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HomeMy WebLinkAboutcoa.lu.su.Kastelic.A82-96 DATE RECEIVED: DATE COMPLETE: PARCELID# CASEnn SUMMARY SHEET - CITY OF ~EN 11/4196 CASE # A8t-~6 STAFF: Kim Johnson 2737-181-57-01 Kastelic Subdivision Extension fo Vested Rights Lot 1, Kastelic Subdivision B.A. Powell Limited Partnership PROJECT NAME: Project Address: APPUCANT: AddresslPhone: REPRESENTATIVE: PaulJ. Taddune AddresslPhone: 323 West Main ST. Suite 301 Aspen 925-9190 RESPONSffiLE PARTY: Representative Other Name/Address: FEES DUE PLANNING ,ENGINEER HOUSING ENV HEALTH CLERK TOTAL FEES RECEIVED $1050 PLANNING $1050. $0 ENGINEER $ $0 HOUSING $ $0 ENV HEALTH $ $0 CLERK $ $1050. TOTALRCVD $1050. # APPS RECEIVED 1 # PLATS RECEIVED GIS DISK RECEIVED: TYPE OF APPUCATION One Step P&Z CC CC (2nd readin REFERRALS: o City Attorney o City Engineer o Zoning o Housing o Environmental Health o Parks o Aspen Fire Marshal o City Water o City Electric o Clean Air Board o Open Space Board o Other: o CDOT o ACSD o Holy Cross Electric o Rocky Mtn Natnral Gas o Aspen School District o Other: DATE REFERRED: INITIALS: DATE DUE: APPROVAL: OrdinanceIRes01ution # Staff Approval Plat Recorded: Date: Date: Book ,Page CLOSEDIFILED ROUTE TO: DATE: ~-:/I' INITIALS: d- ,....." ,-" RECEIVED MAY 2 0 1991 LAW OFFICES OF PAUL}. TADDUNE, P.c. 323 WEST MAIN STREET, SUITE 301 AsPEN. COLORADO 81611 CO A.SPEN, O!TKIN MMUN/TY DEVELOPMENT PAUL J. TADDUNE, P,e. WILLIAM K. GUEST, P.C, OF COUNSEL ANDREW H. BUSCHER, OF COUNSEL May 16, 1997 TELEPHONE (970) 925-9190 FACSIMILE (970) 925-9199 Mitch Haas, City Planner City of Aspen 130 S. Galena Street Aspen, CO 81611 Dear Mitch: This will confirm our conversation that the RA. Powell Johnson LTD and Win Win LLC application to extend vested rights is hereby withdrawn. Please call me if you have any questions. Very truly yours, PAUL J. TADDUNE, P.C. ~ Paul J. Taddune PJT:jec C,IWP\PAUL\LETTER\MT.PIT ,1'""\ ,~ VUb MEMORANDUM TO: Mayor and City Council THRU: Amy Margerum, City Manager /--1?, /' Stan Clauson, Community Development Directg;- ~ y Julie Ann Woods, Community Development Deputy Directo .' \ Mitch Haas, Planner ~ April 14, 1997 THRU: FROM: DATE: RE: Win Win LLC/Kastelic Vested Rights Extension - Request to Continue Second Reading of Ordinance No. 42, Series of 1996 Staff requests that second reading of Ordinance 42-96 be continued to July 14, 1997. After a public meeting of the Aspen Planning and Zoning Commission on January 21, 1997, whereby the applicants were granted Stream Margin (ESA) Review approval (7-0) pursuant to the current standards of Section 26.68.040, the applicant requested to have the vested rights extension application continued to March 10, 1997. The continuation of second reading before Council provided the applicants with a thirty day public appeal period of the Stream Margin Review approval while maintaining their request for vested rights extension. This thirty day public appeal period has since expired, and no appeals were filed. The applicant has, nonetheless, requested that the hearing be continued to the July 14, 1997 Council hearing in order to allow for the closing on the sale of the property to take place. That is, the applicant desires to keep as many options as possible open until the final sale of the property is completed. Once the closing takes place, the applicant will more than likely withdraw the requested extension. In staffs opinion, accommodating the applicant's request to continue the hearing would not cause any hann to the public good, nor would it conflict with any provisions of the Code. Staff recommends that Council continue the item to July 14, 1997. ,-..,. 1'""\. MEMORANDUM "" iL, TO: Mayor and City Council THRU: Amy Margerum, City Manager /:.v 'r Stan Clauson, Community Development Director c;,. Julie Ann Woods, Community Development Deputy Director Mitch Haas, Planner ~ ' THRU: FROM: DATE: March 10, 1997 RE: Win Win LLC/Kastelic Vested Rights Extension - Request to Continue Second Reading of Ordinance No. 42, Series of 1996 Staff requests that second reading of Ordinance 42-96 be continued to April 14, 1997. After a public meeting of the Aspen Planning and Zoning Commission on January 21, 1997, whereby the applicants were granted Stream Margin (ESA) Review approval (7-0) pursuant to the current standards of Section 26.68.040, the applicant requested to have the vested rights extension application continued to March 10, 1997. The continuation of second reading before Council provided the applicants with a thirty day public appeal period of the Stream Margin Review approval while maintaining their request for vested rights extension. This thirty day public appeal period has since expired, and no appeals were filed. In staff s opinion, there is no remaining reason for the extension request to be processed, but the applicant has not formally withdrawn the request. As the applicant could not be reached, staff felt the most appropriate solution would be to continue the hearing, rather than make any decisions. If the applicant would like to withdraw the request, they can still do so before the April 14, 1997 hearing. If they would like to continue to process the request, staff would gain time to understand the reasoning behind such a desire. Staff recommends that Council continue the item to April 14, 1997. //?;::t~~, i' 1,,,"" ..;~~ ~'\ ~..\ (":-",-1,. . f'7.4f? 1 1 1910 i' '.( \,"~~~. / ~~~~ ,~ .~ ,~ MEMORANDUM ",,& TO: Mayor and City Council . / Amy Margerum, City ManagerlU! Stan Clauson, Community Development Directo~ THRU: FROM: DATE: January 27, 1997 RE: WinWin LLC/Kastelic Vested Rights Extension - Request to Continue Second Reading of Ordinance No. 42, Series of 1996 The applicants request that second reading of Ordinance 42-96 be continued to March 10, 1997. This request was made after a public meeting of the Aspen Planning and Zoning Commission on January 21, 1997, whereby the applicants were granted Stream Margin (ESA) Review approval (7-0) pursuant to the current standards of Section 26.68.040. The continuation of second reading before Council will provide the applicants with a thirty day public appeal period of the Stream Margin Review approval while maintaining their request for vested rights extension. Staff recommends that Council open the public hearing and continue the item to March 10, 1997. FROM :HERBERT S~ ~LEJN a RSSOC TO ^ +970 920 5439 1997,1211-22 .-., 10:08 "585 p~e2/02 lAWQFFk:lES ~ HERBERT s. KiEIN & ASSOCIATES, P.C. HERBEAT S. >a.EJN MILLARDJ. :zrM~ MIGHaE NE:LSONIIo THC?MAS ... KIONN.D.... 213t NoRnTMlLLSTAEET' SUiTe 21D WEN, QI1ORAOO 8t511 iJJ7~_ 'TI3..EcaPlER(D:i'q~25'..oon "'LlllllID.<OFI'ICl1: P,O, BCX=15 :lllQWES1'Ca..cRAOOA~NUE! su""'" TELLURIDE, COLCRlO:I e143S {l'J'D)_::t1B1 ~PIIl.R l!mI17al-W80 OFOOUNSE~ IlALE DUN~N. MYRON ROSOHKO" .w;cUEllNE L GAIlDIml 'Jlmallmil1el:!el\1dM ~~a:lMlltIillQliroliUla=:HMt.ii ....""'OIoIIllM""" 1II'.~tn1&atll'lltha OIslltl.l:IIC~llJlI1i:r. ~]!~;dfi~I!dIJl~ 8IDGWAYOftilge 1tt\lll.AGE.ealflAI: ~ AIOG\YA't". ClOa'(4Il2 iJJ7~_ TEI..ECCPlER{91CIJ~ January 22, 1997 VIA FAX, ~2a-5439 Scan Clausen Aspen community Development Director 130 South Galena Street Aspen, Colorado S1611 Re: Lots 1 and 2, Kastelic Subdivision - Extension of Public Hearing Dear stan: As we discussed at last night's Planning Commission meeting on~ this matter, we wish to continue the pending City Council Public Rearing on our extension of vested rights application from January 27, 1997, to March 10, 1997. It is suggested that Covnci~ open the hearing at its regular m~eting on January 27 and then continue consideration until March 10. I have spoken with Paul Taddune. the attOl:'ney for the owner of the property and the applicant in this matter. Paul has authbriz~d me to confirm that it is also his desire to have the publiC hearing continued until March 10. I would appreciate receiving a short note of confirmation from you that the hearing will be handled in the manner set forth in this letter and continued until March 10, 1997_ Thank you very much for your cooperation. please call me . if you have any questions. Very truly yours, HERBERT S. KLE:JiN & ASSOCIATES, l? C . By: He~. Klein -.' HSK\rf cc: Paul Taddune, Esq. Larry Winnerman G:\w:t~\OlC.'lL'1! 1"". 1"", MEMORANDUM TO: Aspen City Council THRU: Amy Margerum, City Manager Stan Clanson, Commnnity Development Di;ector~ December 9, 1996 FROM: DATE: RE: WinWin LLC/Kastelic Vested Rights Extension - Request to Table Second Reading of Ordinance # 42, Series of 1996 The applicants request that second reading be tabled to January 13, 1997. This request was made after a meeting between staff and project representatives Herb Klein and Bill Campbell where development alternatives were discussed. The tabling will allow the applicants additional time to consider the alternatives. Staff also requested that proposed building envelopes be staked on the site prior to continuing the item before Council. Please refer to the November 27 letter from Herb Klein, attached. Staff recommends that Council table this second reading to the January 13 meeting. ,-.., ,,-', PUBLIC NOTICE RE: WINWIN LLC VESTED RIGHTS EXTENSION NOTICE IS HEREBY GIVEN that a public hearing will be held on Monday, December 9, 1996 at a meeting to begin at 5:00 p.m. b~fore the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St., Aspen, to consider an application submitted by Win Win LLC and B.A. Powell, LLC, requesting an extension of a previous vested right. The property is described as Lot 1 and Lot 2 Kastelic Subdivision. For further information, contact Mary Lackner at the AspenlPitkin Community Development Department, 130 S. Galena St., Aspen, CO (970) 920-5106. stJohn Bennett. Mayor ' Aspen City Council Published in the Aspen Times on November 30, 1996 City of Aspen Account r-. ~ MEMORANDUM VIHb TO: Aspen City Council THRU: Amy Margerum, City Manager FROM: Stan Clauson, Community Development Director DATE: December 9, 1996 RE: WinWin LLC/Kastelic Vested Rights Extension - Request to Table Second Reading of Ordinance #42, Series of 1996 The applicants request that second reading be continued to January 13, 1997. This request was made after a meeting between staff and project representatives Herb Klein and Bill Campbell where development alternatives were discussed. The continuation will allow the applicants additional time to consider the alternatives. Staff also requested that proposed building envelopes be staked on the site prior to continuing the item before Council. Please refer to the November 27 letter from Herb Klein, attached. Staff recommends that Council open the public hearing and continue the item to January 13, 1997. t"'""- ,"-'" LAW OFFICES OF " ~\ <1\ \ DEe 0 2 1996 TaLU",D' OFFICE: . P.O. BOX215 cc....Yf 300 WEST COLORADO AVENue ~ C~V!'_ ''''''''_'''.,: SUlTE2B URrCE, COLORADO 81435 (970) 72S-S151 TE!..ECOprER (970) 728-3069 HERBERT S. KLEIN & ASSOCIATES, P. HERBERT S. KLEIN MILLARD J. ZIMET* MICHELE NELSON' THOMAS G. KENNEDY< 20t NORTH MILJ.. STREET SUITE 203 ASPEN, COl..ORADOB1611 (970) 925-8700 TEI.ECOPIER (970) 925.39n OF COUNSEL: DALE DUNCAN" MYRON ROSCHKCT"I JACQUEUNE L GARDNER *a1sc admilted in New YO/K 6aJso 3dmilted in Califomiaand Hawaii ~a1SOadmmedinMalylar1d "'a1soadmilted in Texas and the Disllid of Columbia "alsoadmilledin Calilornia Novemb~r 27, 1996 RIDGWAY OFfICE: 122 VIl1..AGE SQUARE WEST RIDGWAY, CO 81432 (970)828-3888 TEI.ECO?IER (970) 628-3977 Stan Clausen Aspen Community Development Director 130 S. Galena Street Aspen, CO 81611 Re: Lots 1 and 2, Kastelic Subdivision - Extension of Public Hearing Dear Stan: I appreciated the opportunity to meet with you, Bob and Kim last week to discuss issues concerning the above-referenced property and it's pending hearing scheduled for December 9, with City Council on the application for extension of vested rights. In order to have an opportunity to work with staff on defining the siting requirements for the property, we mutually discussed and agreed that it would be a good idea to continue the public hearing from December 9th until January 13, 1997. We ,have already sent notices and posted the notice for the hearing on December 9th and suggest that Council open the hearing at its regular meeting on December 9th and then continue consideration until January 13th. I have spoken with Paul Taddune, the attorney for the owner of the property and the applicant in this matter. Paul has authorized me to confirm that it is also his desire to have the public hearing continued until January l3. I would appreciate receiving a short note of confirmation from you that the hearing will be handled in the manner set forth in this letter and continued until January 13, 1997. Thank you very ^ -, Stan Clausen November 27, 1996 Page 2 much for your cooperation. We expect to get back with you within the next couple of weeks to review a proposal for siting buildings on the property. Please call me if you have any questions. Very truly yours, HERBERT S. KLliIN & ASSOCIATES, // ;y' '/Z__ P.C. By: Herbert S. Klein HSK\rf cc: Paul Taddune, Esq. Larry Winnerman G:\~\010.~ ,-., -, LAW OFFICES OF o 2 19:~u.uRIDEoFFlcE: " P.O.BOX215 ~ 300 WEST COLORADO AVENUE SUITE 28 RIDE, COLORADO 81435 (970) 728-5151 TELECOPJER (970) 728-3069 HERBERT S. KLEIN & ASSOCIATES, P. HERBERT S. KLEIN MILLARD J. ZIMET* MICHELE NELSON' THOMAS G. KENNEDY" 201 NORTH MILL STREET SUITE 203 ASPEN, COLORADO 81611 (970) 925-B7oo TELECOPIER (970) 925-3977 OF COUNSEL: DALE DUNCAN" MYRON RaSCHKe>" JACQUEUNE L GARDNER *a1s0admiltedinNewYclk ~lsoadmilledinCalifomjaandHawaji ~alsoadmmedjnMaryland '"a1scallmilted in Texas and !he Oislriclof CoJumbia "alsoadmilledinCalifornia November 27, 1996 RIDGWAY OFFICE: 122 VILLAGE SQUARE WEST RIDGWAY, CO 81432 (970) 626-3888 TELECOPfER (970) 626-3977 Stan Clausen Aspen Community Development Director 130 S. Galena Street Aspen, CO 81611 Re: Lots 1 and 2, Kastelic Subdivision - Extension of Public Hearing Dear Stan: I appreciated the opportunity to meet with you, Bob and Kim last week to discuss issues concerning the above-referenced property and it's pending hearing scheduled for December 9, with City Council on the application for extension of vested rights. In order to have an opportunity to work with staff on defining the siting requirements for the property, we mutually discussed and agreed that it would be a good idea to continue the public hearing from December 9th until January 13, 1997. We have already sent notices and posted the notice for the hearing on December 9th and suggest that Council open the hearing at its regular meeting on December 9th and then continue consideration until January 13th. I have spoken with Paul Taddune, the attorney for the owner of the property and the applicant in this matter. Paul has authorized me to confirm that it is also his desire to have the public hearing continued until January 13. I would appreciate receiving a short note of confirmation from you that the hearing will be handled in the manner set forth in this letter and continued until January 13, 1997. Thank you very , . ~, ~ Stan Clausen November 27, 1996 Page 2 much for your cooperation. We expect to get back with you within the next couple of weeks to review a proposal for siting buildings on the property. Please call me if you have any questions. Very truly yours, HERBERT S. ~N & ASSOCIATES, ~/ .L-- Herbert S. Klein P.c. By: HSK\rf cc: Paul Taddune, Esq. Larry Winnerman G:\~\010.L~ r<,' ,--_. .'.,...... ,..J....--woJ. " ',k';"~""'" .''r~~W'''''4~;'~''\:_IIL. "1,"" ..., . 729 F'G 7BO f .(1) . OQ R2Cf25,OO 8K "~/"':983 \\1013/9:1 101 C ty Clerk, Doc , Pitkin n . 51 lvi,~ Dnvdl, BoctioJL1: r rursu3nt to tno findings Fot forth in Section 2 abovo, , the city Council does hereby grant subdivision and PUD approval of the Kastelic property, con!Jisting of 2 lots, each containing ar. existing single-family dl"cUing unit, with the following conditions: 1. Due to slope densitl' ruduction calculations, only a single- family home plus any acce!:5ory dwelling unit or building, is permitted on each lot pursu/lnt to the Municipal Code for single- family homes in the R-15 zone district, 0/2. Prior to the issuance of ilny demolition, excavation or building permits for Lot 1 or Lot 2, st~eam margin r.eview (if applicable), shall be required. 3. The rear yard setback tor Lot 1 shall be varied from the required ten feet to five I feet for the existing residential , structure. The redevOlopment\of Lot 1, through the replacement of the existing residential ~tructure, shall comply with the dimensional requirements of t~e R-15 zo~~ district and the approved building envelo, pe, unless val\ied through the pUD review process. If the existing residential structure on Lot 1 is damaged or destroyed in whole or in part, :any reconstruction shall occur under the applicable provisions of ith:'! l1unicipal Code. This shall be noted on the subdivision plat. 4. Prior to the issuance of a~y building permits for Lot I ~r Lot 2, tree removal permits shall im required for any trees over 6" in caliper that are removed or relocated. 5. A final plat shall be reviewed and approved by the Engineering and Planning Departments. The plat sh.>ll include the book and page of the recording and current improvements as would be required for redevelopment. 6. The final subdivision plat shall be filed within 180 days of final approval. Failure to file said plat and subdivision agreement within 180 dftYs shall render the subdivision approval void. 7. Prior to the issuance of any building permits [or Lot I or Lot 2, the applicant shall consult; with the City Engineer to determine whether a drainage analysis is'nocessary. 8. Upon redevelopment of Lot I or Lot 2, by the demolition and replacement of the existing residential dwelling on sllch lot, the developer of sllch lot shall lIpgrade all utilities on suchlat and locate them underground as required on such lot.) 3 ~ .' ~ i.'.' ).... 'i . " '. .. ., .. ... " ", .' 3".'. '; ~~. , f" I .. , i .. " :!,' f':' ~ " ;am , "I .":~ , t .t. , ! .. .. .. .. ~.. ,. 1 '. , I r: l~ 1 I r' I I., I r ,-. '-'\ . . "J6298J 1..08/9J 10:09 Rec .25.00 BK 72, PG 781 SIlvia Davis, Pitkin Cnty Clark, Doc $.00 v 9. The applicant shall adhere to all representations made in the applicat,ion and during the review process. I' 10. Prior to the issuance of any building permits, a review of any proposed changes from the approvals, as set forth herein, shall be made by the planning and Engineering Departments. lL The recorded final plat shall i,nclude the revised building YI envelopes indicating that thQ tn",s are being protected and that the envelopes are out of the propo~ed trail alignment. At the time of stream margin review application, the applicant may request to vary the building envelope depending on then existing site conditions. This language shall be ~eflected on the final plat. B60tion ~: Pursuant to Section 24-6-207 of the Municipal Code, City Council does hereby grant the applicant vested rights for the Kastelic sUbdivision/PUD development plan as follows: 1. The rights granted by the site specific development plan approved by this ordinance shall remain vested for three (3) years from tha date of final adoption specified belOl,'. However, any failure to abide by the terms and conditions attendant to this approval shall result in forfeiture of said vested property rights. Failure to timely and properly record all plats and agreements as specified herein and or in the Municipal codn shall also, result in the forfeiture of said vested rights. 2. The approval grantec1 hereby shall be subject to all rights of referendum and judicial review. . J. Nothing in the approvals provided in this Ordinance shall exempt the site specific development plan from subsetjuent reviews and or approvals required by this ordinance or the general rules, regulations or ordinances or the City provided that such reviews or approvals are not inconsistent with the approvals granted and vested herein. 4. The establishment herein of a vested property right shall not preclude the application of ordinances or regulations Which nre general in nature and are applicable to all property subject to land use regulation by the city of ASf..en including, but. not limited to, building, fire, plumbing, elect\: ica 1 and mechanica I codes. In th is reSlard, as a condition of this site develppment approval. the developer shall abide by any and all such building, fire, plumbing, electrical and mechanical codes, unless an exemption therefrom is granted in writing. 4 ;, j , F . f -. '. ~ ~ ';. y I':~ r. r, .' , I. \ i .. \ ,.. ....; --- --- . "362983 11/08/93 10109 Rile t.25.00 ElK 729 F'G 782 Silvia Davl~. F'ltkln Cnty Clark, Doe ..00 Bection SI If any section, sUbsection, sentence, clause, phrase, I I or portion of this Ordinance is for any reason held invalid or ~nconstitutional in a court of competent juriSdiction, such porLlon shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Bection 6: This Ordinance shall not effect any existing litigation and shall not operate as an abatement of any acl:ion or proceeding now pending under or by virtue of the ordinances repea'l ed or amended as here in prov ided, a nd the same sha 11 be 1 conducted and concluded. under such prior ordinances. Ii ,I Bection 7: A public hearing on the Ordinance shall be held on the " -M day of ~ 1993 at 5:00 in the City Council Chambers, ii' Aspen City Hall, Aspen Colorado, fifteen (IS) days prior to which hearing a public notice of the same shall be published in u newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, ~~""Oil of tho City of 199J. ......... ?-'" ('.' . '. John ". Ka.~hryn ,. " 1!2;-'! "~;LI;Y, adopted, passed WLL _' 1993. 1.3.. Aspen on ~ 5. annett, the day of (}'.....- . ~. \ \ Mayor \ I f: I~ ., !~ , and approved this oP~ day of ~5'1>.~ John B nnett, Mayor (,,..:., .~~ " "'I}.. U :;", " .,1\' ......1.1.. S \. " - . .. r-- ~, MEMORANDUM Vie:.- TO: Mayor and City Council ~ . I I Amy Margerum, City Manage{JW , Stan Clauson, Community Development Directoo/ THRU: FROM: DATE: November 11, 1996 RE: Kastelic SubdivisionlPUD Extension of Vested Rights (Winwin LLC) ----------------------------------------------------.-------------------------------------------------------- SUMMARY: B.A. Powell Limited Partnership and Winwin LLC (applicants) request a six month extension of vested rights for a two parcel subdivision which was approved with conditions in 1993. The property is located along the bank of the Roaring Fork River at 570 Riverside Drive. Building envelopes were specified on the approved plat. The approval was conditioned upon Stream Margin approval for any permitted development on the two lots. As part of the extension request, representative Paul Taddune seeks to have "an extension of vested rights be granted so that the land development regulations in place and applicable to the property in 1993 be counted, to avoid penalizing Mrs. Johnson and her family for not being aggressive in developing the property. " Since the 1993 approval of the subdivision, the City adopted revised Stream Margin Review standards which affect the buildable areas on the two subject lots. Therefore the building envelopes on the plat are not current with today's required river-side setbacks. Community Development staff does not recommend any extension of vested rights for this property. There are no changes to the property's situation which should compel additional vested rights. Current Stream Margin Review standards should be applied to any development on the parcels. PREVIOUS COUNCIL ACTION: This subdivision was approved by Ordinance 49 Series 1993. Lengthy discussions about saving trees, potential trail alignments, and building envelopes were part of the P&Z and Council review. BACKGROUND: Please refer to Exhibit A for application and copy of original approval ordinance 49, Series 1993. The adoption of Ordinance 49 approved the two lot subdivision with conditions. The plat was filed which made permanent the configuration of the lots and development rights for each. Included was a 5 foot rear setback variance for the existing structure on Lot 1. Upon redevelopment of Lot 1, the R-15 dimensional requirements (setbacks) and approved building envelope would prevail. The Commission and Council also stipulated that future development for each lot would be subject to ,--.. /-' Stream Margin Review because the lots and building envelopes were so close to the riverbed. In 1995, in response to development along the river which degraded the ecologic and scenic qualities of the riparian corridor, the P&Z and Council amended the Stream Margin Review standards to require, among other things, mandatory setbacks for structures along the river. The revised standards would require new homes on the Kastelic lots to be further from the riverbank than the building envelopes approved during the subdivision approval in 1993. According to the City Attorney, the rights vested in the 1993 subdivision approval are essentially the right to rely on the Stream Margin Review standards in effect at the time of the vesting action (see Exhibit B, memo to Stan Clauson). He does not believe that the 1993 vesting action approved using the 1993 Stream Margin Review standards in perpetuity. CURRENT STATUS: The application for vested rights was submitted to the Community Development Department on September 24,1996. The 3 year period of vested rights expired on October 25, 1996. The City has taken the position that if an application for extension of vested rights is submitted prior to lapse of the original vested rights, any extension which might granted by City Council would be retroactive to the expiration date. STAFF COMMENTS: Section 26.100.100; Expiration of development order, of the Municipal Code states that development allotments and all other development approvals shall expire on the third anniversary of this date, unless a building permit is obtained and the project developed, or unless an exemption from or extension of the approval is obtained. To obtain an extension, an application shall be submitted which shall demonstrate to the satisfaction of City Council that: a) Those conditions applied to the project at the time of its final approval that were to have been met as of the date of application for exemption have been complied with; RESPONSE: Aside from the requirement to record the plat within 180 days of approval, other conditions of approval are required to be met prior to the issuance of any building permits. b) Any improvements that were required to be installed by the applicant prior to construction have been installed; RESPONSE: No public improvements were required until demolition and replacement of dwellings on the lots. c) The project has been diligently pursued in all reasonable respects, and the extension is in the best interests of the community. 2 r". ,r-, RESPONSE: There has been no evidence that the owner ofthe parcels have pursued redevelopment of the lots. No informal discussion or formal pre-application meetings with staff have taken place during the last three years. The property was listed for sale and has recently been placed under contract with Larry and Lorrie Winnerman. Staff finds that the community's interest would be harmed by granting extended vested rights (including use of the 1993 Stream Margin Review standards) for this property. The old Stream Margin Review standards were inadequate at best in protecting the riparian habitats and the river-as-a-greenbelt community asset. We have seen several examples of pre-1995 stream margin projects where construction right along the riverbank has caused obvious visual or physical degradation of the river bank and native habitat corridor. The fact that the Council and P&Z strongly favored the code amendments shows the level of concern to improve and protect the river's future. The applicant states that the Council has granted several extension of vested rights. This has been true to some extent over the past six or more years. However, Council has not taken these extensions lightly. These approvals have revolved around large "projects-in- progress" such as the Bell Mountain Lodge/Independence Place project or the Aspen Institute/Aspen Meadows project. Staff does not believe the Kastelic lots to be in the same category as these other examples. S-TAFF RECOMMENDATION: Community Development staffrecommends denial of an extension of vested rights for the Kastelic Subdivision PUD, finding a lack of community benefit to support an extension. If Council wishes to approve an extension of vested rights, staff has prepared Ordinance 'f:L, for first reading (Exhibit C.) ALTERNATIVE RECOMMENDATIONS: Council may approve a different duration for extension of vested rights, or deny the extension of vested rights. RECOMMENDED MOTION: "I move to deny the six month extension of vested rights for the Kastelic Subdivision PUD." CITY MANAGER'S COMMENTS: Exhibits: A - Application Letter and Ord. 49 Series 1993 from Paul Taddune B - Memo from John Worcester to Stan Clauson - 1111196 C - Ordinance I{~ Series 1996 3 r-. -, PUBLIC NOTICE RE: WINWIN LLC VESTED RIGHTS EXTENSION NOTICE IS HEREBY GIVEN that a public hearing will be held on Monday, November 25, 1996 at a meeting tobegin at 5:00 p.m. before the Aspen City Council, City Council Chambers, City Hall, 130 S. Galena St., Aspen, to consider an application submitted by WinWin LLC, requesting an extension of a previous vested right. The property is described as Lot I and Lot 2 Kastelic Subdivision. For further information, contact Mary Lackner at the Aspen/Pitkin Community Development Department, 130 S. Galena St., Aspen, CO (970) 920-5106. s/.John Bennett. Mayor Aspen City Council Published in the Aspen Times on November 9, 1996 City of Aspen Account , ,-, .r-,. :f . THE OTY OF ASPEN OFF!CE OF THE CITY ATTORNEY November 1, 1996 Herbert S. Klein, Esq. 201 North Mill Street, Suite 203 Aspen, Colorado 81611 Re: Kastelic SubdivisionlPUD Dear Herb: Enclosed please find a copy of the memo I promised to prepare at ,our meeting last Friday (October 25, 1996). You will note that I have concluded that the granting of vested rights in 1993 included the right to have the stream margin review conducted under the then existing regulations. Late Wednesday afternoon I received a hand delivered letter from you which purports to confirm the conversation we ~had at our last meeting, and sets forth your legal theories on the status of the vested rights and stream margin review requirements for the Kastelic subdivisionlPUD. The following is my response to that letter. ' Let me begin by noting that I was surprised at the tenor and tone of your letter. Based upon our past dealings, limited as they may be, I am disappointed in your efforts to 'paint the City, and me, as co-conspirators to illegally deprive your clients of their property rights. The City has never', as long as I have been here, come even remotely close, to behaving in the manner you imply it has in this matter. At one point you suggest that the City's attempt to enforce its Land Use Code "as being suspect and motivated for the purpose of lowering the City's condemnation cost." At another, you suggest that should the City require your clients to proceed under the 1995 stream margin review process it will be motivated by its ability to illegally exact a trail easement. The accusations are ridiculous and internally inconsistent even if you are to assume a nefarious motivation on the part of the City. If a trail easement can be exacted I through the stream margin review process, why would the City conspire to reduce the value of the property to obtain lower condemnation c6sts? 130 SOUTH GALENA STREET. ASPEN, COLORADO 81611 . PHONE 303.920.5055 . FAX 303.92Q.5119 P,inledonr<<ydedp.opcr ., f"'""'\ -, Herbert S. Klein, Esq. November 1, 1996 Page 2 For everyone's sake, I think it would be useful to review the history of this particular property and offer you my thoughts on the legal issues that you raise in your letter. I will also confirm my understanding of the matters discussed in our last meeting as I take issue with many of the observations you make in your October 30, 1996, letter on this subject. , The City's interest in a trail along the Roaring Fork River is by no means a secret. It has been identified as a desirable ,corridor in numerous City documents over the years. (See e.g., Pedestrian Walkway and Bikeway System which was made an Addendum to the 1990' Aspen Area Comprehensive Plan, and the, Open Space/Recreation and Environmental Action Plan of the 1993 AspenArea Community Plan.) It was discussed with the Kastelic representatives at the time the subdivision was approved in 1993. Indeed, the ordinance itself makes reference to the City's interest in acquiring a trail easement. "[T]he Commission recognized that a trail easement cannot be required as part of this subdivision but would urge the applicant to consider granting an easement to help complete the City's trail system along the river." (Ninth "Whereas" clause of Ordinance 49, Series of 1993.) Since 1993, members of the City staff have met on numerous occasions with Paul Taddune who represented the Kastelic estate and subsequent owners regarding the City's interest in a trail easement. Those discussions were held with members of Council, numerous visits were made to the site, alternative trail locations have been studied at the request of the property owners, and discussions were held to not only purchase a trail easement, but the entire lots. Before any of those matters were successfully concluded, your clients apparently put the lots under contract. Upon learning that your clients had put the property under contract, City staff immediately contacted your clients to ensure that ,they were aware of the City's interest in the property. This was purposefully done so that they would know before the purchase was consummated that the City trail system might traverse the property. Discussions were held concerning alternative trail alignments, and the City's intent on connecting existing trail easement East of the property with the Anderson parcel to the West. During this period of time, the status of Mr. Taddune's request for an extension of the vested rights was not clear. City staff members met with your clients on site on at least two occasions, the first time no more than 13 days after receiving Mr. Taddune's request for an extension of vested rights. (At the time, staff was not even sure what rights were being requested to be extended.) Moreover, it appeared, during at least some of this time, that everyone's interests could be accommodated eitber by agreeing on a trail alignment or the City purchasing your client's interests in the property. In those discussions Mr. Taddune never indicated any' pres~ing ,need to pursue the extension of vested rights; the discussions centered on the alternative alignments of the trail and the need for a stream margin review. In any event, the request for an extension of vested rights was not acted upon while these matters got r-. r- Herbert S. Klein, Esq. November 1. 1996 , Page 3 resolved, or, at least became clearer., It is simply not true that the City engaged in any "dilatory tactics" to delay the processing of the request. It is equally not true that the "City is determined to develop the trail along the river" as you suggest in your letter. The City's interest remains the same as it has been for some time. It wants to complete an important .trail link, it would prefer to make the trail as enjoyable as possible to potential users by locating in close proximity to the Roaring Fork River, and will continue to work with property owners to minimize the impacts of the trail along the preferred corridor. If an alternative trail easement can be located so as to avoid unduly impacting the Kastelic property and such an alternative does not unreasonably detract from the overall experience of walking or biking along such a trail, that is what the City is "determined' to accomplish. Amy Margerum at our last meeting specifically informed you and your clients that the City would continue to try to make alternative aligmnents work and return to City Council with options.l In your letter you raise serious and important issues concerning the enviromnental impacts such a trail will have upon the riparian areas along the proposed trail corridor. Please be assured that the City has always worked in close cooperation with the Corp. of Engineers and State and local wildlife officials to ensure that the devastation you refer to will not occur. The trail corridor to the east of the Kastelic subdivision has been very carefully designed after consultation with numerous federal, state, and local officials and interested members of the public to entirely avoid or minimize any enviromnental disturbance. My memorandum to Stan Clauson which I have enclosed addresses many of the issues you raise concerning the vested rights associated with the Kastelic subdivision. While I agree that the vested rights granted in 1993 vested the owners with the right to rely on the stream margin review regulations in effect in 1993, I do not agree that those rights are "permanently vested" as you opine in your letter. The vested rights (in other words, the right to rely on the laws in existence at the time of the approvals) were for definite period 'Of three years. Those rights expired on October 25, 1996. Council may choose to extend those rights, but it is not accurate to state that they are "permanently vested. " In your letter you attribute to me a statement I do not recall making or, at least, did not intend to make. While it is true that during this phase of our discussions everyone seemed to be trying to talk at the same time, I tried to explain the City's policy with respect to the filing of requests for extensions of vested rights. What I stated,or 1 The "report" from the City's ~onsultant is not really a report. It is merely his preliminary thoughts on some alternative alignments. City staft' is a little reluctant to release the report for fear that it will be read as a final report of the' consultant's conclusions. I have, nevertheless, ask~d the Parks Department to make it available to your clients. f would ask you, however, to caution your clients that it constitutes the consultants' preUminarythoughts on the issues discussed. When a final report is completed we will also make that available to your clients. ,.....,. , ' ,.....,. Herbert S. Klein, Esq. November 1, 1996 Page 4 attempted to state, is the City's policy in this regard. In the past, developers and property owners have sought an extension of their vested rights within a short period of time before those rights expire. The concern has been that unless City Council acted on the request before the expiration date that even if Council decided to extend the vesting period, it could not do so. The City, in order to avoid this problem, and the need to call City Council to a meeting on very short notice to consider an application for extending vested rights before the expiration date, adopted a policy that if an application was properly filed before the expiration date, Council could still consider the request even after the expiration date. In this situation, if Council extended the vesting period it would be retroactive to the expiration date and there would be no lapse in the vested rights. If City Council decided not to extend the vesting period, the vested rights woul<i expire on'the normal expiration date. Thus, I did not state that "the filing of the' extension application tolled the expiration of the statutory vesting period until acted upon by Council." I certainly do not recall using the word "tolled." The vested rights on the Kastelic subdivision expired on October 25, 1996. The City's policy allows the City Council to consider the application for an extension after that date, but it does not automatically extend the vesting period until Council acts upon the request or "tolls" the expiration date. Whether Mr. Taddune's request for an extension of vested rights was acted upon by the City Council on the day it was received or is acted upon in two weeks from now, does not change your client's legal position. The delay in getting this matter before the City Council, for whatever reason, certainly in no way prejudices your client's rights. The 1993 ordinance granting vested rights expired on October 25, 1996. City Council may choose to extend the vesting period in which case the period is extended to the date they chose. If they deny a request for an extension, the expiration date remains the same, October 25, 1996. Whether, or not, an application for stream margin review was filed, or could have been filed, does not alter which stream margin review regulations are to be applied. Your characterization of Amy Margerum's comments at our meeting last Friday need to be corrected. Amy, as the City Manager, is properly concerned with the services all of the City departments provide to their customers. ,If you will recall, she mentioned her concern for "customer services" when she spoke of the need to "reject" applications that were not complete or which were improper under the circumstances. In the past, the Planning Department would accept and process various applications .even though they were incomplete or premature for the pUl:pose for which they were filed. This policy was also instituted in the interest of "customer service." Experience with this policy, however, showed that it was not in1the customer's interest to accept applications that were not complete or inappropriate for what the applicant wanted to achieve. It frequently cost the applicant more time, energy and expense to proceed in this fashion than if they were told up front that their application. could not be processed. {'-\ ,'-', Herbert S. Klein, Esq. November 1, 1996 Page 5 You will recall that I interjected that the City would, of course, accept any application that was filed for whatever reason. That's not to say that it would be processed, but it would be reviewed for completeness and appropriateness under the circumstances and returned to the applicant. That is what happened with your client's application for a Building Permit. Your client's Building Permit was returned to them not because, as you assert, that it "would be futile," but because the City's Land Use Code is clear in requiring that an applicant have a development order before they become eligible to file an application' for a Building Permit. Section 26.52.070 of the Municipal Code reads, in relevant part, as follows: A. Initiation. Upon receipt of a development order for a development application required by this title for a proposed development, the applicant may proceed to apply for a building permit from the chief building official. C.1. Recordation, of conditions of development order. Prior to the submission of an application for a building permit, all documents required to be submitted as a condition of the development order for which a bllilding permit is requested, shall be recorded. These documents may include, but shall not be limited to final plats, any improvement agreements, any other agreements, and any deed restrictions which are required by the development order. A specific condition of the subdivision approval was a stream margin review. No such review has been undertaken. Thus, the Building Permit application was not complete as filed. That is the reason it was returned to your clients. Enclosed please find a copy of the Community Director's letter explaining the reason for the application being returned to your clients. Throughout our discussions and in your letter you continue to insist that the City "is determined to apply the 1995 Regulations to this property." I am not aware of anyone in the City that is so determined. The simple fact is that if Council grants an extension of the . vested rights, they can determine as part of that decision, which regulations would apply as a condition of granting an extension. It is simply premature for anyone at this point to speculate how Council will decide this matter or to argue about how one or the other regulation will be applied to the property. . ,,.-.,, ,-." Herbert S. Klein, Esq. November I, 1996 Page 6 You have asked me in your letter what I understand to be a confirmation that the city will not do anything that is 'illegal under either stream margin review. I can certainly make such an assurance. Ido not agree with your underlying premise that the stream margin reviews regulations are proscribed by Dolan v City of Tigard. Again, you are speculating on what the City will require of property owners. As you know, Dolan requires an individualized determination of each development and the impacts of that development against the exactions to be imposed "to mitigate the impacts of the development. Quite frankly, I don't know what your clients are proposing for the property or what impacts it might have. I fmd it difficult to believe, however, that any residential development will cause such an impact upon the City's trail system that an exaction of a trail easement, will be justified. The City has never considered exacting a , trail easement on this property. If that was the means of achieving the City's goals, it could have tried ,to do so at the time of the subdivision approval. It did not. In fact as pointed out previously, the ordinance specifically states that the City, "recognized that a trail easement cannot be required as part of this subdivision..." Although I stated previously that I think it is premature to argue about the merits of the 1993 and 1995 stream margin review regulations until Council, decides which regulations would apply in the event that they extend the vested rights, I need to respond to your assertions regarding the 1995 regulations. The amendments to the 1993 regulations were prompted from the City's experience'dealing with developments that were granted approvals under the 1993 regulations. It is ironic, but your client's development of a property along the river was one of those experiences that prompted the Planning Department staff to review the effectiveness of the 1993 regulations. Last Spring's run-off also provides ample evidence of the need for the 1995 regulations. The rational basis for the 1995 regulations are clear and indisputable. Bottom line, Herb, the City has not, and will not, engage in the types of tactics you imply in your letter to obtain trail easements. This community certainly values its open spaces and trail system, but I don't believe it would approve of anything remotely close to the tactics you suggest the City is engaging in to acquire additional trail easements. Should the City determine that a trail easement is required to traverse your client's property because no other reasonable alternative exists, it will compensate your clients for the fair value of that property interest. The City's administrative staff remains ready to discuss with you and your clients alternative routes and adequate compensation for any diminution in value a trail easement would cause to the remaining parcels should it determine that a trail easement is rI~quired. I trust the discussion of thi~ entire matter can be elevated to the point where City staff are not unwarrantedly challenged for improper motives in dealing with two separate issues. I do consider the issues to be separate. One involves the City's interest in pursuing the acquisition of a trail easement, and the second being the redevelopment of r-" r-, Herbert S. Klein, Esq. November I, 1996 Page 7 your client's property. They are obviously interrelated, but they have been and can continue to be dealt with as separate matters. The City's actions have been above board, open, and without any motivation to deprive anyone of their property rights. I remain ready to discuss these matters further with you. In the meantime, I would suggest that if your clients want City Council to consider their request for an extension of their vested rights at,their November 11, 1996, meeting, that they formally make an application with the Community Development Department on or before Wednesday, November 6, 1996. (That is the last day that staff has to prepare Council's agenda and staff reports.) The application must be accompanied by the proper fee which I understand has not yet been tendered. Sincerely, ~ I'?t't;;l.o.-.. John P. Worcester City Attorney Enclosures: Memo to Stap. Clauson dated November 1, 1996 Copy of Letter from start Clauson dated October 28, 1996, to Mr. and Mrs. Lawrence Winnerman cc: City Manager Community Development Director ~. ~ C..-i Council Approved By Ordinance BYhiblt~ , 1ll MEMORANDUM lfI. l.YIeD1oran.d-u:r.n.. , THE CITY OF AsPEN CITY ATIORNEY'S OFFICE TO: Stan Clauson, Community Development Director John P. Worcester, City Attorney c;;l,t/ November 1, 1996 FROM: DATE: RE: Kastelic Property - Vested Rights This memo is intended to clarify the status of the vested rights associated with the Kastelic Subdivision and PUD. On October 25, 1993, the City Council granted the then owners of the Kastelic properties, the estate of the late Anthony Kastelic, approval of a subdivision and PUD. (Ordinance No. 49, Series of 1993). The subdivision created two residential parcels and maintained two single family homes on the newly created parcels. The same ordinance granting the subdivision also granted vested rights for a period of three years pursuant to Section 24-6-207 of the Municipal Code (recodified as Section 26.52.080). . When the estate sought the subdivision approvals and vested rights, it was recognized by staff and the estate's representatives that a stream margin review would be required before a development order could be issued. Because redevelopment of the property was not being considered at the time, staff recommended that the stream margin review not be undertaken, but instead be postponed until such time as the property was being considered for redevelopment. Accordingly, the ordinance granting subdivision and vested rights specifically notes that "the applicant also applied for stream margin review but was advised that stream margin review is more effective at the time of redevelopment of the property." Paragraph 2 of Section 3 of the ordinance states that "Prior to the issuance of any demolition, excavation or building permits for Lot I or Lot 2, stream margin review (if applicable), shall be required." It cannot be argued that the ordinance and the vested rights contemplated that before a development order could issue by the Planning Department for either lot, the owners would be requirrd to undergo a stream margin review. What is not clear is whether the vested rights insulated the property from changes in the Land Use Code as it relates to stream margin review. For the reasons that follow, I believe it did. J ~ --\ The City's vested rights section in the Land Use Code was patterned after the state's statutory Vested Property Rights Act adopted in 1987. Section 26.52.080(B) of the Aspen Municipal Code states as follows: A vested property right, once established, shall preclude any zoning or land use action by the City of Aspen or,pursuant to an initiated measure which would alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in the site specific development plan, except: 1. With the consent of the applicant; or 2. Upon the discovery of natural or manmade hazards on or in the immediate vicinity of the property, which hazards could not reasonably have been discovered at the time of this approval, and which hazards, if uncorrected, would pose a serious threat to the public health, safety and welfare; or 3. statute] . To the extent that compensation is paid as provided by [state In other words, the property is insulated from any changes in the law during the period of the vested rights that would prevent the development of the property as set forth in the subdivision approvals; unless the applicant consents, the City discovers a hazard which could not reasonably be discovered at the time of the SUbdivision approval, or the City pays for the diminished value to the property by the imposition of the new law. Ordinance No. 49, Series of 1993, contains boiler plate language which is included in all of the City'.s ordinances which grant vested rights, The language is taken directly from the City's Land Use Code, which in turn, was taken from the state Vested Property Rights Act. That boiler plate language reads as follows: 3. Nothing in the approvals provided in this Ordinance shall exempt the site specific development plan from subsequent reviews and or approvals required by this ordinance or the general rules, regulations or ordinances of the City provided that such reviews or approvals are not inconsistent with the approvals granted and vested herein. 4. The establishment herein of a vested property right shall not preclude the application of ordinances or regulations which are general in nature and are applicable to all property subject to land use regulation by the City of Aspen, including, but not limited to, building, fire, plumbing, electrical and mechanical codes. In this regard, as a condition of this site development approval, the developer shall abide by any and all such building, fire, plumbing, electrical and mechanical codes, unless an exemption therefrom is granted in writing. 2 r- ."-'" Paragraph 3 quoted above is somewhat meaningless. It in essence states that the vested rights does not exempt the property from subsequent changes in the law which are not inconsistent with the vested rights. The whole purpose of vested rights, however, is to insulate the property from any changes in the law. Any new law that impaired' those rights would, by definition, be inconsistent with the vested rights granted by the ordinance. . The meaning of Paragraph 4 has been debated by land use attorneys in the state from the first day that it was enacted. It is my understanding that both paragraph 3 and 4 were added during the debates leading up to passage of the state Vested Property Rights Act without much discussion as to their meaning. It is the consensus of opinion, however, that paragraph 4 should be read to mean that a property cannot be insulated from changes in the law which affect life and safety issues. For example, changes in the building, electrical, fire codes, etc. Thus, unless the changes to stream margin review are related to life and safety issues, I don't believe paragraph 4 affects the vested rights granted to the Kastelic subdivisioIl. In reviewing the changes made to the stream margin review section of the Land Use Code, staff memos submitted to Council, and City Council meeting minutes, it is apparent that the changes were not intended to address life and safety issues, but to further protect wetlands and riparian zones, native vegetation, impacts from lighting and developments in close proximity to rivers and streams. While it is true that these changes may be significant for individual parcels, I don't believe they can be considered as life and safety issues akin to the building, mechanical, electrical or fire codes. The final question is whether the ordinance granting vested rights to the Kastelic subdivision and PUD intended that the property owners undergo a stream margin review under the then existing code or any future changes to the stream margin review section of the code during the vesting period. Unfortunately, the ordinance itself is silent in this regard. It is clear that a stream margin review would be required, but it does not state one way or the other whether it contemplated the stream margin review to be undertaken under the existing code or any new regulations that may be enacted following approval of the vested rights. Neither the staff memos accompanying the ordinance nor City Council meeting minutes during which the subdivision ordinance was discussed shed any light on this matter. The need for a stream margin review is certainly discussed, but there is no indication that the stream margin review should be conducted under any new regulations should they be adopted in the future. In the absence of any evidence of such an intent, I must conclude that in granting vested rights for the subdivision, Council made clear that a stream margin review would be required, and vested the property with a right to have that review conducted under the then existing regulations. The fact that the estate had applied for a stream margin review at that time, but was discouraged from proceeding because there were no redevelopment plans to review, supports this conclusion. Had the applicant understood the ordinance to require a stream margin review under some future regulations that had not yet been promulgated, that issue would certainly have been discussed at the time and clarified in the ordinance itself. No such discussion took place from the documentation that I reviewed. 3 ,-" .r"\, Much of the above discussion is academic unless t he City Council agrees to extend the vested rights. The property has not been given a development order as a stream margin review has not been undertaken. Without a development order; the owners may not file an application for a building permit. I understand that an application for a building permit was submitted and returned to the applicant for this reason. On September 24, 1996, Paul Taddune, counsel for the owners of both Lots 1 and 2, submitted what he clainied to be an application for extension of vested rights for the Kastelic Subdivision. . The City has long taken the position that if a property owner submits an application for an extension prior to the date of the expiration of the original vested rights period, that it would consider the application to have been timely filed. This merely means that Council may consider an extension of time after the expiration of the original periOd. It does not automatically extend the period, but does allow City staff and Council to consider the request after the expiration period. If you have any questions regarding the above, please let me know. cc: City Manager Kastelic.mem 4 r-, LAW OFFICES OF ~ Re: HERBERT S. KLEIN& ASSOCIATES, P C. "\2.3450')> 201 NORTH MILL STREET ,,:;,,/ e-9 SUITE 203 C) ~ ASPEN,COLORAO,O 81611 ~') ,. .II;" ~ (970) 925-8700 ...~ ~ TELECOPIER (970)925-39 ~ ~ i;l ~ ...v : October 30, 19 ~ ~~ ~- :r ~It? . ~~t'ZC1t6...~1) ~.~~~ .-~ ?"~ ~ ~ Esq. f~ ~ ~ ..J tilt, ......~.J,.,I$ ~~~, ' - 7/0 f f ~_ Lots 1 and 2, Kastelic Subdivision PUD (the "Property"). ~ TELLURIDE OFFICE: P.O.8QX21S 300 WEST COLORADO AVENUE SUITE 28 TEllURIDE, COLORADO 81435 (970)728-5151 TELECOPIER (970) 72~9 HERBERT S, KLEIN MILLARD J.ZIMET" ROBERT ERIE THOMAS G. KENNEDY'" MICHELE NELSON' 'alsoadmiUei:lin NewYol1t '*'alsoadmilledinMaryland "also admilted in Calilorniaand Hawaii HAND DELIVERED RlDGWAYOFACE: 122 VlUAIJE SQUARE WEST RIDGWAY, CO 81432 (970) 626-3888 TElECOP1ER (970) 626-39n Mr. John Worcester, City Attorney 130 South Galena Aspen, Colorado Street 81611 Dear John: Thank you for taking the time to meet with me and my clients, Larry and Lorrie Winnerman, last Friday (October 25, 1996) at your office. Present at the meeting were City Manager, Amy Margerum, and Planner, Dave Michaelson. I wish to confirm some of the matters discussed at the meeting as well as provide you with some thoughts and observations concerning the City's interest in condemning a trail through the Property, the status of the Property's vested rights and some legal concerns I have with the City's stream margin review regulations. The Winnermans are contract purchasers for both of the above lots and have invested considerable time and money in investigating the suitability of the property for their purposes as well as the development of architectural plans. It is their desire to build a home for themselves on one of the lots and develop the other in a harmonious fashion so that the two houses and properties can share common amenities and landscaping. The lots have approved building envelopes and a PUD plan pursuant to Ordinance 49, Series of 1993 granting subdivision, PUD and vested rights. This Ordinance is recorded in Book 729 at Page 778 and was finally approved on October 25, 1993 (the "1993 Approval"). The 1993 Approval established building envelopes which run to a lower bench on the property within approximately 20 feet from the 100 year flood plain line and allow the construction of a house in this location in order to take advantage of proximity to the river. Moving easterly away from the river, after approximately 15-20 feet, the property increases in elevation and rises to an upper bench sitting above and well back from the river. The 1993 Approva.l also states that "the Applicant also applied for stream margin review but was advised that stream margin review is more effective at the time of redevelopment of the property" and contains a condition requiring stream margin review be undertaken 1'""\, ~. Mr. John Worcester, Esq. October 30, 1996 Page 2 prior to redevelopment of the property in the future. The building envelopes are located in a manner which is consistent with the stream margin review regulations in effect in 1993 (the "1993 Regulations") (See Section 7-501B and 7-504 et seq. of Supplement No.2 to the Aspen City Code as in effect in 1993). In 1995, the City Code was amended and the stream margin review regulations were changed by the addition of several new provisions which, among other things, require that development be set back to a point identified as "top of slope" plus an additional 15 feet therefrom and that a view plain setback be imposed running at a 45 degree angle from the ground level at the top of slope trending away from the river (the "1995 Regulations"). Imposition of the 1995 Regulations would render the -westerly half of the approved building envelopes undevelopable and materially diminish the use, enjoyment and value of both of these lots by reason of their requirement that the building be setback a substantial distance from the river, a difference of approximately 20 feet from the high water mark under the 1993 Regulations compared to approximately 60 feet from the high water mark under the 1995 Regulations. In effect, river front property would be converted to river view property. It is clear that the City wishes to acquire a public trail through these lots across their river frontage. without question, the existence of a trail in this location would destroy the privacy, utility and a substantial portion of, the value of the Property. We have suggested alternative alignments which would avoid taking river front property, including a trail alignment running along the southerly boundary of Lot ~ connecting with the access road at the west side of the property. Furthermore, there are other alignments which avoid the property entirely. Notwithstanding these suggestions, we are informed by City staff that the City'is determined to develop the trail system along the river. In order to develop a trail along the river front, the City will be destroying substantial areas of riparian vegetation and habitat as well as protected wetlands. Dredge and fill operations 1 We are told that a 17 page report has been prepared by an engineering firm hired by the City which analyzes the alternative suggested by my clients. However, Mrs. Winnerman informs me that she attempted to obtain a copy of the report the other day and was told that the City Manager directed the report not be made public pending staff's review of its contents. There is no basis whatsoever to withhold this report. Please confirm that the report will be made available to my clients immediately. r-, ~ Mr. John Worcester, Esq. October 30, 1996 Page 3 will no doubt be required and alterations of the river bank will result. Federal permits will be required and, we expect that the' City will be forced to comply with its own Codes, just as if a private developer sought to undertake the substantial construction activities and environmental devastation that is'likely to occur. These issues alone raise significant public policy and environmental concerns. The statutory vesting period was for three years running from October 25, 1993. On September 24, 1996, an application to extend the vested rights was filed by Paul Taddune on behalf of the owners of the Property. It was confirmed in our meeting last Friday that the City staff has taken no action whatsoever on the application to extend the vested rights even though it had then been sitting in the Planning Office for more than 30 days. Had the staff processed this application in a timely manner, its disposition could have been determined prior to the expiration date of the statutory vesting period and appropriate protective actions could have been taken by the Applicants. The City's dilatory tactics concerning the application may have severely prejudiced my clients. When this issue was raised at our meeting, the City Manager had no trouble scheduling it for a hearing at the next Council meeting set for November 11, 1996. We wonder why this could not have been done in as easy a manner shortly after the application had been filed. We also note that you stated at the meeting that the filing of the extension application tolled the expiration of the statutory vesting period until it was acted on by Council, and that we could file whatever applications we felt appropriate during this time. The City Manager disagreed with your statement as indicated below. Although the City Manager mentioned at our meeting that extensions of vested rights were routinely denied by the City Council, we are informed that there have been several extensions granted. We refer to the Kappelli application for extended vesting on the Bell Mountain Lodge and another extension granted for the Aspen M'eadows property. In light of the City' s interest in condemning a trail along the river front and the lower acquisition cost for such a trail likely to result if the vested rights are not extended, we would view any denial of an extension as being suspect and motivated for the purpose of lowering the City's condemnation cost. I refer you to a Colorado case, Hermanson v. Countv Commissioners, 42 Colo. App. 154 (Colo. App. 1979), where the Colorado Court of Appeals stated that: ". .. regulations designed to depress value with a view to future acquisition may form the basis of a cause of action for compensation on the theory of inverse condemnation against the public entity initiating the regulation." ~ ,-, Mr. John Worcester, Esq. October 30, 1996 Page 4 With the time running out on the statutorily vested rights and no action by the City on the extension application, my clients filed a building permit application on October 23, 1996 for construction of a single family dwelling on each lot. A stream margin review application would have been submitted together with those permits, however, the City staff persons with whom we spoke insisted that the 1995 Regulations would apply and, as previously stated, those regulations are completely inconsistent with the approved building envelopes and our position that the 1993 Regulations vested along with the building envelopes and other elements of the 1993 Approval. The City Manager also confirmed at our meeting last Friday that the City would not have accepted a stream margin review application of any sort pending the Council's determination of the extension of our vested rights. Ms. Margerum stated emphatically that such an application would have been rejected and it would have been futile to submit it. In fact, we learned on the same day as our meeting that the Building Department rejected the permit applications for this reason. In reviewing our situation, it seems clear that significant elements of the subdivision and PUD plan from the 1993 Approvals have permanently vested. lam sure you agree that the subdivision of the lots is vested. It therefore follows that the building envelopes are vested as they are intimately tied to the lot line configuration approved in the subdivision and the PUD requirements and provide the only reasonable configuration for the placement of buildings on the lots. As you can see from looking at the approved Plat, the lot line between these lots meanders in order to protect trees and other natural features which were all taken into consideration when the building envelopes were established. Because the subdivision is permanently vested, under the circumstances, so too are the building envelopes. , If there is any question as to which stream margin regulations would apply, in our view, the 1993 Regulations have vested. We believe this is so even if Council decides not to extend the statutory vesting. Although a future stream margin review was contemplated by the 1993 Approval, it could not have been anticipated at that time that the established building envelopes would be subject to future stream margin review regulations which would have nullified and made meaningless these envelopes. The imposition of the 1995 Regulations would wipe out almost half of the building envelopes. The stream margin review requirement is so intimately tied with the established building envelopes that it would make no sense to apply the 1995 Regulations to this project: Furthermore, with respect" only to the question of statutory vesting, if Council were to extend the statutory vesting period, the 1993 Regulations would be applicable, not only based upon the 1""'\ ,I""""j Mr. John Worcester, Esq. October 30, 1996 Page 5 foregoing comments, but also because they are not regulations dealing with life and safety such as building code requirements and, as such are vested against regulatory changes. Under the same reasoning, the 1995 Regulations, with their additional provisions for setbacks and viewplanes, are zoning related provisions against which statutory vesting provides immunity. If the City is determined to apply the 1995 Regulations to this property, I believe you should seriously consider whether or not certain of its provisions are legal. The most obvious illegality is the requirement for the dedication of a trail and fisherman's easement in connection with a stream margin review application to build a single-family house.2 These are private properties through which the public has had no rights of access. The requirement of a trail and fisherman' s easement dedication clearly violates the United States Supreme Court ruling in Dolan v. City of Tiqard, 512 U.S. _' 1994. I noticed that the 1995 Regulations added language which stated that these dedications were necessitated by "development. s increased impacts to the City' s recreation and trail facilities including public fishing access....". I believe a court would view such language as simply gratuitous in light of the Dolan decision, and in no way can the City make a connection between the development of a house on private property adjoining the river and the impact on public access to the river where none previously existed. I would like your confirmation' that the City will not attempt to, require easements as a condition of stream margin review under either the 1993 Regulations (which contains similar language but without the Dolan gratuitous justification), or the 1995 Regulations. The 1995 Regulations also added requirements for a setback of 15 feet beyond the "top of slope" as well as a 450 viewplane. The purpose of ,the stream margin ,regulations as articulated in both the 1993 and the 1995 Regulations is that "development in these areas shall be subject to heightened review so as to'reduce and prevent property loss by flood while insuring the natural and unimpeded flow of water courses. Review shall encourage development and land uses that preserve and protect existing water courses as important natural features." I can think of no rational relationship between the extensive setback and viewplane requirements imposed by the 1995 Regulations and the protection of property loss by flood and continuation of the unimpeded flow of the, river. The 1993 Regulations sufficiently protected these issues by requirin~ the demonstration that any proposed development would not have any J 2 This provision is also in the 1993 Regulations and is equally illegal. r-, ..-, , Mr. John Worcester, Esq. October 30, 1996 Page 6 affect on flood conditions and has other provisions dealing with vegetation, erosion, etc.. Although I have not had a chance to review the record leading up to the changes in the 1995 Regulations, I would be surprised to find anything articulated in the record indicating the failure of the 1993 Regulations to protect the flow of the river and properties located nearby. If the 1995 ,Regulations are to be imposed on the property, we would certainly object to them, because they clearly go beyond the legitimate purposes of the ordinance and have no rational basis. We would also view them as being suspect because they 'seem to be related to the City's de,sire to obtain trails along the river and would reduce the cost to the City of condemnation. There is one last point which we find very disturbing and ironic. ,Both the 1993 and 1995 Regulations are designed to protect environmental values concerning riparian areas, vegetation, flood flows and the protection of property. However, the City seems willing to totally destroy vast portions of these sensitive areas to build its trail system while at the same time attempting to impose severe restrictions on the ability of private landowners to enjoy their riverfront properties. We believe the City will be in an untenable position both legally and politically if it attempts to restrict the reasonable development of the Property based upon environmental values when at the same time it is trampling upon those values as well as my client's property rights. After you have had an opportunity to consider the comments raised in this letter, I would be happy to discuss these points with you in greater detail. I also look forward to your written statement concerning the City's position on these matters which you indicated you would have completed by the end of this week. Thank you very much for your consideration. Very truly yours, HERBERT S. KLEIN & ASSOCIATES, P.C. ;7 / /~'.,'.' ~ Herb~rt S. Klein By: winnerman\003.1tr cc: Larry & Lorrie Winnerman I""""- 1""""-, q)~ Dll:ezn.ora.:n.d-uxn. . TO: Stan Clauson, Community Development Director THE CITY OF ASPEN OFFICE OF THE CITY ATTORNEY FROM: John P. Worcester, City Attorney DATE: October 29, 1996 RE: Kastelic Property - Vested Rights This memo is intended to clarify the status of the vested rights associated with the Kastelic Subdivision and PUD. On October 25, 1996, the City Council granted the then owners of the Kastelic properties, the estate of the late Anthony Kastelic, approval of a subdivision and PUD. (Ordinance No. 49, Series of 1993). The subdivision created two residential parcels and maintained two single family homes on the newly created parcels. The same ordinance granting the subdivision also granted vested rights for a period of three years pursuant to Section 24-6-207 of the Municipal Code (recodified as Section 26.52.080). When the estate sought the subdivision approvals and vested rights, it was recognized by staff and the estate's representatives that a stream margin review would be required before a development order could issue. Because redevelopment of the property was not being considered at the time, staff recommended that the stream margin review not be undertaken, but instead be postponed until such time as the property was being considered for redevelopment. Accordingly, the ordinance granting subdivision and vested rights specifically notes that "the applicant also applied for stream margin review but was advised that stream margin review is more effective at the time of redevelopment of the property." Paragraph 2 of Section 3 of the ordinance states that "Prior to the issuance of ,any demolition, excavation or building permits for Lot 1 or Lot 2, stream margin review (if applicable), shall be required. " It cannot be argued that the ordinance and the vested rights conteniplated that before a development order could issue by the Planning Department for either lot, the owners would be' required to undergo a stream margin review. What is not clear is whether the vested rights insulated the property from changes in the Land Use Code as it relates to stream margin review. . For the reasons that follow, I believe it did. , 130 SOUTH GALENA STREET . ASPEN, COLORADQ.8l'>11 . PHONE 303.920.5055 . FAX 303.920.5119 Print<-dQnrecydedl"l"" r--, ,-., The City's vested rights section in the Land Use Code was patterned after the state's statutory Vested Property Rights Act adopted in 1987. Section 26.52.080(B) of the Aspen Municipal Code states as follows: A vested property right, once established, shall preclude any zoning or land use action by the City of Aspen or pursuant to an initiated measure which would alter, impair, prevent, diminish, or otherwise delay the development or use of the property as set forth in the site specific development plan, except: 1. With the consent of the applicant; or 2. Upon the discovery of natural or manmade hazards on or in the immediate vicinity of the property, which hazards could not reasonably have been discovered at the time of this approval, and which hazards, if uncorrected, would pose a serious threat to the public health, safety and welfare; or 3. statute] . To the extent that compensation is paid as provided by [state In other words, the property is insulated from any changes in the law during the period of the vested rights that would prevent the development of the property as set forth in the subdivision approvals; unless the applicant consents, the City discovers a hazard which could not reasonably be discovered at the time of the subdivision approval, or the City pays for the diminished value to the property by the imposition of the new law. Ordinance No. 49, Series of 1993, contains boiler plate language which is included in all of the City's ordinances which grant vested rights. The language is taken directly from the City's Land Use Code, which in turn, was taken from the state Vested Property Rights Act. That boiler plate language reads as follows: 3. Nothing in the approvals provided in this Ordinance shall exempt the site specific development plan from subsequent reviews and or approvals required by this ordinance or the general rules, regulations or ordinances of the City provided that such reviews or approvals are not inconsistent with the approvals granted and vested herein. 4. The establishment herein of a vested property right shall not preclude the application of ordinances or regulations which are general in nature and are applicable to all property subject to land use regulation by the City of Aspen, including, but not limited to, building, fire, plumbing, electrical and mechanical codes. In this regard, as a condition of this site development approval, the developer shall abide by any and all such building, fire, plumbing, electrical and mechanical codes, unless an exemption therefrom is granted in writing. 2 r-, .-., Paragraph 3 quoted above is somewhat meaningless. It in essence states that the vested rights does not exempt the property from subsequent changes in the law which are not inconsistent with the vested rights. The whole purpose of vested rights, however, is to insulate the property from any changes in the law. Any new law that impaired those rights would, by definition, be inconsistent with the vested rights granted by the ordinance. The meaning of Paragraph 4 has been debated by land use attorneys in the state from the first day that it was enacted. It is my understanding that both paragraph 3 ,and 4 were added during the debates leading up to passage of the state Vested Property Rights Act without much discussion as to their meaning. It is the consensus of opinion, however, that paragraph 4 should be read to mean that a property cannot be insulated from changes in the law which affect life and safety issues. For example, changes in the building, electrical, fire codes, etc. Thus, unless the changes to stream margin review are related to life and safety issues, I don't believe paragraph 4 affects the vested rights granted to the Kastelic subdivision. In reviewing the changes made to the stream margin review section of the Land Use Code, staff memos submitted to Council, and City Council meeting minutes, it is apparent that the changes were not intended to address life and safety issues, but t6 further protect wetlands and riparian zones, native. vegetation, impacts from lighting and developments in close proximity to rivers and streams. While it is true that these changes may be significant for individual parcels, I don't believe they can be considered as life and safety issues akin to the building, mechanical, electrical or fire codes. The final question is whether the ordinance granting vested rights to the Kastelic subdivision and PUD intended that the property owners undergo a stream margin review under the then existing code or any future changes to the stream margin review section of the code during the vesting period. Unfortunately, the ordinance itself is silent in this regard. It is clear that a stream margin review would be required, but it does not state one way or the other whether it contemplated the stream margin review to be undertaken under the existing code or any new regulations that may be enacted following approval of the vested rights. Neither the staff memos accompanying the ordinance nor City Council meeting minutes during which the subdivision ordinance was , discussed shed any light on this matter. The need for a stream margin review is certainly discussed, but there is no indication that the stream margin review should be conducted under any new regulations should they be adopted in the future. In the absence of any evidence of such an intent, I must conclude that in granting vested rights for the subdivision, Council made clear that a stream margin review would be required, but vested the property with a right to have that review conducted under the then existing regulations. The fact that the estate had applied for a stream margin review at that time, but was discouraged from proceeding because there were no redevelopment plans to review, supports this conclusion. Had the applicant understood the ordinance to require a.stream margin review under some future regulations that had not yet been promulgated, that issue would certainly have been discussed at the time and clarified in the ordinance itself. No such discussion took place from the documentation that I reviewed. 3 ~ ,~ Much of the above discussion is academic unless the City Council agrees to extend the vested rights. The property has not been given a development order as a stream margin review has not been undertaken. Without a development order, the owners may not file an application for a building permit. I understand that an application for a building permit was submitted and returned to the applicant for this reason. On September 24, 1996, Paul Taddune, counsel for the owners of both Lots I and 2, submitted what he claimed to be an application for extension of vested rights for the Kastelic Subdivision. The City has long taken the position that if a property owner submits an application for an extension prior to the date of the expiration of the original vested rights period, that it would consider the application to have been timely filed. This merely means that Council may consider an extension of time after the expiration of the original period. It does not automatically extend the period, but does allow City staff and Council to consider the request after the expiration perios1. If you have any questions regarding the above, please let me know. cc: City Manager Kastelic.mem 4 ,-,. 1"""'\, Mr. and Mrs. Lawrence Winnerman Win WinLLC 317 Park Avenue Aspen, CO 81611 28 October 1996 Re: Building Permit Applications--Kastelic Subdivision Lots llllld 2 Dear Mr. and Mrs. Winnerman: The Community Development Department is unable to accept your building permit applications for the above-referenced, property ,owing to the fact that site specific development approvals are not complete and a Development Order has not been issued. Specifically, Stream Margin Review under Section 26.68.040 of the Aspen Land Use Code must be completed prior to the issuance of a Development Order. This requirement is clearly referenced in the filed documents relating to the approval process to date. Your plans should be picked up at the Community Development Office at your earliest convenience, along with voided checks for filing fees. Upon' completion of Stream Margin Review, plans may be filed for zoning review, including review under Chapter 26.58 Residential Design Standards, prior to forwarding to the Building Division. Please let me know if I may provide any additional information or assistance. Very truly yours, Stan Clauson, AICP Community Development Director CITY OF ASPEN cc: Stephen Kanipe, Chief Building Official Sara Thomas, Zoning Officer John Worcester, City Attorney .r t"""\ .~ RECEIVED SEP 15 '",i City Maf\ager/M3.Y9r'S GUice PAUL J. TADDUNE, P.C WILLIAMK. GUEST, P.C, OF COUNSEL ANDREW H. BUSCHER, OF COUNSEL September 24, 1996 Mayor John Bennett and City of Aspen 130 South Galena Street Aspen, Colorado 81611 Members of the city Council RE: Application for Extension of Vested Rights SUbdivision/PUD o( ';/'4 j (I "('//' /' '" ,-'...... (,.,I--v--(, (__, '~. I ~L../ IU-i. 6..{.(1 fy/[{ e /1 I' i~;; /; II/; It)' .......- (v (... , .~. for Kastelic y. a, Dear Mayor Bennett and Members of the City Council: Please accept this letter as an application on behalf of my client, B.A. Powell Limited Partnership, a family partnership which owns Lot 1, Kastelic Subdivision, for an extension of vested rights granted by Ordinance No. 49 (Series of 1993), a copy of which is attached. This application is submitted pursuant t,o section 26.52.080 and, to the extent applicable, Section 26.100.100 of the Aspen Municipal Code and section 24-68-104, Colorado Revised Statutes, Ordinance No. 49 granted subdivision, PUD and vested rights approval for the Kastelic property located at 570 Riverside Avenue. The Ordinance was finally adopted, passed and approved on October 25, 1993. section 4 of the Ordinance granted the applicant vested rights. It is requested that any vested rights be ext,ended for a period of six (6) months, similar to the extensions that have routinely been granted to the Bell Mountain Lodge project. The Kastelic PUD/subdivision was part of the probate estate Anthony Kastelic, a long-time Aspenite. Bette Johnson, the general partner of B.A. Powell Limited Partnership, is Hr. Kastelic's stepdaughter who inherited Lot 1. Lot 2 which is under contract is currently owned by Marj orie Casey, Mr. Kastelic I s niece. The contract purchaser consents to this application. The property was subdivided to accomplish the separate bequests of the two houses in accordance with Mr. Kastelic's will. During the course of the approval process, numerous concessions were made by the Kastelic estate with regard to the location of the building envelopes, the preservation of trees and the amount of developable property in relation to the river. This application for an extension of vested rights is submitted merely to preserve the developability of the property, r-, .~ Mayor John Bennett September 24, 1996 Page 2 the same as existed in 1993. Section 26.100.100 of the Municipal Code pertains to the expiration of development orders and mayor may not be applicable to the Kastelic PUD/subdivision. Section A.l states that subdivisions composed of detached residential or duplex units shall be eligible for exemption from the expiration provisions, and that to obtain an exemption an application for exemption shall be submitted at any time prior to the third anniversary of the date of approval demonstrating satisfaction that the enumerated conditions have been met. It is believed that all of the conditions for the Kastelic subdivision at the time of the its final approval have been met. It is also requested that, to the extent applicable or required, an extension of vested rights be granted so that the land development regulations in place and applicable to the property in 1993 be continued, to avoid penalizing Mrs. Johnson and her family for not being aggressive in developing the property. Thank you in advance for your consideration to this request. Very truly yours, PAUL J. TADDUNE, P.C. r----......-----.., " . ..L \ -Y-".""'''"'C:''-- .I \ ---.. Paul J. 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", " . -.... -- --- ,.." . , . ...... ....,.....-,...,. - ---- IN ')C - L-F---- I( - ~ --I- ~ "':~,^.il:~,," ,I------::;.f' ~ /...,.. --/ ~.-- T..... " .. ,....'" -f..--- - \ - _c~ ....- ~ I~ PZM8.24.93 ASPEN MEADOWS TRAFFIC MITIGATION PLAN REVIEW Bruce opened the public hearing, , MOTION Roger: I move to continue the pUblic hearing and table action to dat,e certain ,of September 7, 1993. Sara seconded the motion with all in favor. KASTELIC PUD/SUBDIVISION Leslie turned in affidavit of mailing. (attached in record) There was discussion r~garding incorrect address in the mailing. It was decided between the 3 attorneys present, the applicant's representative and the Commission to proceed with the hearing. Bruce opened the public hearing. Leslie made presentation as attached in record. After discussion-- MOTION Roger: I move to recommend subdivision and PUD review for the creation of 2 residential parcels at the Kastelic property with conditions to be hereafter listed in the Planning Office memo dated August 24, 1993. They are conditions #1 'amended to read "Only a single family home is permitted on each lot because of lot size in the R-15 Zone District. The deletion of Planning Office condition #2. The inclusion of condition #3, #4 and #5, The deletion of condition #6. The inclusion of condition #7 through #16 inclusive with and additional binding note that would encourage the City to request a 14 foot trail easement along the Roaring Fork River through the property. David: I second the motion. I would modify the condition slightly to allow condition #12 to read "A drainage analysis performed by an architect or engineer registered in the State of Colorado". 2 ,~ ,~ '. PZMB.24.93 Leslie: Can we say "If I can include it". I will add that if we can add it. Bruce: I have a problem with this. By us adding it in we imply that somehow we know that an architect is qualified to do that. We don't know that, If the state has issued standards that say it must be a registered engineer and that is what staff puts in their memo I think we need to accept that, I am not prepared to say whether you or any other architect is qualified to do this. If you want to go to staff and go to the state to get them to change the standard that is fine. But I am not prepared to change the condition of approval at this point. I don't think this the form to deal with that issue. Roger decided to leave the motion as stated. David then withdrew his second of the motion, Sara then seconded the motion, Roll call vote: David, yes, Sara, yes, Roger, yes, Bruce, yes. MOTION Roger: I make a motion to recommend consolidation of the PUD review for the Kastelic application to a 2-step process. Sara seconded the motion with all in favor. Roger moved to adjourn, Sara seconded the motion with all in favor. Time was 5:35 P.M. 3 /"""'. /"""'., Reqular Meetind Aspen citv Council September 13. 1993 to persons responsible for trends. As a result of the investiga- tion, the auditors give an audit opinion. Alger reported the city of Aspen has been given a clean oplnlon, with no qualifications or exceptions. Alger said the staff does a very good job of putting the information together for ,the auditors. Alger' pointed out the audit contains a financial- history of the city over a 10 year period. Alger said the revenues in 1992 were up 7 percent; the expenditures were held to below prior year and ,revenues of about $600,000 were put into fund balance, Alger said all enterprise funds, with the exception of the housing fund, are making a profit, The cash flow for the housing fund is adeq~ate, Alger said the city's budget process works well. ORDINANCE #49. SERIES ,OF 1993 - Kastelic PUD/Subdivision Councilman Reno moved to read Ordinance #49, series of 1993; seconded by Councilwoman Waggaman. All in favor, motion carried. ORDINANCE #49 (Series of 1993) AN ORDINANCE OF THE ASPEN CITY COUNCIL GRANTING SUBDIVI- SION, PUD AND VESTED RIGHTS FOR THE KASTELIC PROPERTY LOCATED AT 570 RIVERSIDE AVENUE, ASPEN, COLORADO, was read by the city clerk Leslie Lamont, planning office, told Council P & Z recommended this be a consolidated two-step process with one review at P & Z and Council each. There are no significant impacts from this PUD review and all issues can be covered in a two-step review,Ms. Lamont said this parcel is just over 74,000 square feet with two existing homes on the property. This subdivision will correct a non-conforming use for the R-15 zone. A PUD overlay allows an applicant to request variances. In this case the applicants are requesting a rear yard setback variance for lot 1. This will be rectified at time of redevelopment of the property. Ms. Lamont pointed out at the time of redevelopment, any owner may seek a PUD review to request variances, Ms. Lamont said the applicant had indicated building envelopes for lots 1 and 2. Ms. Lamont said staff requested the proposed building envelopes be overlaid showing critical features of the property, which are significant trees. Staff requested prior to second reading, the applicant provide a building envelope which will exclude the trees and would be willing to look at PUD variances to accommodate this shift. The applicants are dedicating a fisherman's easement as part of the subdivision. 6 ~ ~, Reqular Meetinq Aspen citv Council September 13, 1993 Mayor Bennett asked if the applicants are taking into consideration the location of the eventual trail. Ms. Lamont said the trail easement is not a concern in this subdivision. Jed caswall, city attorney, sa,id this is nothing more than a lot split and Council should consider it strictly on the merits of that. Councilwoman Waggaman asked if the building envelopes stay as proposed, is there room for a trail. Ms. Lamont said there is. Councilwoman Richards asked if this property is identified in the greenway plan for a trail connection. Caswall said it has been identified for years as a tr,ail location. Caswall said if there was ,a change in value of the property, it was done a long time ago when the city identified this as a trail location. Councilwoman Waggaman said if the planning office is requlrlng a change in building envelope to avoid trees, the trail could be considered at the same time. Lennie Oates, representing the applicant, told Council the applicants are not interested in accommodating a trail. Oates said there is no plan for redevelop- ment of the property. The applicants intend to keep the existing houses and to use them. Caswall explained this application is before Council because of a probate action. The applicants are seeking a division of this asset. The city was notified by the attorney and the city intervened because of their subdivision regulations. Glenn Horn told council any redevelopment of the property has to go to P & Z for stream margin review. One of the criteria of stream margin review is that development has to be consistent with the Roaring Fork Greenway Plan. The concept of a trail on this property originated with the Greenway Plan. Councilwoman Richards moved- to adopt Ordinance #49, Series of 1993, on first reading; seconded by Councilwoman Waggaman. Roll call vote; councilmembers Waggaman, yes; Paul son, yes; Reno, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #48, SERIES OF 1993 - ute Park AH Subdivision GMQS Exemption Amendment Councilwoman Richards moved to read Ordinance #48, Series of 1993; seconded by Councilman Reno. All in favor, motion carried. ORDINANCE #48 (Series of 1993) AN ORDINANCE OF THE CITY OF ASPEN GRANTING AMENDMENT TO THE 1992 GMQS EXEMPTION APPROVAL FOR AFFORDABLE HOUSING FOR THE UTE PARK AH (AFFORDABLE HOUSING) SUBDIVISION/PUD TO CHANGE DEED RESTRICTIONS ON THREE UNITS was read by the city clerk 7 ,~ ~ -' Reqular Meetinq Aspen Citv Council Dctober 12. 1993 ORDINANCE #51. SERIES OF 1993 - Appropriations Rob Umbreit, budget dir~ctor, told Council this ordinance has been amended since first reading to include funding the asset manager position, $12,525 for outside legal counsel, increasing the parks budget $7750 because of the installation of water meters, and appropriating $31,825 for the east water plant construction. Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the public hearing. Councilwoman Richards moved, to adopt Ordinance #51, Series of 1993, on second reading as amended; seconded by Councilman Reno. Roll call vote; Councilmembers Reno, yes; Waggaman, yes; Richards, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #49. SERIES OF 1993 - Kastelic PUD/Subdivision Leslie Lamont, planning office, told Council this is one parcel with two single family detached homes on it. The estate is seeking to divide the parcel into two lots, each with a single family house. There is no redevelopment proposed at this time. Ms, Lamont pointed out the proposed building envelopes include significant trees, The proposed building envelopes also encroach into future trail alignments. council urged the applicant to preserve the trees and to pull the building envelopes out of the trail alignments. Ms. Lamont pointed out the building envelope for lot 1 does not encroach into the proposed trail easement. Ms, Lamont recommended the new building envelope be drawn on the plat before recordation. Glenn Horn, representing the applicant, said they worked with staff to try and accommodate Council wishes. Horn said after conferring with the attorneys representing the estate, there are changes having to do with two trees on site. One of the cottonwoods may die and the applicants would like the ability to straighten out the building envelope line. Horn requested some changes in the conditions, like if an accessory dwelling unit would be allowed and would the applicant have to comply with the dimensional require- ments in a remodel. Ms. Lamont told Council an accessory dwelling unit would not be precluded in this condition of approval unless the ADU program changes. Ms. Lamont told Council she has just heard of these requests and would like a chance to review them before commenting, Ms. Lamont said she would also like staff to examin1 the trees. Co~ncilwoman Richards moved to table Ordinance #49, Series of 1993, to'October 25; seconded by Councilwoman Waggaman. All in favor, motion carried. 2 ,-. -. . Reqular Meetinq Aspen city Council October 25. 1993 worked hard to obtain a trail easement on this property and to get a new bridge location to get to the trail. The applicant amended their PUD from 4 single family lots to I single family lot, and also rezoned the property RR. Ms. Lamont pointed out RR does not provide a floor area cap. The applicants have voluntarily capped the allowable floor area at 8500 square feet. As a quid pro quo, they are asking for permanent vesting. Mayor Bennett opened the public hearing. There were no comments, Mayor Bennett closed the public hearing. Councilman Paulson said in an age of diminishing resources, the city might consider introduce information about diminishing resources and building large houses that sit empty much of the time. councilman Paulson suggested this might be included in the energy codes. Mayor Bennett recommended the staff and Council review the energy codes. Councilwoman Waggaman suggested a maximum energy one can use in a building rather than limiting the size of the building, Council agreed to look at this in the future with the adoption of the energy code. Councilwoman Waggaman moved to adopt Ordinance #52 , Series of 1993, on second reading; seconded by Councilwoman Richards. Roll call vote; Councilmembers Richards, yes; Waggaman, yes; Paulson, yes; Mayor Bennett, yes. Motion carried. ORDINANCE #49. SERIES OF 1993 - Kastelic PUD/Subdivision Leslie Lamont, planning office, reminded Council second reading was continued so that staff could work with the applicant on some conditions. Ms. Lamont said this has been worked out. Ms. Lamont made further changes, condition #3, "If the existing residential structure on Lot 1 is damaged or destroyed in whole or in part, any reconstruction shall occur under the applicable provisions of the Municipal Code". Condition #4 addition, "At the time of stream margin review application, the applicant may request to vary the building envelopes depending on then existing site condition. This language shall be reflected on the final plat". Mayor Bennett opened the public hearing. There were no comments. Mayor Bennett closed the pUblic hearing. Doug Allen, representing the Estate, submitted a letter to the record stating their objection to the trail' easement on the property. This objection has been constant through the process. , Councilwoman Richards moved to adopt Ordinance #49, Series of 1993, on second redding as amended in conditions 3 and 11; seconded by Councilman Paulson. Roll call vote; Councilmembers Paulson, yes; Waggaman, yes; Richards, yes; Mayor Bennett, yes. Motion carried. 3