Mayor Klanderud presented a cup from Colorado Government Association of Information Technology awarded to Aspen’s information systems department for their program “Lunch Bytes”. The program was conceived by Fred Dick and managed by Aaron Hoover.

PROCLAMATION – Month of the Young Child

Mayor Klanderud and Council proclaimed May 2007 as Month of the Young Child and extended thanks and appreciation to all who work hard to care for Aspen’s youngest citizens. Shirley Ritter, Kids First, reminded everyone of the Kids parade Thursday, May 17^th at 10 a.m.

CITIZEN COMMENTS

Martha Madsen left a letter for the record regarding the Lodge at Aspen Mountain.

COUNCILMEMBER COMMENTS

1. Mayor Klanderud announced that the city received the highest regional award from the Environmental Protection Agency. This award was presented for the city’s Canary initiative, specifically for the impacts assessment. Mayor Klanderud noted the award is made out of recycled glass.

2. Mayor Klanderud thanked the parks department for the successful Arbor Day; it is a great community building event and hundreds of trees have been planted as a result of this event.

3. Mayor Klanderud thanked the environmental health department for sponsoring the first electronic recycling last weekend. Staff did thorough research to make sure these electronics are being disposed of or recycled property.

4. Councilman Torre thanked his supporters in the recent Mayoral election. Councilman Torre urged people to press the remaining candidates for answers to their questions and to see them and talk to them before the run off election.

5. Mayor Klanderud noted this meeting will be continued to May 15 to consider the land use code amendments.

CONSENT CALENDAR

Councilwoman Tygre requested Resolution #37 and 38 be pulled from the consent calendar.

Councilman DeVilbiss moved to approve the consent calendar as amended; seconded by Councilman Johnson. The consent calendar is:

· Resolution #31, 2007 – Contract Toro Workman Cart

· Resolution #32, 2007 – Contract Steiner Tractor Replacements

· Resolution #33, 2007 – Contract – Slope Stability Consultant

· Resolution #34, 2007 – ARC Energy Improvements

· Resolution #35, 2007 – Contract Replacement of Police Pickup Trucks

· Resolution #36, 2007 - Contract ARC Skid Loader

· Request for Funds – Summer Transportation Demand Measures

· Resolution #39, 2007 – Replacement of Wheeler Boiler

· Resolution #40, 2007 – Contract Structural Analysis/Red & Yellow Brick

All in favor, motion carried.

Councilman Torre moved to approve the minutes of April 23, 24, 30, 2007; seconded by Councilman Johnson. All in favor, motion carried.

RESOLUTION #37, 2007 – Reimbursement for Capital Expenditures for Property

RESOLUTION #38, 2007 – Acquisition of Property – 488 Castle Creek Road

Councilwoman Tygre asked if these purchases are being funded out of the housing funds or the general fund. Paul Menter, finance director, told Council this resolution is necessary if the city wants to reimburse itself through a bond issue. Councilwoman Tygre asked about the properties listed on exhibit A and if that in any way commits the city to these properties. Menter said it gives the city the option to finance these acquisitions through bonds to meet the internal revenue code.

Councilman Johnson moved to approve Resolution #37 and 38, Series of 2007; seconded by Councilman Torre. All in favor, motion carried.

FIRST READING OF ORDINANCES

· Ordinance #21, 2007 – Historic Designation – Boomerang Lodge

· Ordinance #23, 2007 – Construction Management Plan

· Ordinance #22, 2007 – Stormwater Drainage Fee

Councilman DeVilbiss moved to read Ordinances #21, 23 and 22; seconded by Councilman Torre. All in favor, motion carried.

ORDINANCE NO. 21

(SERIES OF 2007)

AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING DESIGNATION OF HISTORIC DESIGNATION FOR A PORTION OF THE BOOMERANG LODGE PROPERTY LOCATED AT 500 W. HOPKINS AVENUE, LOTS K-S, BLOCK 31, CITY AND TOWNSITE OF ASPEN, COLORADO

ORDINANCE NO. 23

Series of 2007

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO AMEND TITLE 8 OF THE ASPEN MUNICIPAL CODE TO ADD A NEW CHAPTER 8.56, “CONSTRUCTION MANAGEMENT PLAN.”

ORDINANCE NO. 22

Series of 2007

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, TO AMEND CHAPTER 25.18 OF TITLE 25 OF THE ASPEN MUNICIPAL CODE FOR THE ADDITION OF A NEW STORMWATER SYSTEM DEVELOPMENT FEE

Councilwoman Tygre moved to adopt Ordinances #21, 23, and 22, Series of 2007, on first reading; seconded by Councilman DeVilbiss.

Councilman Johnson said for second reading regarding Ordinance #22, Construction Management Plan, he would like to know how staff will measure success and any suggestions on how to recoup the costs.

Roll call vote; Councilmembers Tygre, yes; DeVilbiss, yes; Johnson, yes; Torre, yes; Mayor Klanderud, yes. Motion carried.

ORDINANCE #5, SERIES OF 2007 – Lodge at Aspen Mountain

John Sarpa, applicant, told Council they have been working since the last meeting to determine issues they could address. Sarpa said they are willing to add additional housing units at the Smuggler housing site, if Council would approve the parking requirements at the hotel rather than at Smuggler site. Sarpa proposed to house up to 4 more employees. Sarpa noted the requirement for this project is 8 affordable housing units on site and they propose 16 units on site.

Bill Poss, architect, reviewed the height of the proposed lodge with the approved design plan. Poss noted the building penetrates 42’ in only a few places, like the main entrance. Poss said 48% of the building is below 42’ and 60% of the building is below 45’. Poss said the St. Regis is 67’ at the main entrance; the Hotel Jerome is 49’ along Main Street and 54’ along Mill street. The Grand Hyatt is 45’ across the front and 45’ along the two corners and 50% of the building is at 45’. Along the base of Aspen Mountain, most of the buildings are 45’. Poss noted the height of the proposed lodge it at or below other hotels in town.

Sarpa stated the applicants have proposed an aggressive plan to address construction mitigation impacts, including requiring the workers to park at Brush creek and take mass transportation into town. Sarpa said they recalculated the amount of dirt to be removed from the site and the number of truck loads will be 7800 over months and months of construction. Sarpa noted the approved project for the townhouses would be over 4,000 truck loads of dirt.

Sarpa proposed a deed restriction that the hotel rooms will stay hotel rooms; 80 rooms in this building will be preserved as real hotel rooms for 35 years. There is a limited ability for the city to impose that; however, the applicants are voluntarily committing to deed restrict the use of this property. Sarpa said a hotel room generates sales tax revenue. The applicants have calculated that after a first year of operation, this hotel will generate about $2 million annually of sales tax revenue.

Sarpa reiterated the community benefits that have been proposed by these applicants such as $1/occupied room night to be donated to non-profits; discounted room nights and meeting spaces for non-profit organizations. This hotel proposes about 4,000 square feet of meeting room. The hotel will provide vocational training in the hospitality industry for students in the valley. Sarpa told Council their employees will be paid for volunteer work with valley non-profits. World Cup is excited to have this hotel as part of their event for hotel rooms and meeting spaces. Sarpa said this is a unique hotel project.

Councilman DeVilbiss asked how the applicants went from 10,000 truck loads of dirt to 7800 truck loads. Jeff Hansen, Swinerton Construction, said they refined the project looking at the amendments to the design and using better calculations. Councilman DeVilbiss requested to see the dimensions of the excavations.

Mayor Klanderud opened the public hearing.

Guy Noble, Timberridge resident, said although she will be highly affected by this project, she urges Council to endorse the hotel. Ms. Noble said this could be a wonderful project on this side of the mountain. Ms. Noble noted there will be 3 years of construction no matter what the project is and the hotel offers the community more than town homes. Bill Tomcich, Stay Aspen Snowmass, said there has been a shrinking bed base in Aspen. Tomcich went through a list of properties that are no longer lodges in the last 10 years that have closed or converted to another use. There have only been two new hotel projects in the same 10 years. Denis Murray, Trainor’s Landing, said 80 hotel rooms in 175,000 square feet does not seem like enough lodge units for the size; for a project that will affect the entire community.

Les Holst said there are people who care about this community and who do not come to meetings. Holst said this project does not make sense. Holst said Council should adopt an ordinance doing away with fractional ownership. Holst said developers always ask for a lot more than they expect; the system is not working. James March said he supports the hotel component of this project; hotels are more lively areas than time share projects. March said Council should ask the applicants to forego the timeshare units. March said he is concerned about the elimination of parking along Aspen street.

Dave Bellack, Aspen Skiing Company, said his company has built hotels. During the Little Nell approval process, people said the Little Nell hotel would destroy Aspen; it was too big, it would change the character of town. Bellack said the Little Nell has become part of the community infrastructure. Bellack said the Ritz Carlton was also opposed as being too big and bad for the town. Bellack said this project has the likelihood of becoming what the Nell is for the west side of town.

Gail Morgan, Shadow Mountain Townhouses, said after 3+ years of public meetings, she thought a decision would have been made. Ms. Morgan said she trusted this would have resolved itself and she does not understand the process Council has gone through and the public does not know what specifically about this building is not acceptable. Ms. Morgan said the issues are unclear and Council should tell the applicants what the problems are and get on with this.

Matt Ross said the west side of Aspen Mountain needs this project. Ross said the applicants have offered a project that will rejuvenate the west side of the mountain and have been turned down without a good explanation. Ross said the benefits from this project are a new lift 1A; snowmelt on South Aspen street; dispersing traffic on two sides of the mountain. Ross said this project is the future of Aspen and should be approved.

Dave Ellis, Timberridge, said it feels as if this project is being punished for past wrongs. Ellis agreed projects have been approved in the past beyond reasonable limits. This site is backed against the mountain; there is neighbor support. Ellis noted the project approved for this site gives no community benefits. Jeff Gorsuch stated he supports this project; it is a great redevelopment for the west side of the mountain. Council has to decide between nostalgia, community values and the future of Aspen. Those are large responsibilities and this project commits to community values like affordable housing, a new lift, green building and is a project for Aspen. Council has to look forward and embrace projects like this to allow the community to benefit.

Mike Kaplan, Aspen Skiing Company, said the issue here is town homes versus hot beds and vibrancy. Kaplan said Aspen does not need another set of dark town homes. Kaplan asked Council to think about the future, having more people in town, going to restaurants, spending money. Bob Grueter said he is in favor of this project and feels it would help the town.

Mayor Klanderud entered into the record letters from Martha Madsen in favor, from Marilyn Marks urging support for the project, from John Keleher supporting the project, from Alison Bierhoff urging approval; from Betsy Furth in support of the project but it should be reviewed by the new Council; a letter from the Shadow Mountain town homes about stabilization of the mountain and acknowledging they have worked with the applicant, from David Laughren in favor of the project; from Thomas Chapin, Timberridge, in favor of the project; from Auden Schendler, Aspen Skiing company, commending the project for its excellent environmental plan; from Michael Tierney noting support from the neighborhood urging support; from Josh Maundry in support of the project.

Mayor Klanderud closed the public hearing.

Councilman DeVilbiss said he wants to see the dimensional calculations on how much dirt will be moved. Councilman Torre said what troubles him is the interior space programming; four 4,000 square foot free market residences; the overall massing at 175,000 square feet; the footprint of the building with less than allowed setbacks. Sarpa noted the applicants came back a voluntary deed restriction on keeping hotel units in rental. Sarpa said they have worked for 4 years on making this building as small as possible and the ratios of uses as feasible as possible. Sarpa said the deed restrictions are a big deal both for the applicants and for the community to get assurance this will be hotel use for decades. Sarpa pointed out the fractional fee units must be rented out when they are not being used, which brings the total to 106 lodge rooms available. Sarpa reiterated they do not have the ability to make more changes to the project.

Vann agreed this is a big project. There has been no lodge development in the community for years as the dimensional requirements do not allow a product that would work for today’s market. The FAR of 1:1 and a height of 28’ are both insufficient to get a hotel with modern rooms at reasonable ceiling heights. Vann reminded Council when infill was discussed, it was realized that both height and FAR in the lodge districts needed to be increased in order to get a modern hotel. An FAR of 2:0 was discussed during infill. This project is 1.75:1. Vann said fractional components are necessary to pay the cost of land and of construction. Vann said the time shares are two weeks for each 1/8 share so there will be time available to rent to the public. Vann said this is a big site, which is necessary to accommodate the amenities proposed.

Councilman Torre said the four 4,000 square foot free market residential units are almost 10% of the entire project, and questioned the necessity of that. Sarpa said they worked at getting these units as small as they could and these units offset the financial risk of building this hotel. These 4 units combined with the fractional units make the project work with all the commitments to the community. Sarpa reminded Council this building has been reduced from 208,000 to 175,000 square feet. Bill Poss, architect, said the free market units are between 3400 and 3800 square feet and the total of those units is 14,000 square feet, which is 8% of the project.

Councilman Torre asked the percentage of the project that is non-unit space. Poss said the hotel component is 116,700 square feet; of that non unit space is 60,000 like meetings room, back of house; 44,000 is room space. There is 15,000 square foot of parking and 4700 square feet of affordable housing. The fractional units are another 40,000 square feet, which totals about 84,000 square feet for short term rentals.

Sarpa said he and his company care about this community and have worked hard to go over what is required on each point. They have made this building as small as anyone in the industry is capable of making it. Sarpa stated this is a good project, assuming Council agrees there should be a hotel at the base of the mountain. Sarpa said the applicants have worked hard with the city to make this the best hotel project possible.

Jeff Hansen told Council the schematic plans have changed and the plan is to remove 90,600 cubic yards divided by 12 cubic yards/truck, resulting in 7550 truck loads. The applicants requested a 5 minute break.

Sarpa requested a continuance. Sarpa stated this project is important to the community; both sides have worked hard. Sarpa stated a new Council will be seated in June.

Councilman DeVilbiss moved to continue Ordinance #5, Series of 2007 to June 25^th; seconded by Councilman Torre.

Mayor Klanderud said this is a first class application. Mayor Klanderud noted the community came together after a reassessment on Aspen’s position among the world class resorts and recognized Aspen was in need of lodging rooms. Mayor Klanderud said she feels this will be a positive asset for the town. The energy proposal is forward thinking. It is a prime location, the proposal to build a new lift and snowmelt Aspen street is excellent. Mayor Klanderud said this is also an opportunity to provide a first class special event venue. Mayor Klanderud noted the additional parking will help the entire area. The meeting space, ballroom and restaurant will help to vitalize this area. Mayor Klanderud said the community needs to preserve what is best about Aspen while at the same time moving forward. Mayor Klanderud agreed this is a big development but it is in the proper place for a big development.

Councilman DeVilbiss said the number of dump trucks equates to size. Councilman DeVilbiss agreed this is an outstanding project and it has come a long way since it was first presented. Councilman DeVilbiss said he is interested in the letter from Arthur Ferguson to the city attorney about restricting the hotel units under one ownership, and he would like a legal opinion on what that means.

Councilman Torre said he is still concerned about the use of the interior spaces and this could be a better project. Councilman Torre commended the applicant on where this project has come. Councilman Torre said compatibility with other projects in this area is important.

All in favor, motion carried.

ORDINANCE #17, SERIES OF 2007 – Historic Designation – 827 Dean Street

Councilmembers Johnson and Tygre returned. Sara Adams, community development department, told Council this is a voluntary designation for a residential neighborhood on Dean street and it exemplifies the chalet style. This was built in 1956 by Harry Poschman. Ms. Adams said this home illustrates two aspects of local post WWII history; the chalet style and the significance of Harry Poschman to Aspen’s cultural heritage.

HPC found all review criteria were met and voted unanimously to recommend historic designation.

Ms. Adams told Council Poschman was part of the Tenth Mountain Division along with other local notables. Poschman developed an appreciation for chalet architecture while serving overseas in WWII. Poschman helped built lift 1 in 1947. Poschman built and operated the Edelweiss Chalet. Ms. Adams stated staff finds Poschman important to Aspen, his representation of Aspen sentiment and his values which reflect the cultural heritage of this town.

Ms. Adams presented color photographs of the house, pointing out this structure is oriented toward the mountain, which is one thing the historic preservation officers look for in the chalet style. Ms. Adams noted a generous gable roof, materials indicated of chalet architecture – wood details and stucco. The house has had minor alterations.

Mayor Klanderud opened the public hearing.

Ms. Adams entered a letter into the record from Ada Lamont in favor of designation; letter from Janet Boelen in favor and from Les Holst in favor of designation.

Mayor Klanderud closed the public hearing.

Councilman Torre moved to adopt Ordinance #17, Series of 2007, on second reading; seconded by Councilman DeVilbiss. Roll call vote; Councilmembers Johnson, yes; Tygre, yes; DeVilbiss, yes; Torre, yes; Mayor Klanderud, yes. Motion carried.

ORDINANCE #18, SERIES OF 2007 – Disconnect Lot 5 Stillwater Ranch

Councilwoman Tygre recused herself due to a connections to her other office. Jim True, representing this city, stated this decision is within the sole discretion of Council finding whether or not it is in the best interest of the community to allow disconnection of this property.

Jessica Garrow, community development department, passed out a map of the subject property with surrounding zoning. The subject property is zoned Academic and Conservation with an SPA overlay. Ms. Garrow noted the delineation of the Stillwater subdivision. Ms. Garrow said this property is part of the Stillwater ranch subdivision and its parcels are zoned AR-2 in the county. This zone district is to create a moderate density transition zone between moderate and low density residential uses. Ms. Garrow said it is presumed if this were to revert back to the county, it would be zoned AR-2 and would abide by the subdivision covenants. This means it would be limited to 6500 square feet of FAR with 4,000 square feet exempt basement space, 700 square feet of exempt garage. The applicants would be required to provide on-site affordable housing mitigation. Ms. Garrow told Council this parcel received a growth management allotment when approved as part of the subdivision in the county.

Ms. Garrow said if it were to remain in the city and to revert to a single family home, it would need to go through an administrative growth management review and to provide affordable housing. Ms. Garrow said a permitted use in the conservation zone is a single family house; this is not a permitted use in the Academic zone district. Ms. Garrow stated staff recommends against granting this request. If this does revert to a single family home, it would pay property taxes to the city, if it remains in the city. Ms. Garrow said the FARs are comparable between the city and county.

Rick Neiley, representing the applicant Sister Andrea Jaeger, told Council Sister Andrea started Little Star Foundation in 1990. Sister Andrea received a gift of this land from Fabienne Benedict in 1994 and through the zoning and annexation process established a charitable foundation that provides care for children with cancer and their families. Neiley said there was no equivalent zoning in the county at that time, which is why it was annexed to the city. Neiley said during the 16 years of operating the charitable foundation in Aspen, it has become more difficult to get and treat patients at this altitude. The objective is to disconnect the parcel; rezone it in the county as a single family lot, sell the property to create an endowment and allow construction of a new facility south of Durango.

Neiley requested Council approve this ordinance de-annexing the property so that it can revert to the Stillwater zoning. Neiley said the property taxes that may be lost to the city would be around $6,000/annually. Neiley told Council the applicants discussed rezoning the property and leaving it in the city; however, all that is possible is what was approved during annexation. The conservation zone is not intended to be developed. Neiley said the rezoning process in the city would take much longer than the foundation can wait.

Sister Andrea said her foundation provides long term care of children with cancer. When the foundation started, they provided housing at local hotels. Sister Andrea told Council she contacted the Benedicts about land they owned east of town for this foundation. The Benedicts gave the land to the foundation to sell or to use for a building for the foundation. Sister Andrea said the high altitude affects the health of some of the children. Sister Andrea told Council 9/11 has affected fund raising. Glenn Horn, representing the applicant, told Council it will be a much shorter process in the county to get the property marketable. Ms. Garrow said a single family house is not allowed in the academic zone; it is allowed in the conservation zone but only if the SPA is lifted.

Mayor Klanderud opened the public hearing.

The executive director of the Aspen Cancer survivor center told Council they looked at this center as an opportunity to continue the work in town. The director said they have discussed with other non-profits about purchasing this property and there is interest to preserve this as a cancer retreat center.

Mayor Klanderud closed the public hearing.

Sister Andrea said this foundation has worked with a lot of non-profit organizations to support children and young adults. Sister Andrea told Council they have a responsibility to work with these children and to continue that work. Sister Andrea said they need this endowment to carry on this work. Councilman DeVilbiss asked the access to the property. Sister Andrea said Ute avenue is the only access. Councilman DeVilbiss asked if this could be sold for 3 single family houses in the county. Neiley said it was approved in the county and the number of lots and density was established for one single family residence. This also has a growth management allocation in the county. There could be a single family house with a deed restricted employee unit. No further subdivision would be permitted. Councilman DeVilbiss said the difference seems to be that the applicants could get a single family house approved more quickly through the county process than the city process.

Councilman DeVilbiss moved to adopt Ordinance #18, Series of 2007, on second reading; seconded by Councilman Johnson.

Councilman Torre said he is not in favor of disconnection. Councilman Torre said he is not in favor of properties being developed in the city and then when it is convenient for disconnection, to apply for that. Councilman Torre stated it is in the city’s best interest to retain this property under the city’s guidelines. The property was deeded for non-profit work; it was accepted by the city as such and was zoned for academic and conservation and it should remain so and not revert to single family house usage not in line with the original approvals. Mayor Klanderud said this was gifted with no stipulations from the donor.

Mayor Klanderud said she has mixed feelings about this application. One decision is made when it benefits the land owner and when it doesn’t a different decision is sought. Mayor Klanderud said it would be great if it were a win/win for everyone. The property is developed for certain uses and it would a good solution if it could be used for similar uses by other non-profits.

Councilman Johnson stated he does not feel it is in the city’s best interest to allow de-annexation for the reasons stated by staff nor is it wise public policy to set precedents of de-annexation for the sole purpose of increasing value for free market residences. Councilman Johnson noted there are too many single family residence and too few non-profit institutions like this. Councilman Torre asked if the conservation zone allows for a single family residence. Ms. Garrow said it does but in this instance the SPA overlay prevents it.

Councilman DeVilbiss asked the rationale for the SPA overlay. Chris Bendon, community development department, said this was a specific request and the zoning was academic as most closely associated with the proposed use, and conservation zoning because of the flood plain areas. The SPA was tailored to the applicant’s proposal and it meshed with the homeowners’ covenants.

Mayor Klanderud noted there have been discussions on the traffic on Ute Avenue for other projects. If this were a different non-profit use, there could be increases in traffic on Ute Avenue which may not be in the best interests of the city. A single family residence would be a wash city or county. Councilman DeVilbiss stated the best interests of the city will not be served by disconnection.

Roll call vote; Councilmembers Johnson, no; Torre, no; DeVilbiss, no; Mayor Klanderud, yes. Motion NOT carried.

APPEAL OF P&Z RESOLUTION 1001 UTE AVENUE

Councilman Torre recused himself due to a connection with the Gant. Jessica Garrow, community development department, submitted two resolutions, #42, reversing the decision of P&Z and Resolution #41, upholding the decision of P&Z. Jim True, representing the city, told Council this is an appeal of a decision made by P&Z granting 8040 green line and residential design standard variance and a PUD amendment. The appeal standard to be addressed by Council is based on a review of the record to determine whether there was a denial of due process, abuse of discretion or finding that P&Z exceeded its jurisdiction. True stated no additional evidence other than the record presented to P&Z should be considered by Council.

Ms. Garrow outlined the documents in Council’s packet that are part of the P&Z record for this approval. Ms. Garrow stated this is an appeal from Richard and Susan Wells of a decision made April 3, 2007, by P&Z where they granted approval of Resolution #9, 2007, granting 8040 green line review to two residences at 1001 Ute avenue; a residential design standard variance from secondary mass and two PUD amendments; one for building along the property line between the two residences and one to transfer a small amount of FAR from lot 2 to lot 1.

Ms. Garrow reminded Council they approved this PUD by Ordinance #24, 2006, and the ordinance contains a section dealing with the 8040 green line review stating the two single family residences would be required to receive a separate 8040 green line review. The Council granted an 8040 green line review for the road providing access from Ute avenue to the two single family residences. Ms. Garrow noted the ordinance also contains a statement that the single family residences will be required to meet any residential design standard requirements and if a variance were needed, it would be required to go to P&Z. Ms. Garrow said the ordinance contains a condition dealing with mine waste. There is also a section in Ordinance #24 dealing with massing controls, establishing some specific design criteria dealing with height and width of the facades facing Ute avenue.

Ms. Garrow said when this application came in for residential design standards, PUD amendments and the 8040 green line review; the design met those massing controls. Ms. Garrow noted because of the location in the city, it is technically within the Aspen infill area and is required to have a secondary mass element. There was not a secondary mass element and the applicants requested a variance. P&Z reviewed it based on the criteria for granting a variance and determined the application met the conditions that the buildings surrounding this were consistent with this kind of design and this was not a departure from the existing areas designs.

Ms. Garrow told Council staff supported the 8040 green line review in terms of the environmental concerns regarding soils and mine tailings. The reason staff recommended 8040 green line was the secondary mass issue, as they felt that was important. P&Z felt differently and approved the 8040 green line review. P&Z’s resolution includes more stringent environmental controls than normal requirement. There are institutional controls approved by the EPA in consultation with the county and state. These controls are contained in Ordinance #24, approved by Council, and in P&Z’s resolution. Additionally, the applicant stated they would do extra testing on site to make sure lead levels are safe. Both the community development and environmental health department felt these were appropriate for the site.

Council’s review criteria are a finding there was a denial of due process; that the administrative body exceeded its jurisdiction; or that the administrative body abused its discretion. Ms. Garrow stated staff finds P&Z reviewed all 3 of the requests and based their decision on the review criteria in the land use code. P&Z followed all appropriate protocol although they disagreed with staff. Ms. Garrow recommended against granting this appeal.

David Lenyo, representing the property owners, stated the issue is the record. Lenyo submitted a standing objection to anything outside the record. Lenyo also submitted a memorandum setting forth the legal standards for this type of review and a summary of the record as it exists. Lenyo submitted copies of the exhibits presented at the April 3^rd hearing. Jennifer Hall, representing the appellant, noted there are several exhibits that were not part of the P&Z record. Ms. Hall the record also includes staff memorandum on appeal. Councilman DeVilbiss noted the record should reflect Ms. Hall was appointed by the City Council to the housing board.

Jennifer Hall told Council she represents Rich and Susan Wells, 970 Powder Lane, sharing a boundary line with the applicant’s property. The Wells have 4 children who

attend school here. The Wells are concerned because of the mine waste on site. Ms. Hall stated the evidence on record does not support the finding of a variance from the residential design standards. Ms. Hall noted the residential design standards relate to secondary massing. Ms. Hall said staff stated this application provided little visual or architectural variation. P&Z was to consider this development in the context of the adjacent properties and/or the neighborhood. Poster boards were submitted at P&Z to give an idea of the context of the neighborhood; these are #15 and 16 in the exhibit book.

Ms. Hall stated P&Z found this to be consistent with the context of the neighborhood. Ms. Hall said the photos of the poster boards do not support this. Ms. Hall agreed there is a large variation of the adjacent properties in size and in use, like the Gant, the Aspen Alps, and small residences. This approval is for two single family residences at almost 10,000 square feet and not in context with the neighborhood. Ms. Hall noted the photos show that some of the houses are facing the street so it would not be inconsistent to require this property to meet the secondary mass standards. Ms. Hall stated the record does not support P&Z’s decision on secondary massing.

Ms. Hall said the evidence does not support P&Z’s finding that the development will not have significant adverse affect on the water shed, water pollution and air quality. Ms. Hall pointed out the application contains the 1986 Chen report on the soil, the mine waste rock. The report states the initial testing with 5’ pits have 16,000 parts per million of lead concentration in the soil. Ms. Hall stated this is great concern to the Wells; this is a high concentration of lead in the soil. Ms. Hall said this may not be an appropriate site for massive underground excavation; underground garages and basement space for both residences is planned.

The applicant has stated they are willing to adhere to more stringent standards than what is required by 8040 green line and that they are implementing institutional controls. Ms. Hall said the institutional controls adopted for the Smuggler site were not wholly adopted for this piece. The applicants have adopted standards for testing and moving the soils around. Ms. Hall stated a big concern is notification, the dust control plan, the construction management plan. This is not addressed in the ordinance approving the PUD. Ms. Hall said the 16,000 parts per million of lead is significant enough to require additional controls on this site and these controls should be in the approvals. Ms. Hall noted only future plans are referred to in the approvals. Ms. Hall said the findings do not support the decision to give a variance on the residential design standards regarding second massing nor does the record support the finding that the development does not have significant impacts on water shed, water pollution and air quality.

Lenyo, representing Ute Mesa LLC and Leatham Sterne, reminded Council this is an appeal of a P&Z approval. The development is two free market units, affordable housing, common area/open space and land to be preserved as public open space.

Councilman Johnson moved to suspend the rules and extend the meeting to 10 p.m.; seconded by Councilman DeVilbiss. All in favor, motion carried.

Lenyo stated the issue before Council is whether P&Z exceeded its jurisdiction, denied due process, or acted arbitrarily and capriciously. Lenyo said he will rely on the evidence in the records from the April 3, 2007, P&Z hearing. Lenyo said there are two land use decisions being appealed; whether P&Z abused its discretion in granting 8040 approval, including the imposition of conditions of approval of a soils mitigation plan. Secondly, whether the proposed variance provides an appropriate design considering the relationship of the structures to the surrounding neighborhood.

Lenyo told Council during the 3 year approval process, no objections were raised by the Wells on secondary mass issues. Lenyo told Council Wells is familiar with this property and explored purchasing the site himself, which is in the record. Lenyo said all requests for information from Wells were addressed through the staff, making the plan more stringent and by meeting with Wells’ attorney.

Lenyo said the Colorado Supreme Court has construed that the elected body must uphold P&Z’s determination unless there is no competent evidence to support it. Council is obligated to defer to P&Z as the reviewing board regarding their interpretation of the relevant standards. Lenyo noted under Colorado law, P&Z’s proceedings are presumed to be valid and reasonable doubts must be resolved in favor of P&Z’s determination. The burden is on the appellant to overcome this presumption by demonstrating P&Z’s actions were arbitrary. Lenyo stated the issue is not whether Council would have voted differently based on the record presented. The issue is not whether lead has been found on soils in the site. The applicant has disclosed that lead was found in the soils and has presented a detailed mitigation plan in compliance with city requirement.

Lenyo noted the question is not whether lead can be a potential hazard if not properly handled. Lenyo said the property owner hired Tom Dunlop, an expert in the handling of contaminated soil, to develop a soil mitigation plan. Lenyo stated the issue before Council is not whether development should be allowed when lead is found in soils. The municipal code allows development under those circumstances. Lenyo told Council the Wells’ property was developed under the same soil condition as part of the same mine sites. Lenyo pointed out Council approved the mitigation plan for the excavation for the roads in Ordinance #24, 2006. Lenyo reiterated the issue is whether P&Z members abused their discretion when they voted to grant the 8040 approval and the requested variance. Lenyo stated the answer is no and the appeal should be denied.

Lenyo said when applying the evidence of the record, Council should consider whether the appellant presented evidence that the variances considered the context of the surrounding neighborhood in the secondary massing standards. Lenyo said the answer is yes. Lenyo asked if the applicant presented evidence showing the relationship of the development with the adjacent structures; the answer is yes. Lenyo said P&Z properly considered this evidence when considering if the variance was warranted. Lenyo told Council the applicant presented evidence that scientists and engineers recommended mitigation efforts for the contamination identified, which P&Z considered and the requirements of mitigation were included as conditions of approval. Lenyo stated the mitigation plan presented by the applicant is consistent with the city’s requirements and it is also consistent with plans previously approved by the city.

Lenyo summarized P&Z did not abuse its discretion and carefully weighed the evidence, properly considered the standards of review and properly approved the requested plan. Glenn Horn confirmed that exhibits 1 through 17 were the actual exhibits given at the P&Z hearing. Horn told Council a land use application seeking subdivision/PUD approval for two houses at 1001 Ute Avenue was submitted in the winter of 2006. This project was reviewed by P&Z followed by 4 Council meetings and was approved in the summer of 2006. The applicants then submitted an 8040 green line review in January 2007, considered by P&Z April 3, 2007. Horn told Council Section 26.410.020(d)(2)(a) regards secondary massing. Horn presented boards showing the context of the site, the adjoining properties, pointed out where Ute avenue is. Horn showed an aerial photo of the site. Horn showed photos of Aspen Chance before it was developed, which was presented to P&Z; the purpose of this is to illustrate the adjoining property was in a similar state to this property before development.

Horn showed a photo taken from Smuggler Mountain of the site to illustrate when Aspen Chance was developed, one can barely see the houses. Horn reminded Council they saw these boards at their hearing on the subdivision/PUD. Horn pointed out a photo taken from Smuggler during the summer when the vegetation covers the site. Exhibit #6 is a photo of the site taken last summer, showing the site in its existing state. Exhibit #7 is a visual simulation of the site with the houses placed on site, trying to show how this will look when developed. Exhibit #8 is a massing study showing the different types of masses that could be built on this property, comparing it with the original and revised proposals.

Exhibit #9 shows differentiation in materials of the structure to answer an issue raised by staff. Exhibit #10 is the secondary mass standard from the code, which was read to P&Z to insure they were familiar with the secondary mass standard. Exhibit #11 is the criteria from the land use code for the variances for secondary masses. This was to emphasize that the context in which the development was proposed is important; purpose of a particular standard is important; context within the relationship to adjacent structures is important. Exhibit #12 is the purposes of the residential design standards to show what the purpose of the standards were to show the standards were not applicable to the site given the characteristics of the site. Horn told Council he read these standards to P&Z.

Exhibit #13 is the intent of the building form standard, the secondary mass standard is in the building form section of the code. Horn also read this to P&Z. Exhibit #14 summarizes the characteristics of the 1001 Ute site to show how the characteristics of the neighborhood were such that the secondary mass standards were not necessary in the neighborhood. Exhibits #15 and 16 are photos of different buildings along Ute avenue to illustrate that none of the buildings fronting on Ute avenue comply with the secondary mass standard of the land use code. Horn noted there is no alley and no direct relationship to Ute avenue, reasons why P&Z could grant a variance from the secondary mass standards in the code.

Horn told Council they proposed soils mitigation based on further information developed using the t-clip method of soils testing. The soil mitigation will be part of the construction mitigation plan. Horn said staff alerted the applicants they would have to have an excellent construction management plan and subject to scrutiny because of the soil conditions on site. Horn told Council the applicants submitted a letter from Tom Dunlop dated January 27, 2007, to the community development department describing the soil management protocol. This was submitted as part of the application.

Lenyo stated the record shows P&Z did note exceed their jurisdiction or abuse their discretion and they carefully considered the record and applied the evidence to the standards of the code. Lenyo requested Council affirm P&Z’s decision without modification.

Ms. Hall pointed out Walls objected to the original application and there is a letter on file. Wells met with the community development department and exp