· Resolution
#12, 2008 – Contract Castle Creek Hydropower Project
ORDINANCE
#4, SERIES OF 2008 – Code Amendment Service/Commercial/Industrial Zones
RESOLUTION
#13, SERIES OF 2008 – Lift One Neighborhood Master Plan COWOP Eligibility
LIFT
ONE MASTER PLAN COST SHARING AGREEMENT.
LIFT
ONE MASTER PLAN SUPPLEMENTAL BUDGET REQUEST
RESOLUTION
#15, SERIES OF 2008 – Appeal of Land Use Interpretation – Aspen Brewing Company
RESOLUTION
#14, SERIES OF 2008 – Appeal of Administrative Decision – Chateau Roaring Fork
#43
Mayor
1. Toni Kronberg
congratulated Council on working toward solutions and their new vision for
1. Councilman DeVilbiss reported he attended the RFTA board meeting and there have been discussions about engaging in fuel hedging. Councilman DeVilbiss said he will not vote for the hedging program until he can explain it to Council. Councilman DeVilbiss said one of his issues is what security will RFTA have that this instrument will pay off at the end of the period and what are the risks.
2. Councilman DeVilbiss noted March 17th is a RFTA board retreat. All elected officials and the public is invited. There is also a stakeholders meeting March 4th at 8:30 a.m. The public is also invited to that meeting.
3. Mayor
Ireland commended the
4. Mayor Ireland announced the next citizens budget task force is Wednesday February 27th at 5:30 p.m. at the Pitkin County Library.
5. Mayor Ireland noted each Council person submitted 15 names for their choices for the Historic Task Force.
6. Mayor
Ireland said he will be going to
7.
Councilman Romero moved to approve the consent calendar;
seconded by Councilman Skadron.
Councilman DeVilbiss requested a change in the minutes from “vents” to
“events”. Mayor
The consent calendar is:
All in favor, motion carried.
Ben Gagnon, community development department, told Council the public hearing on this ordinance will be March 24th. Gagnon said P&Z reviewed, made suggestions and approved code changes to the S/C/I zone. These amendments follow Council’s direction from a work session last fall to keep the zone district fairly strict in terms of the uses.
Councilman Romero noted there are design studio allowed elsewhere and are the ones in SCI grandfathered. Gagnon said yes, they are. Councilman Romero said medical offices are listed as permitted uses; however, the general term “office” has a governor of no greater than 10%. Councilman Romero asked for information at second reading as to how medical offices will be treated in that 10%. Councilman Romero said medical offices has an either/or condition of 15% of the building or .25:1 FAR. Councilman Romero said 15% of a building is not defined and is the .25:1 FAR whichever is less.
Councilman Skadron asked why restaurant and bar uses are specifically prohibited in the SCI zone. Gagnon said these uses have been restricted since 1975; there is no history of these uses being located in the SCI zone. Gagnon said retail and restaurant uses tend to go with the commercial core and is an inappropriate use for the SCI zone which looks to provide space for small businesses. Councilman Skadron said for second reading he would like information regarding appropriateness of restaurant use in the SCI zone.
Mayor
Councilman DeVilbiss moved to read Ordinance #4, Series of 2008; seconded by Councilman Romero. All in favor, motion carried.
ORDINANCE No. 4
(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.
Councilman DeVilbiss moved to adopt Ordinance #4, Series of
2008, on first reading; seconded by Councilman Romero. Roll call vote; Councilmembers Johnson, yes;
DeVilbiss, yes; Skadron, yes; Romero, yes; Mayor
Bendon said COWOP (Convenience or welfare of the public) is process with its source in the state statutes. Staff researched processes that municipalities were using to review projects where there are public properties or significant public interest involved. Bendon said the COWOP is essentially a master planning process to figure out a vision for a neighborhood, an area, or issues. Bendon said the process is to talk about goals, aspirations for the area, the obstacles to achieving those, the obstacles that something can be done about or the obstacles over which there is no control. From that, a vision and a plan will be developed with concurrence of the members.
Bendon outlined the proposed property which is
Bendon said the task force should have a broad range of perspectives and not be laden with any one particular perspective. Bendon suggested a task force team of 22 members including members from Council, P&Z, HPC, the 3 other landowners, neighbors, Aspen Valley Ski Club, ACRA, citizens at large. Bendon pointed out there are check ins with Council, with P&Z and with HPC throughout the process. Bendon said the task force should establish its goals and what it expects to achieve and check those goals with Council before they go forward. Bendon said staff anticipates this as a 6 month process starting in April.
Bendon said the economic analysis will be important. This is proposed to be done by a third party. Bendon said there should be discussion of the
methodology upon which the economics of the project will be reviewed prior to
the third party doing any analysis.
Bendon proposed a moderator being hired for the process. This is a significant area for redevelopment;
it is the second portal to the ski mountain; and is an important area. Bendon reminded Council there is an entitled
townhouse project on the west side of
Councilman Skadron asked in the cost sharing, “each party paying for independent services” if that means each party has its own group of professionals. Bendon said that means each representative will be paid for by their entity, like Bendon will be paid by the city; Sarpa will be paid by Centurion. The planner’s work will not be billed back to the applicant. When outside professionals are hired, the costs will be split by the 4 parties.
Councilman Skadron asked if the economic analysis is unique
to this resolution and to what extent are the financial constraints discussed
in the COWOP. Bendon noted in the
Obermeyer and Visitor Center COWOPs, the financial review was done in
house. Bendon said for this project,
outside expertise should be brought in to do that analysis. Bendon noted when the COWOP gets to
constraints, technical assistance will be brought in to see if there are things
that can be done about those constraints.
Councilman Johnson asked if it possible for Council to sign an agreement
that even though economic information will be provided, that it can be kept
from the public.
Councilman Johnson said when Council sets out its
parameters, would that be perceived as shutting down certain solutions or
discussions. Bendon said everyone has to
be realistic about what constraints exist; they are either constraints that
something can be done about, or nothing can be done about. Bendon said the task force will have to
determine if it is worth going around obstacles. Mayor
Councilman Romero asked how realistic the proposed timeline is compared to the other COWOPs. Bendon said some COWOPs have had no schedule. Obermeyer took about a year with no timeline expectation. Bendon agreed this is a compressed schedule. Bendon told Council he expects the COWOP meetings to be weekly at first and then twice a month throughout the process.
Councilman Johnson asked about including the Dolinsek property. Bendon said the outline of the proposed area is general. Bendon said the Dolinseks will be contacted. Councilman Johnson asked if ACRA has served as a voting member in prior task forces. Bendon said they did on the Visitor’s Center. Councilman Johnson asked if HPC and P&Z reviews of the project are a new step. Bendon said COWOP does not exclude HPC review; if they have jurisdiction, the project is subject to full HPC review. Bendon said it has been helpful to have HPC members on the COWOP task force to keep their Board up to date. Councilman Johnson asked what other development possibilities exist south of parcel H that are not being discussed. Bendon said that land is owned by the Ski Company, mostly in 10-acre mining claims. Councilman Johnson said he would like the conservation zoning district uses outlined.
Mayor
John Sarpa, Centurion Partners, owners of the property on
the west side of
David Bellack, Aspen Ski Company, told Council their staff has done a great job putting clarity into complicated concepts. The Ski Company is looking forward to be part of this, to improve the experience at the base of 1A. The Ski Company does not proposed any real estate development but optimize and enhance the ski experience and lifts and other related items.
Bob Daniel, Lift One Lodge, said they are two years into a
process and are suspending their application for this COWOP. Daniel said they went through a master plan
process for the properties on the east side of
Mayor
Alex Biel, vice-president Shadow Mountain Homeowners, stated
they would like to be part of the process.
They are physically close to the property and it is an exciting
opportunity. Carl Levy, President
Southpoint Condominium Association, said they are delighted with this proposal
and would like to participate in the COWOP.
Doug Allen, representing Lift One Condominiums, stated they encourage
the process and would like to participate in it. Derrick Johnson,
Tom Smith, representing the Caribou homeowners, said they
would like to be involved in the process as affected adjacent landowners. Bob, Mountain Queen, said the owners are
pleased the process is taking place and would also like to participate. Mayor
Mayor
Councilman Skadron said he has had reservations about the COWOP process in the past. Councilman Skadron said COWOP process can be lead by persons with the most knowledge and the result is a project that did not go through HPC and/or P&Z review. Councilman Skadron said this is a good area for the COWOP process. Councilman Skadron stated he favors the review of stopping the townhomes without any associated penalties, allowing the Lift One application to be shelved without penalties, and the temporary use of the Holland House without being considered a change in use.
Councilman Johnson asked if the Holland House is
habitable. Daniel said it is not because
of asbestos abatement and is striped to the studs. Daniel said they intend to move forward with
demolition of the Holland House.
Councilman Johnson said during the Lodge at
Councilman Romero stated he supports this process as the best tool for master planning the area. This is an area with great importance to the community and planning it will be a challenging task. Councilman Romero said he would like to participate in the COWOP process. Councilman Romero said the participation from neighbors is probably the best participation component. Councilman Romero said if everyone believes this area will be special into the future, everyone needs to put their energy and effort into this process.
Councilman DeVilbiss questioned the composition of the task
force and noted many neighbors were supporters of the Lodge at
Councilman Johnson agreed to put on hold, without penalty,
the Centurion project and the Lift One Lodge project. Councilman Johnson stated he is concerned
about demolition of the Holland House.
Councilman Johnson said he understood one of the tenets of this is not
to shut down any possibilities and demolition of the Holland House would shut
down discussion of that area. Councilman
Johnson said he would like to see the ballot language on
Sarpa said one issue is that the task force members need to
attend all the meetings, which does limit the field. Sarpa said another issue is how many task
force members can be managed. Sarpa said
the number 20 seemed a manageable size.
Mayor
Mayor
Councilman Johnson moved to adopt Resolution #13, Series of 2008, provided Council will finalize the make up of the committee at a later date; seconded by Councilman Skadron. All in favor, motion carried.
Mayor
Councilman Romero moved to approve the Life One master plan cost sharing agreement; seconded by Councilman Skadron. All in favor, motion carried.
Councilman Romero moved to approve the supplement appropriation budget request of $45,000 for Lift One master plan; seconded by Councilman Skadron. All in favor, motion carried.
Councilman Johnson requested the last two agenda items be switched around as he has to recuse himself on the Chateau Roaring Fork Appeal because he lives within 300 feet of the application. Council agreed to the agenda change
Bendon said the service/commercial/industrial zones are
located north of
Bendon said he did use discretion in answering this appeal. Bendon said during building permit review, it appeared a portion of this space was designed to function as a bar and staff initiated discussions with the owners of the brewery on what was going on in their space. Bendon said staff reviewed the definition of 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”. Staff felt that definition does not permit on site consumption contrary to “receiving the public” and “engaging in retail sales”.
Bendon said the brewery owners explained the intent of on site sales was for exposure of the product and it was for tastings, not to be a bar. Bendon noted all zone districts allow “accessory use which is a use that is supportive or secondary and subordinate to the principle use of the lot or parcel”. The code also states “accessory use shall not be construed to authorize the use of not otherwise permitted in the zone district in which the principle use or structure to which it is accessory”. Bendon pointed out a bar is not allowed because it is a use that is not permitted in the S/C/I zone district. Bendon said staff felt tasting as an accessory use would be all right as long as it is not a bar.
Bendon said staff looked at components that make a business feel like a bar. The brewery agreed to limit their hours of operation to 9 p.m. Another issue was attracting the public with TVs and sporting events. The brewery owners agreed they did not want to create a bar atmosphere. The last element was how much alcohol would be allowed. Bendon told Council the owners of the brewery plan on having up to 6 different beers brewing on site at one time. Staff stated the tastings should be limited to 16 ounces of beer which could be allocated in any way.
Chris Bryan, Garfield & Hecht representing the Brewery,
told Council the applicants have appealed because they feel the code sets forth
what can and cannot happen in S/C/I and a brewery, as they contemplate, would
be permitted.
Councilman Romero asked what percentage of the projected gross revenues the tastings will be. One of the owners stated a small portion of the business will come out of the tasting room, less than 5% of the volume. Owner stated they do not want to compete with bars; they want to sell their product to the bars. Owner stated the revenues from the tasting room will help. Councilman Romero asked if other breweries have a limitation on tastings. The owners said they called all the craft breweries in the state and no other breweries have restrictions on volume that is sold. Councilman Romero asked the projected revenues from sales to local bars. The owners said they will distribute throughout the valley and will be personally dropping off the cases and kegs.
Councilman DeVilbiss asked if the owners found out in what zone districts other breweries were located when doing their research. Rory said he did not find out; he did ask. Councilman DeVilbiss noted there may be some internal inconsistencies in what is allowed as a brewery; however, nothing addresses tastings. Councilman DeVilbiss stated he does not find there has been an abuse of discretion.
Councilman Johnson moved to approve Resolution #15(b) affirming the decision of the community development director; seconded by Councilman DeVilbiss.
Councilman Romero agreed the community development director
did not abuse his discretion; however, the code can be amended to support the
brewery business and that is consistent with the spirit of the S/C/I zone;
creating something on site that can be brought to the community. Mayor
All in favor, motion carried.
Councilman Johnson is recused because he lives within 300 feet of the application.
Bendon told Council there was a building permit review in the Chateau Dumont building and staff found the unit was originally designated as a laundry and manager’s office. Bendon said the use changed but no building permit or supporting documentation could be found. Bendon told Council the unit was converted to an affordable housing unit in order to resolve the issue. The owner of that unit brought this unit, Chateau Roaring Fork #43, to the attention of the community development department and described as the same situation.
Bendon pointed out the Chateau Roaring Fork on Highway 82 and the Roaring Fork river. There are two buildings, A, along the river, and B, smaller building. This unit is in the basement of building B. Bendon presented a print out from the condominium plat and pointed out the basement with unit 43, 43A, 43B and 43C all described as separate condominium interests. Unit 43 is labeled general office, housekeeper and office for manager. Bendon told Council staff contacted the property owner; researched the city files; found the original building permit and the condominium plat. Bendon told Council there is a reference to a 2000 remodel and there is no evidence in the building permit files of that remodel. Bendon told Council staff met with the property owner to try and find evidence the unit was converted to a residence at some point; nothing was found. Bendon said affidavits were submitted to community development department. Bendon told Council he found inconsistencies with some of the affidavits submitted, and his confidence in those affidavits waned.
Bendon reminded Council criteria for review are whether due process was afforded the applicant; whether the community development director had jurisdiction and whether that was exceeded and whether the director abused his discretion. Bendon told Council there has been delay because staff was waiting for a hearing officer to be appointed. Staff decided this appeal had to be scheduled with Council. Bendon stated it is the responsibility of the planning director to enforce the code and to enforce land use approvals within the city. Bendon said the last issue is the abuse of discretion.
Bendon said Council can uphold the director’s decision;
Council can reverse the director’s decision; Council can also remand this back
to the planning director. Bendon
requested if Council remands this back to the planning director, they give
direction about the new information, additional affidavits from residents of
the Chateau Roaring Fork. Bendon said affidavits were presented after he
made his decision, which makes them technically not part of the record. Mayor
Councilman Romero asked about the term “business unit”. Bendon said business use generally is not allowed in this zone and was not allowed when the building was built. Bendon said the expectation was not to have a business on site but to use it in coordination with the condominium’s doings.
Tom Smith, representing the appellants the Greene family, said there is a due process issue if Council sticks with the record they have. Smith told Council this is the first time he has heard the reference to the Chateau Dumont and the report the Chateau Roaring Fork was similar. Smith said when he received Bendon’s determination that this unit did not qualify as residential, reference was made to a conversation with Mr. Barisch. Smith said reports of his client’s conversation with Barisch were an explanation that was different than what was related to Bendon. Smith noted there are 4 units in the basement all with the unit #43, three are 43A, 43B and 43C. Smith stated it is their position in the affidavits received by Bendon, there was confusion with the units and unit numbers.
Smith said there have been misunderstandings and the applicants have not been able to address these because it would be new information. Smith said full airing of this information might solve this.
Smith said issues are what was the unit allowed to be in 1969 and what does the history of the use tell about that unit. Smith noted that in 1969, one only had to conform to zoning to get a building permit; there was no entitlement process. Smith said they feel this unit was allowed to be residential in 1969, not the other 3 units in the basement. Smith told Council the other 3 units are true, below grade basement units. This unit has air space and an outside entrance and has always been used for residential use.
Smith told Council under the city codes this project had more than enough land area for the density of 45 units. Smith said the covenants address business units. The covenants list 11 business units and there were not 11 business units; however, the developers were keeping their options open if the zoning changed. Smith said he feels the evidence will show that the unit got built and used as a residence from the beginning. The accessory uses have been in A, B, and C. Smith said the building permit in the record refers to 12 residential units and unfinished basement in the building. There is a note on the permit about a letter from an architect amending the permit; there is no copy of that letter. The 12 residential units got built; this permit does not address the other 4 units in the building.
Smith told Council this unit has always been used as a residence; the applicants bought this unit as a residence and paid on that basis. Smith said the applicants would like Council to remand this to the community development director to explore more of the information.
Mayor
Councilman DeVilbiss moved to remand the matter to the community development department for further action not inconsistent with these proceedings; seconded by Councilman Romero. All in favor, motion carried.
Councilman Romero moved to adjourn at 9:30 p.m.; seconded by Councilman Skadron. All in favor, motion carried.
Kathryn S. Koch, City Clerk