HomeMy WebLinkAboutagenda.council.regular.20080225CITY COUNCIL AGENDA
February 25, 2008
5:00 P.M.
I. Call to Order
II. Roll Call
III. Scheduled Public Appearances
IV. Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT
on the agenda. Please limit your comments to 3 minutes)
V. Special Orders of the Day
a) Councilmembers' and Mayor's Comments
b) Agenda Deletions and Additions
c) City Manager's Comments
d) Board Reports
VI. Consent Calendar (These matters maybe adopted together by a single motion)
a) Resolution #12, 2008 -Contract Castle Creek Hydropower Project
b) Minutes -February 11, 2008
VII. First Reading of Ordinances
a) Ordinance #4, 2008 -Code Amendment -Service/Commercial/Industrial Zone
P.H. 3/10
VIII. Public Hearings
a) Resolution #13, 2008 -Lift One Neighborhood Master Plan COWOP Eligibility
b) Ordinance # 2008 -Lift One Lodge - To be continued
IX. Action Items
a) Lift One Master Plan Cost Sharing Agreement
b) Lift One Master Plan Supplemental Budget Request
c) Resolution #14, 2008 -Appeal of Administration Decision -Chateau Roaring Fork
#43
d) Resolution #15, 2008 -Appeal of Land Use Interpretation -Aspen Brewing
Company
X. Adjournment
Next Regular Meeting March 10, 2008
COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M.
MEMORANDUM
To:
FROM:
THRU:
THRU:
THRU:
DATE OF MEMO:
MEETING DATE:
RE:
Mayor and City Council
John Hines, Utilities Engineer
v~ a.
Phil Overeynder, Public Works Director
Steve Barwick, City Manager
John Worcester, City Attorney
February 15, 2008
February 25, 2008
Contract Award for Castle Creek Hydroelectric Plant Turbine
and Generator
REQUEST OF COUNCIL: Staff requests award of a contract to provide the turbine and
generator for the Castle Creek Hydroelectric Plant to Canyon Industries, Inc. The contract award
amount is $1,313,240. The proposal from Canyon Industries is within the amount budgeted for
this equipment as defined in the engineering feasibility study for the project.
PREVIOUS COUNCIL ACTION: Council reviewed the feasibility study for the Castle Creek
Hydroelectric Plan in April, 2007 and approved a contract with Smart Mahoney Associates for
project planning. In August, 2007 Council approved two ballot measures related to siting the
plant and providing for the issuance of bonds up to $5.5 million. Voters approved the ballot
measures in November, 2007.
BACKGROUND: The Castle Creek Hydroelectric Plan is a key component in providing
renewable energy courses to Aspen's electric customers. The 1.05 Megawatt facility will
produce approximately 5.5 million kWh annually, or about 8.5 percent of the annual energy
requirements of Aspen's electric customers. It will reduce COZ emissions by approximately
5,167 tons, representing a 0.6% community-wide reduction in COz• The turbine and generator
equipment convert the force of the falling water into electric power
Since approval of the two ballot measures, preliminary agreement has been reached with the
Open Space Board regarding use of the site adjacent to the historic hydroelectric plan building.
An application has been filed with the Federal Energy Regulatory Commission (FERC) for a
"Declaration of Intention" to resume operations of this historic Castle Creek plant. Baseline
Page 1 of 3
sound measurements have been taken at the project site in order to aid the design process to
ensure that post project sound levels are consistent with conditions at the present time. Bids
were solicited for the turbine and generator equipment because this equipment has a lead time of
one year and because design of the structure (footprint and elevation) cannot be initiated without
knowing the equipment size and configuration. Essentially, the building will be designed around
the piece of equipment chosen to generate power.
DISCUSSION: Bids for the turbine and generator were solicited on an international basis.
Proposals were received from five firms, which included nine options for configuring the turbine
and generator equipment. The bid amounts ranged from $860,000 and $2,400,000 and included
options for one or two turbines and one or two generators. Selection of the equipment included
input from the consultant design team (project planners, civil engineer, electrical engineer), plus
existing City hydroelectric operations staff. A total of eleven categories, including plant
efficiency, cost, noise, maintenance, reliability, and references, were used in the scoring matrix.
Canyon Industries scored highest in critical categories including the efficiency of the equipment.
The combined efficiency of the turbine and generator was given the greatest weight since this
determines the amount of electric energy product by the plant over its lifetime.
If this contract is approved by Council, the equipment will be shipped for installation within 58
weeks. This fits the current project schedule and allows other elements of the design process to
take place. The next step will be completion of preliminary design drawings for the building and
presentation at the neighborhood meeting, tentatively scheduled for March. Current plans are to
break ground for the penstock in the fall of 2008. Construction of the building to house this
equipment is dependent on completion of the design review process. The current schedule for
project completion and commissioning is in the fall of 2009.
FINANCIAL/BUDGET IMPACTS: Existing 2008 appropriations for this project are
$3,275,000. This appropriation was intended to cover the cost of the equipment, plus the first
year's construction activities on the penstock and the engineering costs. The proposed contract
award is within the amount appropriated and also fits within the project budget for the
equipment.
ENVIRONMENTAL IMPACTS: The proposed facility will generate enough electric power
for 655 typical homes in Aspen, thereby reducing carbon emissions from electric power
production from purchase of coal-fired power.
RECOMMENDED ACTION: Staff recommends award of the turbine and generator bid to
Canyon Industries, Inc. of Deming Washington, in the amount of $1,313,240.
ALTERNATIVES: The alternative would be to awazd the contract to the second ranked bidder.
The second rated bidder proposed two turbines with a single generator, which would require
additional space for the bui]ding. Also, this equipment would be manufactured in China rather
than the U.S. and parts availability would be questionable.
PROPOSED MOTION: I move to approve Resolution # ~ 2--
Page 2 of 3
RESOLUTION #
(Series of 2008)
A RESOLUTION APPROVING A CONTRACT BETWEEN THE CITY OF
ASPEN, COLORADO, AND CANYON INDUSTRIES, INC. SETTING FORTH
THE TERMS AND CONDITIONS REGARDING THE CASTLE CREEK
HYDROELECTRIC PLANT TURBINE AND GENERATOR AND
AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen, Colorado, and Canyon Industries, Inc., a copy of
which contract is annexed hereto and made a part thereof.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO:
Section 1
That the City Council of the City of Aspen hereby approves that contract
between the City of Aspen, Colorado, and Canyon Industries, Inc. regarding the
purchase of the Castle Creek Hydroelectric Plant turbine and generator, a copy of
which is annexed hereto and incorporated herein, and does hereby authorize the
City Manager of the City of Aspen to execute said contract on behalf of the City of
Aspen.
Dated:
Michael C. Ireland, Mayor
I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Council of the City of Aspen, Colorado, at a meeting held February 25, 2008.
Kathryn S. Koch, City Clerk
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement made and entered on the date hereinafter stated, between the CITY OF
ASPEN, Colorado, ("City") and Canyon Industries, Inc. ("Professional").
For and in consideration of the mutual covenants contained herein, the parties agree as
follows:
Scope of Work. Professional shall perform in a competent and professional manner
the Scope of Work as set forth at Exhibit "A" and Exhibit "B" attached hereto, and by this reference
incorporated herein.
Completion. Professional shall commence work immediately upon receipt of a
written Nofice to Proceed from the City and complete all phases of the Scope of Work as
expeditiously as is consistent with professional skill and care and the orderly progress of the Work
in a timely manner. The parties anticipate that all work pursuant to this agreement shall be
completed no later than scheduled in Exhibit B. Upon request of the City, Professional shall submit,
for the City's approval, a schedule for the performance of Professional's services which shall be
adjusted as required as the project proceeds, and which shall include allowances for periods of time
required by the City's project engineer for review and approval of submissions and for approvals of
authorities having jurisdiction over the project. This schedule, when approved by the City, shall not,
except for reasonable cause, be exceeded by the Professional.
Payment. In consideration of the work performed, City shall pay Professional on a
time and expense basis for all work performed. The hourly rates for work performed by Professional
shall not exceed those hourly rates set forth at Exhibit "B" appended hereto. Except as otherwise
mutually agreed to by the parties the payments made to Professional shall not initially exceed
$1,313,240.00. Professional shall submit, in timely fashion, invoices for work performed. The City
shall review such invoices and, if they are considered incorrect or untimely, the City shall review
the matter with Professional within ten days from receipt of the Professional's bill.
Non-Assignability. Both parties recognize that this contract is one for personal
services and cannot be transferred, assigned, or sublet by either party without prior written consent
of the other. Sub-Contracting, if authorized, shall not relieve the Professional of any of the
responsibilities or obligations under this agreement. Professional shall be and remain solely
responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers,
agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee
of the Professional to the extent of the subcontract. The City shall not be obligated to pay or be
liable for payment of any sums due which maybe due to any sub-contractor.
Termination. The Professional or the City may terminate this Agreement, without
specifying the reason therefor, by giving notice, in writing, addressed to the other party, specifying
the effective date of the termination. No fees shall be earned after the effective date of the
termination. Upon any termination, all finished or unfuushed documents, data, studies, surveys,
PS1-971.doc Page 1
drawings, maps, models, photographs, reports or other material prepazed by the Professional
pursuant to this Agreement shall become the property of the City. Notwithstanding the above,
Professional shall not be relieved of any liability to the City for damages sustained by the City by
virtue of any breach of this Agreement by the Professional, and the City may withhold any
payments to the Professional for the purposes of set-off until such time as the exact amount of
damages due the City from the Professional maybe determined.
Covenant Against Contingent Fees. The Professional warrants that s/he has not
employed or retained any company or person, other than a bona fide employee working for the
Professional, to solicit or secure this contract, that s/he has not paid or agreed to pay any company
or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee. gifts or
any other consideration contingent upon or resulting from the award or making of this contract.
Independent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this agreement shall result in, or be construed as establishing an
employment relationship. Professional shall be, and shall perform as, an independent Conh~actor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent,
employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or
servant of the City. City is interested only in the results obtained under this contract. The manner
and means of conducting the work are under the sole control of Professional. None of the benefits
provided by City to its employees including, but not limited to, workers' compensation insurance
and unemployment insurance, aze available from City to the employees, agents or servants of
Professional. Professional shall be solely and entirely responsible for its acts and for the acts of
Professional's agents, employees, servants and subcontractors during the performance of this
contract. Professional shall indemnify City against all liability and loss in connection with, and
shall assume full responsibility for payment of all federal, state and local taxes or contributions
imposed or required under unemployment insurance, social security and income tax law, with
respect to Professional and/or Professional's employees engaged in the performance of the services
agreed to herein.
Indemnification. Professional agrees to indemnify and hold harmless the City, its
officers, employees, insurers, and self-insurance pool, from and against liability, claims, and
demands, on account of injury, loss, or damage, including without limitation claims arising from
bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of
any kind whatsoever, which arise out of or are in any manner connected with this contract, if such
injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in
part by, the act, omission, error, professional error, mistake, negligence, or other fault of the
Professional, any subcontractor of the Professional, or any officer, employee, representative, or
agent of the Professional or of any subcontractor of the Professional, or which arises out of any
workmen's compensation claim of any employee of the Professional or of any employee of airy
subcontractor of the Professional. The Professional agrees to investigate, handle, respond to, and to
provide defense for and defend against, any such liability, claims or demands at the sole expense of
the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the
defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is
determined by the final judgment of a court of competent jurisdiction that such injury, loss, or
PSI-971.doc Page 2
damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or
its employees, the City shall reimburse the Professional for the portion of the judgment attributab]e
to such act, omission, or other fault of the City, its officers, or employees.
Professional's Insurance. (a) Professional agrees to procure and maintain, at its own
expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands,
and other obligations assumed by the Professional pursuant to Section 8 above. Such insrrance shall
be in addition to any other insurance requirements imposed by this contract or by law. The
Professional shall not be relieved of any liability, claims, demands, or other obligations assumed
pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of
its failure to procure or maintain insurance in sufficient amounts, duration, or types.
(b) Professional shall procure and maintain, and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with forms and insurance acceptable to the City. All
coverages shall be continuously maintained to cover all liability, claims, demands, and other
obligations assumed by the Professional pursuant to Section 8 above. In the case of any claims-
made policy, the necessary retroactive dates and extended reporting periods shall be procured to
maintain such continuous coverage.
(i) Workers' Compensation insurance to cover obligations imposed by
applicable laws for any employee engaged in the performance of work under this contract, and
Employers' Liability insurance with minimum limits of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) for each accident, FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease - policy limit, and FIVE HUNDRED THOUSAND DOLLARS
($500,000.00) disease -each employee. Evidence of qualified self-insured status may be substituted
for the Workers' Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION
DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and
operations. The policy shall include coverage for bodily injury, broad form property damage
(including completed operations), personal injury (including coverage for contractual and
employee acts), blanket contractual, independent contractors, products, and completed
operations. The policy shall contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance with minimum combined
single limits for bodily injury and property damage of not less than ONE MILLION
DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,00-
0.00) aggregate with respect to each Professional's owned, hired and non-owned vehicles
assigned to or used in performance of the Scope of Work. The policy shall contain a
severability of interests provision. If the Professional has no owned automobiles. the
requirements of this Section shall be met by each employee of the Professional providing
services to the City under this ebntract.
PS1-971.doc Page i
(c) The policy or policies required above shall be endorsed to include the City and the City's
officers and employees as additional insureds. Every policy required above shall be primary insur-
ance, and any insurance carried by the City; its officers or employees, or carried by or provided
through any insurance pool of the City, shall be excess and not contributory insurance to that
provided by Professional. No additional insured endorsement to the policy required above shall
contain any exclusion for bodily injury or property damage arising from completed operations. The
Professional shall be solely responsible for any deductible losses under any policy required above.
(d) The certificate of insurance provided by the City shall be completed by the
Professional's insurance agent as evidence that policies providing the required coverages, condi-
tions, and minimum limits aze in full force and effect, and shall be reviewed and approved by the
City prior to commencement of the contract. No other form of certificate shall be used. The certifi-
cate shall identify this contract and shall provide that the coverages afforded under the policies shall
not be canceled, terminated or materially changed until at least thirty (30) days prior written notice
has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of contract
upon which City may immediately terminate this contract, or at its discretion City may procure or
renew any such policy or any extended reporting period thereto and may pay any and all premiums
in connection therewith, and all monies so paid by City shall be repaid by Professional to City upon
demand, or City may offset the cost of the premiums against monies due to Professional from City.
(f) City reserves the right to request and receive a certified copy of any policy and any
endorsement thereto.
(g) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00
per person and $600,000 per occurrence) or any other rights, immunities, and protections provided
by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to
time amended, or otherwise available to City, its officers, or its employees.
City's Insurance. The parties hereto understand that the City is a member of the
Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA
Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen
Finance Department and aze available to Professional for inspection during normal business hours.
City makes no representations whatsoever with respect to specific coverages offered by CIRSA.
City shall provide Professional reasonable notice of any changes in its membership or participation
in CIRSA.
Completeness of Agreement. It is expressly agreed that this agreement contains the
entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or
PS1-971.doc Page 4
written representations, agreements, warranties or promises pertaining to the project matter thereof
not expressly incorporated in this writing.
Notice. Any written notices as called for herein may be hand delivered to the
respective persons and/or addresses listed below or mailed by certified mail return receipt requested,
to:
City:
City Manager
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Professional:
Brett Bauer
Canyon Hydro
5500 Blue Heron Lane
Deming, WA 98244
Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or
religion shall be made in the employment of persons to perform services under this contract.
Professional agrees to meet all of the requirements of City's municipal code, Section 13-98,
pertaining to non-discrimination in employment.
Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, wvenant, or
condition of this Agreement can be waived except by the written consent of the City, and
forbearance or indulgence by the City in any regazd whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Professional to which the same may apply and,
until wmplete performance by Professional of said term, covenant or condition, the City shall be
entitled to invoke any remedy available to it under this Agreement or by law despite any such
forbearance or indulgence.
Execution of Agreement by City. This agreement shall be binding upon all parties
hereto and their respective heirs, executors, administrators, successors, and assigns. Notwith-
standmg anything to the contrary contained herein, this agreement shall not be binding upon the
City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his
absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the
Mayor (or a duly authorized official in his absence) to execute the same.
16. Illegal Aliens -CRS 8-17.5-101 & 24-76.5-101.
a. Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
PS1-971.doc Page 5
certain specific language as set forth in the statutes. The following terms and conditions
have been designed to comply with the requirements of this new law.
b. Definitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
"Basic Pilot Program" means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public Law
156, 108th Congress, as amended, that is administered by the United States Department
of Homeland Security.
"Public Contract for Services" means this Agreement.
"Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than reports that
aze merely incidental to the required performance.
c. By signing this document, Professional certifies and represents that at this time:
(i) Professional shall confirm the employment eligibility of all employees who
are newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not employ illegal aliens.
d. Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails to
confirm to the Professional that the subcontractor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services.
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
employees who aze not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Program prior to
entering into the Public Contract for Services, Professional shall forthwith apply
to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
shall continue to apply to participate in the Federal Basic Pilot Program and shall
PS1-971.doc Page 6
in writing verify same every three (3) calendar months thereafter, until
Professional is accepted or the public contract for services has been completed,
whichever is eazlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre-employment screening of job applicants while the Public Contract for
Services is being performed.
(v) If Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
anew employee who is an illegal alien, Professional shall:
(1) Notify such subcontractor and the City of Aspen within
three days that Professional has actual knowledge that the subcontractor
has newly employed or contracted with an illegal alien; and
(2) Terminate the subcontract with the subcontractor if within
three days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal
alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
damages to the City of Aspen arising out of Professional's violation of Subsection
8-17.5-102, C.R.S.
(ix) If Professional operates as a sole proprietor, Professional hereby swears or
affirms under penalty of perjury that the Professional (1) is a citizen of the United
States or otherwise lawfully present in the United States pursuant to federal
law,(2) shall comply with the provisions of CRS 24-76.5-101 et seq., and (3) shall
produce one of the forms of identification required by CRS 24-76.5-103 prior to
the effective date of this Agreement.
PS1-971.doc Page 7
I Z General Terms.
(a) It is agreed that neither this agreement nor any of its terms, provisions.
conditions, representations or covenants can be modified, changed, terminated or amended, waived,
superseded or extended except by appropriate written instrument fully executed by the parties.
(b) If any of the provisions of this agreement shall be held invalid, illegal or
unenforceable it shall not affect or impair the validity, legality or enforceability of any other
provision.
(c) The parties acknowledge and understand that there are no conditions or
limitations to this understanding except those as contained herein at the time of the execution hereof
and that afrer execution no alteration, change or modification shall be made except upon a writing
signed by the parties.
(d) This agreement shall be governed by the laws of the State of Colorado as
from time to time in effect.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement in three copies each of which shall be deemed aii original on
the date hereinafter written.
[SIGNATURES ON FOLLOWING PAGE]
PSI-971.doc Page 8
EXHIBIT "A" to Professional Services Agreement
Scope of Work
Canyon Industries will custom design and supply one hydroelectric equipment package based on
the conditions presented in RFQ's Design Criteria and Scope of supply and Canyon Industries'
proposal and Preliminazy Design Specifications dated January 22, 2008.
PS1-971.doc Page 10
ATTESTED BY: CITY OF ASPEN, COLORADO:
By:
Title:
Date:
PROFESSIONAL:
WITNESSED BY: Canyon Hydro
' By~ ~~t}'~A/1
~~~ ~ Title: Brett Bauer, Vice President
Date: ~o~ ~ (t( ~~O 0
PSI-971.doc Page 9
Exhibit "B" to Professional Services Agreement
Rates
TERMS AND CONDITIONS
CONSIGNEE:
City of Aspen, Colorado
Purchasing Department
130 South Galena Street
Aspen, Colorado 81611
Canyon Hydro, the water power division of Canyon Industries, Inc., 5500 Blue Heron Lane,
Deming, Washington,98244, USA, agrees to sell to Consignee, City ofAspen, one (1) Canyon
Custom Pelton type turbine/generator system, as described in attached Preliminary Design
Specifications.
Price: $1,313,240.00
Terms: 10% deposit with order
25% payment upon approval of submittals and authorization to begin
construction
35% payment upon receipt of rough casting at Canyon's facility in
Deming
30% payment before shipping
Schedule: -General layout drawings available 8 - 12 weeks to include:
TURBINE ELEVATION DRAWING
GENERATOR LAYOUT DRAWING
GENERATOR LOADING
TURBINE/GENERATOR ASSEMBLY PLAN VIEW
TURBINE/GENERATOR ASSEMBLY ELEVATION VIEW
- Final submittal package available 6-8 weeks after approval of general
layout drawings, to include drawings above and the following:
TURBINE & GENERATOR EMBEDMENT DRAWINGS
HYDRAULIC SCHEMATIC
HYDRAULIC BOM
FULL GENERATOR DRAWINGS
SPARE PARTS LIST
- Equipment ready for shipment 42-46 weeks after approval of fmal
submittals
PS1-971.doc Page 11
Comments/Exce~tions:
1) Canyon Hydro is available to assist with the installation, startup and commissioning
according to our attached field service rates. We have not included any field work in
our price above. Canyon will work with the City to develop an agreed upon scope
for the commissioning. For a project of this size, we prefer this arrangement rather
than dictating required tests.
2) The need for a flywheel will be determined after a detailed hydraulic transient
analysis and load analysis is performed. We have not budgeted for a flywheel as a
Pelton turbine can typically respond quickly with deflector governing. If a flywheel
is determined to be necessary, we can offer an adder for this.
3) The switchgear/control descriptions of the Preliminary Design Specifications detail
several options. Option 2 for the line/neutral cubicle is required to complete the
electrical design scope. Other options can be added to the price above as required.
4) Following the interconnect guidelines figure 10.4, a station service breaker is
required in the system. If it is desired to have this in our scope, Canyon can provide
a quote for this when the design is determined.
5) In the post bid teleconference, aprice for changing the turbine's inlet and TIV to a
larger size was requested. We can provide these changes to 36" for a net adder of
$4,000.00 or to 42" for a net adder of $11,000.00.
6) The Mazelli generator offered is designed and built according to IEC 60034-1; CEI
EN 60034-1; BS 4999-5000; VDE 0530, NF 51-100; OVE M-10; NEMA MG1.22.
The attached testing page shows two levels of testing. The reduced testing is
included. The complete testing option is available per the prices attached. The
complete testing option, including efficiency, losses, overspeed and noise level tests,
is included in the price above.
7) As discussed, our standazd warranty is included in the proposal. We have now
received an option from Mazelli for a two year warranty and can quote a two year
8) warranty to you for an additiona15.5% of the total contract price.
9) The switchgeaz/control package offered includes vibration monitoring. We propose a
Metrix vibration transducer model 440DR20440000. It provides a 4-20mA output
that will be monitored by the PLC as well as a programmable trip point.
10) Attached are copies of an example switchgeaz/control shop test report, turbine
installation checklist, and a typical site acceptance test from recent projects. These
PS1-971.doc Page 12
are tailored for each project. We propose to follow a similar format for this project
and provide these plans with our submittals for your review. We can work back and
forth as necessary to agree on the final plans.
11) Canyon is committed to the success of our projects. Any problem with the
equipment would be remedied according to our standard warranty terms.
PS1-971.doc Page 13
MEMORANDUM '
TO: Mayor and City Council
FROM: Ben Gagnon, Special Projects Planner
THRU: Chris Bendon, Community Development Director
MEETING DATE: February 25, 2008
a
RE: Code Amendments in the Service/CommerciaUlndustrial Zone
District -Ordinance No. ~, Series 2008 - lg~ ReadinE,
2"a Readin¢ scheduled for March 10
LAND USE REQUESTS AND REVIEW PROCEDURES:
Staff is requesting the following from City Council:
• Determination if application to amend code text meets Standazds of Review, pursuant to
Land Use Code Chapter 26.310.040 Standards of Review.
PROJECT SUMMARY:
Staff held a work session with Council last summer that outlined the history of the SCI Zone
District since 1975, including a list of businesses operating in the district at different times
over the last 30 + yeazs, to show use trends in the area. Staff is including these documents as
Exhibit B and Exhibit C.
The historical overview demonstrated that the SCI Zone District is limited to commercial uses
that tend to generate limited rental revenues -and if given a choice, the free mazket would not
"choose" these small business park-style uses. The result has been continual pressure in this
district to allow a wider choice of uses. One instructive example was the allowance for architects
to locate in this district in the late 1980s as "Artist Studios," and the subsequent proliferation of
architects in the district. The Council established a Design Studio use in 1999, but placed a 9,000
square-foot cap on this use to prevent further proliferation.
The economic reality of this zone district is that opening the door to new uses may attract
businesses that can financially outcompete more traditional SCI uses for space. For example, if
general office space were suddenly allowed in the district, the chances of retaining a Laundromat
in the long-term would likely be lessened.
This economic phenomenon creates underlying complexities for this unique district. For
example, there may be differing opinions on the actual demand for commercial space by
traditional SCI uses: some might azgue the demand is low, others might azgue that rents or sale
prices might be set too high to accommodate them. At the same time, a range of business types
would like to locate in the SCI district because of high commercial rents in other parts of town.
During a work session with Council last summer, Council's general direction was to maintain a
strict list of uses that favor the retention of traditional SCI uses. The code changes recommended
by staff in this memo follow that direction. While staff is recommending the allowance of
Medical Office uses in the district on a limited basis, the rules governing the Medical Office use
would actually create an incentive to provide a certain "base amount" of SCI space in a
redevelopment scenario. Staff is also recommending that Medical Offices, and Design Studios,
should be located in areas of the district where traditional SCI uses are not likely to locate -
therebypreventing the medical and architectural uses from outcompeting more traditional SCI
uses.
Staff is recommending numerous code text amendments to the
Service/Commercial/Industrial Zone District (Section 26.710.160). Many of them are minor
amendments in the area of housekeeping and clarity. Several proposed code text changes are
of a more substantial nature.
STAFF COMMENTS'
Staff typically submits a "clean" Ordinance for Council consideration. However, the nature of
code text amendments presents a somewhat more complex review procedure. Staff has enclosed
an Ordinance demonstrating code changes by using stfil~etlxettghs for removed text and blue
shading to denote new text recommended by the Community Development Director. The
Ordinance features green shading for text recommended by the Planning and Zoning
Commission during its review of Jan. 29, as well as for
deletions recommended by the P&Z. With its color shading "key," the proposed Ordinance is an
exact copy of P&Z Resolution No. 5, approved by a 6-0 vote on Jan. 29, 2008.
Each proposed code change is accompanied by a numbered red box in the Ordinance that
correlates with a numbered red box in the left column of this explanatory staff memo. Staff
suggests setting the Ordinance side-by-side with the memo and using the red boxes to track the
changes in code language with staff's explanation.
In various cases, staff may or may not be supportive of recommendations by the P&Z, and this
memo will explain staff s position for each.
Under B Permitted Uses. Striking the language "no more than 25% of the floor area," and
replacing it with, "a limited percent ... " is a change for clarity. There are a set of SCI uses that
are allowed to use 100% of space for retail, showroom and reception, another set of SCI uses that
are allowed 25%, and a new section that would allow 10%.
Under B(1)a "Interior finishes" were added to allow for tile, drapes and related items consistent
with hardware store offerings. Staff believes interior finish items are consistent with the rest of
1(a).
Under B(1)c, the inclusion of motor-driven cycles is intended as an update to encompass new
types of vehicles. Staff believes this use is consistent with the SCI district.
Under B(1)d, the repair, service and rental of bicycles and kayaks etc. is a service commercial
use, and remains a service when it is offered in conjunction with guiding and touring. There has
been a rental bike shop at the Puppy Smith SCI parcel for more than a decade.
2
Under B(2)a + g, staff is recommending moving the building/landscape maintenance facility and
caz wash uses from a permitted use that may feature up to 25% of space for retail, showroom etc.
to permitted uses that may include up to 10% of space for retail, showroom etc., considering the
limited retail and showroom area required by these uses. These two uses aze now listed under
B(3) a + b.
Under B(2Ih, the P&Z recommended updating the "Catalogue sales store" use to allow for
internet auction consignment, which is intended to take in items and provide a service that places
them for auction on the Internet. Staff agrees that since this is not intended as an on-site retail
use, it is appropriate for the SCI district.
Under B(2)l, the P&Z recommended moving the Artist's Studio use from a permitted use to a
conditional use, considering that the Artist Studio uses most consistent with the SCI District
would be artistry involving ceramics, sculpture etc., which may have an impact on neighboring
uses that should be considered. Staff agrees this is a reasonable change.
Under B(2Im, Staff believes this is an opportunity to begin reversing some of the mistakes of
the past. In the late 1970s, a martial arts studio moved to the district at a time when it was not a
permitted use. The City ultimately decided to list it as an allowed use, lazgely because it was
already there, not because it is a service commercial use anticipated when the district was
formed. Martial arts is essentially an educational use. Over time, businesses that considered
themselves in the same general category of martial arts, such as yoga teachers or fitness trainers,
pressured the City to allow them to locate in the district as well. In 1999, the City added
"reheazsal or teaching studios for the creative arts and/or martial arts ..." Since that time, many
businesses that don't quite fit this definition have asked to be included in the district. Staff
believes this is a classic example of the SCI district opening a door to a new use, then seeing the
door being pushed further to a wider array of uses, and diluting the nature of the service
commercial district. Staff believes the appropriate step is to eliminate this item entirely,
including martial arts - as it was never an appropriate use for this district.
Under B(2Ig, this is to clarify the brewery use with regard to on-site consumption of alcoholic
beverages. Since a "bar" use is not allowed in this zone district, this language places a specific
limit on tastings.
Under B(2)t-v, Tattoo Parlor was established as a conditional use in this district in 1999, and
was removed during the code changes of 2005. Staff believes this is a form of non-retail service
commercial use, and belongs in the SCI district. An applicant might cun•ently argue that the use
is allowed under Artist's Studio.
Under B(2)u, staff believes that if a taxidermist wanted to locate in Aspen, the SCI district is the
appropriate site, considering that most of such a business space is set aside for the "tailoring"
work of taxidermy, and the business is done on a custom-order basis rather than aretail-piece
basis. The Planning and Zoning Commission recommended making this a conditional use, and
staff agrees.
Under B(2)v, Design Studio uses have been allowed since a code text amendment was adopted
in 2000. This amendment in 2000 acknowledged that such uses had existed for some time in the
3
SCI district, after architect Harry Teague gained permission to move into the district in the mid-
1980s by arguing that his carefully crafred architectural models qualified his business as an
Artist's Studio.
In 1999, Council approved a code text amendment that established a 9,000 squaze foot cap on
Design Studio uses due to concerns that architectural offices can pay higher rents than more
traditional service commercial companies, and would ultimately outcompete such businesses in
the zone district. This floating cap is a difficult zoning enforcement cap, as businesses relocate
within the district and/or expand.
Staff believes Design Studio uses should be limited to the Andrews-Mcfazlin Subdivision parcel.
The subdivision is a long and thin, metes and bounds pazcel directly adjacent to the Roaring Fork
River to the east, and directly adjacent to the arterial N. Mill St. to the west.
The parcel was included in the SCI Zone District when the district was established in 1975, at a
time when it was common practice across the United States to locate industrial and light
industrial uses directly adjacent to rivers, and at a time when N. Mill St. was not an arterial
roadway.
Since 1975, the City of Aspen has enacted strict regulations governing the use of properties
adjacent to rivers, known as Stream Margin Review, and N. Mill St. has evolved into an arterial
roadway. Because of the shape of the parcel and the characteristics of neighboring sites, the
Andrews-Mcfazlin Subdivision parcel has a limited functional capacity to support businesses that
store, service, repair, rent, sell, onload and offload material goods. As a result, few such
businesses have located at the site over the years, and it is not a parcel where such traditional SCI
businesses tend to compete for space.
Staff believes that Design Studio uses are more appropriate for this pazcel than most other
permitted uses in the SCI district. In fact, to allow Design Studio uses only at this parcel prevents
Design Studio uses, which tend to generate more revenue than more traditional service
commercial businesses, from out-competing more traditional service commercial businesses at
other sites.
Under B(2)w,x,y +z, this is a "housekeeping item. Staff is proposing to move these permitted
uses to more appropriate sections. Staff is proposing to move B(2)w: "Whazehousing and
storage" out of the section that allows for 25% of space to be used for retail and showroom etc.,
and into the section allowing 10% of space for retail and showroom etc.
Staff is proposing to move B(2)x: "Service yard accessory to a permitted use," B(2)y: "Sales and
rental accessory and incidental for a permitted use," and B(2)z: "Accessory buildings and uses"
to a new section, B(5) that encompasses "Permitted accessory uses."
Under "Non SCI Uses Permitted," staff is deleting the existing Design Studio use, with its 9,000
squaze foot floating cap in favor of allowing Design Studio uses on the Andrews-McFarlin parcel
only, as explained above.
Under B(3)a-d, these items were relocated from section B(2) above and consolidated under this
new category because they are uses that do not need a significant azea for retail, showroom or
reception. Rather than allowing for 25% retail space, these uses aze limited to 10% retail space.
4
Under B(3)d, staff has added "recording studio" because it is a service commercial use that does
not require much, if any, retail space. The P&Z preferred the language "Broadcast media
production," seeing a use that would serve local TV and radio stations. Staff had originally
envisioned a recording studio use that could be an asset to local or visiting musicians, and further
saw that use as being well able to function on Basement or Upper Floors. Staff believes the
phrase, "Broadcast media production" is vague, and if this type of use is allowed, it should
simply state, "Broadcasting production facilities or recording studio." Staff sees recording
studios and TV/radio stations as anon-retail commercial use that is of general service to the
public, and are appropriate uses in the SCI district.
Under B(4)a, staff is recommending the addition of a Medical Office use.
Staff has become increasingly aware that office space in general has become increasingly
difficult to find at affordable rates in the City. Past discussions have included allowing general
office uses in the SCI district. Staff is opposed to allowing general office uses, as the district was
never intended for this purpose, and many office uses are not necessarily locally-serving.
However, medical offices tend to be almost exclusively local-serving, and they represent a
different category of use from the perspective of a municipality that is primazily charged with
maintaining the public health and welfaze. Staff believes that maintaining medical offices in
close proximity to the core business district and high-density population areas of any
municipality is a basic element of "community chazacter."
Staff recognizes the reality of upcoming redevelopment in the SCI district, and recognizes that
there is likely to be a substantial amount of space available on upper floors that tend to be
difficult spaces for traditional SCI uses to locate in. At the same time, staff does not want
medical offices to compete with more traditional SCI uses. Staff believes Medical Office uses
should be viewed as an "add-on" use rather than a core, traditional SCI use.
This "add-on" concept for Medical Office space was part of the Obermeyer Place COWOP
review in 2004, when AVH was interested in about 9,000 square feet of space at the site. The
square footage was in addition to the SCI Commercial Uses that were to be entirely replaced at
the site, and was an acceptable concept to the COWOP Task Force and the Council at that time.
When the AVH plan was not implemented due to financial reasons, the additional square footage
was removed from the site plan.
Under Section D(11)b + d, there aze additional changes to the code regarding Floor Area Ratio
that both incentivize SCI space, incentivize Medical Office space, and limit the amount of
Medical Office space. You will find the staff explanations under "red boxes" #21 and #22.
Under B(5)a-d, this code text amendment is intended for clarity. Various accessory uses had
previously been listed under Section B(2), allowing for 25% retail and showroom space. Staff
felt it more appropriate to establish a section listing specific accessory uses.
Under B(5)e, staff is proposing to define offices as an accessory use, adding B(5)e, "Offices, not
to exceed 10% of the commercial unit." Previously, "offices" had been included in the language
defining the percentage limit of retail, showroom and reception space. Staff is proposing to
remove the word "office" from Section B(1) and B~2 , as follows:
5
/ B(1): SCI Uses which may use up to 100% of the floor area for retail sales, e€€tses
showroom, or customer reception:
/ B(21: SCI Uses which may use, in combination, up to 25% of the floor area for accessory
retail sales, e€€~es showroom, or customer reception:
In practice, some businesses had tried to interpret these sections as allowing for substantial
amounts of office space that were tangential to the underlying use. By identifying "office" as an
accessory use, the message is clearer that office space is accessory to the primary use.
Under C. Conditional Uses, in the first and second paragraph, these are housekeeping changes
to improve code citations.
Under C. Conditional Use, in the third paragraph reading, "Under Section 26.710.160(0)6-7,
..." the purpose of this additional language is to require land use applicants to show that
commercial and residential uses are separated enough to prevent future conflicts and to insure
that commercial uses can function properly. Part of the community feedback regarding
Obermeyer Place is that the commercial elements at the site are somewhat hidden and somewhat
dominated by residential uses. Staff agrees with this assessment. Staff is also concerned that
when SCI-type uses are in close proximity to residential users, complaints from residential users
could adversely effect the commercial users. This additional special review requirement for
housing means that applicants must address this issue.
A specific conditional use standard proposed to meet this concern can be found under Section
F(2) Conditional Review Standards below. The staff explanation can be found under "red box"
#25.
Under C(4-5), the P&Z had recommended placing Artist Studio and Taxidermist in the
Conditional Use section, as noted above. Staff agrees with this recommendation.
Under C(8), City Council requested that staff remove the provision allowing an "ancillary
residence" in conjunction with an Artist's Studio. Staff agrees that such free market housing
space will easily outcompete Commercial Uses for much-needed space. To the degree that free
market housing is allowed, it should be tightly controlled. In the Floor Area Ratio section below
D(11), free market housing is controlled by tying it to the establishment of substantial space for
Commercial Uses and Medical Office uses. Further, staff believes that it will be problematic to
decide who is an "artist" and who is not. The motivation to open an "Artist Studio" in order to
get a free market unit would be high.
Under D(7), this item reflects basic requirements for utility/trash/recycling areas.
Under D(8), staff had initially recommended removing one of the options that would allow an
applicant to add 5 feet in height to the 35-foot limit. Staff recommended removing the option
under D(8)a that additional height may be approved if a development attains a minimum of .75:1
FAR of SCI uses. Staff believes the additional five feet of height as an incentive is no longer
needed due to new incentives related to Floor Area Ratio under D(11) below. See "red boxes"
#21 and #22 below for further explanation.
6
However, the P&Z recommended that the ability to gain an additional 5 feet in height -from 35'
to 40' -should be removed entirely. The P&Z agreed that a 40-foot building seemed too tall for
these areas of town. Staff does not concur with this recommendation. Staff believes that Section
E(1) Special Review Standards is sufficient in requiring the applicant to show the additional
height will be applied to the first floor to accommodate SCI uses and not for residential purposes,
and the applicant is further required to show the "appropriateness of the additional height and
massing considering the context in which the building will be developed." Staff believes there
are areas of the SCI district featuring topographical chazacteristics that may be conducive to
somewhat taller structures.
Under D(11I, the total cumulative FAR would increase from 2:1 up to 2.25:1. Staff believes this
is the highest practicable amount of space that could be built at SCI pazcels. Staff is proposing to
add the same language that Council added to other commercial zone districts last yeaz, stating
that the highest possible cumulative FAR is not an entitlement, but is subject to a variety of
factors.
Under D(lllb, the code text amendment would require that .75:1 FAR be devoted to SCI
Commercial Uses before .25:1 FAR of Medical Office Uses can be approved. The intent is to
require a substantial amount of space to be used for traditional SCI uses, and only then to include
Medical Offices as an "add-on" to the district.
During consideration by the P&Z, staff explained that the .75:1 FAR minimum for SCI uses does
not exist today on any of the SCI parcels, and therefore Medical Offices would not currently be
allowed in the SCI district. The P&Z sought to find a method for allowing some limited amount
of Medical Offices in the SCI district today, and agreed that 15% of each building should be
available for use as Medical Offices. Staff does not support this recommendation because staff
believes Medical Offices may tend to outcompete other more traditional SCI uses.
Under D(llld, this section pushes applicants to develop a baseline amount of SCI commercial
uses by requiring a .75:1 FAR for Commercial Uses before .25:1 FAR of free mazket residential
uses is permitted. Medical Offices are encouraged by increasing the free market FAR to .5:1 if
the full .25:1 FAR of Medical Offices are built as well.
Under D(12), this section mimics other commercial zone districts, where the code limits the size
of free market units in order to increase density and social vitality. The Commercial Core and C-
1 districts have a 2,000 square foot limit, while the Neighborhood Commercial District has a
1,500 squaze Foot limit. Staff believes that 2,000 squaze feet is appropriate for the SCI district to
allow for the financial engine of free market residential space.
Under E. Special Review Standards, this deletion simply removes the portion of the Special
Review Standard that allows for applicants to gain an additional 5 feet of height if they attain a
.75:1 FAR of SCI uses, as noted above under "red box" #19.
Under F Conditional Review Standards, this section was added for clarity and to rectify
an oversight in the existing code. The current code does not specify a conditional use review
standard for conditional uses that must establish a specific percentage of space allowed for
retail, office, showroom and reception. Section F(1) provides this criteria.
7
Under F(2), this section provides the criteria for the Conditional Use of Affordable Multi-
Family Housing and Free-Market Multi-Family Housing, in an effort to separate residential
uses from commercial uses on specific sites with the district, as discussed above at red box
#15.
Under Section 26.104.100 -Definitions, staff is proposing a definition of Medical or dental
office as provided.
RECOMMENDATION:
Staff recommends approval of this application for various code text amendments to the S/C/I
Zone District.
RECOMMENDED MOTION (ALL MOT ONS ARE WORDED IN THE AFFIRMITIVE~:
"I move to approve Ordinance No. ~, Series of 2008, finding that the application for code text
amendments meets the applicable Standards of Review."
ATTACHMENTS:
EXHBIT A -Review Criteria and Staff Findings
EXHIBIT B -History of the SCI Zone District
EXHIBIT C -Commercial Use Trends (chart)
ORDINANCE No.
(Series of 2008)
AN ORDINANCE OF THE ASPEN CITY COUNCIL, ASPEN, COLORADO,
DETERMINING THAT AMENDMENTS TO THE FOLLOWING CHAPTER
AND SECTION OF THE CITY OF ASPEN LAND USE CODE OF THE CITY
OF ASPEN MUNICIPAL CODE: 26.710.160 -SERVICE COMMERCIAL
INDUSTRIAL (SCI) ZONE DISTRICT, MEET APPLICABLE STANDARDS
OF REVIEW.
WHEREAS, on Apri125, 2006, the City Council of the City of Aspen
enacted asix-month temporary moratorium on land use applications in the Residential
Multi-Family (RMF); Residential/ Multi-Family (R/MFA); Commercial Core (CC);
Commercial (C1); Service Commercial Industrial (SCI); Neighborhood Commercial
(NC); Mixed-Use (MU); Lodge (L); Commercial Lodge (CL); Lodge Overlay (LO);
Lodge Preservation Overlay (LPO) Zone Districts of the City of Aspen, due to
persistent concerns that the rate and character of development activity in the City of
Aspen was having a negative impact upon the health, peace, safety, and general well-
being of the residents and visitors of Aspen, and that recent land use applications did
not appear consistent with the 2000 Aspen Area Community Plan; and,
WHEREAS, the City Council directed the Planning Director of the
Community Development Department to propose amendments to the Land Use Code
related to the above-named zone districts, pursuant to sections 26.208 and 26.212; and,
WHEREAS, pursuant to Section 26.310, applications to amend the text of
Title 26 of the Municipal Code shall be reviewed and recommended for approval,
approval with conditions, or denial by the Community Development Director and then
by the Planning and Zoning Commission at a public hearing. Final action shall be by
City Council after reviewing and considering these recommendations; and,
WHEREAS, on June 26, 2006, the City Council enacted Ordinance Number
23, Series of 2006, approving amendments to the six-month temporary moratorium,
and establishing additional exemptions to the temporary moratorium; and,
WHEREAS, Section 7 of Ordinance Number 19, Series of 2006, allowed for
the termination date of the moratorium to be extended by City Council through the
adoption of an ordinance; and,
WHEREAS, on September 25, 2006, the City Council enacted Ordinance
Number 38, Series of 2006, extending the temporary moratorium until February 28,
2007; and,
WHEREAS, on February 28, 2007, the City Council enacted Ordinance
Number 3, Series of 2007, extending the temporary moratorium until May 31, 2007;
and,
WHEREAS, on May 29, 2007, the City Council enacted Ordinance Number
20, Series of 2007, extending the temporary moratorium until November 30, 2007,
only for properties within the Service Commercial Industrial Zone Districts; and,
WHEREAS, on October 29, 2007, the City Council enacted Ordinance
Number 47, Series of 2007, extending the temporary moratorium until May 30, 2008;
and,
WHEREAS, the Community Development Director has recommended
approval of the proposed amendments to the Service Commercial Industrial Zone
District, as described herein; and,
WHEREAS, the proposed amendments encourage a greater social vitality of
service commercial areas, support for service commercial businesses that without the
SCI Zone District would likely relocate out of town and increase vehicle trip-
generation by locals seeking needed services, long-term sustainability of the local
economy that depends upon the services provided by businesses in the SCI district, the
provision of affordable housing that could be utilized as a live-work opportunity, the
continued provision of medical services to local residents in close proximity to the core
business district and high-density population areas, and generally encouraging a more
balanced permanent community ;and,
WHEREAS, the amendments proposed herein are consistent with the Aspen
Area Community Plan, which in part calls for:
• The focusing of growth towards already developed areas and away from
undeveloped areas surrounding the city by intensification of land uses within the
downtown.
• The retention of existing commercial and lodging uses.
• The rejuvenation of aging commercial properties.
• The development of mixed-use buildings with housing opportunities for locals.
• The development of affordable housing in locations supported by the "Interim
Aspen Area Housing Plan Guidelines" (incorporated as part of the 2000 AACP).
• A balance between the community and the resort aspects of Aspen.
• The long-term sustainability of the local social and economic conditions; and,
WHEREAS, there are several distinct geographic parcels of different shapes and
topographical characteristics within the SCI Zone District, and these different parcels
have a range of neighboring parcels with different characteristics, and the differing
natures of these parcels within the SCI Zone District may be appropriate for different
kinds of uses within the District; and,
WHEREAS, the Andrews-McFarlin Subdivision within the SCI Zone District is
along and thin, metes and bounds parcel directly adjacent to the Roaring Fork River to
the east, and directly adjacent to the arterial N. Mill St. to the west; and,
2
WHEREAS, this pazcel was included in the SCI Zone District when the it was
established in 1975, at a time when it was common practice across the United States to
locate industrial and light industrial uses directly adjacent to rivers, and since 1975, the
City of Aspen has enacted strict regulations governing the use of properties adjacent to
rivers, known as Stream Margin Review; and,
WHEREAS, Design Studio uses identified as permitted uses in the SCI Zone
District are more appropriate for the Andrews-McFarlin pazcel than most other permitted
uses in the SCI Zone District, which generally feature the servicing, repair, rental and
limited retail offerings of material goods including the space needed to store, service and
onload/offload material goods; and,
WHEREAS, the unique nature of the Andrews-McFazlin pazcel includes a
limited functional capacity to support such uses; and,
WHEREAS, the Community Development Director recommends that Design
Studio uses should be encouraged in specific areas of the SCI Zone District where most
other, more traditional permitted SCI Commercial uses are not likely to compete for
space; and,
WHEREAS, during a duly noticed public hearing on January 29, 2008, the
Planning and Zoning Commission found that the amendments met or exceeded all
applicable standards pursuant to Chapter 26.310, and recommended that City Council
approve amendments to the text of the Service Commercial Industrial Zone District, as
described in Planning and Zoning Commission Resolution No. 5, Series of 2008, by a
6-0 vote; and,
WHEREAS, during a duly noticed public hearing on March 10, 2008, the Aspen City
Council reviewed the recommendations of the Community Development Director and the
Planning and Zoning Commission, and the City Council found that the amendments met or
exceeded all applicable standards pursuant to Chapter 26.310, and approved amendments to
the text of the Service Commercial Industrial Zone District, as described herein, by a
vote; and,
WHEREAS, the Aspen City Council finds that this Ordinance furthers and is
necessary for the promotion of public health, safety, and welfare.
WHEREAS, the amendments to the Land Use Code are delineated as follows:
Text being removed is strikethrough. T°~" '~°~~° - °a '~° ~° °°a°'~°~ °° '''°
E°°: nii~;r-Bevelepn.ent~iester--Iwks '~~'~~ New text being added by
recommendation of the Community Development Director looks like this. New text being
added by recommendation of the Planning and Zoning Commission looks like this (green).
To.,. ,.°:.,,.. .°a ,.. °.,a°.:°., °a .,,° np.~ ......... .:..° .,.:.. Text which is not
highlighted is not affected; and,
NOW, THEREFORE, BE IT ORDAINED BY THE ASPEN CITY COUNCIL as
follows:
3
Section 1: Section 26.710.160 -Service/Commercial/Industrial (SCI) Zone District,
which section regulates development within the Service/Commercial/Industrial Zone
District, shall read as follows:
26.710.160 Service/Commercial/Industrial (SCI).
A. Purpose. The purpose of the Service/Commercial/Industrial (SCI) zone district is
to preserve and enhance locally-serving, primazily non-retail small business areas to
ensure a more balanced permanent community; to protect the few remaining such small
business parks historically used primarily for light industrial uses, manufacturing, repair,
storage and servicing of consumer goods, with limited retail, showroom, or customer
reception areas. The SCI zone district contains uses that may not be appropriate in other
zone districts or do not require or generate high customer traffic volumes, and permits
customary accessory uses.
B. Permitted Uses. The following uses are permitted as of right in the
Service/Commercial/Industrial (SCI) zone district. Each of the permitted uses may have,
in combination, ^~ -~~-° "-°"'C0' ,.r"-~ ~'~~- ~-~~ a limited percent of the floor area, as
noted below, devoted to retail sales, offices, showroom, or customer reception, and such
uses shall be ancillary to the primary commercial use. This floor area percentage may be
increased through Special Review by the Planning and Zoning Commission, pursuant to
Section 26.430.050, and according to the standazds of Section 26.710.160(E)2.
1) SCI Uses which may use up to 100% of the floor azea for retail sales, ^F
showroom, or customer reception include the manufacturing, repair, servicing, detailing,
sales, and rental of consumer goods such as:
a)Building materials, components, hazdwaze, fixtures, interior finishes and
equipment.
b)Household appliances such as ranges, refrigerators, dishwashers, etc.
^ c)Automobiles and motorcycles, Motor-driven cycles, and Motorized
bicycles, including parts.
d)Non-motorized vehicles such as bicycles and river-related recreational
items, for rental or in combination with a service use related to guiding or
touring.
e)Fabric and sewing supply.
2) SCI Uses which may use, in combination, up to 25% of the floor area for accessory
retail sales, ,.F~ showroom, or customer reception including the manufacturing,
repair, alteration, tailoring, and servicing of consumer goods such as, electronic
equipment; floral arrangements; furniture; clothing; or sporting goods:
..~ n..:ia:....n.,..a,.,.,. .... ... .......,...,.,. F ,.:i:...
4
b) Typesetting and printing, including copy center.
c) Photo processing laboratory.
d) Locksmith.
e) Post Office branch.
f) Shipping and receiving services.
n\ A..rn«. nl.an .. nnl.:«n Fnna:}..
h) Catalogue sales store or Internet auction consignment outlet.
i) Laundromat.
j) Commercial dry cleaning.
k) Recycling center.
" -'~°' n'..,,:n (See conditional use section below)
m)D ni,nn nnl .. rnn nl,:«n nr, ..7:n F rl.n n nnti..n n..C ....,.,:«n n «.,n.r: nl n.an ..,:rl. «
e
«..l.l:n «n«Fn««.n«nnn Tl,:n nl,nll « ...,,:r n nn/«:l nren nr,..l:n l...r «.nl,;l.:r AAo.l.:...,.1
n) Veterinary clinic.
o) Animal boarding facility.
p) Animal grooming establishment.
q) Brewery and brewing supply, tasting limited to 16 oz. per person per day (also see
Section 26.104.100 Definitions).
r) Coffee roasting and supply.
s) Commercial Kitchen or Bakery.
t) Tattoo Parlor and/or body piercing.
u) Taxidermist T°~'.~{See conditional use section below)
v) Design Studio, limited to the Andrews-McFarlin Subdivision.
..,\ Rln..nl.n«n:«,. n«.7 nrn«nnn
..\ Cnlnn n«A «n«rn/ n «,l : n:An«rnl rn n «.«:rrnA.
1 lino: n« C}...7:n n..nl. rl, n} rl.n rnrnl «nr inn nnl,ln nn..n«n F non rtn an..nrn.l rn n..nl, ,.no ...:rl,;«
rl.n n«r:..n , .. a:,.._:,,« a,.nn «,., n nn,l n nnn n n r nr
~ un n.'n
~_SCI Uses which may use, in combination, up to 10% of the floor area for accessory
retail sales, showroom, or customer reception:
a) Building/landscape maintenance facility.
b) Automobile washing facility.
c) Warehousing and storage.
d) Recording studio ~ Broadcast media production on Basement or
Upper Floors.
4) Office Uses permitted:
a) Medical Offices, on Upper Floors, pursuant to Section 26.710.160 (D)i 1(b).
5) Permitted Accessory Uses:
a) Service yard accessory to a permitted use.
b) Sales and rental accessory and incidental to a permitted use.
c) Accessory buildings and uses.
d) Home occupations.
e) Offices, accessory to a permitted or conditional use, not to exceed 10% of a
commercial unit.
C. Conditional uses. The following uses aze permitted as conditional uses in the
Service/Commercial/ Industrial (S/C/I) zone district, subject to the ~d
procedures established in Chapter 26.425.050 Procedures for Review, and the standards
established in Section 26.710.160(F).
Under Section 26.710.160(C)1-5, the Commission shall establish the appropriate amount
of floor azea to be devoted to retail sales, office, showroom, or customer reception for
each conditional use during the review, pursuant to the review standards of Section
26.710.160 (F)l.
Under Section 26.710.160(C)6-7, the Commission shall review the site plan to determine
compliance pursuant to the review standards of Section 26.710.160(F)2, and establish
conditions of approval as needed.
1. Consignment retail establishment.
2. Commercial Parking Facility, pursuant to Section 26.515.
3. Gasoline service station.
4. Artist's Studio
5. Taxidermist
6. Affordable Multi-Family Housing on Upper Floors.
7. Free Market Multi-Family Housing on Upper Floors
D. Dimensional requirements. The following dimensional requirements shall apply
to all permitted and conditional uses in the Service/Commercial/ Industrial (S/C/I) zone
district:
1. Minimum lot size (square feet): 3,000
2. Minimum lot area per dwelling unit (squaze feet): No requirement.
3. Minimum lot width (feet): No requirement.
4. Minimum front yard setback (feet): No requirement.
5. Minimum side yard setback (feet): No requirement.
6. Minimum reaz yard setback (feet): No requirement.
7. Minimum Utility/Trash/Recycle area: Pursuant to Section 26.575.060.
6
8. Maximum heiPJtt: 35 feet, ~°t,oni, .., . r,n : nna ". ^n `°°`',,-°..,.~. ° ° °c'i,°
fellew~g eptiei~
..~ n.. naa:.:°..nt c c n, °a.°.nt t.°:,.t„ .,, , t.° .. ,°a ...,r r,. e„o,.;.,t
n°.,:°.., c°n.:°.. ~~ non ncn n.,a °_a:..,..° .r,° n.n..a°..a.. °F c°,..:,,..
~c~tntGnic~ :cn... °r ~c.t nt°,... n..°.,n°,:,.,.ce~r. :ter..
..°
n\ n.. naa:«:....nl G L'°°k ..{~ k..Int t~n:..t~k ... tin n ..a.t ns.! r° C.~°r: nt
A °. ,: °.., c°...:,.., 7G ^2n l1Cl1 n«a °.a:.,,. .° rl.° ...,...a,..a.. ,.F C°..r:....
9. Minimum distance between buildines on the lot (feet): No Requirement.
10. Pedestrian Amenity Space: Pursuant to Section 26.575.030.
11. Floor Area Ratio (FAR): The following FAR schedule applies to uses
cumulatively up to a total maximum FAR of ~ 2.25:1. Achieving the maximum
floor area ratio is subject to compliance with applicable design standards, view plane
requirements, public amenity requirements and other dimensional standards.
Accordingly, the maximum FAR is not an entitlement and is not achievable in all
situations.
a) Commercial Uses: 1.5:1.
b) Medical Offices: 15% of a building; or .25:1 FAR, only if a minimum of
.75:1 FAR of Commercial uses exist on the same parcel.
c) Affordable Multi-Family Housing: .5:1.
d) Free-Market Multi-Family Housing:.25:1, only if a minimum of .75:1
FAR of Commercial Uses exist on the same parcel. Free-Market Multi-
Family Housing:.5:1, only if a minimum of .75:1 FAR of Commercial
Uses exist on the same parcel, and a minimum of .25:1 FAR of Medical
Office Uses exist on the same parcel.
12. Maximum multi-family residential dwelling unit size (square feet): 2,000 sq. ft. of
net livable area.
a. The property owner may increase individual multi-family unit size by
extinguishing Historic Transferable Development Right Certificates
("certificate" or "certificates"), subject to the following:
(1) The transfer ratio is 500 sq. ft. of net livable area for each certificate
that is purchased.
(2) The additional square footage accrued may be applied to multiple
units. However, the maximum individual unit size attainable by
transferring development rights is 2,500 sq. ft. of net livable area (i.e., no
more than 500 additional square feet may be applied per unit).
7
(3) This incentive applies only to individual unit size. Transferring
development rights does not allow an increase in the Floor Area Ratio
(FAR) of the lot.
Commentary: Refer to Chapter 26.535 for the procedures for extinguishing
certificates.
E. Special Review Standards. Whenever the dimensional standards of a proposed
development within the SCI Zone District are subject to Special Review, the development
application shall be processed as a Special Review, pursuant to Section 26.430.050, and
shall be approved, approved with conditions, or denied based on conformance with the
following criteria:
1. To increase the allowable height the applicant shall demonstrate the need for
additional height, the appropriateness of the additional height and massing
considering the context in which the building will be developed, and shall
demonstrate consistency with the purpose of the SCI Zone District. Five (5) feet of
additional height may be approved ° °~'~°° «° °~'"°~ a°°°'°~ ° °F
'~•' ~^n °c °r`' w..°:~°°° °~°°° °~ to increase the usable floor-to-ceiling height of
the ground floor. The height increase shall not be used to accommodate additional
ceiling height for residential uses. Only one five-foot height increase may be
approved, even if both development options are taken.
2. To increase the allowable percentage of interior space assigned to retail, showroom,
or customer reception azea, the applicant shall demonstrate the need and
appropriateness for such additional space and shall demonstrate consistency with the
purpose of the SCI Zone District. The additional approved percentage for a specific
use shall be limited to that use and not applicable to subsequent uses in the same
space.
F. Conditional Review Standards.
Whenever applications subject to Conditional Use Review under Section 26.710.160(C)1-
3, the development application shall be processed as a Conditional Use, pursuant to
Section 26.430.050, and shall be approved, approved with conditions, or denied based on
conformance with the criteria outlined in Section 26.710.160(F)1.
Whenever applications subject to Conditional Use Review under Section 26.710.160(C)4-
5, the application shall be processed as a Conditional Use, pursuant to Section
26.430.050, and shall be approved, approved with conditions, or denied based on
conformance with the criteria outlined in Section 26.710.160(F)2:
L To establish the allowable percentage of interior space assigned to retail,
showroom, or customer reception area, the applicant shall demonstrate the need
and appropriateness for the space and shall demonstrate consistency with the
purpose of the SCI Zone District. The approved percentage for a specific use
shall be limited to that use and not applicable to subsequent uses in the same
space.
8
2. The applicant must demonstrate that the affordable housing and/or free market
housing is substantially removed and physically separated from Commercial Uses
on the same parcel, to the extent practicable, so as to isolate residential uses from
commercial impacts and to adequately provide for on-loading, off-loading,
circulation and parking for commercial uses.
Section 2•
Section 26.104.100 -Definitions, which section defines various terms, shall include as
follows:
Medical or dental offue: An office of practitioners of the medical arts, where the
primary use is the delivery of health care services on an outpatient basis, where sale
of merchandise is incidental to the sale of services, and where no overnight
accommodations are provided.
Section 3•
A public hearing on the Ordinance was held on the 10th day of Mazch, 2008, at 5 p.m. in the
Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which
hearing a public notice of the same was published in a newspaper of general circulation
within the City of Aspen.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law,
by the City Council of the City of Aspen on the 25`h day of February, 2008.
Attest:
Kathryn S. Koch, City Clerk Michael C. Ireland, Chair
FINALLY, adopted, passed and approved this l Os' day of March, 2008.
Approved as to form:
City Attorney
9
Exhibit A
Amendments to Code Text /Staff Findings
Pursuant to Section 26.310.020, the Planning and Zoning Commission must "determine
if application meets standards for amendment to code text ..." Below aze staff findings
with regard to the Standards of Review, pursuant to Section 26.310.040 (A-E).
A. Whether the proposed amendment is in conflict with any applicable portions of this
Title.
Staff Finding: The application meets this criteria.
B. Whether the proposed amendment is consistent with all elements of the Aspen Area
Community Plan.
Staff Finding: the application is consistent with the Aspen Area Community Plan
because the overall intent of the various code text amendments is to optimize the SCI
District as alocal-serving business district.
• "Themes for the 2000 AACP" include, "Encourage a more balanced permanent
community."
• The "Intent" of the Economic Sustainability portion of the AACP suggests that the
City should, "Maintain a healthy, vibrant and diversified year-round economy
that supports the Aspen area community ... "
• The "Philosophy" of the Economic Sustainability portion of the AACP suggests that,
"Our economic and business decisions should ... ensure balance and integration
between `Aspen the Resort' and `Aspen the Community."'
C. Whether the proposed amendment is compatible with surrounding zone districts and
land uses, considering existing land use and neighborhood characteristics.
Staff Finding: The application focuses on the SCI Zone District, which includes several
parcels located north of the downtown area; one is next to a large grocery market and
U.S. Post Office, and the other is adjacent to Rio Grande Pazk and vazious public
buildings.
The SCI parcels are generally located between the core business district and residential
azeas that include lazge numbers of local residents. This is an appropriate location for
service commercial businesses that tend to serve locals, as well as other businesses in
town.
z
One amendment to the code text recognizes the special circumstances of the Andrews-
McFarlin parcel, primarily its long, thin shape and its direct adjacency to the Roaring
Fork River, and strongly encourages Design Studio uses at this site rather than more
impactful SCI uses.
D. The effect of the proposed amendment on traj~c generation and road safety.
Staff Finding: The application does not include code text amendments that will have a
significant impact on traffic generation and road safety.
E. Whether and the extent to which the proposed amendment would result in demands on
public facilities and whether and the extent to which the proposed amendment would
exceed the capacity of such public facilities including, but not limited to, transportation
facilities, sewage facilities, water supply, parks, drainage, schools and emergency
medical facilities.
Staff Finding: The application focuses on achieving a balance of service commercial
uses, local-serving uses and residential uses in the SCI Zone District, and the code text
amendments will have little or no impact on the various public infrastructure systems
listed above.
F Whether and the extent to which the proposed amendment would result in significantly
adverse impacts on the natural environment.
Staff Finding: The application focuses on achieving a balance of service commercial
uses, local-serving uses and residential uses in the SCI Zone District, and the code text
amendments will have -ittle or no impact on the natural environment.
To the extent that the code text amendments encourage Design Studio uses at the
Andrews-McFarlin parcel rather than more impactful SCI uses, this may have a long-
term benefit to the river system.
G. Whether the proposed amendment is consistent and compatible with the community
character in the City.
Staff Finding: The application focuses on maintaining local-serving and service
commercial uses in town, partly in an effort to avoid vehicle-trips in and out of town to
obtain various business services and products and partly to "maintain a more balanced
permanent community," as noted in the 2000 AACP.
With regard to the addition of "Medical Offices" in the SCI Zone District, it has become
apparent that the powerful Aspen real estate market is giving property owners the ability
to replace medical uses with other uses that generate more income, and that attainable
space for medical office uses is scarce. While Medical Office was not included in the
2
original SCI Zone District, the pressures of today's economy was also not anticipated in
1975, when the district was established.
Medical Offices clearly provide a service, with most clientele residing in the local
community. Staff believes that maintaining medical offices in close proximity of the core
business district of any municipality is a basic element of "community character." At the
same time, staff recognizes that Medical Office should be viewed as an "add-on" use
rather than a core, traditional SCI use. Therefore, the code text amendment requires that
.75:1 FAR be devoted to SCI Commercial Uses before .25:1 FAR of Medical Office Uses
are permitted.
H Whether there have been changed conditions affecting the subject parcel or the
surrounding neighborhood which support the proposed amendment.
Staff Finding: Since 1975, when the SCI Zone District was established, the City has
adopted more stringent Stream Mazgin Review regulations in order to protect the riparian
environment. By strong encouraging Design Studio uses at the Andrews-McFarlin parcel,
which is directly adjacent to the Roazing Fork River, the code text amendment is intended
partly to protect that riparian environment.
L Whether the proposed amendment would be in conflict with the public interest and
whether it is in harmony with the purpose and intent of this Title.
Staff Finding: Staff finds the application meets this standard
Exhibit B
The Service~Commercial/Industrial Zone District:
1975 -- Present
The following is intended as a brief history of the City of Aspen's planning
efforts with regard to service commercial and industrial/light industrial uses.
Some of the themes and patterns with regard to the history of this issue may
be helpful as the City considers potential code changes to the
Service/Commercial/Industrial (S/C/I) Zone District.
In 1970, service commercial businesses, building materials supplies and
industrial uses of various kinds were spread out throughout the City -the
future Aspen Airport Business Center was only just being considered for
approval by Pitkin County Commissioners. Gas stations, auto repair,
electrical contractors, TV and appliance stores and building materials stores
were located throughout downtown.
A greater concentration of industrial uses was located north of Main Street,
ranging from auto parts supply, a trucking company, Sport Obermeyer's
manufacturing warehouse, plumbing contractors, motorcycle sales and repair
and a concrete mixing firm - to name a few.
At the time, the City was operating under the 1966 Master Plan, which
essentially supported the expansion of Aspen as resort, encouraging resort
uses in the downtown and the base of the mountain. Industrial uses were to
be located on what is now the eastern half of Rio Grande Park.
The first attempts to set aside specific land areas for service commercial and
industrial/light industrial uses occurred in the early 1970s -the new zone
district encompassed land where the S/C/I Zone District is today. Code
language proposed in 1971 and 1972 allowed uses that would generate
"unusual traffic hazard, noise, dust, fumes, odors, smoke ... "through a
conditional use review. Both times, Council rejected the proposal.
NON-POLLUTING 5/C/I
The subject was revived in 1973 as part of The Aspen Land Use Plan, which
included a series of policy statements -- similar to today's Aspen Area
Community Plan.
1
The service commercial and industrial initiative was not a central aspect of
the 1973 plan, and wasn't mentioned under the "Policy" section. But under
"Land Use Categories," the document addressed the need for light industrial
and service commercial uses while minimizing impacts. "Neighborhood
Commercial and Limited Industrial:... Those areas where limited industrial
use is indicated shall provide for non-polluting light industrial and service
commercial needs of the community." (Emphasis added)
By 1975, the 25-acre AABC was well on its way to being the favored
location for service commercial and industrial/light industrial uses. More
than 30 businesses were already operating there in 1975.
In 1975, City Council approved Ordinance No. 11, establishing a new set of
zone districts, including Service/Commercial/Industrial (SCI) -located in
two small pockets north of Main Street, where they are today. The new
district abided by the "non-polluting" language of The Aspen Land Use
Plan, simply prohibiting any "unusual traffic hazard, noise, dust, fumes ..."
At the same time, the two pockets of S/C/I were relatively small -about two
acres at what is Obermeyer Place today (SCI East), and about 1 acre at
Puppy Smith and N. Mill (SCI West). In large part, the list of permitted uses
for the City's new S/C/I district reflected the uses that were there at the time.
fable l: ESTabllsnmE ine Jerv~cei ~,ummerciauu^uusu ^a^ c.v^^c L^o ^, .a.^
Permitted Uses
• Vehicle sales
• Equipment rental, storage + repair
Service/ Gas service station
CommerciaU _ • Car wash
:Industrial • Plumbing shop
Zone District: • Electrical shop
1975 ' Building supply
• Dry cleaning plant
• Laundry
• air ofbuilding materials
Fabrication re
p
• Lumber yard
• Manufacture/repair of sporting goods
• Printing and publishing plants
• Warehouse/storage
• Shop craft industry
2
CHANGES TO THE ORIGINAL S/C/I
It didn't take long to expand the underlying concept of service commercial
and light industrial uses - by 1980, Council had added "Artist's studio with
accessory dwelling unit" as a permitted use, along with commercial bakery -
and added martial arts as a conditional use, along with photography studio.
They also made it harder to open a gas station, switching such a use from
permitted to conditional.
The 1980s marked the beginning of an influx of architects, after local
architect Harry Teague convinced the City Council that he qualified as an
artist who produced artistic models etc. Thus the added definition of "artists
studio" ultimately resulted in architectural offices.
In 1988, the City Council responded to the digital age by adding computer
product sales and service as a permitted use in SCI. Although about 10 such
businesses were operating in the downtown area at that time, it would be
almost 20 years before computer-related firms located in S/C/I, at the newly
constructed Obermeyer Place.
Also in 1988, Council added the manufacture and repair of electronic
equipment, and telecommunications supply, effectively acknowledging that
several such businesses had located there in the 1980s.
In 1993, the first Aspen Area Community Plan had plenty to say on the
subject of locally-owned and local-serving uses -but the emphasis was on
local shopping opportunities and affordable office space. At that time, it
appeared the SCI Zone District was a secondary concern. The only specific
mention of SCI came in one of the 1993 AACP Action Items, which called
for a revision of the NC and SCI districts to "ensure only locally-serving
uses."
This Action Item was not implemented, probably because no working
definition of "local-serving" was established. But by the end of the decade,
the community's focus turned again to the SCI Zone District, and a major
overhaul of SCI uses was approved by Council in July 2000.
3
THE 2000 CODE AMENDMENTS
One underlying change in 2000 reflected a pattern for the S/C/I district: An
ongoing tug of war over retail uses in the district. In the 1980s + `90s, a
number of businesses were selling merchandise ranging from TVs to
bicycles and telephones -even hot tubs.
In July 2000, Council prohibited most SCI businesses from using more than
25% of their floor area for "retail sales, office, showroom or customer
reception." Council also eliminated "computer product sales" and
"telecommunications supply" as permitted uses, and made "the sale of
electronic equipment" a conditional use.
At the same time, Council expanded the list of permitted uses and
conditional uses. In some cases, the expanded list acknowledged uses that
had already moved in, such as furniture repair and animal grooming. By
allowing "Design Studio" as a permitted use, Council acknowledged the
influx of about five architectural firms architects during the past decade.
In other cases -such as coffee roasting, breweries, fabric supply and
motorcycle parts -Council sought to accommodate new uses that never
quite materialized. However, a brewery may be applying to move into S/C/I
space in the near future.
Perhaps acknowledging the difficulty of establishing a list of specific uses
that were both appropriate to the district and anticipated changes in the
marketplace, the Council approved a new measure of flexibility for SCI: The
Community Development Director was given the authority for the first time
to permit uses that were "considered appropriate."
Tahle TT_ New SCT TJses. Circa Julv 2000
New Permitted Use New Conditional Use
Sale of motorcycle parts Appliance sales
Fabric and sewing supply Furniture sales
Locksmith Clothing sales
Animal grooming Sporting goods
Building maintenance facility Coffee roasting and supply
Manufacture, repair of furniture Brewery and brewing supply
Manufacture, repair of clothing Tattoo parlor
Design Studio Animal boarding
Consignment sales
4
Council also decided in 2000 that some SCI uses should be able to use 100%
of their floor area for sales, office and showroom, such as building materials
and equipment, the sale of auto and motorcycle parts, fabric and sewing
supply and consignment stores.
Council also showed where its preferences lay by shi$ing some permitted
uses to conditional uses, and some conditional uses to permitted uses.
Table III: Reassigning SCI Uses, Circa July 2000
Was Conditional Use;
Now a Permitted Use Was Permitted Use;
Now Conditional Use
Dance Studio Vehicle sales
Martial Arts Studio Car wash
(No public performance) Commercial dry cleaning
Appliance rental
Sale of electronic equipment
(Previously termed
`telecommunications supply;
com uter roductsales')
The overhaul of the SCI Zone District in July 2000 was largely aself-
contained effort - it was not driven by the adoption of the 2000 AACP in
February of that year.
The 2000 AACP Action Plan carried over several items from the 1993
version, including the revision of the NC and SCI zones to ensure only
locally-serving uses, and to zone "undeveloped commercially zoned land"
for NC and SCI uses.
Although neither of these initiatives were carried forward in a significant
manner, the 2000 AACP called for an Economic Sustainability Committee,
which issued its report in 2002. Action Items relevant to the S/C/I district
were:
• Retain and expand through infill S/C/I facilities wherever possible to
help counter downvalley economic leakage, and provide needed
goods and services to Aspen residents and visitors.
5
OBERMEYER PLACE
Regarding the future of SCI in Aspen, perhaps the most significant long
range planning document came a year later, when the Civic Master Plan:
Phase One Report was released in May 2001. The report acknowledged that
"limited lease rates expected for SCI space" made "significant
redevelopment by the private sector unlikely," and suggested exploring
"redevelopment potential under various partnership arrangements between
adjacent landowners and the City of Aspen."
When Klaus Obermeyer became aware of this suggestion, he entered into a
public-private partnership with the City that has since become Obermeyer
Place - a project that revitalized about 38,000 square feet of SCI space.
As Obermeyer Place was constructed, the City Council adopted another
examination of uses in the SCI Zone District, largely focused on shifting a
dozen different uses from conditional to permitted -and adding four new
permitted uses. At the same time, Council limited the continuing expansion
of architectural and related uses by establishing a cap of 9,000 square feet on
Design Studios for the SCI Zone District.
Table IV: Reassigning + Adding SCI Uses, Circa March 2005
Was A Conditional Use;
Now A Permitted Use New Permitted Use
Appliance sales and rental Florist
Auto and motorcycle sales Landscape maintenance facility
Photo processing lab Copy center
Car wash Shipping and receiving services
Catalogue sales store
Laundromat
Commercial dry cleaning
Veterinary clinic
Animal boarding facility
Brewery and brewing supply
Coffee roastin and su 1
Again, the code changes included some uses that didn't exist there at the
time, and others that acknowledged existing uses. For example, there had
been no auto or motorcycle sales in the S/C/I district for more than 20 years.
On the other hand, a moped sales + rental store is planning to locate soon at
Obermeyer Place.
So far, no coffee supply, veterinarians or car washes are locating in the
district -while "florist" and "landscape maintenance facility" acknowledged
existing businesses. (The florist has since relocated to the AABC.)
In December 2006, City Council approved the Civic Master Plan as a
regulatory document -meaning future land use applications must show
"consistency" with the recommendations in the plan. The Civic Master Plan
identified "SCI East" (Puppy Smith/N. Mill) as a site where future
redevelopment should be modeled on the Obermeyer Place redevelopment.
S/C/I THEMES
A number of themes have emerged over the years with regard to the S/C/I/
Zone District. First, the zone district was established in 1975 on two
relatively small parcels of land -and at the same time, uses that produced
noise, dust and fumes etc. were prohibited. It is arguable whether these
initial limitations could ever truly accommodate industrial or light industrial
uses to any significant degree.
Unlike every commercial district (with the exception of Neighborhood
Commercial), the S/C/I district was established with a specific list of
permitted uses, such as plumbing shop, or lumber yard. This was a
fundamentally different approach compared to the Commercial Core, C-1, or
Office (now Mixed Use) districts -where definitions of use are far more
general, such as "retail," restaurant," or "office."
This specific list of permitted uses appears to have resulted in a push-pull
relationship between the City and the marketplace. Over the years, the City
has tried to encourage certain types of businesses by adding uses, mostly
without success -but sometimes hitting the mark. At the same time, the City
has often added permitted or conditional uses after they appeared in a district
that was not always closely watched, and not consistently reviewed or
audited.
7
A review of uses in the S/C/I Zone District since 1970 show a clear trend
away from industrial/light industrial uses, and toward more office-type uses,
specifically in the area of architecture. The door was first inched open by
adding "Artist's Studio," and then burst open when architecture was
interpreted to fall under that use. And of course there have always been
somewhat quirky businesses, ranging from Your Pizza Run in the 1980s to
an air-brushing tan salon today.
At the same time, there has been a recent upswing in the number of firms
that provide building materials related to interior decorating, such as tile,
draperies, lighting and even architectural salvage.
Perhaps the only certainty in the SCI Zone District is that the uses permitted
there are not those the free market would choose. As a result, the free market
is continuously placing pressure on this limited zone district to expand to a
wider variety of uses, and/or to allow new uses based on new interpretations
of the existing permitted and conditional uses.
8
~~
COMMERCIAL USE TRENDS IN THE
SERVICE/COMMERCIAL/INDUSTRIAL
ZONE DISTRICT: 1970-2008
The S/C/l "Lone District was established by Ordinance No. 1 I, Series of 1975. There are two distinct areas of S/C/[-zoned land:
SCI EAST: Comprising the existing Obernteyer Place development, approx. 2 acres.
SCI WEST: Located along Puppy Smith and N. Mill Street, approx. ].5 acres.
The following tables list individual commercial uses from 1970 to ?007 at both 5Cl EAST and SC[ WEST, breaking uses down into
general categories. Information from 1970 - 1988 was compiled using telephone directories: information from ?000 was taken from staff work by the
Community Development Department at that time; and current information was compiled using a walking inventory.
SCI EAST
C
1970 1975 1988 2000 ! Present
Aspen Heating + Sheet Metal Mike's I~orei~~n Car Service Auto Tech Au[o Tec Murphy Wood Shop
ABC (fearing + Sheet Metal Intermountain Enterprises Finishing Touch Auto Body Aspen Excavation Aspen Glass
Bishop Garage (lu,aber, rvoodtiork, opplianre) RK Mechanical The Welding Company Al's Window Cleaning
Rainbow Plumbing + Heating Aspen Motor Sports Glass Company Power Shade Aspen Painting
Aspen Construction Corp. (Mnmrcrcle Sales & Repair) All Weathrr Roofing Aspen Tile + Glass Aspen Moped
Hays Custom Cabinets Aspen Painting Aspen Painting Aspen Painting (SaleslrenlalLcen•ice)
Porto Mix Concrete Sport Obermeyer Summers Woodworking
Bealmear Stanford Construction (Manufarrure, wholesale) Red Eagle Construction A.cpen ('ucam Wnodxv,rkueg
~oper Electric Integrity Plumbing + Heating Aspen Tile
Aspen Ski Doo Arlicun b'rumer
Sport Obermeyer
MASSCO Valley Carpets and Alternative ]nteriors Alternative Interiors
(carper, building nwinrenance) Home Decorating Mountain Pain[ and Ca t
~
Mittel Europa
Aspen Rent-Al] (Furniture Repair/Sales)
Pitkin County Development
Corp. (warehouse/merchandise)
Aspen TV and Sound (Repair) Rainshadow Studios (Sot-rv) Decypher Technologies
Kelly Duff Electronics Paragon Technology i
(Comptrrer sen~ices)
Aspen Typesetting Brooks Printing
T-Man Silkscreening O'Brien Graphics
Shapiro Framing Hayles Gallery Picture Framing
.~.
Sleeker S[. Gym
Sleeker St. Gym
Rocky Mountain Karate Ski Service Center
Ski/Bike/Board Service Center
Tom Evans Jewelry (Artist)
Pitkin Title Co •
Ted Guy (Architect)
Coates, Reid+Waldron
Regan Mgmt Services
JR McCarthy (Archuecr) H&R Block Michael Sailor lns.
Netter and Associates (Archuecr) Ne[zer+Assoc. Studio B (Archuecr)
Dolby Wendland (CPA/ Schmueser Gordon Meyer Schmueser GordonMeyer
Goldberg + Goldberg Goldberg + Goldberg
Obermeyer Asset Mgmt
Red Canyon Auto Body
(Q(/icc~ rnrh0
Best Friends Pet Groomers Best Friends Pet Groomers Barking Beauties
Aspen Branch (Floral) A La Car
Hotel Jerome Storage (Restaurant delivert~ sendce)
SCI WEST
1970 197 1988 2000 Present
_ittle Percent Garage Aspen Engine Service Car Trek Foreign Car Service Reclaim: Architectural Salvage
(Arno dealer/repnir/ra.n / Aspen Auto Machine Emergency Auto Service and Millworks
]. Mark Construction Aspen Tire Shop Gary Baum, A Cabinet Maker Downtown Detail:
Alpine Triumph Hill Busters Yamaha John C. Gordon Woodworking Precision Auto Detailing
(Motorcycle sales/service)
Snow King of Aspen
Aspen Color Lab (Snow renrova!)
(Photographic studio)
Rio Grande Motorway (Trucking)
Arden of Aspen Aspen Floor Covering The Lighting Studio Aspen Tile + Bath
fArrtique furniture repair) Fortier Masonry and Tile Aspen Tile + Bath Walter's Carpets
Aspen Tile + Bath Gallery ABJ's Discount Tile
Ajax Upholstery and Design Aspen Blinds + Drapes
Castle Creek Pools and Spas Specialty Products: Flooring and
Shades of Light Building Materials
Aspen Repair: Vacuums + Lighting
The Lighting Studio
Aspen Repair ~ •
Aspen Repair
Aspen Repair
Center Electronics Henry's Electronics Wright Telephone Systems
Aspen Telephone Company
Wright Telephone Systems
Aspen Telecommunications
Living Ans Foundation Living Ans Foundation Living Arts Foundation Living Arts Foundation
The Aspen "times The Aspen Times The Aspen Times
Aspen Photography Studio
f
Sunshine Laundry Ajax Design
Sunshine Laundry
Bean + Clean
Aspen Velo Aspen Velo Aspen Velo
K Sport [ntetnational The Art of Fitness The Art of Fitness
(Manufacture, wlmlesnle) Nordique Tim Reed Physical Therapy
(Manufacturing suntan lotion) Club Phuenix Aspen:
Kung Fu + Tai Chi
Aspen Glow Tan
(Air-bnrslred tanning)
Harry Teague Architects Harry Teague Architects River Studio Architects
Michael Gassman (Arrhifect) Reid Architects Dunnett Design
Willis Pember Architects Stan Clauson Assoc.
Studio B Architects Willis Pember Arch.
River Studio Architects AI Beyer Design
Don Erdman (Architect) Reid Architects
Wells/Raymond (Architect) John Beatty Esq.
A] Beyer (Architectj Lorraine Ohanesian
Aspen Foundation (Admin. Services)
•
Use ]t Again
Replay Spons
Rare Exchange
Matterhorn Bakery Back Door Catering
Back Dnor Catering
Four Seasons Four Seasons
Head Imports Your Pizza Run (Deliver}•) Sushi Ya Go Go (Deln~ery) ALP Video
ALP Video ALP Video Aspen Costumes +
Tuxedo Rental
vi~~ a
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
FROM: Chris Bendon, Community Development Director
RE: Lift One Neighborhood Master Plan
Determination of COWOP Review Eligibility -Public Hearing
Resolution No.l~, Series of 2008
DATE: February 25, 2008
SUMMARY:
Aspen Land Fund II (Centurion Partners), Roaring Fork
Mountain Lodge -Aspen, and the Aspen Skiing Company
have submitted a request to be determined eligible for the
City's Convenience and Welfare of the Public (COWOP)
review process in conjunction with the City of Aspen. The
intent is to develop a Master Plan for the Lift One
Neighborhood that encompasses property held by these
three parties as well as City land in the neighborhood.
Various redevelopment proposals in this neighborhood have
been reviewed by the City in the recent past. These reviews
have not enabled the sort of broad community discussion
about the future vision of this area that a master planning
process can provide. Staff supports a master planning
process as it can provide a more flexible, coordinated, and
participatory process for determining an appropriate
development plan, including the realignment of property
boundaries, rights-of--way, and ski lift infrastructure as
needed.
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Staff is recommending this master planning effort be
determined eligible for the City's Convenience and
Welfare of the Public (COWOP) review process. Staff
recommends adoption of the proposed Resolution.
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119
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WHY A MASTER PLAN? I--I q,,.,~„~„
A Master Plan for this neighborhood could result in ~-~ mum!
enhanced access to lift-served skiing on Aspen Mountain, ;,SS_°-° _ " ~;
lodging facilities that meet the needs of the community,
affordable housing units that serve taccessdthe developmentltof lpublic parkinguthe
pedestrian and emergency vehicle ,
1
preservation of important local and national historic resources, the development of a
ground source energy system, recreational facilities, a museum focused on the
evolution of skiing in Aspen, and a unified approach to managing construction
impacts and ongoing maintenance and operations of the area's infrastructure.
In pazticulaz, preserving and enhancing short-term lodging facilities, providing
adequate emergency services and access, the provision of effective access to lifr-
served skiing, housing the workforce, and energy efficiency aze stated community
goals that could be addressed through master planning of this azea.
The City's involvement as a party is important because portions of the subject azea are
owned by the City of Aspen -namely Willoughby Park and Lift One Pazk and the
area's public rights-of--way are managed by the City of Aspen.
Lastly, the bifurcated ownership of the subject azea and independent projects in
various stages of entitlement could result in an ad-hoc development pattern while a
master planning process using an interactive and multidisciplinary approach with a
diverse COWOP task team, including neighbors of the project and persons with
special interest in the property and its development could lend itself to the type of
open dialogue needed to determine a cohesive future vision for the neighborhood.
NOTES ON MASTER PLANNING:
Aspen Important to the Master Planning process is to not start with asolution -the
process should start with broad community goals, then move to constraints that can be
overcome or that cannot be overcome, and then move to possible solutions. Although
it is human nature to start with potential solutions and many have already been
discussed, staff suggests that a process that starts with a plan is doomed from the
beginning.
The Task Force Team is proposed to encompass a range of perspectives without any
one perspective being overly represented. This balance is important to the credibility
of the Task Force and their recommendation. The three private land owners aze each
represented with one vote each, staff has suggested 5 immediate neighbors
representing south, west, north sides of the site and two from the east side of the site.
The City is represented on the Task Force as well as ACRA and 4 citizens at lazge.
Like all COWOP reviews, the chair is the Community Development Director who is a
non-voting member. (Please refer to Exhibit C.)
Also important to the success of a master planning process is guidance provided by
City Council. Exhibit E depicts a rough outline of the process and this includes
multiple check-ins with the P&Z, the HPC, and City Council. As the master plan
progresses, there will be critical points when guidance from the P&Z and HPC and
the City Council will be sought before the plan moves to the next step. As in the past,
some of these critical points may be treated as public hearings with consideration of a
resolution by City Council.
THE PROPERTIES:
2
The subject lands aze all those adjacent to South Aspen Street south of Dean Street,
including the rights-of--way themselves. Exhibit A includes several maps that depict
the area of this master plan. The proposed resolution includes the legal descriptions
of these lands.
COST SHARING:
The proposed Resolution references an agreement to share costs of the master
planning. Staff and the parties have discussed an appropriate cost sharing strategy for
the planning phase of this project - 25% share for each of the four parties. This
includes each party paying for independent professional services (planners, azchitect,
finance, legal) and sharing the costs of expenses necessary for the COWOP process
(land survey, site model, geotechnical analysis, traffic analysis). The larger
partnership discussion concerning capital expenses of implementing a plan will be a
prime topic of discussion during the master plan and does not need to be determined
at this point.
The cost sharing agreement will need to be authorized by City Council and staff will
proposed a supplemental budget to cover the costs of this effort. Staff estimates the
costs to the City to be approximately $35,000, plus about $10,000 for apart-time
project assistant.
OTHER PROJECTS ON "HOLD:"
The proposed Resolution provides a section addressing the "townhomes" project on
the Centurion parcel. This is an entitled project that is currently being reviewed for
building permits. If adopted, the resolution would allow Centurion Partners to request
the City's Building Department to stop their review without the associated penalties
of the building code (namely that the permit would need to be resubmitted and
previous review fees would not be returned). Staff supports this as it allows for a
discussion of the future of the neighborhood without the immediate pressure of
construction occurring this Spring.
The proposed Resolution also includes a section regarding the Lift One Lodge land
use application. This is a project that is currently being reviewed by the City and is
set to go to City Council. If adopted, the resolution would also allow this project to
temporarily be shelved without penalty. Staff supports this request as is again allows
for a reasoned discussion of a vision for this neighborhood without the immediate
pressure of a pending land use application.
Related to the Lift One Lodge application are lodge redevelopment credits of the
Holland House. A section of the proposed Resolution allows these credits to be
extended beyond the one-year limitation and another section allows the temporary use
of the Holland House as affordable housing without being considered achange-in-
use. Both of these aze supported by staff as the premature expiration of the
redevelopment rights from the Holland House would probably expedite the need of
the landowner to redevelop and possibly cut short this master planning effort.
3
IF THE MASTER PLAN IS FOUND ELIGIBLE FOR COWOP REVIEW.
If the master planning effort is determined eligible, the next step would include
convening the COWOP task force team for a series of meetings to actually create the
development program and plan. Staff would advertise in the newspapers for Citizen
volunteers and if more than the proposed four applied would ask City Council to
make the selection. The task force team's work culminates in a formal
recommendation to Council and a development analysis prepazed by the Community
Development Staff. All meetings of the task force aze open to the public.
Final action on the development proposal would be undertaken by the City Council by
ordinance. Legal notice, mailing to neighbors and posting is required. It is
anticipated that the process would take eight months (see attached timeline -Exhibit
E). The recommended process, task team membership, and proposed timeframe are
included in the proposed resolution.
IF THE MASTER PLAN IS NOT FOUND ELIGIBLE FOR COWOP REVIEW.
If the project is determined not to be eligible for COWOP, then the Lift One Lodge
project would continue through the standazd review process and be presented to City
Council at the appropriate time. The "Townhomes" project would continue to be
reviewed by the Building Department and upon issuance of a building permit could be
developed by Centurion Partners.
APPLICANTS:
1. Aspen Land Fund II, LLC (Centurion Partners). Represented by John Sarpa.
2. Roaring Fork Mountain Lodge -Aspen, LLC. Represented by Robert Daniel.
3. Aspen Skiing Company. Represented by David Bellack
4. The City of Aspen.
REVIEW PROCEDURE:
COWOP Determination of Eligibility. At a noticed public hearing, the City Council
shall by resolution:
(a) make a determination whether the proposed development is reasonably necessary
for the convenience and welfare of the public by applying the standards of
Section 26.500.040 [see Exhibit B];
(b) establish a procedure for review of the proposed project to include standazds of
review;
(c) establish a Task Force Team to review the development proposal and identify
members of City boazds, commissions, and other interested parties, (including at
least two (2) members of the public at lazge) to be included as members of the
Task Force Team, which shall include representation by the Planning and Zoning
Commission; and,
(d) establish a timeframe for the procedures to be used to review the proposed
development.
If the proposed project proposes development subject to Chapter 26.415
(Development in an "H", Historic Overlay District, or Involving the Inventory of
Historic Sites and Structures), or Chapter 26.420 (Historic Overlay District and
Historic Landmarks), the City Council shall include in the review procedures the
requirement for an application for review of the eligible project to the Historic
Preservation Commission in accordance with the applicable sections of the Land Use
Code. The City Council may, in appropriate circumstances, include as part of the
review process it adopts a separate referral to the Planning and Zoning Commission,
or any other City board and commission for their separate review and
recommendation. Should the City Council determine that the proposed development
is not reasonably necessary for the convenience and welfare of the public, the
application shall be reviewed in accordance with the applicable sections of this Land
Use Code. The City Council may amend the resolution at any time upon the request
of the applicant, the Community Development Director, or upon its own motion.
RECOMMENDATION:
Staff recommends City Council determine the Lift One Neighborhood Master
Planning effort eligible for the City's COWOP process.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION:
"I move to approve Resolution No. ~, Series of 2008, initiating the Lift One
Neighborhood Master Plan COWOP review process."
ATTACHMENTS:
Proposed Resolution No. ~ ~, Series of 2008
Exhibit A -Maps of Master Planning Area
Exhibit B - COWOP Eligibility Review Criteria and Staff Comments
Exhibit C -Proposed Task Force Team
Exhibit D -Proposed Resources
Exhibit E -Proposed Process Outline
5
RESOLUTION N0. 13
(SERIES OF 2008)
A RESOLUTION OF THE ASPEN CITY COUNCIL DETERMINING THE "LIFT
ONE NEIGHBORHOOD MASTER PLAN" ELIGIBLE AS A PROJECT
REASONABLY NECESSARY FOR THE CONVENIENCE AND WELFARE OF
THE PUBLIC (COWOP) ON PROPERTY LOCATED ON BOTH SIDES OF
SOUTH ASPEN STREET SOUTH OF DEAN STREET OWNED BY THE CITY
OF ASPEN, THE ASPEN SKIING COMPANY, ASPEN LAND FUND II (AKA
CENTURION PARTNERS), AND ROARING FORK MOUNTAIN LODGE -
ASPEN ALL WITHIN THE CITY OF ASPEN, PITKIN COUNTY, COLORADO.
WHEREAS, the Community Development Department received a completed
application from Aspen Land Fund II, also known as Centurion Partners, LLC; Roaring
Fork Mountain Lodge -Aspen; the Aspen Skiing Company; and, the Aspen City
Manager, for a determination of eligibility for a project, known as the Lift One
Neighborhood Master Plan, reasonably necessary for the convenience and welfare of the
public (COWOP) for a redevelopment of lands, owned by the above mentioned parties,
for the purpose of providing or improving the provision of lift-served skiing access to
Aspen Mountain, pedestrian, vehicular and emergency vehicle access to properties along
South Aspen Street, non-traditional energy sources such as ground source energy system,
recreational facilities, a museum focused on the evolution of skiing in Aspen, public
parking, and commercial, lodging, free-market residential, and affordable residential land
uses; and,
WHEREAS, the City of Aspen manages public right-of--way in the planning area
including Hill Street, Summit Street, Gilbert Street, the alley within Block 10 of the
Eames Addition, South Aspen Street, Juan Street, and Dean Street and owns certain
public land known locally as Willoughby Park and Lift One Park; and,
WHEREAS, the legal descriptions of the lands subject to this review are attached
as Exhibit A and are generally described as lands on both sides of South Aspen Street
south of Dean Street, excluding the Shadow Mountain Townhomes; and,
WHEREAS, changing the disposition of certain city-owned lands within the
project azea may require a public vote; and,
WHEREAS, pursuant to Section 26.500.050 of the Land Use Code, the City
Council may make a determination whether a proposed development is reasonably
necessary for the convenience and welfaze of the public by applying the standards of
Section 26.500.040 during a duly noticed public heazing after taking and considering
comments from the general public, and a recommendation from the Community
Development Director; and,
WHEREAS, the Community Development Director determined that the Lift One
Aspen City Council Resolution No. _, Series of 2008
COWOP Eligibility for Lift One Neighborhood Master Plan -Page 1
Neighborhood Master Plan may be eligible for consideration as a project reasonably
necessary for the convenience or welfare of the public, and notified in writing the
Planning and Zoning Commission, the Historic Preservation Commission, and the
Aspen/Pitkin County Housing Authority the date of the public hearing before the City
Council at which time a determination is to be made concerning eligibility of the
proposed development; and,
WHEREAS, the Aspen City Council has reviewed and considered the Lift One
Neighborhood Master Plan eligibility proposal under the applicable provisions of the
Municipal Code as identified herein, has reviewed and considered the recommendation of
the Community Development Director, and has taken and considered public comment at
a public hearing; and,
WHEREAS, the City Council finds that the development proposal meets or
exceeds the Standards for Determination, Section 26.500.040, for the following reasons:
1. The Master Plan could provide enhanced access to lift-served skiing on Aspen
Mountain, lodging facilities that meet the needs of the of the community,
affordable housing units that serve the needs of the community, improved
vehicular, pedestrian and emergency vehicle access, the development of public
parking, the preservation of important local and national historic resources, the
development of non-traditional energy sources such as ground source energy
system, recreational facilities, a museum Focused on the evolution of skiing in
Aspen, and a unified approach to managing construction impacts and ongoing
maintenance and operations of the area's infrastructure.
2. Preserving and enhancing short-term lodging facilities, providing adequate
emergency services and access, the provision of effective access to lift-served
skiing, housing the workforce, and energy efficiency are stated community goals
that could be addressed through master planning of this area.
3. Portions of the subject area are owned by the City of Aspen and a Master Plan
could permit an advantageous disposition of those properties;
4. Portions of the subject area are managed by the City of Aspen as rights-of--way
and a Master Plan could permit an advantageous disposition of those properties;
5. The bifurcated ownership of the subject area and independent projects in vazious
stages of entitlement may result in an ad-hoc development pattern while a master
planning process using an interactive and multidisciplinary approach with a
diverse COWOP task team, including neighbors of the project and persons with
special interest in the property and its development will lend itself to the type of
open dialogue needed to determine a cohesive future vision For the neighborhood;
and,
WHEREAS, the City Council finds that this Resolution furthers and is necessary
for the promotion of public health, safety, and welfare.
Aspen City Council Resolution No. _, Series of 2008
COWOP Eligibility for Lift One Neighborhood Master Plan -Page 2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO THAT:
Section 1 - Elieibility
Pursuant to Section 26.500.040 of the Land Use Code, the Lift One Neighborhood Master
Plan, as described herein, is determined to be eligible development necessary for the
Convenience and Welfare of the Public.
Section 2 -Procedure and Standards
Pursuant to Section 26.500.050(B)(b), the procedure and standards for review of the
project shall be:
Process:
1. Task Force Team convenes and establishes its role, meeting schedule, meeting
procedural protocol and meeting rules for the conduct of business of the Lift One
Neighborhood Master Plan COWOP Task Force Team.
2. Task Force Team Chair and Staff shall be the City's Director of Community
Development who may designate a meeting facilitator or other personnel or
contractors as needed.
3. Property owners shall represent themselves or designate a representative.
4. Task Force Team shall develop the Master Plan (quantitative elements and broad
urban design elements, including the contextual relationship of the project to
surrounding properties).
5. Community Development and Interdepartmental Technical Staff Review.
6. Task Force Team and Staff provide recommendations to City Council.
7. Formal final approval decision shall be the responsibility of City Council and shall
require adoption of an Ordinance. City Council may, by resolution, determine the
project no longer qualifies for the COWOP process, at any time, and discontinue the
COWOP Task Force Team.
Standards:
1. Section 26.445.050, Review Standards: Planned Unit Development.
2. Section 26.310, Amendments to the Land Use Code and Official Zone District Map.
3. Section 26.415, Development Involving Historic Resources. Any development
affecting a historic resource shall be required to comply with this section, beyond any
decision reached in the COWOP review.
4. Section 26.470, Growth Management, to the extent determined necessary during
project review. It is expected that commercial, lodging, affordable housing, and free-
market housing allotments will not require an additional review beyond the COWOP
review.
5. Section 26.480, Subdivision, if determined to be necessary during project
development and review.
6. Technical design standards of utility providers shall be considered and the COWOP
decision shall not supercede any non-city utility provider.
7. The Aspen Area Community Plan shall be considered a policy guide and the final
recommendation shall include an analysis of conformance with this adopted plan.
Aspen City Council Resolution No. ,Series of 2008
COWOP Eligibility for Lift One Neighborhood Master Plan -Page 3
Section 3 - COWOP Task Force Team Members
Pursuant to Section 26.500.050(B)(c), the Task Force Team to review the development
proposal shall include representatives from the following:
• Task Force Team Chair -Chris Bendon, Community Development Director
• Planning Staff - as assigned by the Community Development Director
• City Council Members (2)-to be determined
• Planning and Zoning Commission member - to be determined
• Historic Preservation Commission member - to be determined
• City of Aspen Parks Department staff member - to be determined
• Aspen/Pitkin County Housing Authority staff or Board member - to be
determined
• Centurion Partners, LLC -John Sarpa
• Roaring Fork Mountain Lodge -Aspen, LLC -Bob Daniel
• Aspen Skiing Company -Dave Bellack
• Neighbor to the South - to be determined
• Neighbor to the North - to be determined
• Neighbor to the West - to be determined
• Neighbors to the East (2) - to be determined
• Aspen Historic Society -Georgia Hansen
• Aspen Valley Ski Club -Jeff Kai
• Aspen Chamber Resort Association /Stay Aspen Snowmass -Bill Tomcich
• Citizens at-large (4) - to be determined
It is acknowledged through this resolution that it will be beneficial for many interested
parties beyond those identified in the above noted list to be involved in the COWOP
process and that the opportunity for involvement is created through this process.
Additional interested parties will be able to attend all meeting of the COWOP Task Force
Team and may be provided with email notice of meeting schedules at their request. All
meetings of the Task Force Team will be conducted in public hearings.
It is also acknowledged through this resolution that numerous City Departments, other
governmental or district agencies and consultants will provide technical assistance and
analysis as determined to be necessary and/or as required.
Section 4 -Proposed Timeframe
Pursuant to Section 26.500.050(B)(d), the proposed timeframe for the procedures to be
used to review the proposed development are anticipated to be completed within
approximately eight (8) months from the date of this resolution. The following schedule
Aspen City Council Resolution No. _, Series of 2008
COWOP Eligibility for Lifr One Neighborhood Master Plan -Page 4
is an estimated timeline and is subject to change:
March Finalize COWOP Task Force Membership
April-May Task Force Meetings. Introductions, site visit, process overview, project
overview, goals and objectives. Check-ins as needed with HPC and P&Z.
Check-in or heazing with Council to review goals.
May -June Task Force Meetings. Identification of physical, regulatory and economic
constraints with input from technical advisors on nature of constraints. A
third party briefing of financial assumptions and assertions will be needed.
Identification of constraints that can be overcome and constraints that
must be observed. Check-ins as needed with HPC and P&Z. Check-in or
hearing with Council to review constraints.
June -Aug. Multiple Task Force Meetings to consider balance of goals and
constraints, project program, and potential site plans (uses, access,
intensities, and massing). Design charrettes (longer sessions) may be
used. Check-ins as needed with HPC and P&Z. A third party analysis of
financial assumption and assertions will be needed. Hearing(s) with
Council to review balance of goals and constraints and preferred site plan
and program.
Aug. -Sept. Multiple Task Force Meetings to consider conceptual architecture and
more-refined site planning issues. Review proposed development
agreement and construction management plan. Check-ins as needed with
HPC, P&Z, and City Council.
September Finalize Task Force recommendation.
Sept. -Oct. Public Hearings for Master Plan adoption with HPC, P&Z, and City
Council.
At a minimum, the Master Plan adopted pursuant to this process shall include:
1. A description and depiction of allowable development on each property, including
allowable height, area, bulk, density, uses, operating characteristics, and unit
ownership structure.
2. A description and depiction of conceptual architecture, character, materials, and
fenestration. The Master Plan should describe the specificity upon which
conceptual architecture may be amended and the process of amendment.
3. A description and depiction of the rights-of--way to be vacated, upgraded, or
otherwise affected including encroachments therein.
4. A description of the amount and method(s) of affordable housing and other
Aspen City Council Resolution No. _, Series of 2008
COWOP Eligibility for Lift One Neighborhood Master Plan -Page 5
development impact mitigation requirements that must be provided.
5. A description and allocation of responsibility for the development and
maintenance of neighborhood and shared infrastructure and community benefits
(e.g., the Town Lifr and new ski terrain, road improvements, and public parking).
6. A description of the timing, phasing, and management of construction activity.
As necessary, the construction management plan shall contemplate the individual
property owners proceeding separately, provided that such development is
consistent with the Master Plan and that the shared obligations and construction
management requirements are satisfied.
The Community Development Director shall present the findings and recommendations
of the Task Force to City Council during a public hearing and shall provide an analysis
for the proposal and the standards of review identified herein along with a proposed
Ordinance(s) that implements and entitles the Master Plan. The proposed Ordinance(s)
shall provide final approval of the necessary land use reviews and shall cause issuance of
a Development Order(s), subject to any detailed design, engineering, documentation and
platting recordation requirements applicable to each development site and any final
reviews that may be required in connection therewith, with the understanding that all
such final reviews shall be ministerial in nature excepting any required final review by
the Historic Preservation Commission. The Ordinance adopting the Master Plan shall
describe and implement the necessary reductions in Growth Management Allocations to
accommodate the build-out of the Master Plan.
Section 6 - City's Timely Processine and Review
The City Council shall allocate meeting times and resources of the City and necessary
and reasonable for the timely processing, review, and guidance of the master planning
COWOP process.
Section 7 -Historic Preservation Commission Review
This Resolution does not exempt the subject properties from the procedures and
requirements of Section 26.415, Development Involving Historic Resources. Both
Conceptual and Final Review approval shall be necessary for properties designated
Historic Landmarks regardless of the direction or disposition of the Mater Plan. Roaring
Fork Mountain Lodge -Aspen, LLC, shall process such applications to the Historic
Preservation Commission as may be required for its project concurrent with the Master
Planning COWOP Process.
Section 8 -Cost Sharin¢
There shall be established a cost sharing agreement that shall identify and proportionately
allocate joint costs of the master planning process to the parties involved. Costs
associated with individual employees and/or consultants of the parties shall be the
responsibility of the particular party. The City shall not assess land use review fees for
this master planning process.
Aspen City Council Resolution No. _, Series of 2008
COWOP Eligibility for Lift One Neighborhood Master Plan -Page 6
Section 9 -Economic Analysis
There shall be retained a financial consultant with expertise in the economic viability of
ski area or resort real estate development. The consultant shall be independent and shall
be subject to approval of both the City Council and land owners. The City of Aspen,
Centurion Partners, Aspen Skiing Company and Roaring Fork Mountain Lodge -Aspen,
LLC, shall provide information relating to the financial viability of the Master Plan and
their respective components to the satisfaction of the economic consultant.
Such information shall be provided to the independent financial advisor only, in strict
confidence, and shall not be shared with other participants, the Task Force, the public, the
City Council, staff of the City or anyone else without the express written consent of the
party providing such information. The financial advisor shall be entitled to provide
participants and the City Council with his/her conclusions and opinions regarding
financial viability based upon the information provided as long as the information itself
remains confidential.
Section 10 -Master Planning Process may be Terminated
The master planning COWOP process may be terminated by the City Council, Centurion
Partners, the Aspen Skiing Company, or the Roaring Fork Mountain Lodge -Aspen,
LLC. Termination shall be preceded by a meeting between the City Manager, the
Community Development Director, and representatives of the three private property
owners. Potential reasons to terminate the planning process include failure to keep to a
reasonable schedule, an inability to agree on physical, regulatory or economic constraints,
or a fundamental disagreement regarding the direction of the plan. The process may be
terminated for any reason, including no reason.
Section 11 - Townhomes Project on hold
City Council Ordinance No. 32, Series of 2003, granted approval for a development on
the Centurion properties known as the "townhomes project" on land owned by Centurion
Partners, LLC. City Council Resolution No. 9, Series of 2008, extended the statutory
vested rights for the townhomes project through July 28, 2009. If Centurion requests, the
Chief Building Official shall discontinue review of the building permit and consider the
permit dormant with respect to Section 105.3.2., Time limitation of application, of the
2003 International Building Code. Centurion shall have the right to reactivate the
building permit application at any time prior to July 28, 2009.
The townhome approvals embodied in Ordinance No. 32, Series of 2003, and all building
permits and applications and vested rights associated therewith, shall be exempt from
Section 26.304.030(F) ("No Multiple Applications") of the Land Use Code, and shall not
be otherwise adversely affected or impaired in any way by the involvement of the
Centurion Partners property in this master planning COWOP process. Finally, Centurion
Partners' participation in the COWOP Process shall be exempt from Section
26.304.060(F) (Resubmittal of a Previously Denied Application) of the Land Use Code.
Aspen Ciry Council Resolution No. _, Series of 2008
COWOP Eligibility for lift One Neighborhood Maser Plan -Page 7
Section 12 -Lift One Lodge Application on hold
The proceedings for the pending Application for Lift One Lodge, which includes land
owned by the Aspen Skiing Company, the City of Aspen, and Roaring Fork Mountain
Lodge -Aspen, LLC shall be suspended for all intents and purposes during the time of
the master planning COWOP process. For the purposes Section 26.304.070(F) of the
Land Use Code, the application shall continue to be considered "active" and any and all
deadlines or expiration dates associated with the Lift One Lodge Application will be
tolled until processing is resumed. All previously obtained consents and all previously
obtained approvals or recommendations of approval, in particular the approvals of the
Planning and Zoning Commission and Historic Preservation Commission, shall remain in
effect. Upon reactivation of the Lift One Lodge Application, the application will
continue to be processed and considered pursuant to the City's Land Use Regulations in
place on the date that the Application to the Historic Preservation Commission was
deemed complete in March of 2006.
Section 13 -Holland House Redevelopment Credits
The time period for utilization of replacement credits for employees, lodging, and any
other pertinent matter related to the Holland House Lodge, following its demolition,
pursuant to the pending application for a demolition permit, is hereby extended to the
later of:
1. 24 months after final approval, denial or withdrawal of the current application for
Lift One Lodge, or
2. 24 months after final approval, denial or withdrawal of a new application for all
or some of the properties described in the current Lift One Lodge application; or,
3. 24 months after approval of a final application for development of the Lift One
Lodge site pursuant to the Master Planning COWOP Process, whichever is later.
Section 14 -Historic Designations
The City shall not initiate a process to designate the Skiers Chalet Lodge or any other
structure located within the Master Planning Area as historic resources as long as the
Master Planning COWOP Process is active. The Master Planning process may
recommend designation of historic resources.
JGCLLV LI 1J- 1GLLLpVIfLL ~' AIIVL YGV~V a uG v uGv
The Skiers Chalet Lodge and Skiers Chalet Steakhouse may be utilized as housing for
working residents during the pendency of the Master Planning COWOP Process. A
temporary deed restriction or agreement regarding the affordability of the units and
compliance with the Aspen/Pitkin County Housing Authority shall be approved by the
City Attorney prior to such buildings being occupied as affordable housing. A Building
Permit and improvements may be necessary prior to occupancy. The temporary use as
affordable housing shall not effect achange-in-use and the properties shall not be subject
to the City's Housing Replacement Program. In addition, lodging and employee credits
associated with the Skier Chalet Lodge will remain in effect while it is used for
affordable housing.
Aspen City Council Resolution No. _, Series of 2008
COWOP Eligibility for Lift One Neighborhood Master Plan -Page 8
FINALLY, adopted, passed and approved this
Attest:
Kathryn S. Koch, City Clerk
Approved as to form:
John P. Worcester, City Attorney
day of , 2008.
Michael C. Ireland, Mayor.
Exhibit A -Legal descriptions of land subject to Master Planning Review.
Aspen City Council Resolution No. _, Series of 2008
COWOP Eligibility for Lift One Neighborhood Master Plan -Page 9
EXHIBIT A ~~~ ~, ~.~
A. Property of Aspen Land Fund II, LLC ~~ ~i~.l~,
PARCEL Y
Block 6,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
more particularly tlescribed as follows:
Beginning at a point which is the intersection of the Easterly right of way line of Garmisch SUeet and the Southeny right of
way line of Dean Avenue, from whence the Northeast Comer of SecSon 13, Township 10 South, Range 85 West of the 6th
P.M., bears N 53°20'28" East 814.56 teet,
thence along the Southerly right of way line of Dean Avenue S 75°09'11" E 330 feet to the Westerly right of way line of
Aspen Sdeet;
thence along said right of way line of Aspen Street S 14°50'49" W 130 feet to the Northery right of way line of Juan Street;
(hence along said right of way line of Juan Street N 75°09'11" W 330 feet to the Eastedy right of way Tine of Garmisch
Street
thence along said right of way line of Garmisch Street N 14°50'49" E 130 feet to the point of beginning
EXCEPTING therefrom: The portion described in Book 232 at Paga 362.
i~he above parcel is also described as follows:
Beginning at a point which is the intersection of the Eastedy fight-of-way line of Garmisch Streei and Ne Southerly
right-obway Gne of Dean Avenue, from whence the Northeast wmer of Section 13, Township 10 South, Range 85 West of
the Sizlh Principal Meridian bears N 53°20'26" E 614.56 feet, more or less;
thence along the Southerly right-of-way line of Dean Avenue S 75°09'11" E 330 fee, more or less, to the Westerly
rigM•of-way line of Aspen Street;
thence along said right-of-way line of Aspen Street S 14°50'49" W 130 feet, more or less to the Northerly right-of-way line
of Juan Street,
thence along said right-of-way line of Juan Street N 75°09'11" W 298.20 feet, to the Southeasterly comer of that parcel of
lantl tlescribed in Book 232 at Paga 362;
thence N 40°21'11" W along the Northeasterly line of said parcel, a distance of 36.73 Teet to the Northeasterly right-ol-way
line of Garmisch Street;
thence along said fight-ot-way line of Garmisch Street N i4°50'49" E 107.90 feet, more or less, to the point of beginning.
SAID PARCEL OF LAND ALSO BEING DESCRIBED AS FOLLOWS:
Block 6,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
more particularly tlescribed as follows:
Beginning at a point which is the intersection of the Eastedy right of way line of Garmisch Street and the Southerly right of
way line of Dean Avenue, from whence the Northeast Comer of Section 13, Township 10 Sotdh, Range 85 Wast of the 6th
Principal Meridian., bears N 53°20'28" East 814.56 feet more or less;
thence along the Southerly right cf way line of Dean Avenue S 75'09'11" E 330 feet, more or less to the Westery fight of
way line of Aspen Street,
(hence along saitl right of way line of Aspen Street S i4°50'49" W 730 feet, more or less to the Northerly tight of way line
of Juan SVeet;
thence along said right of way line of Juan Street N 75°09'11" W 330 feet, more or less to the Eastedy right of way line of
Garmisch SVeet;
thence along said right of way line of Garmisch Street N 14°50'49" E 730 feet, more or less to fhe point of beginning.
EXCEPTING Therefrom: Tnat parcel of land described in Book 232 at Page 362 in the recortls of the Clerk and Recorder
of Pltkin County, Colorado.
Said Parcel 1 is also tlescribed as follows:
Beginning at a point which is the intersection o(the Easterly right-ol-way line of Gamtisch Street arld fhe SOOG16rly
right-of-way line of Dean Avenue, from whence the Northeast corner of Section 13, Township 10 South, Range 85 Weat of
the Sixth Pnncipai Meridian bears N 59'20'28" E 814.56 feet, more a kss;
thence along the Souherly right-obway line of Dean Avenue S 75.09'71" E 330 tee, more or less, to the Westerly
right-of-way line of Aspen SUeet;
thence along said right-of-way line of Aspen Street S 74°50'49" W 130 feel more or less to the Northerly right-oF-way kris
of Juan Street;
Narita along said right-Of-way line of Juan Street N 75'09'11" W 296.20 feet, to the Southeasterly comer of that parcel of
land tlesuibed in Book 232 at Page 362;
thence N 40'21'11" W along the Northeasterly line of said parcel, a distance of 38.73 feet b the Northeasterly ngh4of-way
line of Garmiach Street:
thence along said right-of-way line of Garmiach SUeet N to°50'49" E 707.80 feet, more or less, to the point of beginning.
PARCEL 2'.
That potion of the Northeast one-quarler of the Northeast ova-quaver (LOl 1) of Section 13, Township 10 South, Range
65 West of the Blh P.M., tlescdbed as follows:
Beginning al Ue Northeast Corner of Lot 13, Bbck 11, Eames Addition;
thence N 75°09' i t" W 181.25 feet;
thence S 14°50'49" W 78.00 feet;
thence S 03°55'43" W 184.991eet:
thence S 75'09'17° E 150.00 feet;
thence N 14'50'49" E 246.00 feel to the point of beginning,
ALSO KNOWN AS
Lots 13. 14, 15, i6, 17. 18.. 18 antl 20,
Block 11,
FAMES ADDITION TO THE CITY AND TOWN6ITE OF ASPEN,
antl a trap of land being part of Lot 1 of Section 13, Township 10 SouM, Range 85 Wast of the 6th P.M., described as
follows'.
Beginning at the Northwesterly comer of Lot 13, Block 11, Eames Add'NOn;
(hence 5 74'50'49" W 240.00 Poet along the WasteM lino of said Block 11 b me SoWhwestery comer of Lot 20, Block 17
Eames Adtliuon;
thence N 03°55'43" E 184.99 feet,
thence N 14°50'49" E 78.00 feet;
thence S 75°09'7 i" E 31.25 leer to the point of beginning.
AND
Lots 7, 8, 9, 10. 11 antl 12,
BIOCk 11,
FAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, more fuly desaibetl as folows
Beginning at the NoMwesterly corner of saitl Lot 7;
thence 5 75°09'11" E 180.00 feet along the Northerly hountlary line of said 81wk t 1;
(hence S 1d°50'49" W 100.00 feet along the Easterly boundary line of said Block 11;
thence N 75°09' /1" W 180.00 feet along the Southerly boundary line of said Lols 7.1210 the Southvresterry corner of said
Lol 7;
thence N 14'S0'a9" E 700.00 feet along the Westerly boundary line of said Lo17 to the point of beginning.
SAID PARCEL OF LAND AL50 BEING DESCRIBED AS FOLLOWS
Beginning al the Southwest wmer of said Lot 7, a rebar and cap PLS # 29030. from which a mbar and tap PLS # 2547
bears N 55° E a distance of 0.7 feet;
thence N t4°50'49" E abng the weslady line of said Lol 7, a tlistanca of 100.00 feet to the Northwest wrner of said Lot 7,
also being al the Southerly right-of-way of Juan Street in the City of Aspen, a rebar antl wp PLS # 2547;
thence S 75°09' 1 t" E along the Northerly line of sold Block 11, also being the Soumerty right-of-way line of sob Juan
Stree! a distance of 180.00 feel to me Nonheast corner of said Block i t, a rebar and wp PLS # 29030;
thence S 1a°50'49" W along the Easterty line of sob Block 11, also being the Westerly right-of-way of Aspen SUeet In the
Coy of Aspen a distance of 100.00 feet to the Southeast comer o(said Lot 12, a rebar and cap PLS # 29030;
thence N 75°09.1 f" W along the Southerly line of said Lots 7,8, 9,10,11 and 12 a diSlance 0(180.001881 t0 818pW0(0/
beginning.
ANO
The vacated alley situated in Block i i, FAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN.
B. Property of Aspen Skiing Company
1. Land Under Contact with Roaring Fork Mountain Lodge -Aspen, LLC which is
included in the Lift One Lodge Application:
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14,
Block ]0, and Lots 1, 2, 3, 4, 5, 6 and 7, Block 12,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
TOGETHER WITH an easement and right of way for the construction,
erection, operation and maintenance of a cable ski chair lift, as created, defined
and established by Easement Agreement between the Board of County
Commissioners of the County of Pitkin and Friedl Pfeifer recorded October 24,
1962, in Book 199 at Page 489, and,
TOGETHER WITH an easement and right of way for skiing purposes, as
created, defined and established by Easement Agreement by and between the
City of Aspen and Aspen Skiing Corporation recorded October 17, 1969, in
Book 244 at Page 31.
2. Land Area to the South of the Lift One Lodge Site:
That property owned by the Aspen Skiing Company extending south from
Block 12, Eames Addition to the City and Townsite of Aspen, a distance of
900 feet.
C. Property of Roaring Fork Mountain Lodge - Snowmass, LLC
Lots 1, 2, 3, 12, 13, and 14, Block 8, Eames Addition, City and Townsite ofAspen,
and Lots 5, 6, 7, 8, 9 and 1Q, Block 9, and Lots 4 and 11, less the west 22 feet
thereof, Block 9, Eames Addition to the City and Township of Aspen, together with
that portion of th alley in Block 9, Eames Addition to the City and Townsite of
Aspen, abutting on all of Lots 5 and 10 and on Lots 4 and 1 1, except the west 22 feet
thereof.
G?Clieni\RFC\ROanny ForA Mountain Lodge-Aspen LLC\Li0 One Lodge\Bendon. Chris Eshibii A io Iv rz SouN Aspen Svee~ fOWOP o12A1X.xyd
D. Property owned or maintained by the City of Aspen.
Willoughby Park:
Lots 1-14, Block 7 and Lots 1-3, Block 8 Eames Addition, City and Townsite of Aspen.
Lift One Park:
Lots 3 and 12 Block 9 and the western 22 feet of Lots 4 and 11, Block 9 Eames Addition,
City and Townsite of Aspen.
Public rights-of--way:
• South Aspen Street south of Durant Avenue.
• All unvacated portions of Dean Street west of Monarch Street.
• Juan Street between South Aspen Street and Garmisch Street.
• Garmisch Street from Juan Street to Durant Avenue.
• Gilbert Street west of Monarch Street.
• Hill Street west of Monazch Street (unopened).
• Summit Street west of Monazch Street (unopened).
• A one-block section of alleyway between Hill Street and Summit Street east of
South Aspen Street (unopened).
• A one-block section of alleyway south of Summit Street east of South Aspen
Street (unopened).
EXHIBIT A ~~//
A. Property of Aspen Land Fund II, LLC
PARCEL(
Block 6,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
more Darticularly described as Follows:
Beginning at a point which is the intersection of the Easteny right of way line of Garmisch Street and the Southedy right of
way line of Dean Avenue, from whence the Northeast Comer of Section 13, Tovmship 10 South, Range 85 West of the 6th
P.M., bears N 53°20'28" East 814.58 feet;
tnence along lne Southedy right of way line of Dean Avenue S 75°09'11' E 330 feet to the Westerly right of way line of
Aspen SheeC,
(hence along said right of way line of Aspen Street S 14°50'49" W 130 feet to the Northery right of way line of Juan Street;
(hence along saitl right of way line of Juan Street N 75°09'11' W 330 feet to the Easterly right of way line of Garmisch
Street:
thence along said right of way line of Garmisch Street N 14°50'49° E 130 feet to the point of beginning
EXCEPTING therefrom: The portion described in Book 232 at Page 362.
The above parcel is also described as follows:
Beginning at a point which Is the intersection of the Easteny right-of-way line of Garmisch Sheet antl the Southerly
right-of-way line of Dean Avenue, from whence the NoMeast comer of Section 13, Township 10 South, Range 85 West of
the Sixth Principal Meritlian bears N 53°20'28" E 814.56 feet, more or less;
thence along the Southerly right-oi-way line of Dean Avenue S 75°09'11" E 330 fee, more or less, to the Westerly
right-of-way line of Aspen Street;
thence along said right-ot-way line of Aspen Street S 14°50'49" W 130 feet, more or less to the Northerly dght-of-way line
of Juan SUeet:
thence along said right-of-way line of Juan Street N 75°09'11" W 298.20 feet, to the Southeasterly comer of that parcel of
lantl described in Book 232 at Page 362;
thence N 40°21'11" W along the Northeasterly line of said parcel, a distance of 38.73 feet to the Northeasterly right-of-way
line of Garmixh Street;
thence along said right-of-way Ilne o1 Garmisch Street N 14°50'49" E 107.90 feet, more or less, to the point of beginning.
SAID PARCEL OF LAND ALSO BEING DESCRIBED AS FOLLOWS:
Block 6.
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
more par8culany described as follows:
Beginning at a point which is the intersection of the Easterly right of way line of Garmisch Sheet and the Southedy right of
way line of Dean Avenue, from whence the Northeast Comer of Section 13, Township 10 South, Range 65 West of the 6th
Principal Meritlian., bears N 53°20'28" East 614.56 feet more or less;
thence along the Southerly right of way line of Dean Avenue S 75°09'11" E 330 feet, more ar less to the Westerly right of
way line of Aspen Street;
thence along saitl right of way line of Aspen Sheet S 14°50'49" W 130 feet, more or less to lha Northerly right of way line
of Juan Slreel;
thence along saitl right of way line of Juan Street N 75°09'11" W 330 feet, more or less to the Easterly right of way line of
Garmisch Sheet;
thence along said right of way line of Garmisch Street N 14°50'49" E 130 feet, more or less to the point of beginning.
EXCEPTING therefrom: That parcel of land described in Book 232 at Page 362 in the records of the Clerk and Recorder
of Pitkin County, Coloratlo.
Said Parcel 1 is also described as follows
Beginning at a point which is the intersection of the Easterly right-ol-way line of GamlisCh SfreEf a0d fhb $OUfh6dj'
rightbf-way line of Dean Avenue, from whence the Northeast corner of Section 13. Township 70 South, Range 85 West of
the Sixth Principal Meridian bears N 53'20'26" E 87a.58 feat, more a less;
thence along the Southeny right-ot•way line of Dean Avenue S 75°09'11^ E 3301ee, more or leas, to the Westerly
right-of-way line of Aspen Stree(;
thence along said right-ol-way line of Aspen Street S 14°50'49" W 130 feet, more or less !o the Northerly right-of-way line
of Juan Street;
thence along said right-of-way line of Juan Street N 75'09'17" W 298.20 fee(, to the Southeasterly comer of that parcel of
aantl described in Book 212 at Page 362;
thence N 40°21'11" W along the Northeasterly line of said parcel, a distance of 38.73 feet to the NoMaastedy right-of-way
line of Oarmisch Street:
thence along said right-of-way line of Garmisch Street N to°50'49" E 707.901eeL more or less, to the point of beginning.
PARCEL 2'
Thal portion of the Nonheastorie-quaver of the Northeast ova-quarter (LOl 1) of Section 73, Township 10 South, Range
85 West of the 6th P.M., tlescribed as follows:
Beginning at Ne Northeast Corner of Lot 13, Block 11, Eamea Adtlitbn;
thence N 75°09'11" W 181.25 feet;
thence 5 t4°50'49" W 78.00 feel;
thence S 03°55'43" W 164.98 feet;
thence S 75°09'11" E 750.00 feek
thence N 74°50'49" E 240.00 feel to the point of beginning.
ALSO KNOWN AS
Lots 11, t4, 15, 16. 17. 18, 19 antl 20,
Block 11,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
antl a tract of land being part of Lot t of Section 13, Township 10 South, Range BS West of the 8th P. M., descnbetl as
follows'.
Beginning at the Nordtwesteny comer of Lot 13, Block 1 t, Eames AddiBOn;
thence S 74°50'49" W 240.00 feel along the Westerly line of said Block 71 to the Soumwestery comer of Lot 20, Block 11
Eames Atldillon;
thence N 03°55'43" E 184.99 feeP,
thence N 14'50'49" E 78.00 feet;
thence S 75°09'11" E 31,25 feet to the point of beginning.
AND
Lots 7, 8, 9, 70. 11 and 12,
Block 17,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN, more hilly described as follows
Beginning at the NOrthwesteny comer of aaitl Lo17;
fnence 5 75°09'11" E 180.00 leet along the Northerly boundary line of said Block t t;
thence S 74'S0'a9" W 100.00 feet along the EastMy boundary Ilne of said Block 11;
thence N 75°09'11" W 180.00 leel along the Southerly boundary line of said Lots 7-121o the Southwesterly corner of said
Lol 7;
thence N 14'S0'a9" F. t00.001ee1 along the Westerly boundary line of said Lo17lo the point of beginning.
SAID PARCEL OF LAND ALSO BEING DESCRIBED AS FOLLOWS:
Beginning at the Southwest wmar of said Lot 7, a rebar and cap PLS # 29030, hom which a rebar ant cap PLS # 2547
bears N 55° E a Oislance of 0,7 feet',
thence N 14°50'49" E abng the westerly line of saitl Lot 7, a distance of 100.00 feet to the Northwest wrner o(said Lot'/.
also being at the Southerly right-of-way a(Juan Streal in the Cky o(Aspen, a rebar and wp PLS # 2547;
fnence S 75°09'11" E along the Northerly line of said Block 11, also being Ne Southerty right-of-way line of said Juan
Street a tlistance of 180.00 feet to Me Northeast corner of said Block t t, a rebar end cap PLS # 29030;
thence S 14°50'49" W along the Easteny line of saW Block 11, also being the Westerly fight-of-way of Aspen Street In Ne
Cdy of Aspen a tlistance O( 100. DO feet to the Southeast Comer 0/ 3altl LOf 12, a rebar apd CaP Pt$ X 28030;
thence rv 75°09'11" W along the Southeny line of said Lots 7,8, 9,10,1 f and 12 a distance 0/ 180.00 /88f f0 fhb POlflf 0(
beginning.
AND
The vacated alley situated in Block 1 i, EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN.
B. Property of Aspen Skiing Company
1. Land Under Contact with Roaring Fork Mountain Lodge -Aspen, LLC which is
included in the Lift One Lodge Application:
Lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14,
Block 10, and Lots 1, 2, 3, 4, 5, 6 and 7, Block 12,
EAMES ADDITION TO THE CITY AND TOWNSITE OF ASPEN,
TOGETHER WITH an easement and right of way for the construction,
erection, operation and maintenance of a cable ski chair lift, as created, defined
and established by Easement Agreement between the Board of County
Commissioners of the County of Pitkin and Friedl Pfeifer recorded October 24,
1962, in Book 199 at Page 489, and,
TOGETHER WITH an easement and right of way for skiing purposes, as
created, defined and established by Easement Agreement by and between the
City of Aspen and Aspen Skiing Corporation recorded October 17, 1969, in
Book 244 at Page 31.
2. Land Area to the South of the Lift One Lodge Site:
That property owned by the Aspen Skiing Company extending south from
Block 12, Eames Addition to the City and Townsite of Aspen, a distance of
900 feet.
C. Property of Roaring Fork Mountain Lodge - Snowmass, LLC
Lots 1, 2, 3, 12, 13, and 14, Block 8, Eames Addition, City and Townsite of Aspen,
and Lots 5, 6, 7, 8, 9 and ]0, Block 9, and Lots 4 and 11, less the west 22 feet
thereof, Block 9, Eames Addition to the City and Township of Aspen, together with
that portion of th alley in Block 9, Eames Addition to the City and Townsite of
Aspen, abutting on all of Lots 5 and 10 and on Lots 4 and 1 1, except the west 22 feet
thereof.
G9Clienl\RFC\ROaring ForA Mounleln Lodge-Aspen LLC\LIO One Lodge\Rendon. Chris E~M1ibR A to IV re Soulb Aspen Sveel COWOP III2511X xpd
D. Property owned or maintained by the City of Aspen.
Willoughby Park:
Lift One Pazk:
Public rights-of--way:
• South Aspen Street south of Dean Street.
• All unvacated portions of Dean Street west of Monarch Street.
• Juan Street between South Monazch Street and Garmisch Street.
• Gilbert Street west of Monazch Street.
• Hill Street west of Monarch Street (unopened).
• Summit Street west of Monarch Street (unopened).
• A one-block section of alleyway between Hill Street and Summit Street east of
South Aspen Street (unopened).
A one-block section of alleyway south of Summit Street east of South Aspen
Street (unopened).
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Exhibit
Lift One Neighborhood Master Plan
Criteria for Eligibility
Section 26.500.040: A development may be determined to be reasonably necessary for
the convenience or welfare of the public if the applicant for development is the City of
Aspen, an agent of the City of Aspen authorized by the City Council to proceed under
this Chapter of the Land Use Code, or the City of Aspen or agent of the City of Aspen is
a co-applicant with a private party for the development of land which constitutes an
essential public facility, provides essential services to the public, and which is in the best
interests of the City of Aspen to be completed. By way of example and not limitation, the
following types of developments may be determined to be reasonably necessary for the
convenience or welfare of the public: (a) affordable housing projects developed by the
City of Aspen by itself or in conjunction with an agent or private developer; (b) the
development of public utilities; (c) park and recreational facilities development; (d) public
infrastructure improvements; (e) public buildings and structures; or (f) transportation
improvements.
Sfaff Analysis:
The City is a co-applicant with three other land owners -Aspen Land Fund II (aka
Centurion Partners), Roaring Fork Mountain Lodge -Aspen, and the Aspen Skiing
Company for the purpose of determining the most appropriate manner for
redevelopment to occur in the area surrounding the base of Lift 1A and South Aspen
Street. This includes a possible change in the disposition of City-owned land and rights-
of-way in the area. This project presents an opportunity to develop, redevelop, or
improve lift-served skiing access to Aspen Mountain, pedestrian, vehicular and
emergency vehicle access to properties along South Aspen Street, non-traditional
energy sources such as geothermal heat recovery, recreational facilities, a museum
focused on the evolution of skiing in North America, public parking, and commercial,
lodging, free-market residential, and affordable residential land uses. In particular,
preserving and enhancing short-term lodging facilities, providing adequate emergency
services and access, the provision of effective access to lift-served skiing, and housing
the workforce are all long-stated community goals.
The COWOP process allows for greater discussion and community input in a master
plan and vision for the redevelopment of the neighborhood than does the traditional
system -especially considering the bifurcated ownership of lands in this neighborhood.
The COWOP process allows a group of community members to advance a plan from the
ground up, considering community and neighborhood goals, and recognition of
constraints. This interaction allows discussion on technical, financial, and regulatory
constraints to be balanced with the community's use, character and operational goals
and aspirations and the appropriate manner in which those aspirations can be balanced.
Staff believes this project is a highly desirable use of the COWOP review process. The
previous "single-property" land use reviews for re-development in this neighborhood
have not enabled a thorough discussion of broad community goals. Staff believes this
master planning process will achieve such a community dialogue, is in the best interests
of the City of Aspen, and believes City Council should determine this project eligible for
COWOP review.
Exhibit
Lift One Neighborhood Master Plan
Proposed Task Force
City of Aspen City Council 2 Members
P & Z 1 Member
HPC 1 Member
Com. Dev. Chris Bendon
Parks 1 Member
Housing Office or Boazd 1 Member
Landowners Lodge at Aspen Mtn John Sarpa
Lift One Lodge Bob Daniel
Skico Dave Bellack
Neighbors South- Shadow Mountain 1 Member
West- Juan St., Trainors
Landing 1 Member
North- South Point, Timber
Ridge, Lift One 1 Member
East- Cazibou, Silver
Shadow, Cascade, Aspen
Mtn. Townhomes,
Mountain Queen, Dolinsek,
Telemark, Aztec 2 Members
Other Affected Parties Aspen Hist. Society Georgia Hansen
AVSC Jeff Kai
ACRA/SAS Bill Tomcich
Community At Lazge 4 Members
22 Members total
Exhibit '/
Lift One Neighborhood Master Plan
Resources
Facilitator Tim Ditzler
Chris Bendon Meeting Management.
Recording Notes and
Agreements.
Making sure that task force
members get what they
need.
COWOP Process Team Chris Bendon Translating COWOP
Sunny Vann comments into physical
concepts.
Bob Schultz
Making sure that
David Corbin information is prepared for
meetings.
Working with facilitator to
ensure progress.
Managing third party
analysis and drawing
services.
Graphics/Planning Stephen Holley - Poss Diagrams, alternative
Architecture and Planning development, background
Dave Carpenter - DHM mapping.
Design
Exhibit
Lift One Neighborhood Master Plan
Process Outline
Steps
LOL/LAM/SkiCo Com. Dev. Director Interview Potential
agree [o participate in Proposes COWOP. 'T'ask Force
COWOP Facilitators
Check-Ins/Hearings Result
Council Eligibility
for Master
Planning
Develop 3rd Party
Outreach to Potential Identity Necessary .l `d Financial Analysis,
Task Force Party Analysis Facilitation & Cost
Participants. Agreements
Council Finalize
Participants/
Agreements
Assemble COWOP
Task Force. Review Review background Identify Goals and Agreement
process, ground rules, data, properties. Site Key Issues. Prioritize HPC PBtZ Council on Coals
etc. Visits. Goals.
Identify constraints Technica] input from Identify "real" Agreement
that need to be experts on nature of constraints and HPC P&Z Council on
addressed constraints constraint "trade-otis" Constraints
Identify balance of 3`d Party Financial
Goals and Constraints. Review Site Plan Analysis Agreement
Review Program Alternatives (Physical HPC P&Z Council on Program
Altematives or 3-d modeling) Prioritize Altematives & Site Plnn
Review Conceptual
Review Conceptual Development Finalize "cask Force Adoption of
Architecture Agreement and Coast. Recommendation HPC P&Z Council Master Plnn
Mgmt. Plan
HPC Final Review (if not done earlier).
Ministerial Reviews -Finalize Plats and Agreements for recording.
Finalize Engineering Plans for recording. Finalize Construction HPC Construction
Management Plan. l3uilding Permit Review.
~,
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
THRU: Chris Bendon, Community Development Director ~~
FROM: Jennifer Phelan, Community Development Deputy Director
RE: Lift One Conceptual PUD/Timeshare Review -Public Hearing
MEETING
DATE: Februazy 25, 2008
SUMMARY:
The Lift One Lodge application received Conceptual PUD and Timeshare approval, with
conditions, by the Planning and Zoning Commission on August 7, 2007, via Ordinance No. 22,
Series of 2007. After the approval (step one in a four step review process) by the Planning and
Zoning Commission, the applicant was scheduled for Conceptual PUD and Timeshare review
before the City Council (step two). Prior to the scheduled review and public heazing, the
applicant along with certain neighborhood property owners has come forward to participate in a
master planning process for the subject area. On Council's agenda is a resolution to approve the
master planning process for the area to be conducted under the COWOP (Development
Reasonably Necessary for the Convenience and Welfaze of the Public) process.
Staff sees three potential outcomes as a result of Council's consideration of the resolution to
conduct a master planning process of the S. Aspen Street/base area: 1) Council may approve the
COWOP, 2) Council may not resolve the COWOP request and continue the hearing, or 3)
Council may deny the request. Depending on the result of the COWOP discussion, Staff is
providing the following recommendations with regard to the Lift One Conceptual
PUD/Timeshaze application.
RECOMMENDATION:
1) Council approves the COWOP request.
If Council approves the COWOP request, staff can consider the Lift One Conceptual
PUD/Timeshare application on hold for a period of time defined in the COWOP resolution
(one year applies otherwise). If no action is taken by the applicant to advance the application
after the stated period, the application will be considered abandoned.
2) Council does not resolve the COWOP request and continues the hearing to a date certain.
If the COWOP discussion is not resolved and the hearing is continued, Staff recommends
that this agenda item be continued to the same date certain.
3) Council denies the COWOP request.
If Council denies the COWOP application, staff would suggest continuing this agenda item
to a future date certain. Considering the merits of the application in the future will provide
an opportunity to separate the denial of the COWOP process with the merits of the Lifr One
Lodge application.
RECOMMENDED MOTION (ALL MOTIONS ARE WORDED IN THE AFFIRMATIVE:
If the COWOP application is continued or denied, Staff recommends a continuance of the
hearing on the Lift One Lodge application
"I move to continue the public hearing on the Lift One Conceptual PUD/Timeshare application
to , 2008."
CITY MANAGER COMMENTS:
MEMORANDUM
TO: Mayor Ireland and Aspen City Council /~ ~~
FROM: Chris Bendon, Community Development Director / A~,~
RE: Lift One Master Plan -Cost Sharing Agreement ~
DATE: February 25, 2008
SUMMARY:
The Lift One Neighborhood Master Plan COWOP eligibility request is before City
Council tonight. If the project is to move forwazd, Community Development
requests approval of a cost sharing agreement between the parties. A draft agreement
is attached. This agreement proposes an allocation of 25% of the planning costs to
each of the four parties involved. The expected shared costs are currently
approximated as follows:
Meeting Facilitator $35,000
Note Taker $4,500
Financial Advisor $12,000
Site Survey $4,000
Plan renderings + options $15,000
Site Modeling + options $8,000
Geotechnical & Soil Analysis $10,000
Traffic Analysis $30,000
Plats and Agreements + recordation $15,000
Meeting Food $1,500
Printing $2,000
Public noticing $1,500
Total $138,500
Each Party's Approximate Share $35,000
(25%)
RECOMMENDATION:
Staff recommends City Council approve the cost sharing agreement for the Lift One
Neighborhood Master Plan. The lazger partnership discussion concerning capital
expenses of implementing a plan will be a prime topic of discussion during the master
planning process and does not need to be determined at this point.
RECOMMENDED MOTION:
"I move to approve the cost shazing agreement for the Lifr One Neighborhood Master
Plan."
CITI
ATT
--DRAFT--
COSTSHARING AGREEMENT
FOR MASTER PLANNING OF THE
LIFT ONE NEIGHBORHOOD
This agreement between the City of Aspen, Aspen Land Fund II, Roaring Fork
Mountain Lodge -Aspen, and the Aspen Skiing Company establishes the
agreement and criteria for payment of expenses associated with the project
known as "Lift One Neighborhood Master Plan". The City of Aspen and Aspen
Land Fund II, Roaring Fork Mountain Lodge -Aspen, and the Aspen Skiing
Company, as co-applicants, have and will continue to incur expenses
associated with the Master Planning process of planning redevelopment of
property generally including publicly and privately owned land and rights-of-
way bordering South Aspen Street south of Durant Avenue Spring Street, more
precisely described in City Council Resolution _, 2008, as may be amended.
The strategy of paying for the planning phase of the Master Plan is as follows:
1. The City of Aspen and Aspen Land Fund II, Roaring Fork Mountain Lodge -
Aspen, and the Aspen Skiing Company shall each independently pay for
professional services such as planning, architecture, finance and legal,
contracted by and on behalf of each individual party.
2. The costs of full time staff for the City of Aspen and Aspen Land Fund II,
Roaring Fork Mountain Lodge -Aspen, and the Aspen Skiing Company
working on the Master Plan shall be the sole expense of the appropriate
employer.
3. The expenses directly associated with and necessary for the Master
Planning process such as a meeting facilitator, minute taker, Financial
Advisor, land surveys, plan options and renderings, site models, 3-
dimensional models, geotechnical analysis, traffic analysis and the
reasonable needs of the Master Planning task force shall be shared
equally (25% for each party) between the City of Aspen and Aspen Land
Fund II, Roaring Fork Mountain Lodge -Aspen, and the Aspen Skiing
Company. Fees and cost to be shared equally will not be limited to those
listed above but may include any expense that the parties agree is
associated with the Master Planning process and the parties agree to split.
Known fees are estimated as follows:
Meeting Facilitator $35,000
Note Taker $4,500
Financial Advisor $12,000
Site Survey $4,000
Plan renderings + options $15,000
Site Modeling + options $8,000
Geotechnical & Soil Analysis $10,000
Traffic Analysis $30,000
Plats and Agreements + recordation $15,000
Meeting Food $1,500
Printing $2,000
Public noticing $1,500
Total $138,500
Each Party's Approximate Share $35,000
(25%)
4. Expenses that are incurred as the project moves from the Master Planning
phase to development such as architecture, engineering, tap/sewer fees,
permitting and other improvements shall be considered developer cost
and paid for exclusively by the party owning such improvements unless
otherwise agreed to in a development agreement. Expenses occurred in
the preparation and review of historic preservation applications shall be
borne by the party owning such resource.
5. Roaring Fork Mountain Lodge shall be primarily responsible for purchasing
and contracting services as may have been previously approved by all
parties]", necessary for the Master Planning process, and shall submit a
copy of the applicable invoice to the City of Aspen, Aspen Land Fund II
and the Aspen Skiing Company in a timely manner for reimbursement of
an equal share. Any shared cost incurred by the City of Aspen or any
other party will likewise be submitted to the remaining parties for
reimbursement. Cost incurred should be of a reasonable nature for the
services/products purchased. All shared expenses incurred in the master
planning phase of this project shall be reconciled after the adoption of
the master plan in a manner acceptable to all parties.
b. Any additional significant expense to be shared equally by the parties,
other than those recognized herein, shall be pre-approved by the parties
to insure against any future disagreements. The Aspen City Manager shall
determine if these additional fees are acceptable to the City or require
review by the Aspen City Council.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date hereinafter written.
DATE:
(SIGNATURES ON FOLLOWING PAGE]
2
CITY OF ASPEN, COLORADO
A Municipal Corporation: ATTEST:
Stephen Barwick, Manager
ASPEN LAND FUND II, LLC
A Colorado Limited Liability Company
By: John Sarpa, Authorized Signatory
ASPEN SKIING COMPANY
A Colorado Limited Liability Company
By: David E. Bellack, Senior Vice President
ROARING FORK MOUNTAIN LODGE -ASPEN, LLC
A Delaware Limited Liability Company
By: Robert E. Daniel, Jr., Authorized Signatory
3
b
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
COPY:
FROM: Finance Department 1,~~~~~
Chris Bendon, Community Development Director ~~V~rr
RE: 2008 Supplemental Budget Request
-Lift One Neighborhood Master Plan
DATE: February 25, 2008
SUMMARY:
The Lifr One Neighborhood Master Plan COWOP eligibility request is before City
Council tonight. If the project is to move forward, Community Development requests
and adjustment to the 2008 budget to accommodate the project. A cost sharing agreement
has been proposed which allocates 25% of the planning costs to each of the four parties
involved. The expected shared costs are currently approximated as follows:
Meeting Facilitator $35,000
Note Taker $4,500
Financial Advisor $12,000
Site Survey $4,000
Plan renderings + options $15,000
Site Modeling + options $8,000
Geotechnical & Soil Analysis $10,000
Traffic Analysis $30,000
Plats and Agreements + recordation $15,000
Meeting Food $1,500
Printing $2,000
Public noticing $1,500
Total $138,500
Each Party's Approximate Share $35,000
(25%)
In addition, Community Development staff will need to be supplemented to handle this
project. No additional capacity within the department exists and a project assistant will
be necessary. Costs of a project assistant can partially be covered by department savings
and budgets for other projects. Staff requests $10,000 for a project assistant. Other costs
for services may require additional funding. Those additional funding requests will be
brought forward as needed.
ReQuEST:
$45,000 from the General Fund allocated to the Lift One Neighborhood Master Plan
project. This is a one-time cost. If approved, staff will incorporate this request in the
City's first quarter supplemental budget request.
CITY MANAGER
~`~ a-P G
RECOMMENDED MOTION:
"I move to approve a supplemental
Neighborhood Master Plan."
d~ ~f~, ~a
budget request of $45,000 for the Lift One
IX~
MEMORANDUM
TO: Mayor Ireland and Aspen City Council
COPY: John Worcester, City Attorney 7~~
FROM: Chris Bendon, Community Development Director (l~'" ~
RE: Appeal of Administrative Determination -Chateau Roaring Fork #43
DATE: February 25, 2008
SUMMARY:
One of the jobs assigned to the Community Development Director is administer the City of
Aspen Land Use Code. On occasion, this requires the Director to make determinations
regarding the status of a property. Any administrative decision rendered by the Director may
be appealed to the Hearing Officer. The City of Aspen currently does not have a Heazing
Officer and City Council is being asked to function as the Heazing Officer.
There aze three criteria upon which the Heazing Officer has to decide an appeal of an
administrative official. Based solely upon the record established by the original decision, the
Hearing Officer shall consider whether:
1) There was a denial of due process;
2) The administrative body exceeded its jurisdiction; or,
3) The administrative body abused its discretion.
These standards ask whether the Official's actions were ethical. The City's code states that
the decision or determination made by the administrative officer shall not be reversed or
modified unless there is a positive finding on one of these criteria. (Please see Exhibit D for
the entire code section.)
In this case, the decision rendered by the Community Development Director affects Chateau
Roaring Fork Unit #43. Afrer performing reseazch, the Director determined that the unit is
and has never been entitled For residential occupancy - it is a "bandit unit." (Please refer to
Exhibit A.)
STANDARDS OF REVIEW:
1. Due Process -With respect to due nrocess, a local attorney who specializes in property
transaction due diligence alerted the Director to a property listed for sale by Mr. Greene -
Unit No. 43 of the Chateau Roaring Fork Condominiums. The Director researched the
specific unit and the records on file with the Community Development Department did not
correspond to the listing description. More specifically, it appeazed that the unit had not been
entitled as a residence but was being listed as a residence.
1
The Director then alerted the listing agent and owner (one in the same) and sent a letter to the
owner. The Director met with the owner and the owner's attorney, Mr. Fred Peirce. The
Director requested documentation of the unit's entitlement as a residence. After some
additional reseazch by both parties, it was determined that no "direct" documentation was
available. The Director requested affidavits from parties familiar with the original
development of the property.
After reviewing additional information submitted by the owner and previous City
correspondence concerning the particular unit, the Director issued an Administrative
Determination that the unit was not entitled for residential use. (Please see Exhibit A.)
The Land Use Code establishes an appeal of Administrative Determinations to the heazing
Officer. At the time of the appeal submission, the City did not have this Hearing Officer
position filled but was seeking applicants. After consulting with the appellant and with the
City Attorney, it was determined that the best course of action was to postpone the appeal
until the Heazing Officer position was filled.
City Council later interviewed candidates for the position, but did not designate a Hearing
Officer. After subsequent consultation with the appellant and the City Attorney, it was
decided that the appeal could be considered by City Council. City Council is, in effect,
considering this appeal on behalf of a Heazing Officer in light of the position not being filled.
Although tonight's meeting was not scheduled within thirty days of the appeal submission,
staff considers the schedule to be timely under the circumstances.
As required by the Land Use Code, the appellant was provided notice of tonight's meeting
via registered mail and all other affected parties were noticed by publication in the
newspaper, as required. (Please see Exhibit E.) Assuming tonight's meeting does not
contain any procedural flaws, staff believes that due process has been provided to the
appellant.
2. Jurisdiction -The Director's jurisdiction to administer the Land Use Code is established
in Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the
jurisdiction, authority, and duties allocated to the Community Development Director. One of
the Director's duties outlined in the Chapter reads: "To enforce any provision of this Title or
any other provision of the Municipal Code of the City of Aspen. " Staff believes this language
is clear and it does not appear that the applicant is questioning the Director's authority.
3. Discretion -With respect to the Director's discretion, the Director did need to use his
discretion in rendering the determination. The question is whether the Director abused that
discretion or acted unethically. The Director used available City documents and the recorded
plat. The Director did request and did receive affidavits from those familiaz with the property
and its history. These additional pieces of information ultimately were not sufficient for the
Director to "hang his hat on." The Director was especially perplexed by the conflicting
statements made by Mr. Benjamin Greene -that the unit was used as an office and that it has
been used exclusively as a residence. The Director ultimately relied on the documents of the
City in rendering the decision. The Director did need to use his discretion in determining
which documents to rely on, but he does not believe that discretion was abused. The Director
2
believes that his discretion was applied appropriately and that the decision was rendered
ethically.
SUPPLEMENTAL INFORMATION:
Attached as Exhibit C is a supplemental packet submitted to staff on the day of the City
Council packet deadline. This packet includes new information that was not part of the
decision record. Technically, the appeal is a review of the record upon which the
administrative decision was rendered and the record does not include this new information.
The new information consists of various affidavits from property owners within the project.
Staff does not object to this new information being considered by City Council.
TWO RESOLUTIONS:
Attached are two Resolutions. One finds that the Director acted correctly and affirms the
decision. The second finds that the Director exceeded his jurisdiction, abused his authority,
or failed to provide due process and reverses the decision.
RECOMMENDATION:
Staff believes the Director's determination on Unit 43, Chateau Roaring Fork, was rendered
correctly. City Council needs to decide how to consider the additional affidavits and
conflicting information regazding this unit. Staff recommends City Council uphold the
Director's interpretation by adopting the proposed Resolution to affirm the
determination. If the City Council finds the Director acted improperly, City Council will
need to render a new decision. The second proposed resolution finds that the unit is a legal
residence.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: (all motlODS mU be made ]tt the pOSltlve~
"I move to approve Resolution No. ,Series of 2008, [affirming or reversing] the
Community Development Director's decision regazding the legal status of Unit No. 43 of the
Chateau Roaring Fork Condominiums."
ATTACHMENTS:
Exhibit A -August 15, 2007, Administrative Decision with lettered attachments
Exhibit B -August 27, 2007, Notice of Appeal letter from Attorney Tom Smith
Exhibit C -February 19, 2008, Supplemental information provided by Attorney Tom Smith
Exhibit D -Land Use Code Section Regarding Appeals
Exhibit E -Affidavit of notice
3
RESOLUTION N0. ~, (Affirming Decision)
(SERIES OF 2008)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN
ADMINISTRATIVE DECISION OF THE COMMUNITY DEVELOPMENT
DIRECTOR REGARDING CHATEAU ROARING FORK CONDOMINIUMS
UNIT NUMBER 43.
WHEREAS, the Community Development Director received a request for a
decision regazding the status of Unit Number 43 of the Chateau Roazing Fork
Condominiums by Fred Pierce of Austin Piece and Smith Attorneys on behalf of Tony
Greene, the owner of the subject units; and,
WHEREAS, pursuant to Chapter 26.210 - Community Development
Department, the Director rendered a decision and the applicant sought an appeal; and,
WHEREAS, the City of Aspen hearing Officer, pursuant to Chapter 26.316, may
affirm the decision of the Director or modify or reverse the decision upon a finding that
there was a denial of due process, exceeding of jurisdiction, or abuse of authority in
rendering the decision; and,
WHEREAS, the City of Aspen has not appointed a Hearing Officer and the City
Council considered the appeal on behalf of the Heazing Officer; and,
WHEREAS, the City Council has taken and considered written and verbal
testimony from the Chateau Roaring Fork Unit Number 43 owners and/or representatives
and the Community Development Director and has found that the Director provided due
process and neither exceeded his jurisdiction or abused his authority in rendering the
decision; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and
is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council affirms the
Community Development Director's decision regarding Unit Number 43 of the Chateau
Roaring Fork Condominiums.
This Resolution shall not affect any existing litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for
Resolution No. ,Series of 2008. Page I
any reason held invalid or unconstitutional in a court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
APPROVED by the Aspen City Council at its regular meeting on , 2008.
ATTEST:
Kathryn S. Koch, City Clerk
Michael C. Ireland, Mayor
APPROVED AS TO FORM:
John Worcester, City Attorney
Resolution No. ,Series of 2008. Page 2
RESOLUTION N0. ~~ ~ (Reversing Decision)
(SERIES OF 2008)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN
ADMINISTRATIVE DECISION OF THE COMMUNITY DEVELOPMENT
DIRECTOR REGARDING CHATEAU ROARING FORK CONDOMINIUMS
UNIT NUMBER 43.
WHEREAS, the Community Development Director received a request for a
decision regarding the status of Unit Number 43 of the Chateau Roaring Fork
Condominiums by Fred Pierce of Austin Piece and Smith Attorneys on behalf of Tony
Greene, the owner of the subject units; and,
WHEREAS, pursuant to Chapter 26.210 - Community Development
Department, the Director rendered a decision and the applicant sought an appeal; and,
WHEREAS, the City of Aspen hearing Officer, pursuant to Chapter 26.316, may
affirm the decision of the Director or modify or reverse the decision upon a finding that
there was a denial of due process, exceeding of jurisdiction, or abuse of authority in
rendering the decision; and,
WHEREAS, the City of Aspen has not appointed a Hearing Officer and the City
Council considered the appeal on behalf of the Hearing Officer; and,
WHEREAS, the City Council has taken and considered written and verbal
testimony from the Chateau Roaring Fork Unit Number 43 owners and/or representatives
and the Community Development Director and has found that the Director either
exceeded his jurisdiction, abused his authority, or did not provide due process in
rendering the decision; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and
is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council reverses the
Community Development Director's decision regarding Unit Number 43 of the Chateau
Roaring Fork Condominiums. The unit is and shall be considered a legally established
residential unit.
This Resolution shall not affect any existing litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
under such prior ordinances.
Resolution No. ,Series of 2008. Page 1
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for
any reason held invalid or unconstitutional in a court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
APPROVED by the Aspen City Council at its regular meeting on , 2008.
ATTEST:
Kathryn S. Koch, City Clerk
Michael C. Ireland, Mayor
APPROVED AS TO FORM:
John Worcester, City Attorney
Resolution No. ,Series of 2008. Page 2
August 15, 2007
Fred Pierce
Austin Pierce Smith Attorneys
600 East Hopkins Avenue
Aspen, CO 81611
~;~ ~+
ASPEN~PITKIN
COM1IMUNITY DEVELOPMENT DEPARTMENT
Re: Administrative Determination -Chateau Roaring Fork Unit #43
Dear Mr. Pierce:
Thank you for providing the additional information on Unit #43, Chateau Roaring Fork.
Our records show that 12 residential units were constructed in Chateau Roaring Fork
Building B in 1969. It appears that the condominium plat for the property was recorded
without approval from the City of Aspen. However, I believe this was common practice
at the time. It also appears that the condominium plat consisted of a copy of the building
permit plans for the building.
On the plans, Building B is comprised of four units on each of the three above grade
levels -numbered 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, and 42. This corresponds to
the building permit that describes 12 residential units. Four units are depicted in the
basement level of Building B, numbered 43, 43A, 43 B, and 43C, designated for what
appear to be common uses. Unit #43 is labeled "general office," "office For manager,"
and "office for housekeeping" on the plans. In addition, the "room finish schedule" in
the recorded plans describes finishes for apartments, public areas, and office and storage.
This finish schedule does not list unit #43 as an apartment.
In a May 16, 2000, letter from Attomey E. Michael Hoffman representing the owner of
Unit #43, Benjamin Greene, Attorney Hoffman states: "At various times during that
period, the Unit [#43] was alternately put to commercial and residential use. The Unit
was utilized as an office for maintenance and housekeeping activities by former owner
Bud Wallen in his property management business (including for storage or necessary
supplies) particulazly during its early years." I also have read Mr. Benjamin Greene's
current affidavit stating, to the best of his knowledge, that Unit #43 has been used
exclusively as a residence since its inception.
As we've discussed, it was brought to our attention by a local real estate attorney
specializing in transaction due diligence that this Unit #43 had potentially been converted
to a residence without land use approvals or the necessary building permits and was
potentially a "bandit unit."-
13O SOUTH GALENA STREET ~ ASPEN, COLORADO 81611-1975 ~ PHONE 970.92O.SO9O ' PAS 970.92O.S439
Printed rm Revvded Paper
I spoke with Mr. James Barash, President of the Chateau Roaring Fork Home Owners
Association. Mr: Barash has owned Unit #42, located in the same Building B, since the
1970s and stated that he thought Unit #43 was a laundry room and common space.
I did not find any further building permits or land use approvals regarding Unit #43 in the
Community Development Department files. I have reviewed the information you
provided and the affidavits from people knowledgeable about the project and this specific
unit. 1 understand that the unit has likely been in residential use for some time. I'm not
sure what to make of the conflicting statements regarding the previous use(s) of this unit.
I'm especially unsure what to make of Mr. Benjamin Greene's affidavit.
At this point, I cannot determine with certainty that Unit #43 has ever been entitled as a
residential unit. There just does not appear to be any record of the City approving this
unit as a residence. I cannot in good conscience bridge the gap between I2 residential
units and 13 residential units in this building. Based on the records in the Community
Development Department, the information I collected, and the information you have
provided, it is my determination that this Unit #43 Chateau Roaring Fork was intended to
function as an accessory use and has not been entitled as a residential unit.
Pursuant to Chapters 26.222 and 26.316, this determination may be appealed to the City
of Aspen Hearing Officer. The process for doing so is described in Chapter 26.316.
Please let me know if you have any questions about this process or about the substance of
my determination.
Sincerely,
VV v ~' Y 1'~~
Chris Bendon, AICP
Community Development Director
City of Aspen
Attachments:
A -August 6, 2007, letter from Fred Peirce to Chris Bendon with attachments
B -June 14, 2007, letter from Fred Peirce to Chris Bendon with attachment
C -June 4, 2007, letter from Chris Bendon to Tony Greene
D - 1969 building permit for "Building B" Chateau Roaring Fork
E -May 16, 2000, Letter from E. Michael Hoffman to Sarah Oates (disregard
annotations)
Copy: John Worcester, City Attorney
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys At Iaw
60o E. Hopkins Avenue
Suite 205
Aspen, Colorado 8r6u
Frederick F. Peirce
Thomas Fenton Smith*
Daniel J. Sullivan
Ronald D. Austin
OP COUNSEL
*Also Admitted in Delaware
HAND DELIVERED
August 6, 2007
Mr. Chris Bendon, Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
130 S. Galena, Third Floor
Aspen, CO 81611
RE: Unit 43, Chateau Roaring Fork Apartments (a Condominium)
Dear Chris:
Telephone
(970)925-z6oo
Facsimile
t97o)9z5-4720
Email Addresses
fpeirce@aps-pc.com
tsmith@aps-pc.com
dsulliuan@aps-pc.com
When first we spoke regarding your letter to Tony Greene dated Mazch 20, 2006 (sic),
it was my understanding that the City's concerns were that the subject Unit 43 was identified
on the condominium map as "general office" and therefore may not have been constructed or
inspected for residential use. Accordingly, I spoke with Nick Coates, one of the developers of
Chateau Roazing Fork Apartments and he assured me that Unit 43 was constructed and
inspected as a residential unit. The designation as general office on the condominium map and
in the condominium declazation was to allow for that use in the future, should the need or
desire azise. On June 14, 2007, I forwazded to you a letter and affidavit from Nick Coates to
that effect.
Subsequent to that communication, I understand from our recent telephone
conversations that you believe Unit 43 was used as an office by Coates, Reid & Waldron
Property Management ("CRWPM") recently and that, therefore, its "conversion" to
residential use was contrary to the City code. This surprised me, as I expressed on the phone,
and I have tried to verify whether that was the case. In doing so, I asked Stewart Title to
research the chain of title for Unit 43 from the date of development of the Chateau Roaring
Fork Apartments, I spoke again with Nick Coates, and I spoke with Benjamin Greene (Tony's
father), John French, who was a controller with CRWPM for many of the yeazs in question,
and with Mick Spalding, who tried to rent Unit 43 as an office in 2000. Based upon that
~~~~~~ A
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys At Law
Mr. Chris Bendon, Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
August 6, 2007
Page 2
research, I have the following information that confirms my understanding that Unit 43 was
never used as an office.
According to the title company, the developer of Chateau Roazing Fork Apartments,
Chateau Development Company, owned Unit 43 from the date of development in 1969 until
October 3, 1997, at which time it was conveyed to Nick Coates (see attached deed dated
October 3, 1997 and recorded October 10, 1997 under reception number 409421). Nick
Coates was one of the principals of Chateau Development Company and he has already
submitted an affidavit that Unit 43 was constructed and inspected as a residential unit. I now
enclose another affidavit from Mr. Coates stating that during the Chateau Development
Company's ownership of Unit 43, it was used for solely residential purposes, either for
employees of Chateau Development Company or CRWPM. Further, Mr. Coates confirms in
the attached affidavit that during his ownership of Unit 43, from 1997 to 1999, it was used
solely for either short or long term residential rental purposes. Hence, Mr. Coates confirms the
uninterrupted residential use of Unit 43 from 1969 through July I5, 1999.
On July 15, 1999, Mr. Coates conveyed Unit 43 to Benjamin and Patsy Greene (see
attached deed dated July 15, 1999 and recorded July 15, 1999 under reception number
433463). By deed dated December 13, 2001 and recorded December 19, 2001 under reception
number 461998, Mr. & Mrs. Greene conveyed Unit 43 into a family limited partnership
known asGreene/Roaring Fork, L.P. (a copy of that deed is also enclosed). Tony Greene is
Mr. & Mrs. Greene's son and a member of the family limited partnership. Hence, the Greenes
have owned Unit 43 since it was conveyed by Mr. Coates in 1999.
Mr. Benjamin Greene has been an owner of at least one condominium unit in the
Chateau Roaring Fork Apartments since its inception and, accordingly, is familiaz with the
operations that occurred there since 1969. I enclose an affidavit from Mr. Benjamin Greene
wherein he states that to the best of his recollection, Unit 43 was always used for residential
purposes from 1969 until he purchased Unit 43 in 1999. Further, he states that, with the
exception of a failed effort to rent the unit to Mick Spalding for use as a property management
office in 2000, he has always used the unit for short or long term residential rental use.
As an aside, it appeazs that when Mr. Greene attempted to rent the unit to Mick
Spalding for office use, the City objected on the basis of a change in use from residential to
office and further, objected on the grounds that the space could not be used for property
management of another condominium project, i.e., the Chateau Eau Claire. So in 2000, the
City acknowledged the use of Unit 43 as residential and objected to its conversion to use as an
office. As a result of the City's objections, the lease to Mr. Spalding was never completed.
F9Files A-L\GREENE\Chateau Roaring PoM\Bentlon 8E-07 Letter tloc
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys At law
Mr. Chris Bendon, Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
August 6, 2007
Page 3
In addition to the above, I spoke with John French, who worked with CRWPM for
approximately 31 years, from 1974 to 2005. When he met his wife, she was working for
CRWPM and had been living in Unit 43. During his tenure with CRWPM, Unit 43 was never
used as an office and was in fact used for residential purposes. He did mention that units 43A,
43B and 43C were all used for office and related property management purposes by Chateau
Development Company and CRWPM, which may help explain the confusion. I have enclosed
an affidavit from John French to that effect.
As the member of the Green/Roazing Fork, L.P. living in town, Tony Greene has been
responsible for managing the property since 2001. During that time, he has maintained Unit
43 for residential uses, renting it for either short or long term. At no time since 1991 has he
ever rented or used it for office purposes.
Hopefully this letter and the attached affidavits clarify that Unit 43, Chateau Roazing
Fork Apartments has never been used for anything other than residential purposes and was
constructed and inspected as such. Hence, there should be no concern on the part of the City
with respect to its continued use as a residential unit.
If you have any questions or need additional information, please do not hesitate to give
me a call. Otherwise, I would appreciate confirmation from you that the City has no further
concerns with respect to the continued use of Unit 43, Chateau Roaring Fork Apartments as a
residential unit. The unit is under contract to close later this month, so a timely response
would be greatly appreciated.
I will look forwazd to hearing from you shortly.
Sincerely,
PEIRCE BG $ H, P.C.
By:
Fre .Peirce
FFP/hs
Enclosures
cc: Mr. Tony Greene
F:\Files A-L\GREENE\Chateau Roaring ForklBendon 86-0] Lettecdoc
IIIIlI hill III~ti~ sill 111111 VIII VIII III VIII Ill! ill!
408241 10/07/1997 04:09P ND DRVIS SILVI
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TFIIS DEED , Nada this day of OctdDer 03, 1997
between
QIIl1FAD DHVEfil~D1@71' O~ItIIY
of the County of r~11'KIN end Skate of
Ce~le.I1 oCf the fi__ 'rstpart~a,d
720 8. HYI~+N AVIIiOE
xhose legal address is ASR13T, W 816]].
of the County of P11R11I aM state of Colorado, of the second part.
YITNESSETN, That the said party of the first part, for end in crosideratim of the cum of t'~•"'$395,000.D09
HUNDRED NINETY FIVE THOJSAND DOLLARS ANO 00/700THS
the said party of tke first part in hand paid by the said party of the second part, the receipt whereof is hereby
noxledged and cmfeued, has bargained, granted, sold arc! cmveyed, and by these presents does grant, bargain, sal
nay end cmfirm, unto the said party of the second pang his heirs aId assign forever, all the follaxing describe
or parcel of land, siSUata, lying and being in [he
ne of PIIY.IIi and state of Colorado to wib
N~TLODI @1TP ND. -43, ®i7II+D ROARE~ PCYiR_APAR14IIN15,_ A3.981i7di fN '1>~
krgxn as s<reet nuiber 1039 EAST 1Z701+FR, 18fIT 43 ASPFIfr QO 816]1
TOGETHER xith all and singular snd hared! Laments end eppurtenatces thereto belonging, or in enyYise epperteiniig
end the reversion and reversion, remainder and rereirders, rents, issues end profits-thereof; end all the estate,
right, title, interest, claim end demaM whatacever of the said party of the first part, either in tax or equity,ot,
in and to the above bergairsd premises,, with the hereditaments and appurtecencea.
TO NAVE AND TO XOLD the said premises above barge lned end described, ui th the appurtenances, into the said party of
the second part, his heirs antl assign forever. Ard the said party of the first pare, for himself, his hel rc, eXecutarc,
Ind adni nisi retars, does covenant, grant, bergainy ud agree to and xi Yh the said Arty of the aecoM pert, his heirs and
a3si gns, that at the Sims of the enealing and delivery of these presents, he is well seized of the pram ses shove
conveyed, hea good, sure, perfect, absolute aM indefeasible estate of iMeritance, in lax, in fee simple, end has good
right, full poxar aM laxfuL authority tg grant, bargain, sell and convey the same 1n irenner and form as aforesaid, and
that the sass era free end clear Iran all former eM other grants, barge ins, sales, Berm, canes, essecsngnts and
enbudarencea of xhetever kind or nature soever;
SUBJECT TD THOSE !UTTERS AS SET FORTH IN ATTACHED EXHIBIT "A" AND MADE A PART THEREOF. -
end the eboved bargained pranises in the quiet end peaceable possessim of said party of the secoM part, his heirs aM
assigns egai nst all aM every persm or person lawfully claiming gr to claim the xhole or erry pert thereof, the said
party of the first part shell and ui ll WRRANT AND FOREVER DEFEND. The singular nurber shell include the plural,
the plural the singular, aM She use of any gender shell be applicable to all genders.
IN YITNESS YXEREOF, the said party of the ffrse part hea hereunto ce[ hie ha,d a,d seal the day end year firs[ above
MrlTt m.
sTarE aF caDRADo
County of
fr~.,~., > ss.
~C~s•4 r
William L. Wailers. 1V
The foregoing inctrunent xas ackrwuledged before me on this dry of OCtOl7P2' 03r 1997 ,
w ~i~1 D:. m`-~d~e~o5
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EXHIBIT A
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909141 30/07/1997 04:08P YN DDVIS 9ILVI
2 eF 2 R 11.00 D 19.50 N 0.00 PITKINCO COLORRDO
RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED HY THE AUTHORITY OF THE
UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED August 29, 1958,
ZN BOOK 185 AT PAGE 69.
RESERVATIONS AND EXCEPTIONS STATING, "THAT NO TITLE SHALL BE HEREBY
ACQUIRED TO ANY MINE OF GOLD, SILVER, CINNABAR OR COOPER OR TO ANY VALID
MINING CLAIM OR POSSESSION HELD UNDER EXISTING LAWS," AS CONTAINED IN DEEDS
RECORDED OCTOBER 26, 1887 ZN BOOK 59 AT PAGE 60, RECORDED DECEMBER 2, 1887
IN BOOK 59 AT PAGE 118, RECORDID MARCH 30, 1988 IN BOOK 59 AT PAGE 410,
RECORDED JUNE 13, 1888 ZN BOOK 59 AT PAGE 445, RECORDED NOVEMBER 19, 1888
IN BOOK 59 AT PAGE 505, RECORDED NOVEMBER 24, 1888 IN BOOK 59 AT PAGE 508,
AND RECORDED DECEMBER 7, 1888 IN BOOK 59 AT PAGE 524.
THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS AND RESTRICTIONS,
WHICH ARE A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A, AS
CONTAINED IN INSTRUMENT RECORDED December 31, 1969, IN HOOK 245 AT PAGE
666.
EASEMENTS, RIGHTS OF WAY AND OTHER MATTERS AS SET FORTH ON THE CONDOMINIUM
MAP OF CHATEAU ROARING FORK APARTMENT CONDOMINIUMS RECORDED IN PLAT BOOK 4
AT PAGE 76.
TERMS, CONDITIONS, PROVISIONS, OBLIGATIONS AND EFFECTS OF ARTICLES OF
INCORPORATION OF CHATEAU ROARING FORK CONDOMINIUM ASSOCIATION RECORDED
.DECEMBER 31, 1969 IN BOOK 245 AT PAGE 689, AND RESOLUTIONS OF THE BOARD OF
DIRECTORS RECORDED MARCH 26, 1992 IN BOOK 672 AT PAGE 932 AND RECORDED
APRIL 29, 1992 ZN BOOK 676 AT PAGE 53.
WARRANTY DEED
THIS DEED, made this 15 day of JULY
1999, between NELIGH C. COATES, JR.
M OF THE COUNTY OF PITKIN, 5TATH OF CO ~ -
y~^,'~~ GRANTOR, AND PATSY M. GREEN AND BEN,7AMIN GREEN
Z
W ~[~ GRANTEE
a y~~ whose legal address is 50 HAZEL AVENUE
)f2H.•[L HIGHLAND PARK, IL 60035
U "I S COiINTY OF LAKE, STATE OF IL
a wITNE33ETH, That for and in consideration of the sum of ten dollars
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the grantor has granted, bargained, sold and
conveyed, and by these presents does grant, bargain, sell and convey and
confirm unto the grantee, his heirs and assigns forever, all the real
property together with improvements, if any, situate and lying and being in
the County o£ PITKIN, State of COLORADO, described as follows:
CHATEAU ROARING FORK APARTMENTS CONDOMINIUM UNIT NO. 93,
according to the Condominium Map for Chateau Roaring Fork
Apartments appearing in the records of the County Clerk and
Recorder of Pitkin County in Plat Hook 4 at Page '16 and as
O defined and described in the Condominium Declaration for
M Chateau Roaring Fork Apartments in such records in Book 245
11' at Page 669.
TOGETHHR with all and singular the hereditaments and appurtenances
thereto belonging, ox in anywise appertaining, and the reversion and
reversions, remainders, rents, issues and profits thezeof, and all the
estate, right, title, interest, claim and demand whatsoever of the grantor
either in law or equity, of, in and to the above bargained premises, with
A the hereditaments and appurtenances.
^~~1 TO HAVE AND TO HOLD the said premises above bargained and described,
y~ ~ with the appurtenances, unto the grantee, his heirs and assigns forever.
~ And the Grantor, for himself, his heirs and assigns, does covenant, 4rant,
a ~ bargain, and agree to and with the Grantee, his heirs and assigns, that at
the time of the ensealing and delivery of the presents, he is well seized of
Dd the premises above conveyed, has good, sure, perfect, absolute and
~~ indefeasible estate of inheritance, in law, in fee simple, and has good
t ~` right, full power and lawful authority to grant, bargain, sell and convey
f3 ~~ the same in manner and form as aforesaid, and that the same are free
.~g~` and clear Erom all former and other grants, bargains, sales, liens, taxes,
~~` asse cements, encumbrances and restrictions of whatever kind or nature
soever, except those matters as set forth on Exhibit "A" attached hereto
and incorporated herein by reference.
The grantor shall and will WARRANT AND FOREVER DEFEND the above bargained
~ ~ premises in the quiet and peaceable possession of the grantee, his heirs
_~ t and assigns, against all and every person or persons lawfully claiming the
~_ z whole or any part thereof. The singular number shall include the plural,
~.~o the plural the singular, and the use of gender shall be applicable to all
wry= ~ genders.
~• w "' r
Y ~~~
~M,~i
~> d ~1 LZGH G COATES, JR.
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-m n ~ COUNTY OF PITKIN ) ss.
~ c
~~ $ ~ The foregoing instrument was acknowledged before me this )'j day of SULY
w m 19 99 by NELIGH C. GGATE$, JR.
=^ti
~m ~ WITNESS my hand and official seal ,,.
N 1,
_~ my commission expires: Notary Publ' ,.F~e.. "-
r• [E ,
-vw Joy S FYpare/NStery Putlb r'i'.'NCS4gF ': ~:'
M/Gpnmaeimal~l~,.'.Rra4/f~'/~ ry "~. PUBLIC ~ 4:
PaPayCdaado 61311 ~'~,~ ec~~°¢'~~
axxxaxr "z,"
1. Taxes for the year 1999 not yet due or payable.
2. Reservations and exceptions as set forth in the Deed from the City of
Aspen recorded in Book 59 at Page 60, 116, 410, 445, 505, 508 & 524
providing as follows: "That no title shall be hereby acquired to any
mine of gold, silver, cinnabar or copper or to any valid mining claim
or possession held under existing laws".
3. Terms, conditions, provisions, obligations, easements, restrictions
and assessments as set forth in the Condominium Declaration for
Chateau Roaring Fork. Apartment Condominiums recorded in Book 245 at
Page 666, deleting therefrom any restrictions indicating preference,
limitation or discrimination based on race, color, religion, sex,
handicap, familial status or national origin.
4. Terms, conditions, provisions, obligations and all matters as set
forth in the Articles of Incorporation of Chateau Roaring Fork
Apartments Condominiums recorded in Hook 245 at Page 689.
5. Terms, conditions, provisions and obligations as set forth in
Resolution of The Board of Directors of The Chateau Roaring Fork
Condominium Association recorded March 26, 1992 in Book 672 at Page
932.
6. Terms, conditions, provisions and obligations as set forth in
Resolution of The Chateau Roaring Fork Condominium Association, Inc.
declaring the acquisition, maintenance, repair and replacement of
lawn and patio Furniture to be a common expense, recorded April 29,
1992 in Book 676 at Page 53.
7. Easements, rights of way and all matters as disclosed on Plat of
subject property recordedin Plat Book 4 at Page 76.
i iuii~ u~ii mia iu~ lull iiiiai Puri iii nii~ ui i-ii
433403 07/IS/19gg 04:20P ND D0VI5 SILYI
2 of 2 R 38.00 D 25,00 N 0.00 PITKIN CDUNTy C0
::ITY +i F' ASPEN ~ 1 $_
DATETri ~:cPM WRNO ')aTE °rFROIIlt{gETT
SPECIAL WARRANTY DEED
THIS DEED, made thisl3*day of December 2001, between PATSY M. GtzEEN a/k/a
PATSY M. GREENS and BENIAMIN GREEN a/k/a BENIAMM GREENS, 50 Hazel Avenue, Highland
Pazk, IL 60035 ("Grantors") and GREENE(ROARMG FORK, L.P., a Delaware Limited Partnership,
50 Hazel Avenue, Highland Pazk, IL 60035 ("Grantee").
WITNESSETH, That Grantors, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, have granted, bargained, sold and conveyed, and by these presents do
grant, bargain, sell, convey and confirm, unto Grantee, its successors and assigns forever, all the
real property, together with improvements, if any, lying and being in the County of Pitkin, State
of Colorado, described as follows:
CHATEAU ROARING FORK APARTMENTS CONDOMINIUM UNIT NO.43, according to [he
Condominium Map for Chateau Roaring Fork Apartments appeazing in the records of the
County Clerk and Recorder of Pitkin County in Plai Book 4 a[ Page 76 and as defined and
described in the Condominium Declazation for Chateau Roaring Fork Apartments in such
records in Book 245 at Page 689.
COUNTY OF PITKIN, STATE OF COLORADO
as known by street and numbers as: 1039 Cooper Avenue, Aspen, CO 81611
TOGETHER with all and singular the hereditaments and appurtenances thereunto
belonging, or in anywise appertaining, and the reversion and reversions, remainder and
remainders, rents, issues and pro£ts thereof and all the estate, right, title, interest, claim and
demand whatsoever of Grantors, either in law or equity, of, in and to the above bargained
premises, with the hereditaments and appurtenances.
TO HAVE AND TO HOLD the said premises above bargained and described with the
appurtenances, unto Grantee, its successors and assigns forever. And Grantors, for themselves,
their heirs and personal representatives do covenant and agree that they shall and will
WARRANT AND FOREVER DEFEND the above-bargained premises in the quiet and
peaceable possession of the Grantee, its successors and assigns, against all and every person or
persons claiming the whole or any part thereof, by, through or under the Grantors.
above.
IN WITNESS WHEREOF, Grantors have executed this deed on the date set forth
STATE OF ILLINOIS )
ss.
COUNTY OF Cook )
~-
The fcregoing Special R'arranty Deed was acknowledged before me this /3 day of
December 2001 by Patsy M. Green a/k/a Patsy M. Greene and Benjamin Green a/k/a Benjamin
Greene.
WITNESS my hand and official seal.
My commission expires:
IIIIIIII IIIIIIIII III IIIIIIIIIIIII III III 4619998 tz ]ta
sllvIR IX1VI5 PITNIN COLWTY co R 5.00 D 0.00
Return to:
Austin Peirce 8 Smith
600 E. Hopkins, Suite 205
Aspen, Co. 816'11
Attn Fred Peirce
--,c`/ ,(~ `~f~
Notary Public
. .~.Y11\tiMN)tiNY'+V MM'KM4Ye...
OFFICIAL SEAL
SANDRA M NAGRANT
NOTARY PUBLIC. STATE OF Illllglb
MY COMMIi:SF'fN r%gRE9~i//IYpD]
•.\1M1an ~ ~. .....Y.MRO.'vN..
AFFIDAVIT OF BENJAMIN GREENE
STATE OF ILLINOIS
COUNTY OF LAKE
}
} ss.
}
I, Benjamin Greene, being fast duly sworn, depose and state that:
I am over the age of twenty-one yeazs and a resident of Pitkin County, Colorado.
2. I purchased a unit in the Chateau Roaring Fork Apartnents (a Condominium) prior to
the completion of construction of the complex in 1969 and have owned one or more units in
Chateau Roaring Fork Apartments since that time.
3. I purchased Unit 43 of the Chateau Roaring Fork Apartments from Neligh C. Coates,
Jr. in July 1999 and have owned it since, either individually or in the name of a family
limited partnership.
4. To the best of my recollection, Unit 43 of the Chateau Roaring Fork Apartments was
used exclusively as a residential unit from the time of the development of Chateau Roaring
Fork Apartments until the unit was sold to me in 1999.
5. Sometime after I purchased Unit 43 I was approached by Michael Spalding, formerly
of Coates, Reid 8c Waldron Property Management ("CRWPM"), who had recently left
CRWPM and formed his own property management company. He asked whether he could
rent Unit 43 as an office for his company. Since the Condominium Documents provided that
I could use Unit 43 as an office, I agreed to allow Mr. Spalding to rent Unit 43 as an office.
However, for reasons not completely cleaz to me, the City would not allow Mr. Spalding to
occupy Unit 43 for a property management office, so the anticipated lease was never
completed and I rented the unit for residential use.
6. Except for the failed attempt to rent Unit 43 to Mr. Spalding for office purposes, Unit
43 has always been used for residential purposes, either short or long term rentals, during my
ownership of Unit 43, from July 1999 to the present.
Further Affiant sayeth not.
STATE OF ILLINOIS }
} ss.
COUNTY OF LAKE }
Ben' Green
The undersigned Notary Public hereby certifies that on the ~cJw( day of August 2007,
Benjamin Greene personally appeazed before me, who being by me fast duly sworn, declared that he
is the person who signed the foregoing Affidavit, and that the statements therein contained are true.
My Commission expires / C /l ~~~~J~
(SEAL)
,Public
"O~'EICIAL SEAL" ~
J. EVA THOMPSON
3C:\~L~PIENP9 PIIO 5 ~~t'~®LjR9NMA\EglFyppgY~jN'f~ LES\CONTENT.SES\>%NI?1.12N\AFFIOVT-BG. COC
M Commission Ex Tres 09/119`!12007
AFFIDAVIT OF NELIGH C. COATES. JR.
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
I, Neligh C. Coates, Jr., being fast duly sworn, depose and state that:
I am over Ure age of twenty-one yeazs and a resident of Pitkin County, Colorado.
2. I was a shazeholder in the development company lmown as Chateau Development
Company (the "Development Company") that was the developer of the Chateau Roaring
Fork Apartments (a Condominium), along with William L. Wallen, III ("Buddy Wallen"),
now deceased.
3. The Development Company developed the Chateau Roaring Fork Apartments and
filed the Condominium Declaration and Condominium Map therefor in the Pitkin County
real property records on December 31, 1969.
4. Since the date of its development, Unit 43 of the Chateau Roaring Fork Apartments
has been used exclusively as a residential unit. Inifially, Chateau Development Company
retained ownership of the Unit 43 and used it as a residential unit for employees of Chateau
Roaring Fork or Coates, Reid & Waldron Property Management.
5. In October 1997, Chateau Development Company conveyed Unit 43 to me and I
rented the unit for shortand/or long term residential rental use until July 1999, at which time
I conveyed Unit 43 to Patsy and Benjamin Greene. At no time during the ownership of Unit
43 by either Chateau Development Company or me was it ever used for any other purposes
than as a residential unit.
Further Affiant sayeth not.
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
Neligh C. Coates, J~ r. T--
The undersigned Notary Public hereby certifies that on [he ~~day ofAugust 2007, Neligh
C. Coates, Jr. personally appeared before me, who being by me first duly sworn, declazed that he is
the person who signed the fpregoing Affidavit, and that the statements therein contained are true.
// __x4~
IN WITNESS WHEREOF, I have hereunto set my hand and seal this(y day of August
2002 /,, ~,t
My Commission expires l~ ~~ !
(SEAL)
SPpY PLe! ~~Le~ CNn-l'A"!~
2~•'~ •o
DEBBIE A i Notary Public
HAUER
My Commission Ezpires 061048011
:,~,.a,~.w..o.,.,~..u.wwo,,,...~.,,,a.,.....M.w., ..,..,oun,,,u.,~-o,.~
AFFIDAVIT OF JOHN R. FRENCH. JR.
STATE OF COLORADO }
} ss.
COUNTY OF PITKIlV }
I, John R. French, Jr., being fast duly sworn, depose and state that:
I am over the age oftwenty-one yews and a resident of Pitkin County, Colorado.
2. I worked for Coates, Reid & Waldron Property Management, Inc. ("CRWPM")from
1974 to 2005 and am familiaz with the Chateau Roazing Fork Apartments (a Condomuuum)
and specifically, with Unit 43 thereof.
3. For the entire time during which I was employed by CRWPM, Unit 43, Chateau
Roaring Fork Apartments was used as a residenfial unit, either for employees of Chateau
Development Company, or as a rental unit for short or long term tenants. At no time was it
ever used by Chateau Roaring Fork, Chateau Development Company or CRWPM as an
office. As an aside, when I met my wife in 1973, she had lived in Unit 43, Chateau Roazing
Fork with a roommate and was employed by CRWPM at that time.
4. CRWPM did use Units 43A, 43B and 43C for office purposes periodically over the
course of my employment at CRWPM, but never Unit 43.
Further Affiant sayeth not.
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
ohn R. French, Jr.
.it.
The undersigned Notary Publichereby certifies that on the day of August 2007 John R.
French, Jr. personally appeazed before me, who being by me first duly sworn, declazed that he is the
person who signed the foregoing Affidavit, and that the statements therein cont/aired aze tme. .
IN WITNESS WHEREOF, I have hereunto set my hand and seal this L.P day of August
2007.
My Commission expires ~ /l~/~
DEBBIE A i
HAUER Notary Public
My Commissinr. p,~;,Pt r1610/p011
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys At law
boo E. Hopkins Avenue
Suite zo5
Aspen, Colorado 816u
Frederick F. Peirce
Thomas Fenton Smith*
Daniel J. Sullivan
Ronald D. Austin
OF COONSEL
*Also.4dmitted in Delaware
HAND DELIVERED
June 14, 2007
Mr. Chris Bendon, Director
CITY OF ASPEN COMMUNITY DEVELOPMENT.
130 S. Galena, Third Floor
Aspen, CO 81611
Telephone
(97o)9z5-z6oo
Facsimile
(97o)9z5-47zo
Email Addresses
fpeirce@aps-pc.com
tsmiih@aps-pc.com
dsulliuan@aps-pc.com
RE: Chateau Roaring Fork Apartments (a Condominium); Affidavit of Nick
Coates
Dear Chris:
Pursuant to our recent telephone conversations, I am forwarding herewith an Affidavit
from Nick Coates regarding the approvals for the "Business Units" at Chateau Roaring Fork
Apartments. Nick was one of the developers of the property and cleazly recollects that the
"Business Units" were approved, constructed and inspected as residential units; the Business
Unit and Office Space designations to provide flexibility to convert to offices in the future.
Please let me know when you anticipate this question will be presented to City
Cotmcil and forwazd any information packets you prepaze for the Council. Thanks Chris, I
will look forward to hearing from you shortly.
PEIRCE & S TH, P.C.
FFP/hs
Enclosure
cc: Mr. Tony Greene
AFFIDAVIT OF NELIGH C. COATES. JR.
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
I, Neligh C. Coates, Jr., being first duly sworn, depose and state [ha[:
I am over the age of twenty-one yeazs and a resident of Pitkin County, Colorado.
2. I was a shareholder in the development company known as Chateau Development
Company (the "Development Company") that was the developer of the Chateau Roaring
Fork Apartments (a Condominium), along with William L. Wallen, III ("Buddy Wallen"),
now deceased.
3. The Development Company developed the Chateau Roaring Fork Apartments and
filed the Condominium Declaration and Condominium Map therefor in [he Pitkin County
real property records on December 31, 1969.
4. When the Condominium Declaration was prepared, certain units, including Unit 43,
were designated as "Business Units." Pursuant to the terms of Section 11 of the
Condominium Declazation, all units not designated as Business Units were to be used and
occupied solely as residential units. The Declaration provided that the Business Units "may"
be used for business purposes. It was the intent of the Development Company, due to their
belief that office uses would increase in value in Aspen in the future, to allow the "Business
Units" to be used for business purposes in the future, should the unit owners so desire.
However, all the units designated as Business Units in the Chateau Roaring Fork Apartments
were intended to be available to be used as residential units, were initially constructed as
residential units and when the Chateau Roazing Fork Apartments received its final inspection
from the City of Aspen building department, all of the units, including the Business Units,
were inspected and approved as residential units.
Further Affiant sayeth not.
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
~.~
Neligh C. Coates, Jr.
The undersigned Notary Public hereby certifies that on the _ day of June 2007, Neligh
C. Coates, Jr. personally appeared before me, who being by me first duly sworn, declared that he is
the person who signed the foregoing Affidavit, and that the statements therein contained aze true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ~ / day ofJune 2007
My Commission expires 3 ~ ~ ~
(SEAL) /
N y Public
,..~.......~,a.a,..,,..,~ .R.n~
June 4, 2007
Tony Greene _
705 Castle Creek Dr.
Aspen, CO 81611 THE CITY OF ASPEN
Re: Chateau Roaring Fork Unit #43
Deaz Mr. Greene:
The Community Development Department understands that you are listing Chateau
Roazing Fork Unit #43 for sale. Our records show this unit as a "General Office" and not
as a residential unit. In addition, the listing indicates a remodel that occurred in 2000.
Our department has no record of such building activity.
Our records show that 30 units were constructed in Chateau Roaring Fork Building A
(along the river) and 12 units were constructed in Chateau Roaring Fork Building B (next
to the pool). On the plans, Building B is comprised of four units on each of the three
above grade levels numbered 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, and 42. This
corresponds to the building permit that describes 12 units. Four units are depicted in the
basement level of Building B, numbered 43, 43A, 43, B, and 43C, designated for what
appear to be common uses. Your unit, number 43, is labeled "general office," "office for
manager," and "office for housekeeping" on the plans.
There is a chance that this unit number 43 was converted to a residence without land use
approval or the necessary building permits. This raises some legal and safety questions
that we would like to discuss with you.
In our phone conversation today, you mentioned that the unit was changed from office to
residential about 5 or 6 yeazs ago with City authorization. If you have any record of this
approval, please bring it to our meeting on Monday June 11L", 2 pm.
Sincerely,
~~~
Chris Bendon, AICP
Community Development Director
City of Aspen
.Copy: John Worcester, City Attorney
Fred Peirce, Austin Peirce Smith Attorneys
~r
~ .~~
130 SOUTH GALENA STREET ~ ASPEN, COLORADO S16I1-S97S PHONE I7O.92O.S000 ~ FAX 970.92O.SS97
www. aspengoemm
Printed an Rery<led Paper
='°E' ' B... BUILDING INSPECTION DEPARTMENT
x CIT`' F' SPEN -COUNTY OP PITKIN[' 'r '1RAD0
!-'- 103
ADDRESS
GENERAL
OF JOB ~E. Cooper ~ B Blllldlrig ~ CONSTRUCTION
PERMIT
wHEN SIGNED AND VALIDATED By BUR.DING INSPECTION DEPARTMENT THIS PERMIT AUTHORIZES THE WORK DESCRIBED BELOW.
CLASS OF WORK: NEW ~'1 ADDITION ^ ALTERATION ^ REPAIR^ MOVE ^ WRECK ^
OWNER Bu Wa en
NAME Nick Coates ADDRESS Box 161 PHONE 925 1400
LICENSE LICENSE
o NAME (AS LICENSED) Esco Development Corp. CLASS A NUMBER 2510
F
V .INSURANCE
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~ SUPERVISOR
Lloyd Blue
DATE CERTIFIED
FOR THIS 108 NAME
LEGAL
DESCRIPTION LOT NO. E . 17 1 p i ~ BLOCK NO. 37 ADDITION E . Aspen
SURVEY ATTACHED DESIGN A Llc.
BY pessman
BY Rob Ro PE No B 311
AREA /S.i.) NEIGNT N0. TOTAL OCCUPANCY
AT GRADE L1 200 (FEET) 251 STORIES 3~ UNITS 12 GROUP H DIV.
BASEMENT F'" ^ GARAGE vNGLE ^ ATTACHED TOTAL TYPE 1 FIRE
UNFIN. ~ nO DOUBLE ~ DETACHED ROOMS ~
CONSTR. V ~ 1 1lOUr ZONE III
DEPTH FIRST E sP cP NG lW~n
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AGENCY AUTHORIZED
DATE
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NOTES TO APPLICANT:
ECTIONS OR INFORMATION CALL 945
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FOR INSP
-
FOR All WORK DONE UNDER THIS PERMIT THE PERMITIEE ACCEPTS FULL RESPONSIBILITY FDR as
.VALUATION
COMPLIANCE WITH THE UNIFORM BUILDING CODE. THE COUNTY ZONING RESOLUTION OR CITY ~
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ZONING ORDINANCE, AND ALl OTHER COUNTY RESOLUTIONS OR CITT ORDINANCES WHICHEVER O
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APPlIES .
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SEPARATE PERMITS MUST BE OBTAINED FOR ELECTRICAL. PLUMBING AND HEATING, SIGNS,
PLAN
TOTAL FEE
SWIMMING POOLS AND FENCES.
PERMIT EXPIRES 60 DAYS FROM DATE ISSUED UNLESS WORK IS STARTED.
FILEC' T P
50
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REQUIRED INSPECTIONS SMALL BE REQUESTED ONE WORKING DAY IN ADVANCE, DOUBLI: CHECK ^ .
~ 168.75
aLL iIMAL INSPECTIONS SNAL E'(FADE ON ALL IT[Md Oi WORK BEFORE OCCUPANCY IS PERMITTED. FEE ~ CASH
THIS BU ILOING SHA NOT E OCCUPIE NTI / RTIFICATE OF OCCUPANCY HAS BEEN ISSUED. ~
~ BUILDING DE PARTME
FOR VIOLATION OF ANY LAWS GOVERNING SAME.
PERMIT SUBJECT REV CATIO SUSP SI ' J ~
SIGNATURE ~/~
OF
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APPLICANT: "'~ APPROVAL BY 1 DATE
NLY DaTE PERMIT N0. LICENSE ~ RECEIPTS CLASB AMOUNT
THIS FORM IS A PERMIT O
WHEN VALIDATED HERE ~~ g/12/69 9A_-
'%:%l7~
{
., ._.____._ _.~.. G~,h,~ 7~
LAW OFFICES
FREILICH, MYLER, LETTNER & CARLISLE
IN ASPEN COLORADO
ATTORNEYS AT LAW
DAVm 1. MYLER P.C.'
E. MICHAEL HOFFMAN'
SHANE I. HARVEY'
numeonm
A PARTNERSNIP INCLUDING PROFESSIONAL CORPORATIONS
106 SOUTH MILL STREET
SU[TE 202
ASPEN, COLORADO 81611
IN KANSAS CTTY, MISSOURI
FRED.ICR, LEITNER @ CARLLRLE
FACSIMILE
(970) 920-4259
TELEPHONE
(970) 920-1018
ATTORNEYS Ai LAW
ROBERT H. FREII,ICH, P.C.
MARTPI L. LEITNER. P G'
RICHARD G. CARLISLE, P.C.'
STEPHEN 1. MOORE, P.C'
S. MARK WFRTE
KYLE E. FOOTE'
.wsnrlm m ua. u'. vr. xc
CERTffdD LAND USE PLANNERS
N9CHAEL 1. LAUER, AICP
IENNffER K. BARRETf, AICP
KBrt S. B0.0PHY, AICP
May 16, 2000
Ms. Sazah Oates
Pitkin County Community Development
li0 S. Galena
Aspen, Colorado 81611
Re: Operations of Spalding Properties at Chateau Roazing Fork
Dear Sazah:
This law firm represents Benjamin Green and Michael Spalding in connection with the use of Unit
43 by Mr. Spalding's business, Spalding Properties, and other issues raised in your letters of April
6 and18, 2000, to Messrs. Green and Spalding.
Spalding Properties is in final negotiations with the Chateau Roazing Fork Homeowners Association
to be its property manager. Mr. Spalding believes that the contract term will begin on July 1, 2000.
In your letter to Mr. Spalding of April 18, you asked that he comply with all requirements of the
Residential Multi-Family zone district within 30 days. According to your letter, compliance would
require the company to limit its activities in Unit 43 to those directly benefitting Chateau Roaring
Fork. Curtailing his operations in this manner in so short a period will cause extreme hazdship to
Mr. Spalding and his company. For that reason, and to provide time to establish a solution of the
other issues raised in this correspondence, Mr. Spalding hereby asks that he be allowed until July 18,
2000, in which to comply with the demands made in your letter as such demands may eventually
,be m~fied by subsequent_ action of the Cites This 60 day extension should allow for an orderly
boy ~/ 'solution of the problems described i-- n yourett-er.
~~ M~MNext, I request that the City clarify certain positions outlined in your letter of Apri16 to Mr. Green.
In that correspondence, you stated that Mr. Green had to seek approval from the Growth
Management Commission for a change in use of Unit 43. Although you later wrote Mr. Spalding
that receipt of this approval was unnecessary,
ask that you confirm that de 'ion. More
~~~Gi~ ~~
-~-
FREILICH, MYLER, LEITNER & CARLISLE
Ms. Sazah Oates
May 16, 2000 '
Page 2
importantly, Mr. Green seeks clarification of the need to comply with the Multi-Family Housing
Replacement Program ("NIFHRP"). Unit 43 has been consistently used for three sepazate purposes
throughout its 32-yeaz existence. At vazious time during that period, the Unit was alternately put to
commercial and residential use. The unit was utilized as an office for maintenance and housekeeping
activities by former owner Bud Wal]en in his property management business (including for storage
of necessary supplies) particularly during its eazly yeazs. More recently, it has been used primarily
for residential purposes, either as a short-term tourist rental or for seasonal use.
According to the Aspen Land Use Code (the "Code") the MFHRP applies to "any resident multi-
family housing ("RMF housing") ... in the City of Aspen."' When such housing is to be
demolished (including by "conversion to non-residential use"'-), the Owner must first receive from
the Community Development Director either a certificate of compliance or a certificate of
exemption. A certificate o exemptio is available after the owner demonstrates to the Aspen /
Pitkin Count Housing Authority that the "dwPllinn n~ir_' i.~XPmpt &au~thr 11QFuR p. A certificate
compliant will be issued only when the owner has committed to replace 50% of the squaze
footage of the "demolished" RMF housing. -
The Code defines RMF housing, in relevant part, as a "multi-family residential building, or a
dwelling unit in amulti-family building, which has historically been occupied by a workine
residents .excluding dwelling units which have been utilized exclusively as tourist
accommodations."' "Working resident" is defined, in turn, "a person as defined in the Affordable
Housing Guidelines." In the "Purpose" section ofthat document, the Aspen /Pitkin County Housing
Authority states that the housing program is intended "to provide housing opportunities for persons
who are or have been actively employed orself-employed in Pitkin County who provide goods and
services to individuals, businesses or institutional operations in Pitkin County.""
Black's Law Dictionary defines the word "exempt" as "[t]o relieve, excuse, or set free from a duty
...imposed upon the general class to which the [property] exempted belongs."' In the case of the
MFHRP, owners of RMF housine aze subject to the replacement obligation. Those owners must
Code, § 26.530.030.
'- Definition of "Demolition" found in the Code, § 26.104.100.
' Definition of"Residential multi-family housing" found in the Code, § 26.104.100 (emphasis
supplied).
Asnen/Pitkin County 1999 Affordable Housine Guidelines, p. 1.
s 513 (5`" ed. 1979).
FREILICH, MYLER, LEITNER & CARLISLE
Ms. Sazah Oates
May 16, 2000
Page 3
seek an exemption from the Community Development director to avoid the financial costs of the
program. The question raised by the City's attempt to require the owner of Unit 43 to participate in
the MFHRP is "At what point does property become RMF housing?" In our conversation last week,
you said that staff's position is that anv use by resident employees converts a property to RMF
housing. (That position seems to us unreasonably extreme, As mentioned above, Unit 43 has been
employe or ee sepazate purposes over rts~Uyeazltistory. Under staff's interpretation, each time
the Unit was put to some use other than for housing of local workers, its owner was required to
supply 50% of the Unit's squaze footage as mitigation. Such a requirement would have unjustly
penalized the owner for the historical use of the property. The mitigation requirement makes sense
when a property is used solely (or principally) to house local workers. The requirement has only a
,~,] punitive and confiscatory impact when the property is used only periodically for that purpose. That
inequitable result cannot have been the Aspen City Council's intent when it passed the MFHRP. For
that reason, Mr. Green hereby requests for_ an interpretation of Chanter 76 530 of the Code pursuant
to the provisions of Chanter 26 06 Ln the alternative, mulriple use of Unit 43 has existed for many
yeazs. It pre-dates the 1974 zoning change which was important in the Board ofAdjustment's recent
decision in the affiliated Coates Reid & Waldron case. Multiple use of Unit 43 may itself be a
~ o `~" nonconformity, allowed under the Code in Chapter 26.312. Mr. Green requests a code interpretation
on this issue as well.
Finally, Messrs. Green and Spalding hereby request an amendment to the Code which would allow
Spalding Properties to use Unit 43 to provide property management services to both Chateau
Roazing Fork and Chateau Eau Claire. "Accessory buildings and uses" are permitted in the R/MF
y, ~~ zone district.b An "accessory structure or building" is one that is "supportive, secondary and
~ I subordinate in use and/or size to the principal building or structure on the same parcel or lot." An
-1~ ~' "accessory use" "is supportive, secondary and subordinate to the principal use of a lot
,~ building or structure."' Both definitions a ,parcel,
,I'~ rmprovements on the same lot. ppeaz to apply only to buildings or uses that service other
It is appazent that a unit in one project is not permitted to "support"operations in another project
because of adverse impacts which might be caused to the first project and its surrounding
neighborhood. Dennis Green alleges several ofthese impacts on behalfofthe "East End Concerned
Citizens" in his letter to the City of February 7, 2000. Mr. Green's concerns arise from use of
Chateau Roaring Fork units by both Coates Reid & Waldron and Spalding Properties in support of
"hundreds of units strewn across the [Pitkin County] azea."
e Code, § 26.710.090(B)(5).
Definition section, Code, § 26.104.100.
FREH,ICH, MYLER, LEITNER & CARLISLE
Ms. Sarah Oates
May 16, 2000
Page 4
As you know, Chateau Roaring Fork is located just across Cooper Avenue from Chateau Eau Claire.
There will be few additional impacts on Chateau Roaring Fork and the Durant Street neighborhood
caused by Spalding Properties' use of Unit 43 as a basis of operations strictly for Chateau Roaring
Fork and Chateau Eau Claire. In fact, allowing Unit 43 to be utilized in this manner will promote
efficiency by allowing slightly more intensive use of Chateau Eau Claire by tourists and local
workers. No more employees of Spalding Properties are required to service both projects than are
required by Chateau Roazing Fork alone. Interestingly, one azea of the general common elements
at Chateau Roaring Fork is jointly owned by the homeowners associations of the two projects. If
Spalding Properties were to operate from that azea, which is immediately adjacent to Unit 43,
presumably its use would be "accessory" to both projects under the Code provisions recited above.
We ask that the City of Aspen amend Section 26.71.0.090 of the Code to allow buildings or parts
thereof which aze ocate I~aJel- across the street from a ermltted use to be treated as
------~'--_--- p _
"accessory" to than use so that Unit 43 in particulaz may be used to service property located at
~ ~ Chateau Eau Claire.
~ ~ 'Please let me know if you need additional information or any fee to process the requests made in this
correspondence. Thank you for your assistance.
Sincerely,
FREILICH, MYLER, LEITNER & CARLISLE
E. Michael Hoffman
cc: John Worcester, Esq.
Benjamin Green
Michael Spalding
,-„ .
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys At Law
60o E. Hopkins Avenue
Suite 205
Aspen, Colorado Sr6u
Frederick F. Peirce
Thomas Fenton Smith*
Daniel J. Sullivan
Ronald D. Austin
OF COUNSEL
'Also Admitted in Delaware
August 27, 2007
YIA'HAND DELIVERY
Mr. Chris Bendon
COMMUNITY DEVELOPMENT
DIRECTOR
130 South Galena Street
Aspen, CO 81611
~~,~~
~~
Telephone
(970)925-z6oo
Facsimile
t97o)9z5-4720
Email Addresses
jpeirce a~ap5-pc:com
tsrnithC~aAS-DC com
dsu((ivan (n~aUS_pc.com
Re: Appeal. of Development Director's Determination Re: Chateau
Roaring Fork Unit #43 (August 15, 2007)
Dear Chris:
We represent Greene/Roaring Fork, L.P, the owner of Unit 43, Chateau Roaring
Fork, in Aspen, and its general partner, Tony Greene.
By letter dated August 15, 2007, you determined that this property was intended
to function as an accessory use and has not been entitled as a residential unit.
Pursuant to Sections 26.222,26.303, 26.306, and 26.316, this letter constitutes
Mr. Greene's notice of appeal of this determination. I am not aware of any form
prescribed by your office for this purpose, but if there is one please notify me as soon as
possible.
It is my understanding that this appeal will be heard and decided by the Aspen
City Council. Please notify me of the scheduled hearing date. It is Mr. Greene's position
that Unit #43 has been, and continues to be, entitled to be used as a residential unit. After
,.~, . .
°..,.r .,
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys nt Law
Mr. Chris Bendon
August 27, 2007
Page 2
notification of the hearing date, I shall provide you with a letter identifying with
specificity the explanation of our position in this case.
Thank you for your cooperation.
Very truly yours,
AUSTIN, PEIl2CE & SMITH, P.C.
By
Thomas Fenton Smith
TFS/dh
cc: Tony Greene
John Worcester, Esq.
/A,. `-"
~y/ !nN'
APPLICANT:
ATTACHMENT 2 -LAND USE APPLICATION
Name: GREENE;EROARiNG FORK, L.P.
Location: Chateau Roaring Fork Unit #43, 1039 East Cooper Ave., Aspen, CO 81611
(Indicate street address, lot & block number legal description where appropriate)
Parcel ID # (REQUIRED)
Name: Thanas Fenton Smith
Address: AUSTIN, PEIRCE & SMITH, P.C. 600 East Hopkins Ave., #205, Aspen, Cb
Phone #: 925-2600
PROJECT:
Name: SEE ABOVE
Address:
Phone #:
.: rr, yr e+rri,ii,e~iiviv: tp~ease cnecK au mar app~yl:
^ Conditional Use ^ Conceptual PUD ^ Conceptual Historic Devt.
^ Special Review ^ Final PUD (& PUD Amendment) ^ Final Historic Development
^ Design Review Appeal ^ Conceptual SPA ^ Minor Historic Devt.
^ GMQS Allotment ^ Final SPA (& SPA Amendment) ^ Historic Demolition
^ GMQS Exemption ^ Subdivision ^ Historic Designation
^ ESA - 8040 Greenline, Stream ^ Subdivision Exemption (includes ^ Small Lodge Conversion/
Margin, Hallam Lake Bluff, condominiwnization) Expansion
Mountain View Plane
^ Lot Split ^ Temporary Use ~ Other: Appeal of Deve
^ Lot Line Adjustment ^ TexUMap Amendment Director's Det
EXISTING CONDITIONS: (description of existing buildings uses previous approvals etc )
Chateau Roaring Fork is an existing condaninium project, pursuant to the plat
recorded in Plat Book 4 at Page 76 of the records of Pitkin County.
PROPOSAL: (description of proposed buildings, uses modifications etcJ
No change of use requested.
Have you attached the following? FEES DUE: $ 705.00
^_Pre-Application Conference Summary
® Attachment #1, Signed Fee Agreement
^ Response to Attachment #3, Dimensional Requirements Form
^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards
All plans that are larger than 8.5" x 11" must be folded and a floppy disk with an electronic copy of all written
text (Microsoft Word Format) must be submitted as part of the application.
w y
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
A~*reement for Payment of City of Aspen Development Application Fees
CITY OF ASPEN (hereinafter CITY) and GREE~TE/ROAR~~G I'OF.i{, L.P.
(hereinafter APPLICANT) AGREE AS FOLLOWS:
1. AP ICANT h submi ted tp C an a lic ton fo
".ppeal of Deve op~aent ~irec~or s ~eterc$$na~ion rite: Chateau Roaring Fork Unit 43,
(hereinafter, THE PROJECT).
2. APPLICANT understands and agrees that City of Aspen Ordinance No. 4S (Series of
2006) establishes a fee structure for Land Use applications and [he payment of all processing fees is a
condition precedent to a determination of application completeness.
3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed
project, it is not possible a[ this time to ascertain the full extent of the costs involved in processing [he
application. APPLICANT and CITY further agree that it is in the interest of the parties that
APPLICANT make payment of an initial deposit and to thereafter permit additional costs [o be billed
to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue Following [heir
hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity
and will make additional payments upon notification by the CITY when they are necessary as costs aze
incurred. CITY agrees it will be benefited through [he greater certainty of recovering its full costs to
process APPLICANT'S application.
4. CITY and APPLICANT further agree that i[ is impracticable for CITY staff [o
complete processing or present sufficient information to the Planning Commission and/or City Council
to enable the Planning Commission and/or City Council to make legally required findings for project
consideration, unless current billings are paid in full prior to decision.
5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right
[o collect full fees prior to a determination of application completeness, APPLICANT shall pay an
initial deposit in the amount of $ 705.00 which is for _ 3 hours of Community
Development staff time, and if acrual recorded costs exceed the initial deposit, APPLICANT shall pay
additional monthly billings to CITY to reimburse the CITY for the processing of [he application
mentioned above, including post approval review at a rate of $235.00 per planner hour over the initial
deposit. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further
agrees [ha[ failure to pay such accrued costs shall be grounds for suspension of processing, and in no
case will building permits be issued until all costs associated with case processing have been paid.
CITY OF ASPEN
By:
Chris Bendon
Community Development Director
APPLICANT
By:
,i 'Thomas n Smith
Dat~ttorney for Applicant
0..tober , 200
Billing Address and Telephone Number:
Required
_AUSTTN, PFTR!`F ~, SMTTHr P C`
600 E. Hopkins Ave, Suite 205
Aspen, CO 81611
C:\Documen[s and Settings\johannahr\DesktopU.UFeeAgree.doc 925-2600
~x~%~ii~ G
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys At Law
60o E. Hopkins Avenue
Suite 205
Aspen, Colorado 81611
Frederick F. Peirce
Thomas Fenton Smith*
Daniel J. Sullivan
Ronald D. Austin
OF WUNSEL
*A(so Admitted in Delaware
February 19, 2008
VIA HAND DELIVERY
CITY COUNCIL
City of Aspen
c/o Mr. Chris Bendon
Community Development Director
130 South Galena Street
Aspen, CO 81611
Telephone
197o)9z5-z6oo
Facsimile
1970)925-4720
Email Addresses
~eirre~ ar~~s_pc:can
tsmith moans-oc cqm
dsulliuan l>?aps-pc.eom
Re: Appeal of Development Director's Determination Re: Chateau
Roaring Fork Unit #43 (August 15, 2007)
Dear Members of the City Council:
This matter is before you on appeal of an administrative decision regarding the
permitted use of Chateau Roaring Fork, Unit #43. A hearing is scheduled for February
25, 2008. We represent the owner of the unit, Greene/Roaring Fork, L.P., whose
principals are Patsy Greene and Benjamin Greene. Mr. Greene and I will be present at
the hearing. This letter is for the purpose of summarizing our position and providing you
with written information.
Chris Bendon has determined that Unit #43 is not a residential unit and may not
be used for that purpose. We disagree, and we ask you to reverse that determination, for
the following reasons:
1. Unit #43 has always been used as a residence. Chateau Roaring Fork was
developed as a condominium project in 1969. From the beginning until the present,
almost 40 years, Unit 43 has been a residential unit. In support of this, attached]~~t~~I"E D
Exhibit A is the August 6, 2007, letter from Fred Peirce to Chris Bendon, with ~~''((tC V
FEB 1 9 208
CITY OF ASPEN
COMMUNITY DEVELOPMENT
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys at Law
Aspen City Council
February 19, 2008
Page 2
attachments. Also attached hereto are additional affidavits of Robert Prusak (Exhibit B),
Ronald M. Gray (Exhibit C), Donald M. Norris (Exhibit D), and Sanford Richman
(Exhibit E). These persons have been owners of condominiums at Chateau Roaring Fork
at various times from 1969 to the present. They all agree that Unit 43 has always been a
residential unit.
2. 1969 Zonin,; allowed residential use but not office use. The land use
regulations in effect in 1969 were very different from today. At that time it was only
necessary to comply with zoning and to obtain a building permit. No development
approval was required, and the recorded plat of Chateau Roaring Fork did not have or
require City approval.
We believe that at that time the property was zoned R-MF-Residential Multi-
Family. A copy of the zoning regulations in effect for that zone district is attached as
Exhibit F. Residential uses were allowed, but office or other commercial uses were not.
In fact, in 2000 the City determined that Unit #43 did not qualify for general office use.
In addition, based upon the minimum lot area requirement for multi-family dwellings,
(1500 square feet) and the size of the lot (2.05 acres), there was more than enough land
area for the 46 residential condominium units.
3. Unit 43 was not an accessory use. The Condominium Declaration, portions of
which are attached as Exhibit G, identifies the project as consisting of 46 separate
condominium units. Unit 43 has always been charged condominium assessments like
any other unit, and it is not identified as a common element of the Association. At the
time that the project was developed, 11 units in the project, including Unit 43, were
identified as "Business Units," even though office and commercial uses were prohibited
by zoning. As stated in the Condominium Declaration and in the affidavit of Neligh
Coates (Exhibit H), this designation was intended to leave open the possibility of such
uses in the future if permitted by the City zoning. This did not occur and all of the units
have remained residential.
4. The records of the Building Department are incomplete. City staff has been
able to locate only one building permit in connection with this project, (Exhibit I hereto).
It is apparent, from the face of the permit that these records are incomplete. This permit
covers only 12 of the 16 units in Building B of Chateau Roaring Fork, and it identifies the
basement as "unfinished." It also refers to a requirement for "corrected plans
incorporating provision in letter of August 11, 1969..." which is missing. The
"basement" where Unit 43 is located was not unfinished, and a building permit was
required to complete the building. Therefore, we do not believe that the building permit
we have sheds any light on the original use of Unit 43.
5. The designation of Unit 43 on the 1969 plat did not control the allowed uses.
On the plat, Unit 43 is identified as "General Office" (Exhibit J). However, the unit also
P:\Files A-L\GREENE\Contract Dispute Unit 43 Chateau Roaring Fork\City Council Ltr. 2.19.08.doc
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys at Law
Aspen City Council
February 19, 2008
Page 3
is identified as containing a kitchen and bath, and the affidavits establish that the unit was
always residential. The plat designation appears to reflect Bud Wallen's intentions when
he recorded the plat. In any event, the plat was not approved by the City, and as long as
zoning requirements were met, the use could change without City approval, which may
have been the case. There is no language on the plat dedicating Unit 43 to office use.
Zoning regulations allowed the residential use which has been in place for decades, and
no zoning regulations in effect at that time required an approval from the City if the plat
designation ("General Office") was not implemented and the actual use was residential.
The Greenes, who were original owners of another unit in Chateau Roaring Fork,
purchased Unit #43 from Nick Coates in 1999. Nick was one of the developers of the
project. The Greenes paid fair market value based on the existing residential use. In
2000, it was determined that a general office use is prohibited. Therefore, unless Chris
Bendon's determination is overturned, the Greenes will have no practical use for the Unit
and they will be deprived of its value. As it stands, Unit 43 can only bean "accessory
use" to the condominium association, even through it has always been identified in the
same terms as the other units and has never been designated as a "common element." We
request that you recognize the historic, legal use of Unit #43 as residential so that this
unfair and unintended outcome will be avoided.
Thank you for your consideration.
Very truly yours,
AUSTIN, PEIRCE & SMITH, P.C.
By
Thomas en mi h
TFS/dh
cc: Tony Greene
Johri Worcester, Esq.
F:\Files A-L\GREENE\Contract Dispu[e Unit 43 Chateau Roaring Fork\City Council Ltr. 2.19.O8.doc
~-
AUSTIN, PEIRCE & SMITH, P.C.
Attorneys At Iaw
60o E. Hopkins Avenue
Suite tog
Aspen, Colorado 8r6u
Frederick F. Peirce
Thomas Fenton Smit~*
Daniel J. Sullivan
Ronald D. Austin
OP COUNSEL
*AlsaAdmitted in Delaware
HAND DELIVERED
August 6, 2007
Mr. Chris Bendon, Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
130 S. Galena, Third Floor
Aspen, CO 81611
RE: Unit 43, Chateau Roaring Fork Apartments (a Condominium)
Dear Chris:
Telephone
(97o)9Z5-26o0
Facsimile
X970)925-4720
Email Addresses
fpeirce@aps pc.com
tsmith@aps-pc.com
dsulliuan@aps pc.com
When fast we spoke regazding your letter to Tony Greene dated March 20, 2006 (sic),
it was my understanding that the City's concerns were that the subject Unit 43 was identified
on the condominium map as "general office" and therefore maynot have been constructed or
inspected for residential use. Accordingly, I spoke with Nick Coates, one of the developers of
Chateau Roaring Fork Apartments and he assured me that Unit 43 was constrrcted and
inspected as a residential unit. The designation as general office on the condominium map and
in the condominium declaration was to allow for that use in the future, should the need or
desire arise. On June 14, 2007, I forwarded to you a letter and affidavit from Nick Coates to
that effect.
Subsequent to that communicafion, I understand from our recent telephone
conversations that you believe Unit 43 was used as an office by Coates, Reid & Waldron
Property Management ("CRWPM") recently and that; therefore, its "conversion" to
residential use was contrary to the City code. This surprised me, as I expressed on the phone,
and I have tried to verify whether that was the case. hi doing so, I asked Stewart Title to
research the chain of title for Unit 43 from the date of development of the Chateau Roaring
Fork Apartments, I spoke again with Nick Coates, and I spoke with Benjamin Greene (Tony's
father), John French, who was a controller with CRWPM for many of the years in question,
and with Mick Spalding, who tried to rent Unit 43 as an office in 2000. Based upon that
(` ~-
AUSTIN, PEIRCE ac SMITH, P.C.
Attorneys At Law
Mr. Chris Bendon, Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
August 6, 2007
Page 2
research, I have the following information that confirms my understanding that Unit 43 was
never used as an office.
According to the title company, the developer of Chateau Roaring Fork Apartments,
Chateau Development Company, owned Unit 43 from the date of development in 1969 until
October 3, 1997, at which time it was conveyed to Nick Coates (see attached deed dated
October 3, 1997 and recorded October 10, 1997 under reception number 409421). Nick
Coates was one of the principals of Chateau Development Company and he has already
submitted an affidavit that Unit 43 was constructed and inspected as a residential unit. I now
enclose another affidavit from Mr. Coates stating that during the Chateau Development
Company's ownership of Unit 43, it was used for solely residential purposes, either for
employees of Chateau Development Company or CRWPM. Further, Mr. Coates confirms in
the attached affidavit that during his ownership of Unit 43, from 1997 to 1999, it was used
solely for either short or long term residential rental purposes. Hence, Mr. Coates confirms the
uninterrupted residential use of Unit 43 from 1969 through July 15, 1999.
On July 15, 1999, Mr. Coates conveyed Unit 43 to Benjamin and Patsy Greene (see
attached deed dated July 15, 1999 and recorded July 15, 1999 under reception number
433463). By deed dated December 13, 2001 and recorded December 19, 2001 under reception
number 461998, Mr. & Mrs. Greene conveyed Unit 43 into a family limited partnership
known as Greene/Roazing Fork, L.P. (a copy of that deed is also enclosed). Tony Greene is
NIr. & Mrs. Greene's son and a member of the family limited partnership. Hence, the Greenes
have owned Unit 43 since it was conveyed by Mr. Coates in 1999.
Mr. Benjamin Greene has been an owner of at least one condominium unit in the
Chateau Roazing Fork Apartments since its inception and, accordingly, is familiaz with the
operations that occurred there since 1969. I enclose an affidavit from Mr. Benjamin Greene
wherein he states that to the best of his recollecfion, Unit 43 was always used for residential
purposes from 1969 until he purchased Unit 43 in 1999. Further, he states that, with the
exception of a failed effort to rent the unit to Mick Spalding for use as a property management
office in 2000, he has always used the unit for short or long term residential rental use.
As an aside, it appeazs that when Mr. Greene attempted to rent the unit to Mick
Spalding for office use, the City objected on the basis of a change in use from residential to
office and further, objected on the grounds that the space could not be used for property
management of another condominium project, i.e., the Chateau Eau Claire. So in 2000, the
City acknowledged the use of Unit 43 as residential and objected to its conversion to use as an
office. As a result of the City's objections, the lease to Mr. Spalding was never completed.
F:1Files A-L\GREENE\Chateau Roaring Fork\Bendon BG-07 Lettecdoc
~-
AUSTIN, PEIRCE Kz SMITH, P.C.
Attorneys At Law
Mr. Chris Bendon, Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
August 6, 2007
Page 3
In addition to the above, I spoke with John French, who worked with CRWPM for
approximately 31 years, from 1974 to 2005. When he met his wife, she was working for
CRWPM and had been living in Unit 43. During his tenure with CRWPM, Unit 43 was never
used as an office and was in fact used for residential purposes. He did mention that units 43A,
43B and 43C were all used for office and related property management purposes by Chateau
Development Company and CRWPM, which may help explain the confusion. I have enclosed
an affidavit from John French to that effect.
As the member of the Green/Roazing Fork, L.P. living in town, Tony Greene has been
responsible for managing the property since 2001. During that time, he has maintained Unit
43 for residential uses, renting it for either short or long term. At no time since 1991 has he
ever rented or used it for office purposes.
Hopefully this letter and the attached affidavits clarify that Unit 43, Chateau Roaring
Fork Apartments has never been used for anything other than residential purposes and was
constructed and inspected as such. Hence, there should be no concern on the part of the City
with respect to its continued use as a residential unit.
If you have any questions or need additional information, please do not hesitate to give
me a call. Otherwise, I would appreciate confirniation from you that the City has no further
concerns with respect to the continued use of Unit 43, Chateau Roazing Fork Apartments as a
residential unit. The unit is under contract to close later this month, so a timely response
would be greatly appreciated.
I will look forward to hearing from you shortly.
Sincerely,
PEIRCE & S , P.C.
By:
Fre e ' .Peirce
FFP/hs
Enclosures
cc: Mr. Tony Greene
F:\Files A-L\GREENE1Chateau Roaring Fork\Bendon 88-07 Lellecdoc
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TftI5 DEED , Made this day of October 03, 1997 '
between
QLATF2FD DEVEL01?E>E`71! MANY
of the Cowty of ~ltlL~N and State of
Co~lof, eld~ C the f__ irstpart~5rd
720 E. HYEIIsW AVE:iOE
xhase legal address is AS'P$7r C'O 816].1
of the Cowty of P11RI21 aM State of Colorado, gf the second ppaart.
Nt TNESSETX, fiat the said party of the first part, for and in consi deratim of the sum of (""'$795,000.00.7
I0.VE HIRmREg NINETY FTYE THOJSAHO DOLLARS 0.ND 00/1007X5
to the said party of the first part in hand paid by the said party of the second part, the receipC whereof is hereby
acknow ledgad'tnd confessed, has bargained, granted, sold and conveyed, and by these presents does grant, bargain, sell;
convey end confirm, wto the said party of the second part, his heirs end assigns forever, ell the following described
or parcel _ rot land, situate; Lying aid being in the
bbwty ~o~~f~ - PL1KIIi end gtafe of Colorado to ui t:
C~IAIDS TfNIT NO~43, I~LTF1sII ROARB~_L~C_APAIYlb]E211'5,. AS SHUPIIl Q'I '133E
known as street.ramber 1039 E4ST fII7P&R, TIIiIP 43 A5PF27, N 816].1
TOCET NER with all end singular and heredi laments aid appurtenances thereto belonging, or in artyuise appertaining
the reversion aM reversiena, remainder and reaeirders; rents, issues eM profits thereof; aM all xhe estate,
t, title, interest, claim and demand whatsoever of the said party of the first part, either in lax or equi ty,of,
nd to the above bargained prmises,, with the heredi Laments and appurtenances.
TD NAVE AND TD HOLD the said premises above bargained end described, with the appurtenances, wto the said party of
semM parQ his heirs an¢ assigns forever. AM the said party of the first part, for Mimselt, hishel ro; execvtars,
edmi nistratars, does covenant, gt•ant, bergaini and dgrea to and with thesaid party of the secmd part, his heirs aM
gns, Shat et the time of the erased li n9 aM delivery ofth ese presents, hats well seized of tae premfses above
eyed, has good, sure, perfect, absolute and indefeasible estate of iMeritence; in Law; in fee simple, and has good
q full power and lawful authority to grant, bargain, sell and convey the same in mower aM form as aforesaid, and
the sane are free aid ~el ear from aLl former end offier grants, bargains; sales; Liens, taxes, assessments and
mbrancea of whatever kind or nature sdever; ~ - -
'ECT TO iNaSE NAT7ERS AS SET FORTN IN ATTACHED EXHIBIT "A!' AND MADE A PART THEREOF.
end the aboved bargained premfses in the quiet end peaceable possession of said party of the 3eedM pare, his heirs and
assigns against all and every persw or persona. lawfully blgiming ar to claim the tAale orarry part thereof; the said
party of the first park shall and will l1ARRANT AXD FOREVER DEFEND. The si ngularnur6er shpll include the plural
the plural the singular, eed Cha use of any geMer shell be applicable to all genders.
IN NI TNESS NNEREDF~ [he said Arty of the first pert has hereinto se[ hie heed end seal the day aM yedr fT rcC above
written.
sTATE OF CfA.ORFDO
County of
~t~_ i aa.
Nillic~m C. Waller, 1V
The foregoing instnmmt we acknowledged before me on this day of October 03, 1997
,M u(~ D:. (rcr~, ~-~PJ.t~S
xy comnig~#)6n'e~Pires ~ 'l9 ' r-t-l~
witness fi .XB'g eRd'•efficial'~al.
.' 4 • Y ~.ye'i
9r= cs j~ ,r4-'
I. U ~~,. Q. i-~:
Fotm NO' C(q.RR','D,'TX 6EE6 •f jA1!EAio tagrap'tic Rec.
- Notary Public
3781551
t.. ~ r"
'~ „
EXHIBIT A
111111 VIII 111111 Illli 111111 VIII VIII III VIII IIII IIII
40943 10/07/1997 04:09P WD DNYIS SILYI
2 of 2 R 11.00 D 39.5@ N 0.00 pITNINCO COLORR00
RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE
UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED Augu3t 29, 1958,
ZN BOOK 185 AT PAGE 69.
RESERVATIONS AND EXCEPTIONS STATING, "THAT NO TITLE SHALL BE HEREBY
ACQUIRED TO ANY MINE OF GOLD, SILVER, CINNABAR OR COOPER OR TO ANY VALIb
MINING CLASM OR POSSESSION XELD UNDER EXISTINQ LAWS, '~ AS CONTAINED IN DEEDS
RECORDED OCTOBER 26, 2887 IN BOOK 59 AT PAGE 60, RECORDED DECEMBER 2, 1887
TN BQOK 59 AT PAGE 118, RECORDID MARCH 30, 1988 IN BOOK 59 AT. PAGE 410,
RECORDED JUNE 13, 1888 ZN BOOK 59 AT PAGE 445, RECORDED NOVEMBER 19, 1888
ZN BOOK 59 AT PAGE 505, RECORDED NOVEMBER 24, 1888 IN BOOK 59 AT PAGE 508,
AND RECORDED DECEMBER 7, 1888 IN BOOK 59 AT PAGE 524.
THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS AND RESTRICTIONS,
WHICH ARE A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A, A5
- - CONTAINED IN SNSTRUMENT RECORDED December 31, 1969, IN HOOK 245 AT PAGE
666.
EASEMENTS, RIGHTS OF WAY AND OTHER MATTERS AS SET FORTH ON THE CONDOMINIUM
MAP OF CHATEAU ROARING FORK APARTMENT CONDOMINIUMS RECORDED IN PLAT BOOK 4
AT PAGE 76.
TERMS, CONDITIONS, PROVISIONS, OBLIGATIONS AND EFFECTS OF ARTICLES OF
INCORPORATION OF CHATEAU ROARING FORK CONDOMINIUM ASSOCIATION RECORDED
DECEMBER 3Z, 1969 IN BOOK 245 AT PAGE 689, AND RESOLUTIONS OF THE BOARD OF
DIRECTORS RECORDED MARCH 26, 1992 IN BOOR 672 AT PAGE 932AND RECORDED
APRIL 29, 2992 IN BOOR 676 AT PAGE 53.
AFFIDAVIT OF NELIGH C. COATES. JR.
STATE OF COLORADO }
} ss.
COUNTY OF PITI{IN }
I, Neligh C. Coates, Jr., being first duly sworn, depose and state that:
I am over the age of twenty-one years and a resident of Pitkin County, Colorado.
2. I was a shareholder in the development company known as Chateau Development
Company (the "Development Company") that was the developer of the Chateau Roaring
Fork Apartments (a Condominium), along with William L. Wallen, III ("Buddy Wallen"),
now deceased.
3. The Development Company developed the Chateau Roaring Fork Apartments and
filed the Condominium Declaration and Condominium Map therefor in the Pitkin County
real property records on December 31, 1969.
4. Since the date of its development, Unit 43 of the Chateau Roaring Fork Apartments
has been used exclusively as a residential unit. Initially, Chateau Development Company
retained ownership of the Unit 43 and used it as a residential unit for employees of Chateau
Roaring Fork or Coates, Reid & Waldron Property Management.
5. In October 1997, Chateau Development Company conveyed Unit 43 to me and I
rented the unit for shortand/or long term residential rental use until July 1999, at which time
I conveyed Unit 43 to Patsy and Benjamin Greene. At no time during the ownership of Unit
43 by either Chateau Development Company or me was it ever used for any other purposes
than as a residential unit.
Further Affiant sayeth not.
~9_,~ -~
Neligh C. Coates, 3r.
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WARRANTY DEED
THIS DEED, made this 15 day of JSJLY
1999, between NELIGH C. COATES, JR.
OF THE. COUNTY OP PITKIN, STATB" OF CO
GRANTOR, AND PATSY M. GREHN AND BSNJAMLN GREHN
GRANTS$
whose legal address is 50 HAZEL AVENUE
HIGHLAND PARR, IL 60035
COUNTY OF LAKE, STATE OF IL
WITNESSSTH, That for and in consideration of the sum of ten dollars
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the grantor has granted, bargained, sold and
conveyed, and by these presents does grant, bargain, sell and convey and
confirm. unto the grantee, his heirs and assigns forever, all the real
property together with improvements, if any, situate and lying and being in
the County of PITKIN, State o£ COLORADO, described as follows:
CHATEAU ROARING FORK APARTMENTS CONDOMINIUM UNYT NO. 93,
according to the Condominium'Map £or Chateau Roaring Fork
Apartments appearing in the records of the County Clerk and
Recorder of Pitkin County in Plat Book 4 at Page J6 and as
defined a¢d described in the Condominium Declaration far
Chateau Roaring Fork Apartments in such records in Book 245
at Page 689. '
TOGETHERwith all and singular the hereditameats and appurtenances
thereto belonging, or in. anywise appertaining, and the reversion and
reversions, remainders, rents, issues-and profits thereof, and all the
estate, right, title, interest, claim and demand whatsoever of the.'grantor
either in law or equity, of, in and to the above bargained premises, with
the hereditaments and appurtenances.
TO•AAVE AND TO HOLD the said premises above bargained and described,.
with the appurtenances, unto the grantee, his heirs and assigns forever.
And the Grantor, for himself, his heirs and assigns, does covenant, grant,
bargain, and agree to and with the Grantee, his heirs and assigns, that at
the time oP the ensealing and delivery of the presents,. he is well seized of
the premises above conveyed, has good, sure, perfect,. absolute and
indefeasible estate of inheritance, in law, in fee simple, and has good
right, full power and lawful authority to grant, bargain, sell and convey
the same in manner and form as aforesaid, and that the same are free
and clear from all former and other grants, bargains, sales, liens, taxes,
assessments, encumbrances and restrictions of whatever kind or nature
so eve r, except those matters as set forth on Exhibit "A" attached hereto
and incorporated herein by reference.
The grantor shall and will WARRANT Aaro FOREVER nEFEND the above bargained
premises in the quiet and peaceable possession of. the grantee, his heirs
and assigns, against all and every person or persons lawfully claiming the
whole or any part thereof. The singular number shal l' include the plural,.
the plural the singular, and the use of gender shall tie applicable to all
genders.
.~! ~
LIGH C. COATES, JR.
STATB OF COLORADO
COUNTY OF PITKIN 1 ss.
The foregoing instrument was acknowledged before me this Irj day of ,777Ly
19 99 by NELIGH C COATES, JR.
WITNESS my hand and official seal
<_
my commission expires: Notary Publ" ~u.,; ~:~ ~
JoiSFipere/NstsryFLdb ~°i N aRr-: ~:
!+ty Canmiseione~'raa 9,/22J20p2 b'+i. P06uf. ~*':
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607 East Fi~ina y.,; ,io
PePerti Cdaxb e1817 ``~; °%ec~o`~"~
EXHIBIT "A"
1. Taxes for the year 1999 not yet due or payable.
2. Reservations and exceptions as set forth in the Deed £rom the City of
Aspen recorded in Book 59 at Page 60, 118, 410, 445, 505, 508 & 524
providing as follows: ~~That no title shall be hereby acquired to any
mine of gold, silver, cinnabar or copper or to any valid mining claim
or possession held under existing laws".
3. Terms, conditions, provisions, obligations, easements, restrictions
and assessments as set forth in the Condominium Declaration for
Chateau Roaring Fork. Apartment Condominiums recorded in Book 245 at
Page 666, deleting therefrom any restrictions indicating preference,
limitation or discrimination based on race, color, religion, sex,
handicap, familial status or-national origin.
4. Terms, conditions, provisions, obligations and all matters as set
forth in the Articles of Incorporation of Chateau Roaring Fork
Apartments Condominiums recorded in Hook 245 at Page 689.
5. Terms, conditions, provisions and obligations as set forth in
Resolution of The Board of Directors of The Chateau Roaring Fork
Condominium Association recorded March 26, 1992 in Book 672 at Page
932.
6. Terms, conditions, provisions and obligations as set forth in
Resolution of The Chateau Roaring Fork Condominium Association, Inc.
declaring the acquisition, maintenance, repair and replacement of
lawn and patio furniture to be a common expense, recorded April 29,
1992 in Book 676 at Page 53.
7. Easements, rights of way and all matters as disclosed on Plat of
subject property recorded ~in Plat Book 4 at Page 76.
~ i r i 1 i r I Il i f t-1I I I I I II I r ~ i i ~- ~ i~ r i r~~ i~ i i ~ r- ~ i- ~~ ~ ~ i~ -~
433483 07/i6/1999 04:p0p WD DgVIS SILYI
2 of 2 R 1@,g0 D ~, 99 M 0 00 PITK;W COUNTY CO
CITY •.5F ASBEN f~__ r.__. '~~
Wit:. JF
~EXEk:i~~ t' KoM WRE2"P cXEM3'r PRpt~{ RN
-ATE ° ' F. SO. ~}4TE ETI'
/p~ ~ ~Z~j ,z~~ ~ ~~j
J2 /o + SPECIAL WARRANTY DEED / ~z' /
THIS DEED, made thisl3~day of December 2001, between PATSY M. GREEN a/k/a
PATSY M. GREENS and BENIAMW GREEN a/lda BENIAMIN GREENS, 50 Hazel Avenue, Highland -.
Pazk, IL 60035 ("Grantors") and GREENE/ROawNa poRx, L.P., a Delawaze Limited Partnership,
50 Hazel Avenue, Highland Park, II, 60035 ("Grantee").
WITNESSETH, That Grantors, for and in consideration of the sum of Ten Dollazs
($ 10.00) and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, have granted, bazgained, sold and conveyed, and by these presents do
grant, bargain, sell, convey and confirm, unto Grantee, its successors and assigns forever, all the
real property, together with improvements, if any, lying and being in the County of Pitkin, State
of Colorado, described as follows:
CHATEAU ROARINti FoRx APARTMENTS CONDOMINIUM UNtT No. 43, according to the
Condominium Map for Chateau Roazing Fork Aparpnents appearing in the records of the
County Clerk and Recorder of Pitkin County in Plat Book 4 at Page 76 and as defined and
described in the Condominium Declaration for Chateau Roazing Fork Aparhnents in such
records in Book 245 at Page 689.
COUNTY OF PITKIN, STATE OF COLORADO
as known by street and numbers as: 1039 Cooper Avenue, Aspen, CO 81611 '
TOGETHER with alt and singular the heteditaments and appurtenances thereunto
belonging, or in anywise appertaining, and The reversion and reversions, remainder and
remainders, rents, issues and profits thereof; and all the estate, right, title, interest, claim and
demand whatsoever of Grantors, either in Iaw or equity, of, in and to the above bargained
premises, with the hereditaments and appurtenances.
TO HAVE AND TO HOLD the said premises above bagained and described with the
appurtenances, unto Grantee, its successors and assigns forever, And Grantors, for themselves,
their heirs and personal representatives do covenant and agree that they shall and will
WARRANT AND FOREVER DEFEND the above-bargained premises in the quiet and
peaceable possession of the Grantee, its successors and assigns, against all and every person ox
persons claiming the who]e or any part thereof, 6y, through or under the Grantors.
IN WITNESS WHEREOF, Grantors have executed this deed on the date set forth
above.
STATE OF ILLINOIS )
ss.
COUN'PYOFCook }
The fcregoing Special R'arr~ty Da:d was aclmowledged before me Uris /3 day of
December 2001 by Patsy M. Green a/k/a~ Patsy M. Gteene and Benjamin Green a/k/a Benjamin
Greene.
WITNESS my hand and official seal.
My commission expires:
uu (( ++ II 461998 ~,--.G<__/ ~~ `~,~~~~
II~I~III~III~E~~III~~IIIIIIIsIIII~IIIIII~IIIIIIItE~IIIIa P2/19020.0012.31P Notary Publ.Mw..• ~n.,...,,,,,,,,,,,,,.,,,~v,,
Return to: ~ OFFICIAL SEAL
Austin Peirce 8 Smith ~ SANDRA H NAGRANT
600 E. Hopldn5, Suite 205 NOTANY PUeIIC. STATE OF ILLINOIS
Aspen, Co. 81611 MY COMA1135!q V F%MREa: 11/IiA1d
Attn:Fred Peirce
AFFIDAVIT OF BENJAMIN GREENE
STATE OF ILLINOIS }
} ss.
COUNTY OF LAKE }
I, Benjamin Greene, being first duly sworn, depose and state that:
I am over the age of twenty-one years and a resident of Pitkin County, Colorado.
2. I purchased a unit in the Chateau Roaring Fork Apartments (a Condominium) prior to
the completion of construcfion of the complex in 1969 and have owned one or more units in
Chateau Roaring Fork Apartments since that time.
3. Ipurchased Unit 43 ofthe Chateau Roaring ForkApartments fromNeligh C. Coates,
Jr. in July 1999 and have owned it since, either individually or in the name. of a family
limited partnership.
4. To the best of my recollection, Unit 43 of the Chateau Roaring Fork Apartments was
used exclusively as a residential unit from the time of the development of Chateau Roaring
Fork Apartments until the unit was sold to me in 1999.
5. Sometime after I purchased Unit 43 I was approached by Michael Spalding, formerly
of Coates, Reid & Waldron Property lvlanagement ("CRWPM"); who had recently left
CRWPM and formed his own property management company. He asked whether he could
rent Unit 43 as an office for his company. Since the Condominium Documents provided that
I could use Unit 43 as an office, I agreed to allow Mr. Spalding to rent Unit 43 as an office.
However, for reasons not completely clear to me, the City would not allow Mr. Spalding to
occupy Unit 43 for a property' management office, so the anticipated lease was never
completed and I renfed the utut foYresidential use.
6. Except for the failed attempt to rent Unit 43 to Mr. Spalding for office purposes, Unit
43 has always been used for residential purposes, either short or long term rentals, during my
ownership of Unit 43, from July 1999 to the present:
Further Affiant sayeth not.
STATE OF II,I,INOIS•
COUNTY OF LAKE
}
} ss.
}
` ~
Ben' Green
The undersigned Notary Public hereby certifies that on the~hct day of August 2007,
Benjamin Greene personally appeared before me, who being by me first duly sworn, declared that he
is the person who signed the foregoing Affidavit, and that the statements therein contained are true.
My Commission d 'res ~ G r l ~~~'d `~~
(SEAL)
2 ~~
3~ f~T T [~D,{ p ~ Public
lfil[' Y'~pLl~.fi ~72',Cy.L rr
J. EVA THOMPSON
3C:\NCNSNS9 PNU3 ~~I~i('~~fit1'TNMy~ppppy~~IflfR~lj~jC LES\WNSENT.IES\'1%MpiJZXUFFIWI~HG. 00C
M CommissionExoireso9/19L/I'2VOV017]
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~~
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AFFIDAVIT OF JOHN R. FRENCH, JR.
STATE OF COLORADO }
} ss.
COUNTY OF PTTI{IlV }
I, John R. French, Jr., being first duly sworn, depose and state that:
1. I am over the age of twenty-one years and a resident of Pitkin. County, Colorado.
2. I worked for Coates, Reid & Waldron Property Management, Ina ("CRWPM") from
1974 to 2005 and am familiar with the Chateau Roaring Fork Apartments (a Condominium)
and specifically, with Unit 43 thereof.
3. For the entire time during which I was. employed by CRWPM, Unit 43, Chateau
Roazing Fork Apartments was used as a residenfial unit, either for employees of Chateau
Development Company, or as a rental unit for short or long term tenants. At no tune was it
ever used by Chateau Roaring Fork,. Chateau Development Company or CRWPM as an
office. As an aside, when I met my wife in 1973, she had lived in Unit 43, Chateau Roaring
Fork with a roommate and was employed by CRWPM at that time.
4. CRWPM did use Units 43A, 43B and 43 C for office purposes periodically over the
course of my employment at CRWPM, but never Unit 43.
Further Affiant sayeth not.
STATE ORCOLORADO }
} ss.
COUNTY OF PITKIN }
ohn R. French, Jr.
OCT. 23.2007 II:S9AM AUSTIN PEIRCE SMITH
AFFIDAVIT OF ROBERT PRUSAK
STATE OF CONNECTICUT }
/ } ss.
COUNTY OF ~L~ }
I, Robert Frusak, being fast duly swum, depose and state that:
N0. 788 P. 2
1. I am ova the age of twenty-one years and a resident of ~T " Comty,
Connecticut
2. Ipurchased a unit in the ChateauRoaringFakApartmeats (aCandominiwn) in 1984
and have owned one or more units in Chateau Roaring Fork Apannents since that tuna.
3. I was on the board of the Chateau Roaring Folk Condominium Association
continuously from 1990 until my resignation from that board on October 8, 2007.
4. At the time I purchased my unit, Unii 43 of the Chateau Roaring Fork Apartments
was being used for short term residential rental purposes and was so used rmtil it was
purchased by Mr. Benjamin (Bud) Greene.
5. Somelime after Unit 43 was purchased by Mr. Greene, he attempted W rent it to
Michael Spalding, formerly of Coates,Reid & WaldrenPmpertyManagemeat ("CRWPM'~,
for office purposes, to run a property management company oat of that unit However, the
Citywould not allow Mr. Spald"mg to occupy Umt 43 for a property management office, so
the anticipated lease was never fvlSlled and Mr. Greme rented the unit for residential rue.
6. To the bestofmyrecellection,sincethetimelbecameanownerofaunitinChateau
Roaring Fork Apartments to the present, accept for rho faded attempt to rent Unit 43 to Mr.
Spaidiog for office purposes, Unit 43 has aiwags been used :for residential purposes, for
either short or long te[nn rentals.
Farther AfTraat sayeth nok
Robert Pnuak
STATE OF CONNECTICUT }
} sa
COUNTY OF Ur,~:a d }
The undersigned Notary Public hereby eerti$es that on the o2S 11 day of October 2007,
Robert Prusak personally appeared beforeme, who beingbytne $rst duly sworn, declared that he is
the parson who signed the foregoing Affidavit, and that the statements therein wntained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 1ST day of October
2007.
My Commission expires ht~dbdY
(SEAL)
~ -r ~-
Notary Public
,,:~nw a.na®\®mo vwm rt unsere-u.me
-~
AFFIDAVIT OF RONALD M. GRAY
STATE OF COOLORADO }
} ss.
COUNTY OF PITKIN }
I, Ronald M. Gray, being first duly sworn, depose and state that:
1. I am over the age of twenty-one yeazs and a resident of Co o ~c County, Illinois.
2. I purchased a unit in the Chateau Roaring Fork Aparhnents (a Condominium) prior to
the completion of construction of the complex in 1969 and owned that unit for approximately
seven yeazs.
3. At the time I purchased my unit, Unit 43 of the Chateau Roaring Fork Apartments
was constructed as and being used for residential purposes and was so used during the entire
time of my ownership of a unit in Chateau Roaring Fork Aparnnents.
4. To the best of my recollection, since the time I became an owner of a unit in Chateau
Roazing Fork Apartments to the time I sold my Chateau Roaring Fork unit, Unit 43 was
always used solely for residential purposes, for either short or long term rentals.
Further Affiant sayeth not.
Ronald M. Gray
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
-W~
The undersigned Notary Public hereby certifies that on theq~` day of November 2007,
Ronald M. Gray personally appeared before me, who being by me first duly sworn, declared that he
is the person who signed the foregoing Affidavit, and that the statements therein contained aze true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal thi~~'*day ofNovember
2007.
My Commission expires LP/~/~~
Notary Public '
DEBBIE h
HAUER
My Commission Expires 081M11011
,.n.,,..s ...~~....u,~.:..~ .o..,.o .a..w.~„-~.~c
EXHIBIT
C
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
STATE OF COLORADO }
} ss.
COUNTY OF PITKIN }
I, Donald M. Noms, being first duly sworn, depose and state that:
1. I am over the age oftwenty-one yeazs and a resident of Lake Couoty, Illinois
2. I purchased a unit in the Chateau Roaring Fork Apartments (a Condominium) in 1976
and owned that unit for approximately thirteen years, until 1989. For approximately 10 of
those yeazs (1978 - 1988) I was the President of Chateau Roaring Fork Condominium
Association.
3. To the best of my recollection, at the time I purchased my unit, Unit 43 of the
Chateau Roaring Fork Apartments was being used for residential purposes and was soused
during the entire time of my ownership of a unit in Chateau Roaring Fork Apartments.
Further, to the best of my knowledge, as the President of the Association I was never
approached with any request to use Unit 43 for any purposes other thas~as a residential unit.
4. To the best of my recollection, since the time I became an owner of a unit in Chateau
Roaring Fork Apartments to the time I sold my Chateau Roaring Fork unit, Unit 43 was
always used solely for residential purposes, for either short or long term rentals.
Further Affiant sayeth not
/ Donald M. Norris l
AFFIDAVIT OF DONALD M. NORRIS
The undersigned Notary Public hereby certifies that on the day of December 2007,
Donald M. Norris personally appeared before me, who being by me fast duly sworn, declazed that
he is the person who signed the foregoing Affidavit, and that the statements therein contained are
true.
2007
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ~~day of December
110U6p50 saswz3 uassw~uw0 Aly
My
i V.
aanvN `,
roareaaa: ~ ~~ .o~
~~>,otr.....C;:O= Notary Public
,..~.,~...-no....na....o .o....o .a..w..n+.-o..oo~
y$ ~HIBIT
a
~ ~
AFFIDAVIT OF SANFORD RICHMAN
STATE OF ILLINOIS }
} ss.
COUNTY OF LAKE }
I, Sanford Richman, being first duly sworn, depose and state that:
1. I am over the age of twenty-one years and a resident of Cook County, Illinois.
2. I purchased a unit in the Chateau Roaring Fork Apartments (a Condominium) in
approximately 1985, as a co-tenant with one other individual, and owned that unit for
approximately fifteen yeazs, unti12000. For approximately 12 of those years (1988 - 2000) I
served on the Board of Directors of the Chateau Roazing Fork Condominium Association.
3. Sometime shortly before I sold my unit, Mr. Bud Greene attempted to rent Unit 43 to
Michael Spalding, formerly of Coates, Reid & Waldron Properly Management ("CRWPM"),
who had recently left CRWPM and formed his own property management company, as an
office for his company. However, the City would not allow Mr. Spalding to occupy Unit 43
for a property management office, so the anticipated lease was never completed.
4. At the time I purchased my unit, Unit 43 of the Chateau Roaring Fork Apartments
was being used for residential purposes and was so used during the entire time of my
ownership of a unit in Chateau Roaring Fork Apartments, for either short or long term
rentals, except for the failed attempt to rent Unit 43 to Mr. Snaldine for office purposes.
Further Affiant sayeth not.
STATE OF ILLINOIS }
} ss.
COUNTY OF COOK }
The undersigned Notary Public hereby certifies that on the 5'~ day of ' 200 8
Sanford Richman personally appeazed before me, who being by me fast duly swo ec ed that
he is the person who signed the foregoing Affidavit, and that the statements therein contained are
true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 5 day of ~, ~,~,~~y
200 ~! . T J
My mmissi S io ° in
~ygp, E,wxe, ti+w to, 2oto EXItBR
~n rv P r,
v
11-1-5:
Maxisum Bei ht of Buildin s
Principa ui ings ............. 25 feet
2. Accessory buildings ............. 21 feet on the front twc
thirds of the lot and
12 feet on the rear
one-third of the lot
Minimum Off-Street Parking.....-. .... as required under Supple-
mentary Regulations
(f) R-MF - RESIDENTIAL - MULTIPLE
FAMILY: Intention - to allow utilization of land for intensive resi-
dential purposes with customary accessory uses following conventional
practice of sitting apartment dwellings on the standard lot for the
district or by allowing row and patio housing on smaller lots provid-
ed a project of sufficient size is developed to permit acceptable
urban design. Recreational and institutional uses customarily found
in proximity with residential uses are ,included - subject to approval
Uses -Permitted
Any permitted use of the R-6 Residential district;
2. Multiple family dwelling, accessory building or use;
3. Patio and row houses - provided a total~proj ect of 25,000
square feet in area is developed to accommodate required off-street
parking, internal pedestrian circulation and minimum set backs for
the district on the periphery of the project;
9. Mobile home park - subject to requirements under mobile home
park regulations.
Uses - Conditional
S.S. Any~itional use of the R-6 Residential district - subjec
to all use requirements of.that district regulation.
Minimum LOt Area
1. One-family welling . .. .. ........ 6,000 square feet
2. Two-family dwelling .....:....... 3,000 square feet per
dwelling unit with
/ a minimum lot area
' of 6,000 sq, feet
3. Patio house ..................... 2,000 square feet
4. Row house ....................... 1,500 square feet
5. Multiple family dwelling........ 1,500 square feet per
dwelling unit with
a minimum lot area
of 6,000 sq. feet
6. All other uses .................. 6,000 square feet
Supplement No. 7
June 3D, 1967
u-L-s:
Minimum Lot Width
Al uses except patio and
row house ....................... 60 feet
2. Patio house .....................' 30 feet
3. Row house ....................... 25 feet
Minimum Front Yard
1.
- cipaLTiuilding except
Prin
patio house........ ............. 1D feet
2. Patio house on periphery
of project ...................... 10 feet
3. Accessory building .............. 15 feet
Minimum Side Yard
1. A 1 buildings except patio
and row house ................... 5 feet
2. Patio and row house on
periphery of project............ 5 feet
Min imum Reax Yard
Principal building except
patio house .....:............... 10 feet
2. Patio house on periphery
of project ............:.....:... l0 feet
3. Accessory building .............. 5 feet
Max imum Height of Buildings
1. Principal, building except ~
patio house ..................... 2S feet
2. Patio house and buildings
accessory thereto ............... 12 feet
3. Accessory buildings ............. 21 feet on the front
two-thirds of the
lot and 12 feet
on the rear one-
third of the Lot
Minimum Off-Street Parking.......... as required under Supple-
mentary Regulations.
11-1-6: ACCOMMODATIONS RECREATION
(a) AR-1 ACCOMMODATIONS RECREATION--
URBAN: Intention - to allow utilization of Land for accommodations and
recreation purposes with accessory commercial uses as well as for resi-
lential purposes with customary accessory uses. Recreational and in-
stitutional uses commonly found in proximity with residential uses are
allowed.
Hupplement No. 7
Sune 30. 196'7
11-1-6:
Minimum Lot Width - subject to approval of the Planning Commission.
Minimum Front Yard -subject to approval of the Planning Commis-
sion.
Minimum Side Yard - subject to approval of the Planning Commission.
Minimum Rear Yard - subject to approval of the Planning Commission.
~ (e) R-6 REHIUENT IAL: Intention - to al-
~~low utilization of land for residential purposes with customary acces-
sory uses. Recreational and institutional uses customarily found in
proximity with residential uses are included - subject to approval.
Uses - Permitted
One- ami y welling, two-family dwelling, accessory building
and use, home occupation;
2. Farm and garden bui Ldinq and use - provided that all such
buildings and storage areas are located at least lOD feet from pre-
existing dwellings on other lots;
3. Fence, hedge or wall - subject to requirements under Supple-
mentary Regulations;
4. Identification sign, directional sign, for-sale sign - subject
to requirements under Supplementary Regulations.
Uses - Conditional
5. Open-use recreation site - subject to approval of the Board of
Adjustment;
6. School, church, hospital, public building fox administration--
subject to approval of the Hoard of Adjustment.
" Minimum Lot Area '
~ One-family dwelling...........
2. Two-family dwelling............
3. All other uses .................
Minimum Lot Width ..................
Minimum Front Yard
Principa ui dings............
2. Accessory buildings .............
Minimum Side Yard ...................
Minimum Rear Yard
1. Principal build ings .......... ...
2. Accessory buildings .............
6.,000 square feet
3,000 square feet per dwell-
ing unit with a mini-
mum lot area of 6,000
square feet
6,000 square feet
60 feet
10 feet
15 feet
5 feet
15 feet
5 feet
Supplement No. 7
June 30, 1967
?oz
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.3 CG:3 C~_b.°,.d 0:1 .::`:^ atL~:C`L:~:G EXh i'D it "tirr, tJili Cil by ti:iS Yc re.'".BnC::.
.s nzco z pi::rt he_ac~ ; a,-1d
C;~i^,f5, Dac~.aYer~•~ d~s_res 'co ca•4~lish a col;do;^r_il:'-~
C0:::7~:::t i::1~S_ ~ h~? %OndQlit~, iUIil CPTnEYS,__p ?SCt 02 1`.he S'catG-' O
0010=%C'.v; ~.-1d
Tr~*.• ncJ v.°.CS aYw'1i: has e::CC::i;.ed plans i0= {:i:e CO:1 S'~rL'CtiOn
O"~ tt'70 +r'Ju 1C~..ngS c.`ld O'.'t1~3= ~n:iprOt7:::12:1LS apau-tcna:.t t.^.eret0
cr. ir_e above-csscrib~d property r:hich, rrhon completed, shall
co:lsws'c o' =o'sLy-sM.z se;~z;:ato_y d.~si; zcad Co ndo::,iniurr ;'-~;
and Un....~
P;s:~3G?zS, ~3CI8Yci:'. 1 ~::.~.nd5 '`,.O en~ar5_~ t'_r!E COriGOil_r~'_l:l
CvY:7_cY aeT CGT;StrUC:ng afaii:icnal =raprovarsants COnSiSting
O'' S2~c.?: 's..::~.V ~ u'i Gn?;:ed CO =COI'%:'.~U";; U1? i:S, SUC}: t'~"1=tS t0
ba CJnS`G_~:C::Ed on real property o•~he_ than the propari.y described
aocve; z::3
~:..«_
V~=~„"` ~5', T~SC 3 aYarai: dc3s 2:e?'Ebyv^5''.~.~~ iS1I a plan i6T t~:°
l=1^^.- '.Y "1'l ui ~ y' r~ 1 fir:. !
G:' .._,~:1~D _ a Ti... znp_.: O_ a prOp,. a,y eS'i;w GES CO^.S=. S'i.l Y!CJ
OS 4^v a=tea O` SDdCt: COT1i.2=.C'C'c 7.Z1 Elc.Ci1 Of 7`.'.^.c^. l'~gaYtTan'c lin='~s
iTl .e btzi! di ng i::l'7_OV.:P.1°=:i:5, c".Zld the CO-Ct-la OYS:21.p by tl@ i ndiVi d-
ti£:i ~.::G S:._~ara::o 6t;r.::r3 'EP.^..,:30~, 2S tG~: a:^t5 1I? cor.~~,an, Oi atI
o~ w:e r.:.raini g Taal prOner;:y herei nzzi:.^_r d~?~iilEC~ a:ld YOS'OYYG~d
to as w~a Gs: ,._a'_ Col:~.;lon ~le::en':s;
tG6 Tz~_'.~-, '~~, •~ I '^'- ~ --e y =ublish and dzcla_e
~1 , _0. D;}}.ffc a-_a..,. ca..s! he~_ b
V +"..v ...4V :0=1097=ng l.er:tY.,, Va Y~:la"i''. 1.rJ, luGn~i. LT OnS, 1. a5 G~1 ~~1 :.~J',
_'". Lei L=_C i..'.O:1S, 1.3°3, Iiraii:z::icns and oblig>ticas shall be deer„ad
::o .'.::: eTi:_z the land, shall bo a bu::don aa-ld a bens~it to Declarant,
_ts st^cosssors and assigns and any person accui.ring or owning
an i::~ar~s~ in the -real arop~rfy and irprovelsr.~s, their gra,-pees,
SL'CCe3SOrS, 11eirS, Ex2CU~GrS, ad7C.in1St*'a'i:Or, d0V].SOL'S Or cSS1gnS.
I. D~FZNI?IO\S. Unless t're contex'~ shall expressly
provWdo ocn`•a:=taise, the follocTing definitior_s s:~all apply:
~n7 '~Apartr~~ncn, ~"1Pa: t^.^,:1L`' unit", Or ,~Un=~~r IteaP.S
~ 2_'1 i ndiV1C'.U 31 air 5~aC3 t-0:11C^ ~ S C011 a.T,.nE4~ L.'1i.I13.n 'i.h2
L:=ir_Shed p2ri::2tG'r eTaI1S, ~1G0_'S, a^~ C211].rigS 02 a
Ll=:i~ i a t;^:e bui Zdings as shctTn on t:^.e uaa to be fi ? ed
L,Or rCCO:Gdp i:OCjJ'~hE3' t41ti1 all Lix.UreS ar.d iltO;:OV+3lientS
t~.~h.~=0in C011tci~ •?d, IJUt raot including any ~ OT 'i_'.^. (-l StrI:C ~LIra~
eoz.poorts ci the baildiag, i. any, wic:.^.in a Unit.
{b~ ~rCO:1dOi:LniL:!1 unit" means a enit toge~?1er t9i ~i1
the Lllldi Vided iriteT05t i:l the Geri~ral ~^.C'i 17.I:1i ~G-':1' COZiu.~Jra
__-..- ,, ..-„- :„u. vc aac~.u c=i:E 6i:nvC1
b_7 =,'o=e ~~~.an'one porso:l ~.s jo~.-lt tsnan~s or as :enunrs in
CO:~;."i,On, Or iii ~Z1r% `.dl 't~'--p2S='~-.`I i:e_?2*1Cy Y2 ].d' ).1S hiiJ rC=CO C.ii Z?d
LnQc^,r '.:==.- lac'7$ O, l J10:'2.C0. ~
9. ' ..I '].' -'
(+ Obi?/.; a "i=IO'_'.''_'3I' OF G;~ <r; ~.aT.:.. CO.?-iCI .T',L~.C~,\iS. T;7E
G°7!f'r al CO:ti:i?Cn EleIlla'^: .S 5:?r^.I1 JE CC'7n:. C; 3.n CO:R7 On Dy cal lu O
i'1G~ CS.TnL~.YS Ci ~~'.° Ap2L ~:";:C i1 .'". Units c.; d 5.^.d,';,i rC'.?gain pnGiiVj.dCCt,
and n0 CFIne:,r Sil21i .~C+ring anV ~C tl On iOY Dcrtitl0:1 Ol" C?1V151.0.1
OT t13 GC'snerdl CCl^: lOn ElCrt:BniS. :IOthincr COnta].nC:d heroin
.,
Saldll 'A.°.. CO"_1Str'~C-'d aS a l;mS'La LaOn OL t;le rlgilt Of partlti On
. Of d CO?':d0~17.n il:u'1 LTni'1. 'A@.•;iOF21 'C:^.e OS•7nei'S tl';erCOf, bUt SUCi1
partition shall not af::ec:: eny other Condonimium L'nit.
10. j;S.TS OF GE'l•13'_`?L ~~JI> 1 mT• ,...
_ LI'•_I r.D CO..~~_O~i i;LE_•L,~i1S. Each
O~4i:3--" Sit a111 ~e entit_ed t0 eRCIUS1.Ve Oii I1G'rS~liY~ a Q OSSESS].On
of h1s Apa-::~llent. Each O~vn=r may use tie Gsn2ral Cortraon 3iler,.ents
in accordance wi;:.h the purpose for Eihi c'_7 they are i nterda2,
_ without, hindering or encroaching upon the lat~~~lNrights of
th8 Other CvlnE+; S,
~~: ~
33. US8• ri?7E OCCL??tiCY. All U, _ ~ _ . c ,... "ts aesiraated
on the ?~~ap as ni'_~+bers 9;i• ; ~.9E, 21, 3i 34 7, ~?0 43, n3A, 43B,
and 43C her~inaftcr referred to as u a i ~ ~~ .
s_. s si.ali
be used and occupied solely for single family resident pu L:osos
by the Chvner, b- the Ocrnex`s Tamil ~ L
'i'he Basin .~ Y y or ta.e O~vller's gues a,s .
ss UP.i is 1~ be used and occu_~ied for such business
Pu'-"?ores allosra;;,le by rcverra:,entrl zoning anti nse regulations
Validly in force from time .o tiIIle.
I}eClaran'•;, and ].tS ER','1~.OyeES, re»reser_tatives, a«ent5
aa-ld COni:s:~;C'GO'-'S .iuay maintain a busincSS and ShcGS Gf.~.iCe,
construction facilities and yards, nodal units and other facilities
required during the construction and sales period.
lz. EA.swr~~rlLLs Foy a~~IC?v.CHy',^N^1S.
Ir^ any por~ion of
the G~:a;al Cona:an EZenQn is ?lo rt ar tlersafter encroaches LOOn
an Ap&=tI:i:=ni, jj:ai ~ Or ~*1itS, a Va12d C-+&S@m0nt fOr th@ encroach.,.ent
aild TOr tab mai o n
n~enar_a~ ox same, so long as it stands, silal3,
ar.d dons e~:ist. If any portion of an Apar~m~nt Unit noc:* or
nereaftE_ enc_oac?les anon tae Gcne_a1 Common Elements or uoan
• all adjoining Apartment Unit ox Units, a Valid easemsnt for
_ the encroacr_~;ant and for the maintenance of sa.~:e, so long
as it stands, sha'•l and does exist. For title or ataer purposes,
such encroachments and ease,;wnts shall not be considered or
determined to be e cun.~arances either or. the Goneral Com:alan
Elements or the Apartment Units.
^ 13. T~~•3,342~7P_TION O AiECEA>dIC`5 LIEPv PY6iiTS _a `' n..•, ~
CP.t_Oid. Sl::OS2C,1.lEnt L.O i:~iG-' COki~lvtlOn Of t:ie iiIlprOVO?gn~~"~
QeSCr? ed Oil the t'a , n0 ab o a.
? 1 or perform,.d or ma~erials furnished
- a,-ld~i corporated in an Apartment Unit ~,Iitil the consent or
at the request. of the Owre-- ,.
,, ._, 'his agen~ or iris cortractor•
o_ saocoa.;,_acto= sha'_l °
:g ":1i"g o~ alien against
t~":.°. ~~c'.. ~'~^..~...1:: Z:*?2~ O'er ~c.~. ...
-- •-~~ c:spressly consenting
t0 O. r;:a~eSting file SaFic, Or aCa7.:^.St t.e z.l„
~ i^ General Com,~~on a...~ments
ormed i7V SUC:1 Oti?3r OY7nexS. ,•',aCil. O~7rier S :all indE~slify and
roll her-:'_ess 2acn of the othsx O;vners fro~,l and a«airst ail
C;:1A'1'6F.U RCfi%t\Tir i' V'~i{ s Pr? y;Tli.^NTS
Apar;.me ;,
iini--- z-~umbe'r
1
2
3
4
5
&.
7
9
la
1 ]
12
13
iE
15
16
17
1S '
19b
19~
20
21
22
23
24
25
2&
27
28
29
30
31
32
33
34
35
36
37
38
39
~0
41
t~
43
3F
43~
43C
Appurtana:st Undivided
Interest (Percentage)
.0192
.0192
.0192
.0230
.0192
.0192
.0192
.0230 .
.0,270 ~
.0290
.0270 i
.0290
.0270'
.0290
.0270
.0290'
.0250'
.0270 ~
.0130
.0120
.0290,
.0250•
.0290.
.0192
.0192
.0192
.0230
.0192
.0192
.0193
. a23a
.0192
.0192
.0230
.0192
.0192
..0230
.0192
.0192
.0230
.0192
.0192
.0230
.0190
.0080
.0050
.0160
1.0000
AFFIDAVIT OF NELIGH C. COATES, JR.
STATE OF COLORADO }
} ss.
COUNTY OF PTTHIN }
I, Neligh C. Coates, Jr.,. being first duly sworn, depose and state that:
I am over the age of twenty-one yeazs and a resident of Pitkin County, Colorado.
2. I was a shazeholder is thedeveloplnent company known as Chateau Development
Company (the "Development Company") that was the developer of the Chateau Roaring
Fork Apartments (a Condominium), along with William L. Wallen, III ("Buddy Wallen"),
now deceased.
3. The Development Company developed the Chateau Roazing Fork Apartments and
filed the'Condominium Declaza6on and Condomuuum Map therefor in the Pitltin County
real property records on December 31, 19b9.
4. When the CondominiumDeclazationwasprepazed,certainunits,includingUnit43,
were designated as "Business Units." Pursuant to the terms of Section 11 of the
Condominium DeclazaGon, all units not designated as Business Units were to be used and
occupied solely as residential units. The Declazation provided that the Business Units "may"
be used for business purposes. It was the intent of the Development Company, due to their
belief that office uses would increase in value in Aspen in the future,to allow the "Business
Units" to be used for business purposes in the future, should the unit owners so desire.
However, all the units designated as Business Units in the Chateau Roazing Fork Apartments
were intended to be available to be used as residential units, were initially constructed as-
residential units and when the Chateau Roazing Fork Apartments received its final inspection
from the City of Aspen building department, all of the units, including the Business Units,
were inspected andapproved as residenfial units,
Further Affiant sayeth not.
STATE OF COLORADO }
} ss.
COUNTY OF PITKIlV }
f~'
Neligh C. Coates, Jr.
The undersigned Notary Public hereby certifies that on the _ day of June 2007, Neligh
C. Coates, Jr. personally appeazed before me, who being by me first duly sworn, declazed that he is
the person who signed the foregoing Affidavit, and that the statements thereinL/contained aze true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this ~ J day of June 2007.
My Commission expires / ? ~ (
(SEAL)
N Public
~.,~.,~ ..,~a.w:u.>~w.,,~:~ " EXHIBIT
_~
°'''' = °' B~ ,1DING INSPECTION DEPARTMEI~~~/
f xl rITY ~ caFN _ cnuNTY OF PITKIN~' C "IRADO
ADDRE$S 103 GENERAL
OF JOB }~{E. Cooper P B Build l.ng UCTION
pERMIT
WHEN iIGNEO AND VALIDATED BY BUILDING INSPECTION DEPARTMENT THIS PERMIT AUTHORIZES THE WORK DESCRIBED BELOW.
CLASS OF WORK: NEW ~] ADDITION ^ ALTERATION ~ REPAIR^ MOVE ^ WRECK ^
OWNER Bud Wa len
NAME Nick Coates ADDRESS Box 161 PHONE 925 1400
,Y LICENSE LICENSE
O NAME (AS LICENSED) Esco Development Corp. CLASS A NUMBER 2510
f-
E.7 .INSURANCE
r ADDRESS Box 566 -Aspen PHONE ^
Z
O
~ SUPERVISOR
Lloyd Blue
DATE CERTIFIED
FOR THIS 10B NAME
LEGAL
DESCRIPTION wrNO.E. 171P, ~ BLOCK NO. 37 ADDITION E. Aspen
ATTACHED^
SURVEY
DESIGN A uc.
BY Pessman BY Rob Rov PE NDB 311
AREA (S.F.) HEIGHT NO. TOTAL OCCUPANCY
AT GRADE L. 200 (FEET) 251 STORIES 3Z UNITS 12 GROUP H DIV.
BASEMENT FI"~ ^
UNFIN
~ GARAGE SINGLE ^ ATrnLHED ^
DOUBLE ^ DETACHED ^ rorAL
RODMS TYPE LL
CONSTR. V 1 ILOUr FYRE
ZONE III
. nO
DEPTH FlRSr 6 x fit3E iP~q NG 1LE 011
1L AGENCY AUTHORIZED DATE
BEIOw / 8Y
Z GRADE
ee
N cc
FLOOR deckin U[ 311 tO in BUILDING
'
O REVIEW
Foundati
f- FOOTING
SIZE
'
o CEILING
Same
20NING
C erm
t
Z
~ E%TER IOR CON(:. ^
'
ROOF PARKING
O TH CKNESS MAS
Y ^ Same
LL O
K ^
^ O
I PUBLIC HEALTH
SGR eE A
MS
SLAB RIAL
MA
TE
Class A built up
MASONRY g9OVE ABOVE ,L ABOVE ENGINEERING
EXTERIO THICKNESS3/41ST 9$11000 tL1Z?{9lFgd10llt 3RD FLR.
ALL STUD SIZE ABOVE ABOVE ABOVE
8 SPACE 1ST FLR 2NU FLR. 3RD FLR.
REMARKS
d lans
t
t
d
b
o correc
e
su
ject
Permit issue
incorporating provisions in letter of Aug. _
I
of Ot1S Acenr
_
NOTE$ TO APPLICANT:
NFORMATION
0.
A
925
I
C
LL
-]1JE
FOR INSPECTIONS O
o
FOR ALL WORK DONE UNDER THIS PERMIT THE PERMIiiEE ACCEPTS FULL RESPON5181LITY FDA LL
.VALUATION
CO MPIIAN CE WITH iME UNIFORM BUILDING CODE, TI1E COUNTY ZONING RESOI UTION OR CITY ~ +(v
OF WORK
""~
ZONING ORDINANCE, AND ALL OTHER COUNTY RESOLUTIONS OR CITT ORDINANCES WHICHEVER 211 000
.
.
APPLIES.
SEPARATE PERMITS MUST BE OBTAINED FOR ELECTRICAL, PWMBING AND HEATING, SIGNS,
PLAN
TOTAL FEE
SWIMMING POOLS AND FENCES.
PERMIT EXPIRES 60 DAYS FROM DATE ISSUED UNLESS W~IRK IS STARTED.
FILEC' T P
337
50
REQUIRED INSPECTIONS SMALL BE REQUESTED DNE WORKING DAY IN ADVANCE. DOUBLi: CHECK ^ .
~ 168.75
ALL FINAL INSPECTIONS SHAL F'~ADE ON ALL 1 /EMS OF WORN BEFORE OCCUPANCY IS PERMITTED, FEE ^ CASH ^
THIS BUILDING SHA NOT E OCCUPIE NTI - RTIFKATE OF OCCUPANCY HAS BEEN ISSUED. ^ BUILDING DE PA RTME
PERMIT SUeIECT REV CATIOl{ SUSP 51 ~ FOA VIOLATION OF ANY LAWS GOVERNING SAME.
/~
SIGNATURE ~f .
f~~
/~
-''~-~
f
~
OF ~ ,
ti S
;
! U
APPLICANT: T>.." ~jJ= APPROVAL BY DATE
DATE PERMIT NO. LIGENTE ~ RECEIPTS CLASS - AMOUNT
THIS FORM IS A PERMIT ONLY
WHEN VALIDATED HERE ~~ g/12 /69 9A_~*i-
'.aif/
EXH~IT wt's (~,.
.. ,,
~ ~ .------_._ _-~.. ~~,h,~
__ _ _ ~_ -_~~'1' _.
en ~~.rC
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I ~~ i. r N
`$~ ,F'IG' r W C 3:- L /1 ~A F... ~. ~ ~ . ~[wBOlo,~. pw~r_ -~ t
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arA 2Tm£N 4an•1! 3S 6Lbp6 •Kl 'b? k Al:' PI.OAeS }
E4c£C' wurgt tb•r4w OTtitEwtBt 6u ,5 ,W q8 AS 8~+'$S2 ~~ .~ ,
Y°
- _
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~~•.:= ~= o ..
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-+ }. os. '"P~_. bo.C` -_._ ,~'S "_'-j. ..._ $ 7-i=~ , ' 3?:. ~!, .3.,Y.}~F. 7'.
1 j_., Z ~f~' ~ ~ dsac,4CNlua•.
i~ W~,Pt~l1]
S
- ~,,9A 11RK9V
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~ ~ Iz-6~ ~ UNIT 3'A _ M '
' .. .. 5 - R,s lam. ~A• ~j +ulj
X12 vi, 4a~ C i^ rr .... -:ewe
UNIT 43- .~'-`-.
r Y~. ~ TYPIC6L ~.~ _ _ i ~ prl
' OR9. ~~~vt('3 it _3` RO. >~_n..A E~
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Chapter 26.316 ~~~~~ ~L/
APPEALS ~'
Sections:
26.316.010 Appeals, purpose statement.
26.316.020 Authority.
26.316.030 Appeal procedures.
26.316.010 Appeals, purpose statement.
The purpose of this Chapter is to establish the authority of the Boazd of Adjustment, Growth
Management Commission, the Planning and Zoning Commission, and City Council to hear and decide
certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002)
26.316.020 Authority.
A. Board of Adjustment. The Board of Adjustment shall have the authority to heaz and decide the
following appeals:
l . The denial of a variance pursuant to Chapter 26.314 by the Planning and Zoning Commission
or Historic Preservation Commission.
• B. City CounciG The City Council shall have the authority to hear and decide the following appeals:
1. An interpretation to the text of this title or the boundazies of the zone district map by the
Community Development Director in accordance with Chapter 26.306. An appeal ofthis nature
shall be a public meeting.
2. Any action by the Historic Preservation Commission in approving, approving with conditions,
or disapproving a development application for development in an "H,", Historic Overlay
District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting.
3. The scoring determination of the Community Development Director pursuant to Chapter
26.470. An appeal of this nature shall be a public meeting.
4. The allocation of Growth Management Allotments by the Planning and Zoning Commission
pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting.
5. Any other appeal for which specific authority is not granted to another boazd or commission as
established by this title. An appeal of this nature shall be a public meeting.
C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the
authority to hear and decide an appeal from an adverse determination by the Community Development
Director on an application for exemption pursuant to the growth management quota system in
accordance with Section 26.470.060(D).
City of Aspen Land Use Code.. August, 2007.
Part 300, Page 35
D. Administrative Hearing Officer The Administrative Hearing Officer shall have the authority
to hear an appeal from any decision or determination made by an administrative official unless
otherwise specifically stated in this title.
(Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Ord. No. 12-2007; 2002)
26.316.030 Appeal procedures.
A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an
appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The
notice of appeal shall be filed with the Community Development Director and with the city office or
department rendering the decision or determination within fourteen (14) days of the date of the decision
or determination being appealed. Failure to file such notice of appeal within the prescribed time shall
constitute a waiver of any rights under this title to appeal any decision or determination.
B. Effect of filing an appeal. The filing of a notice of appeal shall stay any proceedings in
furtherance of the action appealed from unless the Community Development Director certifies in
writing to the chairperson of the decision-making body authorized to hear the appeal that a stay poses
an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The
chairperson of the decision making body with authority to hear the appeal may review such
certification and grant or deny a stay of the proceedings.
C. Timing of appeaG The decision-making body authorized to hear the appeal shall consider the
appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is
practical under the circumstances.
D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by
publication to all other affected parties. (See section 26.304.060(E)). ` r '
E. Standard of review. Unless otherwise specifically stated in this title, the decision-making body .~-^
authorized to heaz the appeal shall decide the appeal based solely upon the record established by the I ``
body from which the appeal is taken. A decision or determination shall be not be reversed or modified
unless there is a finding that there was a denial of due process, or the administrative body has exceeded
its jurisdiction or abused its discretion.
F. Action by the decision-making body hearing the appeal. The decision-making body hearing the
appeal may reverse, affirm, or modify the decision or determination appealed from, and, ifthe decision
is modified, shall be deemed to have all the powers of the officer, board or commission from whom the
appeal is taken, including the power to impose reasonable conditions to be complied with by the
appellant. The decision-making body may also elect to remand an appeal to the body that originally
heard the matter for further proceedings consistent with that body's jurisdiction and directions given, if
any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals
shall be public meetings.
(Ord. No. 55-2000, §§ 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002)
City of Aspen Land Use Code. August, 2007
Part 300, Page 36
y~~~
~~
ATTACHMENT 7
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
LULU" 7
ADDRESS OF PROPERTY: C~IGC~ ~C~F(~~..~ ~%G.Yf.9'1 °~ l L.'~'~~ ,Aspen,C~O/
SCHEDULED PUBLIC HEARING DATE: ~ It`/1 ~~h ~ S ~ S f /~, 200 2S
STATE OF COLORADO )
) SS.
County of Pitkin )
I, ffi3'l.~~t'L L-/~ ._~ CC` 9'~ ~"__ ~~ (name, please print)
being or representing an Applicant to the City of Aspen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) oft e Aspen Land Use Code in the following manner:
V Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City ofAspen at least fifteen (15) t
days prior to the public hearing. A copy of the publication is attached hereto.
Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
andtwenty-six (26) inches high, and which was composed of letters not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the day of
200_, to and including the date and time of the public
hearing. A photograph of the posted notice (sign) is attached hereto.
Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by first class postage
prepaid U.S. mail to all owners of property within three hundred (300) feet of the
property subject to the development application. The names and addresses of
property owners shall be those on the current tax records of Pitkin County as they
appeared no more than sixty (60) days prior to the date of the public heazing. A
copy of the owners and governmental agencies so noticed is attached hereto.
(continued on next page)
Rezoning or text amendment. Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map shall be available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments.
'(
Signa; re
The fore oing "Affidavit of Noticge" was acknowledged before me this day
ofc~,~p,yk4w'1~' , 20051, by ~~r e:~~~ Sit.%e_
/({~ ~
i PUHLIC NOTICE
RE' AP^AL OF ADMINISTRATIVE DECISION
REGAR NG CHATEAU ROARING FORK UNIT
No. 43.
NOTICE IS HEREBY GIVEN that a public meeting
will be heltl on Montlay, February 25.2008, a15:00
p.m. belora the Aspen Ciry Council, In the Council
Chambers, 130 5. Galena, Aspen, CO, to review
an appeal of an atlministrative tlecision regartling
the allowable use of Unit Number 03 of the Cha
teau Roaring fork Contlominiams locatetl at 1039
East Cooper Avenue. The appellant is Green
IROaring Fork LP; 601 Mulberry Place Unit AE;
Highland Park, Illinois 60035; representetl by At
torney Thomas Smith of Austin Peirce antl Smith;
600 Eesl Hopkins Avenue; Aspen, Coloratlo
81611;9]0-925-26W.
Far IurMer informatbn, contact Chns aentlon at the
City of Aspen Communityy Development DepaU
ment, 130 S. Galena SL, Aspen, CO (W0)
920.5090. (or by email at chrisb®ci.aspen co.us).
slMichael G IrelanQ Mayor
Aspen Ciry Council
Publishetl in the Aspen Times Weekly on February
10, 2008. (1100835)
^ Complete items 1, 2, and 3. Also complete
item 4 h Resbicted Delivery is desired.
^ Pdnt your name and address on the reverse
so that we can return the card to you.
^ Attach this card to the back of the mailpiers,
or on the front'rf space permits.
1. Artkle Addressed to:
~~.,Qyy(,r,(,S ~'
~0 ~ ~G~~ ~~1~Gw~S
WITNESS MY HAND AND OFFICIAL SEAL
My commission expires:
Notary Public
ATTACHMENTS:
COPYOF THE PUBLICATION
^ Agent %D
B. Received by (Printed Name) I C ~are~f
D. is delivery address diRerent horn kemlT V Yes
h YES, enter delivery address below: ~ trb
Type
Certified Mall ^ fapress Mall
Registered ^ Return Receipt for Merchandise
^ Insured Mail ^ C.O.D.
4. ResMcted Delivery'1(Extra Fee) ^ Yes
2. ArdcleNumber 91 7108 2133 3934 3811 1657
(!Fenster /rom service laben
--- nn.. .... __._..... .._.-~~_..~..-0---~~ ~mcecmLecen
MEMORANDUM ~~
TO: Mayor Ireland and Aspen City Council
COPY: John Worcester, City Attorney
FROM: Chris Bendon, Community Development Director (.~
RE: Appeal of Land Use Code Interpretation -Brewery Tastings
DATE: February 25, 2008
SUMMARY:
One of the jobs assigned to the Community Development Director is to provide
interpretations of the text of the City's Land Use Code. This is a formal process in which an
applicant requests a written interpretation and, if they don't agree with the interpretation,
affords the applicant the right to appeal the decision to the City Council.
There are three criteria upon which the City Council has to decide an appeal of a code
interpretation. Based solely upon the record established by the original decision, the City
Council shall consider whether:
1) There was a denial of due process;
2) The administrative body exceeded its jurisdiction; or,
3) The administrative body abused its discretion.
These standards ask whether the Director's actions were ethical. The City's code states that
the decision or determination made by the administrative officer shall not be reversed or
modified unless there is a positive finding on one of these criteria. (Please see Exhibit C for
the entire code section.)
In this case, the interpretation rendered by the Community Development Director addresses
whether and to what extent "tastings" are allowed in a Brewery. The interpretation arose
with respect to the Aspen Brewing Company located in the Service Commercial Industrial
Zone District in which Restaurants and Bars are specifically not allowed.
The City of Aspen Land Use Code defines Brewery as -"A facility for the production and
packaging of alcoholic malt beverages for distribution which does not generally receive the
public or engage in retail sales. "
Staffs interpretation of this definition was that it did not necessarily preclude "tastings" but
that such a component of the operation should be minimal and clearly ancillary to the primary
use. (Please refer to Exhibit A for the full interpretation.) This was especially important in
light of the use Restaurant and Bar being specifically prohibited in the SCI Zone District.
CODE INTERPRETATION AND CODE AMENDMENT:
The question in a code interpretation is what does the code say? On occasion, applicants
seek a code interpretation because they believe the code should say something else. The code
amendment process is the proper venue for the question what should the code say?
Incidentally, Community Development staff is in the process of amending the SCI Zone
District. Amendments to the SCI Zone District have been reviewed by the Planning and
Zoning Commission and are tentatively scheduled for public hearing with City Council for
April l0a'. In the code amendment process, what the code should say is addressed. The
applicants have been alerted to this code amendment schedule.
STANDARDS OF REVIEW:
1. Due Process -With respect to due process, staff of the Community Development
Department alerted the Director to an article in the Summit Daily Newspaper that
characterized the Brewery as a place to `hang-out.' Staff of the Community Development
Department also alerted the Director to the building plans that indicated an azea that appeared
to be designed to function as a bar.
The Director initiated several meetings with the principals of the Brewery to better
understand the intended use of this area and the proposed operation. The Brewery operators
explained the operations of the business and the intent of tastings. The Director reviewed the
SCI zoning and the definition of a Brewery with the applicants. The Director also reviewed
the applicable liquor laws with the City Clerk and the Brewery definition with staff of the
Community Development Department, staff of the Manager's Office, and a private planning
consultant temporarily retained by the applicant.
After these initial discussions about the SCI Zoning and the proposed operation of this
specific area of the Brewery, and in consultation with the applicant's attorney, it was
determined that a formal code interpretation was needed. This was decided in part to permit
the owners of the brewery the ability to appeal the determination. Meetings with the Brewery
principals were held in mid-November through mid December. The interpretation was issued
on December 19, 2007, and later re-issued January 2, 2008, in order to extend the time in
which the applicant could seek an appeal. The appeal was submitted January 16, 2008,
within the appeal period.
As required by the Land Use Code, the appellant was provided notice of tonight's meeting
via registered mail and all other affected parties were noticed by publication in the
newspaper, as required. (Please see Exhibit D.) Assuming tonight's meeting does not
contain any procedural flaws; staff believes that proper due process has been provided to the
appellant.
2. Jurisdiction -The Director's iurisdiction to interpret the Land Use Code is established in
Chapter 26.210 of the City of Aspen Land Use Code. This Chapter outlines the jurisdiction,
authority, and duties allocated to the Community Development Director. One of the
2
Director's duties outlined in the Chapter reads: "To render interpretations of this Title or the
boundaries of the Official Zone District Map pursuant to Chapter 26.306. " Staff believes
this language is clear and it does not appear that the applicant is questioning this provision of
the code.
3. Discretion -With respect to abuse of the Director's discretion, the Director did need to
use his discretion in rendering the interpretation. The question is whether the Director
abused that discretion or acted unethically.
In analyzing the code, it was clear to the Director that tastings and on-site consumption were
not specifically allowed. In fact, a strict reading of the Brewery definition could suggest that
on-site consumption is outright prohibited. In other zone districts, such as the Commercial
Core, Restaurants and Bars are clearly allowed and no limitations (other than applicable
liquor laws) dictate how a Brewery could manage tastings or any other form of on-site
consumption.
The City of Aspen Land Use Code defines Brewery as -"A facility for the production and
packaging of alcoholic malt beverages for distribution which does not generally receive the
public or engage in retail sales. "
The Director reviewed the wording of the code with the Brewery owners as well as the
provision in the SCI Zone that allows up to 25% of a businesses space to be allocated to
"accessory retail sales, offices, showroom, or customer reception. "
Accessory uses are very common and all of the City's zone districts allow for "accessory
uses." The code defines accessory use as "a use that is supportive, secondary and
subordinate to the principal use of a lot, parcel, building or structure. (See Supplementary
Regulations Section 26.575.140, Accessory uses and accessory structures). "
The supplementary section provides further that "An accessory use shall not be construed to
authorize a use not otherwise permitted in the zone district in which the principal use or
structure to which it is accessory. An accessory use or structure may not be established prior
to the establishment of the principal use or structure to which it is accessory. Accessory
buildings or structures shall not be provided with kitchen or bath facilities sufficient to
render them suitable for permanent residential occupation. "
So, the Director concluded that accessory uses are allowed but must be incidental to the
primary use and not be a use that is outright prohibited.
Applying this to the Brewery example, there are many ancillary uses that, in staff s opinion,
should be considered normal and expected even considering the "...and not generally
receiving the public or engaging in retail sales" portion of the Brewery definition. These
include an office for the operation, storage, sales of mugs and t-shirts, tours of the operation,
and sales of to-go "growlers."
3
Staff also considers tastings to be incidental to a brewery - an accessory use. This is the first
component of the Director's interpretation. At the same time, Restaurants and Bars are a
defined use allowed in several zone districts but specifically not allowed in the SCI Zone. In
order to comply with the accessory use requirements stated above, the difference between
tastings and a Bar needed to be defined. Hence, the discussion with the Brewery owners
about the ways to differentiate brewery tastings from a Bar. This discussion lead to the
second part of the interpretation.
The Brewery owners discussed with staff the rationale for providing on-site tastings -the
tastings provide exposure of their products to the general public and provide the public the
ability to meet the brewers and witness the brewing process. The owners also suggested that
they were not intending to create a "hangout" or "bar-like" atmosphere. Staff and the
Brewery owners discussed the components of the operation and what could be perceived as a
"bar-like" atmosphere -hours of operation, amount of beer that could be served, and the
general atmosphere of the establishment itself.
It is suggested in the appeal letter that the Director acted with some sort of malice and does
not want a Brewery in Aspen to succeed. Staff does not believe this to be the case. This is an
exciting new use for the SCI District and one in which staff (the same staff that provided the
interpretation) has been encouraging to happen since 1998 when the use was added to the
zone. Staff is not interjecting a "puritan" or "prohibitionist" or "fascist" attitude in this
interpretation, as has been suggested. Staff has approached this task with a very pragmatic
and realistic administration of the zoning limitations while enabling and encouraging the use
to be commercially successful. The Director believes that his discretion was applied
appropriately and that the interpretation was rendered ethically.
STATE LICENSE Bc OTHER BREWERIES IN THE STATE:
The appellant's attorney suggests that the State license to operate a brewery supersedes local
zoning laws. The City disagrees -local zoning regulations are not "trumped" by a State
license. The appellant has also identified several breweries in Colorado and the applicable
limitations on tastings for those breweries. These other breweries are not regulated by the
City of Aspen and the appellant has not indicated the zoning laws of those jurisdictions.
Nevertheless, the City of Aspen does have jurisdiction to enforce its Land Use Code
independent of other towns and cities in the State.
THE BAC CHART:
The applicant suggests that the intoxication level of its patrons is of no concern. Staff agrees
- while the intoxication level of patrons driving may be a concern of the City Police
Department, the only matter of concern to the Community Development Department is the
use of the space - is this a Brewery or is this a Bar? The Director used the BAC chart for
some guidance on the intent of the Brewery to provide "tastings" -the thought being that
legal intoxication would indicate consumption of more than a "taste."
4
TWO RESOLUTIONS:
Attached are two Resolutions. One finds that the Director acted correctly and affirms the
interpretation. The second finds that the Director exceeded his jurisdiction, abused his
authority, or failed to provide due process and reverses the interpretation.
RECOMMENDATION:
Staff believes the Director's interpretation was rendered ethically and that no abuse of
authority or exceeding of jurisdiction occurred. Staff recommends City Council uphold
the Director's interpretation by adopting the proposed Resolution affirming the
interpretatiou. If the City Council finds the Director did not act correctly, City Council will
need to render an interpretation of the land Use Code. This may be more or less restrictive
that the interpretation rendered by the Director.
CITY MANAGER COMMENTS:
RECOMMENDED MOTION: (all mot10n5 m be made In the pOSltlve~
"I move to approve Resolution No. ~ 5 , Series of 2008, [affirming or reversing] the
Community Development Director's interpretation of the Land Use Code regarding tastings
within Brewery."
ATTACHMENTS:
Exhibit A -Interpretation dated January 2, 2008.
Exhibit B -Appeal letter from Christopher Bryan
Exhibit C -Land Use Code Section Regazding Appeals
Exhibit D - Affidavit of notice
5
RESOLUTION N0. ~ ~ ,F~ (Reversing Decision)
(SERIES OF 2008)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL APPROVING AN
APPEAL AND REVERSING THE DECISION OF THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING TASTINGS WITHIN A
BREWERY.
WHEREAS, the Community Development Director received a request for a
interpretation of the Land Use Code regarding tastings within a Brewery from the owners
of the Aspen Brewing Company represented by Christopher Bryan of Garfield and Hecht
Attorneys; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director
rendered a decision and the applicant sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the
Interpretation of the Director or modify or reverse the Interpretation upon a finding that
there was a denial of due process, exceeding of jurisdiction, or abuse of authority in
rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and verbal
testimony from the Aspen Brewing Company principals and/or representatives and the
Community Development Director and has found that the Director either exceeded his
jurisdiction, abused his authority, or did not provide due process in rendering the
interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and
is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council approves the appeal of
the Community Development Director's decision regarding a tastings within a Brewery
and reverses the decision as follows:
This Resolution shall not affect any existing litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
under such prior ordinances.
Resolution No. ,Series of 2008. Page I
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for
any reason held invalid or unconstitutional in a court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
APPROVED by the Aspen City Council at its regular meeting on , 2008.
ATTEST:
Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor
APPROVED AS TO FORM:
John Worcester, City Attorney
Resolution No. _, Series of 2008. Page 2
RESOLUTION N0. ~,1J(Affirming Decision)
(SERIES OF 2008)
A RESOLUTION OF THE CITY OF ASPEN CITY COUNCIL AFFIRMING AN
INTERPRETATION OF THE LAND USE CODE MADE BY THE COMMUNITY
DEVELOPMENT DIRECTOR REGARDING TASTINGS WITHINA BREWERY.
WHEREAS, the Community Development Director received a request for a
interpretation of the Land Use Code regarding tastings within a Brewery from the owners
of the Aspen Brewing Company represented by Christopher Bryan of Garfield and Hecht
Attorneys; and,
WHEREAS, pursuant to Chapter 26.306 -Interpretations of Title, the Director
rendered a decision and the applicant sought an appeal; and,
WHEREAS, the City Council, pursuant to Chapter 26.316, may affirm the
Interpretation of the Director or modify or reverse the Interpretation upon a finding that
there was a denial of due process, exceeding of jurisdiction, or abuse of authority in
rendering the interpretation; and,
WHEREAS, the City Council has taken and considered written and verbal
testimony from the Aspen Brewing Company principals and/or representatives and the
Community Development Director and has found that the Director provided due process
and neither exceeded his jurisdiction or abused his authority in rendering the
Interpretation; and,
WHEREAS, the City of Aspen City Council finds that this Resolution furthers and
is necessary for the promotion of public health, safety, and welfare.
NOW, THEREFORE BE IT RESOLVED that the City Council affirms the
Community Development Director's Interpretation of the Land Use Code regarding
tastings within a Brewery.
This Resolution shall not affect any existing litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the ordinances
repealed or amended as herein provided, and the same shall be conducted and concluded
under such prior ordinances.
If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for
any reason held invalid or unconstitutional in a court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent provision and shall not affect
the validity of the remaining portions thereof.
Resolution No. ,Series of 2008. Page I
APPROVED by the Aspen City Council at its regular meeting on , 2008.
ATTEST:
Kathryn S. Koch, City Clerk Michael C. Ireland, Mayor
APPROVED AS TO FORM:
John Worcester, City Attorney
Resolution No. _, Series of 2008. Page 2
January 2, 2008
Duncan Clauss
Brad Veltman
Owners
Aspen Brewing Company, LLC
555 North Mill Street
Aspen, CO 81611
c/o Chris Brian
Gazfield and Hecht Attorneys
601 East Hyman
Aspen, CO 81611
Re: Aspen Brewery and "Tastings"
Dear Mr. Clauss and Mr. Veltman:
ti;h,~ a
a
Thank you for coming in to speak with Jennifer Phelan and me November 9th, 15th and
again yesterday about the Aspen Brewing Company operation and your desire to provide
customers with samples of your product line. As we discussed, the Service Commercial
Industrial Zone District permits Breweries and limits the azea in which a business may
receive the public as follows:
26.710.160.8. .Permitted uses. The following uses aze perritted as of right in the
Service Commercial Industrial (SCI) Zone District. Except as noted below, each of
the permitted uses may have, in combination, no more than twenty-five percent
(25%) of the floor area devoted to retail sales, offices, showroom or customer
reception and such uses shall be ancillary to the primary commercial use. This floor
area percentage may be increased through special review by the Planning and
Zoning Commission, pursuant to Chapter 26.430 and according to the standazds of
Subsection 26.710.160.E.
S/C/I uses which may use, in combination, up to 25% of the floor area for
accessory retail sales, offices, showroom or customer reception:
18. Brewery and brewing supply.
`%
26.104.100 Brewery. A facility for the production and packaging of alcoholic malt
beverages for distribution which does not generally receive the public or engage in
retail sales.
In our discussion, we reviewed that while retail sales aze not prohibited, the definition of
Brewery clearly indicates that the retail component of the operation is accessory to the
primary use. As you described, most of your operation will be the production and-
packaging of beer for off-premises consumption. You expect you may offer tours from
time to time. You expect your business to include the on-site sale of "growlers" to
customers for off-site consumption. We reviewed the "25% retail limitation" in which
businesses in this zone may only have, in combination, up to 25% of the floor space
dedicated to customer reception, retail sales, showroom, and office azea.
As you described, a component of your business plan provides customers the ability to
sample your beers. We understand the importance of the general public becoming
familiar with your product, witnessing the brewing process, and being able to meet the
brewers. We agree that the ability for customers to sample beers is consistent with the
general public's perception of a brewery and should be allowed.
As we discussed, the SCI Zone does not permit restaurant or bars and the defmition of
Brewery does not explicitly allow for tastings. It is important that this tastings
component of your operation not operate as a bar or be perceived by the public as a baz.
Therefore, the following limitations shall apply:
Patrons shall be limited to consuming no more than sixteen ounces on premises.
This would permit a sampler of four ounces of four beers; or, two half-pint glasses;
or, one pint glass. This limit shall apply per person per day. We suggest you
develop a way to monitor this. This is based, in part, on maintaining a potential
Blood Alcohol Content of .OS% or less and considering that your product may have
higher alcohol content than. standazd beers. Please refer to the BAC chart attached.
There shall be no limitation on the sale of your product for off-site consumption,
such as growlers. You proposed tasting hours of noon to 9 pm Monday through
Saturday and noon to 6 pm on Sundays and we accept those hours. Please be
observant of all applicable liquor laws.
We ask that if you install televisions that you not use them to broadcast general
viewership programming. Showing "the game" on television may be perceived by
the public as a creating a bar atmosphere. As we discussed, showing promotional
videos, videos about beer-making, etc. do not create this baz atmosphere and aze
acceptable. We ask that Aspen Brewing Company and its employees use its best
judgment and restrict or prohibit consumption of alcohol by patrons who
demonstrate an inability to behave within reason.
The Community Development Department may impose additional restrictions as may be
necessary in order for the Aspen Brewing Company to comply with the provisions and
limitations of the City's Land Use Code and the definition of Brewery including, but not
limited to, hours of operation, hours of tastings, limits on the quantity of alcohol that may
be offered patrons as a taste, the total number of patrons that may occupy the brewery at
any given time, or other aspects of the operation that may engender a bar atmosphere.
The Community Development Department understands the effect that additional
restrictions may have on the business and shall not impose any additional restriction
without first discussing the issue with the owners of Aspen Brewing Company and
allowing ample time to discuss possible ways to resolve the issue.
During our discussion yesterday, you indicated that while you may choose to pursue an
appeal of this interpretation that you understand and will abide by these limitations.
Sincerely,
1
Chris Bendon, AICP
Community Development Director
City of Aspen
Ability to Appeal: As this is an Interpretation of the Land Use Code, you have a right to
appeal this interpretation to City Council by filing a notice of appeal. The notice of
appeal shall be in writing and filed with the Community Development Director within
fourteen (14) days of the date of the decision being appealed. Failure to file such notice of
appeal within the prescribed time shall constitute a waiver of any rights to appeal this
decision.
Copy: Jennifer Phelan, Deputy Planning Director
Todd Grange, Zoning Officer
John Worcester, City Attorney
Attach: BAC Table
t
BAC Table for Men
Body Weight in Pounds
Drink 100 120 140 160 180 200 220 240
s Condition
1 .04 .03 .03 .02 .02 .02 .02 .02 Driving
2 .O6 .OS .OS .04 .04 .03 .03 Skills
Significantly
3 .07 .O6 .O6 .OS .OS Affected
4 .07 .06 possible
S Criminal
Penalties
6
7
8
9
10
Subtract .O1% for each 40 minutes of drinking.
1 drink .1.25 oz. 80 proof liquor, 12 oz. beer, or 5 oz. wine.
ASPEN OFFICE
601 Eas[ Hyman Avenue
Aspen, Colorado 81G11
'telephone (970) 925-1936
Facsimile (970) 925-3008
GLF.NWOOD SPRINGS OFFICE
"rhe Denver Ccntrc
420 Seven[h Street, Suile 100
Glenwood Springs, Colorado 81601
Telephone (970) 947-1936
Facsimile (970) 947-1937
GARFIELD & HECHT, PL~ h~ ,~ B ~°n ark Rload
Post Office Box 5450
ATTORNEYS AT LAW Avon, Colorado Rl6zo
'Celephone (970) 949-0707
Since 1975 Facsimile (970) 949-1810
www.garFieldhech[.com BASALT OFFICE
River Vicw Plaza
100 Elk Run Orivc, Suite 220
Basalt, Colorado 81621
Telephone (970) 927-1936
Facsimile (970) 927-1939
January 16, 2008
CHRISTOPHER D. BRYAN
ASPEN OFFICE
ebryan(rr),garfieldhechY.com
V!A U.S. MAIL AND HAND DELIVERY
Mr. Chris Bendon, AICP
Community Development Director
City of Aspen
130 South Galena Street
Aspen, Colorado 81611
Re: Aspen Brewing Company
Dear Mr. Bendon:
On behalf of Aspen Brewing Company, we write to notify you that the company has
chosen to exercise its appeal rights provided by Aspen Municipal Code § 26.316.030 and as
prescribed by you in previous communications. Lawyers in the City Attorney's office, as legal
counsel to the Aspen City Council, have been copied on this appeal.
L INTRODUCTION
Aspen Brewing Company is Aspen's only brewery. It will brew, bottle, sell, wholesale,
and distribute beer made on the premises. Aspen Brewing Company will put Aspen on the map,
so to speak, of microbreweries in the United States. The brewery hopes to market its beer not
only to area "watering holes" but also to regional and national brewpubs, bars, restaurants, and
retailers. The distinctive taste of the Aspen Brewing Company's numerous different beers will
undoubtedly be an attraction to both locals and tourists who want to buy growlers, bottles, cases,
or kegs of beer, learn more about Aspen beer, and taste the different brews being made on-site.
The brewery is scheduled to open sometime in late January or early February 2008. The only
obstacle that jeopardizes the brewery's success is the fact that the Community Development
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Mr. Chris Bendon
January 16, 2008
Page 2 of 8
Department has unilaterally imposed a strict one-pint daily limit to the amount of beer that one
individual can drink in the tasting room of the brewery. That putative regulation will sharply
curtail the brewery's business, its on-site sales, and the broader market of vendors that will
hopefully carry and sell the beer in Colorado and throughout the United States.
II. COMMUNITY DEVELOPMENT DEPARTMENT CODE INTERPRETATION
On December 19, 2007, you issued a code interpretation letter purporting to regulate the
volume of beer brewed on-site that prospective purchasers may imbibe per day. According to
your letter, the following limitations shall apply:
Patrons shall be limited to consuming no more than sixteen ounces
on premises. This would permit a sampler of four ounces of four
beers; or, two half-pint glasses; or, one pint glass. This limit shall
apply per person per day. We suggest you develop a way to
monitor this. This is based, in part, on maintaining a potential
Blood Alcohol Content of 0.5% or less and considering that your
product may have higher alcohol content than standard beers.
Please refer to the BAC chart attached.
There shall be no limitation on the sale of your product for off-site
consumption, such as growlers. You proposed tasting hours of
noon to 9 p.m. Monday through Saturday and noon to 6 p.m. on
Sundays and we accept those hours. Please be observant of all
applicable liquor laws.
We ask that if you install televisions that you not use them to
broadcast general viewership programming. Showing the "the
game" on television may be perceived by the public as [ ]creating
a bar atmosphere. As we discussed, showing promotional videos,
videos about beer-making, etc. do not create this bar atmosphere
and are acceptable. We ask that Aspen Brewing Company and its
employees use its best judgment and restrict or prohibit
consumption of alcohol by patrons who demonstrate an inability to
behave within reason.
~ The letter was reissued on January 2, 2008, and Aspen Brewing Company was granted fourteen (14) days from that
date to appeal, pursuant to Aspen Municipal Code § 26.316.030.
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Elsewhere in the code interpretation letter, you note "the importance of the general public
becoming familiar with your product, witnessing the brewing process, and being able to meet the
brewers. We agree that the ability for customers to sample beers is consistent with the general
public's perception of a brewery and should be allowed."
The proposed hours for tastings have been approved by the Community Development
Department; there is no disagreement as to that issue.
No one disputes that the primary purpose of the brewery is to produce and package beer
for off-premises consumption. Tours and the on-site sale of growlers to customers for off-site
consumption will also occur. Though the sampling of beers is secondary to the principal use of
the brewery, it is nonetheless an integral marketing tool to generate interest and a customer base
for the various beers being brewed by the Aspen Brewing Company.
The only major point of disagreement between the Community Development Department
and the Aspen Brewing Company is how much beer a customer should be allowed to sample.
The Community Development Department purportedly interpreted the Aspen Municipal
Code § 26.710.160.B to restrict consumption to sixteen (16) ounces per person per day. The
Code, however, is silent on the issue of daily per-person consumption limits.
As a matter of law, the State of Colorado regulates breweries. The Aspen Brewing
Company is permitted to sell its manufactured product directly to a consumer, whether in a
package or by the glass, as part of the wholesale beer license issued by state licensing authority.z
See C.R.S. § 12-47-406(1)(b). Under the terms and conditions of that wholesale beer license, the
Aspen Brewing Company is prohibited from selling other beers, wines, liquors, or spirits in the
brewery; the brewery is, however, permitted "[t]o maintain and operate warehouses and one
salesroom in this state to handle malt liquors to be denominated a wholesale beer store[.]"
C.R.S. § 12-47-406(1)(b)(I).
Moreover, since the license is not a retailer license, the zoning restrictions set forth in
C.R.S. § 12-47-313(1)(c) do not apply to the Aspen Brewing Company. We underscore the state
regulations to remind you that the State of Colorado's licensing authority has approved and
signed off on the Aspen Brewing Company's business and has issued a wholesaler's beer
license. Accordingly, the only regilatory obstacles posed to the brewery's small business
sustainability are the restrictions imposed by the City of Aspen. Those restrictions, however,
'' The term "sell at wholesale," by statute, "shall not be construed to prevent a brewer or wholesale dealer from
selling malt liquors [o the intended customer thereof[.]" C.R.S. § 12-47-103(35).
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appear to be void on preemption grounds, as the state government occupies the field of licensure
and regulation on this issue.
The Community Development Department attempts to couch its one-pint regulation
based on BAC levels. That argument is not persuasive. Notwithstanding the fact that this
purported municipal regulation is preempted by state law, the BAC issue is of no moment here:
most customers will likely be pedestrians or take public transportation, as there is a RFTA bus
stop immediately outside the brewery and only six (6) parking spaces. Moreover, fire safety and
zoning regulations preclude the brewery from crafting any beer with an alcohol by volume
("abv") in excess of 12. The Aspen Brewing Company anticipates its beers being in the 5-7 abv
range.
Incidentally, counsel is aware of no other establishment in the City of Aspen that is
subject to aper-person quantity limit to alcohol consumption, and the City's attempt at
regulation here seems heavy-handed. It therefore appears that the code interpretation-
ostensibly designed to maintain a BAC level below 0.5%-is a pretext for arbitrarily choosing a
rule limiting intake to one pint per person per day.
Visitors of the Aspen Brewing Company will not be enticed to treat the brewery as a bar
per se. This is for several reasons:
• First, it is worth emphasizing that Aspen Brewing Company hopes to promote an
intimate atmosphere where beer connoisseurs will gather and sample inventive,
tasty beers made on-site. The brewery specifically does not want to encourage
binge drinking but, rather, will foster beer appreciation, much like wine tastings at
wineries and vineyards. Aspen Brewing Company aims to be in the vanguard of
the boutique industry of "craft beer"-which discourages mass consumption and
instead aspires for an informed appreciation of the brewing process and finished
product. Part and parcel of that brewer-customer dynamic is the ability to spur
interaction, conversation, and explanation of the different beers.
• Second, Aspen Brewing Company purposefully does not want to interfere or
compete with local bars. This is because the brewery hopes to have its beers
carried and sold at bars and restaurants throughout Aspen and the Roaring Fork
Valley (and beyond).
• Third, the "tasting room" is very small just over five hundred square feet (500
sq. ft.). It is within the twenty-five percent (25%) limit for "customer reception"
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for SCI-zoned businesses.3
atmosphere."
The tight space is not conducive to a "bar
• Fourth, the brewery's tasting room will not have bar-related attractions (e.g.,
dancing, live music, DJs, performances, stand-up comedy, pool tables,
shuffleboard, chess boards, video games, bar trivia, etc.).
For these reasons, among others, the brewery is not in danger of, as the code
interpretation letter put it, "being perceived by the public as a bar."
Next, The City's restriction of one pint per person per day of beer will affect the business
by limiting the number of beers a potential customer can taste and buy. This goes beyond
individual walk-in customers and extends to corporate representatives, beer connoisseurs,
purchasers, vendors, etc. It logically follows that if a prospective merchant or customer is to buy
large quantities of different beers, he or she will first want to sample them. The restriction of one
pint per person will obviously limit what will ultimately be purchased.
Finally, the restriction on television use is non-sensical and impractical. To dictate what
programming can and cannot be displayed on awall-mounted television at one's own business is
outside the scope of governmental regulation and has no basis in the Aspen Municipal Code. We
ask the City to remove this restriction as well.
III. COMPARATIVE ANALYSIS WITH OTHER BREWERIES
No known Colorado brewery has the limitation on consumption that the City of Aspen
purports to impose upon the Aspen Brewing Company. The word "brewery" is a term of art, as
it connotes a place where beer, or another type of malt beverage, is primarily brewed.4 Many
breweries feature tasting, or sampling, rooms, which allow prospective purchasers to taste
different types of beer crafted on the premises before deciding what to buy.
An extensive review of other breweries in Colorado indicates that there are no
governmentally imposed limitations as to the volume of beer that can be consumed in tasting
rooms there. We understand that none of the below-listed Colorado breweries have a liquor
3 'The total area of the brewery is approximately 2,180 sq. f[.
' Generally, a brewery does not serve food and frequently only pours and sells beer made by the brewery itself (i. e.,
no other beers, wines, or liquors are available). In this sense, a "brewery" varies greatly from a "brewpub," which
typically sells its own beer in addition to other labels of beer, wine, and liquor, and, almost always, food.
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license or a permit to operate a bar. More pertinent information as to each Colorado brewery is
provided as follows:
BREWERY LOCATION TASTING HOURS PRICES LIMITATIONS
Bristol Brewing Colorado 10:00 a.m, to 9:00 p.m. Pints for No limitations
Company Springs, Monday -Saturday $3.50 (soon
Colorado to be $4.00)
Dry Dock Aurora, Open until 10:00 p.m. No limitations
Brewing Colorado
Company
Durango Durango, 3:00 p.m. to 7:00 p.m. $3.50 & up No limitations
Brewing Colorado Monday -Thursday (taste /pint)
Company 3:00 p.m. to 9:00 p.m.
Friday
3:00 p.m. to 10:00 p.m.
Saturda
Fort Collins Fort Collins, 12:00 p.m. to 6:00 p.m. $2.00 (taste / No limitations
Brewery Colorado Monday-Saturday pint)
Great Divide Denver, 3:00 p.m. to 8:00 p.m. $4.00 - $5.00 No limitations
Brewing Colorado Monday -Friday (taste /pint)
Company 2:00 p.m. to 7:00 p.m.
Saturda
Left Hand Longmont, 2:00 p.m. to 8:00 p.m. Normal No limitations
Brewing Colorado Monday -Thursday prices for on
Company 12:00 p.m. to 9:00 p.m. & off
Friday premise sales
12:00 to 8:00 pm.
Saturday
3:00 p.m. to 8:00 p.m.
Sunday
Odell Brewing Fort Collins, 11:00 a.m. to 6:00 p.m. $4.00 - $6.00 No limitations
Com any Colorado Monda -Friday (taste / int)
Pagosa Brewing Pagosa 4:00 p.m. - 10:00 p.m. No limitations
Company Springs, Monday -Saturday
Colorado (seven days a week
durin summer)
SKA Brewing Duran o, 9:00 a.m. to 7:00 .m. $2.50 & u No limitations
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Colorado Monday-Friday (taste /pint) except 10% abv
11:00 a.m. to 4:00 p.m. brew (1 pint per
Saturday person)
Twisted Pine Boulder, 3:00 p.m. to 8:00 p.m. $2.75 - $3.75 No limitations
Brewing Colorado Monday -Friday (taste /pint)
Company 12:00 p.m. to 6:00 p.m.
Saturday
IV. THE ASPEN BREWING COMPANY: AN ASSET TO ASPEN
Council has emphasized the importance of encouraging, nurturing, and sustaining locally
owned and operated small businesses. This is a prime opportunity for the City to embrace a
fledgling new business in an SCI zone that needs and deserves community support.
It is no secret that commercial leases at market rates in Aspen are expensive, and start-up,
financing, payroll, operation, and mazketing costs are considerably high. The sustainability of
this new small business in our community depends on its being able to turn a profit. That goal,
however, maybe thwarted if a municipal regulation such as the pint-per-person limit suppresses
sales.
Aspen's past, present, and future militates strongly in favor of the Aspen Brewing
Company's anticipated success. Historically, Aspen is a place where people va]ue a high quality
of life, neighborliness, and good cheer.
We fully expect locals to patronize Aspen Brewing Company and to purchase beer for
their personal consumption at home. We also expect that many bazs and restaurants in the area
will carry and sell the different types of beer that the brewery produces. We hope that tourists
who visit the brewery see what kind of top-notch product local brewmasters can craft and will
take a growler or two back with them to their respective hometowns.
We very much hope that the City recognizes the value and uniqueness of the Aspen
Brewing Company. The brewery is a small business owned and operated by members of the
community, who have invested a large amount of money, time, and effort into creating a brewery
of which Aspen can be proud. It would be unfortunate if the City were now to use the machinery
of government to bollix a new small business such as the Aspen Brewing Company by not letting
it effectively market and sale its sole product.
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In short, Aspen Brewing Company is an asset to the community and should not be
hamstrung by a stringent one-pint per person per day regulation that has no basis in the Code.
V. CONCLOSION
For the reasons set forth above, the Community Development's interpretation is patently
arbitrary and constitutes an abuse of discretion. Accordingly, the Aspen Brewing Company
seeks a ruling by the Aspen City Council overruling the code interpretation issued by the
Community Development Department. The brewery asks that the City of Aspen not regulate
per-person alcohol consumption.
If you have any questions, need any additional information, or would like to discuss this
matter in further detail, please do not hesitate to contact me. Please notify me of a hearing date
as soon as possible. Thank you.
Very truly yours,
Christophe .Bryan
cc: John Worcester, Esq.
James True, Esq.
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Chapter 26.316 ~ `-' `~ ~r
APPEALS
Sections:
26.316.010 Appeals, purpose statement.
26.316.020 Authority.
26.316.030 Appeal procedures.
26.316.010 Appeals, purpose statement.
The purpose of this Chapter is to establish the authority of the Boazd of Adjustment, Growth
Management Commission, the Planning and Zoning Commission, and City Council to heaz and decide
certain appeals and to set forth the procedures for said appeals. (Ord. No. 17-2002 § 2 (part), 2002)
26.316.020 Authority.
A. Board ofAdjustment. The Boazd of Adjustment shall have the authority to heaz and decide the
following appeals:
1. The denial of a variance pursuant to Chapter 26.314 by the Planning and Zoning Commission
or Historic Preservation Commission.
B. City Council. The City Council shall have the authority to heaz and decide the following appeals:
1. An interpretation to the text of this title or the boundazies of the zone district map by the
Community Development Director in accordance with Chapter 26.306. An appeal ofthis nature
shall be a public meeting.
2. Any action by the Historic Preservation Commission in approving, approving with conditions,
or disapproving a development application for development in an "H,", Historic Overlay
District pursuant to Chapter 26.415. An appeal of this nature shall be a public meeting.
3. The scoring determination of the Community Development Director pursuant to Chapter
26.470. An appeal of this nature shall be a public meeting.
4. The allocation of Growth Management Allotments by the Planning and Zoning Commission
pursuant to Chapter 26.470. An appeal of this nature shall be a public meeting.
5. Any other appeal for which specific authority is not granted to another boazd or commission as
established by this title. An appeal of this nature shall be a public meeting.
C. Planning and Zoning Commission. The Planning and Zoning Commission shall have the
authority to heaz and decide an appeal from an adverse determination by the Community Development
Director on an application for exemption pursuant to the growth management quota system in
accordance with Section 26.470.060(D).
City of Aspen Land Use Code.. August, 2007.
Part 300, Page 35
D. Administrative Hearing Officer The Administrative Hearing Officer shall have the authority
to hear an appeal from any decision or determination made by an administrative official unless
otherwise specifically stated in this title.
(Ord. No. 17-2002 § 2 (part), 2002; Ord. No. 27-2002 § 23, Ord. No. 12-2007; 2002)
26.316.030 Appeal procedures.
A. Initiation. Any person with a right to appeal an adverse decision or determination shall initiate an
appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The
notice of appeal shall be filed with the Community Development Director and with the city office or
department rendering the decision or determination within fourteen (14) days ofthe date of the decision
or determination being appealed. Failure to file such notice of appeal within the prescribed time shall
constitute a waiver of any rights under this title to appeal any decision or determination.
B. Effect of filing an appeal. The filing of a notice of appeal shall stay any proceedings in
furtherance of the action appealed from unless the Community Development Director certifies in
writing to the chairperson of the decision-making body authorized to hear the appeal that a stay poses
an imminent peril to life or property, in which case the appeal shall not stay further proceedings. The
chairperson of the decision making body with authority to hear the appeal may review such
certification and grant or deny a stay of the proceedings.
C. Timing of appeal. The decision-making body authorized to heaz the appeal shall consider the
appeal within thirty (30) days of the date of filing the notice of appeal or as soon thereafter as is
practical under the circumstances.
D. Notice requirements. Notice of the appeal shall be provided by mailing to the appellant and by
publication to all other affected parties. (See section 26.304.060(E)).
E. Standard of review. Unless otherwise specifically stated in this title, the decision-making body
authorized to hear the appeal shall decide the appeal based solely upon the record established by the
body from which the appeal is taken. A decision or determination shall be not be reversed or modified
unless there is a finding that there was a denial of due process, or the administrative body has exceeded
its jurisdiction or abused its discretion.
F. Action by the decision-making body hearing the appeal. The decision-making body hearing the
appeal may reverse, affirm, or modify the decision or determination appealed from, and, ifthe decision
is modified, shall be deemed to have all the powers of the officer, board or commission from whom the
appeal is taken, including the power to impose reasonable conditions to be complied with by the
appellant. The decision-making body may also elect to remand an appeal to the body that originally
heard the matter for further proceedings consistent with that body's jurisdiction and directions given, if
any, by the body hearing the appeal. The decision shall be approved by written resolution. All appeals
shall be public meetings.
(Ord. No. 55-2000, § § 4, 5; Ord. No. 27-2002 § 24, Ord. No. 12-2007, 2002)
City of Aspen Land Use Code. August, 2007
Part 300, Page 36
~~h~~
ATTACHMENT 7 ~~
AFFIDAVIT OF PUBLIC NOTICE
REQUIRED BY SECTION 26.304.060 (E), ASPEN LAND USE CODE
ADDRESS OF PROPERTY: ~ ,~ i~ / U!' ~~~ !_. L ~! , Aspen, CO
SCHEDULED PUBLIC HEARING DATE: )~h~ f'~~9 ~ j ~`~ ~ ~ ~~~ N~i1'~ , 200
STATE OF COLORADO )
ss.
County of Pitkin )
i ~
I ~n~ j ~ ~ L C- f {- "~~ (name, please print)
being or representing an Applicant to the City of A pen, Colorado, hereby personally
certify that I have complied with the public notice requirements of Section 26.304.060
(E) of/the Aspen Land Use Code in the following manner:
Publication of notice: By the publication in the legal notice section of an official
paper or a paper of general circulation in the City of Aspen at least fifteen (1 S) \~
days prior to the public hearing. A copy of the publication is attached hereto.
Posting of notice: By posting of notice, which form was obtained from the
Community Development Department, which was made of suitable,
waterproof materials, which was not less than twenty-two (22) inches wide
and twenty-six (26) inches high, and which was composed of letters not
less than one inch in height. Said notice was posted at least fifteen (15) days
prior to the public hearing and was continuously visible from the day of
200_, to and including the date and time of the public
hearing. A photograph of the posted notice (sign) is attached hereto.
Mailing of notice. By the mailing of a notice obtained from the Community
Development Department, which contains the information described in Section
26.304.060(E)(2) of the Aspen Land Use Code. At least fifteen (15) days prior to
the public hearing, notice was hand delivered or mailed by First class postage
prepaid U.S. mail to all owners of property within three hundred (300) feet of the
property subject to the development application. The names and addresses of
property owners shall be those on the current tax records of Pitkin County as they
appeared no more than sixty (60) days prior to the date of the public hearing. A
copy of the owners and governmental agencies so noticed is attached hereto.
(continued on next page)
Rezoning or text amendment. Whenever the official zoning district map is in
any way to be changed or amended incidental to or as part of a general revision
of this Title, or whenever the text of this Title is to be amended, whether such
revision be made by repeal of this Title and enactment of a new land use
regulation, or otherwise, the requirement of an accurate survey map or other
sufficient legal description of, and the notice to and listing of names and
addresses of owners of real property in the area of the proposed change shall
be waived. However, the proposed zoning map shall be available for public
inspection in the planning agency during all business hours for fifteen (15) days
prior to the public hearing on such amendments.
Signature
The foregoing "Affidavit of Notice" was acknowled ed before me this ~~day
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PUBLIC NOTICE
RE: A SEAL OF CITY OF ASPEN LAND UBE
COOE INTERPRETATION REGARDING BREW
ERIEB.
Publishetl in the Aspen Times Weekly on Febmary
10,2008.(1144853(
^ Complete ttems 1, 2, and 3. Also complete
ttem 4 H ResWcteC Delivery is desired.
^ Print your name and address on the reverse
so that we can return the prd to you.
^ Attach this card to the back of the mailpiece,
or on the front tt space permits.
1. Article Addressed ta:
~ l~„s ~~~( 4,.~
~~.s ~~ ~-
~ ~,,, ~, S Lb t
WITNESS MY HAND AND OFFICIAL SEAL
My cof~mmission expires: G
~N,Q~ Ol,(~, l~~Slnw
Notary Public
ATTACHMENTS:
COPYOF THE PUBLICATION
a
X
B.
C.
~ Ages
D. Is delivery address different irwn item i? ~ Ye;
If YES, enter delivery address fxbw: I~Na
3. Servke Type
Certified Mall ^ Express Msll
Registered ^ ReNm Receipt for MerchendLsa
^ insured Mail o c.o.o.
4. Restricted Delivery'! (Extra Feel ^ Yes
2. ANcleNumber 91 7108 2133 3934 3811 1640
(Transfer Irom servke fabep
PS Form 3811, February 2004 Gernestic FietumReceipt f02s95-02~b}isnD
NMichael C. Ireland, Mayor
Aspen CBy Council