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HomeMy WebLinkAboutbocc.min.reg.11052008PITHIN COUNTY COMMISSIONERS REGULAR MEETING AGENDA Rio Grande Meeting Room WEDNESDAY, NOVEMBER 5, 2008 12:00 NOON ADDITIONS/DELETIONS TO AGENDA PUBLIC COMMENT, COMMISSIONER COMMENTS CONSENT ACTIONS 1. Minutes of October 8 Regular Meeting, October 21 Special Meeting, and September 2, 23, and October 7 Work Sessions 2. Resolution Appointing Members to the Conflict of Interest Committee, Open Space & Trails Board of Trustees, Broadcast Services Boazd, and Senior Services Council, Charlotte Anderson CONSENT ACTIONS, 15` Reading and Set for Public Hearing on November 19 3. Resolution Approving Assignment Of Sub-Lease between Trajen Flight Support, LP and North American Flight Support-Aspen, LLC, Dave Ulane 4. Resolution Approving Assignment Of Concession Agreements between NGSI and Pitkin County to HDS Retail North America, LP 5. Resolution to Accept a State and Private Forestry Grant from the Colorado Department Of Agriculture For a Weed Control Cost Share Program With Landowners, Crystal Yates-White CONSENT PUBLIC HEARING 6. Confirmatory Reading, Emergency Ordinance Authorizing Issuance of up to $10 million of General Obligation Open Space Acquisition Bonds, Tom Oken LAND USE CONSENT PUBLIC HEARINGS 1. Three Lost Souls LLC Site Plan Review (Referred to BOCC by Director), PH, (Continued to 11/19/08 at Applicant's request), M. Kraemer 2. Cold Mountain Ranch Subdivision and Open Space Master Plan, 2"d Reading, (To be continued to 12/03/08, at County Request), PH (PN 9/7/08), C. Houben LAND USE CONSENT ACTIONS 3. Aspen Music Festival & School Road Vacation and Minor Plat Amendment, 2nd Reading, S. Wolff LAND USE PUBLIC HEARINGS 4. Aspen Sumner Corporation Activity Envelope, Site Plan, Special Review for a Caretaker Dwelling Unit, and Special Review for a TDR Receiver Site, Appeal of Hearing Officer Determination #07- 2008, PH (PN 10/19/08), M. Kraemer BOCC OPEN DISCUSSION Prepazation for Meeting with Glenwood Springs City Council ADJOURN THURSDAY, NOVEMBER 6, 2008 11:30 -12:30 JOINT MEETING WITH GLENWOOD SPRINGS CITY COUNCIL (Lunch Provided) Council Chambers, 101 West 8`s Street Glenwood Springs APPROVED DECEMBER 3, 2008 MINUTES PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS REGULAR MEETING NOVEMBER 5, 2008. NOTE: For all staff memorandums and associated documents, including additional exhibits submitted to the record, refer to the BOCC PACKET FOR NOVEMBER 5, 2008 CALL TO ORDER: Chairman Jack Hatfield called the Board of County Commissioners to order at 12:00 PM. COUNTY COMMISSION MEMBERS PRESENT: Jack Hatfield, Patti Kay-Clapper, Dorothea Farris, Michael Owsley and Rachel Richards. COMMISSION MEMBERS ABSENT: None ADDITIONS/DELETIONS: None PUBLIC COMMENT: None COMMISSIONER COMMENT: Members of the board congratulated the re-election of Jack Hatfield and Michael Owsley as well as George Newman who will be taking up Dorothea Farris' vacated seat beginning in January 2009. The electors thanked the Pitkin County voters for their support and the board, as a whole, thanked the voters for supporting the ballot questions on the Ryan Parcel, the Health Rivers and Streams, RFTA and the City of Aspen's renewal of the Housing/Daycare tax. Commissioner Kay-Clapper announced the Aspen High School football team being in the State Playoffs as a top wildcard draw. Chairman Hatfield thanked Commissioner Kay-Clapper and the rest of the board for their many years of work on behalf of the Ryan Parcel. Commissioner Richards asked for a moment of silence to acknowledge all of those who are on foreign soil, whose families have suffered loss through the war in Afghanistan BOARD OF COUNTY COMMISSIONERS 1 REGULAR MEETING NOVEMBER 5, 2008 and Iraq, and pray for their peace of mind and their healing and pray that we have leader now who will find a way honorably to end these conflicts. CONSENT ACTIONS: MINUTES OF BOARD OF COUNTY COMMISSIONERS' REGULAR MEETING OF OCTOBER 8. 2008. SPECIAL MEETING OF OCTOBER 21.2008. AND WORK SESSIONS OF SEPTEMBER 2. 23 AND OCTOBER 7. 2008 -MOTION TO READING ON RESOLUTION APPOINTING MEMBERS TO CONFLICT OF INTEREST COMMITTEE. OPEN SPACE & TRAILS BOARD OF TRUSTEES. BROADCAST SERVICES BOARD AND SENIOR SERVICES COUNCIL -MOTION TO APPROVE STAFF: CHARLOTTE ANDERSON Commissioner Farris moved to support the minutes and to appoint the following people: Howie Mallory to Open Space 8~ Trails, Andy Todd and Susan Melville to the Broadcast Service Board, and Itzhak Vardy and Tom Kurt to the Senior Services Council (along with those of the Conflict of Interest Committee). Commissioner Owsley seconded the motion. Motion passed 5 to 0. ST FIRST READING ON RESOLUTION APPROVING ASSIGNMENT OF SUB-LEASE BETWEEN TRAJEN FLIGHT SUPPORT. LP AND NORTH AMERICAN .FLIGHT SI IPPART_ASPFN I I C _ MnTInN TO APPRnVF AN FIRST RFOrIIN(; oNr) SFl STAFF: DAVE ULANE. ASSISTANT AVIATION DIRECTOR/ADMINISTRATION FIRST READING ON RESOLUTION APPROVING ASSIGNMENT OF CONCESSION AGREEMENTS BETWEEN NGSI AND PITKIN COUNTY TO HDS RETAIL NORTH AMERICA. LP -MOTION TO APPROVE ON FIRST READING AND SET SECOND READING AND PUBLIC HEARING TO NOVEMBER 19. 2008 Commissioner Farris moved to approve the Assignment of Sub-Lease between Trajen Flight Support, L.P. and North American Flight Support and the Assignment of Concession Agreements between NGSI and Pitkin County to HDS Retail North America, LP on first readings and set second readings and public hearings to November 19, 2008. Commissioner Kay-Clapper seconded the motion. Motion passed 5 to 0. BOARD OF COUNTY COMMISSIONERS 2 REGULAR MEETING NOVEMBER 5, 2008 FIRST READING ON RESOLUTION TO ACCEPT A STATE AND PRIVATE Commissioner Farris moved to approve the. Resolution to accept a State and Private Forestry Grant from the Colorado Department of Agriculture for a weed control cost share program with landowners on first reading and set second reading and public hearing to November 19, 2007 Several of the Commissioners voiced concerns that they would like addressed at second reading. Several of their concerns were: • How the landowners would be selected (say there are five, but there is not enough money for five) • What methods of control would be used -herbicide, biological control, etc. • Criteria STAFF DIRECTION -The board would like the Land Management officials present to respond to the boards' concern. Chairman Hatfield called the question. Motion passed 5 to 0. CONSENT PUBLIC HEARINGS: CONFIRMATORY HEARING ON EMERGENCY ORDINANCE AUTHORIZING THE ISSUANCE BY PITKIN COUNTY. COLORADO. OF THE PITKIN COUNTY, COLORADO, GENERAL OBLIGATION OPEN SPACE ACQUISITION BONDS, ST Commissioner Farris moved to approve the confirmatory reading on the Emergency Ordinance. Commissioner Owsley seconded the motion. BOARD OF COUNTY COMMISSIONERS 3 REGULAR MEETING NOVEMBER 5, 2008 STAFF: CRYSTAL YATES-WHITE, LAND MANAGEMENT Chairman Hatfield opened the hearing to public comment. There being none, he closed the public hearing and called the question. Motion to approve passed 5 to 0. LAND USE CONSENT PUBLIC HEARINGS: THREE LOST SOULS LLC SITE PLAN REVIEW REFERRED TO BOCC BY THE COMMUNITY DEVELOPMENT DIRECTOR -MOTION TO CONTINUE TO NOVEMBER 19, 2008 STAFF PLANNER: MICHAEL KRAEMER SECOND READING AND PUBLIC HEARING ON COLD MOUNTAIN RANCH SUBDIVISION AND OPEN. SPACE MASTER PLAN -MOTION TO CONTINUE TO Commissioner Farris moved to continue the Three Lost Souls, LLC item to November 19, 2008 and to continue the second reading on the Cold Mountain Ranch item to December 3, 2008. Commissioner Richards seconded the motion. Chairman Hatfield opened the hearing to public comment. There being none, he closed the public hearing and called the question. Motion passed 5 to 0. LAND USE CONSENT ACTIONS: SECOND READING ON ORDINANCE AUTHORIZING VACATION AND ASSOCIATES OF ASPEN. INC. PROPERTY -MOTION TO APPROVE STAFF: SUZANNE WOLFF. SENIOR PLANNER Applicant: Aspen Music Festival and School Applicant's Representative: Alan Richman and Tom Todd Request: Applicant is requesting to vacate a railroad right of way that crosses the campus. The neighboring land owner (to the south), Richard Furman, has joined in the petition for vacation of the railroad right of way, which also crosses his property. The applicant is also requesting to vacate the access easement for Music School Road in anticipation of granting a replacement easement to the county for the realignment of Music School Road, as shown on the amended plat. Commissioner Kay-Clapper made a statement for the record. She stated that she was not present for the first reading, but she went through the minutes, read the packet and BOARD OF COUNTY COMMISSIONERS 4 REGULAR MEETING NOVEMBER 5, 2008 watched Grassroots' coverage in order to catch up. When the original application came before the board she recused herself. At that time her husband was employed by and was working with Shaw Construction. That is no longer happening. Due to the fact that this road vacation has nothing directly tied with the issues with the Master Plan. After speaking to staff and the County Attorney, she will be a part of the vote on this today. DIRECTION TO STAFF: Commissioner Farris wants two items in the agreement put into a tickler file so that the dates in the Ordinance are not missed. One of those items is that the amended plat be prepared and submitted within 120 days of this approval. The other item states that the County Attorney shall not approve a replacement easement that does not include provisions acceptable to the County Engineer on certain issues. Commissioner Kay-Clapper moved to approve the second reading of the Ordinance authorizing vacation and conveyance of a portion of the Newman Tunnel Spur railroad right-of-way to the Music Associates of Aspen inc. And RRF Corporation; and authorizing vacation of the easement for Music School Road and accepting a new easement on the Music Associates of Aspen, inc. property. Commissioner Farris seconded the motion. Motion passed 5 to 0. LAND USE PUBLIC HEARINGS: READING AND PUBLIC HEARING DENYING THE PFEIFER APPEAL OF HEARING OFFICER DETERMINATION -MOTION TO SUPPORT STAFF'S RECOMMENDATION AND DENY THE APPEAL STAFF: MIKE KRAEMER, PLANNER Appellant: Chris Pfeifer Applicant: Aspen Sumner Corporation (Gary Stewart) Applicant's Representatives: Michael Hoffman for Chris Pfeifer and Glenn Horn and Bart Johnson for Gary Stewart Request: Appellant is appealing Hearing Officer Determination No. 07-2008 which granted the Aspen Sumner Corporation Activity Envelope, Site Plan Review, Special Review for a CDU and Special Review for a TDR Receiver Site for additional floor area up to 15,000 square feet. The Appellant is appealing the Hearing Officer's decision on the basis that there has been a denial of due process in the application of facts in the record to the standards of the Code. Commissioner Owsley recused himself as his family has had financial transactions with Chris Pfeifer, regarding the Salvation Ditch. It was announced that Chris Pfeifer was ill and unable to attend today's meeting, but a colleague of his, Steve Garcia, was present. BOARD OF COUNTY COMMISSIONERS 5 REGULAR MEETING NOVEMBER 5, 2008 Chairman Hatfield opened the public hearing at this time. Michael Kraemer proceeded with his presentation as shown in his staff memorandum. Staff recommends that the BOCC deny the appeal of Hearing Officer Determination No. 07-2008 regarding the Aspen Sumner Corporation Activity Envelope, Site Plan Review, Special Review for a CDU and Special Review for a TDR Receiver Site for additional Floor area up to 15,000 square feet. Michael Hoffman represents Chris Pfeifer, the appellant. The appellant is appealing Hearing Officer Determination No. 07-2008 pursuant to the grounds outlined in the appeal submittal packet from Michael Hoffman of Garfield & Hecht, P.C. dated June 25, 2008 and included in today's meeting packet material. He is appealing two findings, Recital number 7 and number 8 as he believes they are not sufficient to meet the requirements of the Code for the approvals in the Determination. He continued on by saying that the findings do not address the negative impact of the proposed development on the surrounding properties, including in particular Mr. Pfiefer's property. Mr. Hoffman posted several enlarged map exhibits for the board (but did not submit them for the record) which showed: A Aspen-Sumner 1041 Hazard Review Site Plan B Map showing where's it's moved to the Northeast corner C Colored photograph showing fencing and red "spot" representing the home to be built on the Aspen-Sumner property and its negative impact from Mr. Pfeifer's property. D Map showing both lots E Blue and White elevation depiction of the Aspen-Sumner Corporation proposed residence Mr. Hoffman submitted Subsection B of Code Section 7-10-50: Site Plan and Activity Envelope for the record. He then read a portion of that section to the board. He also submitted for the record Subsection 2 and 2(g) of the Land Use Code Chapter 2: Review and Approval Procedures. These Subsections are attached to the end of today's meeting packet material. Commissioner Farris asked Mr. Hoffman if she was correct that Mr. Pfeifer owned the Aspen-Sumner property at orie time and then sold it. Mr. Hoffman said yes. She then asked if there were any restrictions placed on the property at that time with regard to either size of the dwelling or location of the dwelling. Mr. Hoffman responded that he understood there was an oral agreement regarding the improvements. He personally couldn't speak to that, but Mr. Pfeifer's colleague, Steve Garcia might be able to provide that information. BOARD OF COUNTY COMMISSIONERS 6 REGULAR MEETING NOVEMBER 5, 2008 To Mr. Hoffman's knowledge there is nothing in writing. There is no covenant and no restrictions on the property itself. Commissioner Farris stated that at one time Mr. Pfeifer owned that property so to have clear vision he could have kept that property with no development on it. Mr. Hoffman replied by saying that's right Steve Garcia, colleague of Chris Pfeifer, addressed the board. He added that one of the other objections that they have is just the inconsistency with the decisions made by Mr. True and it might help if he gave the board a sequence of events. He began by saying that in 2002 when they went through the 1041 process for Aspen-Sumner, which is Lots 12 and 12A, they got the approval for the 10,750 square feet. After that there was a sale of Aspen-Sumner to Gary Stewart in November 2006. Right after that, he continued, they went through the 1041 process for the property right above it which is Lot 13. They asked the County for 3 TDRs with a site plan as applied for. Mr. Garcia said that the Planner, Ezra Louthis, said that he would approve TDRs to be consistent with the surrounding home and current applications in the area. He added that this was a paraphrase but that's what Mr. Louthis said and then gave them 2 TDRS for Lot 13. Then there was a changing of the guard as Mr. Louthis left the County to work with his Father. In less than a year, Aspen-Sumner comes forward with their 1041 application and, without what we felt was due consideration, approved 4 TDRS. So, he said, we went from 2 TDRS on Lots 12 and 12A, applied for 3 TDRs on Lot 13 and got 2 and then less than a year later change in the guard appears and then 4 TDRs pop up on that Aspen-Sumner property. Michael Kraemer corrected some of Mr. Garcia's statements. He said that the application that came in 2007 was for an Activity Envelope with Vested Rights, Special Review for TDRs and Caretaker Dwelling Unit, which is also Special Review. On page 2 of the proposal that came in, he continued, it said that the applicant seeks approval for an Activity Envelope, TDR Receiver Site, 5,000 additional square feet of floor area and a CDU and the applicant is not seeking Site Plan approval at this time. The approval from Mr. True also states that it's the Determination of the Hearing Officer of the Com- Dev Department with the county approving right for Activity Envelope Review, Special Review, GMQS Exemption for a CDU and use of TDRS for additional floor area of 10,750 square feet. Mr. Kraemer said that the previous planner wrote a memo that he would like to quickly clarify as well. He read from the memo saying "why wasn't (inaudible) recommended for approval up to 13,750? The applicant has provided some basic sketch designs and photo montages for the proposed 13,750 square foot residence. While these proposed sketches provide a basic and conceptual idea with visual impact of the residence, staff is concerned that since the property is not going through Site Plan Review at this time, there are going to be additional changes and potential design changes to the residence. BOARD OF COUNTY COMMISSIONERS 7 REGULAR MEETING NOVEMBER 5, 2008 Additionally, there has not been a true footprint provided for further elevations for all proposed development, nor is there a description of what vegetation is to remain and what may be required (inaudible)." This was from a memo from staff to Jim True. Chairman Hatfield asked Mr. Kraemer if the Determination made by Jim True was that 2 TDRs were appropriate, but because of the lack of site planning and further information he wouldn't go for 3. Mr. Kraemer said that he wasn't at the hearing, but that is what he understands The Aspen-Sumner Corporation is the applicant and is represented by local attorney Bart Johnson of Otten, Johnson, Robinson, Neff and Ragonetti. Mr. Johnson began his presentation by introducing planner Glenn Horn, John Mosesso- from Mr. Johnson's office, Rob Sinclair the architect, and Gary Stewart the owner and his wife Angie. Mr. Johnson proceeded with his presentation while he submitted a blue three-ring binder of hearing exhibits, including a table of contents for the record on behalf of his client. He told the board that he is not intending to read a bunch of stuff from that binder Basically, he wanted to have one exhibit book that contains everything that he would be talking about as well as a written response to Mr. Hoffman. He then talked about the timing issue as far as the timeliness of the appeal. He would like the board to take that into consideration, but they are not hanging their hats on that as they believe they have substance on their side. He then addressed some of the statements and depictions made earlier by Mr. Hoffman by using his own enlarged photos which were included in his three-ring binder. One of the enlarged photos shown by Mr. Hoffman was the view of Aspen-Sumner's house from Mr. Pfeifer's property. Mr. Johnson stated that the view IS NOT from Mr. Pfeifer's property, but is a view from the driveway where it shows fencing as he pointed to his enlarged photo. He showed additional photos from other viewpoints. Said photos are included in his three-ring binder material which will be attached to the back of this packet material. Mr. Johnson posted four colored maps showing views from the driveway, a view showing the roof line, a view to the south from Pfeifer's property and a panoramic view from the Pfeifer approved building site. All of these maps are included in Mr. Johnson's blue three-ring binder. Mr. Johnson continued with his presentation based upon documents in his three-ring binder. Mr. Johnson asked the board to acknowledge his client's 3-year vesting which is suspended until this appeal has been determined by the BOCC. He said that if they can convince the board to uphold the decision, he would like some acknowledgement that the 3-year vesting period was also tolling during the time that they couldn't act on their BOARD OF COUNTY COMMISSIONERS 8 REGULAR MEETING NOVEMBER 5, 2008 approval so that they're not losing close to 6-months after this is all said and done from an appeal that they didn't really have any control over. He is not sure if it is 6-months, but it is at least a few months. Glenn Horn made several remarks to the board addressing the TDR process and Site Review referring to a topographical study map. Commissioner Farris stated that it is perfectly clear that Mr. True's judgment, with a quality of deliberation, did consider the impacts. As a result of that consideration, what the board is being asked to not consider, are changes to the siting, changes to the elevation, changes to the design that were a direct result of the judgment based on his consideration of the impacts that were identified here. Therefore, she said that she thinks the appeal should be denied. Commissioner Kay-Clapper said that she believes this came in under the new Code which then gives the grounds for moving this because the old site did not comply with the old Code. She finds that the Hearing Officer's decision was in compliance with and is in support of the current Land Use Code. She supports staff's recommendation to deny the appeal. Chairman Hatfield opened the hearing to public comment. Angie Stewart, wife of Gary Stewart, told the board that they have been jumping through hoops to try and make this as lovely a thing in this neighborhood as they could. She said that they have done everything that they could. She's just thinking of her wonderful grandchildren they have running through their field. Chairman Hatfield closed the public hearing. Commissioner Richards commented that she believes the case has been well made that this is consistent with the pattern of development and re-development that is occurring and will occur within the neighborhood and the issue of asking, requesting and then seeing the architectural renderings are reduced in mass, size and height are significant. Commissioner Richards moved to pass this Resolution upholding the Hearing Officer's Determination and denying the appeal of the Hearing Officer's Determination. Commissioner Kay-Clapper seconded the motion. Chairman Hatfield said that in order for the board to, essentially, overturn the Hearing Officer's Determination, the board has to find that there was a clear and demonstrable error, which he does not believe there was, and abuse of discretion, which he does not believe, or denial of procedural due process in the application of the facts in the record to standards of the Land Use Code. At this point, he doesn't think there was any denial of due process. He added that Michael Hoffman said that he would like to have more BOARD OF COUNTY COMMISSIONERS 9 REGULAR MEETING NOVEMBER 5, 2008 facts as to the thinking of Jim True's determination and how he evolved to the re-siting and down-sizing, etc. It doesn't look like there was any due process error here at all. Commissioner Richards asked John Ely when should the vesting right begin? Mr. Ely said that the Determination becomes final in this particular case in June. The request that Bart Johnson made earlier to have the period of vesting tolled or stayed to reflect the period of months after the appeal is pending is something to his recollection has not come up before. He said that there is no prohibition in the Code right now that would have kept the applicant from proceeding at their own risk, so to speak. However, he thinks it is a legitimate factor to consider. Commissioner Richards said that based upon Mr. Ely's comments, she thinks it is appropriate to NOT set a new precedent at this hearing about vested rights and appeals and determinations. But, she said that the board could certainly take into consideration as the vesting period begins to run out. Commissioner Richards and Commissioner Kay-Clapper also thanked Michael Kraemer for his excellent work on this appeal. Chairman Hatfield called the question. Motion to support staff s recommendation to deny the appeal passed 4 to 0 with Commissioner Owsley recused. BOCC OPEN DISCUSSION: The board discussed their upcoming annual meeting with the City Council of Glenwood Springs along with their input on suggested topics. BOARD OF COUNTY COMMISSIONERS 10 REGULAR MEETING NOVEMBER 5, 2008 R. Dean the Board of Otte Jones to the Board of ounty Commissioners ~7 J ck Hatfield Chairman oft a Board of County Commissioners g\bocc\m inutes\2008\11052008 BOARD OF COUNTY COMMISSIONERS 11 REGULAR MEETING NOVEMBER 5, 2008