HomeMy WebLinkAboutminutes.council.20040823Regular Meeting Aspen Ci,ty Council ....... AUgUSt 23, 2004
PROCLAMATION - Wilderness Act 40th Anniversary ..................................... 2
KATSUYAMA EXCHANGE STUDENTS ........................................................... 2
CONSENT CALENDAR ............................................................................................ 4
· Resolution #78, 2004 -Contract BTE Concrete West Hopkins Trail ..................... 5
· Resolution #79, 2004 -Contract West-Tech Communications Telephone System 5
· Resolution #80, 2004 -Contract Aspen Earthmoving Pedestrian Improvements... 5
· Resolution #81, 2004 - IGA with Pitkin County Funding Trails Projects ............. 5
· Resolution #82, 2004 - Contract Mesa Mack Replacement Dump Truck ............. 5
· Minutes - August 9, 2004 ....................................................................................... 5
ORDINANCE #29, SERIES OF 2004 - Code Amendment HPC Number of
Members ........................................................................................................................... 5
ORDINANCE #25, SERIES OF 2004 308 Park Avenue Historic
Landmark Lot Split.... .................................................................................................... 6
ORDINANCE #27, SERIES OF 2004 Code Amendment RMF and RMFA
RESOLUTION #48, SERIES OF 2004 - Aspen Highlands Village PUD
Finding of Substantial Compliance with Subdivision Approval ........................ 9
RESOLUTION #54, SERIES OF 2004 Chart House Conceptual PUD .... 11
RESOLUTION #83, SERIES OF 2004 Appeal of Administrative Decision
Erroneous Website Information ............................................................................... 14
Regular Meeting AsPen City co~,,~ci! .... August 23, 2004
Mayor Klanderud called the meeting to order at 5:00 p.m. with
Councilmembers Paulson, Semrau, Torre and Richards present.
PROCLAMATION Wilderness Act 40th Anniversary
Mayor Klanderud and Council acknowledge and celebrate the 40th
anniversary of the Wilderness Act on September 3, 2004, and proclaim the
week of August 30 - September 5 as Wilderness Week. Mayor Klanderud
presented the proclamation to Sloan Shoemaker, Wilderness Workshop.
KATSUYAMA EXCHANGE STUDENTS
Jim Baker and 5 of the students from Aspen who went to Japan thanked
Council for their financial gift that helped make this trip a possibility.
Students told Council they valued the cultural differences and appreciated
living with Japanese families. Students presented Council with a photo
album and with thank you notes.
CITIZEN COMMENTS
1. Stephanie Soldner entered into the record a protest on the city's
actions relating to the Burlingame Village development. Ms. Soldner
presented a letter to the neighbors from Michelle Bonfils as well as
photographs showing the sage and vegetation being ripped up at
Burlingame. Ms. Soldner said citizens are concerned about the city's refusal
to disclose plans and costs to build Burlingame. Ms. Soldner said initiative
.petitions will be circulated and will follow the process through the courts,
Councilman Torre stated the Burlingame project has been a long and
. difficult process. Councilman Torre said for his term, Council has attempted
to work with the Soldner family to make concessions so they felt more at
ease with the project. Councilman Torre pointed out it was Soldners'
request to do something different with the access because of their plans for
the future of the property. Councilman Torre said on the environmental
impacts, Council tried to work toward the best result for the future of the
project. The Soldners twice changed their mind about the access.
Councilman Torre said Council is aware of the environmental impacts and
feel what they have done will be for the greater good of the community.
Regular Meetin~ Aspen City Council August 23? 2004
Steve Barwick, city manager, told Council road grading on the land owned
by the city and in the city has been started. The city is not working on the
land that is part of the land exchange with the Soldners. Councilwoman
Richards pointed out last week at a lottery for a 3 bedroom home, there were
73 families who qualified, which shows the demand for housing in the
community. There was a vote in August 2000 where the voters approved
moving forward with Burlingame by a 60/40 margin. The project was
delayed in 2001 in order to have a fiscal analysis of the housing program
done. This report identified Burlingame Village as the second highest and
best site on which to build affordable housing. Councilwoman Richards
pointed out the city's moving the rOad to Deer Hill was at the Soldners'
behest. There is a payment from the Zolines of $8300 toward maintaining
the Soldner property and also $3300 from each of the 12 lots anytime there
is a resale during the next 50 years.
2. Toni Kronberg noted there is a work session on recycling tomorrow
night and hopefully Council will talk about the location of a recycling
center. During the EOTC meeting, a possible land.swap with the forest
service was brought up. Ms. Kr.onberg asked if the Mayor had contacted the
forest service about that land trade as well as relocated the visitors' center at
that location. Ms. Kronberg asked if the city-owned Burlingame property
has been annexed into the city. The answer is yes.
COUNCILMEMBER COMMENTS
1. Mayor Klanderud announced the Aspen Valley renewable energy day
Saturday on the Mill street mall, sponsored by the City of Aspen, Holy
Cross, CORE, there will be live music, exhibits, booths and free movies at
the Wheeler.
2. Councilman Semrau stated it his observation that what keeps a
community sustainable is people. Without affordable housing and helping
people live in this community, that will not happen. Councilman Semrau
opined that building Burlingame is working toward sustainability.
3. Councilman Torre noted citizen participation is not the best way to get
questions answered. Councilman Torre said Council has e-mail and phones
and that is a better way to contact them than to toss out questions with a 3-
minute time limit.
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Regular Meetin~ Aspen City Council August 23, 2004
4. Councilman Paulson asked if Council were to restrict what people say
during citizen comments, why have it. Mayor Klanderud agreed this is a
public forum and an appropriate place in which to raise issues.
5. Steve Barwick, city manager, noted school starts August 30 and 31
and cautioned everyone that school buses and children will be on the streets.
6. Steve Barwick, city manager, asked for an executive session at the
end of the meeting to discuss property acquisition.
7. Councilwoman Richards reminded Council the CAST dinner and
CAST meeting are in Snowmass Village the end of this week.
8. Councilwoman Richards asked that someone from the city water
department attend the state wide water initiative process meeting in
Glenwood Springs August 25th.
9. Mayor Klanderud reported at the RFTA meeting, the ballot language
was discussed. There will be sales tax question in Basalt, Carbondale, Eagle
and Glenwood Springs. Garfield county will ask the voters for a tax
dedicated to RFTA as well as a .02% tax for trails. The question in Pitkin
county is not a tax increase but would allow the elected officials to provide
more money to RFTA contingent upon the sales tax questions passing in
other jurisdictions.
10. Mayor Klanderud said the Civic Master Plan task force met last week.
No final decisions were made. The Theatre in the Park has expressed
interest about having a permanent facility on the Galena Street plaza.
Gilbert Sanchez did a rendering showing this would be possible. Mayor
Klanderud said interest was expressed about making North Mill street more
pedestrian friendly. Chris Bendon will give Council a Civic Master Plan
update August 31 s~
CONSENT CALENDAR
Councilman Torre moved to approve the consent calendar; seconded by
Councilman Semrau.
Councilwoman Richards noted the memorandum on pedestrian improvement
states, "this is part of a 5-year plan approved by Council in the Spring of
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Regular Meeting Aspen Ci~, Coun~i! ~AUgUS~,<23~,200~:
2004". Councilwoman Richards recollected Council approve one year of
the entire 5-year program.
The consent calendar is:
· Resolution #78, 2004 Contract BTE Concrete West Hopkins Trail
Resolution #79, 2004 -Contract West-Tech Communications
Telephone System
Resolution #80, 2004 Contract Aspen Earthmoving Pedestrian
Improvements
Resolution #81, 2004 IGA with Pitkin County Funding Trails
Projects
Resolution #82, 2004 - Contract Mesa Mack Replacement Dump
Truck
· Minutes - August 9, 2004
All in favor, motion carded.
ORDINANCE #29, SERIES OF 2004 - Code Amendment HPC Number
of Members
Councilman Paulson moved to read Ordinance #29, Series of 2004;
seconded by Councilman Torre. All in favor, motion carded.
ORDINANCE #29
Series of 2004
AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ASPEN APPROVING AN AMENDMENT TO CHAPTER
26.220.030 AND 26.220.050 OF THE CITY OF ASPEN MUNICIPAL
CODE, TO REDUCE THE MEMBERSHIP OF THE HISTORIC
PRESERVATION COMMISSION AND TO REDUCE THE QUORUM
Councilman Torre moved to adopt Ordinance #29, Series of 2004, on first
reading; seconded by Councilman Paulson.
Regular Meeting ASPen c~tv C0uncil. .... August 23, 2004
Mayor Klanderud said the HPC has a great deal of emotion attached to their
work. Reducing the membership to 5 means 3 members could be making
decisions. Mayor Klanderud said she is concerned because she feels their
work is comparable to that of P&Z and she is reluctant to place these types
of decisions with so few people. Mayor Klanderud said if this commission
is having difficulties with quorum, staff should review the qualifications and
make changes that way. Councilwoman Richards noted she has the same
concerns. Mayor Klanderud suggested Council aggressively recruit
applicants. Councilman Semrau agreed he does not want to reduce the
number of members and that Council should take responsibility for outreach.
Roll call vote; Councilmembers Torre, yes; Richards, no; Paulson, no;
Semrau, no; Mayor Klanderud, no. Motion NOT carried.
ORDINANCE//25, SERIES OF 2004 308 Park Avenue Historic
Landmark Lot Split
Amy Guthrie, community development department, told Council this
property is zoned R-6, located at 308 Park Avenue on the east side of town
and contains a log cabin constructed in 1949. This is currently a landmarked
site. The lot is 7800 square feet and will be divided about in half with 1500
square feet of FAR dedicated to the historic building.
Alan Richman, representing the applicant, told Council they are comfortable
with staff's evaluation and with the conditions. Richman told Council he
and the applicant were pleased with the process, which went very smoothly.
HPC unanimously recommended this be approved and also recommended a
500 square foot bonus because they found this to be an outstanding project.
Richman told Council the cabin will be .moved to the front of the site and
will get about 500 square feet addition. Councilman Semrau asked the
allowable FAR for the new structure. Ms. Guthrie answered 2493 square
feet. Councilman Paulson said his problem with the lot split ordinances is
that new houses overwhelm the historic property. Councilman Semrau
noted the HPC has purview over the entire property.
Mayor Klanderud opened the public hearing. There were no comments.
Mayor Klanderud closed the public hearing.
Mayor Klanderud asked about the condition requiring a new sidewalk be put
in and does this sidewalk connect to anything. Richman said there is a
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Regular Meeting Aspen City. Council August 23~ 2004
sidewalk to the south. John Worcester, city attorney, noted the city has
adopted a plan showing the areas in which it would be desirable to have
sidewalks. This is in an area in which sidewalks would be desirable.
Councilwoman Richards moved to adopt Ordinance #25, Series of 2004, on
second reading; seconded by Councilman Torre. Roll call vote;
Councilmembers Paulson, yes; Richards, yes; Torre, yes; Semrau, yes;
Mayor Klanderud, yes. Motion carded.
ORDINANCE #27, SERIES OF 2004 - Code Amendment RMF and
RMFA
Chris Bendon, community development department, reminded Council this
ordinance is a result of work sessions 0n infill anda r~.fl~ipn~th.e ~fi!~
concept. Staff and Council looked at the code and how. it~directs a l0w
intensity use of high intensity zones proximate to downtown. This is a
recommendation on how to use the zones more efficiently. This would shift
more development to multi-family zones, to get more people living close to
the downtown, and to have opportunities for affordable housing. The
ordinance increases development rights for multi-family development and
decreases the development rights for single family and duplex. There is an
80% FAR schedule for single family and duplex. Heights and setback are
increased for multi-family development in this zone. Mayor Klanderud
asked why bed and breakfast are allowed only in historic properties. Bendon
said this is in the current code and is an incentive for hist, oric properties.
Mayor Klanderud asked why this would not be allowed ina structure that is
not historically designated. Councilwoman Richards suggested adding bed
and breakfast as a conditional use so there is some~review. Co~nci! agreed
to have staff look at including bed and breakfast in both z0nes as a
conditional use in a non-historic buildings.
Councilman Semrau noted the memorandCm_~s~tes.,.[h,_e profit margin should
be duplicated with multi-family commensurate with reduction in profit for
the single family or duplex. Councilman Semrau asked if this was verified
at the 80%. Bendon said staff compared this to 100% with no reductions. It
is more profitable to do a multi-family development. Bendon said much of
this will be covered in the growth management section of the code. The
final growth management adjustments will allow equalization of the profit.
Mayor Klanderud opened the public hearing.
Regular Meetin~
Aspen City Council
August 23, 2004
Herb Klein said his duplex is in the RMF zone. Klein told Council one.of
his concerns is that his house will become non-conforming because of the
reduced FAR. Klein said he likes the TDR program and this code
amendment would make his property ineligible to take advantage of a TDR.
Klein said there is nothing in between increasing a small amount or
maximizing one's FAR.. Klein said Council needs to take into consideration
the multi-family replacement ordinance, which states if any working resident
ever lived on a property and the owner wants to make changes¢ half the units
would have to be deed restricted. Klein said this is a disincentive for anyone
to do a RMF project.
Toni Kronberg said the infill program calls for intensification of land uses
within the traditional townsite, focusing growth toward already developed
areas and away from undeveloped areas. Ms. Kronberg asked if this will
affect Burlingame. Mayor Klanderud said this will only affect lands zoned
RMF and RMFA and will not affect Burlingame.
Mayor Klanderud closed the public hearing.
Councilwoman Richards noted the affordable housing element of this will be
finalized at a later date. Councilwoman Richards asked if there is something
in place to cover the affordable housing requirement. Bendon noted the
growth management is in place right now. What has been settled on is that
the affordable housing component is 60% of the units, 30% of the FAR at a
category 4 levels on a project-wide basis. Currently it is 60% units and 60%
bedrooms and one has to go through the entire scoring process.
Councilwoman Richards said this code amendrnent is about jm~evelopment
of existing, older free market residential multi-family throughout town. The
vast majority of the square footage in the redevelopment will be free market.
Councilman Semrau said the residential replacement changes make it easier
than the existing code. Klein asked if a person is adding one affordable
housing unit, are they exempt from growth management. Bendon said
Council may grant that exemption. Bendon said if a person tears down a
building and replaces what is there, there is no mitigation requirement.
Klein said the city is trying to encourage multi-family development;
however, there is another code provision that could be inconsistent with this
code amendment. Bendon said an applicant only goes through one process;
if they are replacing the building, they do 50% and the 60% does not apply.
Regular Meeting Aspen CiW Council .... August 23~ 2004
Only when one is adding units does the 60% apply. If one is going through
the rePlacement program, this is exempt from growth management because
it is a replacement.
Councilman Semrau said he does not want to create any nonconformities
when enacting new legislation. Bendon said this code amendment will
create a few nonconformities, which is not uncommon with zoning changes.
Bendon noted the nonconformity section in the city's code is liberal and
does not require action on the part of the homeowner. Klein suggested a
grandfather clause to state existing structures are conforming. Council
suggested continuing this while staff investigates an amendment to
grandfather existing structures.
John Worcester, city attorney, asked that Council refer the bed and breakfast
as a conditional use to P&Z as it is bad precedent to change zone districts
without input from them.
Councilman Semrau moved to continue Ordinance #27, Series of 2004, to
September 13; seconded by Councilman Paulson. All in favor, motion
carded.
RESOLUTION #48~ SERIES OF 2004 - Aspen Highlands Village PUD
Finding of Substantial Compliance with Subdivision Approval
Stephan Kanipe, chief building official, told Council the building department
received direction from Council to look at the impacts of construction at the
affordable housing units at Highlands and how this would be dealt w/th.
Kanipe told Council he visited the Wille residences, the Maroon Creek
station, and Cloud Nine homeowners. Kanipe reminded Council
representatives of these homeowners came to Council to protest signing off
on substantial compliance until certain items were addressed. Kanipe said
he reviewed the homeo-amers' documentation and the approved plans.
Kanipe said the Wille residents reported loose kitchen tiles, broken vanities,
and these complaints were documented to the construction company.
Kanipe said there was a failure of the hot water system in 2003. There were
exchanges between the homeowners and the construction company and this
has not been resolved. A drainage problem and spawling concrete were
identified. Maroon Creek station is part commercial and part residences.
There is an ice dam build up on the roof. This is a substantial problem.
Regular Meeting Aspen City Council August 23~ 2004
Hines has been working with the homeowners on proposed solutions. Staff
believes this can be corrected before this winter. Kanipe told Council he has
met with representatives of Hines on work on attic ventilation and sorting
out how the water will drain. There are leaks from the pedestrian walkway
to the parking below.
Cloud Nine has damp, moldly crawl spaces, which had an engineered repair
because it was discovered early and was corrected to the satisfaction of the
building department. Kanipe told Council the building 'department has
committed to plan reviews, the permits and the inspections at no charge to
assist in resolving these problems. Kanipe told Council he has solicited
input from Cloud Nine homeowners about the repair and has received no
comments.
Bob Daniel, representing Hines Highlands, provided Council with a synopsis
of the on-going work. Colorado First has stepped up on many matters.
Daniel suggested Council and staff review roof issues and ice damming on
future projects. Daniel told Council some of the solutions for their ice
damming problems will be done under warranty from the general contractor,
some will be additional work on behalf of the developer. Daniel told
Council he toured all but one of the Wille residences. Daniel researched the
original punch list, the contractor punch lists, and documentation of what has
occurred them. Daniel said not that many things have been left undone.
Mayor Klanderud opened the public hearing.
Jim Pomeroy, Cloud Nine homeowner, agreed in the future staff should look
at how ventilation is done to alleviate ice dams. Pomeroy noted the current
code states unused underground space does not have to be water proofed.
Pomeroy suggested amending this to state that any space below ground has
to have to outside walls waterproofed. This may have averted problems at
Highlands.
Mayor Klanderud closed the public hearing.
Councilwoman Richards asked if the items listed in Daniel's memorandum
are being paid for by the contractor and/or the. developer. Daniel answered
yes. Councilwoman Richards said the commitment is these items will be
completed by Hines or Colorado First Construction. Daniel said they are not
going to homeowners for these repairs. Daniel said on the Maroon Creek
10
Regular Meeting Aspen City Council August 23~ 2004
station with the installation of a Bilen system on their roof, the maintenance
could decrease by about 50%. The homeowners asked the developer to put
in the system as they do not have the capital to install that system. Daniel
told Council he is looking at a nominal percentage recovery.
John Worcester, city attorney, said if Council is satisfied, staff will put the
resolution finding compliance with the subdivision agreement on the consent
calendar for the next meeting. Councilwoman Richards said she appreciates
the effort the developer has done over the past few months to work out these
issues with the homeowners. Mayor Klanderud asked if putting this on the
next consent calendar would indicate all items have been completed.
Worcestei: said if Council adopts Resolution #48 at their next meeting, they
will be placing faith in staff and in Hines. Daniel told Council he will
continue to provide Council with updates on these issues.
Councilwoman Richards moved to continue Resolution #48, Series 2004, to
September 13; seconded by Councilman Semrau. All in favor, motion
carried.
RESOLUTION #54, SERIES OF 2004 Chart House Conceptual PUD
James Lindt, community development department, reminded Council at the
previous meeting a majority of Council indicated they wanted the applicant
to reduce the visibility of the top floor. The applicant has made some
revisions to their previous design, reducing the square footage of the top
floor from 5200 to 3900, reducing the number of units from 12 to 11 and the
number of keys from 22 to 21. Lindt said staff supports this revised project.
Lindt submitted letters from Peter Thomas and Carl Levy for the record.
Jim DeFrancia pointed out the applicants dropped one unit on the top floor
and centered that unit so the visibility of that floor is diminimus. The top
unit is setback from the Aztec condominiums 17 to 21' and from Southpoint
condominiums 9.5 to 14'. DeFrancia noted the southeast comer of the
building has been beveled to reduce the apparent mass of the building. The
FAR is now 2.55:1.
Stan Clauson, representing the developer, told Council they are working
with the city on pedestrian improvements to Dean Avenue. In the growth
management application, they made commitment to help fund that project.
Clauson said this project is providing lodge units in a zone where lodging is
11
Regular Meeting Aspen City Council August 23, 2004
emphasized. There will be two affordable units in excess of what the code
requires. The developers will provide pedestrian improvements along
Durant Avenue and save trees in that area.
Mayor Klanderud opened the public hearing.
Carol Farino, Southpoint, said the city has rules and laws and the city keeps
allowing people to ignore these laws. Lydia Von Tolgren, Southpoint
condominium, said they are grateful to P&Z, to Council and to the
developers for getting a 20 foot setback. Ms. Von Tolgren said they would
prefer to see a 28' building but do approve of this redesign. Toni Kronberg
asked the allowed height in this zone. Lindt said it is 28' in the LTR zone;
however, Council has been looking at code amendments and an allowed
height of 42 to 44'. Ms. Kronberg asked if anyone has thought about the
effect of this building on the street.
Zoe Lloyd said the 20' setback is very important; however, on a community
basis what about the mass of the building. Adam Goldsmith encouraged
Council to request further reductions in this building. Jim Pomeroy said the
mountain can still be seen beyond this proposed building.
Mayor Klanderud closed the public hearing.
Mayor Klanderud asked the FAR of the current Chart House. Clauson said
the Chart House is 6165 square feet. Councilwoman Richards said she likes
the beveling of the back comer; however, the mass of the building is too
much. Councilwoman Richards said she has a problem with the overall
lump and the dramatic increase in density. Councilwoman Richards noted
the city no longer requires open space and this makes the building seem
more massive.
Councilman Semrau noted Council spent a lot of time identifying where
lodging should be located. This is an ideal location and meets all the
parameters of what Council was looking for. Councilman Semrau said the
extra 4' in height is worth the trade off of the increased setback to the west.
Lindt said the site coverage is about 70%, leaving 25 to 30% open space;
however, not all of that meets the definition of open space. The front
restaurant/patio is about 1,000 square feet.
12
Regular Meetin~
Aspen City Council August 23~ 2004
Mayor Klanderud agreed about the benefit of the extra setback on the west.
A PUD is a give and take process in which the city tries to get development
that is as sensitive as possible. Mayor Klanderud said she feels the building
is broken up with windows, faCade coverings, and the beveling of the back
comer. This is an appropriate location for a lodge. Mayor Klanderud asked
about the parking. Lindt said the code requires 26.4 spaces and the
applicants propose 27 parking spaces underground.
Councilman Paulson said try/ng to replace the Chart House is very difficult.
Councilman Pauls0n said changing the code will result in a block of
buildings. Councilman Paulson s0idhe ~a~p~5upport this project.
Councilman Paulson stated he is sincere about supporting the existing height
limits. This proposed building is still -higher than the code amendments
being discussed.
Councilman Torres. aid the applicants have done a good job with this project
and revising it to be more amenable tO the.,c(~qnity. Councilman Torre
stated he still has problems with the height and that the city has code they
are not following. Councilman Torre said.he~dg~s appreciate the increased
setbacks with the neighbors to the west. Councilman Semrau said Council
told the development community what they want and this is very close to
that. Councilman Semr~ a~. sa~dhe, too, wished it were smaller but is not sure
that is possible for a lodge operation. CouncilwomanR~c~b,ards
acknowledged the perimeter is the building is between 31 and 36', which is
acceptable. Councilwoman Richards noted the top floor was decreased only
1300 square feet to one 3900 square foot unit. Councilwoman Richards
suggested reducing the top floor unit further would make the top floor even
less visible. DeFrancia said the applicants could reduce that uniy
Councilwoman Richards mov. ed~ro~approve Resolution #54, Series of 2004,
with the top floor unit being reduced from 3900 to 3200 square feet;
seconded by Councilman Semrau.
Mayor Klanderud said it is very difficult to balance things in this
community. The city has been controlling growth and now needs to evolve.
Councilman Semrau said the city wants to see small lodges and this seems to
be what they are looking for.
All in favor, with the exception of Councilmembers Paulson and Torre.
Motion carried.
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Regular Meeting August 23, 2004
RESOLUTION #83~ SERIES OF 2004 - Appeal of Administrative
Decision ErroneOus W'~'~'it~ifi~'6~ifi6h .....
John Worcester, city attorney, told Council these appeals usually go to the
Board of Adjustment but because of quorum problems, the applicants chose
to bring this to Council. Council's task is to decide whether or not the
decision made by community development department is correct or not.
Council should not reverse or modify that decision unless they find there
was a denial of due process or staff exceeded its jurisdiction or abused its
discretion.
Sarah Oates, community development department, told Council the
underlying issue is that the online code contained err0neous info~ation~ ~
Ms. Oates said Ordinance #46, 2001, which eliminated many exemptions for
floor area, was not changed in the online code. The architects went online
and made modifications based on that online information. The
preapplication meetings between staff and the applicant, the objective of
separating the ADU was not touched upon. The code now requires an ADU
to be above grade and detached and there is n0 flppr area exemption. The
applicants were trying to get an FAR exemption of 50%. Ms. Oates pointed
out the code recognizes that staff makes mistakes and even if a building
permit is issued and the mistake is discovered, the code in effect at the time
of building permit can be enforced. The applicants requested staff not apply
Ordinance #46, 2001.
Herb Klein, representing the applicant, went through the principle of
governmental estoppel. Klein stated the applicants are looking for fairness.
It was an honest mistake. Klein said the issue is whether the architects were
justified in relying on the information they received in order to submit plans
for building permit. Klein said they would like Council to grant the extra
162.5 square feet. Klein presented several exhibits. The first is a preface
from Lexus Nexus stating "This document is current through Ordinance #47,
2002 and the April 2003 code update. For further provisions please consult
the city". Klein said the ordinance that deleted .the 50%floor. area bonus
was adopted in November 2001. This is two years before the statement on
the Lexus Nexus page.
Klein presented drawings of the project showing a 325 square foot detached
ADU which was used in several pre-application meetings with staff. The
architects never got any feedback that they were going in the wrong
14
Regular Meeting Aspen City Council August 23, 2004
direction. Klein quoted from a Colorado case, "generally speaking equitable
estoppel is a rule of justice which in its proper field prevails over all other
rules. The doctrine of equitable estoppel has been invoked to cut Off rights
and privileges conferred by statute and constitutional rights may be
effectively waived by conduct consisting of actions or failure to act. A
statute cannot stand in the way of waiver of equitable estoppel when the
facts demand their application in the interest of justice and right".
Jim Guffey, architect with Charles Cunniffe, told Council they took over this
project in February 2004. The previous design had a detached ADU.
Guffey told Council the architects were being very diligent because the
extension of the building permit was only until March 12. The architects
relied on the website. They had pre,applications meetings with staff to ferret
out any problems. The architects requested hard copies of the code from the
City Clerk's office and were told there were no hard copies available.
Guffey reiterated they were very diligent and contacted the staff on every
matter. Guffey told Council the architects were never cautioned not to use
the'website. The architects met with staff 3 or 4 times in pre-application
hearing.
Guffey said when the applicants found out they had to remove the 162.5
square feet, they removed a family room of 186 square feet by converting it
to a screened in porch. This was reviewed by staff and confirmed as
adequate reduction of FAR. Matthew Tracy, architect with Charles
Cunniffe, told Council he, too, worked on this project. Tracy told Council
he was directed to check the website for the most current information. Tracy
said he was consistently referred to the website by city staff. Klein told
Council the staff memo to the Board of Adjustment indicates that the staff
had been aware of the mistake in the online code fo? some. time. Klein said
staff's attitude was that everyone knows not to rely on the online code.
Klein stated the applicants operated in good faith and were prejudiced
costing time and money to redo the plans.
Councilman Semrau noted the website does not have a disclaimer, and the
applicants were told no hard copy of the code exists. Ms. Oates told Council
the community development department has up-to-date codes and gives
anyone who asks copies of relevant sections. Councilwoman Richards asked
if Council is using the same standard in reviewing this as the Board of
Adjustment. Worcester said it is the same standard; fairness is a component
of due process.
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Regular Meeting
Aspen City Council August 23~ 2004
Councilwoman Richards stated the city has an excellent staff who often
labor under difficult circumstances and high pressure and they perform
admirably. Councilwoman Richards stated it is a fatal flaw having a flawed
website. The government has to take responsibility for being wrong and for
not having a disclaimer on the website informing people that the information
must be verified. Councilman Semrau agreed Council has an obligation to
be fair.
Councilwoman Richards moved to adopt Resolution #83, granting the
applicant the 162.5 square feet; seconded by Councilman Paulson. All in
favor, motion carded.
Councilwoman Richards moved to go into executive session at 9:25 p.m.
pursuant to C.R.S. 24-6-402(4)(a), discussion of property acquisition;
seconded by Councilman Torre. All in favor, motion carded.
Councilwoman Richards moved to come out of executive session at 9:30
p.m; seconded by Councilman Torre. All in favor, motion carded.
Councilman Torre moved to adjourn at 9:30 p.m.; seconded by
Councilwoman Richards. All in favor, motion carded.
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