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HomeMy WebLinkAboutlanduse case.es.320 Lake Ave.A62-91 " ro:rAQIMENl' 1 l\ND USE APPL[CATION F'OlM ,"-,J ...... ......... 1) Project Nane Marshall/Hallam Lake Bluff ESA Revi"w 2) Project IDeation 320 Lake Avenue Block 103, Parcel #1, Marshall Lot Split (irrlicate street address, lot & block 1lImN>1:", legal. description where awropriate) 3) Present Za1in:.J R-6/H 4) Lot size 7075 sq. ft. 5) Applicant's Nane, Address & Phone I Ronnie Marshall 320 Lake Avenue, Aspen 925-5551 6) ~tive's Nane, Address & Phone I Catherine H. McMahon Garfield & Hecht. P.C.. 601 E. Hvman Avenu". ARp"n 97')-19% 7) Type of Application (please check all that awly): Special Review _ C'aoclepblal SPA Final SPA _ C'aoclepblal Historic Dev. Corrlitional Use Final Historic Dev. 8040 Greenline _ C'aoclepblal RID Minor Historic Dev. I _ stream Margin Final RID Historic LeIDlition M:untai.n view Plane . SUbdivision _ Historic Designation <bIrloorini.umization TextjMap 1IIDe1"rlnent = Lot SplitjIDt Line X Hallam Lake Bluff l\djustment Review Ga> AllobIent _ Ga> ExaIption 8) Description of 'Eld.StinJ Uses (plmN>1:" ani tne of existing sb:ucbn:es; awroximate sq. ft.; plmN>1:" of lkdLUl-UI5; any previ.oos awrovals granted to the prqJerty) . 1.530 sq. ft.. 3 bedroom single-family residence. Previous approvals: 11-87 Lot Split: 8-22-90 HPC Minor Development Approval: 6-6-91 Board of Adiustment Variance 9) Description of Develcprent Application AUDlicant seeks Hallam T.ake Bl uff ESA review of .g RO,g / np..c..k ronRtruC't'pc1 witnout building permit in summer of 1990. ~.' 10) Have ycu attached the folla.ring? ----X- Response to Attachment 2, Mi.nillI.nn slI!-m;=ion 0Jnt.ents ----X- Response to Attachment 3, Specific SlI!-m;=ion 0Jnt.ents -1L- Response to AttactDnent 4, Review starrlards for Ycur Application . MESSAGE DISPLAY TO CC BC Kim Johnson Leslie Lamont Jed Caswall CC CC Diane Moore Bill Drueding From: Jed Caswall Postmark: May 05,93 2:53 PM subject: Ronnie Marshall lawsuit -----~------------------------------------------------------------------------ Message: The court entered a judgment in the City's favor on Monday in the above-noted case.Court dismissed the suit against the city and ruled in favor of our countersuit-Marshall has 60 days to remove the hot tub or the city may enter onto the premises and remove it charging the . cost therefor against Marshall plus 5%.CAn you inform the PjZ of the decision along with Tom Cardamone at ACES.Of course it is still possi- ble that Marshall will appeal,but I believe any appeal would be a sure loser.I will send you up copy of decision. -------========x========------- civil Action No. 92 CV 47 COLORAD: ~@~l1W~ ~ ~. Nli'lY - 4,\:;33 .-('S --' ~...- c.. . 'of'FICE DISTRICT COURT,PITKIN, STATE OF JUDGMENT AND ORDER RONNIE MARSHALL; PLAINTIFF vso THE CITY OF ASPEN, and THE ASPEN PLANNING AND ZONING COMMISSION, DEFENDANTS This matter came before the Court on the Complaint of the Plaintiff seeking review of an adverse decision of the Aspen Planning and Zoning commission. The record below was certified to this Court, and the parties have filed their briefs as required by Rule 106 (a)(4). Court has considered the briefs and the record of the proceedings' below. The Defendants also filed a Motion for Summary Judgmen,t. Based on the record as supplemented by the ,e:::als on tile He ':)n fOL,mamary Judgment, the Court issues the following Order. I_ STANDARD FOR REVIEW In reviewing a land use decision of an agency under CR.C.P.106 (a)(4), the Court is limited to the matters contained in the record of the proceeding before that agency, Fedder v. McCurdv, 768 P.2d 711 Colo. App. 1988). Where the land use agency exceeds its jurisdiction or abuses its discretion, this Court must set aside the agency's order. The court looks to the entire record arid must uphold the land use decision unless there is no competent evidence to support it, Fedder, supra; King's Mill Homeowners Ass'n v. Westminster, 192 Colo. 305, 557 P.2d 1186 Marshall v. Asp~n April 29, 1993 Page 2 (1976), so that the decision is devoid of evidentiary support and therefore arbitrary and capricious, Platte River. Env. Cons. Organ. Inc. v. Nat'l Hog Farms, 804 P. 2d 290 (Colo. App. 1990). This Court must also consider whether the land use agency misconstrued or misapplied the law; and if there is a reasonable basis for its application of the law, the agency's decision will not be set aside on that basis, Lee v. state Board of Dental Examiners, 654 P.2d 839 (Colo. 1982). The City has filed a Motion for Summary Judgment. The Court will decide the case on the merits under Rule 106 (a)(4), reviewing the entire record below. A decision on the merits will include a decision on the issues raised in the Motion for Summary Judgment. The city seeks a mandatory injunction directing the Plaintiff to bring her property into compliance with the City code, and the Plaintiff seeks, an injunction prohibiting the city from enforcing the Hallam Lake ESA against her. II. BASIC FINDINGS 1. The Plaintiff, a resident of Aspen, Colorado, owns real property located at 320 Lake Avenue, Aspen, Colorado. 2. The Plaintiff caused to be built a hot tub and deck at the rear of her property in the Spring of 1990. She did not obtain a building permit, electrical permit, plumbing permit, zoning permi t, or land use development approval as required by various portions of the Aspen city Code. Nor did she obtain the required inspections. Marshall v. Aspen April 29, 1993 Page 3 3. On May 29,' 1990, the City of Aspen ("city") red-tagged the Plaintiff's hot tub. 4. The Plaintiff's property lies wi thin the Historic Preservation District and is a designated historic landmark. Under the City Code, a minor development approval for the construction of the spa and deck was required. The Historic Preservation Committee was the agency authorized to issue that permit. The Plaintiff :did not obtain this Committee's approval before construction of the spa and deck 5. On June 14, 1990, the Plaintiff applied for a building permit to legitimize the construction of the hot tub. 6. On July 19, 1990, the city advertized public notice of a hearing on the Hallam Lake ESA Ordinance before the P&Z. This ordinance created the Hallam lake Environmentally Sensitive Area ("ESA"), and, among other things, limited development on the hillside above Hallam Lake, and prohibits any development below the top of the slope. 7. On August 7, 1990, the Planning and Zoning commission ("P&Z") held the public hearing on the Hallam Lake ESA ordinance. 8. On August 22, 1990, the Plaintiff obtained approval for the spa and deck from the Historic Preservation Committee, subject to herr providing screening landscaping. 9. On October 2, 1990, the P&Z approved the Hallam Lake ESA Ordinance. , 10. On October 22, 1990, the City Council passed the Hallam lake Marshall v. Aspen April 29, 1993 Page 4 ESA ordinance on first reading, and on November 12, 1990, gave final adoption to the ordinance. Topographically, a portion of the Plaint~ff's hot tub and deck is located below the top of the slope. The ESA ordinance subjects certain development to a special review process, and the spa and deck lie within the area subject to that special review process. 11. On November 15, 1990, the plaintiff's landscaping for screening 'was accepted as complying with the Historic Preservation Committee standards. 12. On March 8, 1991, the Plaintiff applied for a zoning variance to the Board of Adjustment to legitimize the read yard setback violation created by the hot tub structure. 13. On June 6, 1991, the board of Adjustment granted her a .~ariance, subject to her compliance with the Hallam Lake ESA. The motion to grant the variance included the language that the plaintiff "go back and meet the building codes with respect to'railings and the ESA and HPC for that railing to ascertain if it is appropriate." 14. On October 30, 1991, the Plaintiff filed for approval under the Hallam Lake ESA. 15. On December 17, 1991, the P&Z denied the Hallam Lake ESA application, and reaffirmed its decision on January 21, 1992. 16. The Plaint~ff has never obtained the necessary permits under the City Code for the construction and use of the hot tub and deck. Marshall v. Aspen April 29, 1993 Page 5 17. The Plaintiff has not obtaihed vested rights to construct or use the hot tub and deck. 18. The city is not estopped from enforcing the ESA ordinance and , other portions of its Code and requiring the removal of the hot tub and deck. 19. The city is entitled to injunctive relief. II_ DISCUSSION h SEOUENCE OF APPLICATIONS AND ORDINANCE The City Code required the Plaintiff to comply with an assortment of regulations and permit requirements. As of the date of construction of the spa and deck, the Plaintiff had to get a building permit, electrical permit, plumbing permit, zoning permit, and a land use development approval as required by various portions of the Aspen city Code. She failed to do so, and the project was almost completed without either the permits or the requisite inspections. The specific location she chose triggered another permit requirem~nt. The structure intruded into the rear yard setback in violation of the City Code. Therefore, she needed another permit, a variance from the strict application of the Code. until she obtained this variance permit, the project was not lawful. She did not apply for a variance until March 8, 1991. This was about one hundred-sixteen days after the passage of the ESA ordinance. When she applied for the variance, the ESA ordinance was in full force and effect. Here application for and the decision on the variance came well after the passage of the ESA Marshall v. Aspen April 29, 1993 Page 6 ordinance. In doing so, she subjected herself to its requirements. She, like other~, was obligated to comply with its terms. Thus, because of the dates of passage of the ESA ordinance and her variance application, the ESA ordinance applies, and the Defendants lawfully may require the Plaintiff to conform to its provisions. Accordingly, the Plaintiff is not entitled to relief under her Complaint. II. VESTED RIGHTS The Plaintiff argues that her actions created for her vested rights so that she was not subject to the ESA ordinance. First, her construction of the hot tub and deck in the Spring of 1990 did not vest her with anything; it was illegal from the outset. She tacitly admitted this by applying after the fact for City approvals to legitimatize it. Second, under Colorado's interpretation of the pending ordinance doctrine, the passage of the ESA ordinance during the pendency of, the building permit proceedings did not vest the Plaintiff with any rights. In Crittenden v. Hasser, 585 P.2d 929 (Colo. App. 1978), the Court held: This authority to enact a zoning resolution, and thereby restrict the use of property, exists even though an application for a license involving that use ins pending; the only 'proviso being the Board had not reasonably or arbitrarily refused or delayed the issuance of the license. In Gramiger v. County of Pitkin, 794 P.2d 1045 (Colo. App. 1989), the Court interpreted Crittenden to mean that if the amending ordinance is adopted before the normal processing of the application is completed, the new ordinance may apply. Here, the Marshall v. Aspen April 29, 1993 Page 7 passage of the ESA ordinance preceded the normal completion of the Plaintiff's building permit application. It preceded the filing of the variance request. Thus, under applicable precedent, the timing of the filing of the application and the passage of the ESA ordinance does not generate for the Plaintiff any rights, vested or otherwise, to retain the hot tub and deck. Third, under tne vested property rights statute, C.R.S. ~ 24-68- 101, et. seq., she did not obtain any approval or conditional approval of a site specific development plan before the enactment of the ESA ordinance, C.R.S. ~ 24-68-103 (1). Fourth, the ESA ordinance by its terms provided that --- Any development or proposed development in the Hallam Lake Bluff ESA Overly (sic) District not vested in accordance with law prior to the effective date of this ordinance shall comply with the terms and provisions of the Hallam Lake Bluff ESA development standards as adopted pursuant to this ordinance. Clearly, the terms of the ordinance shut out the possibility of creating rights'from pending, unapproved applications. Plaintiff points to the language of ~ 24-1-104(B)(3) of the city Code which states --- The provisions of this chapter and any amendments hereto shall not affect the review of any development application or building permit application lawfully submitted prior to the effective date of this chapter pursuant to the provisions of the zoning and subdivision regulations in effect immediately prior to the effective date of this chapter. To apply, the building permit application must precede the Marshall v. Aspen April 29, 1993 ' Page 8 effective date "of this chapter." This provision clearly deals with the time period when the whole chapter was being introduced, which occurred well before the Plaintiff's building permit here. This language does not apply to later amendments to portions of the chapter's text from time to time. Thus, this portion of the Code does not prohibit the application of the ESA ordinance to the pending building application of the Plaintiff. The Court concludes that the Plaintiff did not obtain any vested rights. III. RELIANCE The Plaintiff argues that she receives vested rights from substantial steps in reliance on her permit application. She argues that her construction "is virtually complete," and that she had "done all she can do to acquire a vested right." ( Brief, p. 5). One must separate out what she did without a semblance of legality, and that is the virtual completion of the project before being red-tagged for having no permits. This was clearly illegal , acti vi ty, and not the basis for vesting rights. What she did afterwards was installing about $1,000 worth of landscaping, file applications an~ other paperwork, and go to meetings. The Plaintiff had a project involving a heating system rehab which had not been done since the 1940's, foundation work, and the hot tub (Record, 6, 19). In the context of all that went into the unlawful hot tub project, there is a failure of proof by the Plaintiff that the landscaping was a substantial item. similarly, there is a failure Marshall v. Aspen April 29, 1993 Page 9 of proof that the Plaintiff's purported actions in reliance were reasonable. There is nothing the city or its representatives said of did that would form the basis for one reasonably to expect that the hot tub and deck would be legalized and that money and effort should be spend ahead of time presupposing that outcome. The Plaintiff argues further that participating in the land use hearings an,d pursuing a permit vests her with rights. The argument implies that mere participation in the hearing process after a code violation equals success, and that a permit denial cannot occur when one expends time and effort to seek the permit. There is a vast difference between seeking a land use or building permi t and actually acquiring one; Plaintiff's argument would eradicate that difference. The Court concludes that the Plaintiff's pursuit of the permits does not create any rights in her favor to retain the hot tub and deck. IV. ESTOPPEL viewing t~e a~tions of the city and those acting on its behalf, the Court does not find any actions of the City or the P&Z which estop the City from enforcing the ESA ordinance. In the context of the Plaintiff's initial illegally constructing the hot tub and deck, there is less justification for application of estoppel. Defendants argue that Lehman v. Louisville. 16 Brief Times Reporter 1805 (Colo. App. 1992) bars the Plaintiff's estoppel claims by application of the Colorado Governmental Immunity Act. That case is now on certiorari. It dealt with a tort claim for Marshall v. Aspen April 29, 1993 Page 10 damages and thus subject to the specific POlicies of the Act which have little apparent application to a land use dispute. The word estoppel has many applications and meanings. Nothing in the Lehman indicates that the rules for tort claims against a municipality should apply in the RUle 106(a)(4) dispute over the application of a land use ordinance or building code. Sovereign immunity simply is not a consideration here. Taken as a 'whole and in context with one another, the City's actions were an orderly application of its various, albeit complex, interrelated ordinances. Nothing was done to lead the Plaintiff reasonably to Conclude that she would be treated in any manner other than that mandated by the City Code. Nor is there any proof , that the City Code was applied differently to her situation. The City did not represent to the Plaintiff that its ordinances would not be enforced or that she would be immune from the application of the ESA ordinance. A municipality may be estopped when its representative performs an action or makes a statement on which the citizen reasonably relies and the municipality then changes its position to the 'landowner's detriment, see, e.g., P.W. Inves~men~s, Inc,v. Ci~y of Wes~mins~er, 665 P.2d 1365 (Colo. 1982). Here, the city did nothing to induce the Plaintiff to conclude the ESA ordinance would not apply to her. To the extent she interpreted the City's actions and concluded it would not, her reliance was not reasonable in light of the circumstances. V. MOTION FOR SUMMARY JUDGMENT , Marshall v. Aspen April 29, 1993 Page 11 the same issues inherent in the RUle 106 (a) (4) procedure. The The Plaintiff moved for summary jUdgment, arguing primarily precise issues in the Motion for Summary jUdgment are whether the City is entitled to an injunction that the Defendant bring her property into sompliance with City Code and whether the Plaintiff is entitled to' an injunction prohibiting the enforcement of the Code against her on the basis of estoppel. Summary judgment is a drastic remedy, and will be granted only where there is no genuine issue as to any material fact, Kral v. American Hardware Mut. Ins. Co., 784 P.2d 759 (Colo., 1989), Ridgeway v. Kiowa School Dist. C-2, 794 P.2d 1020 (Colo., 1989). Even where the,facts are not controverted, if reasonable persons could reach different conclusions or draw different inferences from them, summary jUdgment cannot be granted, Halsted v. Peterson, 797 P.2d 801 (Colo'. App., 1990). The party opposing the motion is entitled to all favorable inferences which may reasonably be drawn from the evidence, Halsted v. Peterson. supra. The movant has the burden of establishing the lack of a triable factual issue, and "all doubts as to the existence of such an issue must be resolved against the moving party." Cung La v. State Farm Auto. Ins. Co.. 830 p.2d 1007 (Colo. 1992), Churchey v. Adolph Coors. Co., 759 P.2d 1336, 1340 (Colo. 1988). The Plaintiff used the Summary JUdgment Motion procedure as a vehicle to attempt to create factual issues. However, as discussed above on the Rule 106 (a) (4) issues, as a matter of law, the I , Marshall v. Aspen April 29, 1993 Page 12 " Defendant never acquired vested rights nor was the city estopped to proceed, The Summary Judgment arguments do not expand the legal or factual issues on these points, Based on the record certified under Rule 106 (a)(4) and the affidavits submitted on the Summary Judgment issues, the Court concludes that there is no genuine issue of material fact concerning any of the issues raised by the Motion, The city is not estopped. The record is clear as to when the city and the P&Z acted, what their decisions were, what the plaintiff said and did, and what the effects of the Defendants' formal actions were. The Defendant city is entitled to injunctive relief, the plaintiff is not. IV_ CONCLUSION Based on the foregoing, the Court concludes that --- a) Nei therDefendant has exceeded its jurisdiction or abused its discretion; b) The actions of the Defendant in denying the permit applications of the plaintiff were lawful; c) The Plaintiff had not gained any vested or other rights entitling her to construct the hot tub and deck as has been done, nor is the City estopped to enforce its Code and the ESA ordinance; d) The plaintiff stands in violation of the City Code, the City has no plain, adequate, and speedy remedy at law, and the city is entitled to injunctive relief; e) The Plaintiff is not entitled to injunctive relief, Therefore, the Court ORDERS: 1) The Plaintiff's Complaint is hereby dismissed, with costs to the Defendants; 2) The plaintiff shall cease using, immediately and permanently, the hot tub and deck and shall remove it within sixty days of this Order failing which the city is authorized to enter the Plaintiff's premises and remove the hot tub and deck. If the city does so, it shall deliver the removed , Marshall v. Aspen April 29, 1993 Page 13 pieces to the plaintiff, and the Plaintiff shall pay the city's out of pocket costs of removal plus 5% for overhead. Dated: May 3, 1993 BY. /'.r.H-E~e T (/.._mu) ~~?/ ." --- ::,.....~----<-- ~ T. ETER CRA -/__ .J DISTRICT JUDGE ~ CERTIFICATE OF SERVICE I hereby certify that I served a Andrew Hecht and Edward Caswall on 01 t~ foregoing on C;_~ . /:4!:::~JI/1 REPORTER~/ / ( , /)\~~ - )(wA- ~\..-\ \ ~~ DISTRICT COURT, COUNTY OF PITKIN, STATE OF COLORADO civil Action No. 92 CV 47-1 ANSWER BRIEF RONNIE MARSHALL, plaintiff, vs. THE CITY OF ASPEN, and the ASPEN PLANNING AND ZONING COMMISSION, Defendants. COME NOW the above-captioned defendants, by and through their undersigned counsel, and submit their Answer Brief in this matter in accordance with Rule 106(a) (4) (VII) of the Colorado Rules of civil Procedure. FACTUAL ALLEGATIONS In or about May of 1990, plain~iff Ronnie Marshall illegally constructed an outdoor deck and hot tub in her rear yard at 320 Lake Avenue, Aspen, Colorado. The construction of the deck and hot tub were illegal in that, as admitted by Ms. Marshall, plaintiff (1) failed to obtain a building permit, (2) failed to obtain an electrical permit, (3) failed to obtain a plumbing permit, (4) failed to obtain required zoning approval for the structure, and (6) failed to obtain development approval from the Aspen Historic Preservation Committee. (See, paragraph 33 of defendants' counterclaim and plaintiff's admission to same at paragraph 1 of her Reply To counterclaim.) On May 31, 1990, defendant city of Aspen issued a "stop work order" to plaintiff commanding her to halt further construction and/or installation of the illegal structure. (See, paragraph 34 of the defendants' Counterclaim and plaintiff's admission to same at paragraph 1 of her Reply To counterclaim.) Thereafter, on June 14, 1990, plaintiff made application to the city for a building permit in an attempt to retroactively legalize the structure. (See, paragraph 35 of defendants' Counterclaim and paragraph 3 of plaintiff's Reply To Counterclaim; see also, page 151 of the Record.) Plaintiff was unsuccessful in her attempt to retroactively legalize the deck and hot tub when the Aspen Planning and Zoning commission denied land use approval for same on December 17, 1991, reaffirmed on January 21, 1992. (See, Record at page 39, l. 10 to page 41, l. 16, and page 120, l. 21 to page 121, I. 12.) STANDARD OF REVIEW A court reviewing agency action under Rule 106(a)(4) of the civil Rules is limited in its consideration to those matters contained within the record of the proceeding below. Fedder v. McCurdv, 768 P.2d 711, 713 (Colo. App. 1988). Judicial review is confined to determining whether the government body below exceed- ed its jurisdiction or abused its authority in rendering the decision subject to review. citv of Colorado Sprinqs v. District Court, 519 P.2d 325, 327 (Colo. 1974). If the record below shows compliance by a zoning authority with procedural and substantive 2 requirements, and contains competent evidence establishing a factual basis, the action of the zoning authority must be af- firmed. Bentlev v. Valco. Inc., 741 P.2d 1266, 1267 (Colo. App. 1987). The weighing of evidence and the determination of fact are functions of the lower governing body and are not matters for consideration by a reviewing court. Colemen v. Gormlev, 748 P.2d 361, 364 (Colo. App. 1987). THE DECISION OF THE PLANNING AND ZONING COMMISSION FINDING THAT PLAINTIFF'S ILLEGAL CONSTRUCTION AND STRUCTURE DID NOT COMPLY WITH APPLICABLE LAND USE ORDINANCES MUST BE AFFIRMED. On June 14, 1990, plaintiff applied for a building permit pursuant to her attempt to retroactively legalize her deck and hot tub. (Record page 151.) section 24-6-206(c) (2) of the Aspen Municipal Code sets forth the procedure for obtaining a building permit. Pursuant thereto, an application for a permit shall be submitted to the Chief Building Official who shall thereafter forward the application to the Planning Staff. The Planning Staff shall review the application to ensure that (1) the pro- posed development complies with the Uniform Building Code, (2) the applicant has obtained all appropriate environmental and utility permits, and (3) the application complies with all relevant portions of the Aspen land use regulations. (See, section 24-6-206(C) (2) (b), a certified copy of which is appended hereto as Exhibit 1; see also, Record at page 1, II. 5-16.) A staff review of plaintiff's permit application revealed that it needed to undergo a development review by the Historic Preserva- 3 tion Committee ("HPC") in that plaintiff's residence was a historically designated property. (Record at page 1, ll. 11-14.) Plaintiff submitted an application for HPC development approval on July 26, 1990. (Record at page 151.) On August 22, 1990, plaintiff obtained HPC approval. (Record at pages 61 and 151.) After having obtained HPC approval, plaintiff needed to obtain zoning approval. A review of the as-built plans for the deck and hot tub revealed that it had been improperly built into the rear-yard setback. (Record at page 4, II. 14-32; page 16, ll. 22-25, and page 17, II. 1-25.) Due to the zoning violation, plaintiff had to apply to the Board of Adjustment for a variance, which she did on March 8, 1991. (Record at page 152.) On June 6, 1991, plaintiff secured a rear-yard setback variance from the Board of Adjustment subject to her compliance with HPC regula- tions and the Hallam Lake Bluff Environmentally Sensitive Area regulations. (Record at pages 35, 11.7-16 and page 62.) Between the date upon which plaintiff initially filed for a building permit and the dates upon which she applied for and obtained her HPC and variance approvals, the City of Aspen undertook consideration and adoption of a new land use ordinance restricting and regulating development activity and structures within an area overlooking the Aspen Center for Environmental Studies Nature Preserve called the "Hallam Lake Bluff Environmen- tally Sensitive Area." Plaintiff's property fell within the Hallam Lake Bluff ESA. Accordingly, on October 30, 1991, (eleven 4 months after the adoption of the Hallam Lake Bluff ESA ordi- nance), plaintiff applied for development approval pursuant to the Hallam Lake Bluff ESA ordinance. (Record at page 152.) The Hallam Lake Bluff ESA ("ESA") regulations require that no development or excavation shall "be allowed to occur in the environmentally sensitive area below the top of slope". (See, section 24-7-506C(1) found at section 6, page 7 of Ordinance No. 71 (Series of 1990), incorporated into the Record at pages 73 and 147).' Additionally, section 24-7-506C(2) requires that all development within the 15' setback of the ESA be at grade. (Id.) Plaintiff's illegally constructed deck and hot tub violated both of these regulations. (Record at Page 2, II. 6-25; page 3, II. 1-14; pages 53-54; page 59; page 83, II. 10-25 to page 84, I. 1.) Plaintiff conceded before the Planning and Zoning Commission that she did not meet all of the mandatory development approval requirements for the deck/hot tub under the ESA ordinance. (Record at page 7, ll. 10-25; page 9, II. 14-20; and page 63.) While the structure might have been accommodated under the ordi- nance requirements had plaintiff agreed to move it back away from the slope and setback, she claimed that such a move would cost lA certified copy of Ordinance No. 71 (Series of 1990) is attached hereto as Exhibit 2 in accordance with C.R.S. section 31-16-208. See, Concrete Contractors. Inc. v. citv of Arvada, 621 P.2d 320 (Colo. 1981). 5 her too much money and result in the deck/hot tub being too close to her home. (Record at page 8, II. 10-22.) The facts as established in the record before the Court unequivocally demonstrate that plaintiff's illegally constructed deck and hot tub did not meet the criteria under the Hallam Lake Bluff ESA ordinance for development approval. As noted previous- ly, plaintiff admitted as much before the Planning and Zoning commission. Given the evidence before the Planning and zoning commission, this Court must affirm the decision to deny develop- ment approval to the plaintiff for her illegally constructed deck and hot tub. PLAINTIFF'S ARGUMENT THAT THE PLANNING AND ZONING COMMISSION ABUSED ITS DISCRETION IN APPLYING ORDINANCE NO. 71 (SERIES OF 1990) TO PLAINTIFF'S DEVELOPMENT APPLICATION IS WITHOUT MERIT. Plaintiff has argued in her opening Brief that the Planning and zoning commission improperly subjected her development and building permit applications to scrutiny under Ordinance No. 71 (Series of 1990), the Hallam Lake Bluff ESA requirements. According to plaintiff the application of the Hallam Lake Bluff ESA to her already constructed deck and hot tub was improper because (1) she had applied for a building permit to retroactive- ly legalize the structure prior to the adoption of the ESA ordi- nance, (2) she had a vested right to maintain the illegally constructed structure, and (3) the Aspen Municipal Code by its 6 own provisions foreclosed application of the ESA ordinance to her structure. Plaintiff's assertion that her application for a building permit vested her with a right to have a permit issue in the face of subsequently adopted legislation prohibiting same is contrary to well-established Colorado law. Similarly, her argument that the application of a newly adopted ESA ordinance by the Planning and Zoning Commission to her pending building permit constituted an abuse of discretion is without foundation. Ordinarily, an application for a development permit made before a land use regulation becomes effective gives in itself no right to a use excluded by the regulation. Similarly, adherence to preliminary requirements necessary in obtaining a permit does not give rise to any vested right in a particular permit or land use. 8 McQuillen, Municipal Corporations, section 25.155-156 (3d. Revised Edition 1991); cited with approval and followed, Cline v. citv of Boulder, 450 P.2d 335, 338 (Colo. 1969). See also, crittenden v. Hasser, 585 P.2d 928, 929 (Colo. App. 1978) (authority to enact zoning ordinances and restrict use of proper- ty exists even though application for previously permitted use is pending). Consistent with this general rule, Colorado has adopted the "pending ordinance doctrine" which provides that a municipality may deny an application for a license or a permit on the basis of a pending ordinance prohibiting the requested use. National Advertisinq Comoanv v. Citv and Countv of Denver, 912 7 F.2d 405, 412 (CA10 1990), citing crittenden v. Hasser, and McQuillen, supra. See also, Annotation, "Retroactive Effect of zoning Regulations in Absence of saving Clause on Pending Appli- cation for Building Permit", 50 A.L.R. 3d 596, 607 (1972) ("zon- ing regulation may be retroactively applied to deny an applica- tion for a building permit, even though permit could have been lawfully issued at time of application"). 2 The purpose of this doctrine is to protect municipalities from the establishment of non-conforming uses during the consideration and adoption of a land use ordinance change. See, Hill v. Zoninq Hearinq Board, 601 2The City of Aspen has codified a version of the pending ordinance doctrine in its land use code at section 24-7-1105 of the Municipal Code. Said section provides as follows: Temporary suspension of building permits. A. Whenever the city councilor commission has properly initiated a development application to amend the text of this chapter or the official zone district map, and the commission has, by resolution, recommended to the city council approval of such amendment, no building permit shall be issued by the chief building official which would be prohibited by the proposed amendment for a period of six (6) months following the date of the commission recommendation. B. If the city council shall by resolution refuse to further consider the amendment, or if an ordinance adopting the amendment, or an amendment substantially similar to the proposed amendment has not been passed on second reading by the city council within six (6) months, any building permit applied for during such period which otherwise conforms to this chapter shall be issued by the chief building official. (See Exhibit 3 appended hereto) 8 A.2d 1362, 1366 (pa. cmwlth. 1992). An exception to this general rule arises only where an owner has developed his land in accor- dance with a prior permitted use, in which case, he may be allowed to continue the use as a valid pre-existing non-conform- ing use. Elam v. Albers, 616 P.2d 168, 169-70 (Colo. App. 1980).3 Plaintiff's reliance on Gramiqer v. Countv of Pitkin, 794 P.2d 1045 (Colo. App. 1989) and citv and Countv of Denver v. Denver Buick. Inc., 347 P.2d 919 (Colo. 1959) in support of her arguments in this matter is misplaced.' In Gramiqer, a building permit had been wrongfully denied to undertake excavation and foundation construction. After obtaining a judicial reversal of the denial and securing the necessary excavation and foundation permits, the plaintiff 3The pending ordinance rule is also subject to two provisos not at issue in this case: (1) the municipality cannot unreason- ably or arbitrarily refuse or delay issuance of a permit, and (2) the ordinance must be "pending" when the application is denied. "Pending" does not require that the proposal be before city coun- cil, but only that the appropriate administrative department of the city be actively pursuing it. National Advertisinq Company, supra, 912 F.2d at 412. In this instance, plaintiff applied for her building permit on June 14, 1990. Published notice of the proposed ESA ordinance first occurred on July 19, 1990. The ESA ordinance had already been finally adopted prior to plaintiff's application for a variance. Plaintiff then applied for develop- ment approval under the ESA ordinance on October 30, 1991. (See, Record at pages 151-52.) 'Plaintiff erroneously cited the Gramiqer holding as an opinion of the Colorado Supreme Court when, in fact, that case was decided by the Colorado Court of Appeals, certiorari having been denied in July, 1990. 9 was subsequently advised that he could not obtain a "comprehen- sive" building permit to complete construction of his building due to a change in the zoning code that occurred after he ini- tially applied for his permit, but before he was allowed to proceed with his excavation and foundation work. Plaintiff thereafter commenced a declaratory judgment action seeking a judicial determination that his comprehensive building permit application should be processed under the zoning code in effect when he first applied for it (1973), and not the zoning regula- tions that were subsequently adopted (in 1974). Plaintiff alleged that the issuing authority was collaterally estopped in applying the latter adopted zoning code in light of his success- ful court challenge concerning the excavation and foundation permit. In dicta discussing vested rights and the availability of mandamus to compel the issuance of a building permit, the Court of Appeals referred to a Georgia case for the general proposition that the pendency of a zoning amendment at the time of a building permit application may not furnish a proper basis in and of itself to deny the permit. 794 P.2d at 1048. In further dicta, the Court of Appeals referenced the 1959 Denver Buick case wherein it was held that the prohibition against retroactive legislation requires the law in existence at the time of a permit application to govern the right to the issuance of the permit. Id. The Court of Appeals noted that it was on the basis of the Denver Buick case that it held for the plaintiff on 10 his first appeal concerning the issuance of the excavation and foundation permit. Id. To the extent the Gramiqer dicta is applicable to the facts and issues in this case, it stands for the proposition that when a permit is wrongfully denied in the first instance, a reapplica- tion for the permit after a favorable legal challenge shall be processed under the regulations in effect at the time when the initial permit application was wrongfully denied. As for the Denver Buick holding, it is not applicable or relevant to the legal issues or facts involved in this matter. In Denver Buick, the city of Denver adopted a zoning ordi- nance on November 7, 1956. A specific provision in the ordinance attempted to relate the effective date of the ordinance back to February 11, 1955. The impact of this provision was to negate permits and vested rights that had been issued and/or accrued under the previous zoning code. The Supreme Court invalidated the retroactive effective date of the ordinance and ruled that any person who had applied for a building permit prior to Novem- ber 7, 1956, was entitled to have his application considered under the zoning code then in effect. 347 P.2d at 930. Whether a particular law constitutes illegal retro~pective legislation centers on whether it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. P-W Investments. 11 Inc. v. city of westminster, 655 P.2d 1365, 1371 (Colo. 1982). In that an application for a permit cannot vest rights, Cline v. city of Boulder and crittenden v. Hasser, supra, and since it is manifest that illegal activity cannot vest rights, the adoption by the City of Aspen of the Hallam Lake Bluff ESA ordinance, unlike the ordinance in Denver Buick, did not improperly impair plaintiff's rights or impose obligations or disabilities upon her in regard to past valid transactions or considerations.s Plaintiff further argues that the time and expense she has invested in pursuing a permit to retroactively legalize her hot tub and deck somehow estops the city from requiring her to comply with the Hallam Lake Bluff ESA and "vests" her with a right to obtain a permit and maintain the illegal structure. Such an argument turns the doctrines of estoppel and vested rights on their heads and flies in the face of established case law inter- preting and applying these doctrines. An adoption by this Court of plaintiff's bootstrap logic would open the door wide for persons to ignore fundamental zoning and permitting regulations and result in the establishment of non-conforming land uses and non-conforming structures.6 SAgain, as previously noted, Colorado has adopted the pend- ing ordinance doctrine since the issuance of the Denver Buick opinion. crittenden v. Hasser, supra, as referred in Gramiqer at 794 P.2d 1048, and National Advertisinq Company, supra. 6A landowner cannot create her own hardship and then require that zoning regulations be changed to meet that hardship. C.F. Lytle v. Clark, 491 F.2d 834, 838 (CA10 1974). Furthermore, a 12 Finally, plaintiff asserts that section 24-1-104(B) (1) and (3) of the Municipal Code required the Planning and Zoning commission to exclude the application of the Hallam Lake Bluff ESA to her building permit request.7 section 24-1-104(A) of the Municipal Code provides, in part, as follows: A. General application. No development of land in the city of Aspen shall be undertaken without prior approval and issuance of a development order under the provisions of this chapter and other applicable laws and regulations ... section 24-1-104(B) (1) of the Municipal Code provides, in part, as follows: B. Exceptions. 1. Approved building permit. The provisions of this chapter and any amendments hereto shall not affect the validity of any building permit lawfully is- sued and effective prior to the effective date of this chapter, .,. section 24-1-104(B) (3) of the Municipal Code provides, in part, as follows: B. Exceptions. 3. Development applications and building permit ap- plications. The provisions of this chapter and any amendments hereto shall not affect the review of any development application or building permit person asserting the doctrine of estoppel is not entitled to relief where she acted wrongly. Fueston v. city of Colorado sorinqs, 713 P.2d 1323, 1325 (Cola, App. 1985). 7A certified copy of section 24-1-104 is attached hereto as Exhibit 4. 13 application lawfully submitted prior to the effec- tive date of this chapter pursuant to the provi- sions of the zoning or subdivision regulations in effect immediately prior to the effective date of this chapter ... Plaintiff claims that the provisions of section 24-1- 104(B) (3) noted above required the Planning and Zoning commission to exempt her building permit application from review under the Hallam Lake Bluff ESA ordinance. In addressing plaintiff's arguments on this point below, the Planning and Zoning Commission correctly interpreted the exemption provisions of section 24-1- 104(B) (3) to apply to only those development and building permit applications that had been submitted and were pending prior to the date of the adoption of Chapter 24 in 1988 in the first instance, not to applications submitted years later in circum- stances akin to plaintiff's application. (Record at page 92, I. 22 to page 103, I. 24.) Additionally, the Planning and Zoning commission found that section 24-7-1105,8 taken together with section 9 of the Hallam Lake Bluff ESA ordinance, made clear that plaintiff's permit application was to be scrutinized under the ESA ordinance. (Record at page 86, II. 2-18.) CONCLUSION Pursuant to Rule 106(a) (4), relief may be obtained from a court sitting in review of a land use decision if the evidence in the record shows that the lower body exceeded its jurisdiction or 8See footnote 2, supra. 14 abused its discretion. However, under this rule a court may reverse only if there is no competent evidence to support the lower body's decision. "No competent evidence" means that the ultimate decision of the lower body is so devoid of evidentiary support that it can only be explained as an arbitrary and capri- cious exercise of authority. Bentlev v. Valco. Inc., supra, 741 P.2d at 1267. The evidence contained in the record before this Court is clear and unequivocal. Plaintiff's illegal deck and hot tub did not and could not comply with the requirements of the Hallam Lake Bluff ESA ordinance. Plaintiff, therefore, was not eligible to obtain a building permit and, thus, retroactively legalize her structure. This Court must affirm the decision of the Planning and zoning commission. Dated: ~v..I.-\..'\ ~'" , 1992. Respectfully submitted, ASPEN CITY ATTORNEY B~~--W) '~bL->~~ Edward M. Caswall, Reg. No. 10435 130 South Galena Street Aspen, Colorado 81611 (303) 920-5055 Counsel for defendants 15 CERTIFICATE OF MAILING I hereby certify that I have mailed a true and accurate copy of the foregoing Answer Brief by placing same, properly addressed with sufficient postage attached thereto in the united states Mail, this day of July, 1992, addressed as follows: Andrew V. Hecht, Esq. Robert E. Kendig, Esq. Garfield & Hecht 601 East Hyman Avenue Aspen, Colorado 81611 16 CERTIFICATION This is to certify that the appended photocopies of sections 24-6-206, 24-7-1105, and 24-1-104 of the Aspen Municipal code, as well as the appended photocopy of Ordinance No. 71 (Series of 1990), are true and accurate copies of said ordinances duly passed and adopted by the City Council of the city. Executed this :Z"! day of ~- t7 61' THE CITY OF ASPEN , 1992. By: John .J. t;.. Bennett, Mayor ATTEST: (SEAL) jc729.1 Sec. 6-206. Certificate of compliance and building permit issuance. A, Initiation Upon receipt of a development order for a development application required by this chapter for a proposed development, the applicant may proceed to apply for a building permit from the chief building officiaL B. GeneraL No development shall occur except pursuant to a building permit that is issued pursuant to the terms and procedures of this section. C. Procedure. The following procedure shall apply to the issuance of any building permit, 1. Recordation of conditions of development order, Prior to the submission of an applica. tion for a building permit, all documents required to be submitted as a condition of the development order for which a building permit is requested, shall be recorded. These documents include, but shall not be limited to final plats, any improvements agreement, any other agreements, and any deed restrictions which may have been agreed to in the development order, 2. Submission of application for building permit a. Submission to chief building officiaL An application for building permit shall be submitted to the chief building officiaL Attached to the application shall be an improvements survey performed within one (1) year of the date of application which the applicant shall certify represents current site conditions and a topo. graphic survey for the property certified by a registered land surveyor, Review by planning agency staff. Upon its receipt, the chi<ifbuilding official shall forward the application to the planning agency staff who shall review the appli. cation to ensure that the proposed development: (1) Complies with the Uniform Building Code; (2) Has obtained any appropriate environmental and utility permits, including but not limited to water and sewage permits; and (3) Complies with all relevant portions of this ch~pter. Certificate of zoning compliance. If the planning agency staff determines the proposed development for which an application for a building permit is sought complies with all applicable requirements of this chapter, and with the commit- ments, representations and conditions of the development order, then the chief zoning official shall issue a certificate of zoning compliance, which certificate must be attached to the application for building permit prior to the issuance of any building permit by the chief building official. 3, Issuance of building permit Upon issuance of a certificate of zoning compliance for the application, the chief building official shall determine if the proposed develop. ment complies with the Uniform Building Code, Upon determination of compliance, the chief building official shall issue a building permit for the proposed development, . ',------ b, c, (Ord, No, 6.1989, ~ 8) EXHIBIT 1 ORDINANCE NO. 7l (Series of 1990) AN ORDINANCE CREATING THE HALLAM LAKE BLUFF ENVIRONMENTALLY SENSITIVE AREA OVERLAY AND ADOPTING DEVELOPMENT REVIEW STANDARDS THEREFOR BY AMENDING CHAPTER 24 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO, AND AMENDING THE OFFICIAL ZONING MAP. WHEREAS, there exists a unique, valuable and fragile nature preserve adjacent to the municipal boundaries of the city of Aspen commonly known as the Aspen Center for Environmental Studies; and WHEREAS, the boundary of the Aspen Center for Environmental studies nature preserve has in excess of sixty-six percent (66%) contiguity with the municipal boundaries of the city of Aspen; and ) WHEREAS, development and development activity within those areas of the city of Aspen immediately surrounding and abutting the Aspen Center for Environmental Studies presents a threat to the physical, ecological and aesthetic integrity and safety of the nature preserve by altering surface runoff and land and slope configuration, increasing or introducing noise, light and air pOllution in the immediate vicinity of the preserve, promoting the destruction of plant and animal habitat, and disturbing and disrupting the delicate balance of existing environmental com- ponents that presently comprise the preserve's ecological pro- file; and WHEREAS, the Aspen Center for Environmental Studies nature preserve provides a valuable and easily accessible scenic retreat I EXHIBIT 2 and study area for the citizens of the city of Aspen and is a great benefit to residents and visitors alike; and WHEREAS, the Planning and Zoning Commission for the City of Aspen has previously conducted public hearings on the creation of a designated environmentally sensitive overlay district encompas- sing those areas within the City adjacent to the nature reserve; and WHEREAS, on or about October 2, 1990, the Planning and Zoning Commission for the city of Aspen approved and adopted the Hallam Lake Bluff Environmentally Sensitive Area Zoning Map Overlay and corresponding development review standards concerning land use and development within such overlay district; and WHEREAS, the Planning and zoning Commission for the city of Aspen has forwarded its approvals and recommendations to the City Council relevant to the adoption of amendments to the municipal land use code and zoning map so as to implement measures protec- tive of the Aspen Center for Environmental Studies nature pre- serve; and WHEREAS, the City Council for the city of Aspen has deter- mined that the public health and welfare will be promoted by the creation of an environmentally sensitive overlay district adjacent to the boundaries of the Aspen Center for Environmental Studies. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: \ 2 section 1 section 3-101, "Definitions as used in this chapter", of Article 3 of Chapter 24 of the Municipal Code of the City of Aspen, Colorado, is hereby amended by adding a new definition, "TOP OF SLOPE", which definition shall read as follows: TOP OF SLOPE means a point or a line connecting at least three (3) points determined by the point of intersection of two 50 foot lines, one line being the level of the existing grade above the slope and the other line being the angle of the existing slope, both lines measured on a site section drawing. section 2 section 5-201 of Division 2, Article 5 of Chapter 24, "Zone Districts, Permitted Uses, Conditional Uses, Dimensional Require- ments", of the Municipal Code of the City of Aspen, Colorado, is \ hereby amended by adding a new provision for minimum side yard setbacks to subsection 5-201.0.5, "Dimensional requirements", setting forth minimum side yard dimensions, which addition shall read as follows: Sec. 5-201.0. Dimensional Requirements. 5. Minimum side yard: [to follow the requirements for lots annexed after 1/1/89.] For purposes of calculating the minimum side yard setback for lots within the Hallam Lake Bluff Environmentally Sensitive Area (ESA) , the area below the top of slope shall be subtracted from lot size. section 3 section 7-40l, "Purpose", of Division 4, "Special Review", of Article 7, Chapter 24 of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: 3 section 7-401. Purpose. The purpose of special review is to ensure site specific review of dimensional requirements (Art. 5, Div. 2), off-street parking requirements (Art. 5, Div. 2 and 3), and all reductions in the dimensions of utility/trash service areas (Art. 5, Div. 2), and any development not at grade within fifteen feet (15') from the top of slope in the Hallam Lake Bluff ESA (Art. 7, oiv. 5), in order to maintain the integrity of the city's zone districts and the compatibility of the proposed development with surrounding land uses. Section 4 section 7-404, "Review Standards for Special Review", of Division 4, "Special Review", of Article 7, Chapter 24 of the Municipal Code of the city of Aspen, Colorado, is hereby amended by adding new subsection "D. Hallam Lake Bluff ESA encroachment into 15' setback from top of slope or height limit", which subsection shall read as follows: \ Sec. 7-404.0. Hallam Lake Bluff ESA encroachment into 15' setback from top of slope or height limit. Whenever a special review is for development above or below grade within the 15' setback from top of slope as identified on a site specific section drawing or above the height limit established by the ESA, the development application shall be approved only if the following conditions have been met: (1) A unique condition exists on the site where strict adherence to the top of slope setback will create an unworkable design problem. (2) Any intrusion into the top of slope setback or height limit is minimized to the greatest extent possible. (3) Other parts of the structure or development on the site are located outside the top of slope setback line or height limit to the greatest extent possible. (4) Landscape treatment is increased to screen the struc- ture or development in the setback from all adjoining properties. ') 4 section 5 section 7-501, "Purpose", of Division 5, "Development In Environmentally Sensitive Areas (ESA)", of Article 7, Chapter 24 of the Municipal Code of the City of Aspen, Colorado, is hereby amended to read as follows: Sec. 7-501. Purpose. Certain land areas within the City are of particular ecological, environmental, architectural or scenic significance and all development within such areas shall be subject to special review procedures and standards as set forth in this Division 5. These areas shall be known as Environmentally Sensitive Areas (ESA) and shall include the following: A. 8040 Greenline. Areas located at or above 8040 feet mean sea level (the 8040 Greenline) and including that area extending 150 feet below the 8040 Greenline. Development in these areas shall be subject to heightened review so as to reduce impacts on the natural watershed and surface runoff, minimize air pollution, reduce the potential for avalanche, unstable slope, rock fall and mud slide, and aid in the transi- tion of agricultural and forestry land uses to urban uses. Review shall further ensure the availability of utilities and access to any development and that disturbance to existing terrain and natural land features be kept to a minimum. B. Stream Margins. Areas located within 100 feet, mea- sured horizontally, from the high water line of the Roaring Fork River and its tributary streams, or within the one hundred year flood plain where it extends 100 feet from the high water line of the Roaring Fork River and its tributary streams, or within a flood hazard area (stream margin). Development in these areas shall be subject to heightened review so as to reduce and prevent property loss by flood while ensuring the natural and unimpeded flow of water courses. Review shall encourage development and land uses that preserve and protect existing water courses as important natural features. C. Mountain View Planes. Designated mountain view planes as set forth in Sec. 7-505 of this Article 7. Develop- ment in these areas shall be subject to heightened review so as to protect mountain views from obstruc- 5 tion, strengthen the environmental and aesthetic character of the city, maintain property values, and enhance the City's tourist industry by maintaining the city's heritage as a mountain community. D. Hallam Lake Bluff. That bluff area running approxi- mately on a north-south axis bordering and/or overlook- ing the Aspen Center for Environmental studies nature preserve and bounded on the east by the 7850 foot mean sea level elevation line and extending lOO feet, measured horizontally, up slope and there terminating, and bounded on the north by the southeast lot line of Lot 7A of the Aspen Company Subdivision, and on the south by the centerline of West Francis street. Development in this area shall be subject to heightened review so as to reduce noise and visual impacts on the nature preserve, protect against slope erosion and landslide, minimize impacts on surface runoff, maintain views to and from the nature preserve, and ensure the aesthetic and historical integrity of Hallam Lake and the nature preserve. Section 6 New section 7-506, "Hallam Lake Bluff Review", is hereby , ) added to Division 5, "Development in Environmentally Sensitive Areas (ESA)", of Article 7 of Chapter 24 of the Municipal Code of the city of Aspen, Colorado, such new section to read as follows: Sec. 7-506. Hallam Lake Bluff Review. A. Applicability. All development in that bluff area running approximately on a north-south axis bordering and/or overlooking the Aspen Center for Environmental studies nature preserve and bounded on the east by the 7850 foot mean sea level elevation line and extending 100 feet, measured horizontally, up slope and there terminating, and bounded on the north by the southeast lot line of Lot 7A of the Aspen Company Subdivision, and on the south by the centerline of West Francis Street, shall be subject to the review standards as set forth in this section. B. Exemption. The exterior expansion, remodeling or reconstruction of an existing structure or development, or the removal of trees or shrubbery, shall be exempt 6 from Hallam Lake Bluff review if the following stan- dards are met. (1) The development takes place more than 30 feet from the top of slope, or the development is obscured from the rear slope by other structures as deter- mined by a site section provided pursuant to review standard C(7) below. C. Hallam Lake Bluff review standards. No development shall be permitted within the Hallam Lake Bluff ESA unless the Commission makes a determination that the proposed development meets all of the following requirements: (1) No development, excavation or fill, other than native vegetation planting, shall take place below the top of slope. (2) All development within the 15' setback from the top of slope shall be at grade. Any proposed development not at grade within the 15' setback must be approved by special review pursuant to Section 7-404D of this Article 7. (3) All development outside the l5' setback from top of slope shall not exceed a height delineated by a line drawn at a 45 degree angle from ground level at the top of slope. Height shall be measured and determined by the Zoning Officer utilizing that definition set forth at section 3-l01 of this Chapter 24. (4) A landscape plan shall be submitted with all development applications. Such plan shall include native vegetative screening of no less than 50 percent of the development as viewed from the rear (slope) of the parcel. All vegetative screening shall be maintained in perpetuity and shall be replaced with the same or comparable material should it die. (5) All exterior lighting shall be low and downcast with no light(s) directed toward the nature preserve or located down the slope. (6) No fill material or debris shall be placed on the face of the slope. Historic drainage patterns and rates must be maintained. Pools or hot tubs cannot be drained down the slope. 7 (7) site sections drawn by a registered architect, landscape architect, or engineer shall be sub- mitted showing all existing and proposed site elements, the top of slope, and pertinent eleva- tions above sea level. section 7 section 7-506, "Procedure for Approval of Development in ESA" , section 7-507, "Application", and section 7-508, "Condi- tions", of Division 5, "Development in Environmentally Sensitive Areas (ESA)", of Article 7 of Chapter 24 of the Municipal Code of the City of Aspen, Colorado, shall be renumbered to read as follows: Sec. 7-507. Procedure for Approval of Development in ESA. Sec. 7-508. Application. ) Sec. 7-509. Conditions. section 8 The Official Zone District Map for the City of Aspen, Colorado, be and is hereby amended to reflect the Hallam Lake Bluff Environmentally Sensitive Area overlay as depicted on Exhibit "A" attached hereto, and such amendment shall be promptly entered thereon in accordance with section 5-103B of Chapter 24 of the Municipal Code. section 9 Any development or proposed development in the Hallam Lake Bluff ESA Overly District not vested in accordance with law prior to the effective date of this ordinance shall comply with the \ / 8 \ terms and provisions of the Hallam Lake Bluff ESA development / standards as adopted pursuant to this ordinance. section lO Except as otherwise provided in section 9 above, this ordinance shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. section II If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such ] J portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section l2 A public hearing on the ordinance shall be held on the ,/ot~ day of ~/ . , 1990, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law the city Council of the city of Aspen on the ~~ day of ~ by , 1990. 7;:;~~ :x: 4~ William L. Stirling, Mayor ) / 9 P.T'.rES'I': .~)~~ Xath;~OCh, City Clerk FINALLY adopted, passed ~ ATTEs'r: Kathryn Koch, city Clerk \ ~ and approved this /'~ day of , 1990. 'l~. ~~. William L. Stirling, Mayor lO \ . \. ..---- .... ...... ..... \ \ Exhibit "A" \ O~ 1) I qC,L '\ " "",,0.' #.,..",-- $<...."'..". ",",;.q. , e' . , , , HALLAM LAKE BLUFF ESA . approximate location of 7850' elevation < .' 100' wide ESA "'. ~MUGG/.E... ~. .' D OOJ)'OW D. ITillIIID -Om]]]] . []]]II] I ..... f!(Hl'~ ST. . . . 00 . ITIWIill ITIlIDllJ' omrnn IIlJIl]] ]]]]] . [[0]]]] ~ illlHIIIlJ []]]]] [O]]JJ]' . .. KAU...W aT. Jill] illWITIJ5 ITIlIDllJ [illjI]] omrno .~ omrrrn. ITIJID]] W [ll]]]]]' [[[]I!]] ~ OIIIDID ~ [II[]]] .~; [[[ill] ~ IJ1IIIID] ~ I ~J;r--~4. ._--:-.Aoo___ -- , , , , . , . , . , - . , I I . . , , , , ~ . I I , I , ,-- ....., tt.ALLAItI W. ILl!:O:CII. :fT. "'~'~.' st~,'\\:" L \ ~ \ ~~ ~ . --,'., .~. .....,.'.. .--'- Sec. 7-1105. Temporary suspension of building permits. A. Whenever the city council or the commission has properly initiated a development application to amend the text of this chapter or the official zone district map, and the commission has, by resolution, recommended to the city council approval of such amendment, , no building permit shall be issued by the chief building official which would be prohibited by ,~he proposed amendment for a period of six (6) months following the date of the commission . recommendation, B. If the city council shall by resolution refuse to further consider the amendment, or if an ordinance adopting the amendment, or an amendment substantially similar to the pro. posed amendment has not been passed on second reading by the city council within six (6) months, any building permit applied for during such period which otherwise conforms to this chapter shall be issued by the chief building official. EXHIBIT 3 r"....'_Q;-. r~::: ':,'::: ~ ....../ i , ! '''-'-f Sec. 1-104. Applicability. A, General applicability, No development of land in the City of Aspen shall be under- taken without prior approval and issuance of a development order under the provisions of this chapter and other applicable laws and regulations. Structures and uses existing after the effective date of this chapter which are inconsistent with the provisions of this chapter shall be permitted only as provided in Article 9 of this chapter, To the extent permitted by state and federal law , this chapter shall apply to all public bodies, districts, and agencies of the federal, state, county, and city government, B. Exceptions, 1. Approved building permit The provisions of this chapter and any amendments hereto shall not affect the validity of any building permit lawfully issued and effective prior to the effective date of this chapter, if the permit does not expire pursuant to the Uniform Building Code, In the event a building permit expires. then all further development shall be in conformance with the requirements of this chapter, 2, Approved final development order, The provisions of this chapter and any amend. ments hereto shall not affect the validity of any final development order lawfully issued and effective prior to the effective date of this chapter, provided that the final development order does not expire pursuant to the provisions of the City of Aspen zoning or subdivision regulations in effect immediately prior to the effective date of this chapter, In the event a deyelopment order expires, then all further development shall be in conformance with the requirements of this chapter, 3. Development applications and building permit applications. The provisions of this chapter and any amendments hereto shall not affect the review of any development application or building permit application lawfully submitted prior to the effective date of this chapter pursuant to the proyisions of the zoning or subdivision regula. tions in effect immediately prior to the effective date of this chapter, If the develop- ment application is approved, it shall remain in effect unless it expires pursuant to the provisions of the zoning or subdivision regulations in effect immediately prior to the effective date of this chapter, In the event the development application is denied or its approval expires, then all further development shall be in conformance with the requirements of this chapter. If the building permit application is denied or expires pursuant to the Uniform Building Code, then all further development shall be in conformance with the requirements of this chapter, , , ) . .--",/> EXHIBIT 4 4, Amendment to final development order, The provisions of this chapter and any amend. ments hereto shall not be applied to any proposed minor amendment to a final development order approved under the prior zoning or subdivision regulations, The proposed minor amendment shall be reviewed pursuant to the zoning or subdivision regulations in effect immediately prior to the date of adoption of this chapter. For the purposes of this subsection, a proposed minor amendment to a development order shall take on the meaning used in this chapter for that type of development order, All other amendments to a final development order approved under the prior zoning or subdivision regulations shall conform to the requirements of this chapter, 5, AppeaL Any person who submits a development application, building permit applica. tion or amendment to a final development order after the effective date of this chapter who believes the terms of this section are unduly harsh or createimpractical or unnecessary hardship may appeal to the council that the application be heard pursuant to the prior zoning or subdivision regulations, Any person who submits a development application or amendment to a final development order prior to the effective date of this chapter but wishes to comply with the terms of this chapter may appeal to the planning director that the application be heard pursuant to these regulations, provided that it shall not be finally approved until the effective date of these regulations, C, Exemptions, Essential services shall be exempted from the terms of this chapter, except for maintenance and business facilities necessary to supply such services, These maintenance and business facilities shall be subject to this chapter, including but not limited to being restricted to the zone districts in which they are allowed as permitted and conditional uses, complying with applicable off-street parking requirements and being subject to the provisions of Article 8, the Growth Management Quota System (GMQS), "\ ) civil Action No. 92 CV 47-1 ~. I~~~ ~I\ ~ ./' DISTRICT COURT, COUNTY OF PITKIN, STATE OF COLORADO DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SUMMARY JUDGMENT RONNIE MARSHALL, Plaintiff, vs. THE CITY OF ASPEN, and the ASPEN PLANNING AND ZONING COMMISSION, Defendants. I. DEFENDANTS' COUNTERCLAIM AND PLAINTIFF'S SECOND CLAIM FOR RELIEF. Defendants' counterclaim as set forth in their previously submitted Answer seeks relief in the form of a mandatory injunc- tion compelling plaintiff to correct, if not remove, the illegal installation of an outdoor deck and hot tub constructed by plaintiff at her residence in violation of building, plumbing, electrical, zoning and land use regulatory provisions of the Aspen Municipal Code. Conversely, plaintiff's Second Claim For Relief, as framed in plaintiff's Complaint, seeks a judicial determination that the defendants are estopped in compelling plaintiff's compliance with the municipal code provisions appli- cable to the deck and hot tub. / / II. UNDISPUTED FACTS 1. In May, 1990, plaintiff constructed an outdoor deck and hot tub in her rear yard at 320 Lake Avenue, Aspen, Colorado. (See, Counterclaim at paragraph 32 and plaintiff's admission in her Reply To Counterclaim, paragraph 1.) 2. Plaintiff constructed her deck and hot tub without having secured a building permit, an electrical permit, a plumb- ing permit, required inspections, zoning approval, and land use development approval. (See, Counterclaim at paragraph 33 and plaintiff's admission in her Reply To Counterclaim, paragraph 1.) 3. On May 31, 1990, plaintiff was issued a "stop work order" by the Aspen/pitkin County Regional Building Department ("Building Department") directing her to cease all work on the deck and hot tub. (See, Counterclaim at paragraph 34 and plain- tiff's admission in her Reply To counterclaim, paragraph 1.) 4. On June 14, 1990, plaintiff made application to the Building Department for a building permit in an attempt to obtain retroactive approval for the deck and hot tub. (See, Counter- claim at paragraph 35 and plaintiff's admission in her Reply To Counterclaim, paragraph 3.) 5. A review of plaintiff's building permit application disclosed that plaintiff had constructed her deck and hot tub into the designated rear-year setback in violation of the appli- cable zoning regulations and, additionally, failed to obtain the necessary development approval for the structure from the Aspen 2 Historic Preservation Committee as required under the municipal land use code. (See, Counterclaim at paragraphs 36 and 37 and plaintiff's admissions in her Reply To Counterclaim, paragraph 1.) 6. At all times relevant to the proceedings as set forth in the pleadings in this action, the Aspen Municipal Code provid- ed as follows in regard to the procedure(s) relevant to securing a building permit for the structure as constructed by plaintiff: a. An application for a building permit shall be submitted to the Chief Building Official along with an improve- ments survey illustrating site conditions and topography. b. The Chief Building Official shall forward the application to the Planning Staff who shall review it to ensure that the proposed development (1) complies with the building code, (2) has obtained all appropriate environmental and utility permits, and (3) complies with all applicable provisions of the municipal land use code. (See, certified copy of section 24-6- 206 of the Aspen Municipal Code, appended hereto as Exhibit 6.) 7. On July 26, 1990, plaintiff initiated the first step precedent to securing a building permit by submitting a minor development application for the deck and hot tub to the Historic Preservation Committee ("HPC") for approval. (See, Counterclaim at paragraph 38 and plaintiff's admission in her Reply To Coun- terclaim, paragraph 1.) 3 8. On August 22, 1990, a meeting was conducted by the HPC to review plaintiff's development application. Approval for plaintiff's deck and hot tub was granted, with conditions. Plaintiff was apprised at this time of the potential adoption of the Hallam Lake Bluff Environmentally sensitive Area ordinance (Ordinance No. 71 (series of 1990)) ("ESA") and its possible application to the plaintiff's development request. (See, counterclaim at paragraph 39 and plaintiff's Reply To Counter- claim at paragraph 4; see also, Memorandum dated August 22, 1990, to the Aspen Historic Preservation Committee at page 1, and Minutes of August 22, 1990, meeting before the HPC at pages 4 and 5, certified copies of which are appended hereto as Exhibit 1.) 9. On March 8, 1991, plaintiff made application to the Aspen Board of Adjustment for a variance to the existing zoning setback regulations. (See, Counterclaim at paragraph 40 and plaintiff's admission in her Reply To Counterclaim, paragraph 5.) 10. On June 6, 1991, the Board of Adjustment conducted a hearing on plaintiff's variance request. (See, Counterclaim at paragraph 40 and plaintiff's admission in her Reply To Counter- claim, paragraph 5.) 11. At the conclusion of the hearing on June 6th, the Board of Appeals granted plaintiff her requested setback variance subject to her compliance with the requirements of the Hallam Lake Bluff ESA ordinance, which had been finally adopted by the city on November 12, 1990. (See, Minutes of City of Aspen Board 4 of Adjustment hearing on June 6, 1991, pages 14 and 15, appended hereto as Exhibit 2.) 12. On October 30, 1991, plaintiff made application to the City of Aspen Planning Department for development approval of her deck and hot tub under Ordinance No. 71 (Series of 1990), the Hallam Lake Bluff Environmentally Sensitive Area development standards ordinance ("Hallam Lake ESA" or "ESA"). (See, Counter- claim at paragraph 44 and plaintiff's admission in her Reply to Counterclaim, paragraph 1.) 13. During hearings conducted by the Aspen Planning and zoning Commission on plaintiff's ESA application, plaintiff conceded that her previously constructed deck and hot tub could not comply with two requirements of the ESA ordinance. (See, certified record ("Record") previously submitted to the Court pursuant to plaintiff's claims under Rule 106(a) (4), C.R.C.P., at page 7, II. 10-25.) 14. On December 21, 1991, the Aspen Planning and zoning Commission denied plaintiff's request for development approval on the grounds that it did not comply with the requirements set forth in the Hallam Lake ESA. That decision was reaffirmed after reconsideration by the Commission on January 21, 1992. (See, Counterclaim at paragraphs 45 and 46 and plaintiff's admission in her Reply To Counterclaim, paragraph 1.) 5 ARGUMENT I. PLAINTIFF'S BUILDING PERMIT AND LAND USE DEVELOPMENT APPLICATION WERE SUBJECT TO THE HALLAM LAKE BLUFF ESA ORDINANCE. Plaintiff's deck and hot tub were "red-tagged" by the Build- ing Department on May 31, 1990. Plaintiff thereafter sought to retroactively legalize the structure. On June 14, 1990, plain- tiff applied for a building permit. In order to properly secure a building permit, plaintiff had to preliminarily secure devel- opment approval from the Aspen Historic Preservation Committee and zoning approval. On July 19, 1990, notice of a public hearing concerning the potential adoption of the Hallam Lake ESA ordinance was published in a local newspaper. (See, Record at page 151.) On July 26, 1990, plaintiff submitted her application to the Aspen Planning Department seeking HPC development approval for her deck and hot tub. (See, Record at page 151.) On July 7, 1990, the Planning and Zoning Commission conducted its first public hearing on the adoption of the Hallam Lake ESA. (Id.) On August 22, 1990, HPC gave its approval for the deck and hot tub. (See, Minutes of Historic Preservation Committee hearing on August 22, 1990, page 6, appended hereto as Exhibit 1.) Plain- tiff was advised at the HPC meeting of the pending adoption of the Hallam Lake ESA ordinance. (Id.) After securing HPC approv- aI, plaintiff applied for zoning approval for the deck and hot tub from the Aspen Board of Adjustment on March 8, 1991. Review of plaintiff's as-built plans for the structure showed that it 6 had been improperly constructed into the rear yard setback, hence, plaintiff needed to secure a variance from the setback requirement. (See, Record at page 152 and Board of Adjustment Development Application dated March 8, 1991, appended hereto in Exhibit 2.) Prior to plaintiff's application for zoning approv- al, the Planning and Zoning commission approved adoption of the Hallam Lake ESA ordinance and forwarded it to city council for final action on October 2, 1991. (See, Record at page 152.) On November 12, 1990, City Council finally adopted the ordinance. (See, Record at page 152 and Exhibit 3, Ordinance No. 71 (Series of 1990), page 10.) On June 6, 1991, the Board of Adjustment conducted a hearing on plaintiff's request for a variance. Two previously scheduled hearings on the subject had been continued at plaintiff's request due to her unavailability. (See, record before the Board of Adjustment dated June 6, 1991, at pages 1 and 6, appended hereto as Exhibit 2.) At the conclusion of the hearing, the Board of Adjustment granted plaintiff a variance conditioned upon her compliance with the Hallam Lake ESA require- ments. (Id., at pages 14 and 15.) After having secured the preliminary HPC and zoning approv- als, plaintiff next applied for ESA approval pursuant to Ordi- nance No. 71 on October 30, 1991. (See, Record at page 152.) As noted previously, ESA approval was denied. Despite having applied for approval under the ordinance, and despite tne fact that her zoning variance was conditioned upon plaintiff's com- 7 plying with the ESA ordinance, plaintiff now contends that the building permit and development approvals should not have been subject to the Hallam Lake ESA regulations. As heretofore described in defendants' Answer Brief submit- ted in response to plaintiff's claims brought pursuant to Rule 106(a)(4), the filing of an application for a building permit, and even the securing of same, does not in itself immunize the permit or permitted activity from changes in applicable zoning and land use regulations. Cline v. city of Boulder, 450 P.2d 335, 338 (Colo. 1969); crittenden v. Hasser, 585 P.2d 928,929 (Colo. App. 1978); Elam v. Albers, 616 P.2d 168, 169 (Colo. App. 1980); C. F. Lytle Co. v. Clark, 491 F.2d 834, 838 (CA10 1974); P-W Investments. Inc. v. citv of Westminster, 655 P.2d 1365, 1372 (Colo. 1982). This is particularly so in situations, like here, wherein the "pending ordinance doctrine" applies. The pending ordinance doctrine provides that a municipality may deny an application for a license or a permit on the basis of a pending ordinance prohibiting the requested use. National Advertisinq Company v. citv and County of Denver, 912 F.2d 405, 412 (CA10 1990), citing Crittenden v. Hasser, 585 P.2d 928, 929 (Colo. App. 1978). The purpose of the doctrine is to protect municipalities from the establishment of non-conforming land uses or structures during consideration of a land use ordinance change. (Id.) The doctrine is subject to two provisos: 8 (1) the municipality cannot unreasonably or arbitrarily refuse or delay issuance of a permit, and (2) the ordinance must be "pend- ing" when the application is denied. "Pending" does not require that the proposal be before city council, but only that the appropriate administrative department of the city be actively pursuing it. National Advertisinq Company, supra, 912 F.2d at 412. The City of Aspen has codified a version of the pending ordinance doctrine in its land use regulations at section 24-7- 1105. (See, Exhibit 4 appended hereto.)' Pursuant thereto, whenever city Councilor the Planning and Zoning commission has properly initiated an amendment to the text of the land use code or official zoning map and the Planning and zoning commission has recommended to city council approval of such amendment, no build- ing permit may thereafter issue for six months which would autho- rize development activity that would be prohibited by the pro- posed amendment. Should the new ordinance not be adopted within six months, the issuance of building permits under the pre- existing ordinances may resume. 'See also section 24-13-102, "Revocation and invalidation of permits. (B) No building permit issued pursuant to this chapter shall remain in force and effect if the use or structure autho- rized shall become non-conforming. ..." See Exhibit 5. 9 In this instance, plaintiff does not dispute the following chronology of events relevant to the application of the pending ordinance doctrine to this case: - May 29, 1990, plaintiff's illegal structure red-tagged. - June 14, 1990, plaintiff applies for building permit. - July 19, 1990, newspaper publication of public notice concerning hearing on Hallam Lake ESA ordinance before the Planning and zoning commission. - August 7, 1990, public hearing on Hallam Lake ESA ordi- nance before the Planning and zoning commission. - October 2, 1990, Planning and Zoning commission gives approval to Hallam Lake ESA ordinance. - October 22, 1990, first reading of Hallam Lake ESA ordi- nance before city Council. - November 12, 1990, final adoption of Hallam Lake ESA ordinance by City council. - March 8, 1991, plaintiff applies for zoning variance to Board of Adjustment concerning pre-existing rear yard setback violation. - June 6, 1991, Board of Adjustment grants plaintiff setback variance subject to her compliance with Hallam Lake ESA regula- tions. - October 30, 1991, plaintiff files for Hallam Lake ESA approvals. 10 - December 17, 1991, Hallam Lake ESA approval denied by the Planning and Zoning Commission, reaffirmed on January 21, 1992. (See, Record at pages 151-152; Ordinance No. 71 (Series of 1990) at Record page 9, section 12; and Minutes of Board of Adjustment hearing, supra. As indicated above, at the times when the Board of Adjust- ment and the Planning and Zoning Commission heard plaintiff's variance and development permit requests, the Hallam Lake ESA had already been fully adopted. Such adoption occurred within six months of the Planning and zoning commission's approval of same. Hence, the Board of Adjustment was correct in conditioning plaintiff's zoning variance upon her compliance with the Hallam Lake ESA and, likewise, the Planning and Zoning commission was correct in requiring that plaintiff's deck and hot tub meet the ESA requirements. See, Service oil Company v. Rhodus, 500 P.2d 807, 813 (Colo. 1972) (unless all of the mandatory conditions of a governing land use regulation are met, a reviewing board has no power to grant a use thereunder). Plaintiff contends that the defendants were and are estopped from requiring her deck and hot tub to comply with the Hallam Lake ESA ordinance standards. In support of her estoppel claim, plaintiff asserts that she has faithfully applied for and ob- tained all of the necessary preliminary approvals requisite to the issuance of a building permit. 11 It is apparent from the record in this case that had plain- tiff's structure met the Hallam Lake ESA requirements, she would not now be protesting the appropriateness of their application to her property. However, in that her request for approval was rejected, she now complains that application of the standards to her deck/hot tub was unfair. She further states that she origi- nally built her deck and hot tub believing it was legal to do so. A municipality may be estopped from taking a position contrary to previous representations reasonably relied upon by a person dealing with the city to his or her detriment. Fueston v. City of Colorado sprinqs, 713 P.2d 1312, 1325 (Colo. App. 1985). Estoppel, however, should not be invoked as freely against a municipality as against an individual and may not be applied where the application would result in or require a violation of law. (Id.) Particularly important to this case is the rule that estoppel is not available to benefit a person who has acted wrongly. (Id.) Plaintiff's problems with her deck and hot tub are solely the result of her own actions and inactions. While she has alleged that she was and is the victim of an unscrupulous con- tractor, there was evidence before the Planning and Zoning Commission to the contrary, i.e., "[Mr. Dyer] said he was in- structed by the applicant not to file for a permit, just build it, just get it done. The applicant [Ms. Marshall] was in a hurry and didn't want to wait the normal period of time that it 12 would take to get a building permit" (Record at page 80, ll. 21- 25); "Mr. Dyer felt in no uncertain terms that Ms. Marshall was aware of building permit requirements and was aware of the consequences of proceeding without a building permit" (Record at page 82, ll. 21-24). Regardless as to who was "at fault" between the plaintiff and her contractor for the illegal construction of the deck/hot tub, the defendants played no role in it.2 Plaintiff also argues that the City's processing of plain- tiff's belated permit requests "vested" her with a right to the issuance of a building permit and the maintenance of the illegal deck and hot tub. (See, Complaint at paragraphs 24-27.) Howev- er, Colorado case law on this subject is uniformly opposed to plaintiff's contention. Cline v. city of Boulder, supra, 450 P.2d at 338; Nopro Company v. Town of Cherrv Hills villaqe, 504 P.2d 345, 349 (Colo. 1973); Madis v. Hiqqinson, 434 P.2d 705, 707 (Colo. 1967). An acceptance of plaintiff's logic and argument on this particular issue would result in the issuance of development permits based solely on the time and financial resources invested in processing a permit application. Contra, Ford Leasinq Devel- opment Company v. Board of County Commissioners, 528 P.2d 237, 2In responding to a question put to plaintiff by the Plan- ning and Zoning commission concerning the status of litigation between plaintiff and her contractor, plaintiff's counsel stated the "she settled for a very, very small part of what was sued for, just to make the litigation go away... At the point where he lowered his demands so that it became economically better for her to pay a small amount of money than go to court. ..." See, Record, page 104, II. 1-17. 13 241 (Colo. 1974); C. F. Lytle Companv v. Clark, supra, 491 F.2d at 838. As a factual matter, plaintiff was advised starting with the HPC approval that the Hallam Lake ESA might impact her effort to retroactively legalize her structure. (See, August 22, 1990, memo to the HPC and meeting minutes relevant to plaintiff's HPC approval, Exhibit 1.) Under the circumstances given herein, it was not reasonable for plaintiff to conclude (1) that application of the ESA to her deck and hot tub would not occur; (2) that procurement of the necessary preliminary approvals would result in the final issuance of a building permit; or (3) that the Planning and Zoning Commission could or would grant her an exemption from the ESA ordinance. Compare, National Advertisinq Company, supra, 912 F.2d at 413. Estoppel does not apply when the actions complained of are the result of the complainant's own actions. C.F. Lytle Company v. Clark, supra. Similarly, a landowner cannot create her own hardship and then require that zoning regulations be changed to meet that hardship. (Id. )3 II. DEFENDANTS ARE ENTITLED TO A MANDATORY INJUNCTION DIRECTING PLAINTIFF TO ABATE THE ILLEGAL DECK AND HOT TUB. Prohibitory and mandatory injunctions may issue to enforce local building and zoning codes. city of Enqlewood v. Kinsley, 3It should be pointed out that the Planning and Zoning Commission might have accommodated the plaintiff's permit request had she been willing to modify her proposal. However, plaintiff did not wish to compromise on the matter in that she claimed it would cost her too much money and result in the deck/hot tub being too close to her house. See, Record at page 8, ll. 10-22. 14 497 P.2d 1004, 1006 (Colo. 1972) (municipalities are not limited to the filing of a complaint in municipal court to enforce zoning regulations, but may also seek injunctive relief); see also, C.R.S. section 31-23-308 (in cases where a building or structure is erected, constructed, or maintained in violation of any municipal ordinance, the proper local authority may institute an action or proceeding to restrain, correct or abate such viola- tion); and section 24-13-103C of the Aspen Municipal Code (City Attorney shall institute injunctive, abatement, or other action to prevent, enjoin, abate or remove a violation of the municipal land use regulation).4 As set forth above, plaintiff's deck and hot tub were con- structed absent building, electrical, plumbing, zoning and land use development permits. Plaintiff's attempt to retroactively secure the necessary land use approvals and permits failed due to the as-built structure's non-compliance with provisions of the municipal land use code. Plaintiff's deck and hot tub are illegal and non-conforming under applicable regulations. Plain- tiff has and continues to refuse to bring her property into com- pliance with the municipal regulations applicable thereto. A mandatory injunction issued pursuant to Rule 65(f) of the Colora- do Rules of civil Procedure is warranted and necessary to secure plaintiff's compliance with the ordinances of the city of Aspen. 4See Exhibit 7 appended hereto. 15 CONCLUSION The summary judgment procedure provided in Rule 56 of the Colorado Rules of civil Procedure permits prompt disposition of actions which lack a genuine issue of material fact. The rule is designed to permit the parties to pierce the formal allegations of the pleadings and save time and expense connected with a trial when, as a matter of law, one party could not prevail. Ginter v. Palmer, 585 P.2d 583, 584 (Colo. 1978). Plaintiff's Second Claim For Relief and Defendant's Counter- claim are appropriately subject to summary judgment in view of the undisputed facts as described herein. Only issues of law remain to be resolved and defendants respectfully submit that the uncontested factual basis as set forth above is sufficient to afford the Court the opportunity to enter summary judgment on both claims. WHEREFORE, defendants pray that the Court grant them summary judgment on their Counterclaim, dismiss plaintiff's Second Claim For Relief, and enter a mandatory injunction directing plaintiff to bring her property into compliance with the governing munici- pal regulations. Defendants reserve their right to brief their entitlement to attorney's fees in this matter as allowed under C.R.S. section 13-17-102. 16 Dated: f-},^G',^~ G--, , 1992. Respectfully submitted, ASPEN CITY ATTORNEY BY--=:;:-{_j vt1 ' ~.,---, Edward M. Caswall, Reg. No. 10435 130 South Galena Street Aspen, Colorado 81611 (303) 920-5055 Counsel for defendants CERTIFICATE OF MAILING I hereby certify that I have mailed a true and accurate copy of the foregoing Memorandum of Points and Authorities in support of summary Judgment by placing same, properly addressed with sufficient postage attached thereto in the united States Mail, this lv'- day of August, 1992, addressed as follows: Andrew V. Hecht, Esq. Robert E. Kendig, Esq. Garfield & Hecht 601 East Hyman Avenue Aspen, Colorado 81611 --:=-> \~/\ f' ). C~-Z4-(j \Y I '~<J~"--/ jc730.2 17 No. 1 No. 2 No. 3 No. 4 No. 5 No. 6 No. 7 ADDENDUM EXHIBITS Historic Preservation Committee Memorandum and Meeting Minutes, August 22, 1990 (6 pages) Record of Board of Adjustment hearing, June 6, 1991 (23 pages) Ordinance No. 71 (Series of 1990) (11 pages) section 24-7-1105, Aspen Municipal Code (1 page) section 24-13-102, Aspen Municipal Code (1 page) section 24-6-206, Aspen Municipal Code (1 page) section 24-13-103, Aspen Municipal Code (1 page) CERTIFICATION This is to certify that the appended photocopies of sections 24-7-1105, 24-6-206, 24-13-102 and 24-13-103 of the Aspen Munici- pal Code, as well as the appended photocopy of Ordinance No. 71 (Series of 1990), are true and accurate copies of said ordinances duly passed and adopted by the city czzu cil of the city of Aspen. . 4W-- . ~. Executed thl.s day of 1992. THE CITY OF ASPEN By John 14 >, B~' 6. Bennett, Mayor ATTEST: ~4~ Kathryn . Koch, City Clerk (SEAL) 2 CERTIFICATION This is to certify that the attached Memorandum to the Aspen Historic Preservation Committee, dated August 22, 1990, from Roxanne Eflin (2 pages), and the Historic Preservation Committee Minutes of August 22, 1990 (4 pages), are true and correct copies of documents maintained by the City Clerk's office for the city of Aspen and constitute, in part, the record of the proceedings before the Aspen Historic Preservation Committee on August 22, 1990, concerning 320 Lake Avenue, Aspen, Colorado. Executed this S day of 4. '"'-t" ..,/1- CITY CLERK , 199J.: I(- , :l/~- .' By' (A7t7c.uE~ ,/ ..-'L<< .1;~~ . fI (SEAL) jc83.4 EXHIBIT 1 /' y . ~. MEMORANDUM ( To: Aspen Historic Preservation Committee From: Roxanne Eflin, Historic Preservation Planner Re: Minor Development: 320 Lake Ave. Date: August 22, 1990 ----------------------------------------------------------------- APPLICANT'S REQUEST: Minor Development approval for the detached spa/deck located to the rear of the residence. LOCATION: 320 Lake Ave., Parcel #1, Marshall Lot Split, Aspen APPLICANT: Ronnie Marshall, represented by James von Brewer PROJECT SUMMARY: This after-the-factapproval is required as the property is a designated landmark. No building permit was applied for in advance of the project, and HPC approval is necessary to bring the project into compliance. ( PROBLEM DISCUSSION: This detached deck/hot tub is not visible from the facade or Lake Avenue, and therefore staff finds that the affects to the character of the parcel and adjacent parcels to be minimal. Our concerns primarily focus on the visual impacts the development has to the historic Hallam Lake area, although Hallam Lake is currently located in the County. This development is a great concern to A.C.E.S. (Hallam Lake). It should be noted that annexation of this area into the City is currently in progress, along with the development of a Hallam Lake Bluff ESA (Environmentally Sensitive Area) designation. Staff recommends increased vegetation around the lake-side edge of the qeck to screen this development from the visual "view plane" of the lake, with the goal of minimizing the visual impacts of new development along this bluff. The landscape plan submitted does not clearly indicate the size and spacing of proposed plantings. The remaining two development review standards, cultural value and architectural integrity, we find to be unaffected by this proposal. ALTERNATIVES: The HPC may consider the following alternatives: 1) Approval subject to the condition vegetation plantings be incorporated deck/hot tub from Hallam Lake. that to additional screen the 2) Table action, allowing the applicant additional time to restudy the proposal. 3) Deny the proposal, finding it to be incompatible with (,. the Development Review Standards. RECOMMENDATION: The Planning Office recommends that the HPC grant Minor Development approval subject to the condition that increased vegetation (i.e. trees, large shrubs) be planted around the lake-side edge of the deck to screen this development, with the goal of minimizing the visual impacts of the new development along the Hallam Lake bluff. A revised, detailed planting plan shall be submitted for staff's approval prior to the signoff of the building permit. memo. hpc'. 320LA ( ( ( < ',"~ , ,. , , Historic Preservation Committee Minutes of August 22, 1990 Bill: It is a southern exposure and there are specific requirements in the city that you do not extend below eight feet and I would say that the width of Boogie's awning is fine. I believe they come ,out about three feet. I would try to align with that and not ibelow 8 feet. 2 1/2 feet wouldn't give them the shade. Georgeann: Whatever Boogie's is he can go that wide because we already have that on an existing street. Charles: As part of the clarification we might say not to exceed Boogies. MOTION: Charles made the motion to approve the minor development of Black Diamond Saloon, 520 E. Cooper, awning proposal as presented with the width not to exceed 3 feet. Any minor adjustments can be signed off by Staff. The existing entrance canopy would be pulled back to al.ign with the facade of the building. Georgeann second with all in favor. Motion carries. (Boogies is an example) 320 LAKE AVENUE, MINOR DEVELOPMENT PARCEL #1, MARSHALL LOT SPLIT Roxanne: This was built without a building permit. It is not visible from the facade. We find that this particular detached development does not effect the facade and the character of the Hallam Lake Proposed district however, concern focuses on the visual impacts that this particular development has on the historic Hallam Lake area. Hallam Lake area is in the process of annexing into the City. Hallam Lake is a very important site to us. We are recommending HPC approve the screened development from the Hallam Lake view plane and that a revised detailed 2lanting plan be sUbmLtt~g for Staff's approval prior to a " ......>",..'.....:...,''',."._",-, building permit. . .... James VonBrewer, representing appl icant: The contractor who built this is from Grand Junction and I am mitigating the situation. I have acquired a landscape contractor's recommendation for this proposal. I visited the site with him and what he has proposed here effectively meets the recommendation for screening requirements in terms of using native vegetation. I had him steak it out and locate the plants. He is ready to put them in subject to what transpires here. Roxanne: The question being does the vegetation proposed screen the development enough all year long. 12 , < ( Historic Preservation Committee Minutes of August ,22, 1990 Bill: If Tom can confirm that the vegetation proposed is native to that area it might help us make a decision. There are 7 junipers 3 to 4 feet wide and 4 to five feet high. There are 5 alpine currents that are 4 feet high and 3 feet wide. There are 15 sea green junipers that are approximately 2 feet high and 3 feet wide. ' James: The sea green juniper will fall over the wall and tend to break it up. ( Tom Cardomen, ACES: I have seen so called native plants turn out not to be native plants even though they do quite well. In this situation it is formal deck and the large and screening is more important to me than being specific to native species. I am working with the lIitanning Office on an,;envil::onmentally !>ensitive, a;tea"~'overlay that .will.proteqt us and,)N"e, are" working with tHe neighbors concerning over development etc. on our bord~rs. We are interested in' 'protecting the, steep bank and screening homes to the extent that 'we are not overwhelmed by the feeling of homes surrounding us but;so that homes are left with views. This deck was one of the important factors with working with P&Z because part of the project was involving moving quite a bit of dirt, 10 yards or more andi was dumped over the hillside and broke our fence. It was irr~trievably placed at the bottom of the hill and we have kinda worked it out but in my mind that has not been worked out satisfactorily. I would hope that we can continue to work as neighbors and that the screening can go in place. Georgeann: When they dug the dirt out' for the hot tub they dumped it over the edge of the bank. Tom: There were allot of rocks etc. and to carry them back up was too much work so we just tried to uncover the grassy hill side and encourage them to come back and pull a lot of the stuff to the bottom of the hill. It needs a little more attention. , i Georgeann: What do you think it needs. Tom: Two guys for .a full day and some seeding and shrubs and a better irrigation system would be, useful. The original contractor agreed that he would screen it and he planted shrubs but they died within a few weeks. Les: Can you see this deck. Tom: It is apparent to us and we are down looking at birds and it is out of character or distracting to look up and see a hot tub in use.. I also feel the owner of the hot tub would feel more comfortable with significant screening. 13 , "; , ( ( j , Historic Preservation Committee Minutes of August 22, 1990 Les: Has there been discussion about cutting down the deck down to lessen the impact. Tom: It would cost more to do that then plant shrubs and keep them heal thy. Two or three cottonwoods at the bottom of our property could be part of the plan so that they have natural irrigation and would help in the plan. Bill: We development structure. It is up to are here to deal with historical compatibility of in an historic district done to this designated We cannot be a policing issue between neighbors. neighbors to work that out. Georgeann: Hallam lake. Historically you wouldn't see a structure here from Hallam lake's view plane is an historic element. Les: If approved do we have any perimeters regarding maintenance of screening or do we have to deal with part of the deck. Tom: 'llhe proposedel}yi,_:!::(;glm~nt,~!.,.;,R!mEl,i."1::i"e:d~,:rea._~9.y',eJ:" ly. requires maintenance of a 75% screen but'that hasn"t-gone through yet. Don: If this is to be approved, concurrent with the approval would we perhaps i require an automatic irrigation system to maintain the growth. Tom: The junipers are 4 feet high and that gets up to the deck height but doesn't ,screen the deck. There is a trade off in that the bigger the tree you plant the slower it grows. Georgeann: The man with the spa puts in screening and if Tom doesn't think it screens it he has to come back and complain to someone. Bill: We don't require any of the other applicants to have to screen the neighbors view and in fact there are numerous people complaining about ,their view being blocked. We have to also protect the applicant. The screening has to be a good attractive development. Georgeann read a letter into the records from Ronnie Marshall dated July 26th: The proposed development reflects and is consistent with the character of the neighborhood. It does not in any way distract from the historical character of the existing residence. Georgeann: I believe our best and most valid approach here is to say although this is in the back of the building it is a fairly 14 , . , ( Historic Preservation Committee Minutes of August 22, 1990 large deck and it does distract from the historical character of the existing residence which can be solved by SOftening and screening it further. Les: If this was proposed now and we had an open hearing and all the neighbors came in and Hallam Lake says this will protrude into our historic visual, we would make them put the deck back and that is what I ,am dealing with. How can we ignore somebody coming in saying tpis is obtrusive to the historical perimeters of Hallam Lake. It ,is within our perimeters to require something reduced. Charles: junipers Possibly and proviqe the applicant could stagger ground cover down the hill. three more Jim: That would be acceptable and the contractor thought this would be acceptabl~. Georgeann: Once it is planted Staff could sign off after viewing it. ( MOTION: Georgeann made the motion that HPC grant minor development approval for 320 Lake Avenue spa/deck subject to the condition that inqreased vegetation be planted along the lake side edge of the deck to screen this development and make it more historically compatible with the building and the buildings around it with the goal of minimizing the visual impacts of the new development along the Hallam Lake bluff. This planting is to be approved in situ by Staff and if need be, more planting will .be put in with Staff's direction and if satisfactory Staff is authorized by HPC to sign off on the building permit. Charles second with all in ..favor except Les. Motion carries. Plans were exhibited and marked for records dated August 21, 1990 as presented by James VonBrewer copy to go to Staff. 15 CERTIFICATION This is to certify that the attached Agenda, with attached documents, including meeting minutes (23 pages), are true and correct copies of documents maintained by the city Clerk's office for the city of Aspen and constitute the record of proceedings before the Aspen Board of Adjustment on June 6, 1991, concerning 320 Lake Avenue, Aspen, Colorado. Executed this tf~ day of (SEAL) jc83.4 ~:-t;- CITY ERK By , 1992. CITY OF ASPEN BOARD OF ADJUSTMENT JUNE 6. 1991 CITY COUNCIL CHAMBERS 4:00 P.M. AGENDA I. CASE #91-3 RONNIE MARSHALL (Continued from April 11, and May 23, 1991) ) If anyone needs packet information on this case please let me know. Jan--920-5063 ) EXHIBIT 2 NOTICE OF PUBLIC HEARING CASE #91-3 RONNIE MARSHALL BEFORE THE CITY OF ASPEN BOARD OF ADJUSTMENT TO ALL PROPERTY OWNERS AFFECTED BY THE REQUESTED ZONING OR USE VARIANCE DESCRIBED BELOW: Pursuant to the Official Code of Aspen of June 25, J.962 , as amended, a public hearing will be held in the council Room, city Hall, Aspen, Colorado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 24, Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: ) Date and Time of Meetinq: Date: Time: April 11, 1991 4:00 p.m. OWner for Variance: ADDellant for Variance: Name: Ronnie Marshall Address: 320 Lake Ave, Aspen, CO. Catherine H. McMahon Garfield & Hecht Location or descriDtion of DroDertv: Lake Avenue, Block 103, Parcel #1, Marshall Lot Split Variance Requested: Property is located in the R-6 zoning category. A deck encroaches into the rear yard setback. Applicant is requesting that 32 inches of the deck which is above 30 inches above natural grade be permitted. (Sect.3-101 Definition-Aspen Land Use Regs.) Permitted projections into yards (A) (5) Uncovered porches, slabs, patios, walks and steps which do not exceed thirty (30) inches above or below natural grade. will aDDlicant be reDresented bv counsel: Yes: X No: I ) The city of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado 8161J. Remo Lavagnino, Chairman Jan Carney Deputy city Clerk f.(J( C/ RECORD OF PROCEEDINGS BOARD OF ADJUSTMENT JUNE 6, 1991 vice Chairman Charlie Paterson called meeting to order at 4:05pm. Answering roll call were Josephine Mann, Anne Austin, Rick Head, Bill Martin and Charlie Paterson. Remo Lavagnino and Ron Erickson were excused. CASE #91-3 RONNIE MARSHALL Charlie read into the record request for variance. record) (attached in Andy Hecht, representative for applicant: The problem is that you see here the 32 inches? That exceeds the limitation in the code which says that that--the problem with the excess height for--the height in excess of 30 inches is that it becomes part of an encroachment into the setback. So any time that you have a height in excess of 30inches for a deck it now counts as an encroachment into the setback. Ronnie encroaches into the setback by 32 inches with this deck. ) The deck is attached to this historic landmark. It went through HPC and through Hallam Lake's consideration when there was planting done and from that perspective it is OK. Your concern of course is that it does encroach into the setback because of the definition and what we would offer as a hardship to you that because of the slope, and the slope falls off very precipitously there, the only other way to get that would be now to cut this off, create a stairway down and then go down into this sensitive vegetation and encroach into Hallam Lake which then if it was on grade it wouldn't count as encroachment into the setback. Charlie: Suppose it was 15 inches above grade? Andy: If it was 15 inches above the grade it would be OK but it doesn't work with this grade. You have to come all the way down here. If this deck is only 8 feet total. So if you cut it, it would only be 5 feet and it wouldn't be useable. At that point you would have to create a new deck of some sort. Anne: It is 8 feet from here-- Andy: All together. Anne: From here-- Andy: Yea. Right. , / Anne: And where these say 5 feet would not be useable. ~ " 1 I i ~ J , ! ~ , , < ~ ~ 1 ~ (\ Andy: It wouldn't be a reasonable size. Charlie: 5 foot 4 inches is just a walkway. She needs a little more than a walkway. Andy: What we would like to do is create a deck that is useable. Rick: Was this plan approved by HPC as part of the permit? Andy: No. This is after the fact. This was built by a contractor named John Dyer. And he drew the pictures--by Bruce an architect but he was not involved with permitting. Dyer went ahead and built this without a permit and unknown to Ronnie and when it was completed it turned out, and I think it was Bill who identified the problem. Bill Drueding, Zoning: No. I just red tagged it. When she did apply for a permit it was discovered that it was in the setback and I red tagged it at that point. Bill Martin: When was it built? Andy: Last summer. Ronnie Marshall: I think it was July or August. ') Charlie: How do you mean it is attached to a historical landmark? Andy: The house is a historical landmark. Ronnie has owned the house for 18 years and has--even before she was told of the historic nature of it she has been very sensitive to that. Josephine: It is the Mitchell house. Andy: It has been preserved and the scale of this is still very much in proportion. It is not something that alarms anybOdy. Rick: It alarmed somebody. Andy: These are pictures from Hallam Lake up to the house with the deck. Martin: Bill, it is interesting that the City didn't force them to remove this if it was built illegally. ) Drueding: Well, as always when people do things illegally to--we give them an opportunity to comply with the law. There is also a remedy here. If you deny this application then we will require they remove the deck. But we give everybody a chance to legitimize and comply with the law as we have been doing all along. Anne: You say that HPC went along with this plan and talked about the vegetation on that. That vegetation looks like it has been there for longer than a year. Andy: There is new vegetation now. short trees coming up? (using pictures) See the Anne: I went out and walked on it. But what I am saying is when did you go to HPC and get their approval? Andy: The planting was done since the HPC approval. Anne: But was this after it was red tagged? Andy: Yes. Anne: Then you went to HPC. Andy: Yes. Anne: And then--but the deck wasn't completed when it was red tagged. Andy: Yes, it was. Anne: It was competed when it was red tagged. ~ Andy: Yes. Anne: Then you went to HPC and they said you have to plant these trees in front of it. Andy: Right. Anne: Why was that allowed to happen if it was in violation of the code? Andy: Which? The planting? Anne: Yes. Andy: The planting is--you can do. Anne: Well, I am trying to figure out the process--the sequence here. OK. The deck is built. Drueding: Right. Anne: Then you are told that you don't have a permit. Andy: Right. Anne: But then don't you have to apply for a permit before you do any more work? So why would they go to HPC and plant trees? ) , Drueding: The scenario is it is red tagged. You back up now and start the process correctly. She applies for a permit. She objects. We tell her she has to go to the Board of Adjustment. Prior to going to the Board of Adjustment you have--because it is historic, you have to get HPC approval. They mentioned the planting. The planting as far as I am concerned is not part of the deck permit. Anne: No. Drueding: So they can plant and do whatever vegetation they want. So in order for it to come to you they have to have prior approval by HPC before they can even come to you. Anne: When did they get that prior approval? ?: November 15th. Anne: Then why does it take them so long to come to us? Drueding: Because it has been postponed how many times? We have been trying to set this--I don't have any control with that. (This is the third meeting set for this hearing. The applicant was not able to attend the first 2 meetings scheduled) } Anne: It just seems to me that vegetation has been there longer than that. Secretary: The first time this was scheduled was April 11th. Anne: So that still makes between the time they found that it was illegal. Isn't there some kind of time limit on it? Drueding: No, there is not. Rick: I am assuming then that the hardship then under which you have requested a variance is that it was built by someone else without-- Andy: Well, the real hardship is the topography. That to get a reasonable deck out there, we are going to have to go down and extend it much farther. The fact that we didn I t know is no excuse. What we are saying is that the deck is not going to go away. 32 inches of the deck might go away and you may have stairs then that go down and create a whole new deck. But it is not going to go away and it is not obtrusive. And if you were out there it is beautiful and I don't think it is-- Anne: If it was done through the normal process and a permit had been applied for before any construction started you would have known that you couldn't do that and therefore you could have done something else. ) Andy: Well, but the something else we are saying-- Anne: Well, it could have been made wider this way. Turned instead of coming out over the cliff here, it could have been made wide this way to make it useable. Charlie: I don't think he could because of the round shape. Anne: But this whole thing he has built without the permit. None of this was here. Charlie: I see what you mean. closer to the house. The whole thing could have been Anne: It could have been designed differently. Andy: It couldn't have been closer to the house. ?: You could have dropped it a foot and it would have then complied. Charlie: The whole thing could have been dropped a foot. Anne: But I don't think saying that the builder didn't get a permit is really a valid excuse. Andy: Well, but we have it there. Anne: Yes, I know it is there. Andy: And we wanted to try and disturb as little vegetation as possible and there is a topography problem there. So we are just aSking for that consideration. Rick: I think what he is saying is if we deny him this variance he will go back and chop off whatever they need to and then create a larger deck than what is actually there. Anne: Well, will they or won't they? We don't know that. There is an item as to whether to show "right" to have that and who says that 5 feet is not useable for this instead of 8 feet. Is that a hardship? Andy: This is 8 feet. From there to here. And we need more deck than just 5 feet. Anne: That is not necessarily their right. Andy: It is not a right. We are not asking for the variance because we want more than 5 feet. We are asking for the variance because in order to get it, we are going to have to go down and disturb vegetation, go close to Hallam Lake and this is a reasonable solution. ) Josephine: Bill, I would like to ask you if this stays the way it is, is it high enough back here off of the ground so that it would need any sort of a railing around it? Drueding: I don't know that. That is a Building Code question. But I assume that is probably correct. If it is more than 30 inches it would probably require a railing which is not there now. Anne: And then that railing would impact. Drueding: When this goes to the Building Dept they probably would require the railing there. Josephine: So that complicates this. Drueding: It sure does. It wasn't shown to HPC that way either. Charlie then read into record the unnecessary hardship written by the applicant's attorney. (Attached in record) Charlie asked if there were any comments from the public. There were none and he closed the public portion of the hearing. Anne: I just want to be clear on one thing. Did HPC say that they approve it as it is with the encroachment and everything. ?: I have a letter. ~ Ronnie: And Hallam Lake approved it. Rick: Would they necessarily approve the railing? Andy: You can't see it but we would obviously have to go back to them with that issue. ?: The railing doesn't fall within the criteria. It is just the horizontal surface. Drueding: The railing falls into the criteria as far as that structure. Rick: I think if we are going to approve this thing it would have to be run by HPC. That is if we 'say "This is OK if they just put a railing up subject to the approval of HPC". Charlie: That is something to do with the Building Dept and HPC and it is out of our hands. Basically we have to stay within what is being asked. This is what we are being asked for. A variance for 32 inches above grade. COMMISSIONER COMMENTS Bill Martin: Everything was done wrong. Done improperly. We make the individual down here on--going out of town take off a foot and a half of a building. , ! . Charlie: Well we have had them take off 6 inches of a building if we have to-or 3 inches. Let me put something out to you that might help. Let's talk what harm or benefit to the neighborhood, to the City of Aspen will one decision make against another. And I think that is the basis that we should kind of put our directional thinking. And let's go from that first and then you can go into other things. Bill Martin: I don't think it does any harm. No one is going to see it. The neighborhood--no one will see it. Hallam Lake--you can't get into Hallam Lake except across the other--200 yards away. Jim Hume's property is adjacent to it. Was this posted? Andy: Yes. Charlie stated there were no letters or telephone calls from the neighbors regarding this variance. And that there was no one present at the previous 2 meetings regarding this variance. Martin: I see no harm in approving this. Anne: Do you see anY,harm in making them conform? ) Martin: I think--it is a judgement factor. I think 5 feet with a railing is OK. 8 feet may be a little bit better. You can put a lounge chair instead of a straight chair. But since it is not interfering with anyone's viewplain or Hallam Lake, I see no--I don't think they should have to tear it down. Anne: Do you think it is a right that they have? Martin: No. I don't think it is a right. I think everything has been done wrong. Rick: I have to agree with Bill in that it is unsettling that this got built without a permit. I have known Ronnie for years and I don't think she would have purposely gone ahead and done something that was illegal. I think that she sends it to the HPC considerations. I do have a problem about stepping off the deck 54 inches off of that. Somebody is going to have a crash. So I would like to see a railing go up if we do approve this. What I am afraid of is that if we deny this we may get something that is more of an impact and less desireable for the neighborhood. I guess I am leaning towards granting the variance. ) Josephine: Well, reluctantly I guess I am leaning towards granting the variance. It is really disconcerting to find that at this stage in 1991 we are getting a case like this where something has been done--if they had just come to us before, we could have worked around in our usual way and we are very helpful to people. We can often make a suggestion that will make something workable. I just feel trapped. I feel that I have to vote for this. Anne: My concern for voting for it is that we are saying "Well, this is here and therefor we should go ahead and approve it because there is not a major impact". That means that everyone who decides to do something illegally thinks that they can get away with it. And I could not vote for this. If they had come to us prior to building this and asked for the variance, we would have worked and looked at what was the most feasible way to do it and we would have granted them the minimum variance. Rick: I know if Remo were sitting here, he would do back flips over this in the way that we are treating this. They have never demonstrated a hardship or practical difficulty. So if there is some way that we can introduce, however feebly, some kind of hardship that we could live with ourselves--because I know he is going to come back and raise holy hell over this one. Josephine: I think my hardship was related to what you said about the uncertainty of what might be done if we deny the variance. Anne: But that is a threat. The odds of it being done are slim if they are talking about the cost of having to remove it. Reducing it down to where you could barely get out of the hot tub without falling off the edge of the cliff-that would be one thing but 5 feet is still enough room around the hot tub. ') Charlie: I have 2 problems here. Some good and bad. One is that it was built before--with out a building permit. Anyway it is bad. We have to make a judgement call I believe whether we think this was done with the intent to try to get something over and outside the purview of the zoning code. We have to make a judgement call on that. The other thing is--creating a precedent has never been something that we can hang our hat on. So we might turn around and say "Well, gee we don't want to create a precedent because other people are going to do the same thing. They are going to go build a illegal stuff and then come back and pretend that they made a mistake". I don't think it is a good thing for us to hang our hat on. We have to judge each case by it's merits. And we have to make a judgement call once more as to whether the applicant had good intentions when they did it and what the intentions really were. We can't go and say "Oh, everybody is going to try to put something over on us and if we grant this now then it is a precedent and that means everybody else can do it". We have to decide whether this was an honest mistake. ) I can understand how a contractor can make a mistake like that-- al though they should know better. But I can see where it can happen. And I can also see where the owner would not be aware of that. You have got a lot of wild land there. It isn't like it is a lot where there is a fence over there and you can measure back. It goes right down a slope into an open area into the trees and it is kind of a situation which is unique. For that reason my opinion on a judgement call would be that I feel the applicant was honest and did not intentionally defraud the City in building this. That would be my judgement call. If I didn't feel like that was the case then I would deny the variance in this case. Anne: Don't you think anyone who has lived in the city for a number of years would know that just by reading the paper and everything would have to get building permits to do anything? Especially on a historic house. They know that HPC always has to approve stuff. Charlie: Do you mean to say that they didn't have a building permit for any of this building? Anne: No. Not at all. Charlie: They had a building permit for the hot tub. Anne: No. My understanding is they didn't have a building permit for any of the hot tub, the deck or anything. Charlie: I see. Anne: But a knows Your observation there is that it was an honest contractor knows that you have to get a permit. that you have to get a permit. mistake. An owner 'I ,I Charlie: Well, it is not like building a building. And I have a different feeling about things that you put out in your yard. You plant a tree you don't ask for a permit for. You build a little deck off your porch, you don't ask for a building permit. You change a doorway a little bit, you don't ask for a building permit. That isn't really a structural--house structural thing. Anne: But if you had an historic house you would know that everything has to have a permit. Charlie: Well, but it went through HPC didn't it? Anne: You can't even paint the thing with their approval. So if you can't do that you ought to know that you can't build anything either. Rick: Did HPC actually review and-- Anne: Not till after it was done. Charlie: Oh, after it was done, HPC said it was OK. Anne: Yea. After it was done. They know before they did it that they really should have. Charlie: Yes, that is something to consider. Drueding: The Planning doesn't have any problem with the way it is as presented and that is why we are here. You see this permit came in under prior to ESA--Hallam Lake ESA adoption. And so we accepted it that way because--but now if this changes that they either go down--they cut it down or they go up with railings, it has to go back to HPC and possibly ESA. I just want you to be aware of that. Anne: What is ESA? Drueding: ESA is--Hallam Lake--last year they adopted a code that says within a certain area along this ridgeline if you do any work or any construction, vegetation--whatever, it has to go through review process through the Planning & zoning commission. Charlie: That was because of the big house that was built in this area. orueding: Yes, you have to have certain dimensions etc. Charlie: To protect that environment. orueding: And this would fall into the area with any changes. Charlie: This was done before that. } Drueding: It was applied for before that and they have been going along through the process with what they have applied for. Anne: But if we deny the variance and they have to cut the back, it wouldn't go before them for anything other than they to put a railing up. Drueding: They may have to do it before they cut it back. construction now other than what they applied for. Charlie: I think that could be cons~dered a hardship. with the new regulations. deck have Any Rick: They would have to go back before that group again? Charlie: Yes. Because anything they touch now basically would have to go before them. I am not talking about HPC. I am talking about the other one. The ESA--Environmentally Sensitive Area So the other thought is what is to be gained by either refusing the variance or granting the variance. That is the other thing we have to weigh. Which one is the most beneficial to the neighborhood, to the sensitive area of Hallam Lake. There were no further member comments. ) Andy: I just wanted to say that Ronnie actually did not know that it was being built without a permit. And that is her statement. ~ It absolutely could have been corrected because the whole thing could have been lowered a foot at the time. So it is not as though somebody built it saying "We won't get a permit because that way we can build it 30 inches above the ground". That was not the intention. Charlie: So it means 2 extra steps and you would have been down one foot and the whole thing would have been conforming. That is a good point. Rick: One more question of Bill. Anything that is built below 30 inches, you don't need to get a permit for? I mean if you are going to build a deck, do you have to get a permit for that? Drueding: If it is above 30 inches, yes. Rick: If it is below 30 inches? You don't need a permit? Drueding: Yes. It is a setback issue. Many people talking at the same time here. Andy: If it is below 30 inches it is a deck that doesn't count as an encroachment. ) Anne: But you still have to have a permit to build it. Drueding: Normally. No. You don't have to have a permit for a deck. Rick: You don't need a permit for a deck. Drueding: Normally. You might need one for HPC or some review there for ESA now. But otherwise it is a' setback thing. More than 30 inches you need it--you know that is not permitted in the setback because fire trucks could come in they would fall way down. And above 30 inches--we will give you 30 inches to go along the grade where you can still walk across. The fire equipment and the view is still there. Andy: It wouldn't need a building permit for below 30 inches. Anne: For a deck. This is a jacuzzi with a wall around it. Andy: That part is not violating anything. Drueding: No because that is within the setback. (reading from code) Uncovered porches, slabs, patios, walks or steps which do not exceed 30 inches above natural grade shall be permitted. Anne: Shall be permitted. It doesn't say that they don't need a building permit. . Drueding: Right. anything less than permit. But another part of the building code says 30 inches above grade doesn't require a building Anne: But here you are building a jacuzzi which goes down more than 30 inches. Drueding: But that part was out of the setback. It was OK. If they tried to put the jacuzzi in the setback they wouldn't have been able to do it. Charlie: I would like to make a calling at this point. If we are having this much trouble understanding something that seems quite simple--imagine what a layman is going through and imagine what a carpenter is going through who is doing something. I think that this is an example. The questions you have asked and here we are, we have done this for years-~12 to 20 years and I am still befuddled when I start looking at this. Can you imagine what--I wish there was a simpler way. ) I know we have to protect the zoning code and I understand that. But it is very difficult. I just got through remodeling my house and I tell you there are so many things to watch--rear yard setbacks and road setbacks. For the layman it is almost a--you give up. You know, give it to your lawyer. It is easv to make a mistake. That is where I am making a judgement call and why I feel positive about this. . Josephine: I want to talk about what our hardship is before we get a motion in. Charlie: That would be something that the person who makes the motion would have to come up with. Andy: One hardship is that the property does falloff dramatically there. The other hardship is simply that it was done without a permit wasn't required because it was below 30 inches and I assume the contractor didn't know otherwise. And there is nothing malicious about this. MOTION Josephine: I move that there will be granted the variance requested on Case #91-3 for 32 inches of deck which is more than 30 inches above the natural grade. I move for approval of this variance because of all of the complicating factors that we have talked about today including the steepness of the slope and the fact that it was built without a permit so that we didn't get a chance to talk about this and work with it in advance. Now it seems like the best way to solve this problem is to grant a variance. . Rick: I would like to expand on that in that they go back and meet the buildings codes with respect to railings and the ESA and HPC for that railing to ascertain if it is appropriate. Josephine amended her motion to include Rick's suggestion regarding the railings. Bill Martin seconded the motion. Roll Call Vote: Bill Martin, yes, Charlie Paterson, yes, Josephine Mann, yes, Rick Head, yes, Anne Austin, no. Variance was granted. Meeting was adjourned. Time was 4:58pm. ) ( \., ~ CITY OF ASPEN BOARD OF ADJUSTMENT DEVELOPMENT APPLICATION DATE March 8 19...2.L CASE # Catherine H. McMahon APPLICANT Garfield & Hecht PHONE Q?5-1936 MAILING ADDRESS 601 "aRt Hyman AvpntlP A~ppn, r.nlnr:1r1n Rlhl1 . OWNER Ronnie MarRhall PHONE 925-5551 MAILING ADDRESS 320 Lake Avenue, Aspen, Colorado, 81611 LOCATION OF PROPERTY Lake Avenue, Block 103. Parcel Ill. Marshall Lot Split (Street, Block Number and Lot Number) WILL YOU BE REPRESENTED BY COUN&? YES-1L- NO_ ======================================================-~--======= Below, describe clearly the proposed variance, including all dimensions: and justification for the variance. (Additional paper may be used if necessary.) The building permit application and any other information you feel is pertinent should accompany this application, and will be made part of this case~ See attached Applicant's signature ~.J If/' ) /~~.J --------------------------------~------~~~~~~~~ REASONS FOR DENIAL OF BUILDING PERMIT, BASED ON THE ASPEN CITY CODE, CIIAPTER 24. AN OPINION CONCERNING THIS VARIANCE~BE - PRE.SENTED ~ ~ BOARD BY THE ZONING DEPARTMENT. STAFF \ ~)t~' ~ \.,') -Q./tcc1:t-rC t/\-- ~ ~~G ~\VvV'''-r\ ccd:A,\ . ~ Cl. c\~ ,. cj'f.~ I ' ,[. .}- ~ -t:-O +l'\ll ,\u Uv,- ,\,\,\ ('!-- s..:-~ bC\L' ~ -' " . f~t-u;> ~t2J I ~ ~~,L""cL~~\~~~~0~ UJLU'~ VJ ~~l.Q/ ~)(. ~Cf\;~O r0~ i qr~ ~ ~utY, (w.1.3-\O\ ~~~- _~~l&x~p; j DATE "trouT P~,ED i,~ ~ WE! OFFICIAL ~2<<L ~ () -i!-I-f If) Jt.-G \{> t 11<-0 ~'lA "f<> ' . . !'t-Q/t/h~U.{^, ~f5ATEI- OF APPLICATION . iV, C\A, [,L, '( l (iY~EARING DATE. ~ --k-'bs lt~ldS( IT y ~ J Ll~,\.u/\,'--ejl4'~\&.?(}l J\l~{ $lcJ';S j ~c:Ct-Q-SJi L-JrJ-!4 -{.. ~r r- :J ~(""~ J:;= ~~. ~}'\~A}~Y C'?JO) ~0 o.~ aL \aJ!1!<J<(\ W '[}:h'vt (Vl G7 ltb. / \ ( \ GAlRfHIElLD & HIECHT, r.c. RONALD GARFIELD'" ANDREW V. HECHT*"- ROBERT E. KENDIG MICHAEL J. HERRON."'''' ATIORNEYS AT LAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN AVENUE ASPEN, COLORADO 81611 TELEPHONE (303) 925-1936 TELECOPIER (303) 925-3008 JANE ELLEN HAMILTON CATHERINE H. McMAHON.... -also admitted 10 New Y OC"k Bar ualsoadmiltcdlO Distrid of Columbia Bar ....lsoadmittedto Florida Bar .....lsoadmiltedto l1liooisBar March 8, 1991 City of Aspen Planning Office Attn: Bill Drueding 130 South Galena Aspen, CO 81611 Re: Development Application for Variance Ronnie Marshall. 320 Lake Avenue, Parcel #1, Marshall Lot split, Aspen Dear Bill: Enclosed please find nine (9) copies of the above-captioned Application, together with a check in the amount of $20.00 to cover the application fee. Nine (9) copies of the list of property owners within a 300-foot radius of the subject property will be delivered to your office on Monday or Tuesday of next week. We would appreciate the setting of a hearing date on the application before the Board of Adjustment on the earliest possible date. Thank you. Sincerely yours, GARFIELD & HECHT, P.C. ~ 17~~J Catherine H. McMahon CHM/bc Enclosures cc: Ronnie Marshall (w/enclosures) James Van Brewer (w/enclosures) ( \ . DEVELOPMENT APPLICATION FOR VARIANCE Applicant's property is a designated historical landmark on which her contractor constructed a spa/deck to the rear of the single-family residence without first obtaining a building permit. Upon subsequent application for a building permit, it was determined that a portion of the deck was more than thirty (30) inches above natural grade and, therefore, a variance was required. On August 22, 1990 Minor Development approval of the spa/deck was granted by the Historic Preservation committee ("HPC"). It found that the cultural value and architectural integrity of the parcel was unaffected by the structure, and that effects of the spa/deck to the character of the parcel and adjacent parcels were minimal. In order to minimize the visual impacts of the spa/deck along the Hallam Lake bluff, the HPC conditioned its approval subject to the planting of additional vegetation along the lakeside edge of the deck. This landscaping has been completed and has been inspected and approved as sufficient by HPC Staff. The additional landscaping on the Hallam Lake side to screen the spa/deck from the visual view plane of the lake has likewise satisfied the concerns of A.C.E.S. The variance sought by this application is for thirty-two (32) inches of the redwood deck that ranges from a minimum of thirty (30) inches above natural grade on the residence side of the spa/deck to a maximum of fifty-four (54) inches above natural grade on the bluff side of the spa/deck. See the drawing attached hereto to illustrate the requested variance. Applicable standards The requested variance should be granted since it meets all of the applicable standards. First, it will be generally consistent with the purposes, goals, objectives, and policies of the Aspen Area Comprehensive Plan and the Land Use Code. Second, the variance is the minimum variance that will make possible the reasonable use of the spa/deck. Only thirty-two (32) inches of the deck is above natural grade and the variance request is restricted to only that portion of the deck that is not in compliance with the Code requirements. The remainder of the spa/deck is in compliance with the Code requirements. Finally, literal interpretation and enforcement of the Code requirements would deprive the Applicant of rights commonly enjoyed by other parcels in the same Zone District and cause the Applicant unnecessary hardship as well as practical difficulty. The fact ( \. that Applicant's property line drops off over the side of the bluff results in a portion of the rear yard being below the natural grade of the remainder of the rear yard -- a special circumstance not applicable to level parcels in the same Zone District and one that is not a result of any action of Applicant. This results in the loss of a considerable portion of the rear yard setback area to Applicant, and strict compliance would limit the placement of the spa/deck amenity. In addition, the granting of the variance will not confer a special privilege denied to other parcels in the same Zone District by the Aspen Area Comprehensive Plan and Code. The unnecessary hardship and practical difficulty imposed on Applicant by a denial of the variance is obvious. She relied on the contractor to obtain the necessary building permit and through no fault on her part learned after the spa/deck was constructed that a portion of the deck was more than thirty (30) inches above natural grade. Moving the entire structure thirty-two (32) inches back would not only be costly, but also would likely result in damage to the bluff that would visually impact the Hallam Lake view plane. Moreover, moving the spa/deck closer to the residence negatively impacts the integrity of the historical structure, a result contrary to the wishes of Applicant and the goals and objectives of the Aspen Area Comprehensive Plan. For all of the foregoing reasons, Applicant's variance request should be granted. Respectfully submitted, GARFIELD & HECHT, P.C. ~~_~,,:;-/ )'/~k---J catherine H. McMahon, attorney for Applicant chm\ms\marshall.app ~ / ! / ~ I ~ I }; ~~I ~~J ~ ?1. \ ,. i \!\ (.-/ .... ~ r 'C ~ I' . '. I ,f : .'1 (., !" ~,' . ' I (} ..'~ ~ . ,. ~6~ 't~ ~1II~ -.s'~~ II;: ii!:I .. I\) ~ ~ Q~ ~~ ~J ~!;~ ~. ~~i ~~"i~ ') ) . NO'l'ICE OF PUDLIC IlEl\RING CASE M9l-) RONNIE Ml\HSIlALL DEForm TilE CITY OF ASPEN DOAHO OF ADJUSTMENT '1'0 ALL PROPERTY OWNEHS AFFECTED BY TIlE HEQUESTED ZONING OR USE VAIUANCE DESCIUUED BELOW: Pursuant to the Official Code of Aspen of June 25, 1962, as amended, a public hearing will be held in the Council Room, city Ilall, Aspen, Color-ado, (or at such other place as the meeting may be then adjourned) to consider an application filed with the said Board of Adjustment requesting authority for variance from the provisions of the Zoning Ordinance, Chapter 21\, Official Code of Aspen. All persons affected by the proposed variance are invited to appear and state their views, protests or objections. If you cannot appear personally at such meeting, you are urged to state your views by letter, particularly if you have objection to such variance, as the Board of Adjustment will give serious consideration to the opinions of surrounding property owners and others affected in deciding whether to grant or deny the request for variance. Particulars of the hearing and requested variance are as follows: Date and ~ime of Meetinq: Date: Time: April 11, 1991 4:00 p.m. Owner for Variance: Appellant for Variance: Name: Honnie Marshall Address: 320 Lake Ave, Aspen, CO. Catherine Il. McMahon Garfield & Hecht I..ocation or description of property: Lake Avenue, Ulock 103, Parcel #1, Marshall Lot Split VariallcC~l:tQ_qug.';J~.m,l.:.. Property is located in the R-6 zonin<j category. A deck encroaches into the rear yard setback. Applicant is requesting that 32 inches of .the declc Which is abov(~ 30 inches allove natural grade be permitted. (Sect.3-101 Definition-Aspen Land Use Hegs.) Permitted projections into yards (1\) (5) Uncov',red porches, slabs, patios, walks and step'; which do not exceed thirty (30) inches above or below natural grade. !'lilJ,-.!\I>!,Ucil.!!!:_hg rCQre~cnted bv counsel: Yes: X No: \ ) The City of Aspen Board of Adjustment 130 South Galena Street, Aspen, Colorado 81611 Remo Lilvagnino, Chairman Jan Carney Deputy city Clerlc EXllllllT "A" ( ~ GAlRf[lElD & HIECHI, r.c. RONALD GARFIELD. ANDREW V. HECHT" ROBERT E. KENDIG MICHAEL J. HERRON... ATfORNEYS AT LAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN AVENUE ASPEN, COLORADO 81611 TELEPHONE (303) 925.1936 TELECOPIER (303) 925.3008 JANE ELLEN HAMILTON CATHERINE H. McMAHON.... ..I$OadminedlO NewVork Bar UlIlsoadminedlO Oistrict of Columbia Bar .UlIlsoadmined10 Aoridll Bar .....lsoadmiuedlo Illinois Bar March 13, 1991 <;~)1 ~ ...... ! city of Aspen Planning Office Attn: Bill Drueding 13 0 South Galena Aspen, CO 81611 .; ~'<~.;--~'r.:J~'~~"';~ Re: Ronnie Marshall 320 Lake Avenue, Parcel ii, Marshall Lot split, Aspen Dear Bill: Pursuant to my letter of March 8, 1991, please find enclosed nine (9) copies of the list of property owners within a 300-foot radius of the above-referenced property. sincerely yours, l?~~H~~~ Catherine H. M_~On 1'1!.- CHM/bc Enclosures \ \ , " GARrKlElD & HIECHT, f.C. RONALD GARFIELD' ANDREW V. HECHT""" ROBERT E. KENDIG MICHAEL 1. HERRON". ATIORNEYS AT LAW VICTORIAN SQUARE BUILDING 6QI EAST HYMAN AVENUE ASPEN, COLORADO 81611 TELEPHONE (303) 925- I 936 TELECOPIER (303) 925-3008 JANE ELLEN HAMILTON CATHERINE H. McMAHON.."" ..1soadminedto New Yark Bar u.lsoldmitted 10 District of Columbia Bar .ualsoadmincdlO AOOda Bar ....alsoldmittedlo Illinois Bar March 18, 1991 HAND DELIVERY city of Aspen Planning Office Attn: Bill Drueding 130 South Galena Aspen, CO 81611 Re: Ronnie Marshall 320 Lake Avenue, Parcel #1, Marshall Lot Split, Aspen Dear Bill: By letter of March 13, 1991, my secretary sent you nine copies of an updated list of property owners within a 300 foot radius of the above-referenced property. Enclosed herewith are nine copies of the list of property owners dated June 12, 1987 .and the list dated November 2, 1987, both of which lists were updated by the list sent you last week. Thank you. Sincerely yours, GARFIELD & HECHT, P.C. ~rr~~ catherine H. McMahon CHM/bc Enclosures ORDINANCE NO. 7l (Series of 1990) AN ORDINANCE CREATING THE HALLAM LAKE BLUFF ENVIRONMENTALLY SENSITIVE AREA OVERLAY AND ADOPTING DEVELOPMENT REVIEW STANDARDS THEREFOR BY AMENDING CHAPTER 24 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO, AND AMENDING THE OFFICIAL ZONING MAP. WHEREAS, there exists a unique, valuable and fragile nature preserve adjacent to the municipal boundaries of the city of Aspen commonly known as the Aspen Center for Environmental Studies; and WHEREAS, the boundary of the Aspen Center for Environmental Studies nature preserve has in excess of sixty-six percent (66%) contiguity with the municipal boundaries of the City of Aspen; and ) WHEREAS, development and development activity within those areas of the City of Aspen immediately surrounding and abutting the Aspen Center for Environmental Studies presents a threat to the physical, ecological and aesthetic integrity and safety of the nature preserve by altering surface runoff and land and slope configuration, increasing or introducing noise, light and air pOllution in the immediate vicinity of the preserve, promoting the destruction of plant and animal habitat, and disturbing and disrupting the delicate balance of existing environmental com- ponents that presently comprise the preserve's ecological pro- file; and WHEREAS, the Aspen Center for Environmental Studies nature preserve provides a valuable and easily accessible scenic retreat ) EXHIBIT 3 and study area for the citizens of the city of Aspen and is a great benefit to residents and visitors alike; and WHEREAS, the Planning and Zoning Commission for the City of Aspen has previously conducted public hearings on the creation of a designated environmentally sensitive overlay district encompas- sing those areas within the City adjacent to the nature reserve; and WHEREAS, on or about October 2, 1990, the Planning and Zoning Commission for the city of Aspen approved and adopted the Hallam Lake Bluff Environmentally Sensitive Area Zoning Map Overlay and corresponding development review standards concerning land use and development within such overlay district; and WHEREAS, the Planning and Zoning Commission for the City of Aspen has forwarded its approvals and recommendations to the City Council relevant to the adoption of amendments to the municipal land use code and zoning map so as to implement measures protec- tive of the Aspen Center for Environmental Studies nature pre- serve; and WHEREAS, the City Council for the city of Aspen has deter- mined that the public health and welfare will be promoted by the creation of an environmentally sensitive overlay district adjacent to the boundaries of the Aspen Center for Environmental Studies. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: \ 2 section 1 section 3-101, "Definitions as used in this chapter", of Article 3 of Chapter 24 of the Municipal Code of the City of Aspen, Colorado, is hereby amended by adding a new definition, "TOP OF SLOPE", which definition shall read as follows: TOP OF SLOPE means a point or a line connecting at least three (3) points determined by the point of intersection of two 50 foot lines, one line being the level of the existing grade above the slope and the other line being the angle of the existing slope, both lines measured on a site section drawing. Section 2 Section 5-201 of Division 2, Article 5 of Chapter 24, "Zone Districts, Permitted Uses, Conditional Uses, Dimensional Require- ments", of the Municipal Code of the City of Aspen, Colorado, is \ hereby amended by adding a new provision for minimum side yard setbacks to subsection 5-201. D. 5, "Dimensional requirements", setting forth minimum side yard dimensions, which addition shall read as follows: Sec; 5-201.0. Dimensional Requirements. 5. Minimum side yard: [to follow the requirements for lots annexed after 1/1/89.] For purposes of calculating the minimum side yard setback for lots within the Hallam Lake Bluff Environmentally Sensitive Area (ESA) , the area below the top of slope shall be subtracted from lot size. Section 3 section 7-401, "Purpose", of Division 4, "Special Review", of Article 7, Chapter 24 of the Municipal Code of the city of Aspen, Colorado, is hereby amended to read as follows: 3 Section 7-40l. Purpose. The purpose of special review is to ensure site specific review of dimensional requirements (Art. 5, Div. 2), off-street parking requirements (Art. 5, Div. 2 and 3), and all reductions in the dimensions of utility/trash service areas (Art. 5, Div. 2), and any development not at grade within fifteen feet (15') from the top of slope in the Hallam Lake Bluff ESA (Art. 7, Div. 5), in order to maintain the integrity of the city's zone districts and the compatibility of the proposed development with surrounding land uses. Section 4 Section 7-404, "Review Standards for Special Review", of Division 4, "Special Review", of Article 7, Chapter 24 of the Municipal Code of the City of Aspen, Colorado, is hereby amended by adding new subsection "D. Hallam Lake Bluff ESA encroachment into 15' setback from top of slope or height limit", which subsection shall read as follows: \ Sec. 7-404.D. Hallam Lake Bluff ESA encroachment into 15' setback from top of slope or height limit. Whenever a special review is for development above or below grade within the 15' setback from top of slope as identified on a site specific section drawing or above the height limit established by the ESA, the development application shall be approved only if the following conditions have been met: (1) A unique condition exists on the site where strict adherence to the top of slope setback will create an unworkable design problem. (2) Any intrusion into the top of slope setback or height limit is minimized to the greatest extent possible. (3) other parts of the structure or development on the site are located outside the top of slope setback line or height limit to the greatest extent possible. (4) Landscape treatment is increased to screen the struc- ture or development in the setback from all adjoining properties. ') 4 section 5 section 7-501, "Purpose", of Division 5, "Development In Environmentally Sensitive Areas (ESA)", of Article 7, Chapter 24 of the Municipal Code of the city of Aspen, Colorado., is hereby amended to read as follows: Sec. 7-501. Purpose. certain land areas within the City are of particular ecological, environmental, architectural or scenic significance and all development within such areas shall be subject to special review procedures and standards as set forth in this Division 5. These areas shall be known as Environmentally Sensitive Areas (ESA) and shall include the following: A. 8040 Greenline. Areas located at or above 8040 feet mean sea level (the 8040 Greenline) and including that area extending 150 feet below the 8040 Greenline. Development in these areas shall be subject to heightened review so as to reduce impacts on the natural watershed and surface runoff, minimize air pollution, reduce the potential for avalanche, unstable slope, rock fall and mud slide, and aid in the transi- tion of agricultural and forestry land uses to urban uses. Review shall further ensure the availability of utilities and access to any development and that disturbance to existing terrain and natural land features be kept to a minimum. B. Stream Margins. Areas located within lOO feet, mea- sured horizontally, from the high water line of the Roaring Fork River and its tributary streams, or within the one hundred year flood plain where it extends lOO feet from the high water line of' the Roaring Fork River and its tributary streams, or within a flood hazard area (stream margin). Development in these areas shall be sUbject to heightened review so as to reduce and prevent pro.perty loss by flood while ensuring the natural and unimpeded flow of water courses. Review shall encourage development and land uses that preserve and protect existing water courses as important natural features. C. Mountain View Planes. Designated mountain view planes as set forth in Sec. 7-505 of this Article 7. Develop- ment in these areas shall be subject to heightened review so as to protect mountain views from obstruc- 5 tion, strengthen the environmental and aesthetic character of the City, maintain property values, and enhance the City's tourist industry by maintaining the city's heritage as a mountain community. D. Hallam Lake Bluff. That bluff area running approxi- mately on a north-south axis bordering and/or overlook- ing the Aspen Center for Environmental Studies nature preserve and bounded on the east by the 7850 foot mean sea level elevation line and extending 100 feet, measured horizontally, up slope and there terminating, and bounded on the north by the southeast lot line of Lot 7A of the Aspen Company SUbdivision, and on the south by the centerline of West Francis Street. Development in this area shall be subject to heightened review so as to reduce noise and visual impacts on the nature preserve, protect against slope erosion and landslide, minimize impacts on surface runoff, maintain views to and from the nature preserve, and ensure the aesthetic and historical integrity of Hallam Lake and the nature preserve. Section 6 New section 7-506, "Hallam Lake Bluff Review", is hereby ) added to Division 5, "Development in Environmentally Sensitive Areas (ESA)", of Article 7 of Chapter 24 of the Municipal Code of the city of Aspen, Colorado, such new section to read as follows: Sec. 7-506. Hallam Lake Bluff Review. A. Applicability. All development in that bluff area running approximately on a north-south axis bordering and/or overlooking the Aspen Center for Environmental Studies nature preserve and bounded on the east by the 7850 foot mean sea level elevation line and extending 100 feet, measured horizontally, up slope and there terminating, and bounded on the north by the southeast lot line of Lot 7A of the Aspen Company Subdivision, and on the south by the centerline of West Francis Street, shall be subject to the review standards as set forth in this section. B. Exemption. The exterior expansion, remodeling or reconstruction of an existing structure or development, or the removal of trees or shrubbery, shall be exempt 6 from Hallam Lake Bluff review if the following stan- dards are met. (1) The development takes place more than 30 feet from the top of slope, or the development is obscured from the rear slope by other structures as deter- mined by a site section provided pursuant to review standard C(7) below. C. Hallam Lake Bluff review standards. No development shall be permitted within the Hallam Lake Bluff ESA unless the Commission makes a determination that the proposed development meets all of the following requirements: (1) No development, excavation or fill, other than native vegetation planting, shall take place below the top of slope. (2) All development within the l5' setback from the top of slope shall be at grade. Any proposed development not at grade within the 15' setback must be approved by special review pursuant to Section 7-404D of this Article 7. (3) All development outside the 15' setback from top of slope shall not exceed a height delineated by a line drawn at a 45 degree angle from ground level at the top of slope. Height shall be measured and determined by the Zoning Officer utilizing that definition set forth at Section 3-101 of this Chapter 24. (4) A landscape plan shall be submitted with all development applications. Such plan shall include native vegetative screening of no less than 50 percent of the development as viewed from the rear (slope) of the parcel. All vegetative screening shall be maintained in perpetuity and shall be replaced with the same or comparable material should it die. (5) All exterior lighting shall be low and downcast with no light(s) directed toward the nature preserve or located down the slope. (6) No fill material or debris shall be placed on the face of the slope. Historic drainage patterns and rates must be maintained. Pools or hot tubs cannot be drained down the slope. 7 ) (7) site sections drawn by a registered architect, landscape architect, or engineer shall be sub- mitted showing all existing and proposed site elements, the top of slope, and pertinent eleva- tions above sea level. section 7 section 7-506, "Procedure for Approval of Development in ESA" , section 7-507, "Application", and section 7-508, "Condi- tions", of Division 5, "Development in Environmentally Sensitive Areas (ESA)", of Article 7 of Chapter 24 of the Municipal Code of the City of Aspen, Colorado, shall be renumbered to read as follows: Sec. 7-507. Procedure for Approval of Development in ESA. Sec. 7-508. Application. ) Sec. 7-509. Conditions. Section 8 The Official Zone District Map for the City of Aspen, Colorado, be and is hereby amended to reflect the Hallam Lake Bluff Environmentally Sensitive Area overlay as depicted on Exhibit "A" attached hereto, and such amendment shall be promptly entered thereon in accordance with Section 5-l03B of Chapter 24 of the Municipal Code. Section 9 Any development or proposed development in the Hallam Lake Bluff ESA Overly District not vested in accordance with law prior to the effective date of this ordinance shall comply with the \ / 8 \ terms and provisions of the Hallam Lake Bluff ESA development ) standards as adopted pursuant to this ordinance. Section 10 Except as otherwise provided in Section 9 above, this ordinance shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 11 If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such \ ) portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 12 A public hearing on the ordinance shall be held on the ,/ot~ ~, . day of , 1990, in the City Council Chambers, Aspen City Hall, Aspen, Colorado-. INTRODUCED, READ AND ORDERED PUBLISHED the city Council ~ of the City of Aspen on the as provided by law o:I;:2.J day of by , 1990. ~- ~ /- --/ - . /' #/-k---. V{, 4 - . William L. Stirling, Mayor ) ; 9 ) . }l.T'~ES'I': ,~xI~. Kathryn!. Koch, City Clerk FINALLY adopted, passed ~ ATTEs'r: Clerk :-h- and approved this ,/~ day of , 1990. 'l~ ~~. William L. Stirling, Mayor 10 , i. ;""....__- .... .... ..... \- D-r&111Q0u, \ \. , \ Exhibit "A" . . .. .,....,..1 .,....."" $(..-004 ,".,.",q-" ",' . , , ..' HALLAM LAKE BLUFF ESA . . .approximate location of 7850' elevation < wide ESA L \ ". \ HALLAM ~~ ..... - .PUB !P---~~ .,.,. . I ,--......--- -- . , , _ . , . I l , , . . . X I I , , I . I ..... \1/. eLf.:l:KCII. :no tt, . Sec. 7-1105. Temporary suspension of building permits. A. Whenever the city council or the commission has properly initiated a development application to amend the text of this chapter or the official zone district map, and the commission has, by resolution, recommended to the city council approval of such amendment, no building permit shall be issued by the chief building official which would be prohibited by the proposed amendment for a period of six (6) months following the date of the commission recommendation. B. If the city council shall by resolution refuse to further consider the amendment, or if an ordinance adopting the amendment, or an amendment substantially similar to the pro- posed amendment has not been passed on second reading by the city council within six (6) months, any building permit applied for during such period which otherwise conforms to this chapter shall be issued by the chief building officiaL EXHIBIT 4 . Sec. 13-102. Revocation and invalidation of permits. A. Building permits issued on materially false information revoked. Any building permit authorized by this chapter, which is issued in reliance upon any materially false statement in the application or in supporting documents or oral statements, is absolutely void as initio and shall be revoked. B. Effect of building permit issued for use that becomes nonconforming. No building permit issued pursuant to this chapter shall remain in force and effect if the use or structure authorized shall become nonconforming. However, if, subsequent to and in reliance upon the issuance of the permit, an applicant has so substantially changed his position or incurred extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights acquired by issuance of the permit, then such permit shall not be invalidated and the approved development shall be allowed to proceed to completion if it is not otherwise unlawfuL EXHIBIT 5 . Sec. 6-206. Certificate of compliance and building permit issuance. A. Initiation. Upon receipt of a development order for a development application required by this chapter for a proposed development, the applicant may proceed to apply for a building permit from the chief building official. B. GeneraL No development shall occur except pursuant to a building permit that is issued pursuant to the terms and procedures of this section. C. Procedure. The following procedure shall apply to the issuance of any building permit. 1. Recordation of conditions of development order. Prior to the submission of an applica- tion for a building permit, all documents required to be submitted as a condition of the development order for which a building permit is requested, shall be recorded. These documents include, but shall not be limited to final plats, any improvements agreement, any other agreements, and any deed restrictions which may have been agreed to in the development order. 2. Submission of application for building permit a. Submission to chief building officiaL An application for building permit shall be submitted to the chief building official. Attached to the application shall be an improvements survey performed within one (1) year of the date of application which the applicant shall certify represents current site conditions and a topo- i graphic survey for the property certified by a registered land surveyor. \, b. Review by planning agency staff. Upon its receipt, the chief building official shall forward the application to the planning agency staff who shall review the appli. cation to ensure that the proposed development: (1) Complies with the Uniform Building Code; (2) Has obtained any appropriate environmental and utility permits. including but not limited to water and sewage permits; and (3) Complies with all relevant portions of this chapter. c. Certificate of zoning compliance. If the planning agency staff determines the proposed development for which an application for a building permit is sought complies with all applicable requirements of this chapter, and with the commit- ments, representations and conditions of the development order, then the chief zoning official shall issue a certificate of zoning compliance, which certificate must be attached to the application for building permit prior to the issuance of any building permit by the chief building officiaL 3. Issuance of building permit Upon issuance of a certificate of zoning compliance for the application, the chief building official shall determine if the proposed develop. ment complies with the Uniform Building Code. Upon determination of compliance, the chief building official shall issue a building permit for the proposed development. (Ord. No. 6.1989, ~ 8) EXHIBIT 6 ( . . Sec. 13-103. Enforcement and remedies. A. Development or use of land in violation of this chapter is unlawfuL The development or maintenance of any structure or the use of any land which is contrary to any provisions of this chapter is declared to be a violation of the laws of the City of Aspen. B. Penalties for violation of this chapter. Any person who violates any provision of this chapter shall be punished by a fine not exceeding three hundred dollars ($300.00) or impris- onment for a period of not more than ninety (90) days, or both such fine and imprisonment, for each offense. Each day any violation of this chapter shall continue shall constitute a separate offense. C. Parties who may enforce violation of this chapter. The city attorney shall institute injunctive, abatement, or other appropriate action to prevent, enjoin, abate or remove a violation of this chapter when it occurs. The same right of action shall also accrue to any property owner who may be especially damaged by any violation of this chapter. D. Not preclude action for compliance. Any penalty provided in this section shall not preclude the City of Aspen or an affected property owner from instituting any appropriate action or proceeding to require compliance with the provisions of this chapter. E. Remedies in addition to others provided by law. All remedies provided for in this section are cumulative, are not exclusive, and shall be in addition to any other remedies provided by law. EXHIBIT 7