Mayor Ireland called the special meeting to order at 5:10 with Councilmembers Johnson and Romero present. Councilman DeVilbiss and Councilman Skadron have been recused due to a conflict of interest.

ORDINANCE #29, SERIES OF 2007 – 307 S. Spring/625 E. Hyman Subdivision (Wienerstube)

Mayor Ireland said the applicants have submitted materials outlining their proposed changes from the January 28^th meeting. Councilmembers indicated they have reviewed those materials. Jessica Garrow, community development department, reminded Council at the January 28^th meeting, Council asked the applicant to address 3 aspects of the project; the long term affordability of the commercial spaces; the height; the amount of affordable housing in the project. Ms. Garrow noted the applicant addressed two of the aspects. They have not changed the amount of affordable housing, which is 12 units on site and a cash-in-lieu payment for 2.25 full time equivalent employees.

Ms. Garrow said the most significant change is a commitment to deed restrict commercial spaces along the alley and mid-block walkway. Ms. Garrow said there is 7,823 square feet of net leasable and 2,046 square feet will be deed restricted to 50% of the rate for the remaining net leasable area. The deed restricted space will be separately demised and cannot be incorporated with spaces fronting the street. These spaces are intended to cater to different type of businesses. Ms. Garrow noted staff is concerned about insuring there is vitality in the mid-block walkway and on the alley and there are conditions to try and address that concern; a detailed lighting plan to create some interest in the space; elimination of vehicle/pedestrian conflicts; a prohibition on office and storage uses for these spaces.

Another major change is to the architecture with more articulation of the building. Exhibit B in Council’s packet has a height and roof top analysis showing 1% of the building is 42’ high, which is the maximum allowed height in the C-1 zone district. 25% of the building is at 40’ to 40’6” and 51% of the building is between 38’ and 38’6”. Ms. Garrow said the roof variations add architectural interest to the building and help to meet the new commercial design guidelines. The application was submitted before the new commercial design guidelines were adopted and the applicants have made an attempt to meet some of those guidelines.

Ms. Garrow recommended approval of the subdivision, which is the demising of spaces. P&Z has reviewed and approved design issues and the AACP discusses these issues but does not address subdivision of spaces directly.

Stan Clauson, representing the applicants, told Council they worked with staff to try and come up with a mechanism for affordable retail, which does not currently exist in the municipal code. Clauson said they felt the best way to do this was to tie it to the affordability within the context of the building itself. Clauson said it has been difficult to assemble the data on commercial rents within block or zone districts. The proposal for affordable commercial is that those spaces which have alley access and access through the central corridor will be deed restricted to 50% rent of the going rate of the market rate rentals for spaces along Hyman avenue. The Wienerstube space is under a separate lease agreement. Clauson said 30% of the commercial space of this building will have some restrictions on the rental rates. Clauson pointed out the space for affordable housing represents 51% of the total residential component of the building. Andy Wisnoski, architect, went through the drawings showing where commercial and residential spaces are located within the building.

Clauson reiterated the maximum height in the C-1 zone is 42’ and only 1% of this building is at 42’. Clauson said 51% of the building is 38’ to 38’6”. Clauson said there are parts of the building at 28’8” which is 21% of the building. Wisnoski noted the percentages are based on the building, not site coverage. Clauson said 2% of the building is 9’ and 25% of the building is 40’ to 41’6”. Clauson pointed out on the Hyman façade, there was a 30’ wide section that went to the full height of the building; this section has been pulled back 5’ so the entire Hyman avenue façade is stepped back on the third level. Clauson told Council the applicants have discussed with staff putting the entire building at 38’6”, which would eliminate some of the variations of the roof lines. Clauson said staff felt a variegated roof line was more desirable than 38’6” flatter roof.

Wisnoski noted there is a series of sections through the buildings outlining the relationships of height and how the different levels work. Clauson pointed out a height test was done with balloons over the weekend and the applicants feel the representation is misleading. Clauson reminded Council they previously presented studies showing that the view of Aspen Mountain will not be totally blocked. Clauson noted there are protected view planes within the city. In areas where there are not protected view planes, the zoning provides protection for adjacent properties.

Clauson reiterated the affordable housing is being provided on site; it is 12 units; it meets the code. Clauson said there was a suggestion to locate the affordable housing somewhere off site. Clauson said that is not supported by the code or by the AACP which states it is desirable to locate residents close to the commercial core as possible. Clauson reminded Council the proposal is to meet energy star requirements. Clauson stated the building is designed to provide benefits to the community; it is not a box; it has façade variation; the mid-block passage was incorporated from the commercial design guidelines to break up the building.

Councilman Romero asked about the exclusion of the Wienerstube square footage where it is subtracted from the other commercial affordable. Clauson said the Wienerstube is under a separate contract, which agreement was provided to Council. Councilman Romero asked if there have been any design moves that reduce the overall height of the building or has the applicant just provided better information in cross sections and stepped back that one 30’ section. Ms. Garrow said it is better information; the stepping back helps to decrease the perceived mass from the street. Ms. Garrow said the offer to lower the building to 38’6” was not addressed in the staff memo because it was not a formal proposal. Ms. Garrow said the heights as presented give variation to the building.

Councilman Johnson entered into the record e-mails from Lani White, Gail Otte and letters from Bruce Carlson, Friends for Preserving Aspen’s Neighborhoods and Character and Citizens for Responsible Growth. Councilman Johnson said the Citizens for Responsible Growth make a claim and have attached addendum A and asked for comment from special counsel.

Councilman Johnson asked how the applicants devised the proposal for the affordable commercial area. Clauson said the thought process was that the applicants identified spaces at the rear of the building with alley access that would be inherently more affordable. These were spaces without front access. Council questioned whether these would be affordable spaces, and the applicants felt devising an affordable program would give some certainty. Clauson said it seemed difficult to peg that affordability to spaces in the commercial core and that the market rate within this building would provide a metric for an affordable rate.

Councilman Johnson asked if the applicants have met with the neighbors. Clauson said they did not have an opportunity to meet with the neighbors. Clauson noted this project has had a protracted review. Clauson said the neighbors’ position is that a three-story building is incompatible with this area. Clauson said the applicant’s cannot provide the affordable housing and other benefits in a two-story building on this site. Councilman Johnson asked why the first level commercial space has a floor to floor height of 13’6”. Wisnoski said that has to do with how the space on the back side is divided up. Wisnoski said there is a commercial guideline noting that commercial spaces should be higher. On the back there are 2 levels of affordable housing to match the front end and to have one circulation system.

Ms. Garrow went through the computer sketch up plan illustrating the neighborhood, existing buildings and their heights.

Mayor Ireland opened the public hearing.

Bill Wiener thanked Council for the appointment to the Historic Task Force and told Council they have a lot of work to do and urged Council not to approve the Wienerstube application until all the recommendations come from the Task Force. Raymond Auger said a height of 42’ is vandalism for a community that depends upon its setting. and anything that obstructs that setting degrades the community.

Mitch Haas questioned the policy for requirement of affordable commercial when there have been no code amendments, no definitions. This is not in the land use code. Haas said there should be a public process before something like this is required in development; there should be scrutiny of the concepts and of the philosophy. Haas suggested staff look at what affordable commercial could do to existing businesses paying market rents. Councilman Johnson noted Council is not requiring affordable commercial; it is a suggestion from the applicants.

Jessie Boyce said a tall building on the north side of a street provides a solid concrete canyon. Boyce suggested buildings should have setbacks and be setback from the sidewalk. Toni Kronberg presented a board of photographs to dispute the assertion that this building fits in with the character of the existing neighborhood. Ms. Kronberg pointed out no buildings in the area are higher than the Wienerstube. Staff noted this is Kronberg exhibit A.

Charles Cunniffe noted the provision for 50% of the rental rates for the spaces facing the street does not necessarily make a space affordable. Cunniffe noted there are 3 story buildings in the neighborhood that are 28’ not 38’6”. Cunniffe said natural light is important to this neighborhood. Dave Eggleston, 616 E. Hyman, said affordable commercial sounds like a good theory; however, these spaces on the alley will probably be discounted anyway. Eggleston told Council in the 616 E. Hyman building, the spaces off the alley are 3 times cheaper than the street front spaces. Eggleston said it is Council’s responsibility to retain the integrity of Aspen and if large projects like are approved, there will be no character left.

Fred Martel said when this building is built, the street will be dark and there will be no views of the mountain. Building owners across the street will then want to rebuild a higher building. Charles McCartney, Chateau Aspen, requested this application for redevelopment of the Wienerstube be denied as proposed. McCartney said the proposed height and size will overwhelm the existing neighborhood and block the natural light. The AACP requires height, scale and new development to be within context of the existing neighborhood and this project does not conform.

W. R. Walton, 635 E. Hopkins, stated this has been presented as a 3-story building; however, it appears to him a 4-story building. Walton asked about mechanical equipment on the roof and how much height this will add. Walton said the cash-in-lieu offered is less than would be required. Sean Gooding said the top floor should be set back more. Roine St. Andre said there has been no mention of the environment and the building of this will cause pollution and noise. Ms. St. Andre said there are laws against noise and idling, which laws are not complied with. Ms. St. Andre said she loves the open space and the natural beauty of Aspen and everyone wants to preserve what they love.

Junee Kirk said the context of the neighborhood along Hyman avenue is 2-story buildings with setbacks and patios. This proposed building is 38’ high and is massive and boxy and inappropriate for the neighborhood. Ms. Kirk said there is a letter with 60 signatures concerned that the AACP is not being adhered to. Jordie Gerberg asked why this building is not on the list of potential historic properties, it is almost 50 years old and is significant.

Sharon Wright, Chateau Aspen, said there has been an attempt to lower the building on the Hyman avenue side; however, Chateau Aspen’s condominiums will face a 42’ wall and will be in darkness. Steve Stevens said it is not Council’s responsibility to make decisions so that developments can make money. Stevens said this building is too large. Bob Baum, 704 E. Hyman, said the construction going on in Aspen is out of line. Baum said they wanted to put up wood so that neighbors could see what 42’ would look like. Baum said the developers have not worked with the neighbors. Annalee Lucas suggested the 12 affordable housing units make this building large. Christine Crandall reminded everyone, the community and Council just went through a long discussion about Ordinance #48 and what is historic in this community. Ms. Crandall said there has been almost no redevelopment in this neighborhood and it is important to look at the historic values and there are properties on this block that are on the list of potentially historic properties. If this project is approved, it will set a new tenor for this neighborhood. Lani White said she agrees with the comments from the public.

Mayor Ireland closed the public hearing.

Clauson said there are comments from people who feel disenfranchised by development occurring in Aspen. Clauson said there is a zoning code with rules which is intended to quantify and express the AACP in metric terms. Clauson said the AACP does not suggest that the zone districts are optional in considering development. Clauson noted the applicants have asked for nothing outside of the existing land use codes. Clauson said other developments that have been referred to have come through the PUD process and have asked for variances in height or density. Clauson stated the city’s commercial design guidelines require that buildings be right on the street and do not permit patios to set buildings back. Clauson pointed out the corner of the building at Hyman and Spring is only 30’ high, which is only 3’ increase over the ridgeline of the current Wienerstube.

Clauson said the applicants felt that alley space would be more affordable commercial space. Clauson said in initial discussions with applicants, they are told if they adhere to the existing land use code and offer some additional community benefits, they should not have trouble going through the land use approval process. Clauson said this applicant has gone out of his way to offer community benefits. Clauson pointed out RMI has stated that new buildings provide an opportunity for a comprehensive approach to an environmental benefit.

Councilman Romero asked if, in fact, the applicants offered a 38’6” high building. Clauson said the applicants could accept a condition the maximum height of the building would be 38’6”. Staff did not feel that was an advantage. Councilman Romero said this application was filed under the old land use codes and during its review, the applicant attempted to adhere to some of the concepts in the new commercial design guidelines Councilman Romero said he feels the Wienerstube space be either part of the deed restricted space or part of the free market denominator to come to that 50%. Councilman Romero said what is internally consistent with the AACP then and now, it addresses fit, scale, context and neighborhood and how design and the built environment should aspire and conform to that. Councilman Romero noted Council requested the applicants meet with the neighbors and try and work on fit, context, scale and appropriateness. Councilman Romero said that is not part of the land use code; however, it is in character and in community plan, and he is troubled the applicants have not met with the neighbors.

Councilman Romero said in the last 24 months, the city has accelerated impacts from development and Council’s awareness has been heightened. Councilman Romero said he is dismayed by people using affordable housing as a negative in an application. Councilman Romero noted affordable housing in the commercial core preserves a working class in town and it also takes cars off the road. This project is proposing 12 affordable housing units in town. Councilman Romero noted energy efficiencies standards are built into the ordinance.

Councilman Romero said the AACP, land use code and zoning regulations fit together as one big system and the community has a responsibility not to pick and chose which piece to follow or not. Councilman Romero stated this application came under a different set of rules than those in effect now. Councilman Romero said there are issues around affordable commercial, and it has not had a public process; however, for this application it is a creative way to put energy into alleyway retail. Councilman Romero said there are commitments to affordable housing on site, to a lower height, to the additional cash-in-lieu for affordable housing, to alleyway retail and to the Wienerstube to come together with the AACP and the zoning regulations.

Councilman Johnson said he does not feel this conforms to the land use code. Councilman Johnson said there are no guarantees in the land use code. Councilman Johnson stated Council did not change the criteria under which land use applications are reviewed and those criteria are the same for the earlier review of the Wienerstube as this current review. Councilman Johnson said attacking the amount of affordable housing in the project when the community needs affordable housing seems hypocritical. Councilman Johnson agreed about undertaking a public process around affordable commercial. Councilman Johnson said this is the best example of an infill project Council has seen. Councilman Johnson said one criterion he looks at is to what degree is this project in opposition to the existing land uses in the area and to what degree does it place pressure on existing buildings to redevelop.

Councilman Romero moved to adopt Ordinance #29, Series of 2007, on second reading; seconded by Councilman Johnson.

Councilman Johnson pointed out the review criteria state “the proposed subdivision shall be consistent with the Aspen Area Community Plan”. Councilman Johnson said in ways this application does; however, the public testimony is that the project fails to meet neighborhood context and compatibility. Councilman Johnson noted public hearing said the subdivision will be inconsistent with the character of the existing land uses in the area. Councilman Johnson said he understands how this application will adversely affect the future development of surrounding areas and will place too much pressure on the buildings across Hyman Avenue.

Councilman Romero cited the design quality of the AACP, “insure the character of the built environment is maintained through public outreach and education about design quality, historical context and the influence of the existing built natural environment”, which touches on 3 core components of the community plan. Councilman Romero said the design quality and public outreach elements are his biggest concern.

Mayor Ireland said his decision is not based on the affordable housing component even though the infill code creates a shortage of affordable housing which the community can no longer meet. Mayor Ireland agreed not much may be gained with this affordable commercial proposal. Mayor Ireland said his decision is whether or not the land use code makes the public hearing process moot. Mayor Ireland stated it is Council’s responsibility to review land use applications in the context of the entire code, not just dimensional criterion, but also the relationship to the AACP as provided in the code. Mayor Ireland said it was specific by the people who created the AACP to require a review of the relationship.

Mayor Ireland said he would have liked data on the average and mean height of buildings surrounding this application. Mayor Ireland noted this will be the tallest structure in this neighborhood and will create a demand for other buildings to be high also. Mayor Ireland said 38’ or 40’ buildings are appropriate for Aspen in the commercial core. Mayor Ireland noted the applicants argue for adherence to a not yet adopted design guidelines that suggest 14’ ceilings, which are driving the scale of the building. Mayor Ireland said the issues are is this consistent with the Aspen Area Community Plan, will it have adverse effect, is there public outreach, and the answer is it is not consistent with the AACP in context with its surroundings.

Clauson said the applicants have worked consistently to meet the Council’s concerns. There are categories of projects that receive no review at all. This project has received every approval required except that of subdivision which is required by the building is being condominiumized. Clauson said Aspen is a community that must more forward. Clauson said Aspen will not get affordable housing in town without buildings that include all the components of infill. Clauson said Council has extended itself beyond the land use code.

Mayor Ireland stated he supports the principles of infill but this structure as embodied in the code does not serve the purpose of infill, which is to create a balance. This proposed building creates an imbalance because it is out of character with the neighborhood.

Roll call vote; Councilmembers Johnson, no; Romero, no; Mayor Ireland, no. Motion NOT carried.

Mayor Ireland moved to deny Ordinance #29, Series of 2007; seconded by Councilman Johnson. Roll call vote; Councilmembers Romero, yes; Johnson, yes; Mayor Ireland, yes. Motion carried.

Councilman Romero moved to adjourn at 7:35 p.m.; seconded by Councilman Johnson. All in favor, motion carried.

Kathryn S. Koch, City Clerk