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HomeMy WebLinkAboutbocc.packet.10082014 - Taylor Capital Ventures LLCMEMORANDUM TO: Board of County Commissioners Regular Meeting — October 8', 2014 THRU: Cindy HouberYty Development Director FROM: Mike Kraemer, Planner k RE: Taylor Capital Ventures, LP Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment — Appeal of Hearing Officer Determination No. 05-2014 SUMMARY: The Appellant is appealing Hearing Officer Determination No. 05-2014 (Attachment A), which approved a Site Plan, TDR Receiver Site, and Minor Plat Amendment on a vacant lot. This item was continued from the September 24th, 2014 hearing to allow time for the Appellant and Applicant to work on a potential solution. APPELLANT: W/J Homeowners Association, represented by Wayne Ethridge APPLICANT: Taylor Capital Ventures, LP, represented by Stan Clauson, Associates OWNER: East Starwood Mesa, LLC LOCATION: 125 Byers Ct. Lot 1, Filing 5, W/J Ranch Subdivision. ZOND G/LOT SIZE: The Lot contains approximately 2.1 acres and is located in the RS-20 zone district. APPEAL PROCEDURE: Sec. 2-20-180 of the Land Use Code provides that "any affected party" may appeal a decision made pursuant to the Code. The Code requires submission of a notice of appeal within 15 working days of the decision. The effective date of the Hearing Officer Determination was May 20th, 2014. A timely notice of appeal was submitted within 15 working days after the effective date of the decision. The Appellant submitted transcripts of the hearings within 60 working days of the decision, as required by the Code (transcripts provided in Appellant's submittal). The appeal hearing has been noticed, as required by Sec. 2-20-100(b) of the Code. The applicable Land Use Code sections regarding an appeal are as follows: Land Use Code Section 20-20-180(f) states: Hearing: At the meeting on the appeal (which shall he a public meeting), the Board of County Commissioners shall review the record of the decision and shall provide the appellant an opportunity to discuss the grounds for the appeal and the basis for the alleged error in the decision. After the presentations from all adversely affected persons, the Board may hear from any other persons) it deems appropriate. 1 000001 0-C Land Use Code Section 2-20-180 (g) states: Criteria: An appeal is not a de novo consideration of the merits of the development application that gave rise to the appeal. The appeal body identified in Table 2-1 shall only reverse, modifi.', or remand u decision on appeal if it finds that that there has been a clear and demonstrable error, abuse of discretion, or denial of procedural due process in the application of the facts in the record to the standards of this Land Use Code. Land Use Code Section 20-20-180 (h) states: Actions Based on the testimony heard at the meeting and the record, the Board may affirm, modify or reverse the decision, based on the criteria of subsection (g) above or may by resolution remand the matter to the individual or decision -making body that made the decision with directions for future action. APPEAL REQUEST: The Appellant is appealing Hearing Officer Determination No. 05-2014. The grounds for the appeal are presented in the notice of appeal and supporting documentation in Attachment B. The Applicant has also submitted documentation outlining their position on the matter identified as Attachment C. STAFF COMMENT: Staff addressed the applicable provisions in the Code in the May 20th, 2014 memorandum to the Hearing Officer (Attachment D). The Hearing Officer found that the application complied with the applicable provisions of the Code and was approved. At this time, Staff has no reason to believe that the Hearing Officer made a clear and demonstrable error, abused discretion, or denied procedural due process in the application of the facts in the record to the standards of the Pitkin County Land Use Code, The Appellant has also claimed that the Hearing Officer, Tom Smith has a conflict of interest with regards to his past relationship with the developer of the W/J Ranch Subdivision. Tom Smith has provided a letter outlining his position on the matter (Attachment E). The Applicant has refuted the Appellant's claim by stating that Torn Smith disclosed his past relationship with the developer and asked at the public hearing if there was any objection to proceeding with the review of the application. The Applicant also references the Standard of Conduct For Pitkin County Public Officials document which outlines criteria for conflicts of interest for the Hearing Officer. This document also states that "a violation of this Standard of Conduct shall not be considered a basis for challenging the validity of a... County Hearing Officer Decision, and shall not create any legal rights for a private citizen.". RECOMMENDATION: Staff recommends that the BOCC deny the Appeal of Hearing Officer Determination No. 05-2014 approving the Taylor Capital Ventures, LP Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment. 000002 2 ATTACHMENTS: A) Hearing Officer Determination No. 05-2014 (not yet recorded) B) Appellant's Notice of Appeal, supporting documentation, and transcripts C) Applicant's position on the appeal D) Staff Memo to Hearing Officer (May 20th, 2014) E) Tom Smith letter Application provided separately 3 RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO, DENYING AN APPEAL BY THE W/J HOMEOWNERS ASSOCIATION OF HEARING OFFICER DETERMINATION NO. 05-2014 WHICH APPROVED THE TAYLOR CAPITAL VENTURES LP SITE PLAN REVIEW, SPECIAL REVIEW FOR A TRANSFERABLE DEVELOPMENT RIGHT, AND SUBDIVISION EXEMPTION FOR A MINOR PLAT AMENDMENT Resolution No. - 2014 RECITALS 1. W/J Homeowners Association ("Appellant') has appealed Hearing Officer Determination No. 05-2014, which approved the Taylor Capital Ventures LP, Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment, to the Board of County Commissioners of Pitkin County, Colorado ("BOCC"). 2. The Lot is legally described as Lot 1, Filing 5, W/J Ranch. 3. The Lot is zoned RS-20 and contains approximately 2.1 acres. 4. The Lot is subject to the W/J Ranch Subdivision approvals, however no recent land use decisions apply to the parcel. 5. The Hearing Officer granted approval of an application, pursuant to Determination No. 05-2014, after consideration of the application at a duly noticed public hearings on May 20th, 2014. 6. The Appellant submitted a notice of appeal within 15 working days of the decision and submitted transcripts of the hearings within 60 working days of the decision, as required by Sec. 2-20-180 of the Land Use Code ("Code"). 7. The BOCC heard this appeal at a regular meeting on September 24`h, 2014, and continued public hearing on October 8th, 2014, at which time evidence and testimony were presented with respect to the appeal based on the record of the Hearing Officer's decision. 8. The BOCC finds that there has not been an abuse of discretion or denial of procedural due process in the application of the fact in the record to the standards of the Land Use Code. NOW THEREFORE BE IT RESOLVED by the Pitkin County Board of County Commissioners that it does hereby deny the appeal of Hearing Officer Determination No. 05-2014, which approved the Taylor Capital Ventures LP, Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment. nun 4 Resolution No. Page 2 -2014 DENIED ON THE 24T11 DAY OF SEPTEMBER, 2014. ATTEST: BOARD OF COUNTY COMMISSIONERS OF PTTKIN COUNTY, COLORADO Jeanette Jones Deputy County Clerk APPROVED AS TO FORM: John Ely, County Attorney PID 264322303001 Case #P033-14 Robert A. Ittner, Jr., Chair Date: APPROVED AS TO CONTENT: Cindy Houben, Community Development Director 00'3045 ATTACHMENT /4 DETERMINATION OF THE HEARING OFFICER OF PTTKIN COUNTY, COLORADO, APPROVING THE TAYLOR CAPITAL VENTURES LP SITE PLAN REVIEW, SPECIAL REVIEW FOR A TRANSFERABLE DEVELOPMENT RIGHT, AND SUBDIVISION EXEMPTION FOR A MINOR PLAT AMENDMENT Determination No. (9.5.--2014 RECITALS 1) Taylor Capital Ventures, LP (hereafter "Applicant") has applied to the Pitkin County Hearing Officer ("Hearing Officer") for Site Plan Review, Special Review for a TDR, and Subdivision Exemption for a Minor Plat Amendment for approval to construct up to a 7,500 square foot single family residence. At this time only approximately 6,500 square feet is proposed and the Applicant wishes to reserve 1,000 square feet of floor area for a future addition. 2) The Lot is legally described as Lot 1, Filing 5, W/J Ranch. 3) The Lot is zoned RS-20 and contains approximately 2.1 acres. 4) The Lot is subject to the W/J Ranch Subdivision approvals, however no recent land use decisions apply to the parcel. 5) The Hearing Officer finds that the request complies with the applicable provisions of the Code, as follows: A. The amended envelope contains slopes of less than 30%. B. The wildfire hazard is rated as low, and can be mitigated pursuant to the provisions of Sec. 7-20-60(c) of the Code. C. The lot is not mapped within any big game ranges. D. The lot is within the mapped Scenic View Protection Area as seen from McLain Flats Road. The future residence will not be visible from this Scenic Corridor E. The proposed residential development is exempt from growth management up to 5,000 square feet of floor area, and may develop up to a maximum floor area of 7,500 square feet, pursuant to BOCC Resolution No. 53-2004. 6) The Hearing Officer further finds that that exact floor area proposed for this application is 6,508 square feet. 992 square feet of the TDR is available for future use. NOW THEREFORE BE IT RESOLVED by the Pitkin County Community Development Hearing Officer that he does hereby approve the Taylor Capital Ventures LP, Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment subject to the following conditions, which shall run with the land and be binding on all successors in interest. 1) The Applicant shall adhere to all material representations made in the application and shall consider those representations to be conditions of approval, unless amended by other conditions. Only this Administrative Decision and accompanying recorded Site Plan will need to be submitted at building permit submittal. 2) Prior to submission of any building permit applications for the new residence, the Applicant shall be required to submit for approval by the County Attorney and Community Development a Site Plan with Page 1 of 6 Hearing Officer Determination No. -2014 Page 2 an Activity Envelope and a Minor Plat Amendment in accordance with Land Use Code Section 2-30- 20(g) and Application Manual Sections 2.1.12. and 2.1.13. The above referenced approvals shall be a condition precedent to finalization and recordation of them. 3) The Applicant shall comply with all standards for development within Scenic View Protection Areas as represented in the application and approved in this Determination. The exterior of the buildings shall utilize indigenous earth tone materials or colors and the roofs shall have a non -reflective color or composition. Reflective roof materials, with the exception of materials associated with solar or photovoltaic equipment, shall not be used unless the materials are treated to eliminate reflectivity prior to installation. All exterior lighting shall comply with the lighting code. 4) Additional floor area up to 7,500 square feet requires use of a TDR. At building permit application for the new residence, the Applicant shall surrender one (1) original TDR Certificate and a copy of the deed(s) evidencing the Applicant's acquisition of the Certificates (if applicable), in order to develop up to a total of 7,500 square feet of floor area exempt from GQMS from a base of 5,000 square feet. 5) At building permit submittal for the residence, the Applicant shall: A. Submit an access permit for any major improvements to the driveway, which shall be approved by the Planning Engineer and Aspen Fire Department. B. Submit a fireplace/woodstove permit to the Community Development Department, if necessary. C. Submit a site specific drainage and erosion control plan prepared by a qualified engineer or geologist for review and approval by the Planning Engineer. If the total development disturbs one acre or more, the Applicant shall apply for and obtain a State Stormwater Permit. All historic and natural drainage patterns shall be maintained. D. Submit an on -site wastewater treatment system (OWTS) construction permit. E. Submit a construction management plan for review and approval by the Planning Engineer. F. Submit a detailed revegetation plan for disturbed areas with appropriate seed mixes and landscape plan. G. Submit a tree mitigation and landscape plan. 6) At building permit issuance, the Applicant shall: A. Pay the applicable road impact fee; B. Pay the applicable employee housing impact fees 7) The Applicant shall obtain an Earthmoving, Clearing and Grubbing Permit for all pond, water feature and landscaping improvements that move more than 50 cubic yards of soil. The permit application shall address all State requirements; document water rights; provide engineering of all overflow structures, recirculation systems, etc. 8) The property shall comply with the following low wildfire development standards. A. Defensible Space: The area around all buildings/structures, limited by property boundaries that may limit a property owner's ability to comply with this section, shall incorporate landscaping with wildfire defensible space considerations as follows: 1. Brush, debris and non -ornamental vegetation shall be removed within a minimum ten -foot (10') perimeter around all structures. a00001 Page 2 of 6 Hearing Officer Determination No. -2014 Page 3 2. Vegetation shall be reduced to break up the vertical and horizontal continuity of the fuels at a minimum of a thirty (30) foot perimeter around a structure built on flat ground. Spacing between clumps of brush and vegetation up to the thirty (30) foot perimeter shall be a minimum of two (2) times the height of the fuel. Maximum diameter of the clumps shall be equal to the height of the fuel. All measurements shall be from the edges of the crowns of the fuel. 3. All branches from trees and brush within the thirty (30) foot perimeter shall be pruned to a height of ten (10) feet above the ground with removal of ladder fuels from around trees and brush. 4. Tree crown separation within the thirty (30) foot perimeters shall have a minimum of ten (10) feet between the edges of the crowns, except for mature stands of aspen trees where ladder fuels have been removed. In areas of aspen regeneration, understory shrubs and down and dead materials shall be removed. 5. All branches that extend over the roof eaves shall be trimmed and all branches within fifteen (15) feet of chimneys shall be removed. 6. The density of fuels up to a one hundred (100) foot perimeter of the structures shall be reduced where natural reduction has not already occurred. 7. All deadfall up to a one hundred (100) foot perimeter shall be removed. 8. No new conifer trees shall be planted within ten (10) feet of a residence. 9. No flammable mulches shall be placed within two (2) feet of a residence. 10. The property owner shall be responsible for the continued maintenance of the defensible space vegetation requirements. B. Low Hazard Area U00B 1. Roofing Materials a. Class A covering or Class A Assembly as defined by the currently adopted building code. b. No wood shakes or shingles. Page 3 of 6 Hearing Officer Determination No. -2014 Page 4 C. Maintenance and Miscellaneous Requirements 1. Roofs and gutters shall be kept clear of debris. 2. Roof vents shall be screened with corrosive resistant wire mesh, with mesh one-fourth (VI) inch maximum. 3. Yards shall be kept clear of all litter, slash and flammable debris. 4. All flammable materials shall be stored on a parallel contour a minimum of fifteen (15) feet away from any structure. 5. Weeds and grasses within the ten (10) foot perimeter shall be maintained to a height not more than six (6) inches. 6. Firewood/wood piles shall be stacked on a parallel contour a minimum of fifteen (15) feet away from the structure. 7. Swimming pools and ponds shall be accessible by the local fire district. 8. Fences shall be kept clear of brush and debris. 9. Wood fences shall not connect to other structures. 10. Fuel tanks shall be installed underground with an approved container. 11. Propane tanks shall be buried, if possible, or installed according to NFPA 58 standards and on a contour away from the structure with standard defensible space vegetation mitigation around any aboveground tank. Any wood enclosure around the tank shall be constructed with materials approved for two (2) hour fire -resistive construction on the exterior side of the walls. 12. Each structure shall have a minimum of one ten (10) pound ABC fire extinguisher. 13. The Applicant shall comply with all requirements of the Aspen Fire Protection District Code. 14. Addresses shall be clearly marked with four (4) inch 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. 9) The Applicant shall comply with the following measures to mitigate impacts to wildlife: A. Native vegetation shall be maintained outside of the activity envelope. B. Contractors/construction workers shall be required to provide bear proof containers for all edible and food related trash. C. Trash/garbage shall be kept in an approved bear resistant container or enclosure, pursuant to the County's Wildlife Protection Ordinance. Verification of compliance shall be provided prior to issuance of a certificate of occupancy. D. Wood rail perimeter fencing shall employ three rails or less, be the round or split rail type, shall not exceed 54 inches in height above ground level and 12 inches in width (top view), and shall have at least 18 inches between the lower two rails. E. Wire fencing must be three (3) strands or less. The top wire should be a twelve -point -five (12.5) gauge twisted barbless type at a maximum height of forty-two (42) inches. The middle strands (which may be barbed) should be located a minimum twelve (12) inches apart and from the top wire preventing entanglement when mule deer jump over. The bottom strand should be sixteen (16) inches from the ground. F. All non -conforming fencing on the property must be brought into compliance. G. No fruit -bearing trees and shrubs in any landscaping. H. Construction workers are prohibited from bringing their dogs on site. I. All outside doors shall utilize only solid round handled door knobs, unless another type is required by the applicable Building Code for disabled accessibility purposes. 0000 t- Page 4 of 6 Hearing Officer Determination No. -2014 Page 5 9. No development including grading, excavation, fill placement, berming, landscaping, vegetation removal or disturbance, well or septic system shall occur outside of the approved activity envelope, except as necessary to comply with the wildfire mitigation measures described above. 10. Prior to commencement of any earthmoving or other construction activity, the Applicant shall stake the corners of the activity envelope and install construction fencing around the construction site within the perimeter of the activity envelope. The fencing shall remain in place until issuance of a Certificate of Occupancy. 11. No development in excess of 30" above or below natural grade shall occur within the setbacks of the lot, with the exception ofidriveways and associated retaining walls of up to 6' above or below natural grade and fencing. Landscaping in the form of berms shall not exceed four feet from the most restrictive grade. Any development located within setbacks mandated by County zoning regulations that does not comply with these restrictions shall require a variance from the Board of Adjustment. Approval of an activity envelope within such setbacks does not assure approval of a variance. 12. No calculations for height, bulk, setback, size, floor area, or any other building and zoning requirements have been conducted. These requirements will be considered at the time of building permit. Any structures represented in the application may not be permitted under building and zoning regulations. 13. Failure to comply with the conditions of this approval may result in revocation of this approval, or any subsequent permit(s) or approval(s) related to this property, or vested rights associated with this property. 14. Statutory vested rights for the approval contained herein are granted pursuant to the Pitkin County Land Use Code and Colorado Statutes, subject to the exceptions set forth in Pitkin County Land Use Code § 2-20-170 and C.R.S. § 24-68-105. The statutory vested rights granted herein shall expire on , 2017. Page 5 of 6 Hearing Officer Determination No. -2014 Page 6 NOTICE OF PUBLIC HEARING PUBLISHED IN THE ASPEN TIMES WEEKLY on the 20th of Apri12014. APPROVED AND ADOPTED this 20th day of May, 2014. PUBLISHED AFTER ADOPTION FOR VESTED REAL PROPERTY RIGHTS in the Aspen Times Weekly on the day of , 20 COMMUNITY DEVELOPMENT DEPARTMENT HEARING OFFICER OF PITKIN COUNTY, COLORADO By Tom Smith, Hearing Officer ATTEST: Date Bonnie Shiles, Administrative Assistant APPROVED AS TO FORM: APPROVED AS TO CONTENT: John Ely, County Attorney PID#: 264322303001 Case P033-14 0000lit Cindy Houben, Community Development Director Page 6 of 6 ATTACHMENT The W/J Homeowners Association hereby provides notice of an appeal of the Pitkin County Hearing Officers decision on May 20, 2014 to approve a plat amendment allowing building construction outside the approved building envelope on envelope for Lot 1, Filing 5 W/J Subdivision. The homeowners believe that the hearing officer, Tom Smith has a conflict of interest, having represented the original developers of the subdivision, and should hare recused himself. In addition, the homeowners believe that they had every right to expect that all building activity would be confined to the very large building envelopes onginally approved for the subdivision. Further detailed information will be provided subsequent to today's notice of appeal endarvi s /,1 Homeowners (o•1t•1*- 3061--"7(n3$' w„ aiE;Ro/tIoA 1A)10'/JE F I E- P4.4 3 -s dal 000012 Transcript of Meeting with Pitkin County Hearing Officer May 20, 2014 Tom Smith: We are now on the record. I'm Tom Smith, Pitkin County Hearing Officer. It's Tuesday. May 20, 2014, 3:05 P.M. We are down here in the Library meeting room, 120 North Mill Street, Aspen, Colorado. We have no members of the public present for comments. For the record, why not those of you who are here enter your appearances and we'll proceed from there. Mike Kraemer: Mike Kraemer with Pitkin County Planning Staff. Patrick Rawley: Patrick Rawley, Stan Clauson Associates on behalf of our client, the applicant. Tom Smith: Ok, and with you? Patrick Rawley: Eric Rewinkel, architect, and Greg Roy. University of Colorado. Tom Smith: Welcome, Greg. First for the record, I reviewed the application and noted that a prior owner's property and the original developer was Lowe W/J. Lowe W/J was a client of mine at some point in time many moons ago, or probably at least, well, prior to, as I recall, prior to the County's approval of the development which provides the basis for this application. It is my recollection that I did not represent them at the time that that approval went forward. In addition, Lowe W/J no longer has an interest in the property and has no, does not stand to gain or lose from the approval of this application, nor do 1. But I don't believe I have a conflict. I am not sure if anyone here wants to raise that issue but speak now, or forever hold your peace. So I am not hearing any concerns or objections on that basis. So we will proceed. Mike, let me hand it over to you and we will then hear from the applicant and I would note for the record that we have just been presented with an e-mail, an e-mail objection to the approval of this application which came through Mike Kraemer just this afternoon on behalf of the W/J Metropolitan District. Mike, I am not sure if you know. but perhaps you can comment on your presentation on whether this is part of an e-mail chain and I don't know if this should be interpreted as objections from other individuals who are involved in this correspondence or if they are all simply objecting as members of the W/J Metropolitan District and then we'll get into the basis for their concerns. etc. So go ahead. Mike Kraemer. Ok. Thank you. I'm Mike Kraemer of the Pitkin County Planning staff. The applicant is Taylor Capital Ventures Limited Partnership owned by East Starwood Mesa, LLC and the request is for building envelope, site plan and construction of a single family house up to 7,500 square feet, although the specific request only asks for construction of a 6,500 square foot residence. So, in this case, the applicant is requesting to use a partial TDR and then bank that 1,000 square feet for a future addition. The lot is located and is identified as Lot 1, Filing 5, WIJ Subdivision off Byers Court. It doesn't have an address yet because there is no house on the property. It's vacant, approximately 2.1 acres and we're in the RS-20 Zone District. 03u013 Tom Smith: What is the size of the property? Mike Kraemer: We're at 2.1 acres for the size of the lot. And, a little background, as you probably know, W/J is a Board approved subdivision and it was approved in 2004 with a BOCC Resolution. One thing, I guess, for Pitkin County. odd conditions of this Resolution was that the free market lots in this area only had a growth management exemption for 5,000 square feet and they had the ability to build up to 7,500 square feet. Now, in general, Pitkin County growth management exemptions is 5,750. That's the number we all know, but in this case 5,000 square feet growth management and then there's the ability to build up to 7,500 square feet through use of a TDR. The change to the envelope poses no issue. There are no Chapter 7 constraints. We're not next to a stream. We're not in an avalanche area. There's no rock fall hazard. This is a platted subdivision lot and from that perspective, there is no concern from the Land Use Code to amend the building envelope and place the residence in that area. As far as the scenic impact, staff conducted a site visit and did go up and down McLain Flats Road and Highway 82. There weren't height poles on the property but staff did use the adjacent lot as a reference which has a 28 foot structure on it and that is not visible from McLain Flats or Highway 82 so we're confident that it won't obstruct a ridge line from either of those scenic corridors which is one of the major review points of Chapter 7. Those were the Land Use Code Sections that apply to this request and as you stated, we just received an objection from the W/J Metro District Board and in reading their comments, it appears that they are against the amendment to the building envelope and, from what I gather, from this chain of e-mails, they do not want the building envelope amended such that the residence goes outside of the previously platted envelope. So what I did here, Tom, I pulled the application, the survey which shows the platted building envelope and access easement per the Plat. Tom Smith: This is not easy for me to read. So where is the platted envelope? The platted building envelope is shown with those large dash signs. Mike Kraemer: That is, as platted. This is north. obviously, Byers Court comes in as access to the parcel right here. Tom Smith: Show me how the envelope would change. Mike Kraemer: That's a little bit more difficult to show. I deduce that if I look at the contour lines, and where the envelope is existing, it looks like a portion of the western side of the envelope gets amended, and then a portion of the southern part of the envelope gets amended. And then if I look to the north of this 76/74 contour line, it appears that the envelope gets amended a little bit up here to the north. Tom Smith: Is this the original envelope shown here? Mike Kraemer: It's not. That's why. 2 0 Jtt14 Tom Smith: So, Patrick, it would be nice of you to help us out with trying to pinpoint the changes on the improvement survey plat and the old envelope on the conceptual landscape plan that we're looking at. Anything else, Mike? Mike Kraemer: Just to answer your question, Jeff Pendarvis is our contact for W/J Metro District. Tom Smith: I'm sorry. Say that again. Mike Kraemer: Jeff Pendarvis is our contact for the W/3 Metro District. Tom Smith: Is he a member of the Metro District? What is his status? Mike Kraemer: Gosh, I don't know what his status is but he did sign it W/J Metro District Board. Yeah, so 1 assume that it says right here Metro District Board. Tom Smith. All right. Anything else? Mike Kraemer: No, that's what 1 have. Tom Smith: Patrick? Patrick Rawley: Okay. Thank you. To clarify just one point of clarification. It does have an address. It's actually 125. We went to Pitkin County for an address. Tom Smith: Do you do have an address now? Patrick Rawley: So it is 125 Byers Court. Concerning the activity envelope as we're looking at the plan here, what we have done. Tom Smith: Let's first start with, well, which one do you want to start with? What I'm going to ask you to do is to identify with pen and ink on these sheets here what we're looking at so that 1can ... Patrick Rawley: As Mike has indicated, the platted envelope is roughly in this area that the proposed house will nearly fit within that area. However, there are other structures that need to be provided for as a requirement of previous approvals and that is, you know, storm water management, infrastructure, so we have two bio-retention ponds that are located out. We have some other areas of grading and of landscaping and some slight modifications to the driveway to improve the sweep as well as provide for parking adjacent to the garage. So what we had done is to simplify this is to basically call the property boundaries the activity envelope so that the effective proposed activity envelope would be the entire site to take into account these other conditions that need to be made. It kinda comes as a surprise to us, frankly, that the W/J Metro i OUCOi5- V S.,. V V - - District would take exception to it as it was our understanding that at the time of approval, the activity envelopes, then called building envelopes, were anticipated that when a site specific development would be submitted, that those would be amended. That was our understanding moving forward and I don't have any reason to believe that that was not the case. The building envelope as it was originally platted was rather small, as I said, would nearly accommodate the house but not accommodate the other structures and features that are required to be provided. Tom Smith: Can you identify for me on this conceptual landscape plan where, what portions of the residence, which I guess is shown in gray scale here . _ . Patrick Rawley: That is correct. ' Tom Smith: If you could show in a general way. identify the portions of the residence that would be outside the original building envelope. Patrick Rawley: We have Eric Rewinkel, the architect, here that can talk more specifically to this but it appears that a portion of the structure, this is the garage and this feature right behind the garage, would likely .. . Tom Smith: Yeah, I'd like you to show it on here. Eric, if it's better that you do it. I'm just trying to get a visual indication of ... (unintelligible - several talking at once) ... improvements Patrick Rawley: Do you want to do an overlay? Eric Rewinkel: Yeah, it's basically this portion ... go ahead and pencil it in .. . Tom Smith: I know it's conceptual. Mike Kraemer: if you want to scale it, we could scale it off this one. It might be quicker .. . are you prepared to do that? Patrick Rawley: Do an overlay? Tom Smith: Can you get that to show through? Patrick Rawley: Can you get that to show through? Do you have a heavier marker? (papers rustling). Tom Smith: It's going to take a little bit, we can go off the record .. shut down the recorder. Mike Kraemer: What scale is that at? Patrick Rawley: It should be at the same scale. 10 to 20. 4 00U016 (papers rustling) Tom Smith: For the record, what we are doing here is highlighting the boundaries of the original building envelope and overlying the conceptual landscape plan to see if we can show .. . (papers rusting) overlay the building envelope with the current proposed development plan for the property. Patrick Rawley: What I am trying to do is locate approximate locations. Tom Smith: Thank you, that is very helpful. All right. So. What we are talking about is this area here. Again, I understand this is off the cuff here. Right here it may be a little bit over here. All right, so why don't you tell me, either of you, what, in these areas where it looks like you're going beyond the original building envelope, whether we're talking about just overhangs or what we're really talking about is roof. What kind of improvements are shown in those areas. Eric Rewinkel: Okay. This is the master bathroom right here. There's a small area outside the master bedroom. So this is master bedroom, master bathroom. Tom Smith: As part of the main structure of the house? Eric Rewinkel: Yes. Tom Smith: And how many feet are we talking about from this point, roughly? Eric Rewinkel: About 10 or 12 feet. Tom Smith: All right. Eric Rewinkel: And this is the exercise roomlfuture bedroom. That's also approximately 10 feet outside of the envelope there. And then this is garage. Tom Smith: Okay. Patrick Rawley. It looks about 10 feet as well. Tom Smith: Now, W!J Metro District. The properties that are included in that District, are where? Patrick Rawley: This property is included. W/J. Tom Smith: Is part of it? 5 Patrick Rawley: It is part of it, yes. Tom Smith: W/J, it is my understanding. provides water, the septic, the various utility services. Mike Kraemer: Just water. Patrick Rawley: Per the original design, they will review the septic. Tom Smith: So the Metro District. What do they provide. They are a special district because they provide what services? Water, anything else? Metro District suggests that they are involved in providing other services, as well. Otherwise, logically they would be called either a water district or a water and san district, if they are providing .. . Mike Kraemer: I do know for a fact they own property. There are some open spaces. Tom Smith: Do you know where those would be relative to this? Mike Kraemer: Relative to this, they would be south on the other side of Stevens Street. Tom Smith: Where would that be: Mike Kraemer: You wouldn't be able to see. Torn Smith: I know, but which direction? Mike Kraemer: South. This is the site. Tom Smith: So down this way? Mike Kraemer: This area right here. This is open space and then W/J Metro District also extends across Lower River Road and goes on to the RO, Resident Occupied area down there where the panabodes are and this is also Metro District lands on that side, too. I also do know that they own the roads, too. so I assume that they service those. Tom Smith: If I read these comments correctly, the concern seems to be backing up closer to the houses to the west. Can you identify where that would be? Patrick Rawley: There is a house ... this is the cell tower that was reference in one of them. And I believe there is a house on the other side of this berm located generally in this vicinity, I believe. So there is the cell tower. Tom Smith: I see. So it's these homes here? 6 060018 Patrick Rawley: This home is marginally visible. This home is a little bit more, but there is this separation of berm and also of ... What is that road? 1 don't remember. Tom Smith: Upper Bullwinkle? Patrick Rawley: That's Upper Bullwinkle that goes back to the cell tower. Tom Smith: Is it possible to tell whether or not this residence would be visible from these homes? Mike, can you answer that? Mike Kraemer: I can't answer that. Tom Smith: However, it does look like in that direction ... Only this that extends further closer to them is this portion of the garage. Is that right? Is that what we're seeing? Patrick Rawley: That's correct. And I would also add that this is an existing berm that was created as a part of the original development of the subdivision. Tom Smith: How high is that berm? Patrick Rawley: 75, approximately 4 to 5 feet. And that has been previously landscaped, as well. Tom Smith: Okay. Patrick Rawley: I have, if you'd like, a clarification for the function of the District is to finance, construct and manage various infrastructure elements associated with the development and use of the property within the District. Tom Smith: I'm sorry. Will you repeat that last part? Patrick Rawley: The purpose of the District is to finance, construct and manage various infrastructure elements associated with the development and use of the property within the District. These elements shall include, but not limited to, roads, water delivery systems and waste water disposal and treatment systems. The District will also provide snow plowing, trash removal, landscaping and other administrative services. Tom Smith: Anything else you want to add? Patrick Rawley: I don't believe so. Tom Smith: Mike, help me out with this. We have Bob McDonough on this e-mail chain here and what would his relationship be to the property or properties surrounding this. In other 7 u0,9 u0 words, he is saying, I respectfully object. He's sending it to Jeff Pendarvis. Does he own property at WIJ? Mike Kraemer: Bob does. Yeah, he is stated here as 85 Upper Bullwinkle Circle. Tom Smith: So he is a resident. Nancy Pearce? Is she also a resident? Mike Kraemer: 1 can only assume that the e-mail that went out from Jeff Pendarvis to these .. . Tom Smith: I'm just trying to . , . specific people who made statements here and they are: Bob McDonough, Amy Covington, Nancy Pearce and Jeff Pendarvis. Pm just trying to figure out if what we're seeing here is objections from homeowners or objections strictly from the District. That's what I'm trying .. . Mike Kraemer: Okay. Tom Smith: Can you tell? Mike Kraemer: I can't. Patrick Rawley: I can tell you that as part of our standard public noticing, Amy Covington received a notice, Robert McDonough, Nancy Pearce. What was the other name you mentioned? Tom Keleher, Danvers, Brandi Keleher. Tom Smith: The others were noticed because they were within 300 feet of the property. Okay. Mike, do you want to add anything at this point before I make a decision? Mike Kraemer: The only thing I would add is that staff recommended approval of this application and with W/J Metro District Board letter from Jeff Pendarvis, I think that what staff would have done would have been to get the Board in touch with the applicant to work out issues like this prior to the hearing. Now, we received this in an untimely fashion, as it is simply impossible today. But if staff has to revise a recommendation. we say that we would like the applicant and the Board members to work out the differences in the building envelope and see if there is some resolution that they could find. Tom Smith: Patrick, do you want to respond? Do you want an opportunity to talk to these folks? Patrick Rawley: We would be willing to do that, if that is what we are told to do. I think that the impacts on these people is minimal, as we can see before us, as a very small portion of garage may be the only impact that they would have and, again, that's behind an existing berm that has been vegetated. So, of course, we would be willing to do that, if that is the direction that we are to take, but we would prefer to move forward with a determination, if you can make it at this 8 time and, of course, if it behooves us to reach out to them, we will gladly do that. Tom Smith: I have several concerns. First of all, a couple of technical points. I did not see a condition for filing an amended plat. I know that there's a requirement to file a site plan. Should there be a condition to file an amended plat because I think, among other things, the plat as currently stands, it does identify the building envelope and also the access which are to be changed, so it seems to me that you need, I'm not saying that you need to file an amended plat that covers the entire development, but it should at least cover, address the changes that are being made to this lot. Would that be appropriate? Mike Kraemer: It would be appropriate, yeah, this is a minor plat amendment request. Tom Smith: That's okay. I still think we need a plat amendment as well as a site plan and I didn't see a condition to require the amended plat even though I think we need that. Mike Kraemer: Yeah, okay. I'll put that into condition #2. (Several people talking - unintelligible) Patrick Rawley: For the record, we included a draft plat ... what we have normally done so this is the activity envelope modifying amendment .. . (Several people talking - unintelligible) Tom Smith: So that's attachment 6. Patrick Rawley: Attachment 6 and that was also a site plan that would be 2 pages. Tom Smith: Attachment 6 - we need to amend the conditions to require that. Second, as you all know, as both Patrick and Mike know, I like to figure a way to be explicit in the determination about when all the FAR is used, the approval, if I may grant that approval, will allow the applicant to be able in the future to use the additional FAR as specified, I believe, 1,000 square feet without the need to get approval of the TDR receiver site again or the activity envelope and site plan approval to use that. But if that's in the determination, I think that it makes it easier to have it all track in one document. I'm going to approve the application but 1 want to comment on the objections of W/J Metro District and if they get wind of this and ask me to reconsider, is fine, but my concern is not really from the legal side that they submitted their comments late, that's why you have public hearings, people can come in and comment. It certainly makes it more difficult for the applicant and planning staff to address concerns if they are not presented in advance of the hearing, but they are allowed to do that anal don't consider that to be a direct problem. However, it is difficult when they're not here to try to interpret and fully understand their objections and what they are based 9 upon. The e-mails are pretty vague on that and the official determination from Jeff Pendarvis is simply that they approved an objection opposing changing the approved building envelope but it is more than apparent that given the fact that the County now requires the designation of an activity envelope, that I really can't possibly give them what they want, whether they have concerns at all, or not. We have to go to a larger activity envelope and they don't really address the need for that. The concern seemsto be in te one hhe west.dressed by Bob I would note in hcUat regard isb that development backing up closer to the houses to based on the preliminary overlaythatave here which, tadmittedly, of developn ent that1 should say backing up here. the refinement of a formal survey, home as proposed very little of it extends in the direction of those homes to the west and does not seem to me to be the basis for any significant impact upon, if any impact, upon those neighbors. The portion of the garage points in that direction 10-15 feet and the other sides to the property, I feel certain they will not be affected by. there are a few areas of minor development outside of the original building envelope. The activity envelope itself needs to be expanded not to accommodate the home, but to accommodate related improvements: infrastructure, water, sewer, whatever else needs to be done, the County requires the retention ponds, etc. need to be in the activity envelope. So that's what most of the current "development" outside the original building envelope is unrelated to the house itself. So, I don't see a reason to draw this out any further. The residents can ask me to reconsider if they are upset about it when they finally see it. I would ask the applicant to sit down with them and explain what is being proposed here because it doesn't seem clear to me that they understand the business of the activity envelope versus the building envelope and the minimal amount of development that is going to be beyond the original building envelope. Patrick Rawley: We' 11 be glad to do that. Tom Smith: In addition, I am a little confused that the objection comes in from the W/J Metropolitan District whose jurisdiction extends to providing infrastructure in this area and really doesn't, I mean they really don't have jurisdiction over houses and where houses go. So 1 am a little surprised by that. You would expect that it would be the neighbors themselves, individually, who own these homes vw Uj� might been objecting little more specific about what that ey felt that there was an impact on their individual lots or that they o would be. So, nonetheless, that's where we are, and so I am going to grant the approval with the two changes and to make it clear that the amended lh td oestneeds w th theoapp approval completed the TDR receiver and then filling in the details on the unused FA g Is there anything else 1 need to talk about? We're done. We'll close the hearing record. Thank you all for showing up. C 1wp1PJT\W,! Transcript 5 20 14 meeting word tor 9 8 14 022 10 Pitkin County Board of County Commissioners 530 E. Main St. Aspen, CO 81611 Pitkin County SEP 1 2 2014 Community Development Lady and Gentlemen: The W/J Homeowner's Association has filed an appeal of Pitkin County Hearing Officer Tom Smith's approval of Taylor Capital Ventures, LLC application for site plan review. TDR receiver site and minor plat amendment (building envelope) for Lot 1 Filing Five of the W/J Subdivision. This appeal is based on the Association's concerns that Hearing Officer Smith, while disclosing his prior client/attomey relationship with Lowe W/J. LLC, the original developer of the subdivision containing Lot 1, failed to disqualify himself from the proceedings. In addition, the Association believes, consistent with the criteria established in Section 2-20-180 of the Pitkin County Land Use Code, that Hearing officer Smith abused his discretion by failing to properly identify and address the written concerns of adjacent property owners represented by the Association, and as a result, the Association believes it was denied due process during the review of the applicant's proposal. The Association believes that Hearing Officer Smith had a conflict of interest as a result of his prior role as attorney for Lowe WIJ, LLC. Due to attorney/client privilege statutes the Association is not privy to information regarding his role on his client's behalf, but there is very considerable concem that Mr. Smith could not render unbiased adjudication of the application. Additionally, if Mr. Smith worked with the applicant's representative. Stan Clauson, who was responsible for the design of the subdivision, the Association feels Mr. Smith would have a natural and understandable bias towards Mr. Clauson. to the detriment of adjacent homeowners adversely affected by his decision. Mr. Smith's August 26.2014 letter to County Attorney John Ely states "I represented Lowe WIJ in connection with this application, although it is my recollection that this representation terminated before all of the documentation was completed". This statement seems to be clear evidence of a conflict, and more than sufficient grounds to allow Mr. Smith to step down from his role as Hearing Officer on the application. Mr. Smith's letter justifying his role in the application cites numerous court decisions regarding conflict of interest and the appearance of bias. While the Association understands why an attorney responding to another attorney would take an approach that is almost entirely technically legalistic, the Association believes that Mr. Smith misses the point, which he actually stated in item 3 of his letter: "Neither Lowe, W/J, LLC, nor I have any interest in the outcome of this application, financial or otherwise. To that extent, 1 view the issue to be not one of conflict of interest but rather of bias based on the prior attorney/client relationship". Mr. Smith, in the following item 4, cites a court precedent requiring a substantial showing of personal bias as a legal requirement to disqualify a hearing officer and states in item 7: "In this case I did not have any actual bias, and I did not believe, based upon the law as discussed above, (emphasis added) that there were any objective facts to demonstrate an appearance of impropriety". The Association feels that 0uuiJ there is a vast gulf between the requirements established by the legal system. which generally grants broad latitude in the areas of conflict of interest and bias, and the duty of elected and appointed officials to make every effort to avoid even the appearance of a conflict of interest or bias during the conduct of their official duties. The Association does not doubt Mr. Smith's belief that he acted without bias, but in fact the burden was on Mr. Smith to remove any concern by recusing himself without a formal request to do so by the Association, or the need for the Association to file a legal brief. As indicated in the opening paragraph, the Association believes that Hearing Officer Smith erred in his failure to properly consider the written concerns of adjacent property owners and the vote of the Metro District Board, acting on behalf of the homeowners, to deny the request to modify the platted building envelope on Lot 1. In addition, the transcript of the hearing indicates that Mr. Smith was confused about the effect of the e- mail submitted by the W/J Metropolitan District. The e-mail clearly stated that the Metro District, acting on behalf of the homeowners, was opposed to any modification of the platted building envelope. Included in that e-mail were the comments of several homeowners stating their opposition to the proposed change in the building envelope. The Association believes that Mr. Smith should have immediately continued the hearing in order for him to become better informed about the objections of the homeowners. Mr. Smith not only failed to continue the hearing, he states, beginning at the bottom of page 9 of the transcript: "I'm going to approve the application but I want to comment on the objections of W/J Metro District and if they get wind of this and ask me to reconsider, is fine, but my concern is not really from the legal side that they submitted their comments late, that's why you have public hearings, people can come in and comment. It certainly makes it more difficult for the applicant and planning staff to address concerns if they are not presented in advance of the hearing, but they are allowed to do that and I don't consider that to be a direct problem. However, it is difficult when they're not here to try to interpret and fully understand their objections and what they are based upon. The e- mails are pretty vague on that and the official determination from Jeff Pendarvis is simply that they approved an objection opposing changing the approved building envelope but it is more than apparent that given the fact that the County now requires the designation of an activity envelope, that I can't possibly give them what they want, whether they have concerns at all or not. We have to go to a larger activity envelope and they don't really_ address the need for that". (emphasis added). Mr. Smith further states: "The residents can ask me to reconsider if they are upset about it when they finally see it". The "it" in Tom Smith's statement is not defined and the Association is confused. Does "it" mean the amended plat, which will have no building detail? Does it mean the plan for the home, over which the residents have absolutely no control? Does it mean the constructed home, or does it mean a new site plan with both the platted building envelope and the activity envelope shown for comparison or does "it" mean his decision? The Association hardly knows where to begin with Hearing Officer Smith's comment that he couldn't possibly give "them" what they want since "we" have to go to a larger activity envelope. The Association was not aware that the Pitkin County approval process had changed frommone p in which development approvals were granted as a privilege to one where an approval 00 00 24 must be granted regardless of the written concerns of affected property owners or the facts of the case. It is obvious that a change in the building envelope was needed because of the design of the home, which is primarily a one story structure with widely separated bedroom areas, nearly a guest home configuration. The home design, which is remarkably advanced considering no approval for building envelope modification had been granted, fails to respect the generous dimensional limits imposed by the platted building envelope, which are approximately 130 feet by 130 feet according to the area sketched on the site plan at the hearing. The home is approximately 186 feet long, nearly two thirds the length of a football field. It is worth noting that no mention was made of the parking area proposed for the development. The parking area as proposed will extend over 42 feet beyond the platted building envelope, and the activity from that area, in particular headlights, will have a seriously adverse effect on adjacent homeowners, particularly Bob McDonough and Nancy Pearce. who have a two story home in close proximity to the lot line of Lot 1. W/J homeowners had every right to believe that the building setbacks provided by the platted building envelopes would be respected by Pitkin County. There was no objection to the original envelopes due to the assumption that extraordinary circumstances would be required for their modification. The Filing 5 sales brochure, an attachment to this letter, clearly shows the building envelopes, and states: "All structures must be within the building envelope. There is flexibility in moving the building envelopes". The key words are must and flexibility. Flexibility is not defined, but could easily be interpreted as allowing a shift of the existing building envelope in its entirety to another portion of the site, rather than an indication that the envelope could be expanded. The word "must" is not permissive. Hearing Officer Smith made a statement at the end of the hearing that he was confused that the objection to the proposal came from the WIJ Metropolitan District rather than the neighbors themselves, and yet he made no effort to direct staff to clarify the intent of the e-mails he had earlier referenced, a clear procedural error and a denial of due process to the Association and its membership. The Association and its members were denied an opportunity to appear at a continued hearing, or present individual letters on behalf of their position if Mr. Smith had made such a request_ Mr_ Smith had one last chance to clear up any confusion he felt by continuing the hearing and directing Pitkin County staff to contact the District to address his concerns. The transcript contains no evidence that the applicant's representatives requested vn the day of thelon on heanng,Bir request so and yet he didso. was no stated reason for Mr. Smith The Association believes that the combination of, at a minimum, the strong potential for bias on the part of Hearing Officer Smith, as evidenced by his statement that he must approve the request for an extension of the building envelope, coupled with his procedural failure to address or completely understand the concerns of the Association and its membership requires that the Board of County Commissioners reverse the decision of the Hearing Officer. I will be present at the September 24th appeal hearing to supplement this letter with an oral presentation and to answer any questions you might have. IS4iycerely, Wa `r- Ethridge 048Bullwinkle Circle Aspen, CO 81611, Acting on behalf of the W/J Homeowners Association September 11, 2014 Attachments: Letter from Nina Ethridge Coldwell Banker sales brochure Letter from Bob McDonough and Nancy Pearce Letter from Garth Wilson • UUi 026 Nina W. Ethridge P.O. Box 9532 Aspen, Colorado 81612 Telephone: (970) 379-0901 E-mail: ntrue20030yahoo.com September 11, 2014 Board of County Commissioners 530 East Main Street Aspen, Colorado 81611 Re: Taylor Capital Ventures Limited Partnership Application Lot 1, Filing 5, W/J Subdivision Site Plan Review, TDR Receiver Site and Minor Plat Amendment May 20, 2014 Hearing with Pitkin County Hearing Officer Dear Board Members: I am the owner of a deed restricted single family home located at 489 Bullwinkle Circle in the W/J Subdivision. I first learned of the above referenced application by an e-mail sent to all members of the W/J Metropolitan District by its Board. My home is rnore than 300 feet frorn Lot 1 so I did not receive notice from the applicant. I was not even aware that Bob Starodoj had sold the parcel because there is still a Mason and Morse FOR SALE sign on the property and the current sales brochure still shows Lot 1 for sale for $1,500,000.00. When I left home this morning I noticed there are still four FOR SALE signs in the subdivision, but only one lot remains unsold. I have owned my home for many years and I was actively involved in the 2004 Lowe W/J application process for the approval of 5 free market lots, one of which is the subject of this current application. During the application process I attended several meetings in our neighborhood with Jim DeFrancia, a principal of the applicant, and other representatives of the applicant, including Stan Clauson, a P&Z meeting and, ultimately, a Board of County Commissioner meeting. The 2004 approval process was long and arduous, generating interest and participation by the Woody Creek Caucus, the W/J Homeowners Association and its Board, the White Star Subdivision, the Planning and Zoning Commission, the Pitkin County Community Development Department, and the Board of County Commissioners. While the Wil many of Homeowners Association Board and most individual homeowners generally supported the major aspects of the application (ie. the number of lots proposed), there were areas of considerable disagreement (ie. the constructionll tower 'n very homes of some of my neighbors). Tom Smithand Stan Clausonwere both employed by Lowe OU ;O2' W/1 and both worked on the 2004 W/J application. Because Tom Smith is an attorney, his work with Lowe W/J is privileged. On May 20, 2014 a hearing was held regarding Taylor Capital Ventures' application regarding the construction of a home on Lot 1, Filing 5, W/J Subdivision and Tom Smith presided over the hearing, serving as the Pitkin County Hearing Officer. 1 feel that it was inappropriate for Tom Smith to preside over the hearing and, ultimately, make a decision that involves the same property, Stan Clauson, the individual W/J homeowners and the Board of W/J. There are other people available in Pitkin County who are capable of serving as a hearing officer and do not have a history on this property. 1, therefore, request that Tom Smith's ruling at the May 20, 2014 hearing be reversed, an alternative hearing officer be chosen and another hearing be conducted. I obtained the audio recording of the May 20, 2014 hearing from Mike Kraemer and typed the transcript. Although I was not present at the hearing, I am now familiar with the issues discussed at the hearing and I would like to share my comments and concerns. Because there was not much time between the date W/J received notice of the application and the May 20, 2014 hearing date, no one representing either the Board of the W/J Homeowners Association or any of the individual homeowners were able to attend the hearing. An effort was made by several homeowners to express their concerns in writing prior to the hearing and the Board voted to file an objection on behalf of the Association but there was considerable confusion concerning the submitted comments from W/J. For purposes of clarification, all of the comments submitted were comments from homeowners who will be directly impacted by this development and the precedent it sets for future development on other Tots in this subdivision. On page 2 of the transcript Mike Kraemer states that "the change to the envelope poses no issue." 4 disagree. This parcel is a 2.1 acre parcel that is visited by deer and large herds of elk for significant periods of time in the spring and fall of each year and, depending on weather conditions, sometimes in the summer and winter, as well. The building envelopes agreed upon by all parties in 2004 took into account several issues such as wildlife habitat and migration, view planes and impacts on neighbors. There are no topographic features on this parcel such as ravines, steep slopes or avalanche chutes that impose a burden or hardship on the applicant or give the applicant a valid reason to change the envelope to extend the structure beyond what was agreed on in 2004 by the applicant, the County, the Woody Creek Caucus and the W/J and White Star neighbors. The proposed house extends beyond the platted onlstrated any hardship that wing envelope on 3 of the ould s; to the west, south and north. The applicant has not justify an extension of the building envelope and has e of clarified e 2 how f the many tsranscripte feet it is asking to build beyond the originally platted envelop page ike Kraemer states that "a portion of the western side of than teappearse ts thalt the envelope gets of the southern part of the envelope gets amend 00002.:y amended a little bit up here to the north." What is a portion and a little bit? On page 4 of the transcript Tom Smith asks Patrick Rawley and Eric Rewinkel to clarify the areas of the residence that will extend beyond the boundaries of the original building envelope. Eric Rewinkel, the architect for the applicant, guesses that the master bedroom and master bathroom extend "about 10 or 12 feet." He guesses that the exercise room/future bedroom extends "approximately 10 feet outside of the envelope." Patrick Rawley believes that the garage extends "about 10 feet as well." On page 3 of the transcript, Patrick Rawley asserts that the activity envelope needs to be the entire site in order to accommodate storm water management, infrastructure, two bio- retention ponds, grading and landscaping. He then jumps to the conclusion that if the entire lot is the activity envelope, then the applicant is justified to build the house on any part or all of the lot, whichever it chooses. I strongly disagree. The 2 retention ponds on the lot were never considered part of the building envelope and there was never a requirement that all landscaping and grading must be contained within the building envelope. The fact that the two retention ponds were constructed outside of the platted building envelope demonstrates that. My understanding is that the only reason that the applicant has given for the building envelope to be extended in three directions is that the building envelope is not large enough to incorporate the house as designed. I also disagree with Patrick Rawley's assertion on page 4 of the transcript that it was anticipated that the building envelopes would be amended when a site specific development was submitted. The Board of County Commissioners in 2004 did not give any indication that the building envelopes as platted were i "conceptual." sales brochuhe e contrary. copy of which is attached, the previous owner of Lot 1, states that "all structures must be within the building envelope." Patrick Rawley further states on page 4 that the "building envelope as it was originally platted was rather small" Rather small? The originally platted building envelope is large enough to contain a house the size of the Pitkin County Courthouse. I do not believe there are many people, even in Aspen, that would consider that a rather small single family residence. Patrick Rawley's comments on page 7 of the transcript need clarification. He refers to a "berm that was created as a part of the original development of the subdivision." He also states that the berm was previously landscaped•"ePatrick in font of he Mcf7onougli's home and alsodoesn't know, that Lowe W/J ran out of dirt for the b the berm in front of my mine. While it is true that significant landscaping was done in or about 2005, approximately one half of the trees planted were Austrian pines g landscaping waslneverd by deer in a very short time after they were planted and the remaining watered. The ponds, connecting streams and pumping system were constructed at great expense but have never been operational. Thousands dollars � asth of trees were left we can reach withhoses e Those of us living here have kept as much of the landscaping from our homes but most of the landscaping has not survived and, therefore, will not mitigate impacts to the extent that was intended. Bob and Nancy McDonough's concerns about impacts of head lights on their home are well founded. On page 9 of the transcript Tom Smith grants permission to the applicant to hold in reserve the additional 1,000 square feet from the TDR that is not being used at this time to be used at some point in the future. He further grants permission for the applicant to use the additional 1,000 square feet without any further review from the County. This will not allow the neighbors to voice their concerns or for their concerns to be mitigated. Considering the fact that the proposed structure already extends beyond the originally platted building envelope, allowing an additional 1,000 square foot addition without any oversight should not be permitted. 1n addition to the issues raised during the May 20, 2014 hearing, 1 have additional concerns that I would like to present for consideration. A residence was constructed on Lot 2 and there is much to be learned from the mistakes that were made during the construction process. The owner of the property was unable to complete the construction in a reasonable time frame. Construction started and stopped many times and the property was left disturbed for several years. Dirt blasted our homes and our cars every time the wind blew. After an extremely drawn out and "painful" construction process, the house was eventually advertised for sale at auction. I, therefore, request that the County take whatever measures possible to prevent this from happening again. In conclusion, 1 request, for the reasons set forth above, that the decisions made by Tom Smith, as the Hearing Officer, at the May 20, 2014 hearing be reversed and that an alternative hearing officer be selected to conduct another hearing. Of the 11 units on the "upper bench" of the WI Subdivision, homeowners in 7 of the units expressed concerns about the pending application prior to the hearing and their concerns were not given fair consideration. Thank you for your consideration. Very truly yours, W ` Nina W. Ethridge Enclosures WHITE STAR ACREAGE TBD BYERS COURT & TBD BULLWINKLE PLACE, ASPEN COLORADO Located in one of Aspen's premier single-family development, and easy driving distance to Aspen, 5nowrnass and Woody Creek. This small Exclusive subdivision has exceptional views, ponds on every lot and borders perpetual open space. Underground utilities are in place and home sites are ready for building plan. MCLAIN FLATS 414111, ' 1 MASON MORSE REAL ESTATE 514 East Hyman Avenue, Aspen, CO 111611 www. masonmorse.0om Details' Byers Court &TBD STREET ADDRESS: TBD Builwlhkle Place, Aspen Colorado LEGAL DESCRIPTION: Lots 1 & 4, Piling 5 WIJ Ranch, Aspen Colorado, CITY: Aspen COUNTY: Pitkin Acreage: Lot 1 is: 2.04 acres Lot 4 is: 2.28 acres Prices: Lott $1,500,000 Lot 2: SOLD Lot 3: SOLD Lot 4: $1,500,000 Lot 5: SOLD MLS Numbers: Lot 1:120920 Lot 4: 120282 PROPERTY TAXES (2012) LOT 1: $39,355..16 LOT 4: $39,355.16 POSSESSION: Date of delivery of deed at closing Allowable Floor Area: Each lot is permitted a house size of 5,000 square feet. This may beexpanded to a maximum of 7,500 square feet upon'purchase of a Transferable Development Right, as provided in the underlying Approval Ordinance, miTaz Bob Starodoj Owner/CEO 970.920.7367 office 970.379.3346 cell bob@masonmorse.com Common Area: The lots have common ownership interest in open approximately 07 acres of adjoining permanent space, identified as Parcels A and 13 on the attached plan. In addition, upon annexation into the White Star Association they will share in common ownrship f an additional 195 acres of adjoining permanent space now held by that Association. Water: Domestic water is provided by the WIJ Metropolitan District which operates a water treatment plant and holds adjudicated well rights. There is an initial tap fee of $6,000, payable at time of house construction. In addition, the White Star Association holds for the benefit of all its members, including theselotsich, , water share of the Salvation Ditch Company, may be used for irrigation of the commonly owned open areas. 4Shares of the Salvation ded cated to h five lots in Filing 5 ofWUJ Ranch.a Sewer: Sewage is through individual septic systems to be constructed by each owner on each lot. Following construction, and as part of the one time tap fee of $5,000 noted above, the Metropolitan District assumes responsibility for maintenance and repair of the septic system. Architectural Control: All lots are subject to the covenants and architectural control of the White Star Home Owners Association Maximum permitted height is 25 feet to the root mid- pointfrom the lower of natural or finish grade_ See Seller for special conditions. Building Envelopes: These are identified on the attached plan. All structures must be within the building envelope. There is flexibility in moving the building envelopes, The county now requires a defined activities envelope which does landscaping t is anywhere n permitted appear on the plat Additional lot 'Walla r o in ual-te lon contained harsh Is deemed reliable. If Cannot ba guaranteed. Suited to ¢more, omissions, pry sale, rham5es or Withdrawal without Mike, ewned and operalad. NOTICE TO PROSPEC"71VE PURCHASERS: C dwell ¢blanker Mason from the Each office Is with a r e responsibility n lib . to represent the sailer's inlaresis. 'Equate footageof Improvements nwas ants. 2012 Coldwdl Ranker Real Estate LLC. A Reol¢gyCompany. of She Sa113rwllh a raspor�slb&icy this lnlormaVcn llau•ugh actual meaeuram Y 'ix' AssesRawl cicala, Itsna o and brokers are acting agents Assessors office. [County records ar¢ probably unreliable). Pruspectiva purchasers am advised fo very Fireplaces: No wood burning fireplaces are permitted. Gas fireplaces are allowed. Electric/Phone/gas/Cable TV: These services are provided by the local utility companies.• Ponds: • The ponds on each lot are to l,e maintained by the White Star Home Owners Association, subject to appropriate eminence assessments for each lot Landscaping Buffers: The identified landscape buffers surrounding the lots will be maintained by the White Star Association (via a maintained easement granted for that purpose) subject to appropriate assessments. Road Maintenance/Snowplowing: This service is also provided by the Metropolitan District as a component of monthly fees and annual taxes. 11.O.A Dues: $5,000/year1Lot Dogs: Dogs must be fenced or kenneled and eashed outside of such controlled areas. Trash Collection: This service is provided oft y the mop Metropolitan District as a comp and annuai taxes. ti Acre - o • I tips tior if **se 1%/1 rrtu? ; uhN1l, r UtAIRAP(i POWs. •� *w1M1...►M — m ••••, i.f.M Mre wi••• dry 'X7[ Key . �. Ir•w lwrlM.t•. �..,.. h•••.-.— ., • Land c•aape and Iteit'ege•talion Plan DATE HCVHIrat6 • M. r. PI imp _. CO Cr) CD Q 14 To the Pitkin County Hearing Officer, We emphatically object to the request to extend beyond the activity envelope for Filing 5 lot 1. The current proposal increases beyond the approved envelope an not just one side, but all four sides, with the majority extending and backing up closer to the APCHA houses on the west. The activity envelope was established to protect the character of the neighborhood and to decrease the likelihood of monster homes We vehemently request that the applicant adheres to the land use code as written for those reasons. We'd also like to request a mitigation of the driveway. As proposed, when cars drive into the home at night, the headlights will shine directly into our second story window. Your consideration in this would be greatly appreciated. Sincerely, Bob McDonough and Nancy Pearce 85 Upper Bullwinkle PL Aspen, CO 81611 000034 9/11/2014 (4894 unread) - ntrue2()03 - Yahoo Mail ' were Compose 4. <4 ♦ ®Delete b Move • Spam - ® More Inbox (4894) Drafts (2R( Sent Spam (30841 Trash (212) Folders (1094) Aspen Village (1) Car Accident Chamonix Cheerleading Chi Omega (12) College Sea... (9) Credit Report (4) CU Boulder (1) Denver Con... (40) Family (11) Friends (189) GA Tech (6) Graduation (3) Grievance Gymnastics Health Insurance Hockey James Music Lawsuit Life Insurance Lugano Che... (1) McDuffie Circle Medical (1) Mental Health Michele Nelson Bass Music Festival Pe nnsylvansa Personal (1) Photos Refinance WJ Resumes (1) Scholarships (432) Ski 5wap Taddune Of... (67) Travel (3) W-J Constr... (150) Wedding (65) Wells Fargo (97) > Recent Available an JOS and Android new home application W/J Garth Wilson Me Wayne Ethridge To whom it may concern, 4% x I am in total agreement with Wayne and Nina, Bob and nancy that it is not necessary for any enlargements of the building en'elape and height limits, there is plenty of room in the existing parameters to accomadate the necessary result aithart encroaching on other homeowners aeroplanes and right of ways Also this application can set a precedent for the other two lots that are not built yet In the last developernent approximately ten years ago berths and tree landscaping were never completed by the developer. this also needs attention thanks for looking Garth Wilson, upper W/J homeowner Reply. Reply All or Forward l More Home © Nina WSJ Get our white paper on healthcare mobility. DOWNLOAD ■ NOW i ERGOTIR (7 wruT Aat PEOPLE WHO GET IT' rrrlmnllyirvh7 � 5 fl1ridreirift=.rRCO7Q5 111 ATTACHMENT C September 12, 2014 Pitkin County SEP 1 2 2014 Community Development Pitkin County Board of County Commissioners c/o Michael Kraemer, Planner Pitkin County Community Development 130 S. Galena Street, 3rd Floor Aspen, CO 81611 Re: Lot 1. Filing 5. W/J Subdivision / Appeal of Nearing Officer Determination No. 05-2014 (Case Number P033-141 Commissioners: We represent Taylor Capital Ventures, LP (the "Applicant"). On May 20, 2014, the Pitkin County Hearing Officer, Tom Smith, conducted a properly noticed public hearing' and then approved Determination No. 05-2014 granting approval for the Applicant's single-family residence - a residence that will be 1,000 square feet smaller than the permitted maximum of 7,500 square feet within Filing 5 in the W/J Ranch Homes subdivision. This approval has now been appealed by the WIJ Homeowners Association pursuant to a very brief letter of appeal submitted on June 11, 2014. No one from the W/J Homeowners Association attended the public hearing. Instead, they submitted at the last moment a brief email chain in which a few members of the Association expressed concerns with the proposed residence. Nonetheless, as the hearing transcript shows, the Hearing Officer went to great lengths to consider the neighbors' concerns, doing his best to understand those concerns given that none of the neighbors were in attendance to explain their objections. Now the WIJ Homeowners Association has appealed the Hearing Officer's decision. The Association has two complaints. First, they contend Tom Smith had a conflict of interest and should have recused himself from considering the application. Second, they maintain that all building activity on the Applicant's property should be confined to the "building envelope" originally approved with the subdivision. This appeal is groundless, and could even be considered frivolous and abusive of the County's very generous and lenient appeal process. With minimal effort and virtually no participation in public hearing process, the appellants have succeeded in delaying the Applicant's project by months. Regarding the alleged conflict of interest, the first thing Tom Smith did in the hearing was disclose the potential conflict and explain why none existed. Regarding the Association's building envelope argument, Tom Smith performed a detailed 'analysis of the issues and ultimately concluded that the Applicant's proposal was appropriate and satisfied all County standards. This determination was well within his authority and is supported by the record in this matter. 1 A copy of the Affidavit of Notice and Mailing is attached to this letter as Attachment A. N.., V V V V 000036 Pitidn County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/J Subdivision September 12, 2014 Page 12 Standard of Review Understanding the standard of review on appeal is critical to the appeal process, Pursuant to Section 2-20-180 of the County Code, "[a]n appeal is not a de novo consideration of the merits of the development application." Put in plain English, an appeal is not supposed to be a new hearing on the application from the beginning where the Board of County Commissioners acts as if it were the Hearing Officer. Rather, an appeal is for the purpose of determining whether the Hearing Officer made a clear and demonstrable error, an abuse of discretion or denial of procedural due process. Put simply, the bar is high. An appeal should only be granted if Appellant can prove to you that the Hearing Officer made a clear error, not merely that you may have reached a different decision if you had conducted the original hearing instead of the Hearing Officer. Conflict of interest Issue Even though not raised by the neighbors at the public hearing, Tom Smith addressed his potential conflict of interest as the first order of business. After the normal introductions, he started the hearing by stating as follows: First for the record, 1 reviewed the application and noted that a prior owner's property and the original developer was Lowe W/J. Lowe W/J was a client of mine at some point in time many moons ago, or probably at least, well, prior to, as 1 recall, prior to the Counts approval of the development which provides the basis for this application. It is my recollection that 1 did not represent them al the Time that that approval went forward. In addition, Lowe W/J no longer has an interest in the property and has no, does not stand to gain or lose from the approval of this application, nor do 1. But I don't believe 1 have a conflict. I am not sure if anyone here wants to raise that issue but speak now, or forever hold your peace. So 1 am not hearing any concerns or objections on that basis. So we will proceed. After the appeal was filed, Tom Smith addressed the alleged conflict interest even more thoroughly in his letter of August 26, 2014. 2 This letter explains in detail, with references to applicable legal precedent, why no conflict of interest or improper bias or appearance of bias existed in this matter. In addition, Pitkin County has adopted a Standard of Conduct that defines when a conflict of interest is considered to exist for the Hearing officer.3 The relevant provision provides as follows: 2 This letter is attached as Attachment B of this letter. 3 This Standard of Conduct was adopted by Ordinance 28-02, as amended by Ordinance 002- . 2005 and Ordinance 044-2005 and is known as Policy 2.11. It is also codified in part in the Title 2 of the County Code. The Standard of Conduct is attached as Attachment C of this letter. 000037- Pitkln County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/J Subdivision September 12, 2014 Page 13 (The] County Hearing Officer shaft (not] vote or otherwise participate in a decision making process which affects any properly, asset, or entity in which he/she has a known significant financial interest or in which any member of his/her family has a known significant financial interest.... A County Hearing Officer may not hear a matter in which he/she or his/her family has a financial interest. In this case, it is clear from the record based on Tom Smith's own representations that he had no financial interest in the outcome of the decision. In addition, even if a conflict did exist, the method of enforcement for the Standards of Conduct is through sanctions levied by the Board of County Commissioners against the Hearing Officer and/or removal of the Hearing Officer. An alleged conflict of interest is not supposed to be considered in an appeal such as this as a basis for challenging the validity of a Hearing Officer decision. The relevant language from the Standard of Conduct reads: The County Attorney shall bring any alleged violation to the full Board of County Commissioners. The Board of County Commissioners may impose sanctions, up to and including removal of (the] County Hearing Officerf j, for violation of this Standard of Conduct.... [Al violation of this Standard of Conduct shall not be considered a basis for challenging the validity of a _.. County Hearing Officer decision, and shall not create any few/ rights for a private citizen. Finally, and as explained by Tom Smith in his letter of August 26, 2014, the neighbors waived their right to raise the conflict of interest issue by failing to object at the public hearing. The law on this matter is clear. The Colorado Supreme Court and Colorado Court of Appeals have held that if grounds for alleged disqualification are known but not raised at the lime of the hearing, they cannot be later raised to challenge the validity of the decision. See Youngs v. Industrial Claim Appeals Office, 316 P.3d 50 (Colo. App. 2013); People ex rel. A.G., 262 P.3d 646 (Colo. 2011); McClellan v. State, 731 P.2d 769 (Colo. App. 1986). The policy reasons for this are straightforward. If grounds for recusal are known but not raised, then the Hearing Officer is not given an opportunity to better address the concerns. It would further create an incentive for parties to sandbag - that is hold their tongues and then wait to see if they agree with the decision before deciding whether to ambush the Hearing Officer after the fact with an alleged conflict of interest issue. In this case, if any of the neighbors had bothered to attend the hearing they would have heard Tom Smith disclose and discuss the conflict issue as his first order of business. They could have objected at that point, or asked additional questions to get a further explanation of the issue. Because none of them attended the hearing and objected at that time, they have waived their right to object now. It is exactly this type of after -the -fact ambush and second guessing that Colorado courts have found inappropriate. So should you. 000033 Pitkin County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/J Subdivision September 12, 2014 Page 14 Building Envelope Issue The Applicant submitted a land use application for Site Plan Review, Minor Plat Amendment, and Special Review for a Transferable Development Right (TDR). The application illustrated that the proposed residence was sensitively sited and would utilized earth -toned materials that would be compatible with adjacent structures as well as blend in with the surrounding landscape. The design sought to minimize visibility from neighboring parcels and was intended to maintain the existing rural character of the immediate area. The application is included in the record and details the approval history for Filing 5 of the W/J Ranch Homes subdivision. There is no reason to rehash that history here, but there are few important things to know. Filing 5 of the W/J Ranch Homes subdivision created five free-market Tots for single-family residential developrnent. These lots were approved for homes with not more than four (4) bedrooms each and a GMQS exemption for 5,000 square feet of floor area that could be extended to 7,500 square feet with the purchase of a TDR. In addition, Filing 5 was originally plotted with what was then called "building envelopes." The term building envelope has since been replaced with the term Activity Envelopes in the current County Code. Activity Envelopes are intended to contain more elements than previously required with building envelopes. Under the current Land Use Code, which now governs Filing 5, essentially all development activities must be included in an Activity Envelope approved pursuant to Chapter 7 of the Code. The Applicant in this case sought approval to partially extinguish one (1) TDR to provide for a house of approximately 6,500 square feet. Most all of this house will be located in the original platted but superseded "building envelope." The objection of the neighbors appears to be based on the fact that a few small areas of the home will extend outside of the original building envelope. There is nothing in the Land Use Code that prohibits this and Tom Smith, after careful consider of the issues, had the authority to approve the Applicant's proposed home location and site plan. At the public hearing on May 20, 2014, Mr. Smith exercised great core to review the neighbors' emailed objection and used most of the hearing to attempt to discern and evaluate their concerns. Even with this careful review, the objection lacked specifics. As none of the parties named in the emailed objection were present at the hearing, Mr. Smith was not able to entertain additional comments nor to hear any clarification or explanation for the objection. Given the limited information he had, Mr. Smith did an admirable job of considering the neighbors' concerns. Specifically, Mr. Smith had the Applicant's representative prepare an overlay drawing showing how the proposed house was situated in relation to the original platted building envelope. Relevant parts of the hearing transcript read as follows: Tom Smith: Can you identify for me on this conceptual landscape plan where, what portions of the residence, which i guess is shown in gray scare here ... Pitkin County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/J Subdivision September 12, 2014 Page 15 Tom Smith: For the record, what we are doing here is highlighting the boundaries of the original building envelope and overlying the conceptual landscape plan to see if we can show ... (papers rusting) overlay the building envelope with the current proposed development plan for the property. Patrick Rowley: What l am trying to do is locate approximate locations. Tom Smith: Thank you, that is very helpful. All right. So. What we are talking about is this area here. Again, 1 understand this is off the cuff here. Right here it may be a little bit over here. All right, so why don't you tell me, either of you, what in these areas where it looks like you're going beyond the original building envelope, whether we're talking about just overhangs or what we're really talking about is roof. What kind of improvements are shown in those areas. Eric Rewinkel: Okay. This is the master bathroom right here. There's a small area outside the master bedroom. So this is master bedroom, master bathroom. Tom Smith: As part of the main structure of the house? Eric Rewinkel: Yes. Tom Smith: And how many feet are we talking about from this point, roughly? Eric Rewinkel: About 10 or 12 feet. Tom Smith: Alt right. Eric Rewinkel: And this is the exercise room/future bedroom. That's also approximately 10 feet outside of the envelope there. And then this is garage. Tom Smith: Okay. Patrick Rowley. It looks about 10 feet as well. Tom Smith: If 1 read these comments correctly, the concern seems to be backing up closer to the houses to the west. Can you identify where that would be? Patrick Rowley: There is a house ... this is the cell tower that was reference in one of them. And I believe there is a house on the other side of this berm located generally in this vicinity, I believe. So there is the cell tower. Tom Smith: I see. So it's these homes here? 33 040 Pitkin County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/.1 Subdivision September 12, 2014 Page 16 Patrick Rowley: This home is marginally visible. This home is a little bit more, but there is this separation of berm and also of ... What is that road? 1 don't remember. Tom Smith: Upper 8uffwinkle? Patrick Rawley: That's Upper 8ullwinkle that goes back to the cell tower. Toni Smith: is it possible to tell whether or not this residence would be visible from these homes? Mike, can you answer that? Mike Kraemer: l can't answer that. Tom Smith: However, it does look like in that direction ... Only this that extends further closer to them is this portion of the garage. is that right? Is that what we're seeing? Patrick Rawley: That's correct. And 1 would also add that this is an existing berm that was created as a part of the original development of the subdivision. Tom Smith: How high is that berm? Patrick Rowley: 75, approximately 4 to 5 feet. And that has been previously landscaped, as well. Tom Smith: Okay. Tom Smith: _.. Pm going to approve the application but 1 want to comment on the objections of W /J Metro District and if they get wind of this and ask me to reconsider, is fine, but my concern is not really from the legal side that they submitted their comments late, that's why you have public hearings, people can come in and comment. It certainly makes it more difficult for the applicant and planning staff to address concerns if they are not presented in advance of the hearing, but they are allowed to do that and 1 don't consider that to be a direct problem. However, it is difficult when they're not here to try to interpret and fully understand their objections and what they are based upon. The e-mails are pretty vague on that and the official determination from Jeff Pendarvis is simply that they approved an objection opposing changing the approved building envelope but it is more than apparent that given the fact that the County now requires the designation of an activity envelope, that 1 really can't possibly give them what they want, whether they have concerns at all, or not. We have to go to a larger activity envelope and they don't really address the need for that. The concern seems to be in the one addressed by Bob McDonough about the uu041 Pltkin County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/J Subdivision September 12, 2014 Page 17 development backing up closer to the houses to the west. I would note in that regard is that based on the preliminary overlay that we have here which, admittedly, does not have the refinement of a formal survey, the amount of development, that ! should say, backing up here, the home as proposed very little of it extends in the direction of those homes to the west and does not seem to me to be the basis for any significant impact upon, if any impact upon those neighbors. The portion of the garage points in that direction 10-15 feet and the other sides to the property, ! feel certain they will not be affected by, there are a few areas of minor development outside of the original building envelope. The activity envelope itself needs to be expanded not to accommodate the home, but to accommodate related improvements: infrastructure, water, sewer, whatever else needs to be done, the County requires the retention ponds, etc. need to be in the activity envelope. So that's what most of the current "development" outside the original building envelope is unrelated to the house itself. So, I don't see a reason to draw this out any further. The residents can ask me to reconsider if they are upset about it when they finally see it. I would ask the applicant to sit down with them and explain what is being proposed here because it doesn't seem clear to me that they understand the business of the activity envelope versus the building envelope and the minimal amount of development that is going to be beyond the original building envelope. The overlay that Tom Smith had the Applicant's representative prepare at the hearing and that is discussed in the above transcript excerpt is attached to this letter as Attachment D. In addition to the Hearing Officer's detailed deliberation and consideration of the neighbors' concerns, the Hearing Officer also had the benefit of the planning staff memorandum from Mike Kraemer. This memorandum is attached to this letter as Attachment E. It recommends approval of the application and confirms, with detailed citations, that the proposed development complies with all Land Use Code requirements and standards. What is more, at the request of the Tom Smith, the Applicant's representative agreed to contact any concerned abutters through the W/J Metropolitan District in order to discuss the proposed residence and to address any outstanding concerns. This outreach was performed through a letter to the Metro District on May 22 and a site visit on June 9, 2014. Despite the best efforts of the Applicant's representatives to engage the appellants and discuss potential mitigation efforts, this appeal was filed with the County. Denial of the Appeal There is no basis to grant the requested appeal in this case because there is no evidence to support the contention that Tom Smith made a clear and demonstrable error, an abuse of discretion or denial of procedural due process. First, he disclosed the potential conflict of interest issue and explained why none existed. Second, he bent over backwards to understand the neighbors' objections regarding the building envelope issue even though none of them showed up at the hearing to better explain their concerns. Pltkin County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/J Subdivision September 12, 2014 Page 18 But even if the Board were to look beyond the strict standard of review that should be applied in appeals, it would find That the approvals granted by the Hearing Office are consistent with all applicable County standards. The property does not contain areas of statewide interest, steep and potentially unstable slopes, water courses, drainage channels, areas subject to erosion, floodplain hazard areas, geological hazard areas, river and stream corridors and wetlands, irrigated lands for food or crop production, historic preservation areas, or archeological resource areas that would limit the County's ability to approve the requested Activity Envelope. Furthermore, the property is located in an area of low wildfire hazard and only standard wildlife habitat standards apply to the property. All site features, including the house, accessory structures, driveways, septic systems, storm water management facilities, and other features necessary to the functioning of the property, are required by code to be located within an Activity Envelope. The proposed Minor Plat Amendment amended the former Building Envelope to bring the proposed development into conformance with current code by locating all site features within an Activity Envelope. The creation of the Activity Envelope was not a variance, as one of the objection emails states, but rather a required amendment to bring a previously approved and superseded building envelope in conformance with current code requirements. The house proposed by our client is 6,500 square feet, or 1,000 square feet smaller than the house size allowed by the subdivision approvals. Statements made in the emails that the house is too big and out of scale with the lot are simply not true. The proposed residence compliments the natural topography, uses natural materials and coloring, is non -reflective in appearance, and will not be located near a ridgeline. Architectural exhibits showing the proposed materials and character of the house were provided with the application. As evidenced by the attached overlay considered by the Hearing Officer, the house only minimally extends beyond the original building envelope. The minimal amount the house lies outside the old building envelope will not impact neighbors, and will not be noticeable. Moreover, the house has been sited consistently where the old building envelope was originally located. In this way the house will meet the general intent of the original site planning developed in 2004. The berm and the existing plantings that were designed and installed as part of the subdivision approvals will remain and be enhanced on the western boundary of the properly and continue to provide for screening of the site for the properties to the west. As the Hearing Officer found, the impacts to the homes to the west will be very minimal. On behalf the Applicant, we respectfully ask you to deny this appeal, and we look forward to your consideration this matter at your upcoming hearing. 000043 Pitkin County Board of County Commissioners Appeal of Hearing Officer Determination No. 05-2014 Lot 1, Filing 5, W/J Subdivision September 12, 2014 Page 19 Thank you very much for your consideration of this matter. Very truly yours, 1_6....-?3t—e....R.-0-9-c: (--. --4A------11.-A-3,--9--I'''0.------ Patrick S. Rowley, AICP, ASLA Stan Clauson Associates, inc. J. Bart Johnson, Esq. Waas Campbell Rivera Johnson & Velasquez, LLP Attachments: Attachment A - Affidavit of Notice and Mailing Attachment B - Tom Smith letter of August 26, 2014 Attachment C - Pitkin County Standard of Conduct Attachment D - Site Plan Overlay generated at Public Hearing on May 20, 2014 Attachment E - Staff Memorandum from Mike Kraemer of May 20, 2014 Alk 000044 ATTACHMENT A Affidavit of Notice and Meeting 000045 County of Pitkin } } ss. State of Colorado } AFFIDAVIT OF NOTICE & MAILING PURSUANT TO PITKIN COUNTY LAND USE CODE SECTION 2-20-100 I3 Stan Clausal , being or representing an Applicant to the Pitkin County Development Permit, personally certify that I have complied with the public notice requirements pursuant to Section 2-20-100 of the Pitkin County Land Use Regulations in the following manner: 1. By mailing of notice, a copy of which is attached hereto, by first-class, postage prepaid U.S. Mail at least 30 days prior to the public hearing to all owners of property within 300' to the subject property, as indicated on the attached list, on the 15th day of April , 2014 (which is 35 days prior to the public hearing date of 213 614Y 2014 ). The names and addresses of the adjacent property owners shall be those on the current tax records of Pitkin County as they appeared no more than 60 days prior to the public hearing. 2. By mailing of notice, a copy of which is attached hereto, by first-class, postage prepaid U.S. Mail at least 30 days prior to the public hearing to the owner(s) of the mineral estate underneath the subject property, as indicated on the attached list, on the 15th day of April , 2014 (which is ss days prior to the public hearing date of 20may 2014 ). The names and addresses of the mineral estate owners shall be those on the current tax records of Pitkin County as they appeared no more than 60 days prior to the public hearing. 3. By posting a sign in a conspicuous place on the subject property (as it could be seen from the nearest public way) on the 30 day of April , 2014, which is at least fifteen (15) days prior to the public hearing. A photograph of the posted sign is attached hereto. Eastwood Star Masa LLC Applicant's note . (Attach photograph here) PATRICK $. RAWLEY NOTARY PUBLIC STATE OF COLORADO NOTARY Exp July 28, �2018 b kountyiadrainliormslif Tsui Signature Signed before me this t* day ofMaY 20 14by • Stan Ciauson WITNESS MY HAND AND OFFICIAL SEAL My commission expires: N2612016 Patrick S. Rawley Notary Public Notary Public's Signature 000046 STA'i CLAUSCN ASSOCIATES ES I`�C landscape architecture. pion ping. resort design 412 North MIll Street Aspen, Colorado 8t6it 1.97o/925-2323 r• 970192o-1628 infoescap1anning.com www.scaplanning.com 12May 2014 Mr. Michael Kraemer Pitkin County Community Development Department 130 S. Galena Street, 3rd Floor Aspen, CO 81611 Re: 125 Bvers Court / Research of Mineral Estate Owners Dear Mike: On behalf of our client, Eastwood Star Mesa LLC, and in connection with the application for Site Plan Review, Minor Plat Amendment, and Special Review for a Transferrable Development Right, we have performed the public notice requirements as required by Sec. 2-20-100 of the Pitkin County Land Use Code. Among the requirements contained in Sec. 2- 20-100(a)(4)(b) and the instructions provided on the Public Notice provided by your office is the requirement to notify affected mineral estate owners by certified mailing at least thirty (30) days prior to the date of the public hearing. Sian Clauson Associates, Inc. has researched the existence of mining claims or possession deeds dating to the late 19th century with the Piikln County Clerk and Recorder's records (the "Public Records") and using the Title Commitment issued by the Land Title Guarantee, order number Q64000037-5, issued to Taylor Capitol Ventures, L.P. The title commitment shows two (2) United States Patents recorded at Book 55, Page 501 and Book 55, Page 163 of the Pitkin County Clerk and Recorder's office issued to the heirs of Alexander Cruikshank and Edward Gray respectively. These patents granted the right of the proprietor of a vein or lode to extract and remove ore. A review of the Public Records does not identify any Mineral Deeds or Mining Deeds relating to the property nor can a successor be located for these patent holders to send a public notice. This letter is submitted to you to confirm our good -Faith attempts to locale a list of mineral estate owners. Please call me with any questions. Very truly yours, 1, Stan Clauson, A1CP, ASLA STAN CLAUSON ASSOCIATES, INC. Signed before me this 12th day of May, 2014 by Stan Clauson. WITNESS MY HAND AND OFFIC • L SE " L MY COMMISSION EXPIRES: 34 aof (` 123 Tg2-tctc (��r�-v-G Notary Public 11 Notary Public's Signature PUBLIC NOTICE RE: Taylor Capital Ventures LP Site Plan Review, Minor Plat Amendment, and Special Review for a Transferrable Development Right (TDR) (CASE P033-14) NOTICE IS HEREBY GIVEN that a public hearing will be held on Tuesday, May 20, 2014 to begin at 3:00 P.M., or as soon thereafter as the conduct of business allows, at the Library Meeting Room, 102 North Mill Street, Aspen, before the Pitkin County Hearing Officer, to consider an application submitted by Eastwood Star Mesa LLC (133 Prospect Road, #4102, Aspen, CO 81611) requesting Site Plan approval for construction of a single family residence and use of a TDR on a vacant lot. The property is located at 125 Byers Court and is legally described as Lot 1, Filing 5, WI. Ranch Subdivision. The State Parcel Identification Number for the property is 2643-223-03-001. The application is available for public inspection in the Community Development Department, City Hall, 130 S. Galena St., Aspen, CO 81611. For further information, contact Mike Kraemer at (970) 920-5482. s/Tom Smith Pitkin County Hearing Officer Published in The Aspen Times Weekly on April 17, 2014. Attention ApplicantlRepresentative: It is your responsibility to do the following: 1. Mail this Public Notice to all adjacent property owners and mineral estate owners at least 30 days prior to the hearing with the return address of the Community Development Department. The names and addresses shall be those on the current tax records of Pitkdn County as they appeared no more than 60 days prior to the date of the public hearing 2. Submit the Affidavit of Notice (Code Section 2-20-100) by Posting & Mailing (previously sent to you with your applicant letter) as proof of compliance with the Code at the hearing. 3. Pick up Public Notice sign from the Pitkin County Community Development Department, 130 South Galena Street, Aspen, CO (970) 920-5526 4. Post the Public Notice sign on the property at least fifteen days (15) prior to the hearing 5. Remove the Public Notice sign within one week after hearing date http://www.aspenpitkin.com/Portals/0/docs/caunt:y/Coml20Dey/Planni ng/Land Use Applications/P033 14 app.pdf 00004'3 iP • tra 1-1,11:11tt IZII))41tr: '1. 0140.1:1.1y 1iOii 1j1..1.:.:111 111. , : ,r .t , • • , i • • • ' - unlink() Easy Peat. Labels - Use Avery0 Template 5160 101 BYERS COURT LLC 7 LAGOMAR RD PALM BEACH, FL 334805101 KIRBYNICHOLAS P PO BOX 2069 ASPEN, CO 81612 RIZZUTO ELLYN PO BOX 418 WOODY CREEK, CO 81858 WMJ LOT 3 LLC PO BOX 8856 ASPEN, CO 81612 it1quettes fades a paler Utllisez le 9abarit AVERY® 5160® 1 A • A ® Bend along' Mato Feed Paper mom"' expose Pop•up Edge;++ 1 COVINGTON AMY PO BOX es WOODY CREEK, CO 81656 A ERYw 5160 11 • DANGLER MEGAN L & DANIEL E JR PO BOX 8443 ASPEN, CO 81812 MCDONOUGH ROBERT P PEARCE NANCY D ,- PO BOX 11689 812 VINE ST ASPEN, CO 81812.9478 ASPEN, CO 81811 STARODOJ ROBERT F & PAULA A PO BOX 1121 ASPEN, CO 81612 WSJ METRO DIST PO BOX 231 WOODY CREEK, CO 81006 Sea de chargement NOW b to hachure eiin de I reveler la rebord Pap-upw A VARDY ITXHAK& DAHLIA PO BOX 8064 ASPEN, CO 81812 WHITE STAR RANCHES HOA PO BOX 290 WOODY CREEK, CO 818880298 uvww,averyccom I 1-800•Gfl AVERY i 300ft EASTWOOD STAR MESA LLC N a 107.5 215 W+E � � l Feet This nrap/drewingdmage is a graphical representation of the features depicted and is not a legal representafan. The accuracy may change depending on the enlargement or reduction. %Arne STAR RN4CHES HOA Copyright 201avmi4 As�enJPiedn GIS t+,m+u xu caassw:p+ILVeninsaaq,t..e.oaesene...L.cr-eraa 1 4 ATTACHMENT B Tom Smith Letter of August 26, 2014 000052- - - AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law 60o E. Hopkins Avenue Suite 205 Aspen, Colorado 8i611 Frederick F. Peirce Thomas Fenton Smith Daniel J. Sullivan attorney@pitkincounty.com John M. Ely, Esq. Pitkin County Attorney 530 E. Main Street Aspen, CO 81611 Dear John: Telephone: (970) 925-260o Facsimile: (970) 925-4720 Email Addresses: fpeirce@aps-pc.com tarnith@aps-pc.com dsullivan@aps-pc.com August 26, 2014 Re: Taylor Capital Ventures, LLC — Application for Activity Envelope, Site Plan Review, and TDR Receiver Site On May 20, 2014, acting as Pitkin County Hearing Officer, I approved the above - referenced application. After the hearing record was closed and my determination issued, W/J Metropolitan District appealed the Determination based on an alleged conflict of interest. You have requested information from me as to my position on this issue. This letter responds to that request. I. In reviewing the application, I noted that Lowe W/J, LLC, was the original developer of the subdivision where the subject lot is located. This occurred about ten (10) years ago. I represented Lowe W/J in connection with this application, although it is my recollection that this representation terminated before all of the doeumentation was completed. 2. At the public hearing on May 20, 2014, I disclosed the prior representation, The issue was not raised by a party; no one present objected to my proceeding to consider the application. To that extent, I do not believe that the issue was preserved for appeal. See, e.g., McClellan v. State, 731 P.2d 769 (Colo. App. 1986). Nevertheless, it is important to explain the basis for my proceeding to consider the application in light of my prior representation of the original developer, now that the issue has been raised on appeal. 03&053 AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law John M. Ely, Esq. August 26, 2014 Page 2 3. Neither Lowe, W/J, LLC, nor I have any interest in the outcome of this application, financial or otherwise. To that extent, I view the issue to be not one of conflict of interest but rather of bias based on the prior attomey/clieat relationship. 4. A substantial showing of personal bias is required to disqualify a hearing officer, and the party claiming bias must overcome the presumption of honesty and integrity. Due process is violated only when the risk of unfairness is intolerably high, and there must be some substantial countervailing reason to conclude that the hearing officer is actually biased with respect to the factual issues being adjudicated. Riggins v Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009). 5. Lowe, W/J, platted the subdivision ten years ago. It no longer has an interest in the subject property. At issue in this case is the lot owner's right to use a TDR for additional FAR above 5000 sq. ft. This reflects a condition of subdivision approval, accepted by Lowe, W/J, just as it was accepted by Pitkin County. Just as Pitkin County's imposition of the condition does not predispose the County to grant this application, Lowe W/J's acceptance of the condition did not predispose me, as Lowe's former attorney, to grant the request. The basis for my determination to approve the application is included in the transcript of the hearing and I do not believe it reflects a bias. I did not prejudge this application. 6. The involvement of a hearing officer in earlier proceedings in the same case does not overcome the presumption of honesty and integrity. Hicks v. City of Watonga, 947 F.2d 737, 748 (10th Cir. 1991). This application is not even the same case as the one in which I was involved ten years ago. 7. I understand the importance of fairness in the matters in which I preside as Hearing Officer. I have disqualified myself from several applications without being requested to do so in order to avoid the appearance of a conflict. In this case I did not have any actual bias, and I did not believe, based upon the law as discussed above, that there were any objective facts to demonstrate an appearance of impropriety. Please let me know if you require any further information. Very truly yours, AUSTIN, PEIRCE & SMITH, P.C. By: GSA" - Thomas Fenton Smith F kFdos M-21PIt1 INCOUo1x+M. By. Do Ltr&Z6.14 ooe 00054- ATTACHMENT C Pitkin County Standard of Conduct 000055 STANDARD OF CONDUCT FOR PITKIN COUNTY PUBLIC OFFICIALS ADOPTED BY ORDINANCE 28-02 AMENDED BY ORDINANCE 002-2005 AMENDED BY ORDINANCE 044-2005 Applicability - The standards contained herein apply to the following: A. Board Members, which include: 1. Members elected to the Board of County Commissioners 2. Members appointed to Volunteer Citizen Boards by the Board of County Commissioners B. Section Leaders appointed by the County Manager C. The County Manager, the Open Space and Trails Director, and the County Attorney D. County Hearing Officers The term "Public Officials," when used in this document, refers to Section Leaders appointed by the County Manager, Board Members, the County Manager, the Open Space and Trails Director, the County Attorney, and County Hearing Officers. Preamble The citizens of Pitkin County are entitled to fair, ethical and accountable local government that earns the public's confidence in the integrity of Public Officials. In keeping with Pitkin County's commitment to the public trust, the effective functioning of democratic government therefore requires that: Public Officials respect the laws and policies affecting the operations of government; Public Officials be independent, impartial and fair in their judgment and actions; • Public office be used for the public good, not for personal gain; and • Public deliberations and processes be conducted openly, unless legally confidential, in an atmosphere of respect and civility. The primary responsibility of the members of the Board of County Commissioners is to establish the overall policies for the County and to exercise the powers, duties, and functions of the County in compliance with applicable law and the Home Rule Charter, through action at regular and special meetings and other job -related duties and functions. The primary responsibility of the members of the various Citizen Boards is to exercise the duties and responsibilities vested in each board through formal action of that Citizen Board at regular and special meetings. t000050 The primary responsibility of County Section Leaders is to develop, communicate, and implement organizational policies. to recommend public and budgetary policies to the Board of County Commissioners and to implement policies of the Board of County Commissioners. The primary responsibility of County Hearing Officers is to provide contract services to the County to conduct judicial or quasi-judicial proceedings on various County matters. All Public Officials must understand, respect, and value the job, the organization, the employees, the citizens, and the common public interest. To this end, the Pitkin County Board of County Commissioners has adopted a Standard of Conduct for Public Officials to assure public confidence in the integrity of local government and its effective and fair operation. 1. Act in the Public Interest Recognizing that stewardship of the public interest must be their primary concern, Public Officials will work for the common good of all the people of Pitkin County, and will assure fair and equal treatment of all persons, claims and transactions coming before Pitkin County Boards. 2. Conduct of Public Officials The professional conduct of Public Officials must be of the highest standard. Public Officials shall be dedicated to the highest ideals of honor and integrity in order to merit the respect and confidence of the public. Public Officials shall comply with the laws of the United States, the State of Colorado and Pitkin County in the performance of their public duties. These laws include, but are not limited to: The United States and Colorado constitutions; the Pitkin County Home Rule Charter; laws pertaining to conflicts of interest, election campaigns, financial disclosures, employer responsibilities, open processes of government; and County ordinances and policies. 3. Respect for Process Public Officials shall perform their duties in accordance with the processes and rules of order established by the County Commissioners governing the deliberation of public policy issues, with meaningful involvement of the public, and through implementation of policy decisions of the Board of County Commissioners by staff. 4. Conduct of Public Meetings 000057 Public Officials shall prepare themselves for public issues, listen courteously and attentively to all public discussions before the body, and focus on the business at hand. Public Officials shall base their decisions on the merits and substance of the matter before them. 5. Communication Public Officials shall publicly endeavor to share all relevant information regarding a matter under consideration that they may have received from sources outside the public decision -making process. Board Members and County Hearing Officers involved in quasi-judicial land use decisions or other judicial or quasi-judicial decisions shall disclose any such communications at the public hearing or public meeting. After an application has been submitted to the County, Board Members and County Hearing Officers shall not intentionally engage in communications with interested parties regarding issues upon which they must make a judicial or quasi-judicial decision at a public meeting or public hearing. Judicial or quasi-judicial decisions are those for which there is a specific applicant (or appellant) requesting a decision from the Board Members or Hearing Officer, based upon specific facts to be considered at the hearing or meeting and made a part of the record. 6. Conflict of Interest Conflicts of interest can occur both from private interests and from institutional interests. A. Private Conflicts of Interest: The following public officials are subject to the conflict of interest provisions in the Pitkin County Home Rule Charter: County Commissioners, County Manager, Assistant County Manager, Community Development Director, County Attorneys and the Open Space and Trails Director. For other Section Leaders not subject to the Home Rule Charter provisions and for Volunteer Citizen Board members and County Hearing Officers the following conflict of interest policy shall apply. A conflict of interest is a disparity between the private interest and the official responsibilities of an individual in a position of trust in government. This policy is intended to prevent conflicts of interest without obstructing fair and speedy resolution of issues that come before the County. No Section Leader, Citizen Board Member, or County Hearing Officer shall vote or otherwise participate in a decision making process which affects any property, asset, or entity in which he/she has a known significant financial interest or in which any member of his/her family has a known significant financial interest. Family is defined as spouse, parent, brother, sister, grandparent, child, grandchild, step -child, step-parent, step - grandparent, mother-in-law, father-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, or any individual who is a part of the Section Leader's, Citizen Board Member's, or County Hearing Officer's immediate household. Any Section Leader or 000058 Citizen Board Member otherwise barred from participating in a discussion pursuant to this section may, if requested by his/her respective Board or the County Manager, give information about the issue in which he/she or his/her family has a financial interest. A County Hearing Officer may not hear a matter in which he/she or his/her family has a financial interest. This prohibition, and the prohibition on institutional conflicts in paragraph 6B, shall not prevent Section Leaders from performing their work for the County, so long as any financial or institutional interest held by a Section Leader is not in conflict with the common public interest, and is disclosed to the County Manager or, in the case of the County Manager, to the Board of County Commissioners. The County Manager has the discretion to direct a Section Leader to refrain from participation when a conflict exists. If an issue arises in which a Volunteer Board Member believes he/she may have a either a private or an institutional conflict of interest, he/she must disclose that potential conflict of interest to his/her respective board and the County Attorney for an opinion on the validity of the conflict. If determined to be in conflict regarding the issue before him/her, he/she will refrain from participation as a Board Member in the decision -making process or voting on that issue. A Board Member may vote on an issue notwithstanding the conflict only if his/her participation is necessary to obtain a quorum or otherwise enable the board to act. If an issue arises in which a Section Leader believes he/she may have a conflict of interest, he/she must disclose that potential conflict of interest to the County Manager for an opinion on the validity of the conflict. If determined to be in conflict regarding the issue before him/her, he/she will refrain from participation in the decision -making process or voting on that issue. If an issue arises in which a County Hearing Officer believes he/she may have a conflict of interest, he/she must disclose that potential conflict of interest to the County Attorney for an opinion on the validity of the conflict. If determined to be in conflict regarding the issue before him/her, he/she will be disqualified from acting as Hearing Officer on that matter. B. Institutional Conflicts of Interest. An institutional conflict of interest occurs when a Public Official is a member of a board, group, or organization that is requesting action from the Public Official or the Board of County Commissioners of Pitkin County or volunteer citizen board of which the Public Official is a xnember, and the action requested provides a benefit to the board, group, or organization that is different from the common public interest. No Public Official shall vote or otherwise participate in a decision making process requested by a board, group, or organization of which he or she is a member when an institutional conflict of interest exists. The process for handling these institutional conflicts are the same as expressed in this Standard of Conduct for handling private conflicts. Institutional conflicts of those Public Officials subject to the Home Rule Charter provisions on conflicts are governed by the Home Rule Charter process. 00005 �'- 7. Gifts and Favors Public Officials shall not take any special advantage of services or opportunities for personal gain, by virtue of their public office. They shall refrain from accepting any gifts, favors or promises of future benefits which might compromise their independence of judgment or action or give the appearance of being compromised. Acceptance of nominal gifts in keeping with special occasions, meals and refreshments in the ordinary course of business, or social courtesies, which promote good public relations and encourage participation in community events, is permitted. 8. Confidential Information Public officials have a duty and obligation to promote what should be public and a duty and obligation to protect what should be confidential. Public Officials shall respect that certain information concerning the property, personnel or affairs of the County is confidential. They shall neither disclose confidential information, nor use such information to advance their personal, financial or other private interests without prior authorization from their respective boards. 9. Use of Public Resources Public Officials shall not use public resources not available to the public in general, such as County staff time, equipment, supplies or facilities, for personal gain. 10. Representation of Private Interests In keeping with their role as stewards of the public interest, Board Members shall not appear before their own boards or before the Commissioners on behalf of the private interests of third parties on matters related to the areas of service of their boards. 11. Advocacy Board Members shall represent the official policies or positions of their Board to the best of their ability when designated as delegates for this purpose. When presenting their individual opinions and positions, Board members shall explicitly state they do not represent their body or Pitkin County, nor will they allow the inference that they do. 12. Policy Role of Public Officials Public Officials shall respect and adhere to the Board -Manager structure of Pitkin County government as outlined by the Home Rule Charter. In this structure, the Board of County Commissioners determines the policies of the County with the advice, information and analysis provided by the public, boards and commissions, and County staff. 13. Independence of Boards and Hearing Officers 0 0060 rr-, Because of the value of the independent advice of Volunteer Citizen Boards and County Hearing Officers to the public decision -making process, members of Board of County Commissioners shall refrain from using their position to unduly influence the deliberations or outcomes of appointed board or hearing officer proceedings. 14. Positive Work Place Environment Public Officials shall support a positive and constructive work place environment for County employees and for citizens and businesses dealing with the County. Any single Board Member should not give direction to staff, but after a decision of the majority of the Board present at a meeting, the request can then be forwarded to the County Manager, or to the applicable staff liaison for Citizen Boards, to give staff direction. However, individual board members may seek information directly from staff, which will then be distributed to all board members. If a Board Member has a request that is of a magnitude that disrupts the normal workflow of a County employee, the request shall go through the County Manager. This section shall not be construed to prohibit the County Manager or staff liaisons from obtaining direction from Board Members in emergency situations when a meeting cannot be held before some action is necessary. 15. Bylaws All Volunteer Citizen Boards shall adopt bylaws. These bylaws must be approved by resolution of the Board of County Commissioners. 16. Absenteeism Members of the Board of County Commissioners shall make every effort to attend all scheduled meetings. If they are unable to attend any meeting they shall advise the County Manager. Each Volunteer Citizen Board shall recommend its own absenteeism policy and include this policy in its bylaws. All Citizen Board members shall comply with their respective Board's absenteeism policy. 17. Implementation The Pitkin County Standard of Conduct is intended to be self -enforcing and shall be included in the regular orientations for new board members, and newly elected and appointed officials and Section Leaders. In addition, the Standard of Conduct shall be reviewed by the Board of County Commissioners to consider recommendations and to update it as necessary. 18. Compliance and Enforcement 000061 The Pitkin County Standard of Conduct expresses standards of ethical conduct expected for members of the Pitkin County Commissioners, Volunteer Citizen Boards and Section Leaders. Public Officials themselves have the primary responsibility to assure that ethical standards are understood and met, and that the public can continue to have full confidence in the integrity and effective functioning of government. Any Board Member may notify the Board of County Commissioners, through the County Attorney, when actions that appear to be in violation of the Standard of Conduct are brought to their attention. The County Attorney shall bring any alleged violation to the full Board of County Commissioners. The Board of County Commissioners may impose sanctions, up to and including removal of members of Volunteer Citizen Boards and County Hearing Officers, for violation of this Standard of Conduct. The Board of County Commissioners may impose sanctions on Commissioners whose conduct does not comply with the County's ethical standards, such as reprimand, public or private censure, loss of seniority or committee assignment, or budget restriction. The imposition of sanctions on any Board Member requires the unanimous approval of the full Board of County commissioners, except for any Commissioner who is the subject of the proposed sanction. Unless prohibited by law, deliberations and consideration of sanctions, if any. shall be conducted at a public meeting. County staff subject to this Standard of Conduct may be subject to disciplinary action by his/her supervisor, up to and including termination of employment for violation of this Standard of Conduct. Except as provided in the Home Rule Charter, a violation of this Standard of Conduct shall not be considered a basis for challenging the validity of a County Commissioner, Volunteer Citizen Board, or County Hearing Officer decision, and shall not create any legal rights for a private citizen. This section on sanctions does not supersede the provisions of the Home Rule Charter, and in the event of any conflicts between this Standard of Conduct and the Home Rule Charter, the Home Rule Charter prevails. 030062 ATTACHMENT D Site Plan Overlay generated at Public Hearing on May 20, 2014 000063 - ATTACHMENT E Staff Memorandum from Mike Kraemer at May 20, 2014 00 p 61 MEMORANDUM TO: Tom Smith, Pitkin County Hearing Officer FROM: Mike Kraemer, Planner RE: Taylor Capital Ventures, LP Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment DATE: May 206, 2014 REQUEST: The Applicant requests Site Plan Review for construction of a single family residence of up to 7,500 square feet of floor area on a vacant lot. APPLICANT: Taylor Capital Ventures, LP OWNER: FAst Starwood Mesa, LLC REPRESENTATIVE: Patrick Rawley, Stan Clauson Associates, Inc. LOCATION: Off Byers Ct. Lot I, Filing 5, W/J Ranch Subdivision. ZONING/LOT SIZE: The Lot contains approximately 2.1 acres and is located in the RS-20 zone district. 2011 AERIAL MAP — Lot highlighted in orange Page 1 of 7 00t 085 BACKGROUND AND EXISTING CONDITIONS: The subject parcel is located off Byers Ct. within the BOCC approved W/J Ranch Subdivision. The Lot is currently undeveloped and was created and is part of the W/J Ranch Subdivision approved in 2004. Pursuant to BOCC Resolution No. 53-2004, building envelopes were established and the Lot is approved up to 5,000 square feet of floor area. Additional floor area above this amount requires use of a TDR. The resolution also imposed a maximum floor area of 7,500 square feet for the Lot. REFERRAL AGENCIES: The application was referred to the White Horse Springs HOA, the Aspen Fire Protection District, and Woody Creek Caucus. The Caucus commented and had no objections to the application. SPECIFIC REQUEST: The Applicant is requesting to apply one (1) TDR of 2,500 square feet of floor area to construct a 6,500 square foot residence. It has been stated that the remaining 1,000 square feet will be reserved for a future addition. STAFF COMMENTS: SITE PLAN AND ENVELOPE AMENDMENT REVIEW The Applicant has requested site plan approval and an amended envelope. Almost the entirety of the proposed residence is located within the previously approved platted building envelope for the W/J Ranch Subdivision. The amended envelope will contain the driveway, utility extension, septic field, and ponds. The amended envelope poses no Chapter 7 constraint issues and current low wildfire conditions will be applied if a resolution is approved. This request requires a review of: (1) placement of development within an approved activity envelope; (2) development within a scenic view protection area pursuant to section 7-20-120(d); (3) location of structures in accordance with rural character building guidelines pursuant to section 7-20-120(e); (4) landscaping and vegetation protection pursuant to section 7-20-130; and (5) lighting in accordance with section 7-20-140. SCENIC VIEW PROTECTION: standards are designed to minimize the visual impact of new development when viewed from designated road corridors. Section 7-20-120(d) addresses standards for development within a Scenic View protection area. Byers Ct is located just off McLain Flats Road, a dr ignated scenic corridor. The proposed residence will not be located such that it will project above a ridgeline, and will be required to comply with the following: 1. The proposed development shall utilize existing topography and natural vegetation, such as ridges, hills, and existing trees. to screen buildings to the maximum extent practicable when vieited frotn those right-of- ways listed above. Response: Topography exists to screen the development from McLain Flats Road. There is limited vegetation on site to obscure the future residence's view. 2. The proposed development shall avoid the location of structures within the Scenic View Protection Areas, and shall avoid the location of structures within any Vienplane identified in the State Highway 82 Corridor Master Plan and Down Valley Comprehensive Plan, if possible. If location outside the Scenic View Protection Area and defined Viewplanes is not practicable, then the proposed development shall not be located on the highest ground or most visible portion of any site as viewed from those corridors. Response: The property is within a Scenic View Protection Area, but it is not within an identified Viewplane. The Applicant has avoided the most visible portion of the lot. Page 2 of 7 000066 3. The proposed development's height and bulk shall be designed to avoid, to the maximum extent practicable. the visibility of buildings from those corridors listed. This may include, but shall not be limited to, breaking down the mass of the building doxn into a series of small farms, articulation of the building facades to avoid a titrtll or row effect, and staggering roojlines to avoid a long unbroken plane. Response: The facade and roof lines of the building have been staggered to break up the view plane, if visible. 4. The proposed structure shall be placed so it does not project above a ridgeline such that a structure silhouettes against the sAy m'hen viewed from those corridors listed in subsection (b), unless there are no alternate building sites on the lot or parcel. Response: The proposed residence will not project above a ridgeline such that the structure is silhouetted against the sky when viewed from McLain FIats Road. 5. The proposed development shall be designed to complement the natural topography of the land through the use of techniques such as earth sheltered design, the use of natural materials and coloring, the use of low -reflectance materials, or clustering of structures on the least visible portions of the site. When a building is proposed near a ridgeline, then its form (particularly its roof form) shall replicate, parallel, or complement the natural fornt of the ridgeline so that it appears to be an element of the natural ridgeline. Response: The proposed residence is designed to minimize the visual impact. Earth -sheltered design is not possible given the flat topography. b. The proposed development shall preserve natural vegetation and avoid development within irrigated meadows, to the maximum extent practicable. Response: There is little to no natural vegetation on the site and there is no irrigated meadows on the property. The Site Plan shows trees will be planted on the western property line to screen development. 7. The proposed development shall install utilities in locations and through procedures that minimize visual impacts to the maximum extent practicable. Response: All new utilities shall be placed underground. 8. All satellite dishes in the proposed development shall be located to minimize visibility from those rights-of- tittiy listed in subsection (b), and shall use earth tone colors and/or screening to minimize their visual impact. Response: All future satellite dishes shall conform to these standards. 9. The proposed development shall not use earth moving and berms as the primary means of compliance with these regulations, hut earth moving may be utilized in conjunction with other techniques to comply it th standards in this section. Where earth moving techniques are necessary, man-made fans should be undulating and natural in appearance. Response: No free standing berms are proposed with the development. 10. In the Rural Areas only, development shall be located so that activities and development occur in at least one of the specified in subsection (e) as they may apply to the particular property. Response: The parcel is located in the rural area of Pitkin County and is about 2.1 acres in size. These guidelines are not directly applicable to the site; the parcel does not contain an open meadow or pasture, has limited change in natural topography, and has a designated building envelope where the future residce will be located. Page 3 of 7 up0,6-7- 11. The exterior of all development shall be built or painted with indigenous earth tone materials or colors, Response: Indigenous earth -toned colors and non -reflective materials will be conditioned. 12. All roofs shall have a non -reflective color or composition. Reflective roof materials shall not be used unless the materials are treated prior to installation to eliminate reflection, with the exception of materials associated xith solar or photovoltaic equipment. Response: Only non -reflective, earth toned materials will be used. 13. Lands disturbed by earthrnoving or beans should be re -vegetated using native species that are already growing on or near the site. Topsoil shall be stockpiled and places on disturbed areas. Irrigation shall be provided to the re -vegetated areas if it is necessary to ensure the survival of planted native species. Response: A re -vegetation plan using native species to the area shall be submitted as part of the landscape plan prior to building permit submittal. 14. To the maximum extent practicable. Roads and driveways shall be located to skirt the edge of and avoid dividing meadows and pastures to avoid major road cuts. Roads and driveways should take advantage of the screening potential of natural topography and existing vegetation. Existing roads and driveways shall be used where practical. To enhance screening a row of trees may be planted along the roads or driveways. To the maximum extent practicable roads and drivemtys located around the edge of or in meadows shall be laid out ivith soft, curving edges and shall avoid straight line corridors that are incongruous with the natural setting. Response: The existing access off Byers Ct. will be used. RURAL CHARACTER BUILDING GUIDELINES: Land Use Code Section 7-20-120(e) provides rural character guidelines for building location: Response: The proposed residence has utilized these guidelines (see above) by clustering development in the immediate vicinity of the existing residence. LANDSCAPING AND VEGETATION PROTECTION: Land Use Code Sec. 7-20-130 is intended to preserve existing vegetation on a development site to the maximum extent possible. Response: The existing vegetation on the parcel is primarily low-water trees and shrubs. Landscape plantings include conifers. No berms have been proposed and all proposed landscaping will be required to comply with the Code. LIGHTING: The Applicant has committed to compliance with all Pitkin County lighting standards. ACCESS: Access to the residence will be taken from McLain Flats Road, to Byers Ct. SEWER AND WATER: Water for the residence will be provided by the WIJ Metro District and a new septic field will be constructed. SPECIAL REVIEW FOR A TDR RECEIVER SITE Page 4 of 7 06606; For a lot to receive a TDR in the Rural Area Special Review approval must be granted. The parcel is zoned RS- 20 and is eligible to receive TDR's up to 7,500 square feet. The Applicant proposes a residence of 6,500 square feet of floor area and will reserve 1,000 square feet of floor area for future development. Compliance with the following standards must be achieved (see Subsection 2-30-30). A. The special review use shall consider the applicable County Master Plan. Response: The parcel is located within the Woody Creek Caucus planning area and is part of the Woody Creek Caucus Master Plan. Application of a TDR is not prohibited in the Woody Creek Caucus area. B. The special review use shall not conflict xith any applicable sections of the Pitkin County Land Use Code, including the County Land Use Policies in Chapter 1. Response: Use of a TDR is consistent with the Pitkin County Land Use Code and the Land Use Policies if conditions in the attached Determination are adhered to. C. The proposed developrnent must not materially endanger the public health, safety or w' fare. Response: Staff has no reason to believe that the proposed use of a TDR up to approximately 7,500 square feet will endanger the public health., safety or welfare of the public. D. The proposed development must not substantially injure the value ofaclioining or abutting property. Response: Staff has no reason to believe that the proposed use of the TDR up to 7,500 square feet of floor area will substantially injure adjoining property values. Other large residences reside in the W/J Ranch neighborhood, which is adjacent to the White Star Ranch neighborhood which also contains large residences. A. The special review use shall be consistent with the intent of the zone district in ~which it is proposed to be located. Response: The RS-20 zone district allows for residences to be constructed up to 15,000 square feet through special review, however, BOCC Resolution No. 53-2004 limits single family residences to 7,500 square feet of floor area on this lot. B. The special review use shall be compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses. or shall enhance the mixture of complimentary uses and activities in the immediate ~vicinity of the parcel proposed for development. Response: The special review request can be considered compatible with the character of the immediate vicinity of the Lot and land uses. Other residences within the vicinity exceed 5,750 square feet. C. The location, size, design and operating characteristics of the proposed special review use must be in harmony with the surrounding area and minimize adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, traffic generation, parking, trash, service Page 5 of 7 00006:1 delivery, air/water pollution or other impacts on natural resources, noise, vibrations and odor on surrounding properties. Response: Staff has no reason to believe that the proposed residence will have the above mentioned impacts. D. There must be adequate public facilities and services to serve the special review use, including but not limited to roads, potable water, sewer, solid waste, parks, police, fire protection, emergency medical services, hospital and medical services, drainage systems, and schools. Response: Staff feels that the above mentioned public facilities and services will receive negligible impacts from landing the TDR and constructing a future residence on this site. E. The proposed special review use must comply with any additional standards or requirements stated for such use in Sec. 4-30 and/or 2-40-20. Response: Not applicable. Subdivision Exemption for Minor Plat Amendments: Subsection 2-30-20(g)(S) of the Land Use Code authorizes a minor plat amendment to be approved if: (5) (a) It is necessary to correct an inadvertent surveying error to a recorded plat that has been approved by Pitkin County, where the error was not intended to circunzvent the provisions of this Land Use Code, the correction increases or does not substantially affect the degree of compliance with the standards of this Land Use Code; and the revised final plat will comply with the final plat standards of Pitkin County Land Use Application Manual; or Response: The proposed amendment will not substantially affect the degree of compliance with standards of the Land Use Code. The revised plat will be conditioned to be in compliance with the Land Use Application Manual. (b) The amendment increases or does not affect the degree of compliance with the standards of this Land Use Code; and the amendment is being made to a recorded plat that has been approved by Pitkin County; and the amendment is consistent with representations made during the conceptual and detailed subdivision reviews whichever is applicable. Response: The request to adjust the building envelope and amend the recorded plat approved by Pitkin County does not affect the degree of compliance with the standards of the Code and is consistent with the representations made during the conceptual and detailed subdivision reviews. RECOMMENDATION: Staff recommends approval for the Taylor Capital Ventures LP, Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment subject to the conditions of the attached draft Hearing Officer Determination. ATTACHMENTS: Page 6of7 000070 A. Woody Creek Caucus comments B. White Star Ranch comments Page 7 of 7 000071 Frederick F. Peirce Thomas Fenton Smith Daniel J. Sullivan AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law 60o E. Hopkins Avenue Suite 205 Aspen, Colorado 81611 August 26, 2014 Telephone: (97o)925-2600 Facsimile: (970)925-4720 Email Addresses: fpeirce@aps-pc.eom tsmith@aps-pc.corn dsullit an@aps-pc.com attorney@pitkincounty.com John M. Ely, Esq. Pitkin County Attorney 530 E. Main Street Aspen, CO 81611 Re: Taylor Capital Ventures, LLC — Application for Activity Envelope, Site Plan Review, and TDR Receiver Site Dear John: On May 20, 2014, acting as Pitkin County Hearing Officer, I approved the above - referenced application. After the hearing record was closed and my determination issued, WIJ Metropolitan District appealed the Determination based on an alleged conflict of interest. You have requested information from me as to my position on this issue. This letter responds to that request. 1. In reviewing the application., I noted that Lowe WIJ, LLC, was the original developer of the subdivision where the subject lot is located. This occurred about ten (10) years ago. 1 represented Lowe W/I in connection with this application, although it is my recollection that this representation terminated before all of the documentation was completed. 2. At the public hearing on May 20, 2014,1 disclosed the prior representation. The issue was not raised by a party; no one present objected to my proceeding to consider the application. To that extent, I do not believe that the issue was preserved for appeal. See, e.g., McClellan v. State, 731 P.2d 769 (Colo. App. 1986). Nevertheless, it is important to explain the basis for my proceeding to consider the application in light of my prior representation of the original developer, now that the issue has been raised on appeal. --000072 AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law John M. Ely, Esq. August 26, 2014 Page 2 3. Neither Lowe, W/J, LLC, nor I have any interest in the outcome of this application, financial or otherwise. To that extent, I view the issue to be not one of conflict of interest but rather of bias based on the prior attomey/client relationship. 4. A substantial showing of personal bias is required to disqualify a hearing officer, and the party claiming bias must overcome the presumption of honesty and integrity. Due process is violated only when the risk of unfairness is intolerably high, and there must be some substantial countervailing reason to conclude that the hearing officer is actually biased with respect to the factual issues being adjudicated. Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009). 5. Lowe, WIJ, platted the subdivision ten years ago. It no longer has an interest in the subject property. At issue in this case is the lot owner's right to use a TDR for additional FAR above 5000 sq. ft. This reflects a condition of subdivision approval, accepted by Lowe, WIJ, just as it was accepted by Pitkin County. Just as Pitkin County's imposition of the condition does not predispose the County to grant this application, Lowe WIJ's acceptance of the condition did not predispose me, as Lowe's former attorney, to grant the request. The basis for my determination to approve the application is included in the transcript of the hearing and I do not believe it reflects a bias. I did not prejudge this application. 6. The involvement of a hearing officer in earlier proceedings in the same case does not overcome the presumption of honesty and integrity. Hicks v. City of Watonga, 947 F.2d 737, 748 (10th Cir. 1991). This application is not even the same case as the one in which I was involved ten years ago. 7. I understand the importance of fairness in the matters in which I preside as Hearing Officer. I have disqualified myself from several applications without being requested to do so in order to avoid the appearance of a conflict. In this case I did not have any actual bias, and I did not believe, based upon the law as discussed above, that there were any objective facts to demonstrate an appearance of impropriety. Please let me know if you require any further information. Very truly yours, AUSTIN, PEIRCE & SMITH, P.C. BY: l Thomas Fenton� Smith F M-YWITKINCoh.lotn M Ely. Estt to 8.28-14 dot 000073 ATTACHMENT � MEMORANDUM TO: Tom Smith, Pitkin County Hearing Officer FROM: Mike Kraemer, Planner RE: Taylor Capital Ventures, LP Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment DATE: May 20t, 2014 REQUEST: The Applicant requests Site Plan Review for construction of a single family residence of up to 7,500 square feet of floor area on a vacant lot. APPLICANT: Taylor Capital Ventures, LP OWNER: East Starwood Mesa, LLC REPRESENTATIVE: Patrick Rawley, Stan CIauson Associates, Inc. LOCATION: Off Byers Ct. Lot 1, Filing 5, W/J Ranch Subdivision. ZONING/LOT SIZE: The Lot contains approximately 2.1 acres and is located in the RS-20 zone district. 2011 AERIAL MAP — Lot highlighted in orange BACKGROUND AND EXISTING CONDITIONS: The subject parcel is located off Byers Ct. within the BOCC approved W/J Ranch Subdivision. The Lot is currently undeveloped and was created and is part of the W/J Ranch Subdivision approved in 2004. Pursuant to BOCC Resolution No. 53-2004, building envelopes were established and the Lot is approved up to 5,000 square feet of floor area. Additional floor area above this amount requires use of a TDR. The resolution also imposed a maximum floor area of 7,500 square feet for the Lot. REFERRAL AGENCIES: The application was referred to the White Horse Springs HOA, the Aspen Fire Protection District, and Woody Creek Caucus. The Caucus commented and had no objections to the application. SPECIFIC REQUEST: The Applicant is requesting to apply one (1) TDR of 2,500 square feet of floor area to construct a 6,500 square foot residence. It has been stated that the remaining 1,000 square feet will be reserved for a future addition. STAFF COMMENTS: SITE PLAN AND ENVELOPE AMENDMENT REVIEW The Applicant has requested site plan approval and an amended envelope. Almost the entirety of the proposed residence is located within the previously approved platted building envelope for the W/J Ranch Subdivision. The amended envelope will contain the driveway, utility extension, septic field, and ponds. The amended envelope poses no Chapter 7 constraint issues and current low wildfire conditions will be applied if a resolution is approved. This request requires a review of: (1) placement of development within an approved activity envelope; (2) development within a scenic view protection area pursuant to section 7-20-120(d); (3) location of structures in accordance with rural character building guidelines pursuant to section 7-20-120(e); (4) landscaping and vegetation protection pursuant to section 7-20-130; and (5) lighting in accordance with section 7-20-140. SCENIC VIEW PROTECTION: standards are designed to minimize the visual impact of new development when viewed from designated road corridors. Section 7-20-120(d) addresses standards for development within a Scenic View protection area. Byers Ct is located just off McLain Flats Road, a designated scenic corridor. The proposed residence will not be located such that it will project above a ridgeline, and will be required to comply with the following: 1. The proposed development shall utilize existing topography and natural vegetation, such as ridges, hills, and existing trees, to screen buildings to the maximum extent practicable when viewed from those right-of-ways listed above. Response: Topography exists to screen the development from McLain Flats Road. There is limited vegetation on site to obscure the future residence's view. 2. The proposed development shall avoid the location of structures within the Scenic View Protection Areas, and shall avoid the location of structures within any Viewplane identified in the State Highway 82 Corridor Master Plan and Down Valley Comprehensive Plan, if possible. If location outside the Scenic View Protection Area and defined Viewplanes is not practicable, then the proposed development shall not be located on the highest ground or most visible portion of any site as viewed fi-om those corridors. Page 2 of 7 000075 Response: The property is within a Scenic View Protection Area, but it is not within an identified Viewplane. The Applicant has avoided the most visible portion of the lot. 3. The proposed development's height and bulk shall be designed to avoid, to the maximum extent practicable, the visibility of buildings from those corridors listed. This may include, but shall not be limited to, breaking down the mass of the building down into a series of small forms, articulation of the building facades to avoid a wall or row effect, and staggering rooflines to avoid a long unbroken plane. Response: The facade and roof lines of the building have been staggered to break up the view plane, if visible. 4. The proposed structure shall be placed so it does not project above a ridgeline such that a structure silhouettes against the sky when viewed from those corridors listed in subsection (b), unless there are no alternate building sites on the lot or parcel. Response: The proposed residence will not project above a ridgeline such that the structure is silhouetted against the sky when viewed from McLain Flats Road. 5. The proposed development shall he designed to complement the natural topography of the land through the use of techniques such as earth -sheltered design, the use of natural materials and coloring, the use of low -reflectance materials, or clustering of structures on the least visible portions of the site. When a building is proposed near a ridgeline, then its form (particularly its roofform) shall replicate, parallel, or complement the natural form of the ridgeline so that it appears to he an element of the natural ridgeline. Response: The proposed residence is designed to minimize the visual impact. Earth -sheltered design is not possible given the flat topography. 6. The proposed development shall preserve natural vegetation and avoid development within irrigated meadows, to the maximum extent practicable. Response: There is little to no natural vegetation on the site and there is no irrigated meadows on the property. The Site Plan shows trees will be planted on the western property line to screen development. 7. The proposed development shall install utilities in locations and through procedures that minimize visual impacts to the maximum extent practicable. Response: All new utilities shall be placed underground. 8. All satellite dishes in the proposed development shall be located to minimize visibility from those rights - of -way listed in subsection (h), and shall use earth tone colors and/or screening to minimize their visual impact. Response: All future satellite dishes shall conform to these standards. 9. The proposed development shall not use earth moving and berms as the primary means of compliance with these regulations, hut earth moving may be utilized in conjunction with other techniques to comply with standards in this section. Where earth moving techniques are necessary, man-made forms should be undulating and natural in appearance. Response: No free standing berths are proposed with the development. 10. In the Rural Areas only, development shall be located so that activities and development occur in at least one of the specified in subsection (e) as they may apply to the particular property. Page 3 of 7 OOOO76 Response: The parcel is located in the rural area of Pitkin County and is about 2.1 acres in size. These guidelines are not directly applicable to the site; the parcel does not contain an open meadow or pasture, has limited change in natural topography, and has a designated building envelope where the future residence will be located. 11. The exterior of all development shall he built or painted with indigenous earth tone materials or colors. Response: Indigenous earth -toned colors and non -reflective materials will be conditioned. 12. All roofs shall have a non -reflective color or composition. Reflective roof materials shall not he used unless the materials are treated prior to installation to eliminate reflection, with the exception of materials associated with solar or photovoltaic equipment. Response: Only non -reflective, earth toned materials will be used. 13. Lands disturbed by earthmoving or berms should be re -vegetated using native species that are already growing on or near the site. Topsoil shall be stoc/piled and places on disturbed areas. Irrigation shall be provided to the re -vegetated areas if it is necessary to ensure the survival of planted native species. Response: A re -vegetation plan using native species to the area shall be submitted as part of the landscape plan prior to building permit submittal. 14. To the maximum extent practicable. Roads and driveways shall be located to skirt the edge of and avoid dividing meadows and pastures to avoid major road cuts. Roads and driveways should take advantage of the screening potential of natural topography and existing vegetation. Existing roads and driveways shall be used where practical. To enhance screening a row of trees may be planted along the roads or driveways. To the maximum extent practicable, roads and driveways located around the edge of or in meadows shall be laid out with soft, curving edges and shall avoid straight line corridors that are incongruous with the natural setting. Response: The existing access off Byers Ct. will be used. RURAL CHARACTER BUILDING GUIDELINES: Land Use Code Section 7-20-120(e) provides rural character guidelines for building location: Response: The proposed residence has utilized these guidelines (see above) by clustering development in the immediate vicinity of the existing residence. LANDSCAPING AND VEGETATION PROTECTION: Land Use Code Sec. 7-20-130 is intended to preserve existing vegetation on a development site to the maximum extent possible. Response: The existing vegetation on the parcel is primarily low-water trees and shrubs. Landscape plantings include conifers. No berms have been proposed and all proposed landscaping will be required to comply with the Code. LIGHTING: The Applicant has committed to compliance with all Pitkin County lighting standards. ACCESS: Access to the residence will be taken from McLain Flats Road, to Byers Ct. Page 4 of 7 SEWER AND WATER: Water for the residence will be provided by the W/J Metro District and a new septic field will be constructed. SPECIAL REVIEW FOR A TDR RECEIVER SITE For a lot to receive a TDR in the Rural Area Special Review approval must be granted. The parcel is zoned RS-20 and is eligible to receive TDR's up to 7,500 square feet. The Applicant proposes a residence of 6,500 square feet of floor area and will reserve 1,000 square feet of floor area for future development. Compliance with the following standards must be achieved (see Subsection 2-30-30). A. The special review use shall consider the applicable County Master Plan. Response: The parcel is located within the Woody Creek Caucus planning area and is part of the Woody Creek Caucus Master Plan. Application of a TDR is not prohibited in the Woody Creek Caucus area. B. The special review use shall not conflict with any applicable sections of the Pitkin County Land Use Code, including the County Land Use Policies in Chapter 1. Response: Use of a TDR is consistent with the Pitkin County Land Use Code and the Land Use Policies if conditions in the attached Determination are adhered to. C. The proposed development must not materially endanger the public health, safety or welfare. Response: Staff has no reason to believe that the proposed use of a TDR up to approximately 7,500 square feet will endanger the public health, safety or welfare of the public. D. The proposed development must not substantially injure the value of adjoining or abutting property. Response: Staff has no reason to believe that the proposed use of the TDR up to 7,500 square feet of floor area will substantially injure adjoining property values. Other large residences reside in the W/J Ranch neighborhood, which is adjacent to the White Star Ranch neighborhood which also contains large residences. A. The special review use shall be consistent with the intent of the zone district in which it is proposed to be located. Response: The RS-20 zone district allows for residences to be constructed up to 15,000 square feet through special review, however, BOCC Resolution No. 53-2004 limits single family residences to 7,500 square feet of floor area on this lot. B. The special review use shall be compatible with the character of the immediate vicinity of the parcel proposed for development and surrounding land uses, or shall enhance the mixture of complimentary uses and activities in the immediate vicinity of the parcel proposed for development. Page 5 of 7 0O 0-7-0 Response: The special review request can be considered compatible with the character of the immediate vicinity of the Lot and land uses. Other residences within the vicinity exceed 5,750 square feet. C. The location, size, design and operating characteristics of the proposed special review use must be in harmony with the surrounding area and minimize adverse effects, including visual impacts, impacts on pedestrian and vehicular circulation, traffic generation, parking, trash, sen'ice delivery, air/water pollution or other impacts on natural resources, noise, vibrations and odor on surrounding properties. Response: Staff has no reason to believe that the proposed residence will have the above mentioned impacts. D. There must be adequate public facilities and services to serve the special review use, including hut not limited to roads, potable water, sewer; solid waste, parks, police, fire protection, emergency medical services, hospital and medical services, drainage systems, and schools. Response: Staff feels that the above mentioned public facilities and services will receive negligible impacts from landing the TDR and constructing a future residence on this site. E. The proposed special review use must comply with any additional standards or requirements stated for such use in Sec. 4-30 and/or 2-40-20. Response: Not applicable. Subdivision Exemption for Minor Plat Amendments: Subsection 2-30-20(g)(5) of the Land Use Code authorizes a minor plat amendment to be approved if: (5) (a) It is necessary to correct an inadvertent surveying error to a recorded plat that has been approved by Pitkin County, where the error was not intended to circumvent the provisions of this Land Use Code, the correction increases or does not substantially affect the degree of compliance with the standards of this Land Use Code; and the revised final plat will comply with the final plat standards of Pitkin County Land Use Application Manual; or Response: The proposed amendment will not substantially affect the degree of compliance with standards of the Land Use Code. The revised plat will be conditioned to be in compliance with the Land Use Application Manual. (b) The amendment increases or does not affect the degree of compliance with the standards of this Land Use Code: and the amendment is being made to a recorded plat that has been approved by Pitkin County,- and the amendment is consistent with representations made during the conceptual and detailed subdivision reviews whichever is applicable. Response: The request to adjust the building envelope and amend the recorded plat approved by Pitkin County does not affect the degree of compliance with the standards of the Code and is consistent with the representations made during the conceptual and detailed subdivision reviews. Page 6 of 7 0000 f_,. RECOMMENDATION: Staff recommends approval for the Taylor Capital Ventures LP, Site Plan Review, Special Review for a TDR Receiver Site, and Subdivision Exemption for a Minor Plat Amendment subject to the conditions of the attached draft Hearing Officer Determination. ATTACHMENTS: A. Woody Creek Caucus comments B. White Star Ranch comments Page 7 of 7 00009' RE: Re: White Star Capital MGMT LLC Activity Envelope, Site Plan Review, and Subdivision Exemption for a Minor Plat Amendment imessG.--e Michael Kraemer Michael.Kraemer@co.pitkin.co.us> To: janet k schoeberlein <janetkayes@gmail.com> Okay thanks. Mi ke Mike Kraemer Planner Community Development Department P,tkin County 130 S. Galena Street Aspen, CO 81611 970.920.5482(phone) 970.920 5439(fax) rrichael.kraerrrr©co.pitkIn.co.us Wed, Sep 4, 2013 at 4:01 PM From: janet k schoeberlein [mailto:janetkayes@gmaiLcom] Sent; Wednesday, September 04, 2013 3:28 PM To: Michael Kraemer Subject: Re: Re: White Star Capital MGMT LLC Activity Envelope, Site Plan Review, and Subdivision Exemption for a Minor Plat Amendment The Woody Creek Caucus District Planning Commission has no objections to the subject application. By Janet Schoeberlein, for the Planning Commission Janet K. Schoeberlein PO Box 423, Woody Creek, CO 81656 STAR RANCHIES HOMEOWNERS ASSOCIATION April 10, 2014 Sean B. Carothers Carothers Construction, Inc PO Box 189 Taylor Ms., 38673 RE: Lot 1, Filing 5 White Star Ranch Aspen, CO 81611 Dear Nick: 1 am writing on behalf of Phil Holstein, President of the White Star Ranches Homeowners Association_ The Board of Directors, acting as the Architectural Review committee, has reviewed the plans for your new home submitted on April 8, 2014. The majority of the committee members voted in favor of your project. Your plans are therefore approved by the Association as presented. Please let us know if we can provide any further service or assistance. Sincerely, Monroe Summers, Association Manager P 0 Box 596 Woody Creek, Colorado 81656 (970) 925-4446 Fax (970) 920-9153 r , 0000R2 } 1611 l�l ATTACHMENT e AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law boo E. Hopkins Avenue Suite lob Aspen, Colorado 81611 Frederick F. Peirce Thomas Fenton Smith Daniel J. Sullivan attorney@pitkincounty.com John M. Ely, Esq. Pitkin County Attorney 530 E. Main Street Aspen, CO 81611 Dear John: Telephone: (97o) 925-2600 Facsimile: (97o) 925-4720 Email Addresses: fpeirce@aps-pc.com tsmith@aps-pc.com dsullivan@aps-pc.com August 26, 2014 Re: Taylor Capital Ventures, LLC — Application for Activity Envelope, Site Plan Review, and TDR Receiver Site On May 20, 2014, acting as Pitkin County Hearing Officer, I approved the above - referenced application. After the hearing record was closed and my determination issued, W/J Metropolitan District appealed the Determination based on an alleged conflict of interest. You have requested information from me as to my position on this issue. This letter responds to that request_ 1. In reviewing the application, I noted that Lowe W/J, LLC, was the original developer of the subdivision where the subject lot is located_ This occurred about ten (10) years ago. I represented Lowe W/J in connection with this application, although it is my recollection that this representation terminated before all of the documentation was completed. 2. At the public hearing on May 20, 2014, I disclosed the prior representation. The issue was not raised by a party; no one present objected to my proceeding to consider the application. To that extent, I do not believe that the issue was preserved for appeal. See, e.g., McClellan v. State, 731 P.2d 769 (Colo. App. 1986). Nevertheless, it is important to explain the basis for my proceeding to consider the application in light of my prior representation of the original developer, now that the issue has been raised on appeal. 000093 AUSTIN, PEIRCE & SMITH, P.C. Attorneys At Law John M. Ely, Esq. August 26, 2014 Page 2 3. Neither Lowe, W/J, LLC, nor I have any interest in the outcome of this application, fmancial or otherwise. To that extent, I view the issue to be not one of conflict of interest but rather of bias based on the prior attorney/client relationship. 4. A substantial showing of personal bias is required to disqualify a hearing officer, and the party claiming bias must overcome the presumption of honesty and integrity. Due process is violated only when the risk of unfairness is intolerably high, and there must be some substantial countervailing reason to conclude that the hearing officer is actually biased with respect to the factual issues being adjudicated. Riggins v. Goodman, 572 F.3d 1101, 1112 (10th Cir. 2009). 5. Lowe, W/J, platted the subdivision ten years ago. It no longer has an interest in the subject property. At issue in this case is the lot owner's right to use a TDR for additional FAR above 5000 sq. ft. This reflects a condition of subdivision approval, accepted by Lowe, W/J, just as it was accepted by Pitkin County. Just as Pitkin County's imposition of the condition does not predispose the County to grant this application, Lowe W/J's acceptance of the condition did not predispose me, as Lowe's former attorney, to grant the request. The basis for my determination to approve the application is included in the transcript of the hearing and I do not believe it reflects a bias. I did not prejudge this application. 6. The involvement of a hearing officer in earlier proceedings in the same case does not overcome the presumption of honesty and integrity. Hicks v. City of Watonga, 947 F.2d 737, 748 (10th Cir. 1991). This application is not even the same case as the one in which I was involved ten years ago. 7. I understand the importance of fairness in the matters in which I preside as Hearing Officer. I have disqualified myself from several applications without being requested to do so in order to avoid the appearance of a conflict. In this case I did not have any actual bias, and I did not believe, based upon the law as discussed above, that there were any objective facts to demonstrate an appearance of impropriety. Please let me know if you require any further information. Very truly yours, AUSTIN, PEIRCE & SMITH, P.C. BY: 91i-. Thomas Fenton Smith F lFiles M-Z,PirKINCOUohn M Ely, Esq Ltr 8-26-14 doc aB C' e84