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HomeMy WebLinkAboutpitkin.planning.273501403022 (2)DOCUMENT LAYOUT THIS FILE MAY OR MAY NOT CONTAIN ALL OF THE INFORMATION LISTED BELOW IN THE FOLLOWING ORDER Summary Sheet Resolution for the BOCC and /or P &Z Ordinance for the BOCC and/or P &Z Determination for the Hearing Officer Administrative Determination Staff Memo Application Public Notice, Acceptance Letter, Referral(s) Letter Site Plan Miscellaneous Plat copies (11x1') Parcel ID: 2735- 01 -4 -03 -022 Application Date: 6/10/13 Case No: P05O -13 Description: Aspen Kiwi Properties LLC Appeal of Hearing Officer Determination #003 -2013 Planner: Suzanne Wolff # Copies: 1 Withdrawn 7/11113 Allocated Hours: 3 % Over Hours: 3.6 Project Address: 720 WILLOUGHBY WAY, ASPEN, CO 81611 Property Owner: DULIEN MERLE J Owner's REP: JOSEPH E JR EDWARDS REP's Email: joeedwards @sopris.net Referrals: EH & NR REFERRAL Comments Due Date: Meetings: 1st Meeting: Meeting Date: Review Body: bocc Public Hearing? yes Notice Date: Meeting Notes: Address. PO BOX 3556 Owner Phone: ASPEN, CO 81612 Address: 14 FENDER LN REP's Phone: (970) 963 -8538 CARBONDALE, CO 81623 Other Referrals: 2nd Meeting: Approvals: BOCC Resolution #: P &Z Determination #: BOCC Ordinance #: HO Determination #: Admin Determination #. Other Information: VR Approval Date: VR Expires Date: Remarks Application Type: Appeal Plat Recorded Date. Plat (Bk, PG) 3rd Meeting: Suzanne Wolff From: Joseph E. Edwards Jr. <joeedwards @sopris.net> Sent: Thursday, July 11, 2013 2:15 PM To: Suzanne Wolff Cc: Imo @okglaw.com; 'Merle Dulien' Subject: Kiwi Site Plan Application Suzanne, My client Merle Dulien as the owner of Lot 22 Block 2, of Pitkin Green Subdivision has determined to withdraw her appeal of the Hearing Officer Determination that approved the Kiwi Aspen LLC Site Plan and Activity Envelope. Joe Edwards, Attorney for Merle Dulien ouuool J 3 Z LAW OFFICE JOSEPH E. EDWARDS, JR. 14 FENDER LANE CARBONDALE, COLORADO 81623 TELEPHONE JOSEPH E. EDWARDS, JR. (970) 963 -8538 e -mail: joeedwards@sopris.net FACSIMILE (970) 963 -8538 June 8, 2013 Suzanne Wolff Community Development Department 130 S. Galena St. Aspen, CO 81611 Re: Aspen Kiwi Properties LLC, Activity Envelope and Site Plan Review, 720 Willoughby Way, Case # P021 -13; PID 2735- 014 -03 -022 Dear Suzanne, Notice of Appeal of Hearing Officer Determination. I represent Merle Dulien, who lives at 763 Willoughby Way. We hereby give Notice of Appeal of the Decision of the Hearing Officer, Tom Smith, at the hearing of May 21, 2013 concerning the above referenced application of Aspen Kiwi Properties LLC for an Activity Envelope and Site Plan Review for the property at 720 Willoughby Way. The Decision approving the application was granted a result of clear and demonstrable errors and was a denial of procedural due process in the application of facts in the record to the standards of the Land use Code. A brief statement of the demonstrable errors and failure to meet the standards of the Land Use Code follows: 1. The Decision approved the Site Plan without requiring the applicant to comply with the requirement of Land Use Code Table 5 -113 that the site to bedeveloped in the R -30 zone have 6600 square feet of Useable Open Space as defined in Land Use Code Sec. 5- 20 -90. 2. The Decision erroneously exempted 4000 square feet of below grade space from the calculation of the "floor area ratio and allowable floor area" contrary to Land use Code Section 5 -20 -70 (g) (2) which only allows the exemption of a garage of 750 square feet from the calculation of the "Allowable floor area ratio based on Floor Area Ratio (FAR)" as required for the R -30 zone by Land Use Code Table 5 -113. 3. The Decision erroneously purported to approve a house containing 9500 square feet using TDR's and without compliance with Land use Code Sec. 6 -70 -40 (b) (1) (b) and the footnote of Land Use Code Table 6 -12, which prohibit the use of TDR's on this site, as the lot is small and the maximum house size is limited by the FAR to less than 5750 square feet. 000002 yaw,„ F.a.:... OATES, KNEZEVICII, CiAR1)IsN ,tA, AIZTZ, IK -ELLY 86 MORROW, P.C. I .:v,n NAt I UPPORA I ION RD F OOR 4GPEN P: %7A EUILDING i E HOPKIIJS WI NUE AS l N 1.()I ORAP(i oily 'AkP 1,,Gx - .11 C 11 I FONARUNI OATES RICHARD A KNEZEVICI i TED GARDENSWARl1 DAVID KFIAY MARIA MORRM OF COUNSEL ,qTFPHFNP CONNOR ANNF MARIE M.:PHFF SARAH M OATES Suzanne Wolff, Senior Planner Pitkin County Community 130 South Galena Street Aspen, CO 81611 July 2, 2013 Development Department I! 11 PI II INI .9,91 "11'ii,l FACSIN911 C ;9]015:0 I I'1 DIRECT ImnJ Sao 13 �m�;'1.�1 JIdh rc ^i VIA HAND DELIVERY & E -MAIL Re: Merle Dulien Appeal of Hearing Qjjicer Decision No. 3 -2013 — Lot 23, Pitkin Green Subdivision /720 Willoughby Way (" Property') Dear Suzanne: I am w=riting in response to the Notice of Appeal of Hearing Officer Determination ( "Notice ") filed by Joseph E. Edwards on behalf of a neighbor of the Property, Merle Dulien. We represent the owner of the Property, Five Rules Holdings Property 1 Ltd ( "Owner "). Please note that subsequent to the Administrative Decision ( "Decision "), the Property has been conveyed from .Aspen Kiwi Holdings LLC, a Colorado limited liability company to Five Rules Holdings Property I Ltd, a New Zealand limited company. In the Notice, Mr. Edwards states that Hearing Officer T om Smith's approval of the Activity Envelope and Site Plan Review for the Propertv was the result of clear and demonstrable errors and was a denial of due process. As grounds for the appeal, Mr. Edwards cited four separate Pitkin County I and Use Code ("Code" or "Land Use Code ") standards in his Notice which he believes were not mct in the Owner's Land Use Application. ( "Application") for the Property. Below are the Owners responses to the Notice: 1. Air. F_dwards states, on behalf of Ms. Dulien, the Decision approved the Site flan without requiring the applicant to comply with the requirement gfLand Use Code Table 5-113 char a site in the R -30 zone district be developed inith 6600 square feet of Useable Open Space as de/ined in Land Use Code See 5- 20 -90. Pitk9F1 COUnty OWNER'S RESPONSE uuuuo-3 All 0 � 2G13 Comfijul;tj iev�oi ; ment OATI.s, KNUFti CIA, GAIMENMk Alz i i, Kr-1 l.v t P.C. Response to Dulien Notice of Appeal — 720 Willcughhy Way July 2, 2013 Page 2 As stated in the Staff Memorandum dated May 21, 2013 ( "Staff Memorandum "), recommending approval of the Site Plan and Activity Envelope, the Community Development Staff has not regularly applied this provision to individual lot development. In doing a cursory review of building permit files for projects in the R -30 zone district, I can confirm this standard has not been regularly applied by Pitkin County ( "County "). Nonetheless, the project's architect, David Jolmston, has calculated the Useable Open Space on the site pursuant to Section 5 -20 -90 and the proposed project actually has 10,170 square feet of Useable Open Space. A copy of the Usable Open Space analysis done by Mr. Johnston is attached hereto as Exhibit "A" and incorporated herein by reference. There has been no clear and demonstrable error in approving the Site Plan and Activity Envelope on the grounds it does not comply with Section 5-20-90 of the County Code. 2. Mr. Edward states on behalf of,11s. Dulien, that the Decision has erroneously exempted 4000 square feet of below grade space from the calculation of " lloor area ratio and allowable floor area" contrary to Land Use Code Scc.'ton 5 -20- %0(g)(2) which allows the exemption of a garage 01 750 square feet from the calculation (f the "Aliou -able floor area ratio based on Flour Area Ratio - as required /or the R -30 zone divirict by Land Use ( ode Table 5 -1 B. OwNER's RESPONSE 1. All Propetties within the Urban Growth Boundary t "UGB" are Allowed Exemptions for Floor Area for Subgrade and Garage Space Both Community Development Department Staff and the Hearing Officer disagreed with Mr. Edwards argument related to a differentiation between the exemption in Section 5- 20- 70(g)(2), which exempts 4,000 square feet of below grade /subgrade space from the floor area. and Section 5-20 - 70(g)(2), which exempts 750 square feet of garage /carport from the calculation of floor area. The basic premises of Mr. Edwards argument is that because the allowable floor area for the Property is based on a floor area ratio of .13 pursuant to Land Use Code Table 5 -113, the subgrade exemption does not applv because the phrase "floor area ratio" is not included in the Section 5- 20- 70(g)(2) which specifically exemptions 4,000 square feet of subgrade space for certain lots in the County. As pointed out by the Hearing Officer during the public hearing on May 21. 2013, although the sections exempting subgrade space and garage square footage are worded slightly- differently, in the local development community, among the planning staff and County boards /commissions, the terms "floor area," "floor area ratio" and "FAR" are used interchangeably and imprecisely. To assert the Pitkin County Board of County Commissioners ( "BOCC "), Planning and Zoning Commission ( "P &Z ") and /or Community Development Staff intentionally made a such a distinction is erroneous, is not supported by the public record at the time the Land Use Code was most recently updated in 2006, and is not supported by approvals of land use applications and building permits submitted subsequent to the adoption of the 2006 Land Use Code. !iUUUU4 OiATES, KNF7FV1Cl I, GARDF.NMb ART7, KFl LY & MORROW P.C. Response to Dulien Notice of Appeal -- 720 Willoughby Wav July 2, 2013 Page 3 The issue of allowable floor area and floor area exemptions in the UGB is closely related to the use of TDRs as discussed in the Owner's Response to Dulien's third objection discussed below. The discussion, and ultimate approval of a new Land Use Code by the BOCC and P &Z in to 2006, did not distinguish between "smaller" lots, such as the subject Property which is 38,000 square feet, and larger lots that would support allowable Floor Area of 5,750 square feet in the UGB. Rather, the proposal brought forward by Community Development Department Staff and consultants in 2006 focused on creating a Growth Management Quota System ("GMQS ") exemption of 5750 square feet on specific lots in the County, including an exemption for a legally created structure such as the existing structure located at 720 Willoughby Way. See 6 -30 -110 of Land Use Code. The proposal, as reflected in the current Code, was to require a GMQS allocation or the use of TDRs for any residential structure larger than 5,750 square feet of Gross Floor Area. It is also important to point out that during the 2006 Land Use Code re- write, the concept of Gross Floor Area was introduced into the Land Use Code, Based on the 2006 Land Use Code, there is not only an allowable Floor Area based on Floor Area Ratio that includes exemptions from the calculation of Floor Area for subgrade and garage spaces for FAR lots in the UGB, but there is also a "Gross Floor Area After GMQS Allocation or TDR" pursuant to Table 5 -1 B. The methodology for calculating Gross Floor Area pursuant to Section 5- 20 -80, as pointed out in the Staff Memorandum in this matter, is to add areas included in the measurement of Floor Area, pursuant to Section 5- 20 -70, and the following exemptions from floor area: below -grade space, garage and carports pursuant to Section 5- 20- 70(g)(1 and 2) As part of the background on the 2006 Land Use Code re- write. I am including "Draft Explanation of 5,750 Square Foot Growth Management Exemption as Approved by BOCC on First Reading 1/26/06" attached hereto and incorporated herein. as Exhibit "B." As stated above. in his initial objection letter to the Hearing Officer, Mr. Edwards attempts to make a distinction between "FAR Lots" in which the allowable Floor Area is determined based on a ratio of the lot area (i.e. by way of example, lots in the R -30 zone district which have a. 13 ratio of lot size to allowable Floor Area) and lots which have sufficient lots size to support a Floor Area of 5,750 square feet. Exhibit B clearly states the both the 4,000 square foot subgrade exemption and 750 garage exemptions apply to "FAR Lots." I have also attached hereto and incorporate herein by reference Exhibit "C." Exhibit C are Pages 13 -16 of the Staff Memorandum covering public meetings and hearings on January 24-26, 2006 ( "Code Re -write Memorandum "), along with subsequent hearing dates on the Land Use Code re- write. Pages 13 -16 of the Code Re -write Memorandum address Topic 5 of the 2006 Land Use Code re -write — 4,5,750 Sq. Ft. Floor Area Limitation in the Aspen Urban Growth Boundary Area." As stated in Paragraph 3 of the Proposal section of the Code Re -write Memorandum (Page 14): "the revised Code does not change the current practice of exempting 4,000 sq. ft. of sub -grade space and up to 750 sq. ft. of garage /carport space from floor area calculations on FA R !,ns (emphasis added) in the Aspen Urban Growth Boundary Area." Exhibits `D" and "E," attached hereto and incorporated herein by reference, are extracts from the meeting minutes from January 25, 2006 and April 13, 2006. respectively. On January 25, 2006, in a joint session between BOCC and P &Z, the primarily discussion was on the GMQS and Floor Area/FAR changes to the 2006 Land Use Code. In fact. the meeting minutes show that there was discussion at this UULJU05 OA FFs, KNF /.F.VIC II, GARDFNSX ART7, K_ta.t,v & M% )RRt),O, P.C. Response to Dulien Notice of Appeal -- 720 Willougl.b} Way July 2, 2013 Page 4 meeting about not limiting "what Red Mountain could go to today" to terms of house size. The motion which was ultimately adopted by both P &Z and BOCC states: 661. In the UGB, in an FAR regulated area, you have 5750 total feet of stuff before you bump up against GMQS. 2. Garage space up to 750 and basement space does not count toward your FAR calculation. It only counts toward you GMQS" (emphasis added). Exhibit E is the April 13, 2006 meeting minutes for the Second Reading of the Land Use Code in which the BOCC and P &Z made no change to the proposal discussed above. See Exhibit D, Pg. 12, Paragraph G(2). The review of the public record demonstrates . two things with respect to Ms. Dulien's appeal. First, the terms "FAR," "Floor Area ", "allowable Floor Area" and "Floor Area Ratio" were used interchangeably throughout the approval process, in discussions among the BOCC and P &Z members, and the Code Re -write Memorandum but at no point was there a discussion of small lots versus large lots or FAR lots versus lots where 5,750 square feet of Floor Area could be built by right. The record is also clear that the BOCC and P &Z in 2006 agreed to continue to allow the subgrade and i4araee /carport t,xemptions from the Floor Area calculation on all FAR Lots in the UGB. In fact, included in the list of approved permits in section II below are examples of lots in Mountain Valley, also included in the UGB, where the minimum lot size for the zone district is 15,000 square feet and most of the lots are less than 30,000 square feet. These smaller lots (much smaller than the Property which is 38.000 square feet) are eligible for and have received approval for both the subgrade and garage exemption in Section 5 -20 -70(7) IL Examples of Properties on "FAR Lots" with Approved Exemptions for Subgrade Space and Garage Space (Pre- and Post- Land Use Code Re- write) The Property that is subject to this appeal has a 38,000 square feet lot size and pursuant to the R- 30 zone district and Table 5 -1, the floor area ratio for the Property is .13. Below are a handful of examples in the public record of properties of similar size (two of which are near Ms. Dulien's property) which were approved with subgrade and garage e-,entptions: 234 Magnifico Road (adjacent to Ms Dulien's rear property line): Applied for Site Plan (review in 2004). There was no objection by neighbors. The lot is 34,920 squarc feet with a floor area ratio of .13 pursuant to the R -30 zone district and Table 5 -1. Approved with subgrade and garage exemption in 2004 (2735 -014 - 03015). 204 Magnifico Road (adjacent to Ms. Dulien's rear property line): Applied for Site Plan review m2006. No objection by neighbors. The lot is 31,583 with a floor area ratio of .13 pursuant to the R -30 zone district and Table 5 -1. Received a height variance from Pitkin County. Approved with subgrade and garage exemption (Parcel ID No: 2735- 014 - 03016). 294 & 296 Draw Drive: County approved an Administrative Decision in 2007. Lot is 14,194 DUU006 0ATI?5, KNUEVICI-1. GARDF:NSNN7ART7 KI LLY &- Nloi) ROW P.C. Response to Dulien Notice of Appeal - 720 Willoughby Way July 2, 2013 Page 5 square feet with a floor area ratio of .13 pursuant to the R -30 zone district and Table 5 -1. 2009 building permit approved with approximately 3,000 square foot subgrade exemption and 750 square foot garage exemption. fDR used to obtain GMQS exemption for Gross Floor Area in excess of 5750 square feet (Parcel ID No- 2717-173-07049). 93 Mountain Laurel Dr: County approved as an Administrative Decision in 2007. Lot is 31,000 +/- square feet but because in R-1 5A the Floor Area Ratio is .2 for an allowable floor area of approximately 6,200 square feet. One TDR was landed on the property to exceed 5,750 square feet of Gross Floor Area by approximately 648 square feet. Although the lot had an allowable Floor Area in excess of 5,750 square feet the lot size is smaller than the subject Property. Subgrade and garage exemptions were permitted (Parcel ID No2737 -173- 07049). The total square footage for these properties (what would now be considered "Gross Floor Area ") is consistent with the maximum Gross Floor Area that the Owner can build on the Property - approximately 9,000 -9,500 square feet. The only difference between these properties and the subject Property is that the Owner must land two (2) TDRs to obtain a GMQS exemption for any Gross Floor Area above 5,750 square feet where neither of the lots on Magnifico were required to obtain a GMQS exemption as these properties received approval under the previous Code. The GMQS exemption is discussed in more detail below. In the May 21, 2013 hearing .here was no clear or demonstrable error or denial of due process with respect to the Hearing Officer approving a site pla„ that includes a subgrade exemption for the Property. 3, Mr. Edtnards states as groundsJor an appeal, on behalf gf 11�. Dulien, the Decision erroneously purported to approve a house conlaimng 9500 square feel using TDRs and without compliance of the Land Use Code S'ec. 6-- 0- 40(b)(1)(b) and the footnote of Land Use Code Table 6 -12, which prohibits the use gf'TDR s on this site as the lot is small and the ntaximtmr house sLe is limited by the FAR to less rham 5'50. OWNER'S RESPONSE I. The Property may "Land" TDRs to Obtain a GMQS Exemption Both Community Development Department Staff and the Hearing Officer disagreed with Mr. Edward's interpretation of the Code with respect to the application of TDRs - particularly with respect to lots in the UBG such as the subject Property. As with the use of the subgrade exemption for basements, Mr. Edwards interpretation of the Code is inconsistent with the legislati -e history and practical application of the TDR program - particularly since the adoption of the 2006 Land Use Code. One of the primary purposes of the TDR program is to create an incentive for property owners in rural areas of the County and /or properties in the County such as historic resources where larger houses and more intensive density has been deemed undesirable and shift that development to areas within the UBG where exemptions for subgrade spaces, garages and more intensive development has been deemed appropriate. As stated on Page 14 of Exhibit C: uuu,007 OATFs, KNf 7 %Vlt;l1, (JARDt;NSW �RT7, Ki.l.;.y & X ()RROW P.i - Response to Dulien Notice of Appeal — 720 Willoughby Wa} July 2, 2013 Page 6 "The revised Code gives property owners of F.A.R. lots in the UGB the choice of purchasing TDRs, or competing in growth management to achieve maximum allowable floor area above 5.750 sq. ft. (up to a maximum of 15.000 sq. ft.). The intent of this change is to implement the direction of Master Plans to preserve rural character in the rural portions of the County, allowing larger tracts of land to sell rights, rather than develop them, and to `land' the transferred development rights within the urban growth boundary, where services. infrastructure and employment centers exist." The Property is located within the UBG where the County has permitted more density and larger home sizes. In his Notice, Mr. Edwards asserts that TDRs cannot be used on "small" lots such as 720 Willoughby Way. Mr. Edwards misunderstands the purpose of TDRs to the context of a development such as 720 Willoughby Way. The purpose of the TDRs is not to increase the house size — the Code permits a house on the Property with an allowable Floor Area of 4,750 with a 4,000 square foot exemption for the subgrade space and a 750 square foot exemption for a garage (for a total of 9,500 square feet of Gross Floor Area). The TDRs are being used as mitigation from the Growth Management Quota System ("'GMQS ") and not as a means to increase the allowable Floor Area based on the Floor Area Ratio for the Property. In 2006, the BOCC and P &Z placed a house size cap on most residential structures in Pitkin County, including those properties located in the R -30 zone di,,trict on Red Mountain, of 5750 square feet of Gross Fluor Area without a GMQS Allocation or TDR. See '!able 5 -1 R of Counh,, Code. The County did not limit house sizes to 5750 square feet of Gross Floor Area -- the i 'ounty just required that anything house larger than 5750 square sect of Gross Floor Area either compete through GMQS or purchase and land TDRs on the property in question. As stated in response to Ms Dulien's objection to the use of the subgrade exemption for this Property, 720 Willoughby is not a "small" lot in the context of other neighborhoods in the UBG such as Mountain Valley where the minimum lot size is 15,000 square feet and where the properties are also eligible to land TDRs to obtain a GMQS exemption for a house with Gross Square Footage larger than 5,750 square feet. Additionally, the Code does not make a distinction between small and large lots — only that a TER or GMQS allocation is required to build a house larger than 5,750 square feet of Gross Floor Area. With respect to the subject Property, it is exempt from GMQS up to 5750 square gross floor area pursuant to Section 6- 30- 110(a)(1) and (c)(1) as there is a legally created structure on the Property. But, the allowable Floor Area based on the Floor Area Ratio in Table 5 -1 is 4,750 square feet (because the .13 FAR for the lot creates a allowable Floor Area of less thaD 5,750). Pursuant to 5- 20- 70(g), the Property is allowed a 4,000 square foot exemption from Floor Area for subgrade space and a 750 square foot exemption from Floor Area for garage square footage, but pursuant to GMQS, anything above and beyond 5,750 square feet of Gross Floor Area must be mitigated with the use of TDRs (or competing in GMQS) UUU00.8 OATFS, KNFZFV IC.I I, GARDFNSYN ART /, Ki;l.i Y' rot 'klc Ritow P.0 . Response to Dulien Notice of Appeal -- 720 Willoughbv Way July 2, 2013 Page 7 Il. Example of Property on "FAR Lots" in the UGB that Used TDRs to Obtain a GMQS Exemption 294 & 296 Draw Drive County approved an Administrative Decision in 2007. 1 of is 34,194 square feet with a floor area ratio of .13 pursuant to the R -30 zone district and Table 5 -1. 2009 building permit approved with approximately 3,000 square foot subgrade exemption and 750 square foot garage exemption. TDR used to obtain GMQS exemption for Gross Floor Area in excess of 5750 square feet (Parcel ID No. 2737 -173- 07049). 93 Mountain Laurel Dr: County approved as an Administrative Decision in 2007. Lot is 31,000 +/- square feet but because in R -15A the Floor Area Ratio is .2 for an allowable floor area of approximately 6,200 square feet. One 1 DR was landed on the property to exceed 5,750 square feet of Gross Floor Area by approximately 648 square feet. Although the lot had an allowable Floor Area in excess of 5,750 square feet the lot size is smaller than the subject Property. Subgrade and garage exemptions were permitted as well (Parcel 1D No:273 7- 1 73 - 07049). 101 West Lupine Dr: Owners did at 468 square foot addition. Applied for the permit in 2008 so subject to the 2006 Land Use Code, Zoned R -15A and located in Mountain Valley. The lot size is 16,213 square feet with an allowable Floor Area of 35K0 square feet. The property was approved with a 730 exemption for garage space. No subgrade exemption requested. Approved with 4230 square feet of Gross Floor Area. Because le --s than 5,750 square feet of Gross Floor Aiea no TDRs required. In the Mav 21, 2013 hearing there was no clear or demonstrable error or denial of due process with respect to the Hearing Officer approving a ;rte plan that includes a the use of two (2) TDRs to obtain au exemption from GMQS for a home rhal exr.ce.ds 5,750 square feet in Floor Area. 4. Mr. Edwards asserts, on behalfofMs Dulien that the Decision erroneously approved a Site Plan without compliance with Land C!ve Codc Sec. 70- 20 -60, which requires a wildfire expert evaluate the risk in more detail. OWNERS RFSPONSE 1. County Staff Determined the Wildfire Hazard was Medium and a County Approved Wildfire Expert Agrees As part of its Memorandum to the Hearing Officer, the Community Development Department Staff stated that a) because there was no development on the steep slopes on the south portion of the property and b) because there is a paved road %Pitkin Way-) at the bottom of the slope to break any fire which might occur, the fire hazard is medium for the Property. The Hearing Officer concurred and therefore. the County did not require the Owner to engage a wildfire expert. The Owner has subsequently engaged a wildfire expert, Art Hougland of Hougland & Associates, who is an acceptable wildfire expert to the County. In his report ( "Hoagland Report"), Mr. UUGJG OAT vs. KN I :zry IC 1, GARt)FNS11'ARTI - -,- KVI IN' &- \TORr,(-)w P.C. Response to Dulien Notice of Appeal — 720 wiiloughb, 'Way July 2, 2013 Page 8 Hoaglund concurred with Community Development Department Staff that the wildfire hazard is indeed medium. The Hoagland Report is attached hereto and incorporated herein as Exhibit "F." In the May 21, 2013 hearing there was no deal or dcnionstranle error or denial of due process with respect to the Hearing Officer approving a site plan baseu on a medium hazard rating. CONCLUSION Prior to 2006, the TDR program in Pitkin County was used to allow certain property owners in Pitkin County to obtain development rights and /or additional Floor Area without having to obtain a GMQS allocation. In 2006, the TDR program was changed so that properties such as the subject Property were required to land TDRs or obtain a GMQS allocation to build a residential structure larger than 5,750 square feet of Gross Floor Area in the UGB. Nonetheless, as the public record at the time the 2006 Code re -write reflects, the drafters of the Code kept regulations that had been in place prior to 2006 permitting a 4,000 subgrade exemption and 750 garage exemption on FAR Lots within the UBG. Mr. Edwards objected to the Application on behalf of Ms. Dulien and provided tiro Community Development Department Staff and Hearing Officer with a lengthy letter outlining his objections. Due to the objection, the Hearing Office heard the Application on May 21, 2013. Mr. Edwards clearly had notice of an attended the May 21, 2013 hearing, and willingly participated therein_ Asserting broadly a lack of due process as he does is simply a smokescl een There has been no denial of due process, or clear and demonstrable errors with respect to the Hearing Officer's Decision and determination that the Site Plan and Activity En%,elope comply with the County Land Use Code therefore, the Hearing Officer'q Determination No 3 -2013 should be upheld. Please let me know if you have any auestlons or need additional inTC rn:ation. Sincerely. 0 kTEs, KNEZEv ICH, GARDFNSWARTZ, KELLY & MORROW, P.C. By Sarah ates - — — — -- - — Cc: John Ely. Pitkin County Attorney (viu e retail) Enclosures UUUU!0 000011 EXHIBIT 000011 rf M v i [RJHx,xvOFAU14 0 U9EXHIBIT EXHIBIT Draft Explanation of 5,750 Square Foot Growth Management Exemption As Approved By BOCC on First Reading 1/25/06 Throughout Pitkin County The total gross floor area exempt from Growth Management is 5,750 sq. ft. Any development of gross floor area exceeding 5,750 sq. ft. requires purchase of TDRs or Growth Management allocation. On FAR Lots in the UGB Up to 4,000 sq. ft. of subgrade space and up to 750 sq. ft. of garage space are exempt from the calculation of floor area for the purposes of maximum floor area allowed by the FAR. This subgrade and garage floor area is not exempt from the calculation of gross floor area for the purposes of determining the maximum 5,750 sq. ft. Growth Management exemption. All Other Lots (Rural Area and Non FAR Lots in UGB) The maximum gross floor area (which includes subgrade areas and garages) allowed that is Growth Management exempt is 5,750. Any floor area exceeding 5,750 requires purchase of TDRs or Growth Management allocation. 000012 EXHIBIT e G Additional TDRs could potentially be available with the addition of parcels containing :60 to 199 acres of land. These numbers will be provided at the public meeting for review. PZ and TAC Comments: Botln groups Irked the approach however, at the time of review, none of the details had been ironed out. Public Comments: Staff convened a caucus roundtable in late August to discuss the aaals and direction of the land use code relative to the Caucus Master Plans. At the hoe the square footages and acreages were not definite but people generally liked the concept and thought that it Ruthered the goals of large acreage preservation.. We have also heard comments that allowing large houses (up to 15,000 square feet) is not in keeping with the rural character mid we have beard that that I TDR/25 acres will not be enough of an incentive for the landowner. Alternatives: Alternatives include I Do nothing (there are enough options currently available for preservation. Rely oil existing alternatives and formalize a conservation approach with Open Space and Trails); 2. Revise the elements of the proposed conservation development regulation (acreage /squiare footage/ N of TDR's available), 3. Accept the proposal with a 5 -year sunset provision Staff Recommendation: Staff recommends option 3 5. 5,750 Sq. Ft. Floor Area Limitation in Aspen Urban Growth Boundary Area (UGB) (Section 5- 10 -10) Reason For Code Revision: Several Mastei Plans call for preservation of rural character and specifically for preservation of larger acreages, and lands that are currently in agriculture. Both urban and rural uiaster plans recognize the need to balance development densities mid intensities in the rural mid urban portions of the County to achieve.the quality of life and i-sort economy that define our region. Several elements of the Code have been revised to support fus approach, including the following changes • Addition of larger lot zone districts and growth management exemptions to encourage conservation development, • Expansion of the TDR progi are to allow for the herisfer of development rights off of larger parcels of [mid in the rural portion of the County; and • Modification to floor area exemptions in the Aspen UGB on lots that are restricted by floor area ratios (F.A R s), that result in the need to obtain a'fDR or successfully compete for a giomb management allocation to build from 5,750 UUUOi3 13 square feet up to 15,000 sq. ft of floc area, (or maximum allowed by Hoot area ratio.) Existing Code: Under the current Laud Use Code, there we two different definitions for floor area. Today's floor area regulations are applied as follows: Rural Area and Aspen UGB lots without a floor area ratio (F.A.R.) • In the Rural Area, floor area up to 5,750 sq. ft is exempt from growth management • In the Rural Area, TDRs or growth management allocations may be used to increase floor area up to 15,000 sq. ft or in excess of 15,000 sq.ft. • Lots in the Aspen 1JGB without floor area ratios we exempt fmtn growth management up to 15,000 sq. ft. • All subgrade and garage space is included in floor area calculations Aspen UGB lots with a floor area ratio (F.A.R.) (Red Mountain, Alountom Valley, Meadowood, Ardmore) • Floor azea ratios limit floor area . • Lots are exempt from growth management up to allowable floor area without the use of TDRs or growth management. Special teview acrd TDRs are requlmed to exceed 15,000 sq. ft • 4000 sq. ft of subgiade space and up to 750 sq ft. of garage space is exempted from floor azea calculations Proposal: 1 The revised Code gives property owners of F.A.R. lots in the UGB the choice of purchasing TDRs, or competing to gi owth management to achieve maximum allowable floor area above 5,750 sq. ft. (up to a maximurn of 15,000 sq. ft.) The intent of this change is to implement the direction of Master Plans to preserve rural character in tUe rural portions of the County, allowing larger tracts of land to sell rights, rather than develop them, and to `land" the transferred development rights within the urban growth boundary, where services, infrastrucluie and enrployinent centers exist. 2. The revised Code establishes a maximum (top -set) allowable floor area of : 5,000 sq. ft, county -wide, that may not be exceeded. 3. The revised Code does not change die current practice of exempting 4000 sq ft. of sub- grade space and up to 750 sq. ft. of garage/carport space from floor area calculations on F.A R. lots in the Aspen Urban Growth Boundary area 4. The revised Code does not charige the way floor area is calculated in the rut al pmtron of the County, or on non- F.A.R. lots in the UGB. Public Comment: Meadowood Subdivision has contacted the Conmmnity Development. Department (see Attaclunew "B ") regarding a Court decision that specified that in addition to their allowed floor area (based on an F.A R ), each lot in the subdivision could build an additional 2,528 sq. ft. of floor area. Tlme additional floor area results from the ii�1U'l014 division of the common area in the subdivision, which was processed as a PUD. A BOCC resolution memorializing the court decision specified that the additional floor area would be calculated according to the definition of floor area as defined by the Code in effect at the tune of building permit issului a The homeowners association wants to Imow whether property owners will be required to obtain TDRs or compete in GM to build in excess of 5,750 to utilize the additional square footage allowed as a result of the court decision. The County Attorney believes that fic court decision clearly allows dicm to build the additional sq. ftge, but that they are subject to the County's definition of floor area calculation Consequently he believes that property owners in Meadowood will be required to obtain a TDR or compete in GM to achieve their max allowable sq ftge. above 5,750 sq. ft —just as anybody else on F.A.R. lots in the UGB will be required to do Given that this decision is based on an interpretational a legal document, Staff defers to the Comity Attorney for a recommendation. Direction from the Board is requested on tills Item. Mountain Valley Homeowners, (whose subdivision is located in the R-1 5-A zone district) have met with Staff regmdung this provision, and have expressed concern that if the sub -grade floor area exemption of 4,000 sq. ft. is taken away, they will be unfairly penalized given their already limited floor area of 5,000 sq. ft. (allowed pursuant to R -15- A zoning) (The current draft does not take the 4000 sq. ft. exemption away ) See Attachment "C" for letter P &Z and TAC: The Planting Cormnission generally supported the 5,750 sq. ft Imnitahon, but did not come to any consensus regarding subgrade space exemptions "rile TAC didn't come to a cuuclusive iecoimnendatimn regardung this topic. Alternatives 1 Adopt the provision, as drafted 2. Given that 750 sq. ft of garage space was included as part of the "5,750" sq. ft. house size and floor area definition eslaulished in 2000, delete the exemption for up to 750 sq. ft. of garage /carport space on F.A.R. lots in the UGB. That exemption is not available anywhere else in the County. With that amendwent, adopt the provision, as drafted. 3. To simplify the Code, calculate floor area mnformly, County -wide, allowing no exemption for sub -grade and garage floor area exemptions on F.A.R. lots in the UGB, 4. Reduce the exempt subgtade space from 4,000 sq. ft. to 21500 sq. ft. and require purchase of a TDR to increase the exemption to a maximum of 4,000 sq ft Staff Recommendation: Staff recommends Alternative #2 i�0 015 J ✓ • Requiring GMQS or TDR's to exceed 5,750 sq ft. of floor area throughout the County; • Leaving the exemption for 4,000 sq. ft. of subgrade space intact m the UGB; but • Including 750 sq. ft. of garage space as part of the floor aces calculation in the UGB 5. One -time Growth Management Exemption for 1000 Sq. Ft. (Section 6- 30- 100(c)) Reason for Code Revision: This provision has been carried forward from the existing Code to the revised Code. It is brought to the Board's attention because it is often difficult to unplenient The current Code contains a one -tune residential growth management exemption for an addition of up to 1,000 sq. ft of floor area It is available immediately for residences built prior to the year 2000 and after five years for new homes constmcted after 2000. This exemption was provided in the yeas 2000 to address the concern expressed by the public that without purchasing a TDR or conrpenng for an allocation, they were precluded from doing minor additions that they had contemplated ( a bathroom, mud room, etc.). As a practical matter, this provision has been somewhat abused, in that property owners argue for the exempt 1000 sq ft when they are building a new home, hoping to build 6,750 sq ft. without obtaining TDRs or GM allocations The exemption was intended to be more of ' relief valve" for truly minor additions, rather than a tool for instant augmentation 5 om 5,750 to 6,750 sq ft of floor area Public Comment: We have received public comment recently that the current provision is not as clearly stated as it could be, mid is often misunderstood P &Z and TAC: This issue was not discussed by the P &Z or TAC. Alternatives: 1 Adopt die proposed language. 2 Reduce the 1000 sq. ft, addition to 400 sq. ft. to more accurately reflect the size of a minor addition, and to possibly have less of an impact on the demand for TDRs 3. Delete the 1000 sq. R. exemption on the basis that additions beyond 5,750 sq. ft should only be allowed when they are obtained via a TDR or through competition in GM, both of which in theory, balance the impacts of additional floor area with other community benefits. Staff Recnmmendadon: Staff recommends Alternative 3. 6. One Principal Use Per Lot or Parcel (Section 4- 10 -20) Reason for Code Revision: Cunently the code is sdeut regarding how marry uuns of density me allowed on a parcel other than the zoning potential based on the zone disuict 10 000016 County Attorney John Ely had to leave the meeting early. Chairman Ire EXHIBIT however, announced Mr. Ely's recommendation on the Meadowood issue with which he concurs. Mr. Ely recommended that the BOCC simply accept the square footage in Meadowood as it is, as it has been awarded and adjudicated by the court, allow them to build up to that without going toward TDRs, not having to get a TDR between 5750 if they adopt 5750 but simply say that the square footage is what it is and that Meadowood owners don't have to get TDRs to get up to their allowed square footage. Discussion ensued among the Boards. P&Z RECOMMENDATION ON MEADOWOOD ISSUE — Commissioner Rudnick moved to recommend to the BOCC that if Meadowood wants to go beyond a cap, if a cap is imposed, they be treated like everybody else. Commissioner Larsen seconded the motion. Chairman Ireland opened the meeting to public comment while clarifying that the P &Z motion recommends to the BOCC not to allow that without having to go to a TDR or if we adopt some sort of 5750 cap. Chairman Thomas called the question. Motion passed 4 to 1 with Commissioner Krabacher voting nay. BOCC MOTION ON MEADOWOOD ISSUE — Chairman Ireland made a motion that Meadowood would be exempt from having to purchase TDRs up to, BUT ONLY UP TO, the court ordered F.A.R. Commissioner Farris seconded the motion. Motion passed unanimously 5 to 0. Mr. Elliott began his Power Point presentation on Item #5 regarding 5750 P&Z made their comments and recommendation. P&Z RECOMMENDATION - Commissioner Larsen moved to recommend to the BOCC that she is in favor of the 5750 uniform on Growth Management exemption and she would support the idea of maintaining the effective build -out on these floor area ratio lots so that, in other words, you are not limiting what a Red Mountain could go to today. You would just have to buy TDRs with it. Commissioner Rudnick seconded the motion. Public comment was taken at this time with the question of decks being brought up. It was announced that decks would be looked at in a future meeting. BOARD OF COUNTY COMMISSIONERS 5 REGULAR MEETING JANUARY 25, 2006 (1U0017 Commissioner Larsen retracted her previous motion and rephrased a new motion of recommendation to the BOCC REPHRASED P&Z RECOMMENDATION — Commissioner Larsen moved to recommend a maximum floor area of 15,000 square feet County -wide. And, that there be a uniform exemption of 5,750 in the rural area and within the UGB. And, that in so doing, we are not affecting the floor area ratio for any of the floor area ratio lots that we've discussed (clarified — buildable square footage). This motion includes, as clarified by Chairman Ireland, the notion that garages and basements are exempt from floor area calculation, but are included in the 5750 calculation on those FAR lots. Chairman Thomas seconded this motion as Commissioner Rudnick was not present As Commissioner Rudnick had to leave the meeting, it was decided to allow one of the alternates to vote throughout the rest of the meeting. Chairman Thomas called the question. Motion failed 2 to 3 with the aye votes coming from Commissioners Larsen and Augello and the nay votes coming from Commissioners Krabacher, Thomas and alternate John Howard. NEW P&Z RECOMMENDATION — Commissioner Larsen stated that she has the same motion as she had before but she is now moving that they discuss it on another date (the 15,000 square foot action). Commissioner Augello seconded the motion. Motion passed 4 to 1 with Commissioner Krabacher voting nay. BOCC MOTION — Commissioner Hatfield made a motion that 5,000 square foot area limitation in the UGB is exempt. In addition, there is 750 exempt square foot space for garages. No longer 15,000 square feet in the UGB. Commissioner Hatfield withdraws his motion. NEW BOCC MOTION — Chairman Ireland moved to adopt the P&Z Recommendation which was: 1 In the UGB, in an FAR regulated area, you have 5750 total feet of stuff before you bump up against GMQS. 2 Garage space up to 750 and basement space does not count toward your FAR calculation. It only counts toward your GMQS. Commissioner Kay - Clapper seconded the motion. Commissioner Hatfield asked for clarification. He said he understood this to mean there is no longer exempt free square footage below grade. BOARD OF COUNTY COMMISSIONERS 6 REGULAR MEETING JANUARY 25, 2006 UUU�io Chairman Ireland clarifies that if you have room left within your 5750 then yes, there is. Chairman Ireland called the question. Motion passed unanimously 5 to 0. Chairman Ireland said there could be no 4PM to 7PM meetings on Thursday nights as people have to go to Denver the next day and he doesn't want anyone on the roads at 8PM or 9PM. 213M to 5PM on Thursdays is fine but nothing later Ms. Houben clarified that the 23rd of February meeting will then be at 2PM. It was also announced that tomorrow, Thursday's meeting, would focus on Growth Management, TDRs and B -1 and B -2 Zone Districts. ADJOURNMENT: Commissioner Hatfield moved to adjourn the meeting at 6:10PM. Commissioner Kay - Clapper seconded the motion. Motion passed unanimously 5 to 0. BOARD OF COUNTY COMMISSIONERS 7 REGULAR MEETING JANUARY 25, 2006 g EXHIBIT � GG. P&Z RECOMMENDATION — Commissioner Krabacher moved to recommend to the BOCC that they adopt: #1 adopt the definition with the modification for grooming equipment. #2 no change. #3 no change. #4 Re: Tree cutting - change the word "shall" to "the maximum extent practical" as a standard; change tree diameter from 4" to 6 "(to be consistent with the City of Aspen); thinning for wildfire mitigation, if required. #5 approve with staffs proposal to raise that to $20,000.00. #6 the direction there would be for the public to the extent that they want to and staff to the extent that the public makes a proposal would evaluate how we may address the subgrade space while keeping it still subgrade. #7 building height was addressed by staff's modification. Commissioner Murphy seconded the motion. Motion passed 4 to 1 with Commissioner Larsen voting nay. BOCC MOTION — Commissioner Owsley moved to adopt the Planning and Zoning Commission recommendation. Commissioner Farris seconded the motion. Motion passed 5 to 0. 1 4000 Square Foot Basement Exemption From Growth Management — NO FURTHER DISCUSSION 5,750 GMQS Exemption In UGB — NO FURTHER DISCUSSION 3 B -1 Zone District — DISCUSSION WITH MOTION MADE 4 Redstone Stream Setback — DISCUSSION WITH MOTION MADE TDRs Only For Above 8250 RATHER THAN TDRs And GMQS Above 8250 (added over the course of the day) — NO FURTHER DISCUSSION 6 25' Maximum Extent Practical For Riparian And Wetland Areas (added over the course of the day) — NO FURTHER DISCUSSION BOARD OF COUNTY COMMISSIONERS 12 SPECIAL MEETING APRIL 13, 2006 odu020 P&Z RECOMMENDATION - Commissioner Krabacher moved to recommend to the BOCC that they adopt: #1 adopt the definition with the modification for grooming equipment. #2 no change. #3 no change. #4 Re: Tree cutting - change the word "shall" to "the maximum extent practical as a standard; change tree diameter from 4" to 6 "(to be consistent with the City of Aspen); thinning for wildfire mitigation, if required. #5 approve with staffs proposal to raise that to $20,000.00. #6 the direction there would be for the public to the extent that they want to and staff to the extent that the public makes a proposal would evaluate how we may address the subgrade space while keeping it still subgrade. #7 building height was addressed by staffs modification. Commissioner Murphy seconded the motion. Motion passed 4 to 1 with Commissioner Larsen voting nay. BOCC MOTION - Commissioner Owsley moved to adopt the Planning and Zoning Commission recommendation. Commissioner Farris seconded the motion. Motion passed 5 to 0. 1 4000 Square Foot Basement Exemption From Growth Management - NO FURTHER DISCUSSION 5,750 GMQS Exemption In UGB - NO FURTHER DISCUSSION B -1 Zone District - DISCUSSION WITH MOTION MADE 4 Redstone Stream Setback - DISCUSSION WITH MOTION MADE TDRs Only For Above 8250 RATHER THAN TDRs And GMQS Above 8250 (added over the course of the day) - NO FURTHER DISCUSSION 6 25' Maximum Extent Practical For Riparian And Wetland Areas (added over the course of the day) - NO FURTHER DISCUSSION 0 V U 0 2 1 BOARD OF COUNTY COMMISSIONERS 12 SPECIAL MEETING APRIL 13, 2006 The format for these items is this. If there are 3 board members that want to pull off any of these items for discussion then that will be done. Public comment was given at this time. Cindy Houben informed both boards that during the course of the day, there were two items added onto this list. One is a discussion of only TDRs, being used over 8250 and the other item was a 25' or maximum extent practical for riparian and wetlands. Don Crouch specifically wanted the boards to address his question with regard to the B -1 Zone District. Mr. Crouch's specific question was this. He left a meeting where he thought he was given approval to build a 3000' grocery store only to find out later that he was only given approval for 2000 feet. Lance Clarke explains this question further. Lance Clarke addressed Mr. Crouch's question. He said that there are two kinds of commercial use in the B -1 Zone District. They are Personal Service Use and General Service Use. Personal Service which includes grocery stores has a maximum size of 2000 feet; the General Service which is a different group of commercial development has a maximum size of 3000 feet. When Mr. Crouch left the meeting in question, Mr. Clarke thinks that he thought a grocery store could be 3000 feet. That was partly Mr. Clarke's error according to him because Mr. Crouch walked out saying, "can I build my grocery store to 3000 feet" and Mr. Clarke said yes. But that was because Mr. Clarke was mistaken that a grocery store is under Personal Service NOT General Service. That is why Mr. Crouch is now asking that BOTH Personal Service and General Service be allowed to go to a maximum of 3000 feet. Bob McCormick asked for the stream setbacks to be looked at again with regard to the Redstone VCNR Zone Districts and HPC guidelines. Bob McCormick asked for the stream setbacks to be looked at again with regard to the Redstone VCNR Zone Districts and HPC guidelines. Commissioner Farris, in response, stated that the VCNR Zone Districts in Redstone need to be dealt with as site - specific. P &Z RECOMMENDATION — Chairman Thomas moved to recommend to the BOCC that they increase Personal Services in the B -1 Zone District from 2000 to 3000 to make them consistent. r r" i✓J� n BOARD OF COUNTY COMMISSIONERS 13 SPECIAL MEETING APRIL 13, 2006 �� 2 Commissioner Augello suggested another way to address this issue. He suggested leaving Personal and General at their 2000 and 3000, but you move grocery store from Personal into General. After additional information was given by Don Elliot as to how this could better be changed, Chairman Thomas restated his motion. P &Z RESTATED RECOMMENDATION — Chairman Thomas restated his motion by recommending to the BOCC that ONLY grocery stores be increased to 3000 square feet in Personal Services. Commissioner Augello seconded the motion. Motion passed 4to 1 with Commissioner Larsen voting nay. P&Z RECOMMENDATION — Commissioner Larsen moved to recommend to the BOCC that they maintain the 20' stream setback for the Redstone VCNR Zone District as it is today. Commissioner Murphy seconded the motion. Motion passed unanimously 5 to 0. P&Z RECOMMENDATION — Commissioner Mallory moved to recommend to the BOCC that they approve all other items under G. Discussion Topics (Items 1, 2, 5 & 6). Commissioner Larsen seconded the motion. Motion passed unanimously 5 to 0. BOCC MOTION — Commissioner Ireland moved to approval all other items under G. Discussion Topics (Items 1, 2, 5 & 6). Commissioner Owsley seconded the motion. Motion passed unanimously 5 to 0. BOCC MOTION — Commissioner Kay - Clapper moved to allow the definition within the Personal Services Category for 3000 feet for Grocery Stores ONLY. Commissioner Farris seconded the motion. Motion passed 4 to 1 with Commissioner Hatfield voting nay because he thought the 3000 feet was bad in the B -1 Zone District anywhere. BOCC MOTION — Commissioner Farris moved to maintain the 20' stream setback in the Redstone VCNR Zone District as it is today. Commissioner Kay - Clapper seconded the motion. Motion passed unanimously 5 to 0. Chairman Ireland announces the nominees for the 1/2 empty /1/2 full (depending on how you look at it) box of Girl Scout cookies. The nominees are Owen Minney for best characterization of a staff member as young; Gideon Kaufman for best defense of the agricultural way of life; Glenn Horn for the almost perfect attendance award (missing only this evening); Grafton Smith for the best use of wood products to preserve trees in that he wrote more written comments than everyone combined; and Paul Taddune for best advocate for a board approved subdivision eligible for TDRs without special review. OUs;J23 BOARD OF COUNTY COMMISSIONERS 14 SPECIAL MEETING APRIL 13, 2006 AND THE WINNER ...... GRAFTON SMITH. Chairman Ireland asked the boards and staff to give a round of applause for the great citizen participation. Chairman Ireland also thanked the staff and the consultants. Chairman Ireland called for any last public comment before the motions. Joe Wells spoke on behalf of Gideon Kaufman with regard to those provisions that have become more restrictive than was originally published. Chuck Downey said that Chairman Ireland failed to give enough credit to the BOCC and P&Z Chairman Ireland closed the public hearing on the Land Use Code Revisions. P &Z RECOMMENDATION — Chairman Thomas moved to recommend to the BOCC that they adopt the changes to the Land Use Code and those portions of the Code including those exhibits and documents included in the Code that have not been changed by this process. Commissioner Murphy seconded the motion. Motion passed unanimously 5 to 0 with Commissioner Murphy voting on this motion with Commissioner Mallory in support of the motion. BOCC MOTION — Chairman Ireland moved to adopt the Land Use Code, as revised, on the dates and by the process described in this ordinance including exhibits and provisions to the old Code that have not been altered by this process. Commissioner Hatfield seconded the motion. ROLL CALL VOTE: Commissioner Hatfield — Yea. Commissioner Kay - Clapper — Yea. Commissioner Farris — Yea. Commissioner Owsley — Yea. Commissioner Ireland — Yea. Motion passed unanimously 5 to 0. ADJOURNMENT: Commissioner Kay - Clapper moved to adjourn the meeting at 8:30 PM. Commissioner Hatfield seconded the motion. Motion passed unanimously 5 to 0. BOARD OF COUNTY COMMISSIONERS 15 SPECIAL MEETING APRIL 13, 2006 uUu624 Respectfully submitted, �e R. Dean to the Board of County Commissioners Michael C. Ireland Chairman of the Board of County Commissioners g/boccim inutes/spec/04132006. doc BOARD OF COUNTY COMMISSIONERS 16 SPE CIAL MEETING APRIL 13, 2006 UJ�J25 80UILAN11 & ASSOCIATES CONSULTING ON WILDPIRS HAZARD MITICATION TIRE PROTECTION AND BUILDINO & rIRB CODES June 23, 2013 David Johnston David Johnston Architects pc 418 East Cooper Avenue, Suite 206 Aspen, Colorado 81601 970 - 925 -3444 s EXHIBIT 1r Subject: Wildfire Hazard Mitigation for property located at 720 Willoughby Way, Pitkin County, Colorado Dear Mr. Johnston Thank you and Mr. Rasmussen of Construction Services Company, Inc. for meeting with me on Thursday June 13" at this property to orient me to the site of the proposed house and for providing me with a Site Plan/Proposed Footprint for the project. I had the opportunity to walk the property, take photos and evaluate the wildfire hazards on the property. The Site Plan/Proposed Footprint indicates that much of the existing vegetation that is now near the existing house on the north side will be removed leaving a screen of trees along the edge of Willoughby Way. You also pointed out that some of the existing trees to the east will be removed to facilitate construction. To the west. Between the proposed house and the property line the site plan indicates that some trees are intended to remain. To the south at about 15 to 20 -feet from the proposed house is a steep slope down to Pitkin Way and to the property line to the southeast, the slope is mostly vegetated with some scattered oak clusters, service bevy and native grasses. The vegetation does not seem intended to provide visual screening from adjacent properties. With the vegetation management recommendations that I include in this report it is my determination that the property is within a Medium Wildfire Hazard Area. Vegetation Management and Modification Recommended for the proposed house: Around the proposed house and beyond the furthermost projection of combustible construction for a distance of 15 -feet the area should be of primarily noncombustible hard scape surfaces, low growing perennials, flowerbeds, cut grass and deciduous, well - trimmed and irrigated plants. Woody vegetation should not be planted within this area. Firewood or other combustible materials should not be stored within this area. If the owner would like to maintain some trees or small clusters of trees or 17 OAMBA DRIVE, OLBNWOOD SPRINDS, COLORADO 11001 PHONE (070) 370.3103 / Hreld1 @10 rls,ell shrubs in the vicinity of the house this may be done if the 15 -foot area is extended outward from the furthest growth expected from the mature trees and shrubs. In other words, these trees and shrubs should have defensible space as the building does. Because of the short distance to the west and southeast property lines this appears to limit any trees retained or provided to aspen trees, the exception may be in the area of where the north and the southeast property lines intersect. Crowns of vegetation within these clusters, except aspen, should be at least l0 -feet from any portion of the building. Limbs of trees within these clusters should be pruned to one half the height of the tree or 10 -feet whichever is less. Conifer may be pruned to one third the height of the tree or 10 -feet whichever is less. I noted that many of the conifer trees in the area have limbs low enough to be in the grass. This can cause a creeping ground fire from any source to ladder into the tree canopies with the possibility of damaging the house. 2. Beyond the 15 -foot area, down slope to Pitkin Way and to the property lines maintain natural and/or irrigated grass at less than 6- inches. I recormnend removing most of the brush down slope to Pitkin Way and the property lines leaving only a few well separated clusters of service berry or oak and to thin the remaining clusters. No trees or clusters of brush should be within 40 -feet of the trees or brush along the west and southeast property lines either on this property or on the adjacent properties. There are trees and brush on the adjacent properties right up to the property lines and since the owner of this property can only manage the vegetation within the property lines, it is recommended that, other than aspen trees, no trees or brush be added within 30 -feet of trees or brush, other than aspen, on adjacent properties. In the past some adjacent property owners have cooperated in managing vegetation and thereby improving their defensible space as well, just something to consider. Pitkin County may also permit some vegetation management to be done on the Pitkin Reserve area if this would be helpful to the owner of this property. Limbs of trees should be pruned to one half the height of the tree or 10 -feet whichever is less. For conifers, existing or those that may be added, limbs should be pruned to one third the height of the tree or 10 -feet whichever is less. No brush or shrubs which when mature will be tall enough act as ladder fuel should be provided or maintained around the trees. Clusters of bushes or trees should be separated from each other and from those beyond the 40 -foot area by a distance of 2 % times the height of the mature vegetation. The diameter of a cluster should be limited to 2 Y2 times the height of the mature vegetation. As an example: If the expected mature height of the vegetation is 10 feet then the diameter of the cluster should be no greater than 25 feet and the distance between clusters should be greater than 25 feet. Ideally the plant material growing between trees and clusters of bushes or trees is grass maintained at 6- inches or less. Thin and remove lower branches of brush or shrubs within clusters or individual plants to eliminate ladder fuel. 3. Remove all standing dead and deadfall up to the property lines. Cut and collected materials should be removed or chipped and spread. 0%02` ` MEDIUM WILDFIRE HAZARD AREAS: New Construction, Additions: Pitkin County has Structural Design and Construction Requirements, the following are paraphrased from the Pitkin County Land Use Code, chapter 7, Section 7 -20 -60 Wildfire Hazards and may or may not contain exact language but it is intended to be consistent with the intent and purpose of the Pitkin County requirements: Roofs shall be constructed with a Class -A roof assembly as defined in the 2003 International Building Code (IBC) Section 1505.2. Wood shake /shingle roof coverings are prohibited in all wildfire hazard areas. Roofs with less than a 3:12 pitch are not permitted in wildfire areas unless they comply with the following: 1) All roof coverings shall be Class -A materials approved for installation on a Class -A roof assembly. 2) All roof coverings shall have a surface that shall facilitate the natural process of clearing the roof. 3) All roof designs shall facilitate the natural process of clearing roof debris. Protrusions above the roof line, such as parapets, shall be prohibited. 4) Roofs shall be installed as required by the adopted building code and shall have a minimum slope of 1:48. 5) All roof designs, coverings or equivalent assemblies shall be specifically approved by the Fire Marshal prior to submittal of a building permit application. 6) Vents: Soffit Vents shall be located in the outer 1 /3`a of the overhang and screened with corrosive resistant wire mesh, with mesh one - fourth inch (' /a ") maximum. Maintenance: a) Roofs and gutters shall be kept clear of debris. b) Area shall be kept clear of all litter, slash and flammable debris. c) All flammable materials shall be stored on a parallel contour a minimum of fifteen feet (15') away from any structure. d) Weeds and grasses within the fifteen -foot (151) perimeter and under trees shall be maintained to a height of not more than six inches (6 "). Miscellaneous: a) Firewood/wood piles shall be stacked on a parallel contour a minimum of fifteen feet (15') away from the structure. b) Fences shall be kept clear of brush and debris. C) Wood fences shall not connect to the structure. d) Any outbuildings or additional structures shall adhere to the same standards as structures. e) Each structure shall have a minimum of one ten (10) pound Class ABC fire extinguisher. UU�v�� f) Addresses shall be clearly marked with two -inch (2 ") non - combustible letters and shall be visible at the primary point of access from the public or common access road and installed on a non - combustible post. I also recommend a publication titled " Firewise Construction Design and Materials" available from the Colorado State Forest Service. If you have comments, questions or require additional information please contact me. Sincerely, §? Art Hougland NOTICE; This Wildfire Hazard Mitigation Analysis along with observations and recommendations is intended to be an aid to the owner, architect and vegetation management and /or landscape design and implementation professionals in the development of defensible space and of fire wise construction documents. The review of the existing wildfire hazard potential on this property and the observations and recommendations for the mitigation of these hazards does not constitute an acceptance of any responsibility by Hougland & Associates for errors, omissions or discrepancies. The behavior of wildfire is acknowledged to be capricious in nature. Hougland & Associates does not proclaim that circumstances, including improper maintenance, may not arise that would permit wildfire to overwhehn the mitigation measures recommended or implemented. Observations and recommendations are intended to be collaborative with wildfire hazard mitigation guidelines of the Colorado State Forest Service and of other nationally recognized standards and are intended to be constructive and in support of the owners interest and safety. Ij Uil`) 7 FOUND 04 FENCE POST LOT 22, BLOCK If PrMN GREEN SUBDIVISION FOUND NOS OPEN SPACE TOTAL REEIAR IN 10,17023 SOFT ASPHALT EXISTING CURB CUT TO 69 ROM, V41LLOUGHBY WAY DITCH BOOK 2A PAGE 244 OUG8 Y RrV-VVAY t 18 is'SIO.-YARD SETBACK PER PITKIN CO. LUC t SEC LANWAR RAN 30'FRONTYARD SETBACK PEP MIN CO. LUC wmo- FM NTDRW tEtEWf mmv� En] afmc m3' mmv Eummww VWAIXmVAM � CAME PEDWAL WrRtcwal sm > SAS MAMA NEA11HEIfACUNTI APPROX. LOCATION HOLY CROSS ELECTRIC EASEMENT BOOK 694 PAGE YARD SETBACK If PITKIN GREEN I LOT 21 BLOCK 2 PITKIN GREEN SUBDIVISION .—;70. 00 033 7.9 UTILITY EASEMENT DITCH BOOK 2A PAGE 2" fTyp.l EXISUNG CURB CUT TO REMAIN ?.0'UTIUTY EASEMENT DIT(ZH BOCK 2A PAGE 2" 4. The Decision erroneously approved the Site Plan without compliance with Land Use Code Sec. 70 -20 -60 which defines Severe Wildfire Hazard as a site located on slopes of greater than 20% with continuous fuels and requires that "In each case where the applicants property is located partially or entirely within an area of "Severe Wildfire Hazard ", a wildfire expert acceptable to the County shall visit the property to evaluate the level of risk in more detail." As shown by applicants surveyor almost 1/3 of this parcel is a slope exceeding a steep 45% grade and approximately half of the parcel is on a slope exceeding a 20% grade and there is extensive vegetation and fuels, which the Code defines as a Severe Hazard Area. The proposed house would be located immediately adjacent the steep slope. The Decision did not require a review by a wildfire expert as required by the Code. Enclosed is a check for the appeal fee you required of $961.00. Very truly yours Jose h az Jr. #10 Atfeney4br Merle Dulien 0OU103l PITKIN COUNTY COMMUNITY DEVELOPMENT Permit Receipt RECEIPT NUMBER 00034144 Name: Merle Dulien Date:6/10/2013 Project Address: 720 WILLOUGHBYWAY Type: Permit Number 0050.2013.PLAN 0050.2013. PLAN 0000352 check # 50668 Fee Description PP- Flat Fee PP- Clerk Tech Fee Amount 936.00 25.00 Total: 961.00 PITKIN COUNTY CHECK REQUISITION (Invoice Created in Eden by Com Dev) (Please attach any appropriate papers) DATE: July 24, 2013 AMOUNT: $624 CHARGE ACCT NUMBER: B 002.00.37001 PAYMENT MADE TO: Merle J Dulien Vendor # PO Box 3556 Aspen CO 81611 REASON: Application withdrawn refund $624 of the flat fee, for Aspen Kiwi Properties LLC, Case #0050.2013. plan. DEPT. HEAD APPROVAL: DATE: 71 25 ANU UAI t) REFUND FEE DETAIL (com dev use): • 002.02.00000.63342 Flat Fee $624