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HomeMy WebLinkAboutminutes.council.20051212Regular Meeting Aspen City Council December 12, 2005 CITIZEN PARTICIPATION .............................................................................................. 2 COUNCILMEMBER COMMENTS .................................................................................. 3 CONSENT CALENDAR ................................................................................................... 4 · Resolution #98, 2005 - East End Dial-a-Ride Shuttle Vehicle Purchase Agreement 5 · Resolution #99, 2005 - Parking Vehicle Replacement Contract ............................ 5 · Minutes - November 28, 2005 ................................................................................ 5 RESOLUTION #97, 2005 - Swim Coca-Cola Contract .................................................... 5 RESOLUTION #101, 2005 - Amending Purchase of Smuggler Mountain ....................... 6 BOARD APPOINTMENTS ............................................................................................... 6 FIRST READING OF ORDINANCES .............................................................................. 7 · Ordinance #49, 2005 - 2006 Fees ........................................................................... 7 · Ordinance #50, 2005 - Miscellaneous Land Use Code Amendments .................... 7 · Ordinance #51, 2005 - Code Amendment ~ Eastwood/McSkimming ................... 7 · Ordinance #52, 2005 - 805 South Avenue Subdivision Amendment .................... 7 · Ordinance #53, 2005 - Brumder Plat Vacation ...................................................... 7 · Ordinance #54, 2005 - Brumder Lot Split .............................................................. 7 · Ordinance #55, 2005 - Burlingame PUD ............................................................... 7 ORDINANCE #37, SERIES OF 2005 Code Amendment Historic FAR Bonus ............ 9 ORDINANCE #47, SERIES OF 2005 - Historic Lot Split - 640 N. Third ....................... 9 RESOLUTION #100, SERIES OF 2005 - Temporary Use Permit Holland House .......... 9 RESOLUTION #88, SERIES OF 2005 - Conceptual SPA/PUD Aspen Club ................ 10 APPEAL OF DENIAL OF TREE REMOVAL PERMIT 701 WEST MAIN ................. 11 Regular Meeting Aspen City Council December 12, 2005 Mayor Klanderud called the meeting to order at 5:00 p.m. with Councilmembers Richards, Torte, DeVilbiss and Johnson present. CITIZEN PARTICIPATION 1. Jon Busch asked Council to explore either having a new mold of the city's antique street lights made or requiring a driver who knocks over a light, if they have insurance, to pay to replace that antique streetlight. Busch said he would like to preserve Aspen's uniqueness. Mayor Klandemd requested staff look into this. 2. Tricia McKenzie said whatever the city does with the streetlights, they should increase visibility. There are areas of town that are very dark. Ms. McKenzie told Council she has moved an average of two times every year for 39 years. Ms. McKenzie told Council many people who live in affordable housing do not want roommates that are going to live in that unit. Ms. McKenzie said she cannot find a place to live for 30% of her income. Ms. McKenzie said the community needs more year round housing for single adults. 3. Basil Smilios presented pictures of the 1000 block alley between Hyman and Cooper. Council approved an encroachment in 1991 for 1006 Cooper against the city engineer's recommendation. Smilios said 25 vehicles use this dead end alley. A 6' encroachment was approved; 3' has been added with boulders for a total of 9' into the public right-of-way, leaving 10' of driving space. Smilios said there is not enough room for emergency vehicles to get through this alley. This encroachment license was granted to a shed with a wood-burning stove, which is now a rental unit with plumbing and tenants. The encroachment was granted with the right of the city to revoke it at anytime. Steve Barwick, city manager, said he will have staff look into this. 4. Toni Kronberg told Council she has encountered a lot of people who do not have places to live. There is a lack of seasonal housing; the housing authority does not have any more rentals. Ms. Kronberg said the community needs to work together and suggested a brainstorming session with the Ski Company and the housing office. Ms. Kronberg urged the community to open up their spare bedrooms. 5. Emzy Veazy said what the police department did was brilliant. People in Beverly Hills and Burbank support their police force. Veazy said if people cannot find a place to live, they should build an igloo or sleep outside. Veazy said there are Americans who cannot get housing and this is taxpayers' money, which should not be supporting foreign labor. 6. Marilia, from Brazil, told Council she came for the winter through USA work experience and she cannot find a place to live. Hotels are very expensive and them are no places to rent. Councilwoman Richards asked who sponsored Marilia's visa. Marilia said no one sponsored her visa; she has a J-1 visa and has 20 days to find work. Councilman Torre suggested Council sponsor a session this week to try and understand the problem and brainstorm any solutions. Mayor Klanderud said there are no quick 2 Regular Meeting Aspen City Council December 12, 2005 solutions; there are more employees than housing. Mayor Klanderud noted not all situations are the same and it is not the city's responsibility. Councilman Torre requested Council agree to allow staff time to work with other community groups, like the Ski Company and ACRA, to try and get a handle on this problem. Tom McCabe, housing director, said the housing office has responded to their ability. There are some EDUs or ADUs that are not occupied and perhaps property owners could be contacted about filling them. McCabe reiterated there is no housing within the city and county system that has not been utilized. This is a supply and demand difficulty. Mayor Klanderud agreed there is nothing the city cmn do to solve the housing problem overnight. Councilman Torre said there are other communities, like Basalt and Carbondale, which are served by RFTA and which may have housing. Councilwoman Richards said the government can only solve so much. The city has two seasonal housing projects that have not been filling up. It is difficult to construct housing and have it vacant for 8 months out of the year to serve a 4-month employee need. Councilwoman Richards said there may be partnerships who can fill housing the other part of the year but that will not solve the immediate problem. Councilwoman Richards said she does not want to waste anyone's time when there is nothing the city can do. Councilwoman Richards said it is up to the employers to pay a wage that will allow employees to find places to live. Mayor Klanderud agreed she did not see the purpose of a meeting except to raise people's hopes. Mayor Klanderud noted the housing office is a resource for people who have rooms or apartments to rent. Jim Laing, Aspen Skiing Company, told Council they have not increased their work force in 10 years; they have acquired 200 more housing units in that time. Councilman Torre stated the city has resources to do minimal outreach and to bring people together. COUNCILMEMBER COMMENTS 1. Mayor Klanderud thanked the ACRA for the family Christmas party. 2. Mayor Klanderud noted last week there was a ribbon cutting on one of the 4 new hybrid buses. This is exciting, new technology. 3. Mayor Klanderud congratulated the Ski Company and the fast women who made the World Cup ski races a great event last week. 4. Councilman Torre wished everyone happy holidays and happy new year. 5. Councilman Johnson reminded everyone tomorrow is an election and urged everyone to vote. 6. Councilman DeVilbiss wished everyone happy holiday season and also urged everyone to vote. Regular Meeting Aspen City Council December 12~ 2005 7. Councilwoman Richards said over the next 2-1/2 weeks the traffic situation on the S-curves will be the most difficult. Councilwoman Richards noted the city will be moving forward with HOV bus lanes but that will not happen until spring. Councilwoman Richards urged everyone to do what they can for alternative transportation - car pool, take the bus, drive during off peak hours. 8. Councilwoman Richards stated she will only support an entrance to Aspen and transportation problems process that will lead to an implementable solution that will receive environmental impact statement clearance or environmental assessment, whatever needs to be done through CDOT. Councilwoman Richards said that is an important parameter for the expenditure of public funds. If the public is being asked to participate in this process and to try and understand the solution, Council needs to be able to say at the end how it will be implemented. Councilwoman Richards said she would like CDOT to sign off on the technique and the methodology that this will become submittal and be defined as an amendment to the EIS. 9. Randy Ready, assistant city manager, told Council starting Tuesday, December 13, access to Highway 82 will be restricted at Bleeker, Hallam and the alleys to help get the buses out of town more quickly. The police department will continue at the merge point. Councilman Johnson asked about using off duty personnel, being paid overtime, at the merge point. Loren Ryerson, chief of police, said if this is a critical need, they can staff it with overtime. Steve Barwick, city manager, said staff will be experimenting with different techniques to try and help the traffic situation. 10. Councilwoman Richards said she attended the Ruedi Water and Power Authority meeting where they approved the 2006 budget; gave a salary increase to the director, and' agreed on an operational study for Ruedi to look at when water is released and the electricity output. Councilwoman Richards suggested the city help fund the study at $1100 to make sure the input is valid. Councilwoman Richards suggested Council have a work session with RWAPA and the representatives to the statewide water initiative process to be briefed. 12. Mayor Klanderud reported at the ACRA Board meeting there was a presentation from the business improvement district planner; however, no formal action was taken. CONSENT CALENDAR Councilwoman Richards requested Resolution #97, Swire Coca-Cola contract be removed; Councilman Torre requested Resolution # 101, Amending Purchase of Smuggler Mountain, and Board Appointments be pulled. Mayor Klandemd requested Resolution #96, Animal Shelter IGA/By-laws be removed. Mayor Klanderud noted that the by-laws should be amended so that the board terms are staggered. Ed Sadler, assistant city manager, said this will be changed. Councilwoman Richards moved to adopt Resolution #96, Series of 2005, Animal Shelter IGA/by-laws/Board Appointments as amended; seconded by Councilman Torre. Regular Meeting Aspen City Council December 12, 2005 The Board appointments are Melinda Goldrich (2008), Michael Jones (2007); Bland Nesbit (2009)(joint) and Carol Loewenstem (2009)(alternate).. All in favor, motion carded. Councilwoman Richards moved to adopt the consent calendar as amended; seconded by Councilman Torte. The consent calendar is: · Resolution//98, 2005 - East End Dial-a-Ride Shuttle Vehicle Purchase Agreement · Resolution//99, 2005 - Parking Vehicle Replacement Contract · Minutes - November 28, 2005 All in favor, motion carried. RESOLUTION//97, 2005 - Swire Coca-Cola Contract Councilwoman Richards said in some city functions, beverages have been provided by local businesses. Councilwoman Richards asked if this contract will interfere with that. Nancy Lesley, special events, told Council this contract could enhance that in that if not all products are used at a special event, they can be pulled into another event. Councilwoman Richards said the contract reads as if the city will not provide any other corporation's product at any other city events. Ms. Lesley told Council she gave Coca- Cola a list of city events that this contract will apply to. Mayor Klanderud asked about section 1.2 and the wording where customers will not allow any other party to sell or offer to sell any products other than those covered by this contract. Mayor Klanderud said if someone rented the entire ARC, can they sell whatever they want. John Worcester, city attorney, noted either party can cancel this contract within 30 days so the contract can be terminated if it is not working as envisioned. Councilman Johnson agreed the city is trying to encourage use of the ARC and if an organization has another sponsor, they may not be able to display that banner, advertising or product. Mayor Klanderud asked what "personalized for customer labeled water" means. Councilwoman Richards suggested this be continued so the questions can be answered or the contract be stated more clearly. Councilwoman Richards asked whether fundraisers tagged on to a city event would be prohibited from selling beverages. Councilwoman Richards said she is also concerned about co-sponsoring events and having conflicting sponsors. Councilwoman Richards said she is concerned about promoting bottled water and the implications for recycling. Councilwoman Richards said she is also concerned about Coca-Cola's processes buying up local water supplies and selling it back and the privatization of water. Ms. Lesley told Council her department is working with environmental health; they have chosen certain events in 2006 where they will do just jugs of water, not bottled water. Regular Meeting Aspen City Council December 12~ 2005 Councilman Johnson asked if it is the intent of this contract and of staffthat this contract not preclude organizations that are renting city-owned facilities from obtaining their own sponsorships that may be in competition with Coca-cola. Ms. Lesley stated that is the intent. Councilman Johnson said he would like the contract amended so this intent is more specifically stated. Councilman Johnson noted he shares Councilwoman Richards' concerns about Coca-cola's good corporate practices. Councilman Torre agreed he is concerned about having flexibility for other sponsorships rather than being exclusive. Coancilman Torre said if staff recommends this, he will support it since either side can terminate it within 30 days. Councilman Torre moved to approve Resolution #97, Series of 2005, with the language changes in Section 1.2 to clarify that other groups using city facilities can have other products; seconded by Councilman DeVilbiss. All in favor, with the exception of Councilwoman Richards. Motion carried. RESOLUTION #101~ 2005 - Amending Purchase of Smuggler Mountain John Worcester, city attorney, reminded Council Resolution #94, approved earlier this year, authorized the city to purchase Wilk Wilkinson's holdings on Smuggler. After Council adopted that resolution, they met with the BOCC and discussed the possibility of placing a conservation easement on the property, which was not part of the original agreement. This resolution authorizes staff to negotiate a conservation easement. The county would like to close this easement before the property is purchased. Worcester recommended amending the purchase agreement resolution to allow this easement; this resolution will not be brought back to Council. Worcester said Council directed staff not to allow commercial and residential development but to allow commercial activity, like a warming hut that may be incidental to recreational activities. The AVLT has agreed to be party to this conservation easement without fee. The BOCC discussed taking about the Pride of Aspen, purchasing it separately and not subject to a conservation easement in order to sell it in the future. The majority of Council does not support separating this parcel. Councilman Torte said he does not support transferring the conservation easement to the AVLT and feels it is unnecessary and a statement of mistrust in staff and the citizens of Pitkin County. Councilman DeVilbiss moved to adopt Resolution #101, Series of 2005, with the language changes recommended by the city attorney; seconded by Councilwoman Richards. All in favor, with the exception of Councilman Torre. Motion carried BOARD APPOINTMENTS Councilman Torte congratulated Mary Liz Wilson (P&Z) and Noah Hoffman, Brian O'Neil, Carol Peachey and Jane Battaglia on their appointments to the Wheeler Board. Councilman Torte said volunteer boards are very important to the city. Councilman Torre moved to approve the board appointments; seconded by Councilwoman Richards. The board appointments are: Regular Meeting Aspen City Council December 12, 2005 Planning & Zoning - Mary Wilson (alternate member) Wheeler Opera House Board of Directors: Brian O'Neil Jane Battaglia Carol Peachey Noah Hoffman - student representative All in favor, motion carried. FIRST READING OF ORDINANCES · Ordinance #49, 2005 - 2006 Fees · Ordinance #50, 2005 - Miscellaneous Land Use Code Amendments · Ordinance #51, 2005 - Code Amendment - Eastwood/McSkimming · Ordinance #52, 2005 - 805 South Avenue Subdivision Amendment · Ordinance #53, 2005 - Brumder Plat Vacation · Ordinance #54, 2005 - Brumder Lot Split · Ordinance #55, 2005 - Burlingame PUD Councilwoman Richards moved to read Ordinances #49, 50, 51, 52, 53, 54, and 55, Series of 2005; seconded by Councilman Torre. All in favor, motion carried. ORDiNANCE NO. 49 Series of 2005 AN ORDiNANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, AMENDING THE MUNICIPAL CODE OF THE CITY OF ASPEN TO INCREASE CERTAiN MUNICIPAL FEES ORDiNANCE NO. 50 (SERIES OF 2005) AN ORDiNANCE OF THE CITY OF ASPEN CITY COUNCiL APPROVING CODE AMENDMENTS TO SECTIONS 26.104.030, COMPREHENSIVE COMMUNITY PLAN; 26.208.010, POWERS AND DUTIES; 26.212.010, POWERS AND DUTIES; 26.220.010, POWERS AND DUTIES; 26.575.040, YARDS; 26.710.040, MEDIUM- DENSITY RESIDENTIAL (R-6); 26.710.050, MODERATE-DENSITY RESIDENTIAL (R-15); 26.710.060, MODERATE-DENSITY RESIDENTIAL (R-15A); 26.710.090, RESIDENTIAL MULTI-FAMILY (RfMF); 26.470.040, TYPES OF DEVELOPMENT AND ASSOCIATED PROCESS; 26.710.190, LODGE (L); AND 26.710.200, COMMERCIAL LODGE (CL) OF THE CITY OF ASPEN MUNICIPAL CODE. Regular Meeting Aspen City Council ORDINANCE NO. 51 (SERIES OF 2005) December 12, 2005 A ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING CODE AMENDMENTS TO THE FOLLOWING SECTION: 26.710.070(D)(4) & (6), FRONT AND REAR YARD SETBACKS FOR THE MODERATE DENSITY RESIDENTAL (R- 15B) ZONE DISTRICT OF THE CITY OF ASPEN MUNICIPAL CODE, CITY OF ASPEN, PITK1N COUNTY, COLORADO. ORDINANCE NO. 52 (SERIES OF 2005) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING WITH CONDITIONS, THE SECOND AMENDED PLAT - SOUTH AND GIBSON SUBDIVISION, ON THE PROPERTY KNOWN AS 805 SOUTH AVENUE, CITY OF ASPEN, PITKIN COUNTY, COLORADO. ORDINANCE No. 53 (SERIES OF 2005) AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING A PLAT VACATION AT 214 EAST BLEEKER STREET (LOTS N, O, P, AND Q, BLOCK 72, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO) ORDINANCE No. 54 (SERIES OF 2005) AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING A SUBDIVISION EXEMPTION LOT SPLIT AT 214 EAST BLEEKER STREET (LOTS N, O, P, AND Q, BLOCK 72, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO) ORDINANCE NO. 55 (SERIES OF 2005) AN ORDINANCE OF THE CITY COUNCiL OF THE CITY OF ASPEN APPROVING AN AMENDMENT TO THE BURLINGAME RANCH AFFORDABLE HOUSING FINAL PLANNED UNIT DEVELOPMENT (PUD) AND SUBDWSION, GMQS EXEMPTION FOR AFFORDABLE HOUSING (AH), GMQS EXEMPTION FOR ACCESSORY USES IN MIXED USE DEVELOPMENT, SUBDIVISION, SUBDIVISION EXEMPTION FOR CONDOMINIUMIZATION, SPECIAL REVIEW FOR AH PARKING, VESTED RIGHTS AND APPROVING THE REVISED CONCEPTUAL PLAN OF THE BURLINGAME RANCH AFFORDABLE HOUSING PROJECT IN THE CITY OF ASPEN, PITKIN COUNTY, COLORADO. Regular Meeting Aspen Ci,ty Council December 12~ 2005 Councilman DeVilbiss moved to adopt Ordinances #49, 50, 51, 52, 53, 54 and 55, Series of 2005, on first reading; seconded by Councilwoman Richards. Councilwoman Richards said for second reading of the fee ordinance, she would like the recreation department to determine the amount of revenue generated from the proposed increases to day camp and summer recreation program. Councilman DeVilbiss suggested that the false alarm fees should be even higher. Roll call vote; Councilmembers Johnson, yes; Torre, yes; Richards, yes; DeVilbiss, yes; Mayor Klanderud, yes. Motion carried. ORDINANCE #37~ SERIES OF 2005 - Code Amendment Historic FAR Bonus This ordinance has been withdrawn. ORDINANCE #47~ SERIES OF 2005 - Historic Lot Split - 640 N. Third Amy Guthrie, community development department, told Council this property is 11,700 square feet, is located in the west end and is listed on the historic inventory. There is a Victorian house and a garage facing Lake Avenue. The lot split request is to have a 6,000 square feet lot and a 5,707 square feet lot. This conforms to the minimum size required for a historic lot split. The request for lot split is to allow fee simple ownership of the property. Jeff Luster, architect, said this request is consistent with the city's preference for smaller houses on smaller lots. Mayor Klandemd opened the public heating. There were no comments. Mayor Klandemd closed the public hearing. Councilwoman Richards moved to adopt Ordinance #47, Series of 2005, on second reading; seconded by Councilman Johnson. Roll call vote; Councilmembers Johnson, yes; Richards, yes; DeVilbiss, yes; Torre, yes; Mayor Klanderud, yes. Motion carried. RESOLUTION #100~ SERIES OF 2005 - Temporary Use Permit Holland House Councilman Johnson recused himself because he lives within 300 feet of the Holland House. Chris Bendon, community development department, told Council this is a temporary use request for the Holland House ski lodge at 720 S. Aspen street to be sub- leased to the Aspen Skiing Company to be used as employee housing for this winter. The current owners do not plan to operate the lodge this season. There are 23 lodge rooms with 42 beds and the applicant plans to rent out to a maximum of 27 people. Bendon said there is a minor concern about a parking plan, and there is a condition in the resolution that this plan be submitted to the community development director for review and approval. Bendon stated this temporary use permit does not affect the redevelopment credits as a lodge and will not create multi-family replacement requirements. 9 Regular Meeting Aspen City Council December 12, 2005 Dave Mylar, representing the William Ltd Partnership, told Council they do not plan to operate this as a lodge and they want to put it to some use while they examine the property development potential. Councilwoman Richards asked at what category these will be rented. Pam Willis, Aspen Skiing Company, told Council this is for entry level employees and the rent will be about $275 to $375/month. Councilman Torre applauded this innovative request. Councilman Torte said he hopes if the applicants can house more than 27 employees, they will do so. Councilman Torre asked if there will be an on-site manager. Ms. Willis said there Mil be. Mayor Klanderud opened the public hearing. Toni Kronberg thanked the developers and owners of the property for this plan. The proposed rents are very affordable. Mayor Klandemd closed the public hearing. Councilman Torte moved to approve Resolution #100, Series of 2005; seconded by Councilwoman Richards. Councilman Torte asked if the resolution states the number of employees to be housed. Mylar said they are trying to be sensitive to the parking issues in the neighborhood. Councilman Torre said if there is the ability to go beyond 27 employees, he would like the applicants to be able to do that. Councilman Torre amended his motion to relieve the applicants from the requirement of 27 maximum renters; Councilwoman Richards accepted the amendment. All in favor, motion carded. RESOLUTION #88~ SERIES OF 2005 - Conceptual SPA/PUD Aspen Club Councilman Torre stated he has a conflict of interest as an employee of the Aspen Club and left the room. Councilman Johnson returned to the table. James Lindt, community development department, reminded Council at the last public heating, they continued this outlining their concerns with the application. The applicant has requested a continuance to February 13th in order to provide the responses to Council's concerns. Sunny Vann, representing the applicant, said they were surprised at the response of Council. The applicants thought this proposed project was a positive benefit to the community and they are trying to determine how to respond. Councilwoman Richards moved to continue Resolution #88, Series of 2005, to February 13, 2006; seconded by Councilman DeVilbiss. Michael Hoffman reminded Council at the last meeting a statement was made that it was not fair to the applicant to bring them back an additional time if there was nothing that would make it acceptable to Council. Hoffman stated Council's objections at the last meeting were very substantive that there is nothing that can be done to bring the 10 Regular Meeting Aspen City Council December 12, 2005 application within the regulations of the specially planned areas. Mayor Klanderud said no one can predict what the appl!cant will come back with and it makes sense to grant an applicant this continuance. Councilwoman Richards requested the applicants bring information on the percentage of membership that may be lost because of the loss of the tennis facility. This was formed originally as a tennis club. Councilman Johnson said he does not know how this application can meet the SPA criteria but he is willing to give the applicant the ability to make another presentation. All in favor, motion carried. APPEAL OF DENIAL OF TREE REMOVAL PERMIT 701 WEST MAIN Mayor Klanderud noted this should have come forward as a request to amend the ordinance approving the historic lot split. It would ultimately be before Council anyway, so Council will hear this de novo with public hearing. John Worcester, city attorney, said the applicant filed an application for tree removal permit with the parks department. Any tree of a certain size has to have a permit before it can be removed. The parks department denied that permit. This was appealed to the city manager. Worcester said after the applicants met with the city manager, it was determined that the land use approvals for this property were granted by ordinance and this ordinance had specific reference to this tree, stating, "a tree removal permit shall not be issued for the large spruce tree on the front of the lot unless the parks department determines that the tree is unhealthy or is a hazard". If Council decides the tree can be removed, that would have to be an amendment to the land use approval and could be granted administratively. Council needs to decide whether the tree can be removed or not. Stephen Ellsperman, parks department, told Council they have received 2 tree removal permits for this tree. Staff determined this is a sound, healthy and viable tree. Staff worked with the applicant to hire a third party consulting arborist, who confirmed staff's finding. The arborist concluded this tree is viable and can survive with proper protection. Susan Olsen, applicant, told Council they are making this their permanent home. The Olsens respect forests, especially inside a city. Ms. Olsen told Council as a sculptor, she uses trees as part of her artistic expression. Marshall Olsen was responsible for re- foresting part of the coastline of Lake Michigan and planting 2,000 trees. Ms. Olsen said trees are very important. Marshall Olsen told Council he and his wife planned how to utilize the historic cabin and this property before purchasing it. Olsen said he consulted with the parks department on how to build with the tree and was told he could build up to the drip line. Olsen said they made an offer based on that fact and agreed to leave the tree in place. Olsen said it now appears they cannot build to the drip line. If they did build to the drip line, it would weaken the stability of the tree and increase the probability of the tree falling on the neighbor's house. The only solution is to remove the tree. Olsen said the neighbor has already threatened to sue the building contractor if the tree falls over. 11 Regular Meeting Aspen City Council December 12~ 2005 Olsen told Council in February 2005, they received a tree removal permit for all the trees to be removed except the large fir tree, which permit was denied. In July, they moved the cabin to the west side of the lot. The plan was to excavate and pour the foundation and then move the cabin back to the new foundation. Olsen pointed out the tree removal permit has language relating to construction and to care of the tree. Olsen met with Brian Flynn, city parks department, on site to discuss conditions for beginning the excavation. Olsen reported Flynn told him he needed to fence off the tree; that was all that was discussed. The permit was signed and issued in mid-August. Olsen said the excavator claimed that further excavation would weaken the tree. The neighbor called the contractor and threatened suit if the tree fell. Olsen said he asked the parks department for a solution. The parks department indicated they were surprised a permit had been issued and claimed procedures had not been followed. Olsen told Council he again asked the parks department about removing the tree and they suggested getting another opinion. Olsen said he submitted a letter from Richard Camp stating the tree should be removed. The parks department stated this letter has little validity because Camp lacked the proper credentials. The parks department recommended getting an opinion from a licensed arborist. Olsen contacted Precision Tree Works. After coming to the site, Mark Stelle stated he would not accept the assigrmaent but would give an opinion on how to approach the excavation. Olsen said Stelle determined the roots run as far as 8' beyond the drip line, which would only leave a footprint for the house of 34'. Olsen told Council excavation has been suspended and they have to change the plans for the coach house. Olsen pointed out the coach house blocks the path for the house movers to set the cabin back on the new foundation and the cabin is setting on the west lot, prohibiting construction of the single family house. If the tree were removed, the move would be simple. Brandt said the basic issue is that the facts and circumstances under which the Olsens purchased the lot and the assumption that they could build to the drip line have been altered by the extensive root system of this tree. Brandt presented the survey plat showing the location of the historic cabin, the tree with the drip line 10' to the south plus the root systems extending another 8'. On the rear is a 15' setback for parking, pad and a garage. This root system may mean a full basement cannot be constructed shrinking the amount of space available underneath the historic resource. Brandt opined the extent of the root system and the facts the Olsens relied upon now reasonably interfere with the use of the property and they will incur significant additional costs to keep the tree, like soil stabilization, additional shock Crete, loss of some foundation. None of this will insure the tree remains. Brandt showed pictures of the tree from Main street, and the 2 trees to the west. Brandt pointed out the tree is leaning to the left from a phototropic response. Brandt showed another picture with a loss of branches caused by a cottonwood falling into the tree and knocking off those branches. These pictures were marked exhibit A and B. The tree sits back from the lot line by 18'. There is another historic house to the west and if the tree were to fall, it would fall on the house to the west. 12 Regular Meeting Aspen City Council December 12~ 2005 Brandt said a new house of 2400 square feet is allowed and it could be forced into a smaller area making it blockier and detracting from the historic resources. Brandt stated they do not feel the tree is so important to Aspen or will be missed in the long term. It is set back offMain street and is generally unsightly. The Olsens are willing to pay the full tree permit removal and to plant 1 or 2 new trees on the front of the lot. This would maintain good forestry by planting younger trees. Brandt reiterated the new discoveries are creating hardships. Councilwoman Richards noted that the letter from Stelle represented some roots were exposed during the initial digging and asked where the roots were exposed. Justin Helmer, excavator, showed where the building envelope is and where the roots were exposed. Councilman Torre asked about the lack of branches and the possible instability of the tree. Ellsperman said the biomass of a tree that size is tons and tons. The loss of branches is miniscule when compared to the entire biomass. Councilman Torte asked the age of this tree and how long are these type of trees expected to last. Ellsperman said they have not done boring tests; however, they estimate the tree to be between 75 and 80 years old. Blue Spruce trees can live to be 200 to 250 years old in a natural forest setting. In a community forest, the life span is shorter. These are the city's oldest trees on the Main street corridor. Ellsperman said their findings indicate these trees can live for many years and are valuable to the history in this area. Councilman Johnson asked if Blue Spruce are native to this area. Ellsperman said they are. Councilman Johnson asked if anyone has made a determination whether the excavation has already damaged this tree. Ellsperman told Council the parks department spelled out specific guidelines for excavation. Ellsperman said during that time there was some damage to the root system; however, for a tree this size, the roots can go out 100 to 200' from a tree. The key is to minimize and manage the damage in order to preserve the tree. Ellsperman told Council after meeting on site, the applicant immediately fulfilled the protection requirements. Brandt told Council the applicants fulfilled the requirements of the excavation permit; they did not go outside the permit area. The current excavation has not harmed the tree from a health standpoint. Councilman Johnson asked if there were finalized plans for the single family house when the historic lot split was applied for. Olsen told Council they had a general footprint for the house based on the assumption they could build up to the drip line. Olsen reiterated the tree is healthy and stable now; however, if they are to dig both for the single family house and for the historic cabin, on two sides of the tree, this is disturbing the soil that holds the root structure together and the risk of the tree falling will be much greater. Ellsperman noted the lot split ordinance requires that the tree remain. The city's tree ordinance states that excavation within the tree line requires a permit. The code is written to provide the best protection for trees while allowing economic enjoyment of one's property. This is a balancing act. Worcester said the applicants did not need a permit to excavate outside the drip line; they did file an application to remove the tree or to do some work within the drip line, which was denied. Councilwoman Richards asked if there is a changed recommendation from the parks department that excavation not occur 13 Regular Meeting Aspen City Council December 12~ 2005 8' more from the drip line. Ellsperman stated that is not a changed recommendation; the department was responding to the ordinance stating the tree should be protected. Ellsperman said the parks department feels the tree can be saved and the property can be developed. Steve Barwick, city manager, noted if one is only going to the drip line on one side of a tree this leaves a large number of roots undisturbed. This applicant wants to go to the drip line on two sides, which will disturb a lot of roots. Barwick said the parks department did not know the details of the construction of the second house when they reviewed the excavation permit. Mayor Klanderud opened the public hearing. Pat Hunter, Hunter Construction, noted the drip line on a spruce tree is much more narrow than a drip line on a large deciduous tree where the branches extend way out. Mary Lackner, adjacent homeowner, stated she supports the parks department recommendation that the tree remain. Ms. Lackner stated this is a non-conforming size lot. The HPC recommended approval conditioned specifically that the tree remain. This site is constrained. The applicant purchased the property prior to the lot split approval and through that approval the applicant gained an additional lot. Ms. Lackner noted six variances were approved by HPC to make the two lot configuration work and to allow a residential house, the historic cabin, and a single family house. Both HPC and Council considered that this was a constrained lot. The Council allowed the middle lot to be larger in order to not impact the tree. The larger 3200 square foot lot, which contains the tree, allows more FAR. Ms. Lackner said the additional cost to move the historic structure was a construction timing issue, not a community issue. Trees are good for getting particulates out of the air, looking nice along Main street and softening the traffic impacts. Rob Weien, adjacent property owner, asked if an applicant is allowed by right to build a full depth basement. Chris Bendon, community development department, told Council it is not prohibited in the code. Weien noted most of the historic properties do not have a full depth basements. Weien said the root system holds up the tree and the branches do not provide support. Weien said when he saw the excavator removing roots and going into the drip line, he called the contractor and cautioned him about going beyond the limits of the excavation permit. Weien urged Council to support the staff's findings. Weien said he is trying to maintain the livability of their house and the tree is the only constraint keeping the next-door neighbor from building lot line to lot line. Toni Kronberg said the owners bought this property with a cabin and a tree, before the lot split. Removing the tree would increase the Olsen's property rights. Ms. Kronberg noted this is a historic piece of property and in the historic guidelines there are two provisions; streetscape and historic landscape. The guidelines state ifa tree is over 50 years old and there is no building, the tree remains. Ms. Kronberg said this is a significant part of Main streetscape and the historical character of the community. The solution would be to redesign the house. The AACP states trees are an important part of Aspen's community. Justin Helmer, excavator, said there is a safety issue. Mayor Klanderud stated Council 14 Regular Meeting Aspen City Council December 12~ 2005 received letters from Rob Weien and Mary Lackner opposing the tree removal and from Betty Farson supporting the tree removal. Mayor Klandemd closed the public heating. Mayor Klandemd asked the size of the two lots. Ms. Guthrie noted originally the lots were divided with the larger lot on the comer; the request was amended so the interior lot be 3200 square feet and the comer lot is 2565 square feet, which is what was approved in the lot split ordinance. Ms. Guthfie noted this is only large enough for one single family house on each lot plus the associated mixed use in the historic building. Councilwoman Richards asked ifa historic TDR can be sold off the single family lot. Ms. Guthrie said TDRs are based on residential use of a property and the only residential parcel is the interior lot where the tree is located. Councilwoman Richards said if the applicants were to have to modify their home size in order to accommodate the tree, they might be able to sell TDRs off the site by reducing the FAR in increments of 250 square feet. Councilman DeVilbiss asked ifa drip line is determined by measuring the longest branch of the tree. Aaron Reed, parks department, said it would be determined at the time of a permit. Cotmcilman DeVilbiss stated it appears them were measures in place to protect the tree and these measures were not followed. Ellsperman concurred and stated after that was brought to the applicant's attention, they met the specifics on the permit. Ellsperman noted vertical digging stabilizes the soil in place; there is construction on grade and by building the structure on grade; there are other techniques that could be used and not destroy the tree. Councilman Johnson asked if one could build up to the drip line without excavation without harming the root system. Ellsperman said this has been done successfully in locations in this community. Brandt said staff has presented construction techniques they would recommend; however, it seems any excavation will harm the tree. Brandt said the applicants are planning an art studio with dark room and photographic space, which will require a full basement to meet commercial use on this space. Brandt agreed good forestry is to keep healthy old growth but sometimes it is a good idea to plant new growth. The applicants are willing to pay the tree removal fees and to plant new trees in order to mitigate the visual impact of the loss of this tree. Councilwoman Richards moved to suspend the roles and extend the meeting to 9:30 p.m.; seconded by Councilman Torre. All in favor, motion carried. Councilwoman Richards moved to uphold the parks department denial of the tree removal permit; seconded by Councilman Johnson. Olsen stated if the tree remains, they will not be able to have the footprint and the basement they wanted. The question is whether HPC will approve a taller house. Councilman Johnson said it seems implicit that if the city ordinance requires a tree not to be removed, it also cannot be damaged so that it is removed by negligence. Councilman Johnson stated he supports staffbased on Sections 13.2(3)(IV, V, VI and VII). 15 Regular Meeting Aspen City Council December 12~ 2005 Councilwoman Richards agreed to support staffin their findings. Councilwoman Richards stated the protection of the tree was put in the land use ordinance deliberately. Councilwoman Richards stated she would not have approved a lot split that included removing this tree. Councilwoman Richards noted Council was given assurances there was enough room to build the project and to protect the tree. Councilwoman Richards stated the economic enjoyment of this property was enhanced by the approval of the lot split. This was a non-conforming lot and waivers were given to allow this historic preservation to move ahead. Councilwoman Richards stated it is important the original condition put on the lot split by City Council be respected and not subverted one piece at a time. Councilwoman Richards asked about allowing the basement of the historic structure to extend back towards the carnage house covered with grass. Councilwoman Richards noted that for properties that have site conditions creating difficulty, there is an ability to sell historic TDRs offthe site. Councilman Johnson asked what this motion would allow the applicant to continue to do. Worcester said it would allow the applicants to proceed with the approved plan that they have obtained from the city, subject to the tree removal permit, whatever the parks department has. Councilwoman Richards said excavation techniques are available to save trees. This is the obligation that came along with the right to a lot split. Brandt noted that what is being approved at this meeting is not overturning any of the approved building plans. Mayor Klanderud agreed this action upholds the ordinance because tree removal was prohibited in the ordinance, and it upholds the city forester and the parks department denial of the tree removal. Brandt said there is a full basement under the historic structure, which has been approved; it goes into where the root system is but not into the drip line. Brandt asked if this action states the applicant cannot build that. Ellsperman stated his interpretation is that using the parks department's guidelines and recommendations for the proper distance back from the tree to protect and maintain it that might be outside the drip line. Councilwoman Richards said not on the existing excavation. Ellsperman said that is correct; the parks department recommendation is that the excavation stays 8' out of the drip line in that location. Ellsperman told Council the parks department will work with the applicants on the existing excavation and existing approvals. There has not been an application for the other building yet. Mayor Klanderud said this discussion is about the excavation under the historic house, which is the lot that is being excavated right now. Ellsperman agreed this motion will not affect that excavation. Mayor Klanderud asked if basement site will remain the same. Ellsperman reiterated as long as the applicants use the parks department's recommendations. Mayor Klanderud stated she would uphold the parks department denial of the tree removal permit, which is consistent with the original ordinance that prohibits the removal of the spruce tree. Mayor Klanderud said this was a non-conforming lot and in order to preserve the historic property and to offer a benefit to the owner of the property, the lot split was granted. 16 Regular Meeting Aspen City Council December 12~ 2005 All in favor, motion carried. Councilman Torte moved to go into executive session at 9:20 p.m. for the purpose of discussing purchase or acquisition of property pursuant to C.R.S. 24-6-402(4)(a); seconded by Councilman DeVilbiss. All in favor, motion carried. Councilman DeVilbiss moved to come out of executive session at 9:30 p.m.; seconded by Councilman Torre. All in favor, motion carried. Councilman DeVilbiss moved to adjoum at 9:30 p.m.; seconded by Councilman Torre. All in favor, motion carried. K~j/nryn S. l~och, City Clerk 17