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HomeMy WebLinkAboutminutes.council.19961216Aspen City Council Regular Meeting December 16, 1996 Mayor Bennett called the meeting to order at 4:45 p.m. with Councilmembers Marolt, Paulson and Waggaman present. CITIZEN PARTICIPATION There were no comments. CITIZEN PARTICIPATION 1. Councilman Marolt moved to move to the action items as (e) Interpreta tion of Ordinance #1, Housing Replacement, Resolution #76, Series of 1996; seconded by Councilman Paulson. All in favor, motion carried. 2. City Manager Amy Margerum told Council the city has received a check from CDOT for $37,000 for east Cooper improvement project. 3. City Manager Amy Margerum said CORE would like a work session with Council to discussion joining the cities for climate protection campaign. Council suggested this be added to the end of the January 6th work session. CONSENT CALENDAR Councilman Paulson moved to read Ordinance #46, Series of 1996; seconded by Councilman Marolt. All in favor, motion carried. ORDINANCE #46 Series of 1996 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN AMENDING CHAPTER 26 OF THE ASPEN MUNICIPAL CODE TO WIT: SECTION 26.04.100 DEFINITION OF “LODGE”; was read by the city clerk Councilman Paulson moved to adopt the consent calendar; seconded by Councilman Marolt. The consent calendar is: 1 Aspen City Council Regular Meeting December 16, 1996 Resolution #74, Series of 1997 - 1/2 Transit & Use Tax Budget Ordinance #46, Series of 1996 - Commercial Lodge Text Amendment Request for Funds - Transportation All in favor, motion carried. 1997 RFTA BUDGET AND 1996 SUPPLEMENTAL APPROPRIATIONS Dan Blankenship, general manager RFTA, pointed out Resolution #4 is a supplemental appropriation for 1996 recognizing $253,900 excess in operating revenues and authorizes $95,163 in additional expenditures and adds $158,000 to the operating reserves. The additional revenues are from higher fare box receipts. The expenditures are for fuel and maintenance. Resolution #5 estimates $9,310,338 in operating revenue for 1997 and $640,955 in capital projects revenue. This resolution also estimates $8,834,000 in operating expenditures and the transfer of $63,000 of operating revenue to the capital projects fund and the additional of $412,000 to the operating reserve. The resolution appropriates these to operating expenses. Mayor Bennett asked why the $412,000 is transferred to operating reserve rather than capital reserve. Blankenship said generally any surplus revenue generated in operating reserve has stayed there. Blankenship said Resolution #6 appropriates revenues for the budget of $8,899,740. The resolution also appropriate $640,000 for capital expenditures. Blankenship noted RFTA has spent the last two years balancing the budget. This is a balanced budget. Mayor Bennett opened the public hearing on the 1997 RFTA budget and 1996 RFTA supplemental appropriations. There were no comments. Mayor Bennett closed the public hearing. Councilman Paulson said if the governments keep raising the cost to ride buses, people will at some point go back to driving their cars. Blankenship said many bus riders are being subsidized by their employers so they do not feel the bus fare increases. It helps for the bus riders to understand that unless down valley governments are willing to help fund, there is no other option than to increase fares. 2 Aspen City Council Regular Meeting December 16, 1996 Councilwoman Waggaman moved to adopt RFTA Resolutions 96-4, 96-5, and 96- 7; seconded by Councilman Marolt. All in favor, motion carried. ORDINANCE #43, SERIES OF 1996 - 1997 Fee Increase John Worcester, city attorney, explained to Council this is an annual fee increase for services provided to the public. It is reviewed by each department to make sure the fees are current. Staff calculated a 4 percent increase to reflect inflation. Councilwoman Waggaman asked why the environmental health fee increased so much. Lee Cassin, environmental health department, told Council they underestimated how much time is being spent on land use referrals and these fees reflect closer to actual cost. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilman Paulson moved to adopt Ordinance #43, Series of 1996, on second reading; seconded by Councilwoman Richards. Mayor Bennett said he likes the fee increases reviewed annually to avoid a large increase once very 5 years. Mayor Bennett said he would not like to automatically increase everything because inflation is an average and everything does not increase. Whenever the costs do not increase, a fee should be held at the same level. Roll call vote; Councilmembers Waggaman, yes; Marolt, yes; Paulson, yes; Richard, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #44, SERIES OF 1996 - Appropriations Rob Umbreit, budget director, said this ordinance appropriates items Council has approved since June and 16 new items which are listed in the memorandum. There are 5 items added since first reading: engineering labor $5,500; $45,000 to cover 2 years of telephone maintenance agreements with Pitkin County; distribution of raise pool to departments; Wheeler $9,000 data processing equipment; carry forward from 1995 of the yellow brick for the roof repair $16,790. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. 3 Aspen City Council Regular Meeting December 16, 1996 Councilwoman Richards moved to adopt Ordinance #44, Series of 1996, on second reading as amended; seconded by Councilman Paulson. Roll call vote; Councilmembers Richards, yes; Waggaman, yes; Paulson, yes; Marolt, yes; Mayor Bennett, yes. Motion carried. APPEAL PLANNING DIRECTOR INTERPRETATION TATTOO PARLOR Stan Clauson, community development director, said the applicants are requesting Council find that a tattoo parlor is a use equivalent to an artists’ studio, which is a permitted use in the service/commercial/industrial zone district. If this were a permitted use, it could be established without any review by staff and there would be no conditions set by the city, like reasonable hours of operation, to mitigate any adverse land use impacts resulting from the establishment of that use. Staff requests Council uphold the interpretation of the director, which states the applicants have several options. Clauson told Council in October staff met with the applicants regarding a tattoo parlor at a specific location in the SCI district. A tattoo parlor is not defined or referred to in the city’s land use code. It appears it would require a code amendment to allow this use in the SCI zone. Clauson said at that time he informed the applicants they had the right to request an interpretation from the community development director and to appeal that interpretation to Council. Clauson said the applicants may also request a temporary use permit, which would allow them to establish their business while seeking a code amendment for the SCI zone. Clauson said in November, he received a formal request for an interpretation and this was provided November 27th. Clauson said the applicant then appealed this interpretation, which is this agenda item. Clauson reiterated that neither tattoo parlor nor artists’ studio are specifically defined in the city’s land use code. Clauson said he would interpret a tattoo parlor to be a “personal service” establishment like a barber or beauty shop. This is a permitted used in the CC, C-1 and street level of CL Zones. Clauson said from the zoning, it would seem clear an artists’ studio would be a work room not a personal service establishment. Clauson pointed out the intention of the SCI district is for the preservation or development of limited commercial and industrial uses which do not require or generate high customer or traffic volume. The only permitted studio use in the SCI is the artists’ studio. Staff feels the reason this is allowed is that an artists’ studio does not have public traffic. 4 Aspen City Council Regular Meeting December 16, 1996 Clauson said another option would be the temporary permit which would allow the applicant to establish a business and to determine whether to proceed with an application for a code amendment. This would allow the applicants to test the market in their desired location. Clauson said a tattoo parlor is not explicitly permitted in any zoning district. A tattoo parlor is closest in definition to a personal service and permitted in the CC, CL, and C-1 zone. A tattoo parlor is not an artists studio and not permitted in the SCI. A tattoo parlor would be permitted in the CC, C-1 and CL zone but not in the SCI without a land use code amendment. Dennis Green, representing the applicants - Ben Wallenborn and Paul Lambdin, told Council their proposed location is 465 North Mill street. Green said the First Amendment is the cornerstone of all liberties and without which all other liberties are in jeopardy. Green said tattooing is a form of expression and artistry is involved. Green said tattoos involve religious and political expressions, which are protected by the First Amendment. Green said he does not feel his clients should have to enter into a lengthy and costly code amendment or to apply for a temporary use permit. These would delay start of business. Green told Council one of the applicants has a bachelor of fine arts. Green said tattooing is one of the most ancient forms of art. The applicants presented some photographs and samples of tattoos. These were marked exhibit #1. Green said the applicants feel the SCI zone is the best zone for this type of business. Green pointed out this is not a highly visible location, like the commercial core. The applicants told Council tattooing is done by appointment with approximately one client per hour. The applicants have already signed a lease for the location at 465 N. Mill. Green entered into the record definitions of arts from Black’s Law Dictionary and Webster’s Dictionary and the definition of studio from Webster’s. Green said his clients have tried since October to do this correctly and have gotten caught up in the system trying to open a business. Green said it will take several more months to process a temporary permit or a code amendment. Green said tattoo parlor meets the definition of an artists’ studio. Green said there are also first amendment issues. Green said human skin is another medium for expression of art. Green said to the questions, is it art, is it a studio, the answer is yes to both. Green said there will not be a traffic problem because there will not be more than 8 or 9 customers in one day. This is not a volume tourist business nor a high income business. This business cannot compete for spaces downtown. 5 Aspen City Council Regular Meeting December 16, 1996 Councilwoman Waggaman said the city has a strong background of encouraging applicants to apply for their own code amendments. It was not possible when writing the code to come up with every use that fits every district. Councilwoman Waggaman encouraged the applicant to apply for a temporary permit. Councilwoman Waggaman said she does not have a problem with this use being located on the mall. Councilwoman Richards agreed she is not opposed to having this business on the mall. Councilwoman Richards said she does not agree this is an artists’ studio. Councilwoman Richards said one way to look at art is whether the piece of art can be sold to another person. Councilwoman Richards said Council just went through a long discussion on the Trueman and what uses are appropriate in the SCI zone. Councilman Paulson asked if there has been any input from neighbors about this use. Green said the landlord has no problems with it. Clauson noted that there is no public hearing as part of a director’s interpretation. There is a formal procedure of notification for a code amendment. Clauson said he received two comments; one stating tattooing is not art, which has little to do with this specific land use issue; the other was a comment from a repair shop in opposition. Councilman Paulson said he feels tattooing is an art form and this could be an artists studio and allowed in the SCI zone. Mayor Bennett said Council’s job is to decide whether this fits the zoning. Mayor Bennett said there are many, many kinds of art. The studio definition from planning is a good one. Mayor Bennett said the intent of the land use code is fine art. Other forms of art, dance, performance art, martial arts, photographic arts, all require a conditional use permit. Fine art is the only use by right. Mayor Bennett said he has difficulty interpreting tattoo parlor as fine art. It fits more easily into craft, decorative art or personal service. Mayor Bennett said an additional criteria for the SCI zone might be the uses are the essential building blocks of a community. The NC and SCI zones were created specifically to protect Aspen as a community against the erosion of the building blocks. The one category added to this is artists’ studio, which seems to fit the idea of Aspen. Mayor Bennett said this use is either decorative art, and could go in the commercial core; performance art, which would need a code amendment; or a personal service, which also could be located in the commercial core. Mayor Bennett said he wants to preserve the SCI zone for uses that are essential to the community of Aspen. Mayor Bennett said protecting the 6 Aspen City Council Regular Meeting December 16, 1996 integrity of the zone is Council’s responsibility. Mayor Bennett said he does not feel this is a SCI business. Councilwoman Richards moved to uphold the planning director’s text interpretation and to encourage the applicants to pursue a temporary use permit, code amendment or to establish in another zone district where this would be an allowed use as a personal service; seconded by Councilman Marolt. All in favor, with the exception of Councilman Paulson. Motion carried. HARVEY PROPERTY EASEMENT George Robinson, parks department, told Council the Harvey family is trying to get access to a building site on their property. Staff has spent a year on trying to work out some arrangement with the Harveys because crossing open space would take a vote of the public. Robinson said staff has also tried to find some public benefit in exchange for this. One option would be to use the old alignment into town across the Harvey property for a trail. This was not preferred by the Harveys. Another option would be trading a parcel of land. Robinson said this was not a benefit to the city because it did not link up to much for the city. Robinson said staff looked at access down to the river; however, they felt this might be an impact on the wildlife. Connie Harvey told Council she purchased 63 acres in 1956 and has lived on this property ever since. The property is in the Maroon Creek valley. Harvey said she would like to build a house on this property for her family. A site was chosen for environmental reasons and for proximity to town and utilities. There is a road and 600 feet of it goes through city property. Ms. Harvey told Council they granted a sewer easement to the Aspen Sanitation District in 1970. The Harveys were given 10 sewer taps for that easement. Ms. Harvey said another possibility is to build a road on their property. This would go from the end of Chatfield drive to the property. Glenn, excavator, showed on a photo the amount of area that will be paved and that which will have to be cut and filled. It will cost about $70,000 to build a road to that site. Glenn said it is a shame to build a road when there is an existing road. Glenn said if the existing road were used, there would be minimal cut and scarring. It makes a lot more sense to use the existing road. It would cost about one-fourth the cost and leave about one- tenth the scar. 7 Aspen City Council Regular Meeting December 16, 1996 Ms. Harvey said because of the topography, there are not a lot of places for this building envelope. The trail would come within 8 feet of the house. There would be no privacy; it would spoil the house on 2 sides. Robinson said staff looked at some different locations for the trails. Ms. Harvey said they have suggested a conservation easement. Robinson said staff was pursuing the trail because of the historic nature of the trail; it was the original road into town. Cynthia Tester, representing the applicant, disagreed that there has to be an election regarding the use of the sewer easement right-of-way. Ms. Tester told Council when the Harveys conveyed the sewer line easement, they reserved to themselves a right-of-way to be able to access this portion of the property. The easement was prepared by the Sanitation District. The legal description was not right and does not convey to the Sanitation District what it hoped it was getting. One month later, the Harveys received 10 sewer taps. After that TIPCO sold the property to the city of Aspen; the property was purchased with 6th penny funds for open space purposes. Ms. Tester said making this a road would not be a change in use. The use of the property prior to obtaining it with open space funds is that it was a right-of-way for ingress and egress purposes. In the deed from the Harveys to the Sanitation District, it states they reserved for themselves a right-of-way across the property for access. The Harveys are not going to change the use of the right-of-way; it is still going to be used for access. Case law does not forbid expanding the use as long as the degree is not unreasonable. Ms. Tester said she feels the use is consistent as contemplated by the parties prior to the conveyance. There is a road there. John Worcester, city attorney, said when the city acquired the property from TIPCO, it was only encumbered by an access maintenance easement provided to the Sanitation District. Worcester said the issue is if access across this easement is allowed, it is changing the use. Worcester said he feels this is a change; it is going from an access easement, used by the Sanitation District very rarely, to one that would be used several times a day. Worcester said the City’s Charter requires a vote be taken whenever there is a change in use in real property acquired by open space funds. Worcester said when open space funds were used to purchase this property, the only thing encumbering that land was an access easement for that sewer line. Councilwoman Richards asked how this relates to the county land use process and whether they would define the best building envelopes. Councilwoman Richards 8 Aspen City Council Regular Meeting December 16, 1996 said she would rather set up a process in order to reach a decision. Councilwoman Richards said she would like to hear from the county open space board, county P & Z, see how this might tie into the newly purchased Burlingame ranch, and also do a site visit. Mayor Bennett said egress and ingress are quite different than building a road. Ms. Harvey said she thought they were getting an access easement from the Sanitation District. Mayor Bennett said the Sanitation District did not own the land and they could not grant such easement. Worcester said granting an easement and the right to have taps is two different things. Granting someone a tap does not necessarily grant someone the right to build on top of it. Councilwoman Richards said this discussion should be whether this should go to an election or not. Councilwoman Richards said there is enough ambiguity that this should go to an election. Robinson said during his tenure, the city has never let anyone cross open space. When staff looked at this, they tried to determine what would benefit the city the most and felt the trail would be best. The Harveys are not interested in a trail on their property. Councilwoman Waggaman suggested looking at trading some open space as another possibility. Council requested an aerial map or photo with a clearer indication of how close the trail would have to go to the house. This should be referred to the county before it comes back to Council. Council suggested perhaps a 2 or 3 foot trail rather than an 10 foot wide paved trail. Council also would like to have comments from the immediate neighbors. Council requested a copy of the file on the transfer of easements. Mayor Bennett said he feels an election will be necessary but should not be a problem. RESOLUTION #75, SERIES OF 1996 - Aspen Meadows Trustee Townhomes SPA Amendment Amy Amidon, community development department, told Council the final SPA for lot 5 of the Aspen Meadows was approved in 1991. There are 8 existing trustee townhouses. The approval allowed expansion to 2500 square feet and to add 3 new units which were to be connected. Various things have held up the plan for the last 5 years. A modest expansion of the townhouses is now being requested and 3 new townhouses at 2500 square feet. HPC reviewed this and felt because there is a different in size of the new town houses, it will be better if they are separated from the existing townhouses. This requires an SPA amendment. P & Z and staff 9 Aspen City Council Regular Meeting December 16, 1996 recommend approval. There is no change in density, no significant impacts from the original approval. Ms. Amidon said breaking them apart preserves some trees and privacy of the owners. Amy Margerum, city manager, told Council she received some phone calls indicating concern that these 3 units may take away from the overall Herbert Bayer feeling of the institute. Doug MacPherson, representing the applicant, said the new units are very similar to the existing trustee townhouses. The roof angles are the same, the materials are the same. They tried to create similar but not a replica of the existing units. Ms. Amidon noted the new units are twice as large as the existing units and the architecture needs to be somewhat different. Gideon Kaufman, representing the applicants, said since the original approval for expansion of these units, it became apparent it was difficult to do the expansion. Owners have chosen to renovate the units rather than expand them. Councilwoman Richards asked if open space is being lost because of separation of the units. MacPherson said there will be transfer of general common area to limited common area and the open space will stay the same. The buildings stay within the setback for lot 5. Councilman Marolt moved to approve Resolution #75, Series of 1996; seconded by Councilwoman Richards. All in favor, motion carried. RESOLUTION #76, SERIES OF 1996 - Interpretation of Ordinance #1 Housing Replacement (Day Subdivision) Stan Clauson, community development director, reminded Council his interpretation of this project was that 50 percent of any bedrooms demolished be provided and suggested 6 additional bedrooms would need to be provided to meet this code interpretation. Clauson said Council supported this interpretation but also felt that the applicant received other advice from staff in pre-application meetings and the applicant had reliance that fewer units needed to be provided. Council felt there should be some relief to the applicant. The applicant has said they can provide 2 extra affordable housing bedrooms for a total of 14 replacement bedrooms. Resolution #76, Series of 1996 indicates that Council supports the interpretation effective from this date forward and that Council supports relief for the applicant and finds the additional 2 bedrooms is an appropriate compromise. 10 Aspen City Council Regular Meeting December 16, 1996 Councilwoman Richards moved to adopt Resolution #76, Series of 1996; seconded by Councilman Paulson. All in favor, motion carried. SCHEDULE BOARD INTERVIEWS Council scheduled interviews for Tuesday, January 14 or 21 depending on when the County Commissioners can met on Cozy Point. Council will also have a work session January 6th on transportation and a continued meeting on January 28th at 4 p.m. on the Aspen Mountain PUD. Councilwoman Richards moved to adjourn at 9 p.m.; seconded by Councilwoman Waggaman. All in favor, motion carried. Kathryn S. Koch, City Clerk 11 Aspen City Council Regular Meeting December 16, 1996 CITIZEN PARTICIPATION ................................ ................................ ................... 1 CITIZEN PARTICIPATION ................................ ................................ ................... 1 CONSENT CALENDAR ................................ ................................ ........................ 1 Resolution #74, Series of 1997 - 1/2 Transit & Use Tax Budget .......................... 2 Ordinance #46, Series of 1996 - Commercial Lodge Text Amendment ................ 2 Request for Funds - Transportation ................................ ................................ ...... 2 1997 RFTA BUDGET AND 1996 SUPPLEMENTAL APPROPRIATIONS .......... 2 ORDINANCE #43, SERIES OF 1996 - 1997 Fee Increase ................................ ..... 3 ORDINANCE #44, SERIES OF 1996 - Appropriations ................................ .......... 3 APPEAL PLANNING DIRECTOR INTERPRETATION TATTOO PARLOR ...... 4 HARVEY PROPERTY EASEMENT ................................ ................................ ..... 7 RESOLUTION #75, SERIES OF 1996 - Aspen Meadows Trustee Townhomes SPA Amendment ................................ ................................ ................................ ............. 9 RESOLUTION #76, SERIES OF 1996 - Interpretation of Ordinance #1 Housing Replacement (Day Subdivision) ................................ ................................ ............. 10 SCHEDULE BOARD INTERVIEWS ................................ ................................ ... 11 12