set forth in the ordinance and will be submitted to the electorate on November 8th if passed at second reading. Councilwoman Mullins said the clerk and finance director are both with the approval by Council. Are the language for the clerk and finance director the same. Mr. True said they are slightly different. Effectively they have the same effect but the language is slightly different. Councilman Frisch said it is like a call up. Mr. Barwick said a resolution goes in front of you naming that person. Mr. True said you are specifically prohibited from involvement in the selection process. Mayor Skadron said we have a council manager form of government and charter changes like this start to infringe on our form of government. I don’t want to get into a situation where a future council will use this amendment to interfere. This is a signoff. Councilmembers are the only community members who are not allowed to participate in the hiring process. I want to make sure what is done here has an eye on the future. Councilwoman Mullins said she was the one who suggested the police chief be added to this. They are the people who act as council’s representatives with the community. Mayor Skadron said he is not opposed to the general principal but I do want to raise the possibility for future council’s possibility for interfering. Councilman Myrin said the government structure we have in place now would allow us to replace the manager who would then replace that person. This just puts at the same level as the finance director and city clerk these two people. We don’t have the fire authority just the check point at the hire. Regular Meeting Aspen City Council August 8, 2016 7 Councilman Frisch moved to read Ordinance #21, Series of 2016; seconded by Councilwoman Mullins. All in favor, motion carried. ORDINANCE NO 21 (SERIES OF 2016) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE CITY CHARTER OF THE CITY OF ASPEN TO ADD PROVISIONS TO ARTICLE VI REGARDING THE POSITION OF COMMUNITY DEVELOPMENT DIRECTOR AND THE CHIEF OF POLICE AND THE MANNER IN WHICH THESE POSITIONS ARE APPOINTED. Councilwoman Mullins moved to adopt Ordinance #21, Series of 2016 on first reading; seconded by Councilman Frisch. Roll call vote. Councilmembers Mullins, yes; Daily, yes; Frisch, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #20, SERIES OF 2016 – 404 Park Avenue – Rescind Planned Development Hillary Seminick, community development, passed out a new version of the ordinance. The request is to rescind a planned development overlay. The underlying zoning is residents multi-family. The property received the overlay sometime in the 1970s. Staff reviewed annexation documentations and can’t find why the PD was placed on the property. The request does not propose additional development just to remove the PD. If the approval is not granted any redevelopment would be subject to the planned development. The applicant wants to redevelop as a 100 percent affordable housing project and would need to undergo the three step review process. That includes P&Z, Council then back to P&Z for detail review. If this were granted and the PD removed the property would be subject to the underlying residential mutli family zoning. There would only be a P&Z review to create the credits. There is no call up process to establish affordable housing certificates. The ordinance was revised today based on discussions with the applicant. Staff is recommending approval of the overlay be conditioned with 100 percent affordable housing. Staff has provided language in Section 2 on page 2 that the PD be rescinded upon the following conditions 1) review and approval of a 100 percent affordable housing project, 2) the application to establish affordable housing certificates for the 100 percent affordable housing project be reviewed pursuant to the land use code at the time of application, however the project will not be required to undergo a planned development review. They can move forward with P&Z review. The PD overlay would remain in effect and in place until the affordable housing project receives a CO. Mayor Skadron asked why is this coming to us now. Ms. Seminick replied they had this conversation at 4:00 today. Mr. True said they talked about alternatives, go forward as recession or denial. We started thinking that if there are material representations why shouldn’t they be set forth as conditions. We weren’t sure where the applicant was. We are assuming the applicant is ok with the proposal. It doesn’t require a variance or non-confirmatory. It is a little unusual and late. Given the fact it is memorializing the material representations it is something that can be recognized by Council. Councilwoman Mullins said it seems like a good solution to a difficult problem. If we rescind the PD then it is a non-conformity. Is this a big non-conformity by bypassing the normal review process as long as it is 100 percent affordable housing. Ms. Seminick said it is similar to a conditional rezoning. It is a solution to achieve not granting any variances to the set back encroachments while speaking to the applicants request to remove the PD. Councilwoman Mullins said with the PD overlay you can customize, which seems to be what you are doing here. Ms. Garrow said you cannot amend the process. Regular Meeting Aspen City Council August 8, 2016 8 PD is a preset process. This is a conditional rescinding of the overlay. The PD would remain. If they do anything other than a 100 percent affordable housing project it would go through the three step process. Councilman Daily asked how Staff feels about the proposal with the current changes. Ms. Seminick said Staff feels it is a legitimate way forward. Staff can’t support a hardship variance for a self-created hardship. Councilman Daily said personally it is an elegant solution. Councilman Frisch said he is always happy to see the private sector involved. There are two concerns related but not completely; they are asking to get out of the PD and the set back variance. Peter is now promising to deliver what he says he is going to. He appreciate what the applicant is doing. Is the main reason you are changing you view is the applicant is promising to deliver what he said and there are no set back variances. Ms. Seminick replied that Staff has reached a level of comfort that they are no longer creating a situation where the removal of the planned development overlay would create a non-conformity for which the setback variance would be required to allow the non-conforming aspects to continue. Mr. True stated that is the current condition. Ms. Seminick said any redevelopment based on the revised ordinance would need to rely on underlying zoning. The 100 percent affordable housing project will be subject to all the requirements of residential multi –family and applicable reviews at the time of application. Councilman Frisch said if we approve what Staff is supporting we will not see this project again. Ms. Semnick replied correct. Councilman Frisch said then the whole PD waiver is null and void. Ms. Garrow said if they move forward as represented the PD will be rescinded. Until that time the PD is on the property. The other reason we are comfortable is Peter has done some projects but if it were to sell we would like to have some of these conditions in place. Councilman Frisch said doing this we will have a project that meets code and can go quicker. Councilman Myrin said the downside to this is something going wrong at some point. What is the worse you see happening. Ms. Garrow said that is why we want to tie this to a CO. Mr. True said he is having trouble visualizing a worst case scenario in adopting this document. If this is adopted he can skip the extra PD step but only if he stays with 100 percent affordable housing. Councilman Myrin said like Dancing Bear it gets built and the building stops before it is finished. Ms. Garrow said if the project were shuttered the PD would still be on the property. Councilman Frisch said the residential multi family zone has the same dimensions whether it is affordable housing or free market. They are not asking for any variances. Ms. Seminick replied correct. Mayor Skadron asked why do the non-conformities go away. Ms. Seminick said it would be built to code. Mayor Skadron asked why was that not the case prior to this. Ms. Seminick said the set backs were requested to accommodate the existing structures. Councilman Myrin asked can you keep the existing shell. Ms. Garrow replied no, it would go through the PD because it does not meet the underlying zoning. Sara Adams, representing the applicant, said the request is to remove the PD and have no variations. It is 100 percent affordable housing and complies with the residential multi family zone district. There are four buildings from the late 60s and early 70s. The setbacks have existed this way for 40 years. They want the existing condition recognized by Council. Regular Meeting Aspen City Council August 8, 2016 9 Peter Fornell, owner, said he will be creating a good project. As far as the concern with going to P&Z and then the building department directly, Council’s primary job should not be reviewing land use applications. Your primary job should be running our community. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Frisch said it is a great solution. His only frustration is the timing of the new ordinance. It is a pretty simple solution. There are some affordable housing projects with elevators and underground parking. Let’s make sure the capital reserves cover what is happening in the building. Councilman Myrin said it is a good idea. Mr. True said if you look at the three alternatives; rescind, not or with the condition. This gets us to the 100 percent affordable housing in the most likely scenario. Councilman Myrin said there is no direction if it is 100 percent RO or sets the categories. Ms. Garrow said ROs are not eligible for the certificates. It is up to the applicant to propose a use mix and APCHA to make a recommendation and for P&Z to accept it. If there is a cash in lieu amount it can be used for the credits. Mitigation is still required at a category 4 level. Mr. Fornell said if I build all at a category 2 I can help more developers. I don’t know the exact category mix right now. There is no reason not to create a mix of categories. Councilwoman Mullins said because our land use code is so complicated it is important to be consistent but you have to balance that with we are a smaller city. We have developers we trust and do you hold them to something that was done 40 years ago. Councilwoman Mullins moved to adopt Ordinance #20, Series of 2016 with the conditions presented tonight; seconded by Councilman Daily. Roll call vote. Councilmembers Frisch, yes; Myrin, yes; Mullins, yes; Daily, yes; Mayor Skadron, yes. Motion carried. RESOLUTION #109, SERIES OF 2016 – Red Onion Annex Vested Rights Extension Ben Anderson, community development, told the Council the request is for a two year extension of vested rights. This is a one story commercial building east of the Red Onion Saloon. The original application was submitted in August 2012 for HPC conceptual approval and received final approval in 2014. Ordinance 25-2012 where Council made changes to the permitted uses and dimensions including the prohibition of free market residential and non-lodging third stories. The development order was issued in January 2014. The vested rights expire in January 2017. The HPC approval preserve the existing façade, the demolition of the existing one story commercial building, and allow for the development of a mixed- use building with commercial on the ground floor and residential on the second and third floors. The maximum height is 38 feet. The ground floor remains commercial and the second floor steps back with the third floor stepping back even further. Mr. Anderson showed renderings of the 2012 approval. Council is asked to look at four review criteria; compliance with conditions requiring performance, progress made to date, nature and extent of benefits received and needs of the City and applicant that would be served by the extension. The applicant has stated that the request would give them more time to explore the removal of the residential unit and to develop more commercial space, coordinate this development with the Bidwell building and to coordinate with the Cooper Street mall project. Regular Meeting Aspen City Council August 8, 2016 10 Staff has weighed these benefits buts views these benefits as speculative at this time and recommends denial. We see this as a perpetuation of development rights for more than three and a half years now and are unsure of the direction of the potential land use amendments going forward in the near future. If Council is considering an extension there are two conditions in the resolution regarding the applicability of building code and the preservation of the historic resource. Staff received an email from Shirley Tipton representing the Elks Lodge with concerns about the impact of the view plane and parking and access. Councilman Myrin said section D has paragraphs 2 and 3 allowing more time. Can they happen if this is not extended? Ms. Garrow said they would no longer have a vested approval and would have to start from scratch. Our concern is extension perpetuates a proposal that is inconsistent with the code that is in place today as well as potential future code amendments that we are currently contemplating. Councilman Myrin said they could perpetuate what is no longer allowed. Ms. Garrow said the applicant has vesting until mid January. They could apply for a building permit and move forward with that. Chris Bendon, representing the applicant, said Mark bought the property with the approvals in place. That is different than what he usually does. The value of the property is embedded in the vested property rights. The approval is an important piece of the ownership. Mark is not convinced the existing approval is the best thing to do with the property. He is more interested in purely commercial properties. He can’t apply to start talking about anything else, he is stuck in the moratorium. The vested right allow for a project taller than today, a penthouse. Extending the vested rights makes it less than 100 percent. It makes sense to approve or it doesn’t. It is a simple ask and a reasonable request with the opportunity to serve the needs of the community. What is the magic around two years. It is the time it takes for the moratorium to fully unfold and the time to figure out the new regulations and put together a development application and go through the process. Councilman Frisch said of all the approved but unbuilt buildings in town this is the one I’m interested to see how it plays out. Right now it is 28 feet and there is talk of seeing it go shorter. It is approved for the second and third for residential and the bottom commercial. The community pickle is do you want to hold someone’s feet to the fire because of no variances or do you want to see if something better can come out. The problem with this is if the applicant wants to promise that the building were to come back to meet code as today there might be a discussion. If you don’t want to build the building you bought knowing what you bought is there some way we can structure it to partly honor the community’s desire. If there is something the applicant wants to trade for two years that’s a discussion I’m willing to have. Councilman Myrin said we are going to come up with a code hopefully with what we are looking for. I see where Adam is coming from. If there is a way to gain a little to give a little. He is not super supportive to doing this and is leaning toward the staff recommendation. Councilwoman Mullins said she has never been a supporter of extending vesting. What I’m hearing is if you don’t give us the extension we are going to build the thing. If you do we just might build it anyways. It is a very valuable property. You have really put us in a tough spot. The interests of the city are not perpetuated by the extension. There are no assurance if we give you the vesting you will not build it. Mark Hunt, owner, said we are asking for time because we don’t want to build it. The rock is referendum 1 and the hard place is the moratorium. Regular Meeting Aspen City Council August 8, 2016 11 Councilman Daily said he is pretty close to Adam’s perspective on this. The fourth condition of allowing an extension is what best serves the needs of the applicant and the city. What best serves our community needs and the applicant’s needs is some more time. All this is guess work. We don’t know what Mark is going to do. What we do know since he has been in our community has been to not apply for a lot of residential uses in downtown commercial. I don’t think it really suits his overall plan for what he would like to leave in this town. Our best chance of getting a use that is in the best interest for our community is to allow a little more time for Mark to work it out. I would like to see it be lower. The best chance is to support this application. Councilman Myrin said one change is residential and one is height. If the third floor were not part of this I would be comfortable extending this for two years. It would achieve the two goals that have changed since this approval. Councilman Frisch said if it meets the code of today I am really, really happy. Councilman Myrin with the condition of 100 percent commercial and no third floor. Ms. Garrow said if Council does want to move forward as approved it has free market. The applicant is prepared to provide mitigation via credits. Mr. Hunt said he does not want to build it and has other plans for it. Short term this is the best plan. Long term it does more harm. There is a lot of friction and it takes the vitality out of town. He said he would like to possibly combine and share some of the stairs and trash with the Bidwell building. Councilman Myrin said he thinks that is what the community wants as well. Mayor Skadron said he does not want Council to be led astray with the 100 percent commercial. We need to remember what the commercial is. Ms. Garrow said there is a third condition; limited to two stores, no free market residential, mitigation for net leasable through credits at 60 percent, design review completed with the Bidwell for recycling, access and the like. Councilman Frisch said we would be crazy not to give it a college try. Councilman Daily said he agrees. Worst case scenario when do the vested rights expire. Mr. Bendon said Mark said we can do one year. Mayor Skadron opened the public comment. 1. Jim Farey said my friend had the opportunity to put 38 feet on the Gap building and he didn’t’. Walk the alley. Having one elevator and one trash area won’t be a tough trade. 28 feet on the mall will be outstanding. Mayor Skadron closed the public comment. Councilman Frisch moved to table Resolution #109, Series of 2016; seconded by Councilman Myrin. All in favor, motion carried. Regular Meeting Aspen City Council August 8, 2016 12 ORDINANCE #16, SERIES OF 2016 – Code Amendment – Tree Mitigation Valuation Mr. True said Title 2 has one figure for tree mitigation. Title 13 defines the formula. We are trying to coordinate the figures. The changes in Title 13 are to the formula and the description to the formulas. Ben Carlson, City Forester, said it is a change in the language and a change to use the variable X. Councilwoman Mullins asked where does the mitigation money go and how do you handle wildfire mitigation to address Mike Maples questions from citizens comments be answered via email. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilwoman Mullins moved to adopt Ordinance #16, Series of 2016; seconded by Councilman Frisch. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Mullins, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #18, SERIES OF 2016 – Code Amendment – Administrative Hearing Officer Mr. True said this is fixing the restriction in who can be an administrative hearing officer. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Frisch moved to adopt Ordinance #18, Series of 2016; seconded by Councilwoman Mullins. Roll call vote. Councilmembers Frisch, yes; Mullins, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. RESOLUTION #109; SERIES OF 2016 – Red Onion annex Vested Rights Extension Councilman Frisch oved to untable Resolution #109 Series of 2016; seconded by Councilwoman Mullins. All in favor, motion carried. Ms. Garrow said condition one would state the vested rights are extended by 1 year if the following conditions are met; return to HPC for review of how to coordinate back of house functions between the Red Onion building and the Bidwell building, vertical circulation may be relocated to the Red Onion annex during the HPC review, remove the free market residential unit, remove the third story and allow two stories at no more than 28 feet, housing mitigation is required at 60 percent of the new net leasable square footage and may be mitigated through housing certificates, return to City Council for call up. The applicant is also requesting that if the above conditions are not met the vesting rights be extended for one year with the expectation to make an application to do their best to coordinate with the Bidwell building. If that is not successful they still have the vested rights for one year. Councilman Frisch said if it starts to go pear shape then the vested rights are still good till January. Now the vested rights don’t move if that is off the table. It loses a lot of pressure points to negotiate in good faith if you have that for one year. Mr. Romero said we went through the first seven or eight conditions real fast. If Council will give the one year tonight what is the give back. We are asking for a period of time tonight. The best way to look at this is to add some extension to the vesting. Mr. Bendon said the key is it feels like there is a long time from now till January but it isn’t. To be able to prepare a full set of drawings takes a good bit of time. We’re not here playing games. Ms. Garrow suggested a four month extension. Councilman Myrin said he would not be comfortable with anything longer than four months. He does not want this to carry on to another Council. Regular Meeting Aspen City Council August 8, 2016 13 Mr. Bendon said they will need to prepare an amendment to the Bidwell application to integrate the back of house. Then the potential Council call up. If HPC can’t approve it or Council calls it up they have until May 15th to pursue the original application. Ms. Garrow said the vesting is extended for 3 years if the following conditions are met. The conditions are going to HPC for coordination, removing the free market unit, removing the third story, housing mitigation, call up. If the above conditions are not met, the vested rights are extended through May 15, 2017. Councilman Frisch moved to adopt Resolution #109, Series of 2016 with amendments; seconded by Councilman Myrin. All in favor, motion carried. EXECUTIVE SESSION Mr. True said staff is recommending executive session pursuant to C.R.S. 24.6.402(a)(b)(e) purchase, acquisition, lease of property and conference with attorney. At 10:22 p.m. Councilman Frisch moved to go in to executive session; seconded by Councilwoman Mullins. All in favor, motion carried. At 11:20 p.m. Councilman Frisch moved to come out of executive session; seconded by Councilwoman Mullins. All in favor, motion carried. Councilman Frisch moved to adjourn; seconded by Councilwoman Mullins. All in favor, motion carried. Linda Manning City Clerk