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Home My WebLink AboutLand Use Case.155 Lone Pine Rd.A101-98 ",......, ,'-' "" , ' '"..... .,j-~~:~,~~l,~iF:~- .~~p;.~?;.f ,'i.-;':?~i~~q~.~;'~ ~.~ 3~,",' , ~~,~7,:~~r.~.~.R:~'~~ a...i: T:JW':hO::f;!" C:~:~~'''IIJrt,l ~~.~~ ~,*..,:H.~~' PDQ "''''DR')''" I ^"', p.., "^"Q . CA.QET"P'I,-lR'" R-" ". '~.~.":"':~'; ",' ~'.:~'~~'.:'~' ,,:,I,;..':U~. . , ", :,' :'..., ,~. ,....~.:..~ . .' ",.. .' " ;"', '" ..~, , 9W.N,f.l\'el\': ~RI\I'cr 131!J"T Tc'.\'r;;"::; " .iA'QR' 1550 L:'''f) Pine Re!1::!' ',C(SJ2.:' Aspen. CC 8: 51 . ,REf?: V:')"yeh:> A~cri'~ect S:!J,J"O ~)DR: 1.'!10 G.c.1'It 51. Sri) 6: ',CiS/Z: DQi:\'ei. CO e~)2G3 >;:h~:'~~.~~~':~i'" .f ,". '.::<i'fS~~::~.9~bi4t~' ''" "" ., : REF~I':~1 ":,.:.~ .;:','.', .,' ','::'i.~~~i - : ~Yl ,~. .. ':1 .-. ~": ,," ,;... .\ .' ~r-rl"'''.:,,' ,-: ~~,,;:,;.~ii:~!'::':":':;;'''' ", " ":. '1~~j-" ",: ," ..\C'~~:E,',N~t^~()~-&~ , 'p~IiiR:lr.1"Ch 11.,,,, , S.TEfS1 . :P.HNf ' '.'p u"N "IO'Sl P?C.~_C.:~llI'" ':~:' ::::':""'1':':':" : ,,' ....lSlA1':. '. ',...~:" . :" .,\ 'DUE:I' ,,' ,\.' : 'i ::,.,1,.\ I' ',', \".' '..'.,,'. ',' " " ,..., ','. " " 'Rk'MARKSI.""'~h~"'"'' "~r:\s S'S"I:..:a ...,.11".... 3. o"re~ ::. ,I ~~i..::-+ .'.~~. .~. "::".: ", ".":.,', :"." ...,:,,",~'" :", : ,". ',~.~f~q:l~:"<',i9, . \ "~~,I~~,I~.l~.~.n~,~~ .', . ...,.'" 1::-: .", ,,~~~t~~Bf.l~~~ if' . ,.. . : 'PL~TilBii:f.Gir ,.,. .,' ;:. ,,"'r".',. ," , '.'" '. ' , ..' .. :,', ' ,.,":" ".,',: : \ .1:. .', '.10" :': ,: ': ...~' .. .:'.,. ':. . \ ':".. . . :.., \'("., "f : 'i, ' , . ..,...., , "", .,', ,'",.. P4Tl',OI;RNo!-L:ACilqN, 2 "g : .C1TYCQUNCIL: ' "\ ',' ,," :. '.' '" . . ..PZ. ,,' :,,'-' ;:',' ..BOA; ",;:." \:':,~:~::t~r~vc:' ',.' ~ .' ':1. . ',':,";:', r>, ,~. AGENDA DESIGN REVIEW APPEALS COMMITTEE January 7,1999 4:00 p.m. Thursday Regular Meeting City Council Chambers, City Hall I. Roll Call II. MINUTES III. Comments (Committee, Staff and Public) IV. Disclosure of Conflicts of Interest V. New Business A. River Bluff Townhouse Condominium, 155 Lone Pine Road, Units 2, 3, 4, 5, 7, 9,10,11 and 12 - Volume Standard - windows between 9 and 15 feet above the finished floor. VI. Adjourn ~, ,-..., MEMORANDUM TO: The Design Review Appeal Committee THRU: Julie Ann Woods, Community Development Director Mitch Haas, Plannerllnterim Deputy DirectoK River Bluff Townhouse Condominiums (155 Lone Pine Road, Units 2, 3, 4, 5,7, 9, 10, 11, and 12) request for Variances from the "Volume" provision (Section 26,58,040(F)(12)) of the Residential Design Standards FROM: RE: DATE: January 7, 1999 SUMMARY: Pursuant to Chapter 26.58, Residential Design Standards, Section 26.58,020(B), of the Aspen Municipal Code, "an applicant shall prepare an application for review and approval by staff. In order to proceed with additional land use reviews or obtain a Development Order, staff shall find the submitted development application consistent with the Residential Design Guidelines," This Section goes on to state that "if an application is found to be inconsistent with any item of the Residential Design Guidelines the applicant may either amend ,the application or appeal staff's findings to the Design Review Appeal Board [DRAC] pursuant to Chapter 26.22, Design Review Appeal Board" Community Development Department staff reviewed the application to remodel units 2, 3, 4, 5,7,9,10, II, and 12 of the River Bluff Townhouse Condominiums for compliance with the "Residential Design Standards," (see Exhibit A), In staffs review, it was determined that the proposed designs violate the "Volume" standard, Thus, the applicants are requesting a variance from this standard (which is described below) in order to allow for approval of the architectural designs as proposed, The proposed design is, provided in the attached Exhibit A, where Sheet A-3,0 highlights the noncomplying windows, Pursuant to Section 26.22,010 of the code, an appeal for exemption from the Residential Design Standards may be granted if the exception would: (1) yield greater compliance with the Aspen Area Community Plan; (2) more effectively address the issue or problem a given standard or provision responds to; or, (3) be clearly necessary for reasons of fairness related to unusual site specific constraints, Staff is recommending approval of variances, from the Volume prOVISIOn of the Residential Design Standards as it would apply to the proposed remodel of Units 2, 3, 4, 5,7,9,10,11, and 12 of the River Bluff Townhouse Condominiums. APPLICANT: The applying owners include Roger Carl Schultz (Unit 2), Roberta Allen (Unit 3), Frances Ginsburg (Unit 4), Jerome Ginsberg (Unit 5), Joseph Starn (Unit 7), John F. Guiltinan (Unit 9), Mark Richmond and Sam'Shamie (Unit 10), Glenn A. Daly (Unit II), and Alexander G, Kaspar (Unit 12), all of whom are being represented by Y ong Cho, architect, of Studio Completiva, Inc, I ,..-.", ,..-.", Note that the above provided list of applicants includes the owners of nine (9) of the twelve (12) condominium units (75% of the owners), and Section 26,52,040, Initiation of a Development Application, of the Aspen Municipal Code states that "A development application may be initiated by over fifty (50) percent of the owners of real property of a proposed development," Therefore, under the rules governing the City, the applicant is authorized to initiate this development application irrespective of the private agreements entered into by the homeowners under their Condominium Declarations, LOCATION: The River Bluff Townhouse Condominiums (a/k/a Lone Pine Condominiums) are located at 155 Lone Pine Road (described as Lot 2, Lone Pine Subdivision), which is situated north of Gibson Avenue, east of Red Mountain Road, south of Lone Pine Road, and west of the Mocklin Subdivision, The property is zoned R/MF A, Residential Multi-Family, FAR (Floor: Area Ratio): It has been confirmed by the City Zoning Officer that, under the current codes, the River Bluff Townhouses have 2,725.8 square feet of available/unused floor area remaining, With twelve (12) units, this breaks down to approximately 227 square feet of available FAR per unit, assuming the remaining FAR is to be evenly distributed. The proposed remodel would add a total of 114 square feet of floor area to each included unit. With nine (9) units included in the application, the remodel would use 1,026 square feet (9 x 114) of the site's total remaining FAR, leaving 1,699,8 square feet of unused FAR for the site, or 227 square feet of unused FAR for each of the four (4) units not included in this application and 113 square feet of unused FAR for each of the nine (9) units that are included, STAFF COMMENTS: Section 26,58.040(F)(12), Volume The proposed design contains a series of south elevation window groupings (one grouping per unit on Units 2, 3, 4, 5, 7, 9, 10, 11, and 12) where said windows would violate the "Volume" standard (please refer to Exhibit A, Sheet A-3,0), The "volume" standard reads as follows: ji'or the purpose of calculating floor area ratio and allowable floor area for a building or portion thereof whose principal use is residential, a determination shall be made as to its interior plate heights, All areas with an exterior expression of a plate height of greater than ten (10) feet, shall be counted as two (2) squarefeetfor each one (1) square foot of floor area, Exterior expression shall be defined as facade penetrations between nine (9) and twelve (12) feet above the level of the finished fioor, and circular, semi- circular or non-orthogonal fenestration between nine (9) and fifteen (15) feet above the level of the finished fioor, Simply put, as it relates to the subject case, this standard requires that there be no windows (facade penetrations/fenestration) in any areas that lie between nine (9) and twelve (12) feet above the finished floor height of the particular room, and no non-orthogonal windows in 2 ~, ~ any areas that lie between nine (9) and fifteen (15) feet above the finished floor, As Sheet 3,0 of Exhibit A indicates, the proposed design would result in each of the aforementioned units containing approximately 13.5 square feet ((9 x 3) + 2) of triangular-shaped glazing in , areas between 9' and 11' 1 0" above the finished floor height of the second story, Given the lack of compliance with the "volume" standard, the applicants are left with the choice of pursuing one of the following three (3) options, First, the applicants could accept the two-to-one (2:1) floor area penalty for each violating window while ensuring that the entire building, including FAR penalties, would fall within set FAR limitations, Second, they could redesign the proposed remodels such that the new form would comply with the "volume" standard, as well as the rest of the residential design standards, Lastly, the applicants could appeal staffs findings to the Design Review Appeal Board, Rather than accept the floor area penalties (not enough remaining FAR per unit to make this a viable option) or redesign the proposed remodels, the applicants have chosen to seek a variance from the "volume" standard, Consequently, if variances are not granted, the applicant would have to create new designs that would comply with the volume standard, If a variance is to be granted, it must be justified according to one of the three variance criteria outlined above (on page one of this memorandum), According to the proposed revisions to the Residential Design Standards, the purpose/intent of the "Volume" standard "is to ensure that each residential building has street-facing architectural details and elements which provide human scale to the facade, enhance the walking experience, and reinforce local building traditions," Although proposed code amendments do not hold any force in the review of current applications, staff feels this information might be helpful in understanding the issues/concerns that the volume standard attempts to address, Since the proposed design does not yield greater compliance with the Aspen Area Community Plan, if the requested variances are to be justified, it would need to be on the grounds that either the proposed design is necessary for reasons of fairness related to unusual site specific constraints, or the proposed design more effectively provides street-facing architectural details and elements which provide human scale to the facade, enhance the walking experience, and reinforce local building traditions than would a design that meets the exact letter of the "Volume" standard, In terms of site specific constraints, there are no unusual physical conditions (i,e" topography, natural hazards, etc.) where reasons of fairness would dictate that the proposed noncomplying windows must be included in the design, The site is presently developed and has been occupied for a considerable amount of time, Given that the units have been occupied since at least the early 1980s and have proven to be adequately livable, it would be difficult to make the case that there are site specific constraints where the only fair way to develop the site would be with a variance from the Residential Design Standards, The noncomplying windows appear to be included for decorative reasons, and for purposes of maximizing views from and sunlight into the master bedroom suites, Also, the existing roofs above the master bedrooms suites shed snow directly onto the balconies of the suites, and the 3 .. ,-., .~ proposed remodel would eliminate these balconies and redirect snow from the roofs to the sides of the units, Notwithstanding the reasoning behind the proposed design, staff maintains that there are no site specific constraints that make these windows necessary, With regard to effectively providing street-facing architectural details and elements which provide human scale to the facade, enhance the walking experience, and reinforce local building traditions, staff feels the requested variance could be justified on these grounds, The south elevations (subject of the application) face Gibson A venue, which has a sidewalk on its north side, This sidewalk sits roughly 10-15 feet lower in elevation than the base of the River Bluff Townhouses, Nevertheless, staff feels that the proposed remodel would add some architectural relief to the currently somewhat unbroken verticality by injecting new roof angles and glazing, thereby potentially enhancing the walking experience, Since the proposed windows of the townhouses would be set some 25-35 feet higher than the sidewalks, staff feels that whatever human-scale. already exists on the facade would not be adversely affected, Cross gables with glazing in the south-facing gable ends are consistent with local building traditions, Moreover, the proposal could easily be made to comply with the volume standard if the glazing in the gable ends would stop at nine feet above the floor height; however, staff is of the opinion that this would result in a less successful overall design, Based on this consideration and those explained in the preceding paragraph, staff feels the design of the proposed remodel, with the noncomplying windows, should be approved since it more effectively addresses the issue the volume standard responds to. RECOMMENDATION: Staff recommends that the DRAC approve variances from Section 26.58,040(F)(12), Volume, of the Residential Design Standards for the proposed noncomplying windows on the south elevations of Units 2, 3, 4, 5, 7, 9, 10, II, and 12 of the River Bluff Townhouse Condominiums, as indicated in Exhibit A, These variances should be granted based on a finding that the proposed design more effectively addresses the issue or problem the given standard or provision responds to, RECOMMENDED MOTION: "1 move to approve variances from the Volume provision of the Residential Design Standards as it would apply to the proposed remodel of Units 2, 3, 4, 5, 7, 9, 10, 11, and 12 of the River Bluff Townhouse Condominiums, as indicated in Exhibit A. These approvals are based on a finding that the proposed design more effectively addresses the issue or problem the given standard or provision responds to." ATTACHMENTS: Exhibit "A" - Submitted application package c:\home\mitchh\hpc&drac\rivbluff.doc 4 t"'"\ DE,SIGNREVIEW AI.r'EALS COMMISSION r"""^\ January 7.1999 COMMISSIONER. STAFF AND PUBLIC COMMENTS ..................................................................................... 1 CONFLICT OF INTEREST..................................;.................................................................................................... 1 RIVER BLUFF TOWNHOUSE CONDOMINIUMS. 155 LONE PINE ROAD. UNITS #2. 3. 4. S. 7.9. 10. 11 AND 12 - VOLUME STANDARD - WINDOWS.................................................................................................... 1 ;.,;:;:~ HiED MAR 3 1 1999 f'lbrt:.1'oiJr\H\.Il\i ._ COMMUNiTY DiOVlOLO?MEN I 4 .-'~ DESIGN REVIEW l PEALS COMMISSION ,~ January 7.1999 Chairperson Steve Buettow called the Design Review Appeals Commission meeting to order at 4:12 p.m. with members Bob Blaich, Gilbert Sanchez, Roger Moyer and Tim Mooney present. Mary Hirsch was excused. Staff members present were Mitch Haas, Community Development, and Jackie Lothian, Deputy City Clerk. COMMISSIONER. STAFF and PUBLIC COMMENTS Bob Blaich stated there was a list ofDRAC projects and City Council and Community Development were working on the revisions for Ordinance 30. Roger Moyer said the new Community Banks Building street facing wall was only concrete block, not very inspiring architecture, which received comments from the public. He asked for clarification on the approval including brick on street facing walls. Blaich noted the P&Z approval seemed to include brick. Steve Buettow stated that Cap's was all concrete block. Mitch Haas said there were different proposals with different banks, he'll look into the proposal. Buettow asked for DRAC meetings to begin at 5:00 p.m. The members agreed. CONFLICT OF INTEREST None. PUBLIC HEARlNG: RIVER BLUFF TOWNHOUSE CONDOMINIUMS. 155 LONE PINE ROAD. UNITS #2. 3. 4. 5. 7. 9. 10. 11 and 12 - VOLUME STANDARD- WINDOWS Mitch Haas, staff, stated the request was to pop-out the roof, gable and enclose the balcony. The floor height was really about 6' to 7' instead of a 9' difference because of the roof stepping down. He said the staff felt the design as proposed would read as less than nine feet since it would be viewed from below, a very steep hilL Haas noted if the variance requests were not approved, then maybe something other than glazing would be used. The existing balconies filled with snow from the current roof design sloughing or shedding the snow; this design would shed snow to the side and was south facing providing more light. The balcony would no longer exist but become part of the master bedroom floor area. 1 ~. DESIGN REVIEW kEALS COMMISSION 0, January 7.1999 Haas stated the originaLintent of the glazing standard was to preclude the grandiose areas.ofglazing. This glazing did not extend from the first to the second story of living space. Gilbert Sanchez questioned the geometry of the gable form because there were other ways to increase the. height and windows. ,Y ong, architect, replied that from the ideas a more traditional era was being brought oyt to break up the exterior of the facade. He said the overall height of the glazing, through the triangle, wasless than 9 feet. Y ong noted the intent of the ordinance was met. John Girm, public, stated he was the developer of the project as well as a neighbor and resident. He said they were not notified in time to get in on this meeting and probably wanted to be on the next one. Some of the owners have proposed a different cover over the balcony. Ginn provided photos with drawings on them; he respectfully requested the meeting be. tabled so other owners could study the plans and be part of this application. Haas noted the other homeowners were too late to be part of this application. Ginn said the west wall would block the view of one of the units. Jerry Ginsberg stated the issue that Mr. Ginn spoke about was an internal homeowners association issue and not an ordinance 30 issue. Haas stated there couldn't be glazing over 9' above the floor. Tim Mooney noted that if the other unit did not do the remodel then the view would be blocked, but that was an internal issue not a variance concern. Sanchez stated the real purpose of the ordinance 30 issue was the relationship to context; This building has it's own context, not in a neighborhood. He supported the notion of the windows but found the architecture problematic. He felt that the gables diminish from the integrity of the architecture and therefore he could not support the variance request. Buettow agreed the Victorian element did not fit the modem style of the building. Y ong said there could be a more modem approach by using different expressions of details. Buettow noted a volumetric model or other line drawings would have helped the board members understand the architecture. Roger Moyer stated this was a window/glass issue and not a design issue. Sanchez stated these were design issues. Blaich noted from prior meetings, that these discussions had helped applicants re-design better projects. 2 ~ ~ DESIGN REVIEW" _'PEALS COMMISSION January 7.1999 MOTION: Bob Blaich moved to approve the variance from the Volume provision of the Residential Design Standards as it applies to the proposed remodel of Units 2,3,4,5,7,9,10,11 and 12 ofthe River Bluff Townhouse Condominiums, as indicated in Exhibit A. These approvals are based on a finding that the proposed design more effectively addresses tbe issue or problem given standard or provision responds to. Roger Moyer second. Roll call vote: Mooney, yes; Sanchez, no; Moyer, yes; Blaich, yes; Buettow, yes. APPROVED 4-1. Haas noted that next month the other 3 units would be coming before this commission for the same request. Blaich asked why they had to go through the process. again instead of a staff sign-off. Haas noted the city attorney would have to approve this process. MOTION: Tim Mooney recommended the Community Development director treat the future application of the next three units of the River Bluff Townhouse Condominiums as an incidental sign-off knowing the circumstances are exactly the same as to what was approved by DRAC on January 7, 1999. Roger Moyer second. APPROVED 5-0. Meeting adjourned. 3 I"""'" ^ John C. Ginn River Bluff Townhome #6 C/O Interwest Realty 710 East Durant Ave Aspen Colorado 81611 December 29, 1998 Mr, Mitchell Haas City Planning Aspen Co Dear Mitch, As you requested in our telephone call recently, I am enclosing documents and letters from Mr. Leonard Oates, Esq., regarding the issue of bedroom expansions at River Bluff Townhomes, As shown in the enclosed information, several of us take the position that the use of General Common Elements by one or more, but less than all of the homeowners for their own personal use requires the unanimous approval of all the homeowners, In the 1988 expansions approved by the City, all the homeowners agreed to the use of Limited Common Elements appurtenant to each owner's unit for the purpose of expanding the living rooms and master bedrooms. As the drafter of the Condominium Declaration and the project developer, I can emphatically state that it was not our purpose or intention to allow a majority of homeowners to take any General Common Elements for the personal benefit of less than all the owners, The group now claiming they can take General Common Elements to expand their bedrooms without the unanimous approval of all the owners is incorrect in their interpretation of the paragraph they are using to make that claim, Several letters from Mr, Oates address that issue and a settlement with Mr, Ginsberg in 1989 reflect his acknowledgement of that fact. The Declaration describes the method of ownership as being that of tenants in common of the Common Elements. Specifically included in the General Common Elements are the roofs of all the buildings, Any expansion plan that would allow an incursion into the roof or roof structure to make a General Common Element part of that owners unit will need 100% approval from all the tenants in common. As presented in previous requests by this group, their plan will significantly affect the view plane from, and snow slides onto the patios of the neighboring units. In 1988 we were particularly careful to minimize that possibility with the plan approved under ordinance 31, and we would like to suggest that the integrity of that process be considered, We believe the applicants can expand their bedrooms as we did, !""'"\ f-" The Association has accomplished other improvements over the years based on majority votes, Installation of garage doors, a new jacuzzi area, removal of a pond, and extensive landscaping come to mind, All owners benefited from those improvements. There is a clear distinction here because some neighbors will be negatively affected if the bedroom expansions are allowed to take General Common Elements for their own use, Thank you for your consideration, Sincerely, L ~??~ ~o~m C, Ginn ;' 1"""\ /~ River Bluff Townhome Association C/O Arleen Ginn Interwest Realty 710 E. Durant Ave. Aspen CO 81611 RECEIVED DEe 2 4 1996 ; ASPEN I PITKIN CCMP}UNtTY DEVELOPMENT 12/19/98 Mr, Mitchell Haas Community Development City of Aspen 130 South Galena Aspen Colorado 81611 Dear Mitch, In response to your telephone call to me last week, The River Bluff Townhome Association has not approved the suggested bedroom addition recently submitted to the City by Jerome Ginsberg, one of our owners. Mr, Ginsberg represents that owners of seven units consisting of eight people are soliciting approval for a plan to expand their bedrooms in a form different from that approved for our association under City Ordinance 30 of 1991, The association will follow previous procedure for issues of this type, In order to make an informed decision we will require fully dimensioned drawings, a list of suggested materials and sprcifications, and accurate representations currently not available to our members, The association is planning to address this proposed idea in a special meeting of the owners to be called for January 16,1999, Similar proposals have been advanced to the members in the past and for various reasons have been rejected, This new plan will receive our prompt attention at that meeting and we will communicate the results of that meeting to you shortly afterward. Sincerely, ~~ ,t'""'\ ~ RECEIVED ~;I!V 2 3 1998 "",~t:N I PITKIN COMMUNITY DEVELOPMENT MASTER BEDROOM EXPANSIONS OF SELECTED UNITS AT RIVER BLUFF TOWNHOUSE CONDOMINIUMS November 19, 1998 Submitted by Studio Completiva Inc. 1410 Grant Street Suite B 303 Denver, CO 80203 - r--. r-,. ~ SCOPE OF WORK Selected unit owners at River Bluff Townhouse Condo wish to expand there second floor master bedroom which faces south towards Aspen Mountain, Plan: Essentially, the existing master bedroom balcony becomes part of the bedroom, The bedroom expansion to the south is defIned by the south edge of the existing balcony and the west wall (see attached drawings), There are minor modifications to the interior layout that include relocation of the master closet and addition of a fireplace (gas appliance), Total square footage added is 114 sf Elevation: All existing elevations remain as is except for the second floor, south elevation. A donner will be added to the existing sloping roof as shown in drawing A3,O and A3.I, """~"}P ;" ,. ,'-'" ~ I"} RESPONSES TO A TT ACHMENT 2 GENERAL SUBMISSION REQUIREMENTS I. The applicant's name address, and telephone number, contained within a letter signed by the applicant stating the name, address and telephone number of any representative authorized to act on behalf of the applicant. SEE ATTACHED PROOF OF OWNERSHIP SECTION 2. The street address and legal description of the parcel on which the development is proposed to occur, Expansions to bedrooms at selected units are to occur at Lone Pine Condominiums, The address for the River Bluff Townhome Association is: 305 South Galena Street, Suite A, Aspen, Colorado 81611. For individual unit owner's address and legal description see attached improvement survey and disclosure of ownership, 3, Disclosure of ownership of the parcel on which the development is proposed to'occur, consisting of a current certificate from a title insurance company listing the names of all owners of the property, and all mortgages, judgements, liens, easements, contracts and agreements affecting the parcel, and demonstrating the owners' right to apply for the development review, SEE ATTACHED 4, An 8 \1," x II" vicinity map locating the subject parcel within the City of Aspen, SEE ATTACHED ~, ,.-., ~ RESPONSES TO ATTACHMENT 3 GENERAL SUBMISSION REQUIREMENTS 1. Neighborhood block plan at 1"=50' TO BE SUBMITTED 2. Site Plan SEE ATTACHED SURVEY 3. All building elevations, roof and floor plans at 118"= 1'-0" SEE ATTACHED DRAWINGS UNDER SCOPE OF WORK: Typical unit's 2"" floor plans, elevations (south and east) and roof plan, 4, A graphic verification that the project meets or does not meet the "Primary Mass" standard, Information not submitted per direction of officer at Community Development. 5. Photographic panorama, Show elevations of all buildings on both sides ofthe block, including present condition of the subject property, Label photos and mount on a presentation board, TO BE SUBMITTED 6. A written explanation of the requested variance and a discussion of why a variance would be appropriate and would not compromise the intended goals of the "Residential Design Standards," The applicant may provide any offsetting design features that may mitigate impacts of the variance requested, SEE FOLLOWING PAGE ,"""', ..-, . The applicant seeks a variance from an ordinance that pertains to window placements, The current design for the glazing at the dormer does not meet the following: 4, For the purpose of calculating floor area ratio and allowable floor area for a building or portion thereof whose principal use is residential, a determination shall be made as to its interior plate heights, All areas with an exterior expression of a plate height greater than ten (10) feet shall be counted as two (2) square feet for each one (I) square foot of floor area, Exterior expression shall be defined as fayade penetrations between nine (9) and twelve (12) feet above the level of the finished floor and circular, semi-circular or non-orthogonal fenestration between nine (9) and fifteen (15) feet above the level of the finished floor, The current glazing design at second floor bedroom includes fayade penetration between 9 and 12 feet. (shaded area on the south elevation drawing) We believe a variance should be granted based on following considerations I, The window design meets the general intention of the ordinance: The said ordinance regarding glazing placement was adopted to deter overuse of glazing that resulted in aluminum curtains walls/glass structural walls spanning several floors with uninterrupted glazing, Such design detracted from the overall sense of community, place and identifying, aesthetical characteristics of Aspen. Though the design may not meet the ordinance to the letter, we believe it establishes and maintains a building fayade that has a sense of scale, materiality and characteristics that are consistent with the intention ofthe ordinance and the aesthetics concerns of Aspen, 2. Fayade below the glazing: The glazing does not immediately start from the floor plate of the second level. A low wall approximately 2'-11" tall serves as a base for the window areas, thus, minimizing overall glazing sf, If the low wall above the floor plate is subtracted from the height of the glazing, the height of glazing is under 9'-0", 3. Building Location: The condominium complex is not close to other buildings, The complex is hidden, private and well screened from the public and neighbors, The complex is nearly surrounded by roads and landscaping making the units difficult to see from the street or adjacent buildings, Change in glazing will not have a large impact on the immediate area or to the public, Lyeos Road Maps . 1""'-" http://roadmaps.Iyeos.eom:90/egi-biilfmqeustomeonnec .~ L YC /-'S ~.., Help '....! .,. ~ Feeaback ~Dur Personollntprrret GUide = "" '-' .. ~ ~ -- .. --- I J!2ZL.'_ ~~ 0\,8 i!> '(-'';3 Fall nto Savi ,~.I \,Long Distal' 'lIy 9" a~ute.U .~.. I ; .....-0. ;,'> -ROAD MAPS P R I N T ,. :: 0".. 100m 300ft ~ Return To Map Custom Search. TopNews . TOP 5%. City Guide. StockFind PeopleFind . Companies Online. Road Maps. Software . About Lycos . Help Add Your Site to Lyeos . Advertise wnh Lycos. Jobs4You . GTE Yellow Pages. New2Net Lyees Germany. Lycos Sweden. lvcos UK cop~ri'frt@ 1997 Lycos,lne, II Ights Reserved, Lyeos@ is a registered trademark of Carnegie Mellon University Questions.& Comments I erms and conditions lofl llfl8f98 I :54 PM SEP-1el-1998 13:57 .. FROM ASPEN/PITKIN COM DE\) !,,"\, TO 9-131a38399998-090 .~ " 'P.134 \Af.lI'T~ '-- ATTACHMENT 1 LAND use APPUCATtON FORM 1. Project name Be: D(I...oOM ,,.: P,/')N?IO~ @ ~~EIl- 1!l\.'4~F "'\,,\WI\l~O"'S~ c.o~DO. 2. Project location I Ei ~ Lilli":' PI p.jl" 140 A b, lA '" l-r ill 2. (c;. - z.) 12:l!: SLAIl."fO'( Fof/. "&61'1.. O'ES<::/l.lPTIO.-J . (indicate street address; :at and blod<-number or metes and bounds descrtption) p.~ E.(2.. $\.l/l. v e."( ~ 3. Present:z:oning ~M l=A 4. Lotsi%e p~o", Ol'oOWNE.QSf/IP 5. AppHcanfs name. address and phone number ll.b Goe:\!... C.A!2.\.. 5CH 1(1.. Tz.. ISS /..ot-SG. PiNE- /1.0,1."', UrlIT"* 2- A SPJ;::N , <::02>,(,1/ TI'-L,: 310"1'0.,"+2- , . 6. RepreseOtatlve's name..address. and phone number '''10'''(" CI-IO. ARlA-t1 TE(, T STUDIO C()MPrYiTrtfA J uJrH ,+,n ~"'A.N-r s-r I ~/JI"T~ 'P.~t) Z, Dr:.JJ\lr:;:a,. I" n 9>~ '2.0:' 'fe,t..: '3D;. ~'3"1' "1"1"} , 7. Type of application (check allltlat apply): Conditional Use Special Review 8040 Green/ine Stream Margin Subdivision GMQS allotment VieW Plane \.at Split/Lot Une - Adjustment 8. Description of existing uses (number and type of existing structures. approximate sq. ft. number afbedrcoms. any previous approvals gr....Md to the property) ~c.1\ LlwlT \~ Ap~l'IMA1'J:L.1' 1,81>0 SF iHE~ /l.P-E \).. VoIoJI1'!> AT R\\le;~ GlJ,(FF 1:o""~+lo",SE C.ONDoto/l''''Il./MS" 'T\\'€ lASE. ,.,,(1.. TIlli', \~WI1'~ IS RESlt>E.N'nM... iBC-lI I/\Nl'T l'f'l'l~lA",,(''''-'CK 'At-JlT c..\)t.J1PtIN~ '; 8DLM.~ AND .1, ~"THR.eoto'\!=; f,,"E.I/'O\.lj /l.1'f',""v"'I.l'DfL. 1-1'1\"'<' p.,oOM WAS u.AA"'lE1" 111I 1"J'il1 9. Description at development application 5)l.P""W~\t"J of TttE:. ~e.QIL.t:>OM O~ S~c::.o",t) 1>t..00t2- t>. 1ol1;\JJ 06(1.f\.\~'j2... . AwO Mlto.loA.. ""^"II=\r A""t"lO..J 'TD . 't.tJ"'~D...lo12.... ~ED~olM\....A.Y'nlJ..T 111)';1\1'10"''',1.. 5f', ~PI'~XIMATEl,.'f \10 "'1= Concaptual SPA - Final SPA - ConoaptUai PUO - Final PUD - Text/Map Amend. - GMQS exemption - Condominiuln,,",lion V Con~ HPC Final HPC M/norHPC Relocation HPC HistClric Landmark DemalPar1iaJ Demo Design Review Appeal Committee 10. Have you completed and attached the n,Uowing? -II::... Attachment 1- Land use application n,rm ~ Response to Attac:hment 2 ~ Response to Attachment 3 09/10/98 15:16 TX/RX NO.2638 P.004 . SEP-10-1998 13: 57 " F=ROM ASPEN/P ITK IN COM DEV /""., TO 9-13el38399998-el90 ,r-. " 'P.04 \'(N\T 1:1: 5 ATTACHMENT 1 LANO USE APPUCA nON FORM 1. Project name Be:D~1'1 '~PI'lNSle~ ~ ~llIell- &t.-UFF TOWNHO~Se iPNDO 2. Projectlocation 16~ 1,,1J~ PINE: fl.nAt'>. tANI-r1l:5 (UNI1't>.?) , Il.l!: SlAll.lIlS'( l'D~ "'611L. tl'ES':::II.IP-rIO~ (indicate street address~ :ot and I:llod<'number or metes and counds description) ~e.(l.. ~14/1.YE1' ~ 3. Presentzoning RMI=A 4. Lctsize PI!.DQF OF-OWHE.12SIlIP 5. Applicant's name. addrli!SS and phone number SEjl.DME. GIIJ,&etl-(:. IS!) l..c~E'. PINE. fl.olooP, I4rllT-tI: 5 , A$Pr::N, '-0 e./(,ll , , TEL.: 2.1'2.'''''''''l-'z.'l,.2.2.- S. Represeimmve's name. 'address. and phone number "<ONr.. [;1-10, AIl.Lkt'Te6 T STUDIO (..tJMP(PJTF\J~ I J"tr~. '+'n /-.a..f\I\I'T S,.. l <JJ.I"'J:' lZ. ';;D ~.. f')r:.JJ\/~O ) /0 9>D ZO ~ TE.,I-: -;o~, %'>'1 . 't"l'\ 1- 7. Type of application (check all that apply): - ConcsptUal SPA - Final SPA ConoaptUal PUO - Final PUD - Text/Map Amend. GMQS exemption - . CondominluII'Walion V- - Conoaptuai HPC Final HPC Minar HPC Reiocaticn HPC Hlstcric Landmark DemaJPsrtial Demo Design Review Appeal Committee - Conditional Use Special Review 8040 Greentine Stream Margin Subdivision GMQS allotment View Plane I.ot Split/Lot Une . Adjustment 8. Description at existing uses (number and type of exfsting structures, approximate sq. ft. nurnberafbedrcoms. any previous approvals ~lao.1ed to the property) 101-(,1\ lUllT 1 ~ Ar~)(IMA,e.L-1' 11 Soe SF 'THEf-a. AJl-.E I:l- u,.,J 1,$ A r ll.IV~A. eu.u:F 'To......14o\A.SE C;ONDc I'IIN\\.{,^ So . -r\.l..:: \,tSE. 'Filip.. Tlllii \J.lJl"!"& IS RoESlt>e.N't:IA.I... E'Bc.H "'Nl'! 1'1'f'IUt<IoVY ["Clot \\IJIT <.o~"'I~.$ ? BDLM!: AND ,. l?o"'TMR.oot'\~ t'~e.';IOI.\S i'ofPfJ>v"\,, pcll- I-I'IIN(" p.ooM. WAf> (i,AANl6'P IN 1">111 9. Description of development apprlCatlon ' IS~P"""'!.ll1tJ of Tlii:. ~e.Q\u>ol"'\ ON SEGol'4t> l"l.-oOlL t>. ~ OOll-fV.'alZ- , Awp MINol2- MflDIt=1" A'1"lOt-J "Tn 1:.sJT~R..1012.... ~EDLoD",,^ LA"I""uI All?l"!"! oN p, \. SF-: ~PPI'oXIMA,,(,ISl,."{ \ I 0 c;.F - 10. Have you completed and attached ttle fcllcwing1 ..X- Attachment 1- Land use application form ~ Response to Attachment 2 L. Response to Attachment 3 09/10/98 15:16 TX/RX NO.2638 P.004 . ~r-J.~l'="='~ 13:57 FROM ASPEN/PITkIN COM DEV I""" TO 9-13l338399998-090' P.la4 ,-' Uf..)IT~ -, ATTACHMENT 1 LAND USE APPUCA nON FORM 1. Prnjectname Be:D~"" ";<:?t"lN$IOt-l~'141\JE~ $W\Of "Towt-lKO\.LSi:. l..o>JDtl 2. PrnjeCt location IGG (,,111=. PIN;;: ~Af) i tAN I" il: 1 ( /ANI:( D~ 5) 1Z.l!: SlAI!.V",y t=o~ ..U"AI.. I;I;;S<:f/.,PTlo1J (indicate street aadress; :or and blocX'number or meres and bounds descrtption) p.~U s,\.UZ.V eo '( ~ 3. Present zoning RM 1= A 4. Lot Size PltDof 01' OWNE.C2 Sf/I P 5. Applicanfs name. address and phone number :10 Gl<PI-\ S-rAP-N rss l-o/$G- PiNE- p.oAoP, /ArJIT.... 1 .. A!i~N, LO ~,(PII TEl.: "10- :aC;..oSz.:: 6. Represei-rtative's name. address. and phone number 'toNb &HO, A1l.L-H I TE(., T STt.(DIO ~MP{.J.:;rf\/A IMr~. ,+,n /...~At\lT ~.,. I <,1ITP:: a "'t)~ f'),:JJ\lJ:;O r () 9>D 2.0 ~ , ' 'fE.l-' "''3 . 3~ . "1'\'\ l' 7. Type of application (check all that apply): - Concsptual SPA - Final SPA - Conceptual PUD Final PUD - Text/Map Amend. GMQS exemption - . Condominluu~lion-;::" Con~ HPC Final HPC MinorHPC Reicc:aticn HPC HlstCric Lsnamart< OemaJPartial Demo Design Review Appeal Committee Conditional Use Special Review 8040 Greentine Stream Margin Subdivision GMQS allotment VieW Plane Lot Split/Lot lJne . Adjustment - 8. Description of existing uses (number and type of existing ~ approximate sq. ft. number cfbedrccms. arry previous approvals g'ctllied to the property) ~l:1\ LlttlT I!> AP~lCIM...,.eL.'( I, 1100 SF THE(l..E. A.\l-E 1:>- uIJI1'''' AT RIIII!!!.A- I!oWFF lo...toll4ol'SE co~t>Of'I\\l-I\tAMS., -r1.\'C \A.~e.. 'F"11- TilE. \U'JI1'~ I ~ ~E~lt>E.Ntl~\-. 119c.H \1\10111 1~ PIc.AIIV"( ''''M. \\t-Jl'r c..a..."PtlflJ5,; BDf-N. ~ AHD ~ Q."TWR.colo"\.~ t'I"oE.vtoI.lS "'f'f'~v,.I."'''' l.,v,p.((, p.ooM WAft C'.AAN1EP IN 1")~1 9. Description of develOPment application ' =)l.l".AW$ltltJ of' Tl\E> 'Oe.tl~t?M ON &1O.C.OM,\:) lO{..oolL pi ~1Al t)6l'-I\.\'c!L . AND .M1Jo,lOt2.. 1\I11'1DI;::1' A'TlOL1 To "l.iJTI!r.IZJ."t2......~EDlU)otM \..A.,-'nuT 1\1)9'1" oN A l- 5F-', ft,PPraoKIMA'l'6\..'1 \, 0 ."f 10. Have you completed and a11ached the fcllcwlng? ~ Attachment 1- Land use application farm .J:::::. Response to Attachrnent 2 ~ Response to Attachment 3 09/10/98 15:16 TX/RX NO.2638 P.004 . .- .JJO ''''57 FROI1 ASPEN/pItkIN COM DE\) /","" TO 9-13B3a399998-090 'P.04 ~, V\f-JIT o:It1 ATTACHMENT 1 LAND use APPUCATJON FORM 1. Project name Be: Dll-oofolt li:":: P.'lNSION C), P.1\lE.\l.. \!OW"'''" ,owtJl-\o"'SE- c.o~oo 2. Projectlocatian IS!; r."JJ:::' PIN!:' IZ.nAb( IANI-r.. "\ (.l.ll'lIT.O-,.) ~: SUR"'!'"/' !'oll. "';{pA\.. ~lOSC.ILIP'TIO~ (indicate street aadress; :at and blod<'number or metes and bounds descriPtion) p.~ e.l2- Soul/. v e. "( ~ 3. Present zoning ~M r=A 4. Lotsiz:e PlZ.Dcf "F- OWN.:C2S//IP 5. Applicanfs name. address and phone nurtlber JOliN t=:. ~"'I\..l\ ~ ....N 15& '-oNE;. PiNE- p.o~P, urllT#: 9 I A$~N. c.o Bt(,lI n....: 'l"r'l.t><!-o.9SI+ 6. RepreseOtatlve's name. address. and phone number '(ONr, C:HO. ARtM I Tec.. T STlADtO t:c)MPLE"T"t\/l1. I~VH 'f'n /..Q.'\t-JT ~-r I OlITJ=" lZ. ~t) %,r.,':JJ\lr::a2} /.0 9>" 2.0;' 'fE.1.: -; 0 ? n'l' <!"\"t r 7. Type of application (check all tl'lat apply): Conditional Use Special Review 8040 Greenffne Stream Margin Subdivision GMQS allotment View Plane Lot Split/Lot Wne . Adjustment a. Description of existing uses (number and type of exlsDn; structW'1!S. approximate sq. ft. number of bedrooms. any previous approvals \I......ted to the property) ""'It ll>UT I ~ APPft.DlCIMA1'61,.'( I, 8"" SF iHEf-E ~P-E: 1'- 1.4>.1\1'$ AT ~\Il~ toWFF Low"l-loILSE 'oNDOr/l11I11lAIooIS. 'TI\€ I.lse.. 1"Dll- Tllli, \.lNIT~ I <5 ~E"lc>e."''tll-\'-. iBC-l\ IAtJl"T 1't"PIUlr~Y ,,,"eM. \\JlJlT c.."t.J1AIN~; a"e...M~ ANt) ~ ~"-rJ.lR.oot-'\s fl'-e,\IIO,",' Al'Pf.O""'- fDp.. 1-1\111'1(, p..ooM WAf> Go/l.ANllil:' IN 1'!>1l1 9. O~;ptlon at deveIopmertt applic:atlo,n lS,.,r....N>\1;ltJ 01" -nle. ~e.Ql!,.Ool"t ON S1:.C.OM,t) ~Wl~ t>. ~ 00(1..(1.\\:.12- AWD MU.&ol2.. MnDI~tr A"-lOtJ "To "l:JJ"t:'''It)~ ~e.DI!..bDIM \..Av:"'Jf 1\l)l)ITloNA~ 5"". "Pl'f2,oKIMA'l'Sl.-"1 \\0 c;,~ - Conc:sptual SPA - Final S?A Conceptual PUO _ Final PUO - Text/Map Amend. - GMQS exemption . Condominlutrl~n V - ConcsptuaJ HPC Mnal HPC Minor HFC Reiocation HPC Hlstcric l.andmark CemaJPsttial Demo Design Review Appeal Committee - 10. Have you completed and attached the foRewing? -X- Attachment 1- Land use ~pllcation fcrm L.. Response to Attacll.llel1t 2 L.. Response to Attachment 3 09/10/98 15:16 TX/RX NO.2638 P,004 . d__ "~.",r FROM ~SPEN/pIi"kIN CIJM DEv 1'*\ TO i~ 9-13e38399998-090 'P.04 (,(1'11,.....10 ATTACHMENT 1 LAND USE APPUCATlON FORM 1. Project name BE D~1I1 1;:;1; PI'lN %, I-l ~ &lVEIilD> iMFF 'TOWN 110 LUI~. C9t.1OQ 2. Projectlocation l!li~ L"AIl::'. PIN'" R.n,,!,>, IAN11.10 (LlN',IO-\) . 12.e: SUR.IlIi!'( FoR. """,1'11. OltSC~lP-rI"tJ (indicate street aadress; :ot and bloclorumber or meres and bounds descliption) Nf~ Sol.l(l.ve:( ~ 3. Present zoning RM l=A 4. Lot$ize Pll.Pcf 0;10 OWNE.C25HIP 5. Applicant's name. address and phone number M~ P-1U\\"\0 1'40 rss (..ot-le:. PINE- f1.o""P, IANIT-#: \10 , AS~N, GO ~1(Ptl ,6.1.=101;'052,;.1DO%' ., - 6. Represe!rtative's name..address. and phone number -(ONt, ~HO. ARtkl''Te{" T STtA.DrO l:CMPLFJTtl./A I ,...lrH 't',n ~a..At<J.,.. ST, "'lITJ::" 1Z. o;;~ 2., f")~.JJ.\Jr:;Q) r f) ~o 'Z,.() ~ -re,L.: 'Jo,? Sl'f. "I~'l-:r 7. Type of application (check a/l that apply): Conditional Use Special Review 8040 Greenline Stream Margin Subdivision GMQS allotment VieW Plane I.ot Split/Lot Une . Adjustment 8. Oesctiption of existing uses (number and type of existing stn:ctures. approximate sq. ft. number ofbedrcoms. any previous approvals gt....1led to the property) ll,Lc.1\ ll\l.IT l ~ Apl'&fitDlClMA1'el-ol' 1, So" SP l'KE'-E. A.I'-E t:l- ur-lIiSo AT RlvEIA- ~I.MFF 'Tow~~o""SE c:oNOo"'It.1IUr-lS,. -r'.\"e lASE. 'Foil-- T~f.. IlwI"fS I S ~Et,lt>E.~'n~\... Ei9c.t\ IIIlJI1 1"lPIc.AIA.l( '''''CK ,^NlT C.~toJ1PdN5 ?t8nl..M~ AHO 1, m~THR.ooI"'\S fl'-E.vU'I.lS ~'lf>""v"'l. I'D'" I-IV\NGo lUOIlo\ WAft GoAANTEQ IN \"HI1 9. Description at development appfJCatl~ e;)C.f'AN~\ON o~ "{"I'llii:. ~e.P\LoOOM ON S15-CON.t) ~L-oolZ..f>.'14'EWOOll.M~12- . AWD, MI~o~ Mn"I~\r A"1"lOtoJ TD 1:.lJ"~D...loQ... ~ED~OlM \.AY"IJT /lOOI'Tlol-I AI- 5F-: "PP~XI"';\T5l-'1 1\0 Sf - Conc:sptual SPA - 'Final SPA ConceptUal PUO Final PUD - TextJMap Amend. GMOS exemption - . Condominlumization-V- - Concsptual HPC Final HPC Minor HFC Relocation HPC Hlsttlrlc Landmark OemoiPartial Demo Oesign,Review Appeal Committee 10. Have you completed and attached the fcUowlng? ..JC... Attacltmant 1-land use application fcnn L Response to Attachment 2 L Response to Attachment 3 09/10/98 15:16 TX/RX NO.2638 P.004 . SEP-10-1998 13:57 FROM ASPEN/P 1 TK 1 N COM DEV ,I"")' TO 9-1300S399998-090 ,1"""'0 " 'P.04 lAt-l\ l' ~l 0 ATTACHMENT 1 LAND use APPUCATlON FORM 1. Project name BEDll.Dol'1 "1<PI'lNSICW (i. '(l..1"S... 61.1A1'l? "owN~oU."E (oWIlO 2. Projectlocation 166 I/>I./&: PI!<J~ Tl.nAbr U-.lI.,.1I:IO (",IJIlIi-I) ~: SLll/,I/l!'( l"O~ "'(oAI. Ol!5CP-IP"OrJ (indicate street aadre5s~ :at and blod<' number or metes and bounds descltption) p.t.E=~ SoI.l/l.VE'( it 3. Present zoning ~M I=A 4. Lot$ize Pll.#Df OI'oOWIH;'QSfI1P 5. Applicant's name. address and phone number '='AM &HPlMIE- IS!) L.or-tG. PINe. p..o,J.l> , llrllT'" 10 . ASPS/Il, co B'clt/ ie-I.: Z4-9'/iZ,""GCO:' I p 6. RepreseOtative's name,'address. and phone number '{ONt" CHO. AP.t..I-l1Te6T STUDIO lG'MPLP~Tf\/A 1...,rH '+In ~e2."t\I-r ~-rl ~JI"T~ a':a.nZ t'),:.JJ\lr:;:o. ~n 9lt)z"~ _I . ,_. , TE.L.: ~o';. S~"l' '\'1'\ 1- 7. Type of application (check a/l!nat apply): Conditional Use Special Review 8040 Greenllne Stream Margin Subdivision GMQS allotment View Plane I.ot Split/Lot Une . Adjustment 8. Description of existing uses (number and type of existing sttuctwes, approximate sq. ft. number afbedrooms. any previous approvals g.....led to the property) a,c.1\ lUllT \ ~ AP~1tIM/l\1'~"''''' 'I Soo SF l'HEf..a /l.P-E I).. IJ.toJ\1'~ AT R\"~A.. I!.l.W"F 'tc>,^,~+lo~SE CONt>o!'l\W\l.(""s,. TI-l'E lASE. 'Fop.. TI\t;. \LW\'f!:. I S ~E~It>e.N'tll\o\... gBc.t\ I/\NI"T i-l i'1U.IiVY ["el( ",WIT c.o..nl'cIW!. -; BDe..M So Allie 1. \?"'THR.ooI<'\S f""e.II\O\.l' 1'-""....'1,.1. f"p. 1..1'11"'<' p.ooM, WA~ GolLA...,e." IN 1~'1 9. Description at development appficatlo~ ISY.PJ>>W$,IOtJ of'. ~~ ~e.QlLOOM 0,", se.c.C>tol.t> 1"t..o~ p.. ~ 06l101V.~l2- , AWD MtNOA.. ""nD'S::\;' A.-rtOt.J . TD 'bl-r~D.iD'12.....- ~ED~OlM \..AV"nuT AllVITlol-lp.,L. 5"".. ~PP~KI"'P.'\EL-"( 110 SF Concaptual SPA - Final SPA ConceptUal PUO - Final PUD - Text/Map Amend. _ GMOS exemption _ _ . Ccndominlumization...JC - Conceptual HPC Final HPC Minor HFC Relocation HPC HlstClric ul1dmarl< DemaiP1artial Demo Oesign Review Appeal Committee 10. Have you completed and attached the following? ~ Attachment 1- Land use application fonn ..!C.. Response to Attachment 2 .L Response to Attachment 3 09/10/98 15:16 TX/RX NO.2638 P,004 . NOV~!3-9a 19:29 , . , FROM-LANSCh 212-644-.-, f.,: ,.i... J CONDOMINIUM D~CLARA~IoN FOR THE LONE ?INE TOWNHOUSE CONDOMINIUMS " 11/13/98 17: 33 TX/RX NO, 2903 T-S!! P.OZ/1S Hal P,002 . NOV-Js-9a 19:29 '. ", \ / I I , " " .' ./ " ~o. 1l. 12. 13. 14. 15. 16. 17. 18. 19. 20. , 2~. 22. ' 23. 24. 25. 26. 27. 28. '- ,. eROM-lANSCO ~, m-S44-64~ T-SII P.03/18 Hal ~. :.-1'. .301 ,t~:61;j Recot'deCl at n:oo o'cloclc ~.M. ,1"'"" 24, 1980 Reception No. .2~(;S3.23 Recorder Loretta 3<<"""1" THE :nIOEX TO CONPOMINtDM DECLARA~ION FOR LONE PINE TOWNliOUSJ:: CO~OOMINrUI1S . - ~~H?J l. 2. 3. 4. 5. 6. 7. 8., 9. paraqrapn Heading Definitions Condominium MaE' . ~ivision of Property into Condominium Units Rights Reserved to Declarant Limited Common Elements pse of Certain Common E:lernents Inseparability of a Condominium Unit Method of Desoription Separate Assessment and Taxation - Notice to ASsessor Ownership - Title Non-Partitionaoility of General Common Elements The Use Of General and LimieeCl Common Elements Use anCl Occupancy Easements for Encroachments Termination of Mechanics' Lien Rights and Indemnificacion Administr~tion and Management . Certificate of Identity Reservation for Access Reservation of Access for Benefit of Board of Governors Owner's Maintenance Responsibility of Unit, Balconies and Storage AreaS Compli~nce with Pr9visions of DeClaration, By-Laws of the Association Revocation. or AmenClment to Declaration Addi io sAlt rations and 1m rovemants of Genera an J.m te ommon amen s _ AsseSSment ror Common ~xpenses Insurance Owner's Personal Obligation far Payment of Assessments Assessment Lien and Foreclosure Liability for Common 2xpense Upon Transfer of Condomini~ Unit is Joint l4 l'<loe ~ :s 'l ,. " 5 ,. ., '" ., {; Ii 6 1 7 a a a B 9 9 9 9 10 1Q 11 11 J.2 :'3 14 11/13/98 17; 33 TX/RX NO.2903 P,003 . fIf- NOV-13-9a 19:30 FROM-LANSCO!,",\ ZI Z-a44-6f"\ T-31J P.05113 Hal l. l!In3Gl i',~~ B25' consent and agree to such revocation by instrum~nc(s) duly ~eco~ded_ This Peclaration shall not be amended unless the ownars~re9resenting an aggregate ownersni~ interest o~ eighty percent (SO~) or more of the General Cornmon Elements, and in the event such amendment affects the rights of the holders of secu~ity interests in the condominiums, then the holders of all recorded first or second mortgages or deeds of trust covering or affecting any or all condominium Units, must consent and agree to such <UIlendment by instrument(sl auly recorded, provided, however, that the vercentage of the undivided interest in the Common Elements shall have a permanent character and shall not be alte~e~ witnout the written consent of all of the Onie owne~s expressed tn any amended Declaration duly recorded. ~ [23. Additions, Alterations and Improvements of General and Limited Common ~lements. ~here shall be no additions, altera- tions or improvements by the Board of Governors or the Manaqing Agent of or to the General or Limited COmmon Elements requiring an e~penditure in excess of One Thousand and No/IOO,pollars ($1,000.00) in anyone calendar year without prior written appro- val of a majority of the owners holainq a majority of the interest in the General Common Elements, in w~iting, or as re- flected in the minutes of a regular or special meeting of the owners~ Such limitation shall not be applicable to the re- placement, repair, maintenance or obsolescenqe of any General o~ Limited Common Element. An individu~l Unit o~ner shall do no alterations, additions, or improvements to the Genera:!. Common Elements o~ the Limited Common Elements without the approval in writing of a majority of the owners holaing a majority of the interests in the General Common Elements or as reflected in the minutes of a regular or special meeting of the owners. 24. Assessment for Common E~penses. All owners shall be obliqateq to pay the assessments, either estimated or actual, imposed by the aoard of Governors of the Association to meet the common expenses. The assessments shall be made aoqording to each owner's percen~age interest in the General Common Elements as is set forth ~'Paragraph.3 above. Except as providea in Para- graph 20, the Limited Cpmmon Elements shall be maintained as General Common ~lements, ana owners having exolusive use thereof shall not be subject to any special charges or assessments fo~ the repair.or mainteniill'loe thereof. ~ssessments for the estimated common expenses s~all be made at least semi-annually and shall be due immed~ately upon receipt. The Managing Agent or Board of Governors shall prepare ana deliver or mail to each owner a statement for the es~imated or actual common expenses. 24.1 kn the event the ownership of a Condominium Unit by grant from Declarant commences on a" day other than the first of the month, the assessment for that month shall be pro- rated. shall be Managing 24.2 The assessments made for common expenses the sum which the Managing Agent, or if there is no Agent, then the Board of Governors of the ~ssociation "' 'f '" 11 11/13/98 17:33 TX/RX NO, 2903 P.oos . NOV-1S-9a 18 :SO FROM-LANSCO~, ZI Z-644-6,~ T-Sl1 P, oallS Hal .v-l0-9S oa:31A P.S. INT~RIORS /iQV-1D-S8 1 D;SZ flOjl-,ANSCO 310 37S 126~ p~o~ 212-6<<-6444 T-178 p.s7In F-Z4. Novc:mhc:r 7. 199$ Mr- J~ O. OinsAerg -;1- I .....e tllar lJIiI ""II", for r,,", EllMDClDW"e... ...... nb '0 ",....... mar Ma.c" ae4~$ lI:li ill4icaft4 ahan SlfALJ.. y.,. SHALl. NOT " tp"a"'N. SiIlcm:ly, ~ ~.ll-O:t; acS Sc - ....... " """ " _om. D. Gilubeq The t..~ Cdl1'onritm 57! l.&xiD;'hHl AV_lIe Sair.. .nfiOO N,.- 'York, NY lOo:n aU) 644-un :l< 219 creU (U1) 644 lnt (fA) 11/13/98 17: 33 TX/RX NO.2903 P,006 . NOV-}3-Sa 19:31 FROM-lANSCO!""", Novembe. 7, 1998 Mr. Jerome D. Ginsberg Z12-644-6~ T-311 P or/13 Hal -2- ( I agree that this reqllest for those H as ipdicated above SHALL eownen wbo wish 10 expand their Master Bed.-ooms SF NOT be granted. Sincerely, crome D, Ginsberg Homeowner I Unit #5 , Jerome D. Ginsberg The Laoseo Corporartol1 51! LesiDgtol1.A.vel1ue Spire 1'11600 New Y'ork, NY' 10012 (212) 644-2222 x 279 (Tel) (212) 644-6444 (Fax) 11/13/98 17: 33 TX/RX NO.2903 P,007 . NOV-J3-98 19:31 FROM-lANSCO~ 212-644-~~ 1 1 -1:17-1 S96 :3, 4SPM FROI>'. -ikS\lN OAL Y PROO. INC. 970-1-925 \..44~ T-311 P, 08/13 F-381 ;;>.:2 /IllY-aT-18 15.aa FRllIt-I.AhCD 21N4N444 1-ID P IlUllIi '-III (, N~ 7, 19S11 Mr. ~ SlaQl -2- ""'" I apadUR lids........... dloM~.........1O e.lqIU" ...........lIr..rDJI.. .. iIalIicwMIlIIttMt SRA' , SBAU. NOT lie DA1C1I S'llIRIcy JmNIW D. G_..... TIle 1 "IT P' C...,...... 575 J.aillpura AWIIW hiW..ftO N_ VA NY 1GU2 Quu.n 'M2 x21t(.ftliJ (ZU) CiU 6441 ('A) 11/13/98 17: 33 TX/RX NO.2903 P,008 . N9V-1S-9S 14:45 FROM-LANSCO!"",\. -, , November 19, 1998 City Of Aspen Community Development 130 S. Galeua Street Aspen, CO 81611 To Whom It May Concern: 212-644-6~ T-45S POllOI F-532 JEROME D. GINSBERG Rin!' BluffTowDhnme ~ 0155 Lone l'hle Roaa Aspen, CO 81611 This letter shall serve as notice that Mr.Yong Cha, architect for Stu4ioCompletiva, 1410 Giant SJreet, Denver, Colorado, is hereby authorized to serve as lIgent and/or ~sentative to work in our behalf with reference to Requirement #1 of Attachment #2, Genend Submission Requirements, me D. Ginsberg 'ver BlutfTownbomes 11/19/98 12:50 TX/RX NO.2930 P,001 . 04-08-1998 02:20PM FROM 1"""., TO 9252778 P. 01 r-, LA..... (ilF'F'Q6S OATES, KNEZEVICH & G RDENtii"WA.RT7., P.C. PROFESSIONA.L COlt QoA1'ION ""<<"'1;> PI..OQI't, ^.!fPCN fl~" . StlILDI...e D:I. EAST wcPt(,to"" (,"11& A5.&N.CO~ORAOO I~fl t..COllIARg tot. OATE/Ii. ""CHARD". K/IlIf:r,....lt~f'I ,.-CD (0, ~Ail:t"fl'f:;;.w....,.T% ., t:t.E."_"'" '_~~192o-1700 I'Ad$IIMIl.E: t97C)J 'ZO.ll,z, .-,.".;J orokgtf,gof,llbl , OIWIO e. I\c..~y Mareh23, I 8 or t:OUJltll;ca.. "OliN TIofOW", KI!r.LV Glen Daly Pn:5idcnt Ri-ver Blutl'Town ASlociation 300 Pilppysmid! Sereet Aspen, CO 81611 Re: SoIic:itJltiblf of Mardi 6, 1998 regrD'f/brg Ad. H01l/etJw"t!1'$ ,,11I FiUl SquIU't! FOI//age A~e to I Dear Mr. Daly: John Ginn has delivered 1O 1M tile above correspo and your solicitation of what Npom to be a vote to SOI;JIeI1uw lIllthom tho oblainiDg of approval for lllaster bedroom expan:.1011$ at Ri~er BlufT T OwMomCS. As you are aWll1'e, r bave written the A$liOoi ion on two prior OCl:llSiollS in conn~ion with the position of John and Arleen OiDn, and others as to such expllll5ion. As prop<lIIcd, the e,pansion would proll'Udc outside oftbe air space of the exi9ling co inium llllits and therefore take and convert to the lI3C of individual units, land and air $J*Al which 'Me ge/IIlI'a1 and lilllited comlllon elements. Pursuant to the'Conclominiurn Deelaralion for River Bluff OwnhOIUO$, all of lhe owners of condl!miniwn units within tbatproject are te1llll1!S in WIIUIIOD as to all 0 the common clements, As a conscquC,ncc, one or mOl'C. but less than all of the owners may Dot convert su h property held in leIIaIlCy in COlIll'IIoit to auch owner's exClusive use without the consent of all of the 0 of units within the project. The G1111JS and others are unwilling to permit tbe use of that poniOD of commoo elements which is propoSed to be expllllded inlo by the master bedroom extensiOll5 and will whatever legal steps are availabl<i to them to block any suclt encroachment by any individual unit 0 e, in property which theY own an uhdivided intere$l to. LMO/amc cc: Julie Ann Woods ,I<N:EzJ;VJCH &. GMDENSWARl'Z, P.C. B~ Phone # 7671 Date ..8.. ~ I C.WdtlztC1l<<t1~DeIy 1-11.iC.. Post-il" Fill< N Ie TO,4/. Co.IDePt. PhOne" Fax. Faxtl TOTAL P.01 r'1 ,,,-.,, February 24. 1998 Dear Glen, In an effort to fully understand the information] believe the board and the iii- ,ha, meownera wzJI want to consider, '" l'i,egarding Jerry and Ro >ger 's bed11 oom, 1 '. have been carejillly studying theft/es on River BJ1IjJfrom the (lSSociation , 'attorney,from the city and its officials, from the history of2 previous fnferwest expansions, from case law in Colorado, ,and condominium law in the country. No,,] am not an attorney, however it is necessary to be afully informed board member when it comes to matters ofmamnnentaJ. consequence, and we all must make properly informed decisions. 1 do not take my job as board member lightly. lfully understand the difficulty of pleasing 12 lIery successful homeowners, all of whom are used to running their own business. Moat wish to simplypay their association dues and trust all is being taken care of on their behalf. For those of us who have chosen to be ina decision making capacity we have a great responsibility. lam enclosing documents [feel should be considered in your deliberations because the position clearly discusses the use of the common elements. All of these documents represent hours and hours of work and negotiation. There certainly is no need to spend any further association dollars an more attorney'sfees. The documents speak for themselves. 1 send these to you with the intent of enabling us all to find some peaceable way toproceed with the use of avaifoble square footage as providedfor in the statutes and documents. Over 400 Realtors in the Pitkin COtfIfty have entrusted me to represent themfor the next 3 years here and with the state of Colorado. [trust you, too, will take me seriously. Very truly yours, /J Arleen K. Ginn f""""', ~ February 13,1998 Dear Neighbor, I do not wish to participate in a meeting called for February 16 without the full knowledge of all homeowners as was agreed upon at a special board meeting on February 9. Item 1. The first meeting was improperly noticed. There were referred to items in the notice of meeting given to the president, but not made available to all board members for consideration. I agreed to proceed with February 9 meeting since we were all gathered and had reserved the time for discussion. Item 2. Reference was made in the notice of meeting of previously consented to Master Bedroom Expansions passed by a majority. I was secretary during the past three years and my meeting minutes of all board meetings as well as the annual meeting do not indicate that this was the case. Item 3, After 21/2 hours of discussion at the February 9 special board meeting, I feel that this is an effort by 2 of the board members to ramrod an unapproved plan through the board. ANY PLAN HISTORICALLY HAS GONE TO THE FULL MEMBERSHIP FOR CONSIDERATION Item 4, Traditionally the board members are polled to see what is convenient for everyone's schedule in order to have a board meeting. Neither Frances nor myselfwere asked to see what times would work for us. I am a full time real estate professional with an extemely busy schedule who is committed to service for the homeowners as well as my community, Item 5, I am aware of at least 5 homeowners who believe as I do, I believe that an informational package of what has taken place in the past, and what may happen in the future should be brought to the fUll attention of every River Bluffhomeowner so they have complete knowledge of what gives their home the highest and best value. Respectfully submitted, ~ Arleen K. Ginn 16/1998 13:41 9709204432 ASBW PAGE 01 _.,...-~_._,.,....._.~.. -.. II 'P\lII.lt~l~n~ ".,' ",' '"', i::~'::(:~~:-.:. '}}~~'i.;:.: ......t., .~~~. :Deal Neighbor, 'For the pallt few yearr there h.. been much campaigning and bours of discussion about changing the appro~bedroom extension plan (which has already been doneb)' .three homeowners durinstbe .pecified time frame). The plan that we all agreeJupo~ in 1991 was designed to c~te little or no impact on those not choosing to participat~ ' in the elCpanllion. It is inlreepin, with the existing architecture of the bUildings, can be completed in only two _It. time, and does not interfere with the views or privacy of the adjacent neighbo!1J; Unfortunately, thi. i. not true of the plan that Jerry Ginsberg and Roger Schultz wish to use for their own unitt. Although no final design ha. even been presented toth.. . homeownera, it uem. that ._ral people have ,igned off on their approval of .l:hl9 Hsketch plan". It trouble. me greatly that this has happened without sufficient understanding of the implication, 1:0 aU the homeowuers at River Bluff. It is not a coincidc1I1ce tha.t/the owers of unite 1, 3, 4 and 6 are most upset by,th.. high pre8lure techniques that haw been used on the other owners in River Bluff, to O.K. sometlung that woul~ not .Hect them nearly as adversely as it would us, the immediate neighborr. We an chose River Bluff Eorthe 1.;,.1 of privacy afforded by the design of the building., the wonderful vie~ and 'lI\1n that we get and the quiet nature. of this very special. complex. Please consider how dillrJptivetl' those of us who live here, many months of constmction would be. T~ng',tilE C'Cisting roofs, trucks dogging our very limited parking areas, noise, con.trucnon:debris, etc., is not what living here is supposed to Le. To the abuntee OWD,eJ:\l wlso wish to impose that on us it would be of no consequence, but pleaSe let:'~ not f~ thOle of uS who call River Bluff home. Then further consider the p4mn8nent damage tbat would have been done to our views, .un, privacy and the uoIutilil;turalintegrity of the entire complex. 13: 41 97e92e4~ PAGE .!'~ r-1 that before we allow two homeowners to railroad through their personal agenda$ an open meeting at which we can examine all the facts, proposals and consider real impact on all of us. you for hearing me out in tbia rather long winded letter, If you would like to this with me further, pleaae feel free to call me at home (925-7668) or at my (920.1234). Roberta Allen ,Ian. S. ~j,gG il:24,Ul r-, ::v, : 9 :': r-, BROOKE A, PETERSON GIDEON I. KAUFMNr LAW OFFICES OF KAUFMAN & PETERSON, P.C. liAL S. rxSliLER - ~1" EAST HYMAN AVENUE .'S?EN, CCWAAOl) e1511 T8.E"Hc.Ne ca7~ a2~1EiS FACSIlAILE (970, 92s..~a9a Of COUNSEl.: ERIN t. FERNANDEZ". ~ r.l.::lC~lml/i"AR'I'I.JI.l'I> .. ~ACNrna:lIIlTElWl .....IJ.3)J'DMITlEDIN,.L~ January 5, 1998 Ms. Sara Thomas ASPEN I PITKIN CONIML'NlTY DEVELOPMENT DEP ARThffiNT 130 South Galena Street Aspen, CO 81611 vja"aAi'ID DELIVERY Re: RiverBluff Townhome Association Located on 0155 Lone Pine Road, Aspen, CO Dear Sara: Pur.rnant to Ol.ll recent conversation and information you have received from Richard F :dlin of Baker F ailin Arc.hitel;ts, you have confumed that there is available unused FAR. on, 125,8 square teet for the referenced properoes subject tD subsequent law changes. Please execute this letter tD confirm this calculated total (unused FAR.) and thereafter, the homeowners of the Ri~'eI'bluffTownhome Association will be informed that they can use said available unused FAR, for collStruction of their respective master bedroom expansions, provided such are in compliance with Aspen I Pitkin ColDI!Ulllity Development Department Residential Design Standards. We understand that FAR. will be recalculated upon application ror Building Permits. Tbllnk you again fur all your assistance in this matter. Do not hesitllte to contact :me if there are any questions or comments, Sincerely, KAUFMAN & PETERSON, P,C. A Professional Corporation By: Hal S. DishIer The FAR. calculation of2, 725,8 square feet of unused F.A.R. can be relied upon subject to compliance with applicable Residential Design Standards, and other qualifications stated in this letter, ASPEN I PITKIN COMMUNITY DEVELOPMENT DEPARTMENT ~ By: @A (LCn IJ /J1 tl L1 / !r~ /1 'if saraThOlllllS+ r!J/~h OpjlUj,i i~ 0Jvf'50~. Ii' ,'11 I rzcdvre.. OI"/!4J, is 6czsed O/J e.vrre/t , '-<J~ w~ 1tl4 15 SUb/l2C fo ~J.5:: cz/toC '. HSD:pra does /'lot Gre.~ a.JVe.st:a0- d:I11.J ,C'IXlCS'IlSll\(;bq\Th.....lo."..Ml1>ff 'TB 00 '96 11:01 CATE~S &. KNEZEVICH .,-" P,2/1;3 1.4.. o;rp,cct OP OATES. HuGHES & KNEZEVICH PitCWI:&$fOH'A-t. ~f'l;'oaA T,OI\l' "f"'MC> fr.QOft. ASPEN PLAZ" .",u..o.I'le a3~ C,.s? ",~P"Ult5 A.\I'.NtiS ......I!'N, e.OI.O~A~O 81611 L.~()NA~" M. OAT.t5 R;)tf.~HT w~ "1;Kh:tB RiCrt"ao 4. I!\NE%,~'t~llt T'U: o. e.ROE,N.5W"',"''t~, February 1, 1996 AM"'- e:ooe: &10- TEL.EPHONE aao--t7CQ 'tU..E;C<Cf'I,j.R NC>t rat c.-.Vl~a..It<<:t..L'I n~ cOt"tNlSc-t.., 40lo4N TH.OJolU.~ ~t:..Ioo'" VlA FACSIMILE (970) 92$-5445 Glenn Daly ~ent River :muffS CondomiBium Association, Incorporated 300 Puppy Smith Street Aspen, COlorado 81611 RB: USE OF COMMON EtEMENTS - RIVERBLUPFS TOWNHOUSB CONDOMINIUM Dear Mr. Daly: Please be advised that we represent John Ginn In bis capacity lIS an owner of a condominiuUl at River Bluffs Townhouse CODdnminiums (for,mcrly Lone Pine CondominiUms). Mr. Ginn has engaged 'tIS speclfical1y to review and analyze what the Association, or a unit owner may and may not do in terms of altemtion and useo! the common elements f<yc the use and benefit of the less than all of the condnmininJO units within tho entire project. Specifically of concern to Mr. Ginn is the creatioJ1 of walkways on the general or common elements benefiting less tIW1 an of the ('~;nfu~ units within. the project, thereIocation of the driveways within the project and the proposal to amhor.ize the enclosure of a portion of the general common e~ fiX the limited use and benefit of condominium unit J'lUIDber 5 owned by Mr. Jerome Ginsberg. In 1988 we were requested by Mr. Ginn to analyze the issue of the enclosure of geJleral common elements for the limited benefit cf a unit owner or owners, but less than all of the owners. Based upon our review we researched the issue. al'ldprepmd and sent to Mr. Ronald Garfield, Esq.. attorney for the Association. a lener, a draft copy which is enclosed herewith. together with a COpy of the reported Ohio case C.rI_. et. aI. v. Mo,..,tantf et.al., 322 N.R. 2nd 699. We befieve mat the CODClusion and posjtion taken in onr 1988 fetter. to Mr. Garfield and the case upon which we relied, are stilI good law and ate equally applieable in connection with certain of the improvements which are now proposed for River Bluffs. We believe that the attempted 1989 amendment which apparently failed, has 110 bearing on our position which . . ;:TB 08 '96 11 '82 OAT~HE:S & KNEZEVICH .!""'\, P.3/13 -, ...,:- OATES, HUGH,E$ &; Kl'o:EZEVrCH. P.C. Gletll1 Daily Riv.er Bluffs CondttminitlJ>> Association, 1ncorpotated Page Two rests on basic principles of the law of real property as modified by contract provisions of the condM1iniwn declaration. While Mr. GiM is gcnentl1y in favor of many of the items of improvement which have been proposed: by the Association. he does object to those items which will benefit less rhan tho entire ownership of the projccr and in some eases, would be a detriment to some of the units (ine:luding his) in the project, te; the proposed. enclosure by Mr. Ginsberg which would block Mr. GUm's views from his unit. While. Mr. Ginn clearly recognizes tbat it is some times a. rme line lIS to wbat impr~""'~ are for the benefit of an and what imptovemenrs would be for the benefit of only some of ~ units, the: specific items to which he objects he feels are clearly inappropriate pursuant to the law as interpreted through the govCl":Tl6 dOC'.:~~.nt, ~ co!!domininm deciaraOOn for River BIufis Townhouse Condominiums. As to the remainder cf the iee:ms. !!~..!g.'I1 he may feel ace excessive in tenns of cost relative to benefit, he tIllderstands are subject to the decision of the majority of the unit 0WDClS. It is my liIIlderstandin that the Association imends to have a meeting this coming Saturday, February 10th at which Mr. Ginn i:rrt""'Ctl< to again state his position and his intentions in connection with enfo.rcemenl of his legal rights. 'I'I1lmk you fur consideration of this letter. Very truly yours, OATBS. HUGHES & KNEZEVICH. P.C. By: , ; ,.~ '-'" .,-.,. GAH~fHlEJLD & HlECHl, r.c. , . , RONALD GARFIELD' ANDREW V. HECHT" WILLlAl.j K. GUEST, P.C.... ROBERT E, KENDIG AHORNEYS AT LAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN AVENUE ASPEN, COLORADO 81611 TELE!'HONE (303) 925-1936 TELECOPIER (303) 925-3008 CABLE ADDRESS "GARHEC" lANE ELLEN HAMILTON CATHERlNE H. McMAHON.... -.l.soadmined 10 New York Bar HallOlC!rniUed 10 District of Columbia Bu "-.I.l.Q.dmitted. to NCOrnu and Tc.u.s Bar .....bo..dmitted EO llIifl(iis Bu Buck Olmsted 777 29th Street Suite 301 Boulder, CO 80303 March 16, 1989. ~;:~1 . ~. f.~"} , .~..} II - . ,..1 "":'- 1;'47"':1 1"'.,..1 \\ Ii I' \\ ' '\ . . ,,'. \ \i ,\ \ \i..J \ Dear Mr. Olmsted: We represent the Lone Pine Townhouse Condominium Association, Inc. (the "Associationfl). Roberta Allen has provided me with a copy of your letter of March 3, 1989. As to your concerns about attorney fees incurred relative to Ginsberg's Unit 5, I want to provide you with some background information. Sometime in July, 1988, it was brought to our attention by Roberta that Mr. Ginsberg may have constructed unauthorized additional modifications to his Lone Pine unit. I wrote to Mr. Ginsberg in this regard. Subsequently, it was brought to my attention that Mr. Ginsberg had obtained written consents from ten of the twelve unit owners including yourself to construct the additional modifications. The only unit owners not consenting were Roberta and John Ginn, owner of the adjacent Unit 6. , With the consent of ten of the twelve unit owners, Mr. Ginsbcr" vias in a position to contend that he had approval for his add~tional modifications pursuant to Paragraph 23 of the CondOl:.inium Ded1:aration. About this time Mr. Ginn engaged the services of a loca~ Aspen attorney, contending that despite the approvals from other unit owners, Mr. Ginsberg still did not have authoriz2tion to construct the additional modifications and that lawsuit would be brought against the Association to compel Mr. Ginsberg to remove those modifications that were not in accordance with the approved Plans prepared by Michael Ernemann, Architect. Essentially, the Association was caught in the middle of a dispute between Mr. Ginn and Mr. Ginsberg. Had the other unit owners not approved Mr. Ginsberg's additional modifications, I believe the Association would have been more inclined to proceed against Mr. Ginsberg. After considerable discussion.<:tnd negotiation \'iith Mr. Ginn and Mr. Ginsberg and their attorneys, we were able to reach a settlement that avoided the necessity of ..J ~ ,-., '! .... ~ GAHflEL.D & IIECIIT, P.C. Buck Olmsted March 13, 1989 Page - 2 - litigation. The settlement agreement is presently being circulated for signa~ure. While I am aware of the various provisions of the Declaration that you have cited, I could not guarantee the outcome of any litigation or that the Association would definitely recover its attorney fees. The attorney fees incurred by the Association in obtaining the settlement were only a fraction of what the attorney fees would be in the event of litigation. .The settlement will also prevent this kind of situation from occurring again. In the future I would urge all unit owners not to sign letters of the kind circulated by Mr. Ginsberg without first conferring with the Board of Governors or the Association's attorney. Copies of my correspondence with Ginn, Ginsberg, their respective attorneys and the settlement agreement are available for your review. I hope this letter adequately addresses your concerns about the attorney fees. Please feel free to telephone me if you have any questions regarding this letter. Very truly yours, Orir;n~\ ~jr.nr,d by I./(\,.,~,'; f) GAHFlELO Ronald Garfield nG:jl:ltr4 cc: Roberta Allen " , , 1""""\ ~ Buck Olmsted 777 29th Street, Suite 301 Boulder, Colorado 80303 December 13, 1988 Mr. Jerome D. c/o LANSCO 122 East 42nd New York, NY Ginsberg. '. Street 10168 Dear Jerry: I have just received a letter from John Ginn, dated December 2,1988, in which heurings to my attention that he does not approve of the patio extension that you did and is therefore planning legal action, since he and you are unable to resolve the dispute. He also goes on to say that if this is the only way the dispute can be resolved, that he will be asking the court for compensatory damages from the Homeowners Association. , At the time I received your note. of July 15, 1988, and responded back to it with the pre-typed letter that you had sent me, dated July I, 1988, in which I signed on behalf of Zuhair Fayez, there was no mention in any of your correspondence that the extension to the patio was being challenged, that it extended into common area, .or that you considered my letter gave you approval to go ahead with the patio without going through the proceedings as outlined in the Condo Declarations. It has never been my intent to allow a homeowner to encroach upon what is considered common area within the complex. It also has nev~r been my intent to by- pass any of the'Condo De~larations that were written " up and presented to us at the time we purchased the unit for Zuhsir fayez. I don't feel that the letter that I signed my name to, dated July 1, 1988, in any way indicates anything other than the fact that with the information provided to me at the time, I had no problem with the design of the patio. Had you told me at the time that it was encroaching upon common area, I never would have approved it. Had you told me that you were using the letter as a means to by-pass the Condo Declarations, I never would have approved it. I feel that Mr. Ginn has a legitimate complaint if his privacy is being effected by the exten~ion of the patio. This letter is not an attempt to resolve the problem between yourself and Mr. Ginn. It is, however, a statement that Zuhair Fayez is in full agreement with '" ~ .~ ~ ~-' L....WOFFIC!::S illrnffi~ll OATES, HUGHES & KNEZEVICH PAOF"ESSIONAL CORPORATION THIRO FLOOR. ASPEN PLAZA BUILOiNG '~33 EAST HOPKINS AVENUE l-EQN....RO M. OATES fl'OaERT W, HUGHES AICHAAO A. I<NEZE.VICH ASPEN. COL-ORADO 81611 AREA COOe: 303 TELEPHONe: ~20.1700 TELECOPIER S1Z0-1I21 September 9, 19BB .JOHN M.ELY Ronald Garfield, Esq. Garfield & Hecht, P.C. 601 East Hyman Avenue Aspen, Colorado 816 11 RE: Ginsberg, Unit 5, Lone Pine Townhouses Dear Ron: I am in receipt of your letter of September 7, 19B8, and am sending you this letter in response thereto on behalf of John Ginn. Mr. Ginn takes exception to the position taken in your letter relative to Mr. Ginsberg's wrongful appropriation of portions of the General Common Elements of the Lone pine Townhouse Condominium Project and offers the following in support of his objection: l. The reliance which you have made on Paragraph 23 of the Condominium Declaration is based on an inaccurate and misplaced interpretation of the intention of that paragraph. The provision which you have quoted is set forth in the Condominium Declaration solely to provide a mechanism wherein General Common Elements may be improved for the use and benefit of all of the condominium unit " owners by' an indi vidiial unit owner and is not intended to create a situation whereby an in~ividual unit owner may appropriate and take for his own use any portion of the General Common Elements which are owned in tenancy in common by all of the condominium unit owners. This intention is Clearly confirmed by other provisions of the condominium documentation which, for reasons we cannot understand, were not taken into consideration at the time that you wrote your letter to me, and apparently not considered at the time you earlier dealt with Mr. Ginsberg. .'-" ,-., OATES, HUGHES Be KNEZEVICH, P. C. Ronald Garfield, Esq. September 9, 1988 Page 2 2. We have enclosed herewith for your review a 1974 ~~~a of Grimes v. Morelc....::.....:., :..., vlL:';'0 l.i.J..;:)'-_ 69, ~"" N.E.2d 699, which stands for the proposition that under circumstances wherein each of the unit owners in a condominium project is the owner of an undivided percentage interest in and to the common elements in tenancy in common, that unanimous consent is required for the type of activity similar to Mr. Ginsberg's to be properly authorized. The references to and reliances on the specifics of the Ohio condominiwn statute aside, the scheme of condominium ownership in Colorado, both under statute and from an !-ci3torical _ense in the developing area of condominium law, is similar to Ohio. 3. Referring to the documentation: a. paragraph 1.3 of the Condominiwn Declaration for Lone Pine Townhouse Condominiwns provides as follows: '.....,... ./" II i General Common Elements' means ..., patios, ..., all of which shall be owned as tenants in common, by the owners of the separate units, and each owner of a uni t having an undivided percentage interest in such small general common elements as hereinafter provided. II / i ~ ", ........_-~"~ ~., ~ '~ b. Paragraph 3 of the Condominium Declaration provides: , "The real property into the following consisting of undivided interest Common Elements.1I is herebv divided fee-simple estates uni ts and the in and to the General c. Paragraph 7 of the Condominiwn Declaration provides: IIEach unit, interest in ..., shall the appurtenant undivided the General Common Elements together comprise one /"''''''\ ,-., OATES, HUGHES 8< KNEZEVICH, P. G. Ronald Garfield, Esq. September 9, 1988 Page 3 condominium unit. shall be inseDarable and may oe conveyed, leased, devised or encumbered only as a Condominium Unit." d. Paragraph '12 of the Condominium Declaration provides "each owner may use the general... corrunon elements in accordance with the purpose for which they were intended, without hindering or encroaching upon the lawful rights of other owners, subject to such reasonable rules and regulations as may, from time to time, be established pursuant to the by-laws of the Association." e. Paragraph 22 of the Condominium Declaration provides ..... that the percentage of the undivided interest in the common elements shall have a permanent character and shall not be altered without the written consent of all of the Unit owners expressed in any amendment Declaration duly recorded." 3. Specific provisions of the condominium documenation supporting the proposition that Paragraph 23 of the Condominium Declaration is not dispositive of the issue are: " a. Paragraph 12.5 0 f the Condominium Declaration provides: "Nothing shall be altered or constructed or removed from the general... common elements, except upon the written consent of the Board of Governors (sic Managers) ." , b. Paragraph Townhouse provides: B of the By-laws of the Lone Pine Condominium Association, Inc. "Each owner may use the qeneral common elements ... located within the entire condominium project in accordance with the purpose for which they were intended , 1""", ~, -, OATES. HUGHES 8< KNEZEVICH, P. C. Ronald Garfield, Esq. September 9, 1988 Page 4 wi thout hindering or encroaching upon <;.~.....;: ..I,,(,i'wJ..u.l riyiyL::s vi the other owners~" ci Rule 5 of the rules and regulations appended as Schedule "A" to the By-Laws provides: "No work of any kind shall be done upon the exterior building walls or upon the general or limited common elements by any unit owner. Such work is .the responsibility of the Association." The foregoing, we believe, makes it abundantly clear that the manner in which this mattE..._ was deal::' with by the Association and by Mr. Ginsberg was by an improper application of a provision (paragraph 23) of the Declaration intended for another purpose. That is clearly illustrated by virtue of the other provisions of the documentation which I have cited above which stand for the proposition that the General Common Elements for the Lone pine Townhouse Condominium project, properties held in co-tenancy were and are intended for the common use of all of the property owners within the project and may not be converted, appropriated, usurped or otherwise taken for the exclusive use and benefit of one of the unit owners without unanimous consent of all unit owners. We respectfully request that the Board of Managers of the Association and you as counsel review and reanalyze the position that you have taken in light of the materials which we have presented and conclude that Mr. Ginsberg I s action was improper and could not have been done without the unanimous consent of the-unit owners; and, therefore must be removed with the General Common Elements returned to their original condition. ' , Very truly yours, OATES, HUGHES & KNEZEVICH, P.C. By: Leonard M. Oates LMO:klm Enclosure ,-. ) "",,;ii,"" ,-JJ/ 609 P.2d 1084 13 A.L.RAth 591 (Cite as: 125 Ariz. 384, 609 P.2d 1084) ! '. I, t; 'i',,~~.f). JJt. K,;f~ 'I . jA,-J "\$ ,pi Harrison A. MAKEEVER and Ruby K. Makeeverj Richard S. Schuman and Jean C. Schuman, Appellants, v. Dr. William H. LYLE and Mrs. William H. Lyle, Appellees. No.1 CA-CIV 4111. Court of Appeals of Arizona, Division 1, Department C. March 4, 1980. Rehearing Denied April 7, 1980. Review Denied April 22, 1980. Condominium owners brought an action seeking to enjoin another owner from proceeding with the consll11ction of basement and second floor additions. The Superior Court of Yuma County, No. C-38766, Douglas W. Keddie. J., refused the injunction, and plaintiffs appealed. The Court of Appeals, Haire, J., held that: (1) nothing contained in the statute setting forth powers conferred on the council of condominium co-owners conferred upon a majority of the council the right to convert a portion of the general common elements to the exclusive use and control of an individual apartment owner; (2) the land and space which were to be occupied by the proposed additions were part of the general common elements; and (3) nothing in the condominiuin bylaws gave authority to the council of co-owners to authorize the construction and laking involved. Reversed and remanded. [1] CONDOMINIUM ~ 10 89Akl0 Nothing contained in statute setting forth powers conferred on council of condominium co-owners confers upon majority of the council of co-owners the right to convert a portion of the general common elements to the exclusive use and control, and thereby to the private ownership, of an individual apartment owner. A.R.S. ~ 33-561, subd. A. [2] CONDOMINIUM e=> 10 89Akl0 Land.-and--space-whiel1 were to Iv> ""c'lpie4-.by condominium l"Ium......'~ prnpn~ basement and , Page 1 second floor additions were part of the general common elements owned in common by all the apartment owners, and contemplated use was not a use m common Wltn otner owners. A.R.S. t 33- SS3.'"" [3] CONDOMINIUM e=> 7 89Ak7 General provision in condominium bylaws which delineated responsibilities of council of co-owners and stated that "decisions and resolutions of the Council shall require the approval of a majority of a quorum of owners" did not constitute an unlimited grant of power to the council of co-owners to consider any question which migbt conceivably be presented to the council, but merely allowed the approval by a majority vote of questions which council had been given authority to decide. A.R.S. ~ 33-561, subd. A. [4] CONDOMINIUM e=> 10 89Akl0 Council of condominium co-owners must have broad powers in determining and managing common uses of general common elements, and such determinations will be upheld if they are not arbitrary and capricious, bearing no reasonable relationship to the fundamental condominium concept. [5] CONDOMINIUM e=> 10 89AklO Power of council of condominium co-owners to convert common ~Meral elementlO: to. the exclusive ~d priva~__lLl;lB :mct I":nnh.nl of nn"", nf the individ~ owners constitutes ~ = ~e other remaining individ~ owners' ~ .... nml;lt he dearly given by statutes. ilP.r.l~nIInnn of ~nhmission or J;ylaws hefore it~ p.Tidp.nN'o win he reco~zed. A.R.S. ~ 33-551 et seq. [6] CONDOMINIUM e=> 10 89Akl0 ~othh'lg ~" I"nndominium bylaWS~"'B all1kgci.tI.- to cQ!!Dcil of co-owners to by ~iO~ :~ or atherwi~ Jluthnrl7p. tjl~2 af of P. enera1 ~~" 9lB___~ lur &-... eSB8m.mtiea ~f basement and lS~uu.d uoot cU1da~8Bi hy individual 1ij)8rtm.ent owner. --..... *385 **1085 Bryne, Bradshaw, Ellsworth, Copr. e West 1996 No claim to orig. U.S. govt. works 1'*\ , 609 P.2d 1084 (Cite as: 125 Ariz. 384, *385, 609 P.2d 1084, **1085) Benesch & Thode by Thomas A. Thode, Yuma, for appellants. Thaddeus G. Baker, P. C. by Thaddeus G. Baker, Yuma. for appellees. OPINION HAIRE, Judge. The issues raised on this appeal require a consideration of the rights acquired by a condominium apartment owner in the . general common elements' when a parcel of real property has been submitted to a horizontal property regime pursuant to A.R.S. ss 33-551 et seq. Each of the appellants own an apartment unit in the Laguna West Horizontal Property Regime, a condominium development consisting of 16 separate units located in Yuma, Arizona. Laguna West is not a vertical development, rather all the apartments *386 **1086 are built at ground level in blocks of four adjacent to the Yuma Golf and Country Club. Within each block each apartment shares at least one common wall with a neighboring apartment. Only four of the apartments bave two stories and each of the apartments has its own two-car carport immediately adjacent to its entrance. Surrounding the apartments is an unfenced area, and the units share a common bathhouse and swimming pool. The circumstances giving rise to this litigation commenced in December 1976 when the appellees, Dr. and Mrs. William H. Lyle, decided to purchase apartment unit 12. This was a single-story apartment, and Dr. Lyle wanted to construct a second story consisting of two bedrooms, a bath and a den, and also add a hasement workshop immediately underneath his carport. He subsequently consummated the purchase of unit 12, and after receiving the approval of ten of the 16 unit owners, started construction. [FN1] FN1. Initially, and apparently before be consummated the purchase, Dr. Lyle obtained the approval of 14 of the owners, subject to final approval of plans and specifications by the board of directors. Thereafter, due to conflicting opinions concerning the legality of the proposed construction, the board of directors failed to give their approvaL ~ , . Page 2 Appeltants then commenced an action in Yuma County Superior Court seeking declaratory relief and also seeking to enjoin Dr. Lyle from proceeding with the construction. EssentiaIly, appellants contended that Dr. Lyle's contemplated construction of the second floor and hasement workshop would constitute a wrongful appropriation or taking for his sole and exclusive use and control of cubic space belonging in common to all the apartment owners, and that such a taking could not be accomplished without the unanimous consent of all the unit owners. On the other hand, it was Dr. Lyle's contention that since there was no specific provision in the Laguna West bylaws governing the contemplated construction, the only approval necessary was by a majority of the owners. ~ i A The trial judge adopted Dr. Lyle's position, refused to enjoin the contemplated construction, and awarded Dr. Lyle judgment for attorney's fees against appellants. For the reasons set forth herein, we reverse. The Arizona statutes governing and authorizing horizontal property regimes (condominiums) were first enacted in 1962. See A.R.S. ss 33-551 through 561. In general these statutes authorize an owner to submit a parcel of real property to a horizontal property regime by filing a declaration of submission, which must contain certain declarations. See A.R.S. ss 33-552 and 33-553. The general concept involves a scheme of real property ownership whereby an owner individually owns a horizontal layer of . cubic content space' [FN2] which is subject to his exclusive control, A.R.S. s 33-553(3), together with an undivided fractional or percentage interest held in common with other unit owners .in the "general common elements". Among other things, the general common elements include the land. the foundations, floors, the exterior waIls of each apartment. ceilings and roofs, and in general all that portion of the property other than that which is subject to the exclusive ownership and control of an individual apartment owner. A.R.S. s 33-551(6). The fractional interest of the apartment owner in the general common elements is appurtenant to each apartment, A.R.S. s 33_558, and the ownership of each individual apartment and the appurtenant interest in the general common elements is 'vested as . .. any separate parcel of real property is or may be under the laws of this state . . ..' subject to certain limitations on alienation and partition set Copr. C West 1996 No claim to orig. U.S. govt. works - ,-. . 609 P.2d 1084 (Cite as: US Ariz. 384, *388, 609 P.ld 1084, **1088) to be occupied by Dr. Lyle's proposed basement and second floor addition were part of the general common elements owned in common by all the apartment owners. FN7. The provisions of the declaration of submission were ambiguous as to whether the cubic ""ntent space of the ""!pOrt was part of the space owned individually by each apartment owner, as opposed to being a part of the general ""romon elements owned in common. The trial. court properly resolved this ambiguity, finding that the carport cubic content space was not part of the general common clements. Before considering the provisions of the bylaws, which constitute the third possible source of powers to be exercised by the council of co-owners, it is important to note that the use by Dr. Lyle of the contemplated second floor and basement was not a use in common with the other owners of LagUna West. Rather, by the very nature of the contemplated construction, the use necessarily would be in the nature of a taking of that portion of the general common elements and converting it to the exclusive use and control of Dr. Lyle as an individual owner. The tria1 court, apparently recognizing that by reason of the proposed construction, a portion of the general common elements would be converted to Dr. Lyle's individual ownership, directed in its judgment that the declaration of submission be amended to reflect an additional amount of cubic content space for unit 12, belonging to Dr. Lyle. (3) As previously indicated, appellees and the trial judge have recognized that there is no specific bylaw provision which would authorize appellees to do this. Rather, they rely upon a general provision in the bylaws, Article III, Section I, as follows: .Section 1. Council Responsibilities. The owners of units will constitute the Council of owners (hereinafter referred to as 'Council') and shall have the responsibility of administering the property, approving the annual budget, delegating such duties as it elects to agents designated for such putpOse, establishing and collecting monthly assessments, maintaining fire and other hazard and liability insurance on the entire property, disbursement of fire and other hazard insurance and other proceeds for repair or reconstruction of any portion of the property. Except as othetwise 1'-'\ Page 4 provided, decisions and resolutions of the Council shall require the approval of a majority of a quorum of owners.. (Emphasis added). Appellees interpret the emphasized portion of Article m, Section 1 as constituting an unlimited grant of power to the council of co-owners to consider any question which might conceivably be presented to the council, and then to decide that question by majority vote, except as otherwise specifically required in the bylaws. We disagree. In our opinion the correct interpretation of the emphasized portion of Article III, Section I, is that it does not constitute a grant of power expanding the area of questions which might be decided, but rather merely allows the approval by a majority vote of questions which are properly before the council, i. e., questions which the council has been given the authority to decide.[FN8] FN8. Article II, Section 1, deals with the voting rights of owners, and provides in part: "The vote of a 'majority of owners' of a duly constituted quorum as required by Section 3 of this Article shall decide any question brought before such meeting." When considered in context it is clear that this provision, likewise, was not intended as an all-inclusive grant of authority to the council of co-owners. (4, 5) This brings us to the heart of the issue presented here. In the absence of specific authorization in the statutes, declaration of submission or bylaws, may a condominium owner be deprived of his interest in a substantial portion of the general common elements without his consent? We hold that he may not. This is not the type of power which may be inferred. It is recognized that the council of co-owners must have broad powers in determining and managing the common uses of the general common elements, and such determinations will be upheld if they are not arbitrary and capricious, bearing no reasonable relationship to the fundamental condominium concept. Ritchey v. Villa Nueva Condominium Assoc., 81 Cal.App.3d 688, 146 Cal.Rptr. 695 (1978); Hidden Harbour Estates v. Norman, supra; Ryan v. Baptiste, 565 S.W.2d 196 (Mo.App.1978). :ijowever, in our opinion *389 **1089 the power of the council of co- 'owners to actually convert the common general elements to the exclusive and rivate use and contro .p ,one of the individual owners constitutes a takin" of the other remaining individual owners' property , . Copr. " West 1996 No claim to orig. U.S. gov!. works -~~~~---~------.,-------._---~------- .~ -~ r", ,-., 609 P.2d 1084 (Cite as: 125 Ariz. 384, *389, 609 P.2d 1084, **1089) Page S which must be clearly given by the statutes, deCI8I1Ition of subnusslOn or bvlaws before Its existence will be recognized. See, e. g., Grimes v. Moreland. 41 Ohio Misc. 69, 322 N.E.2d 699 (1974). In our opinion it is a "reat SteD from a delegation of the right to manage one's interest in - '!be general common elements for conunon purposes 10 a grant of the right to dispose of that property ilJteiest completelv for the sole, exclusive and - prIVate use of another. _ - ~ (6) Referring again to the bylaws in question. we note several instances in which minor intl1lSions into the general common elements have been authorized without the necessity of acquiring unanimous consent. Thus, in Article VII, Section 3 of the bylaws, the owner is given the right to attach fixtures to the interior service of bearing walls (part of the general common elements) SO long as he does not interfere with or damage the structural integrity of the building. Article VII, Section 4, subsection (j) prohibits exterior antennae without prior written approval of a majority of the owners. Likewise, Article VII, Section 4, subsection (k) allows exterior clotheslines only if erected or maintained in such a manner as to be 'non-visible' to the other owners. However, we find nothing in these provisions which would either directly, or by negative implication, give authority to the council of co-owners to, by majority vote or otherwise, authorize the construction and taking involved here. In summary, we hold that the trial court erred when it denied the injunctive relief sought by appellants. Accordingly, the judgments entered by the trial court Oenyh.g ~iuu,",nve tenet and awAJdiu~.... attorney's fees against appellant are reversed. The matter IS remanded tor further proceewngs not inconsistent with this opinion. CONTRERAS. P. I., and EUBANK, J., concur. END OF DOCUMENT Copr. "West 1996 No claim to orig. U.S. govt. works ,-. .~ 1. Definitions. Unless the context shall expressly provide otherwise the following definitions shall apply to the following phrases, or terms appearing in this Declaration. 1.1 "Unit" means an individual air space unit which is bounded by the unfinished interior surfaces of its perimeter walls, including the interior surfaces of windows and window frames, doors and door frames, trim, and the interior surfaces of the lowermost floors, uppermost ceilings and bearing walls of such unit in the building as shown on the Condominium Map to be filed for record, together with all fixtures and improvements therein contained but not including any of the structural compo- nents of the building, or common elements, if any, in such unit. l.2 "Condominium Unit" means the fee simple interest and title in and to a unit, together with the undivided per- centage interest in the general and limited common elements appurtenant to such unit. l.3 "General Common Elements" means and includes the real property described above, including the Common Areas as shown on the Lone pine Subdivision Exemption Plat of record together with the structural components of the buildings, in- cluding but not limited to roofs, floors other than the interior surfaces thereof (and crawl spaces beneath the floors), foun- dation, pipes, ducts, flues, chutes, conduits, wires, and other utility installations to the outlets, bearing walls, perimeter walls, columns and girders, to the interior surfaces thereof, -. regardless of location; the balconies, patios, entryways lying outside perimeter walls, walkways and parking areas, which are now or hereafter contained within the proj.ect; all installations of power, lights, gas, hot, and cold water existing for common uses, and all other parts of such land and the improvements thereon necessary or convenient to its existence, maintenance and safety which are normally and reasonably in common use, including the air above such land, all of which shall be owned, as tenants in common, by the owners of the separate units, each owner of a unit having an undivided percentage interest in such general common elements as hereinafter provided. 1.4 "Limited Common Elements" means those parts of the General Common Elements which are either limited to or reserved for the exclusive use of the owners of one or more, but less than all, of the Condominium Units all as more fully described in paragraph 5 below. "Common Elements" includes General Common Elements and Limited Common Elements. l.5 "Condominium Project" means all of the land and improvements initially and subsequently within the purview of this Declaration. 2 . J-- ~pRJ! C}~ , ,-., r-\ without the consent of all unit owners in the Project including Ginn. I. Ginn, Ginsberg and the Association now desire to amicably resolve their differences as to all construction relative to the Plans. WIT N E SSE T H FOR GOOD AND VALUABLE CONSIDEHA'I'IONS, the receipt and sufficiency of which is hereby aCk'nowledged and confessed the parties agree as follows: Ginsberg agr~es as fOl~?WS~~~i!:r~CA "t fOOD dL-,(j iJJ/d /,B 1.1 To pay to Oates, Hughes & KnezeviCh,h.c. upon the exec tion hereof by all parties the sum of $~~6.9a which reprsents one-half (1/2) the attorney fees incurred by Ginn to said law firm prior to January l, 1989 in connection with this matter. L Agreements of Ginsberg. , 1.2 On or before June 15, 1989 at the expense of Ginsberg to cause to be removed in front of his Unit 5 so much of the poured concrete patio so that after such removal the concrete patio in front of said Unit 5 shall not extend, following an east to west perpendicular line, more than forty (40) inches beyond the south end of the existing shed appurtenant to "aid Unit 5. Tu.-.Uu.. e.,1 ~"I ~'-~" 1.1" t'.,.. r.._..l...., Ginsberg shall restore the area from where the poured concrete patio is removed to a natural condition existing prior to the construction of said patio said restoration to be accomplished through the installation of earthen berming, eo~kS ~""""'W '. and planting of sod a~~. IN 'Ifie MI'oN"-'<f!n- 4T'" rl',,- lI-or't<:~"NI I/"-'Ir #-(, . -:r:N fl.'t>Di-r;()"h Q/lJ$G!FR."...s ofu/1i"rz./z,eQ 7"0 i]L/1t-J7' FLoWiERS AND /..o>v StHI.IA,f}S' /IJ 'TJiliO. MlJbs,,4P,'''';';' f>R.t:A- ~<:.p'C,p.b 0'" F-y:.,.J"3" ':e". 1.3 On or Detore June IS, 1989 Ginsberg shall at his expense remove a tree which is the most easterly Aspen tree planted by Ginsberg in the summer of 1988 as part of the addition to his patio. Ginsberg ma~ relocate the tree more westerly of its present location 'so as to not obstruct any views of Ginn. 1.4 With respect to'the relocated chimney on Unit 5 Ginsberg shall be responsible at his expense for mitigating any discharges from that chimney that unreasonably interfere with Ginn's use and enjoyment of Unit 6. Interference with Ginn's use and enjoyment of Unit 6 by discharges of the kind similar to other units in the Project where chimneys have not been relocated shall not give rise to any obligation on the part of Ginsberg to mitigate the 11- effects of discharges from his chimney. C/O' 2. Agreements of Ginn. Ginn agrees as follows: 6BJ'tL::IlliIVS ~~. 2.1 Subject to Ginsberg's performance under par4raph 1 above, ,I)j Ginn hereby withdraws and waives any eEligatio~to and approves I~)~ all construction prior to the date hereof by G1nsberg to his Unit / 5 or which affects the General or Limited Common Elements of the Project including but not limited to any construction or - 2 - , --- ~ f"""".. ,-., landscaping by Ginsberg pursuant to that certain letter of July 1, 1988 "A" or otherwise. the Plan or as described in attached hereto as Exhibit 2.2 The size and location of the existing patio in front of Ginn's Unit 6 shall not be enlarged or changed without the written consent of Ginsberg. 3. Mutual Agreements of Ginsberg and Ginn. Ginsberg and Ginn hereby mutually agree as follows: 3.l On or before June 15, 1989 to agree upon landscaping and share equally (i.e. $750.00 each) for a total of $l500.00 the cost of installing such landscaping to create privacy between the patio of Unit 5 and the patio of Unit 6 through plantings of trees and/or other vegetation. Landscaping described in the preceding sentence does not extend to any vegetation that Ginn may desire to plant at his sole expense in front of Unit 6 for privacy or any other purposes but only relates to a buffer between the Unit 6 and Unit 5 patios. All landscaping whether to be installed mutually by Ginsberg and Ginn or solely by Ginn hereunder shall first be approved by the Association which approval shall not be unreasonably withheld or delayed. 3.2 Ginn and Ginsberg hereby agree that in the event of any controversy between them, Don Ensign of Design Workshop Inc., in Aspen will act as arbitrator hereunder for certain limited matters and that with respect to such limited matters the arbitrator's decisions will be final and binding on the parties. The limited matters to be submitted to binding arbitration, are as follows: (a) Subject to the agreed price of $l,500.00 the type of trees and other vegetation and the location thereof to create a privacy buffer between the patio of Unit 5 and the patio of Unit 6. (b) Wheth~r or not Ginsberg has complied with his obligations under Paragraphs 1.2 and 1.3 and what further actions, if any, on the part of Ginsberg shall be necessary to be in compliance. Any party hereto may upon telephone notice to the other party and the arbitrator demand that any of the matters described above be submitted for arbitration. Within two (2) business days after demand for arbitration has been made, or as soon thereafter as reasonably possible, the arbitrator shall meet with the parties in a convenient location in Aspen selected by the arbitrator for purposes of rendering a decision. At such hearing only statements of the parties or their representatives shall be given. The parties shall not have any right to call witnesses; however, the arbitrator shall make a physical inspection of the property or conduct any investigations as shall be necessary. After concluding the hearing, the arbitrator may immediately - 3 - r'\ r'\ render a decision, but in no event shall such decision be rendered later than two (2) business days after the date of the hearing. The arbitrator's decision shall be communicated to the parties by telephone. It is the intent of the parties that this arbitration procedure be both simplified and expeditious. If the party demanding arbitration prevails, then the losing party shall be obligated to pay all reasonable fees charged by the arbitrator. If the party demanding litigation does not prevail, then the party demanl'ling litigation shall pay all reasonable fees charged by the arbitrator. If the agreed upon abitrator shall fail or refuse to perform its duties hereunder, then either party may apply to a court of competent jurisdiction for the appointment of a successor arbitrator. Except as to matters set forth herein, no, other dispute, controversy or claim arising out of this Agreement shall be the subject of arbitration. 4. Agreements of the Association. The Association agrees as follows: 4.1 To cause to be prepared at the expense of the Association an amended Plat to evidence the enlargement of all living rooms and patio areas (subject to Paragraph 1.2 above); relocation of the chimney appurtenant to Unit 5 and any other physical changes to the Project in accordance with the Plans or as otherwise approved by the Association. Once prepared, the Association shall at its expense diligently process any governmental approvals required to amend the Plat and once said approvals are obtained cause the amended Plat to be recorded in the real estate records of Pitkin County, Colorado. 4.2 Cause to be prepared at the expense of the Association and submitted for approval at the next annual meeting of the Association an amendment to the Declaration providing (or clarifying) that General Common Elements may be improved only for the use and benefit of all the condominium unit owners in the Project and that nQ individual unit owner may, except upon the written consent ,of all the other unit owners, appropriate or take for his or her own use any portion of the General Common Elements. 4.3 In the event any governmental approval shall be required to the amended Plat described in Paragraph4.1 above and cannot, despite best efforts of the Association, be obtained, then the remainder of this Agreement, and especially paragraphs I, 2 and 3 shall remain in full force and effect. In the event the amendment to the Declaration described in 4.2 above is not approved at the next annual meeting, the remainder of this Agreement and especially paragraphs I, 2 and 3 above shall remain in full force and effect. 5. Disclosure. In this Agreement the Association is represented by Ronald Garfield of Garfield & Hecht, P.C.; Ginn is represented by Leonard M. Oates of Oates, Hughes & Knezevich, - 4 - ,-., r-\ P.C. and Ginsberg is represented by Michael J. Herron of Cummins & Herron. 6. Costs. Except as provided in paragraph 1.1 above, each party hereto shall pay their own attorney fees in connection with the negotiation, preparation, review and execution of this Agreement. Notwithstanding the preceding, Ginn and Ginsberg acknowledge and agree that all attorney fees in connection with the negotiation, pr,paration, review and execution of this Agreement and any attorney fees and other costs (e.g. survey, fees for any land use application, recording fees) incurred in the preparation or approval of an amended Plat and amendment to the Declaration as more fully described in paragraphs 4.1 and 4.2 above shall be assessed to all members of the Association including Ginn and Ginsberg and Ginn and Ginsberg hereby agree to pay their prorata share of such attorney fees and other costs. 7. Release. Excepting only the obligations of the parties set forth in this Agreement, each of the parties hereto does mutually for itself, its successors and assigns (and in the case of the Association, its past and present shareholders, officers, directors, agents and employees) remise, release, forever discharge and hold harmless the other from and against any and all liability for any claims, demands, damages, costs, actions, rights and causes of action whatsoever of any kind and nature, resulting from or arising out of or with respect to any actions taken or omitted to be taken by any party hereto regarding any construction relative to the Plan, including but not limited to, the expansion of living rooms and appurtenant patio areas. Without limit to the foregoing, Ginn waives any right, claim or cause of action for damages or otherwise he may have against Ginsberg or the Association with respect to any construction or improvements described in Paragraph 2.1 above; any actions taken or omitted to be taken in connection with the approval of the Plans, use of any General or Limited Con~on Elements or any other matters relative to the expansion of living rooms, appurtenant patio areas, laT\dscaping, ohimneys or any other matters related thereto. The making of this release shall not be construed as any admission by o~ against the parties hereto. By making this Agreement and in particular this release none of the parties hereto admits or denies anything with respect to any claims or demands heretofore made by Ginn or any other parties. B. Miscellaneous. 8.1 Binding Effect. This Agreement shall be binding upon the parties hereto, their heirs, successors and assigns and shall be a burden and benefit to the lands herein described, any present or future owner thereof, and shall run with the title to such lands. Notwithstanding the foregoing, neither this Agreement nor any memorandum hereof shall be recorded in the real estate records. - 5 - " ,-. ,-., B.2 Colorado Law Prevailing Party Attorney Fees. Should any litigation be commenced between the parties hereto concerning any provision hereof, or the rights and duties of any person in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for its attorney fees in such litigation which shall be determined by the court in such litigation or in a separate action brought for that purpose. 8.3 Severabili1:Y. If any provision of this Agreement is held to be illegla, invalid or unenforceable under present or future laws effective during the term of this agreement, such provision shall be fully severable; this agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this agreement; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provisions or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable. 8.4 Telecopy Execution. A facsimile, telecopy or other reproduction of this Agreement may be executed by the parties and shall be considered valid, binding and effective for all purposes. At the request of either party, the parties agree to execute an original of this Agreement as well as any facsimile, telecopy or other reproduction. B.S Counterparts. This Agreement may be executed in counterparts and, as executed, shall constitute one agreement binding on all of the parties hereto notwithstanding that all said parties are not signatory to the original or same counterpart. B.S Further Act's. The parties agree to request to promptly perform such furthe~ acts and execute and deliver such further agreements or other documents as may be reasonably necessary to effectuate and carry out the provisions of this Agreement. - 6 - . . ,-. ...-., IN WITNESS WHEREOF, this Agreement is signed the day and year first written above. By: J{(Z tcfA.. oberta AlleIl, . Pr {Z.,,-,<,,&.:y--- sident LONE PINE TOWNHOUSE ASSOCIATION, INC. a Colorado non-profit corporation STATE OF Clc!.orc7d 0 PI'tt.iD ) ) ss: ) COUNTY OF Subscribed and sworn to before 'j'11aACI'\. , 19B9 by Roberta Allen, Townhouse Association, Inc. th ' ,::.<r.!! me l.S ~ President of day of Lone pine WITNESS my hand and official seal. My commission expires: ':)Cb(.U{l.A1 ((/~991 ~U JIjt1, Luaeu No ry Public S'l'ATE OF )f~..u l(&1i(l COUNTY OF ",.t..1c.1<-!. ~:ig, ) ) ss: ) " ~ .,'1-", ,<- day of ,"..'o"'~".,. '., ./ '" "';/0 ,',\~\J ......... .> ,.;'..... ;,., '. "'.( . t:::,,.. / " t::>.. -;. .. [, ')\1 Bn",u> .-', --.-- ~, :.. -<.!tr 10t\ ....~.. ". J'cr' .,.. "," "",,>'7 .:W .~'~' ',"/1.:."..": " ~ Subscribed an~ sworn to before me this )[..(,.(ut ' 1989 by Jerome D. Ginsberg. WITNESS my hand and official seal. My commission expires: t~ ~tli JUl.ES [l, DANTO Notary PUbhl:, ~.~'.Ito of New 'York No. U:.:.UI~5917350 Qualiii13d in ;'.ie '/ York County COl1l1nissioi\ ~..j:":::s hlJY :"::$1,1910 - 7 - .. ~., .../1 ,-., , /''''''\ STATE OF rJ~ ~ft, :, ) ) ss: ) COUN'ry OF ~,:SUbscribed and sworn to before me this ~fl , 19B9 by John C. Ginn. 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