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HomeMy WebLinkAboutminutes.council.20060328 Soecial Meetin2 Asoen City Council March 28, 2006 Mayor Klanderud called the special meeting to order at 4:05 p.m. with Councilmembers DeVilbiss, Johnson, Torre and Richards present. ORDINANCE #12, SERIES OF 2006 - Land Use Code Amendments Chris Bendon, community development department, reminded Council the intent behind Ordinance # 12 is to limit the free market development rights per year to half that currently allowed - 37 units to 18 units. The second component is to implement a density standard for the commercial core and C-l with a maximum unit size for residential development. The third major component is that affordable housing units must be at least 50% above grade, every unit mitigation units, units built by the city, volunteer units. Bendon said the pace of development over the last 18 months is a pace that is unhealthy for the community with a level of impact that could be unprecedented in town and is inconsistent with the health, welfare and safety of the community. Bendon noted that is the reason this is proposed as an emergency ordinance. Bendon noted section 1 deals with the rate of new free market residential development units, proposed to be reduced to .5% growth rate or 18 units/year. Bendon said the ordinances reads, 18 units no more than 6 of which may be located in the CC, C-l zone. Bendon said Council raised the issue of half the units be allocated on "first come, first served" and the other half ofthe units will go through a multi-year allotment process and the units must be deemed exceptional by Council. Section 3 is the administrative approvals for historic landmark expansions for which there is the ability to add one free market residence. This residence will count towards the annual allotment but is an administrative approval. This section sends one to the P&Z section that deals with more than one free market residence. This is not a substantive change, just a reference change. Section 4 deals with outdoor food vending in the CC district. There is a code provision, which has expired and allows for temporary food vending in the CC. This language would allow these to happen on an administrative review with no sunset provision; there is a 6-month cap on the use. Section 5 is P&Z review for enlargement of historic landmark structures and provides reference back to section 3 and how someone would mitigate for more units proposed than the one allowed on-site. Section 6 is for change in use, which review is done by P&Z and there are two proposed amendments. (d) prohibits a reduction in affordable housing units through change in use and (e) requires that net livable space, finished floor level at or above natural finished grade is the requirement for affordable housing. Free market space created and the affordable housing space created is on a net livable basis, which would be easier and a more productive way to measure it. Section 7 deals with approval of free market residences in a mixed use project and has the same language as section 6, requires mitigation for those units be provided on a net livable basis. 1 Special Meetin2 Aspen City Council March 28, 2006 Bendon pointed out all affordable housing approved in the city goes through Section 8, which requires that the finished floor level of 50% or more of the units net livable square footage be at or above natural finished grade. Bendon said (e) has been amended for all units are required to be "for sale" units to allow rental units on a case-by-case basis for lodging and commercial operations. Bendon noted lodging operations often depend on their ability to retain employees and it would be in their interest to rent to their own employees. Section 8 would allow the housing office to authorize rental units. Bendon recommended for free market development, the owner be allowed to select the first purchasers of the affordable unit. Bendon said this is important in mixed projects. Bendon said Section 9 amends the growth management process. Reducing the annual allowable allotment may increase the number ofrequests for a multi-year allotment or it will take multiple years to go through the development review. Bendon said this language lays out a procedure for this review. Sections 10 and 11 deals with the maximum size unit in CC and C-l, which is the immediate downtown area. Bendon told Council the suggested 1500 square foot size might be too small and may limit the economic interest in rejuvenating a commercial property. Bendon suggested this be changed to 2000 or 2500 square feet. Bendon said over 3,000 square feet would result in units that may not contribute to occupancy and vitality of downtown. Bendon said there is a section further on which requires the free market space be no greater than the commercial space to require some balance. Bendon pointed out there is an existing code provision that the first floor cannot be used for residential. Section 12 addresses the mixed-use zone with some reference corrections. There is also a requirement that the free market residential floor area be no greater than the uses of commercial, lodge, time-share lodge, arts, public, civic uses. Bendon said this is an attempt to get a balance between the residential and other uses. Bendon pointed out a mixed-use project could qualify for mixed use and increase floor area by having residences and a small office. Section 13 adds a maximum unit size within the mixed-use zone. Bendon said it is reasonable ifthere is a maximum unit size, it be consistent with the other zone districts. Section 14 addresses the mandatory ratio between the free market development and the commercial development. Section 15 has a maximum unit size for the NC zone. Section 16 deals with the housing replacement requirement for projects that are replacing 50% of the existing development. A multi-family project when demolished must replace 50% of the units, 50% of the bedrooms and 50% of the net residential area as affordable housing and this adds that the affordable housing must be at least 50% above grade on a unit-by-unit basis. Section 17 is resale/rental restrictions that goes through the residential multi-family replacement p~ogram. This section requires that the deed restriction allow for the housing authority to purchase and to rent the units. Bendon told Council section 18 cleans up the existing ADU or carriage house and the provision that allows one to buyout of mandatory occupancy. This amendment changes the calculation from "assessed" value to "actual" value. Section 19 deals with height measurement. The code was amended to deal with flat roof measurement and slope roof, 2 Special Meetin2 Aspen City Council March 28, 2006 which was measured at a mid-point. This amendment deletes the C 1 zone to avert the possibility that all roofs in Cl are flat roofs. Bendon said when Council originally adopted the roof heights, the thinking was the C-l zone should have a variety ofroof shapes. With one height measurement, only flat roof buildings will be built so staff introduced 42' for flat roof buildings and 38' for sloped roof buildings. This section says that development will be measured at the top wherever it is regardless of the slope. Eliminating C-l should encourage a variety of roof shapes. Section 20 adds a definition for mixed use to include commercial, residential, lodging or civic. Bendon told Council this attempts to make it clear that the land uses are what designates something mixed use, not tax status. Section 21 defines exceptional projects and how those would be handled and the existing code criteria to state a project is exceptional. Bendon pointed out section 22, which addresses how to treat development applications. This ordinance would have no effect on projects that have already received a development order. Complete applications already in review not amended by this code would not be affected. Bendon said conceptual approvals do not vest a project in terms of the land use code. Councilwoman Richards asked the annual FAR available for commercial redevelopment. Bendon said it is 28,000 of net leasable square feet excluding mechanical space, hallways, etc. Councilwoman Richards asked what rate of growth is 28,000 square feet. Bendon said it is 2%, which is not being amended by this ordinance. Councilwoman Richards asked what has been approved and not yet built in the community. Bendon gave Council a chart of vested development projects without building permits, the year approved and the total FAR. This list totals 540,339 square feet; the existing gross square footage in town is just less than 20 million square feet. This list represents 2.7% of the base square footage This does not include projects under construction, like the Residences at Little Nell. Projects going through review were not included because they are not entitled to square footage. Councilman Johnson asked if the proposed restriction on the number of allowable free market is for all non-residential zone district. Bendon said lodge and SCI, CL were not included as the city is not likely to see development without some public/private partnership in SCI and staff did not want to add another barrier. For lodge and CL, Council may discuss if they want size restriction on residential units in those zones. Bendon said the focus of this amendment was not to see abnormally large units in the downtown area. Councilwoman Richards asked the rate of growth in the commercial core. Bendon said that rate is 0% because there have been no new commercial applications in 10 years. Councilman Johnson asked how the 30% was determined in free market residential unit within mixed use and change in use. Bendon said during infill financial modeling, staff was looking for a percent of affordable housing that would be part of a project and still render that project viable. Bendon said that number was a combination of the level of FAR and level of category for those affordable housing units. 3 Special Meetin2 Aspen City Council March 28, 2006 Mayor Klanderud said Council will take public comments. Emergency ordinances do not require public hearings. Eric Cohen noted in 1999-2000, Council commissioned a group of citizens to be an infill advisory committee. Cohen said infill was looked upon to help spur development or redevelopment in the downtown commercial area and a way to promote affordable housing to be built by the private sector in the downtown area. Cohen said this group spent 3 years as an advisory board before P&Z and Council tackled this issue. Cohen stated he does not understand why this is an emergency ordinance after the task force spent 5 years on the prior amendments. Cohen said the city should take the same time and diligence to review these code amendments. John Sarpa, Lodge at Aspen Mountain, said he is worried about these code amendments and his project, on which they have spent 2.5 years and much money and which has received conceptual approval. Sarpa said they have been working to get to final review. Sarpa said if their project has to come under these regulations, it will kill the project. Vince Gallucio asked what has happened in the last 12 months to prompt a reaction like this. Mayor Klanderud noted many of the amendments are minor and are clean up amendments. The most significant amendment is the reduction of the floor area ofCC and C-l going from 1 % growth rate to .5% growth rate for free market residential units. David Guthrie said he feel the 1500 square foot limit for residential units may be too small. Larger free market units subsidize projects, like the Limelite. Guthrie suggested Council look at increasing that limit to 2000 or 2500 square feet. Mark Hesselschwerdt said this looks like an overreaction to some ofthe projects being built in the city. Cutting the available units from 37 to l8/year is a huge whack against the construction industry in Aspen. Cathy Markle said she cannot understand the rush and the need for an emergency ordinance. Councilwoman Richards brought up section 3 and 5 the addition to historic structures and that these should require Council review rather than administrative sign off or P&Z sign off. Councilwoman Richards said historic structures are the heart and soul oftown. The previous code changes gave too much power away to administrative sign off which is not subject to referendum or review by the public. Councilwoman Richards said there is no size limit but how many employees a project may generate sets the size. Councilwoman Richards said she would like to see these two sections amended so that additions to historic structures require Council review. Mayor Klanderud said Council is not undoing the infill code amendments but there is concern about the rate of development. Council has discussed making amendments to have a more modulated growth rate. Staff brought some amendments within the existing land use code to respond to these concerns. Mayor Klanderud said making changes outside those presented by staff would necessitate a full land use code rewrite. Council could defeat this emergency ordinance and undertake a code rewrite. Mayor Klanderud said she is only willing to consider the amendments presented by staff. 4 Special Meetin2 Aspen City Council March 28, 2006 Councilwoman Richards said some feel reducing the number of free market units available will take care of many ofthe growth issues. Councilwoman Richards noted Council could have adopted a broad based moratorium ~d then gone through the entire land use code. This ordinance addresses the areas staff thought were of greatest concern. Councilwoman Richards said she feels there are other areas of the infill code that need further refinement. Councilwoman Richards asked if there is a limit on how large a minor enlargement to a historic landmark can be. Bendon said the 2 sections are the growth management section of a growth that a historic project would go through. The difference between administrative and P&Z review is the size. For administrative review, a project is limited to generating 4 employees or fewer and only 1 free market residence. This does not dictate the size of the amendment but this section is only a portion of an entire review. Bendon said the substance of the change, the effect on the historic resource is not done administratively. Council can call up these approvals from HPC review. Mayor Klanderud said she can accept the free market allotment at 18 but does not accept reserving 9 of them for exceptional projects. Bendon reminded Council there is no annual limit on affordable housing; this contributes to the growth ceiling. Jasmine Tygre, P&Z, said P&Z was dismayed that tonight was the first opportunity to read this ordinance. Ruth Kruger, P&Z, said she supports Council's efforts to be watchful of the development in town; however, it would have been helpful for P&Z to have been in the loop. Mayor Klanderud said this is the nature of emergency ordinances. Mayor Klanderud said it would be ideal to have a discussion about land use code amendments with P&Z and the entire community; however, this could lead to a landslide of applications, which would defeat what Council may want to change. Dylan Johns said emergency code changes does not seem to generate a lot of confidence from the community for reliance on city codes. These code amendments affect mixed-use projects, which are one of the more needed sectors of redevelopment. Mayor Klanderud said Council could have enacted a total moratorium, which would have been more drastic. Councilman Johnson stated he supports infill; he supports these code amendments as the community is not getting the projects they thought they would through infill. Councilman Johnson said the codes and development seem to be weighted toward speculation rather than what the community wants. Bendon said Council needs to decide whether to reserve a portion of the free market units for exceptional projects or units to be located in the CC zone. Councilman Johnson noted this is another opportunity for Council to get what they want, to reserve these units for exceptional projects. Councilman Johnson said if Council does not go with the exceptional then 6 units should be located in the CC, C-l zones. Councilwoman Richards said she could support 6 for exceptional, 6 in the downtown and 6 for general development. Councilwoman Richards said she would like to see more competition in the exceptional units rather than allotting them on first come first served. Bendon said best project wins is a major theory change in the code and to demonstrate a project is exceptional, applicants have to put a lot of quality into the application and this can lend to 5 Special Meetin2 Aspen City Council March 28, 2006 subjective decisions. Bendon said he supports exceptional but does not support all project coming in at once and the best projects win. Mayor Klanderud said she would prefer 18 units, no categories. The goal is to get what Council believes is the best for the community and too many distinctions may not result in the best. Councilman Johnson said he feels the criteria in exceptional gives guidance about the city's desires and what would qualify and highlights the AACP goals. Councilman DeVilbiss agreed with 18 total, 6 for exceptional. and no more than 6 downtown. Councilman Torre agreed with that. There will be 18 free market units/year 6 reserved for exceptional and no more than 6 downtown. Councilwoman Richards stated she favors Section 8, affordable housing (e) and it is common practice in commercial developments when they have affordable units, they are allowed to chose the first set of purchasers as long as they qualify under the housing guidelines. Council agreed. Bendon reminded Council one of the theories behind the infill code amendments was to look at the economic engine behind development and to leverage that so that community benefits can be provided. Bendon said there may be a weaker market for smaller free market units. Bendon said 1500 square foot units may cause access issues and complicate a building. Councilman Torre said 1500 square feet is too small and too limiting. Councilman Torre asked ifthere were other amendments that address the balance of free market square footage and other uses. Bendon noted that is addressed in mixed use and it could be added to CC and C-l that there be a ratio between the commercial and the free market residential space to insure a balance. Councilman Torre said he could support 2000 to 2500 square feet for free market units. Mayor Klanderud said she would prefer 2500 square feet. Councilman DeVilbiss said he could support 2000 square feet. Councilman Johnson said having smaller units is an attempt to increase the density rather than lower the square feet available. Councilmembers Richards and Johnson support 2000 square feet. Council agreed with free market units at 2000 square feet. Bendon explained section 13 is a unit size cap in the mixed-use zone. The mixed-use zone is Main street and some on each side of the commercial core. Bendon said size cap is less of an issue in the mixed-use zone but there is a concern that a mixed-use project might have one 4500 square foot unit, which would not contribute to the vitality of a project. Councilwoman Richards said she supports this as the logic that applied to the CC and C-l zones applies to the mixed-use zone. Council agreed. Mayor Klanderud said this should be watched to avert bland homogenous developments. John Worcester, city attorney, suggested in Section 20 regarding mixed uses be changed to add "and the ownership of property by a non profit organization that is not used as set forth above shall not qualify a property or structure as mixed use" to indicate that the style of ownership does not affect mixed use. 6 Special Meetin2 Aspen City Council March 28, 2006 Bendon brought up section 21, exception or multi-year development allotment and said Council has leeway in determining whether a project is exceptional. There are 11 criteria listed; there is subjectivity and flexibility. Mayor Klanderud agreed it is difficult to get away from subjectivity. Worcester told Council section 22, Effect on Development Applications needs to be amended as state statutes make it clear that a complete application entitles to applicant to rely on the laws in existence at the time the application was filed. Worcester said when an applicant receives conceptual approval, the courts would conclude that their application was complete. Mayor Klanderud agreed that it would be unfair to change the rules for a project that has received conceptual approval. Worcester reiterated when someone files an application for a land use approval, they are vested with the right to proceed under the laws in existence at that time. Councilwoman Richards moved to adopt Ordinance #12, Series of2006, as amended on second reading; seconded by Councilman DeVilbiss. Councilwoman Richards said between when the infill committee started work in 1999 to 2006 there have been dramatic changes in market demand. Councilwoman Richards said the city has only one shot at getting redevelopment right, at making it fit Aspen, at preserving neighborhood character and vitality. Councilwoman Richards said this emergency ordinance and these code changes are appropriate to the market forces and the change upon Aspen. Councilwoman Richards said there are many citizens concerned with the rate of growth in Aspen and with impacts to their quality of life. Councilwoman Richards pointed out the projects being built or approved show a growth rate of 5%. The AACP states a 1 to 2% growth rate is desirable. These code amendments give guidelines for the development community to work with. Councilman Torre said this is a difficult decision to enact legislation that will safeguard the community and not trigger a landslide of development applications. Councilman Torre noted there is development that does not suit Aspen and Council is concerned about the community in which they live. Councilman Torre stated this community needs to stay in harmony with itself and this is an attempt to make improvements. Councilman DeVilbiss said he would have preferred a comprehensive moratorium and a review of the entire land use code. Councilman DeVilbiss said a comprehensive moratorium would have had major impacts on the community and this is a better choice. Mayor Klanderud noted the nature of emergency ordinances is not an inclusive process. Mayor Klanderud agreed a lot is going on, including working on construction management and there are many projects already approved. Mayor Klanderud said it is imperative to modulate the rate of growth. Roll call vote; Councilmembers Torre, yes; Richards, yes; Johnson, yes; DeVilbiss, yes; Mayor Klanderud, yes. Motion carried. 7 Special Meetin2 Aspen City Council March 28, 2006 ORDINANCE #13, SERIES OF 2006 - 6 Month Temporary Moratorium Chris Bendon, community development department, told Council this moratorium focuses on the redevelopment of single family and duplex structures. These are not regulated because they are not growth; they are replacement. Bendon told Council there is a requirement if the new unit is larger in FAR that it provide cash-in-lieu, ADU or carriage house for mitigation. There is minimal review on replacement. Section 2 of Ordinance #13 exempts demolition permits submitted and complete prior to adoption this ordinance, building permits for projects which have received a development order, projects that have received a development order as that as that development is not subject to administrative growth management approval, and building permits for demolition of accessory non-habitable structures, like a shed. Bendon said the concern behind this moratorium is the rate ofredevelopment in any single neighborhood or building season. Bendon said the purpose of enacting an emergency ordinance is to research and implement a pacing process for redevelopment permits either across a neighborhood, across the city, or during one season. Bendon pointed out appeal process through the community development on whether a property is covered by this moratorium and there is an appeal to Council. There is also appeal on whether the moratorium creates an extraordinary financial hardship, which could be handled by a hearing officer and to allow an exemption from the moratorium. Bendon noted Council discussed last night whether to exempt affordable housing units. Bendon said anyone living in affordable housing would probably be able to apply through the appeal process or under financial hardship. Bendon pointed out redevelopment may not be the biggest problem in growth but as land gets more scarce there will be more and more redevelopment annually. Mayor Klanderud said this moratorium would give Council a time to have community dialogues to work on common goals. Councilman Torre said he would prefer a shorter time period moratorium. Staff prepared a chart of demolition and replacement permits showing that 27 in 2005 was the highest number of those permits and an average of 17 over the last 6 years. Mayor Klanderud said Council will take public comment. Mark Hesselschwerdt, president Smuggler Park Homeowners Association, told Council their subdivision has been going through a review process. The have a PUD and their own criteria and review board. Hesselschwerdt asked Council to exclude Smuggler as it would affect several homeowners. Hesselschwerdt noted there is an ebb and flow in the development business; interest rates are going up, which will slow growth down. Todd Gardner, Smuggler, told he has been working on a new house for a year and had planned to submit in the next week. 8 Special Meetin2 Aspen City Council March 28, 2006 Spencer Schiffer said after years ofliving in the same house on Cemetery Lane, he recently decided to redevelop his property. Schiffer said he does not think Council has considered all the ramifications of this moratorium on some long time residents. Schiffer asked the effect on the city for redeveloping properties already zoned as duplexes is really that large. Mayor Klanderud said the reason single family and duplex redevelopment was chosen is that these do not go through any type of review. Schiffer said to enact an emergency ordinance, Council should have data to show if this is not done, what would happen. Amos Underwood told Council he has been working on a redevelopment for 9 months. When he went to submit for a demolition permit today, he was missing one state asbestos form, which was not available. Pete Rispolli, Hallam street, said he, too, has been working on a redevelopment for 6 months and all of a sudden the rules will change. Eric Cohen said there are many people who will suffer from this moratorium. It will increase real estate prices; there will be a negative effect on everyone in the construction industry. John Kelly said his duplex is functionally obsolete and when they sell, it will be redeveloped. Kelly said Council is going after the wrong people; the problems in Aspen have been the approval oflarge projects, not 20 scrape and replaces. Kelly said this is not fair to many residents. Dylan Johns said there have been increases in the economy; building permits are taking 4 to 5 months to issue. There are processes built into the system that help regulate growth. Cathy Markle said citizens sympathize with the reaction to constant development in town. Ms. Markle said this ordinance is an overreaction. Ms. Markle said neighborhoods do change. Ms. Markle suggested instead of a moratorium the city review the land use code and institute some review replacement development. Councilwoman Richards said she will not support this moratorium as she does not have a sense of the desired outcome. Is the desired outcome to create a lottery and lower the number of permits available. Councilwoman Richards said it may be unfair that the city is building 90 units at Burlingame but other single-family development is not appropriate. Councilwoman Richards stated there is a transportation problem; however, the solution cannot be just the city's. The solution needs to be community-wide. Councilwoman Richards noted when the city reduced the floor area ratios, the desired outcome was to protect neighborhoods from overdevelopment. Councilwoman Richards agreed the distress over development is more within the commercial core and lodge zones. Councilman Torre stated he does not favor a 6-month moratorium at this point. Mayor Klanderud said she is hearing divisiveness in the community over construction, development and growth. Mayor Klanderud said she would like to find a way for all sectors to continue to grow, not all problems are caused by the large developments. Mayor Klanderud said the public have made a case this the single-family duplex sector is not where the burden should be. The city should continue to look at metering or phasing redevelopment. Councilwoman Richards said one desired outcome would be to see more long-term residents stay in those neighborhoods rather than have those units bought by second homeowners. 9 Special Meetin2 Aspen City Council March 28, 2006 Councilman Torre moved to adopt Ordinance #13, Series of2006, on second reading; seconded by Councilwoman Richards. Roll call vote; Councilmembers Torre, no; Johnson, no; DeVilbiss, yes; Richards, no; Mayor Klanderud, no. Motion NOT carried. Councilwoman Richards moved to go into executive session at 7:45 p.m. pursuant to C.R.S. 24-6-402(4)(a) and (b) for potential property acquisition and negotiations with counsel; seconded by Councilman Johnson. All in favor, motion carried. Councilman Johnson moved to come out of executive session at 8:45 p.m.; seconded by Councilman DeVilbiss. All in favor, motion carried. Councilman DeVilbiss moved to adjourn at 8:45 p.m.; seconded by Councilwoman Richards. All in favor, motion carried. ~xf~ athryn S. Koch, City Clerk 10