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HomeMy WebLinkAboutminutes.council.20171023Regular Meeting Aspen City Council October 23, 2017 1 SCHEDULED PUBLIC APPEARANCES – APA Colorado Planning Award ........................................... 2 CITIZEN COMMENTS ............................................................................................................................... 2 COUNCIL COMMENTS ............................................................................................................................. 3 CITY MANAGERS COMMENTS .............................................................................................................. 3 AGENDA ADDITION ................................................................................................................................. 3 BOARD REPORTS ...................................................................................................................................... 4 CONSENT CALENDAR ............................................................................................................................. 4 Resolution #139, Series of 2017 – Purchase of Woody Creek Parcel .................................................. 4 Resolutions #132, Series of 2017 – A towing services agreement between the City of Aspen and Shaun’s Towing and Recovery ..................................................................................................................... 4 Minutes – October 9, 2017 .................................................................................................................... 4 NOTICE OF CALL UP ................................................................................................................................ 4 ORDINANCE #26, SERIES OF 2017 – Add alternate member position to the Wheeler Board of Directors ........................................................................................................................................................ 6 ORDINANCE #25, SERIES OF 2017 – 515 Park Circle, Major Public Project Review ............................ 6 ORDINANCE #24, SERIES OF 2017 – Transferable Development Rights – 119 Neale Avenue .............. 9 ORDINANCE #23, SERIES OF 2017 – Post Moratorium Clean-Up Ordinance ...................................... 12 EXECUTIVE SESSION ............................................................................................................................. 13 Regular Meeting Aspen City Council October 23, 2017 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Hauenstein, Frisch and Myrin present. SCHEDULED PUBLIC APPEARANCES – APA Colorado Planning Award Jessica Garrow and Justin Barker, community development, stated the Colorado chapter of the American Planning Association gives out awards every year. The city won the award for our design guidelines. We were one of 27 projects submitted for review. The award is given based on innovation, quality, promotion of public good and if it is transferable to other communities. Bendon Adams and Rowland Broughton are also part of the award. CITIZEN COMMENTS 1. Aliea Howe, Carbondale, wanted to make council aware of the community arts programming at Justice Snows. It is a vital venue for locally performing artists to cultivate a local arts audience. It is also a way to help the community and a mentoring program for the arts. She asked if we could find a way to support Kiley so she is more fiscally viable. 2. Natalie Rae Fuller, Carbondale, said she is a local poet that takes part in the events at Justice Snows. It gives them an opportunity to perform in a historic building. She would like to see the arts continue. Kiley always paid and fed us. 3. Kelly Snyder, works at Justice Snows as a bartender. She said she went around the community and got some signatures to show people do love Justice Snows. 4. Steve Barlochie, Aspen resident for the last 16 years and works for Shamrock foods. He’s worked with Kiley for the last five years. She has been a great business partner but has had some bumps in the road. She needs a new business model and needs the two months to figure it out to pave the way for success in that spot. He would like council to give her a shot. 5. Edward Schmidt, 275 Paepcke Drive said they have a rodent issue. They have caught more than 20 mice in the last 10 days. They are coming in through the infrastructure and believe it is a building defect. The developer has declined to provide assistance. A major concern is rodents can take over pretty quickly and are difficult to get rid of. He is looking to get the conversation going. Jack Wheeler, asset, said we were notified in mid September. We let them know it was an HOA and homeowner issue. He went out and looked for himself. Everything behind paint is an HOA issue. We walked the building and there is no clear area where they are coming in. The original budget for the HOA included a pest control line item. There are things they could be doing that they are not. He does not believe it is a construction defect. Suggesting the homeowners and HOA address the issue. Councilman Frisch asked is it the HOAs official response that it is not an HOA issue and solely on the city. Colleen said we have not gone to the board themselves and have only been in touch with Will Rutledge the property manager. Jim True, city attorney, said his understanding is a pest control expert would come in and evaluate the property and recommend solutions. Has anyone come in and evaluated. Colleen replied yes, he has only done a walk around and did not see an entry from the lower level. Mr. True replied what I’m looking for is someone with the expertise to evaluate this fully and determine if it is an actual defect. Someone needs to hear from a pest control expert as to the source of the entry. Mr. Wheeler said the pest control expert said he could not find any construction defect and would set traps outside the building and see what he comes up with. He said he could not pin point any one thing but all construction has defects. Mr. True said we don’t have enough information to assume it is a defect of the construction. Councilman Frisch said it would be helpful if you could have an official HOA meeting on this issue and get clarity from them. He needs some more clarity on what the official issue is. Mayor Skadron said the conversation needs to start with the HOA and we need an evaluation from an expert. Councilman Hauenstein said the first step should be to talk with the HOA. Councilman Myrin agreed the process is through the HOA first. 6. Michelle Kiley, owner of Justice Snow’s, said she is not a status quo operator but trying to improve the community at large. She was considered a long shot seven years ago. Since then she Regular Meeting Aspen City Council October 23, 2017 3 has delivered a beautiful restaurant the community could be proud of. It sometimes has competing goals. She will do everything in her power to make the restaurant succeed. Currently she is working on a new pro forma, critical path checklist and refining a P&L. She stands ready to take the restaurant to a performance where it needs to head to be a benefit to the community. Councilman Myrin asked what is the planned opening date. Kiley replied she would really benefit from the time to reorganize. The goal is to reopen as soon as possible, the third week of November. Councilman Frisch said in hindsight the discussion seven years ago was affordability. We are in a pickle with the lease as you want a longer time to reconfigure the lease. Is part of the plan to possibly change the terms of the lease. Kiley replied no, she reexamined the conditions and asking to change the terms would require an RFP process. Councilman Frisch said there is rent and staying open and closing for no more than two weeks. Are you aware a longer closure would be a violation. Kiley stated she is aware the closure runs longer than what is in the lease. She would like to think they won’t be faced with this in the next five years. Councilman Frisch said is one of the conditions to reopen the continuation of the lease for the next five years. Kiley said it would be my preference given we are going to invest considerable resources to improve the business. She is here at the discretion of the community. Mayor Skadron said regardless of what one feels about the cost of a hamburger, your commitment to creating a locally serving venue through the programming is unquestionable. That is a measure of success. Councilman Hauenstein said a five year lease with a five year extension, he is curious why you did not renew when it came up. Kiley said we began talking with the city at the appropriate time but there is the balancing the affordably with the costs. It has been a measure of difficulty to offer quality with affordability. Councilman Myrin said he does not think I’m the one to make the decision on how to run a business but if the doors are not open it can’t be locally serving. COUNCIL COMMENTS Councilman Hauenstein said the ski swap is truly a social event and it felt more back to the local roots. This weekend was the fall face off and a great event. Councilman Frisch said following up on the financial policy discussion. Another one that might be helpful is when rent is paid to the city it is managed by the department overseeing it. A month late it should be brought to the manager and over three months brought to Council. It is important for us to know about it and good policy. Mayor Skadron said 30 days from today the lifts are scheduled to open. The Murdoch Mind Body series opens on Thursday and the institute. Councilman Hauenstein moved that the Council award $2,000 to Simi and Noah to help support their efforts in pursuit of their Olympic dreams. $1,000 for each coming out of the Council contingency. Seconded by Mayor Skadron. All in favor, motion carried. CITY MANAGERS COMMENTS Steve Barwick said it was not mentioned that Justice Snow’s came in Friday with a rent check and are up to date as of today. AGENDA ADDITION Mr. True would like to add to the executive session a discussion on a personnel matter. Regular Meeting Aspen City Council October 23, 2017 4 BOARD REPORTS Councilman Hauenstein said Sister Cities is having a trip to Queenstown. They also made a request for a memorial plaque for Don Sheeley in Sister City plaza. Councilman Myrin said he went to the chamber thing last week and they suggested everyone take their vacation and use their days. CONSENT CALENDAR Reso #139 – Woody Creek Parcel purchase Councilman Frisch said this is an election question but Council direction is this will be purchased. It is just a matter of how. Bonds if the voters give approval or COPs if they don’t. It is protecting water rights and potentially moving water storage. Councilman Myrin said he does not support the dams on Castle and Marron creek and he is not supportive of the alternative solution at Woody Creek. There are ones that don’t require open water storage in Woody Creek. Board Appointments Mayor Skadron said Nina Gabinelli has been appointed to the Wheeler Opera House board of directors and Ashley Chod has been appointed to the Next Generation Advisory Commission. • Resolution #139, Series of 2017 – Purchase of Woody Creek Parcel • Resolutions #132, Series of 2017 – A towing services agreement between the City of Aspen and Shaun’s Towing and Recovery • Minutes – October 9, 2017 Resolution #139, Series of 2017 – Councilman Frisch moved to adopt Resolution #139, Series of 2017; seconded by Councilman Hauenstein. All in favor except Councilman Myrin. Motion carried. Councilman Hauenstein moved to adopt Resolution #132, Series of 2017 and the minutes; seconded by Councilman Frisch. All in favor, motion carried. NOTICE OF CALL UP – Notice of HPC approval of Minor Development, Commercial Design and Growth Management Review at 122 W Main Street – HPC Resolution #21, Series of 2017 Amy Simon, community development, stated HPC granted approval for the existing building. It is a 1990s building located in the Main Street historic district. Reviews include exterior remodel, change to entry, front door and windows, deck added on top of exiting porch and dormers in the back. The board did find the exterior changes were appropriate. Staff had some concerns. The interior remodel will convert existing office to lodge units. There will be two units with three bed rooms. It will require growth management allocations. It will address second tier commercial space standards. HPC also looked at trash and recycling. They approved the project by a 6 to 0 vote. There was discussion where the applicant objected to conditions related to lodge use. HPC passed the resolution as written. We worked with the applicant to improve the solution and it was brought back to HPC and passed by a vote of 5 to 0. Councilman Frisch asked is the use a discussion now or is it windows. I have a fundamental concern. Is this a loophole we are dealing with. It does not seem like they are operating as a lodge. Ms. Simon said the scope triggered a call up so you can look at all aspects considered. We did recommend in favor of the project finding it met the lodge standards in place when they applied. Councilman Frisch asked are they using the lodge because it is most beneficial to them or are they really running a lodge. Ms. Garrow said this is one of the first projects that has gone through the new code. We did a really through review. The applicant has stated on the record that they plan on using this as a lodge and would be subject to all the audit criteria. We feel and HPC felt it met the criteria. Councilman Frisch said he read the minutes and Regular Meeting Aspen City Council October 23, 2017 5 did not see any discussion of use. The only thing I read about is why the owner needs to house employees when they come from different regions. I did not read anything about lodging. He is concerned we have a 2 unit lodge and tonight we will be discussing the minimum number of units for a hotel and it is a lot more. Ms. Garrow said the lodge use in terms of parking and fees is not really much different than commercial space, it is based off the MU district. We think the applicant was thinking out of town staff would stay at this hotel then be used as nightly rentals. It is unique and nothing we have seen before. Councilman Myrin said he has the same concerns as Adam. Will it be open to the public when not in use. It has a different feel than a traditional use. We can’t change this we need to change the code. Mr. True said we are presenting that discussion tonight to prevent this small lodge. Calling it up would send it to HPC who are not considering the uses. Representatives have insisted they will treat this as a lodge that will be available to the city. Councilman Myrin said here we are ahead and realize the code needs changed and this is simultaneous to this. Councilman Hauenstein said the basement is second tier space. Two lodging units with a lock off. Ms. Simon replied correct. Councilman Hauenstein said staff feels this falls within all the zoning and code. Ms. Garrow said free market residential are not allowed in the MU zone. This proposal is for a mixed use building with lodging and commercial space. Councilman Frisch said we missed this during the moratorium period. They need temporary employee housing and are trying to figure out how to maximize revenue. Ms. Garrow said the code amendment tonight was a response to Hotel Lenado. It meets the requirements and standards of the code. We can speculate but the applicant has stated they plan to use this as a lodge. Mr. True said there is a distinction that they are subject to very strict audit requirements. Councilman Frisch said he has no problem with the model, what he is worried about is the benefits they are getting in not really running a lodge. Mayor Skadron asked how many days can the property be used by the owner. Ms. Garrow said the code allows an entity to stay in a room that they own for 30 consecutive days and no more than 90 per calendar year. Sara Adams, representing the applicant, said Timberline Bank plans to run this as a lodge. Out of town consultants can stay here instead of another lodge in town. There are strict lodge auditing and they are fully aware of those. They are an honest group of people and we take the representations very seriously. Mayor Skadron asked what was the intention for this part of town. Ms. Garrow said partially dimensions and bringing the MU areas to standard. Updating the design guidelines for historic and non historic structures. Use considerations to continue to allow small lodges, commercial and single family homes. Remove free market from all commercial zone districts. Mayor Skadron asked is a loophole being exploited or is it a different product. Ms. Garrow said it is a new product. In terms of floor area, heights, parking and trash, there is no difference between a lodge and a commercial building. Mayor Skadron asked why is the bank going in to the lodging business. Ms. Adams said they saw this as an opportunity to house consultants but also make money when they are not staying there. Councilman Frisch said it is a loophole but may not have a derogatory term in 5 years. It is in their economic interest for them to fill it up. Councilman Myrin said it could also be sold. Ms. Garrow said they could be condominiumized and sold. The resolution specifically says it is not free market residential. Councilman Frisch said if it does not get called up and the owner wants to convert the lodge into condos and sell them off to single ownership, they cannot. Ms. Garrow said there is a difference between ownership and use. They could ask to condominiumized the units but they would stay as a lodge use. They cannot convert to free market because that is not allowed in the zone. Councilman Hauenstein said there are controls over how long the owner can be there but there are no control over having the unit rented. He sees this as a lodge by name only but there is nothing we can do about it. Councilman Frisch said a concern would be if a board of director of the bank was living there for 200 days. As the model is now they are going to want to fill it up. He does not support calling it up because we can’t change it. Regular Meeting Aspen City Council October 23, 2017 6 Mayor Skadron said he is skeptical of this. He does not think it will be lodge rooms but a vacation unit. It does not make sense why Timberline bank would want to be in the lodging business. It appears to be a residential property disguised as a lodge. This is essentially the hotel Lenado model. It will not be called up. ORDINANCE #26, SERIES OF 2017 – Add alternate member position to the Wheeler Board of Directors Linda Manning, city clerk, stated one of Councils top 9 goals is to evaluate the role of boards and commissions. We had a work session on September 5th as part of this goal and Council gave direction to add an alternate member to the Wheeler board. Shortly after, Council conducted interviews to the board and once again directed staff to bring this back. This is first reading to add the alternate. Councilman Myrin asked would this adjust the way alternates are appointed to full members. Ms. Manning said currently if any regular member resigns or leaves the board for another reason the alternate is automatically appointed. The issue we had prior, is if a regular members term expires and is up for renewal it is up to the alternate to apply for that position. The alternate is not atomically appointed to fill the term of an expired member. Councilman Myrin asked is that the same for all boards. Ms. Manning replied yes. Councilman Frisch moved to read Ordinance #26, Series of 2017; seconded by Councilman Hauenstein. All in favor, motion carried. ORDINANCE NO. 26 (SERIES OF 2017) AN ORDINANCE OF THE CITY OF ASPEN, COLORADO, AMENDING ORDINANCE NO. 50, SERIES OF 2013 TO ADD AN ALTERNATE MEMBER TO THE BOARD OF DIRECTORS OF THE WHEELER OPERA HOUSE. Councilman Hauenstein moved to adopt Ordinance #26, Series of 2017 on first reading; seconded by Councilman Frisch. Roll call vote. Councilmembers Hauenstein, yes; Myrin, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #25, SERIES OF 2017 – 515 Park Circle, Major Public Project Review Justin Barker, community development, said this is the first of three affordable housing projects being submitted by Aspen Housing Partners in conjunction with the city. It is located on Park Circle at the base of smuggler trail. Currently it is a vacant lot zoned R15 with a PD overlay. It is a 2 lot subdivision proposed to be rezone to AH. The PD is for 11 affordable housing units with 7-1 bedroom and 4-2 bedroom units. There will be 11 parking spaces. The public process will consolidate all the reviews. The first step was P&Z. They reviewed and recommended approval with conditions. The intention of the zone is to be scattered to provide a variety of use and a diverse mix. As a PD, dimensions are established through the PD. Some dimensions are proposed to be varied by 10% to accommodate flexibility. Floor area, even with the 10% still falls well below what the zone recommends for a lot of this size. There is a 15 foot set back on the south side and 5 on the remaining sides. Even though only 5 is requested the development sits 50 feet from the property line. The southwest corner does include some retaining features in the setback and there is a request for some flexibility to accommodate the retaining features. For parking, the code requires 15 spaces, 1 per bedroom. The applicant is proposing 11, 1 per unit. Council can set the parking number. Unmitigated transportation impacts with the 4 spaces promotes a shift towards different parking options instead of physical spaces. Staff provided 3 alternatives to meet the requirement; explore shared parking with the Smuggler lot, surplus transportation options or pay cash in lieu. The applicant could choose the method. Tax credits could have some different requirements in Regular Meeting Aspen City Council October 23, 2017 7 regard to the parking. A small portion falls in the 8040 greenline area. Sensitive development with adequate services. There is decent infrastructure and we feel it meets all the criteria. The property sits within the Smuggler super fund site so additional documentation will be needed to how to mitigate for the site. Question from first reading is why are there two areas within the superfund site. The EPA notes unique site features per site. The property does require growth management allotments for 11 affordable housing units. The unit size all fall within 5 to 10 percent net leasable within APCHA guidelines. They can reduce that by 20 percent. The application was reviewed and approved by APCHA. It is a fairly common practice lately for a reduction in unit size. They noted they may look at the numbers in the future since several projects have come in that way. The applicant would like to hold off designating categories at this time until all 3 projects have approvals. For voluntary units, the code does not limit the category. They are required to be rentals for the first 15 years due to the tax credits. The application is subject to design standards. The street presence and relationship between public and private realm meets all the standards. The subdivision amendment is mostly clean up. Since first reading the applicant is requesting waivers of parks and air quality impact fees. Council can waive these fees. The school lands dedication fee cannot be waived. They are also requesting 5 years vesting, 2 more than typical. This is up to council to determine. Staff recommendation is for approval with conditions. Councilman Myrin said for the waiver of fees, how does it work. If we waive fees we pay less for the development. Mr. Barker said they go in to specific funds depending on the fee to be used for a specific use at a later time. Councilman Myrin said he is leaning towards not waiving any fees. Having the money in the departments that address those things make sense. It belongs in the department to address the impacts. He is comfortable with the proposed dimensions. Councilman Frisch asked how will the decision be made on the categories. Adam Roy, applicant, said the tax credits offset the program so we do not know what they will be yet. Barry Crook, managers office, said the issue is not so much the general mix for the 3 projects but what they are per development. Mr. Roy said It will be a mix ranging from 1 to 4, approximately 50/50. One thing we need to understand better is in the sales scenario in year 16 are we putting the city into a corner in terms of extended use period. There will be a perpetual deed restriction. We are trying to get a better understanding of how that scenario changes with the tax credits. Mr. Crook said that it is the flexibility we are seeking. Not to change the mix in total but on the specific sites. We have had discussion about what the appropriate categories are. At some point we need to agree on where we are going to start. It would not lock the city in to the same mix in perpetuity. Councilman Frisch said the mix is an important discussion. Ms. Garrow said for Burlingame the parks impact fee was waived. They did pay the air quality fee. APD did pay the air quality fee as well. Councilman Hauenstein said his biggest concern is the parking and cash in lieu and how to mitigate the overflow parking. There is a pretty good chance there will be more than 11 cars. Have you spoken with the county about the smuggler space. Jason Bradshaw, applicant, replied very minimally. We were waiting to see where that direction is going. There is no sense the county will be receptive for that. Councilman Hauenstein said he is not generally in favor of cash, it just disappears. He would rather see the money go toward transportation, car to go. Where will visitors park. Mr. Barker said they checked with transportation on a car to go and they are not in favor of it. There are already two in the area. Councilman Hauenstein said there hasn’t been the demand because there has not been an 11 unit affordable housing project there. Where are the other car to go’s in the area. Ms. Garrow replied she is not sure. Mr. Bradshaw stated Centennial area and farther down Park Circle to the south. They are perceived as high demand areas and there has not been a lot of demand. We were open to the idea. We also proposed bus enhancements and they were not received well either. We would rather see the funds go to something substantive. Mr. Roy said if there is a choice between paying fees or having the project directly fund an improvement, impact fees are basis eligible in the tax credit world. Councilman Frisch said he thinks your time is better spend in discussions other than with the county. 1 parking spot per unit is pretty good. Regular Meeting Aspen City Council October 23, 2017 8 Mayor Skadron said he finds the review criteria have been satisfied. Why 5 years for vesting. Mr. Roy said it is more to do with a scattered site staggered time line. If one of the sites were to get hung up, we are looking at this as a single tax application. Mayor Skadron said we are waiving fees because they are a transfer between departments or are we failing to deliver a community benefit. Mr. Barker stated it is partially a transfer. Ms. Garrow said all these fee questions, it is part of Councils job to weigh the competing community benefits of affordable housing. Mayor Skadron opened the public comment. 1. Debora Muric, 515 Park Circle, said there is no solar, wind or sustainable qualities. There is already a parking problem in the area. She watched her home burn down when there was not a working fire hydrant. They could not split the lot because P&Z said there was not enough room on the lot and now they say there is room for 11 units. No environmental impact studies have been done. Where do we ship the waste from the superfund site. How is this making this area better for the neighbors who are already living there. At the 15 year mark all the units will need major improvements. There will never be enough housing in Aspen. 2. Torre, current board president for Smuggler Racquet Club, said he agrees with Debra on sustainability. The team has been very responsive. Their primary concern is about the overall density, setbacks, screening and an underparked project. What impact will a 100% pet friendly project have on the area. Maybe dogs only allowed in units with walk out ability. Council has been responsive on the Main Street project and you listened to the neighbors. This project doesn’t have that neighbor involvement. We are very sympathetic to the neighbors and extremely supportive of affordable housing but we feel it should be as compatible with the neighbors and the land it is on. It is underparked and to think the trail parking can accommodate the residents is naïve. This parking is maxed out all the time for the trail users and recreators. It could go down in the unit count which would require less parking. Incentivize non vehicle ownership for residents. Set backs, directly abutting us are being applied at 5 feet. We don’t feel that allows for appropriate screening. 10 feet would make us more comfortable. More than anything it should be compatible with the neighborhood. We all need affordable housing in the community but it is about what is appropriate for where it will be located. Mayor Skadron closed the public comment. Mr. Bradshaw said there has been extensive public outreach, over 5 months, including large scale open houses. He thinks we made progress on making adjustments. We did not get a lot of comment from other neighbors. It started with 20 units and 3 floors. It was reduced by 5 units after hearing from the community. It always had a 1 parking stall per unit count. From a sustainability standpoint, the site is a bench site to begin with. In the long run it will be a cleaner better site than to begin with. Every unit has 1 bathroom per unit, a mudroom laundry room combo and plenty of storage. The livability factor is quite high. Comparisons with other housing projects in the area similar to this bedroom count. Some are significantly underparked but this is on average. Councilman Frisch said on the environmental stuff, solar sends a message. That is more our work than asking the applicant to get in to that. As far as the parking we just went through a study and one of our goals is to try to limit parking. Between all the transportation options this is a nice balance of what we are trying to do system wide. He is still comfortable with this. We are still on the right track. It is more density for the neighbors and parking is a density issue. Councilman Myrin said parking is the most challenging. Would the residents receive a parking permit. Mr. Crook said they would be entitled to a permit in that zone. Regular Meeting Aspen City Council October 23, 2017 9 Councilman Hauenstein suggested a long term parking permit at the intercept or buttermilk lots. It is a good project and he could justify the parking. He does not support waiving the fees. 1 space per unit could be acceptable. Mayor Skadron said the reduction in units here is about the same as the reduction on Main Street. Is Council willing to underpark the project. If we go by unit it is appropriately parked. If we go by bedroom it is underparked by 4. Mr. Bradshaw said we are code compliant with what we are asking for not with the fee in lieu. Councilman Frisch asked is there a place to have more parking on the site. Mr. Roy said we have turned the site every way you can and pursued all options and feel this is the best one. Other than allowing street parking against the will of engineering. Councilman Myrin said he is ok approving this as is. He suggested using Benedict commons parking garage. Suggest modifying the option of the county parking to expand it to the urban growth boundary. Mayor Skadron said the notion of parking cars remotely should be explored. Ms. Garrow said if we go the way of a shared parking agreement it is a formal document that is pretty iron clad. These are the priorities from a planning recommendation and may not match up with Council’s. Section 5 remove listed in order or priority. In number 1 add either shared parking in the urban growth boundary. She would not suggest the intercept lot. The question is shared parking with any entity or just the City of Aspen. Mayor Skadron said he would be open to it. Mr. Bradshaw said the more ambiguity the harder it is for the financing sources to get their arms around it. He is not trying to duck the need for parking but unless we have a reliable way to deliver it, having it in an ordinance could prove problematic. Mr. True said the language is open but the paragraph gives you the alternative of 3. Councilman Myrin said he is ready to approve this with the 2 modifications. Mr. Barker said Section 16 has the wording with parks fees waived. Mayor Skadron said to change it to shall not be waived. Councilman Myrin moved to adopt Ordinance #25, Series of 2017 with amendments; seconded by Councilman Frisch. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Hauenstein, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #24, SERIES OF 2017 – Transferable Development Rights – 119 Neale Avenue Ms. Simon stated this is a hold over from 2016. The request is to sever 3 TDR’s, 250 sq ft each to sell off the property. In 2012 Council approved a subdivision to create 2 lots. It was a historic landmark lot split due to the log cabin. It was permitted to take some development pressure off of the historic resource. The cabin was then sold. 119 is owned by Jeff Shoaf. As a designated property the owner can sell TDRs. How much square feet allowed versus how much is built. The remainder can be sold in 250 sq ft increments. There have been a number of hearings to discuss this including complaints from the neighbors. All that side tracked the conversation. Staff pursued enforcement of the duplex in municipal court. In July the judge determined the applicant is not in violation of the codes and it is a single family home. The applicant has returned with a request to wrap this up. We have redone all the calculations and revisited the slope reduction. It can affect allowable floor area. We asked for updated calculations. We also removed the disputed area, 785 sq ft, from the calculations. We still conclude there is over 750 sq ft and enough to cover the 3 TDRs. Staff is supporting the application. Ms. Garrow said we received a letter from David Harris, neighbor, who is now supporting the application. Mitch Haas, representing the applicant, said there is a long and colorful history with this application. The history does not fit in to the request tonight to sever the TDRs. The historic structure is not on the lot but this request will remove potential development. We remain in the position that until a court of law concludes otherwise the parcel contains the quick claim deed. We recognize staff has done their analysis based on new slopes not on the recorded plat. Even without the parcel and increased slope calculations there is still enough floor area for 3 TDRs. The criteria for issuance is black and white. Historic Regular Meeting Aspen City Council October 23, 2017 10 landmark, permitted unbuilt development rights in excess of 250 sq ft, will not create a non conformity, and analysis provided to demonstrate available floor area. All criteria are clearly satisfied. Mayor Skadron opened the public comment. 1. George Benninghoff, owner of unit 2 urban blight condos, discussed this with Mr. Shoaf and another co owner of urban blight. My position is that we do not support this application and hope to postpone it until other conditions are satisfied. There is a history to this process and important to this discussion. One of the reasons I object to this is the parcel was drawn to include the disputed part of the urban blight property. Any action here effects our property. The problem with this is if the application is approved there will be a deed restriction on the property and Jeff doesn’t own all the property. I don’t want a deed restriction on my property. It needs to be cleaned up. He would like to see the title cleaned up. To my knowledge nothing has been done to clean the record up. He is asking council to defer this process until it is cleaned up. Mr. True said we acknowledge there is a dispute to the one section of the property but I do not think Council is in the position to adjudicate that. We have taken that portion of the property out of the calculations when determining if there is enough available development. Councilman Frisch asked do we have the right to have this discussion regardless of how big and how many TDRs. Mr. True stated this is different. Lot 1 is described through a subdivision process. Lot 1 contains a disputed area. The condo association may have the right to assert a quiet title over that. None of that is affected by Council granting TDRs. It does not impact the calculation of TDRs tonight. Councilman Frisch said he is not having a math problem. Regardless of the size you are making judgements. Mr. True said he is not asserting he owns the lot. We are saying we are not resolving the 785 sq ft out of the 12,000 sq ft. we are not going to adjudicate that, it is for a court. Mr. Benninghoff said there are 3 owners to lot 1 and there are 2 others who will not support this application. Councilman Myrin said page 488 has the overview of the 2 lots. The historic structure is not on the subject lot. If it is not on the subject lot, I’m not convinced the extra lot cannot have the 750 square feet on it. Why does it have to go somewhere else in town. We may grant the TDRs. I think the lot can handle the 750 sq ft. Councilman Frisch said a year ago there was a cloud over ownership. People agreed they would get that cleared up. What I heard from staff is it was taken care off. We removed the disputed portion and staff is saying it is still above 750. My question was is there a completely clean title on the ownership and what I’m hearing is nothing has changed in the past year. I’m not sure it can be severed. Mr. True said part of it was clearly based on if the 750 is required to do the calculations to get to 3 TDRs we had a problem with the status of the footage. Typically, I say we are not in the position to adjudicate this type of ownership. What is clear is Mr. Shoaf had a right to ask. We concluded the 750 did not affect what he was asking. We get these disputes quite often. Mr. Benninghoff said he disputes he has a right to ask for it and council can grant it. Councilman Frisch said I’ve never had anyone say they don’t own a piece of property and don’t have a legal right to anything. Mr. True said this is a bit stronger than what we have heard in the past. Mr. Haas said we are going off of what is on the plat. George’s issue is the one that needs to take it to court. We have cleaned up everything we can. Our answer to your question is this is the plat. Until a court of law says otherwise that is the plat. Councilman Frisch asked can we honor the sentences Mr. Benninghoff read. Mr. true said yes you can. We are not in the position to unravel what Mitch is describing. What we were concerned about and tried to address is did it effect the calculations. A court would be the final arbitrator on who owns the 785sq ft. the deed restriction would not translate. You may go forward if you so choose. Councilman Frisch said we are being asked to be a legal jury and that is not our position. Mr. True said he understands his concerns but I disagree it would translate to a deed restriction to his property. A court would redefine the boundaries of his property. Staff calculated the 3 is still Regular Meeting Aspen City Council October 23, 2017 11 appropriate even if Jeff loses the property. He suggested Council consider the application on its merits. I believe all the facts are substantial enough to make a determination on its merits. Councilman Myrin said he believes the 750 sq ft can be handled and does not need removed. 2. Pete Thomas, legal counsel for Mr. Shoaf, stated we haven’t heard one thing from George about the merits of the TDRs. We are completely sidetracked. You don’t have the authority to adjudicate a private legal dispute. It is improper for a neighbor to come forward and hold us hostage on a different issue. His entire argument assumes he owns the property and is an owner of lot 1. At most he would be an owner of the 785 sq feet that is disputed. If and when Mr. Benninghoff decides to pursue a claim, if he is successful all that would happen is the 785 sq ft gets severed out of lot 1. Nothing you do tonight would affect that parcel. None of this is relevant. What is important are the standards under the code. You do have discretion but have to articulate some reasonable basis on why you would not give him TDRs but would someone else. Refocus on what is here tonight. If Mr. Benninghoff wants to initiate an action he is welcome to do so and it won’t effect a thing that happens tonight. Councilman Frisch said he is with Bert that the holding site can support the 750. He is still concerned we are having the same discussion we were having a year ago. I’m fundamentally concerned about that. Mayor Skadron closed the public comment. Ms. Garrow said as part of the 2012 actions the plat specifically designates where a parking space can go. Mr. Shoaf cannot change that without a P&Z review. It is located in the disputed area. The advice from the city attorney is good as reviewing this on its merits. We felt this is the best we could do as far as providing ownership and TDRs. You may establish TDRs based off of the criteria. Councilman Myrin said page 443 talks about the size of the lot. West end lots are what. Ms. Simon replied 6,000 is the minimum but there are 3,000 lots. Councilman Myrin said he is not convinced we need to take the density off this space. Councilman Hauenstein said lot 1 there is question about ownership. How can we give away some of the rights if there is a dispute of who owns it. Mr. True said he is clearly not a partial owner of the full lot. All he ever argued is he has an ownership of 785 sq ft. It is a small portion of the total property that he asserts an ownership in. Councilman Hauenstein said Bert is suggesting the 750 remain on lot 1. Councilman Hauenstein said there are places we want to remove the density because it is tight. There is a lot of land here. Mayor Skadron said he is compelled with the argument as well that the site is the appropriate landing space. Councilman Myrin said if we don’t remove them this is where they will be. Mayor Skadron said we find as the criteria is written that Council may or may not establish the TDRs. Council is finding may not. Mr. Haas said lets say we work out the property dispute will Council say sever the TDRs. Councilman Myrin said he still will not. Mayor Skadron call for a motion to adopt as presented. Councilman Myrin moved to adopt Ordinance #24, Series of 2017; seconded by Councilman Frisch. Mr. True said typically we move to deny if an ordinance will not be supported. Councilman Myrin moved to deny Ordinance #24, Series of 2017; seconded by Councilman Frisch. Roll call vote. Councilmembers Frisch, yes; Hauenstein, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. Regular Meeting Aspen City Council October 23, 2017 12 ORDINANCE #23, SERIES OF 2017 – Post Moratorium Clean-Up Ordinance Ms. Garrow said this is the first of at least two clean ups. If passed tonight the ordinance will go into effect November 22nd. This is the third step of a code amendment. Much of the outreach from the moratorium was used, we met with P&Z and talked with small lodge operators. The proposed amendment would add a new category of lodge, boutique lodge, with a minimum of 10 units. At first reading this number was 6. We analyzed existing lodges and the average with 20 or fewer rooms is 12.5. Boutique lodge would be any with 10 to 14 units and approved as a conditional use. We added a requirement that 50% or more units have to be above grade. We updated required amenities in the lodge definition. They must have three or more amenities. We also added language to clarify rental limitations. We tried to address LLCs. If two or more interests are owned by separate entities with common owners then it is considered one entity in terms of rental. We added a growth management review so now it is a Council level review. We also strengthened the standards in the audit and correctly listed zone districts in the parking section. We changed pedestrian amenity from public amenity. Councilman Myrin asked does this stop our concern of Timberline bank. Ms. Garrow said if someone else wants to do that they could not because it would be a 10 room minimum and need amenities. There is also a conditional review. Councilman Myrin said without regulating ownership would this address Adams concern over usage. Ms. Garrow said we can’t restrict ownership. Councilman Frisch said say someone comes in and wants to by all 8 shares of unit 7. Each LLC has different registered agents how do we know it is not the same owner. Mr. True said we know this will be difficult to enforce. We are trying to put in as much info gathering ability as we can. We are not willing to admit people can blatantly violate our rules with us sitting back and letting that happen. We have to acknowledge some of this will get pushed back from those trying to skirt our rules. Councilman Frisch said I don’t want to have condominiumized hotel product. Mr. True said we cannot under State Statute effect forms of ownership. If someone owns property they can condominiumized it and we cannot prohibit it. The theory is to try to understand how people intertwine these. Councilman Frisch said the dividing up of a single structure that leads to less community value. Do you think the state law was set up to fight against this or are we swept up in state law. Mr. true replied the latter. Councilman Frisch said Timberline would run in to issues about the amenities. What is the benefit of being a boutique lodge or a non boutique one. Ms. Garrow said part of why we suggested this is other communities have similar types of designations. We’ve seen a history of small lodges. We did not want to close the door but there should be a heightened level of review. Councilman Frisch said if someone wanted to build a different type of hostel, do some of these amenities get in the way of that. Can someone make a case to Council. Ms. Garrow said they could do that. It would be a review. The other piece is we tried to beef up the occupancy auditing section. We plan to audit every lodge in Aspen with the updated criteria. Councilman Frisch said I know the Sardy House has specific times of year when they have to be rented. Ms. Garrow said that is why we want to do the auditing and have a more informed policy discussion next year. Mr. True said at some point I see staff coming to Council and say we want to take enforcement action. Councilman Frisch asked what should a lodge expect when they get the audit call. Ms. Garrow said Section 19, page 572 outlines the auditing. We are asking for an occupancy report, who they were, did they register as an individual or a business, report of all the names of the owners or who has an entity, how the rooms were reserved, how they are marketed, physical aspects, dimensional characteristics, inventory and any additional items. Councilman Hauenstein said if this was adopted Timberline would not be allowed. Ms. Garrow replied correct. Councilman Hauenstein said he understands it will be difficult to enforce. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Myrin suggested adding business license to section 19, auditing. What Adam said is important and we can discuss it at a later time when it comes to prime time occupancy. Regular Meeting Aspen City Council October 23, 2017 13 Councilman Myrin moved to adopt Ordinance #23, Series of 2017 with amendment to Section 19; seconded by Councilman Hauenstein. Roll call vote. Councilmembers Hauenstein, yes; Myrin, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. EXECUTIVE SESSION Mr. True stated staff recommends going in to executive session pursuant to C.R.S. 24-6-402-4(b) Conference with an attorney for the purposes of receiving legal advice on specific legal questions, (e) determining positions relative to matters that may be subject to negotiations; developing strategy for negotiation; and instructing negotiators and (f)(I) personnel matters. Councilman Hauenstein moved to go in to executive session at 10:45 p.m.; seconded by Councilman Frisch. All in favor, motion carried. Councilman Hauenstein moved to come out of executive session at 11:45 p.m.; seconded by Councilman Frisch. All in favor, motion carried. Councilman Hauenstein moved to adjourn; seconded by Councilman Frisch. All in favor, motion carried. Linda Manning City Clerk