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"~ ~~ • BOARD OF ADJUSTMENT •
DATE: December , 1984
APPLICANTS: Bertrand J. and Janice A. McDOnnall
303 E. Wacker Dr., Suite 1400
Chicago, IL 60601
First National Bank in Aspen
P.O. Box 3318
Aspen, CO 81612
OWNERS: Bertrand and Janice A. McDonnall
303 E. Wacker Dr., Suite 1400
Chicago, IL 60601
LOCATION OF PROPERTY:
Lot 5, Block 2, Aspen Grove Subdivision
Pitkin County, Colorado
(13 Alice Lane, Pitkin County, Colorado)
er
Any pertinent data must accompany this application, and will be made
part of this Case No.
The Board may return this application if it does not contain all the
facts in question. Applicant's description of proposed variance
showing justification:
See attached letter
Bertrand J. and Janice
First National Bank in
By their att to s,"
GATES, HUGI~ &~KNE~EV
By
1ai~[g 1ASpec
Boa d decisi
Date:
Provisions of the zoning resolution requiring the Build-ing Inspector
to forward this application to the Board of Adjustment and reason for
not granting a building permit: ,
~ ~ ~ ~ ~~~
Date Permit
Application
Mailed
rejected:
filed:
~'`
P~ ~~ j K
O(a O~
CASE # ~y . y'~
M. McDonnall
aspen,
P.C.
Secretary Board of Adjustment
.V
LAW OFFICES
GATES, HUGHES & KNEZEVLOH
PROFESSIONAL GORPO RATION
THIRD FLOOR. ASPEN PLAZA BUILDING
533 EAST HOPKINB AVENUE
LEONARD M. GATES ASPE N, COLORADO 81811
ROBERT W. HUG HES
RICHARD A. KNE2EVIOH
DEBORAH OUINN
December 4, 1984
Pitkin County Board of Adjustment
506 E. Main Street
Aspen, CO 81611
Re: Lot 5, Block 2, Aspen Grove Subdivision
Dear Board Members:
REQUEST
AREA CODE 303
TELEPHONE 920-1900
TELEGOPIER 920-1121
we represent First National Bank in Aspen ("Bank") and
Bertrand J. and Janice A. McDonnall ("McDonnalls"), who by this
application jointly seek your consideration of a variance of the
Floor Area Ratio limitations otherwise obtaining with respect to
the above-referenced property in order to permit the remodeling
by the McDonnalls of the interior (only) of the home thereon so
as to (a) eliminate a second and illegal kitchen that was in-
stalled by previous owners, and (b) upgrade the remaining
kitchen.
The property is zoned R-15. The lot is 15,400 square
feet in size and the allowable building size under the applicable
Area and Bulk (FAR) requirements is 2,464 square feet. The
actual size of the home on the property is 3,266 square feet.
BACKGROUND
On October 19, 1984, McDonnalls purchased the property
from the Bank. The Bank had initially acquired the property when
it redeemed a junior deed of trust that it held on the property
from the foreclosure of a senior deed of trust, which occurred
when the property was owned by Stephen and Heather Isberian
("Isberians").
Evidently, the FAR applicable to the home was exceeded
in connection with remodeling that was done by the Isberians in
1980, pursuant to a building permit that contemplated the con-
struction of a 960 square foot garage addition over which 480
square feet of living space was to be installed. The garage
would have been exempt from FAR limitations. Otherwise, the
residence would have been at the maximum floor area. Sometime
after the home received its final inspection in connection with
the work authorized by Isberians' permit, the Isberians illegally
,,.,,.
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GATES, HUGHES & KNEZEVICH, P. C.
Board of Adjustment
December 4, 1984
Page 2
converted the garage to living space, thus increasing the non-
exempt area of the home to the 3,266 square feet that it cur-
rently occupies.
HARDSHIP
The fact that the home on the property exceeds the
allowable FAR was entirely unknown to the Bank when it redeemed
the property (at considerable cost) from the foreclosure of the
senior mortgage, and was unknown to the Bank and McDonnalls when
the McDOnnalls thereafter acquired title to the property from the
Bank. Rather, based upon appraisal work that the Bank had
ordered in connection with its decision to redeem the property,
and from everything else that was made to appear the only ques-
tionable element in the home was its second kitchen, which is a
condition that we have been given to understand is fairly preva-
lent in the homes in this area. Indeed, the appraisal that the
Bank had received indicated that otherwise the property complied
with zoning. The fact that the second kitchen was inappropriate
under applicable zoning laws was called to the attention of the
McDOnnalls when they purchased the home from the Bank and,
needless to say, that fact has formed the basis for their current
plans to remove the second kitchen.
As indicated above, the McDonnalls' remodel plans,
which they have been precluded from undertaking, relate only to
the interior of the home - i.e., to removal of the one illegal
kitchen and to the upgrading of the other kitchen, along with
other remedial plumbing work made necessary when Isberians
wrongfully appropriated several fixtures when they vacated the
premises. From the standpoint of the neighborhood, and for all
outward and practical intents and purposes, there will be no
change to the property from what has in the past existed.
Indeed, the removal of the illegal kitchen will be a definite
plus and, if off-street parking has in the past been a problem,
the McDOnnalls are prepared to insure that their vehicles and
those of their guests will be parked entirely within their
property so as not to interfere with any snow removal equipment,
or otherwise impede the flow of traffic on Alice Lane.
This application, then, places squarely before you the
opportunity to adjust a hardship and inequity that otherwise
would be placed upon innocent parties solely as a result of the
wrongdoing of the Isberians. The Bank expended a considerable
sum in attempting to protect its loan to Isberians by redeeming
the property without the slightest idea that anything was wrong
~,,..1.'., "~
GATES, HUGHES & KNEZEVICH, P. C.
Board of Adjustment
December 4, 1984
Page 3
with the home other than the second kitchen, which it has always
been prepared to remove. Similarly, McDOnnalls in good faith
have spent a good deal of money and have committed themselves
financially to a good deal more in purchasing the home and in
anticipation of being able to remodel the home to make it habit-
able. From the standpoint of the neighborhood, granting a
variance in these circumstances would not at all change the
condition of the property or the neighborhood that presently
exists. In these circumstances, we submit, it seems appropriate
that neither the Bank nor the McDOnnalls should have to bear the
consequences of the wrongdoing of others.
We look forward to answering your a~uest on' at the
hearing on this application. Thank you for yo on ideration.
OAT S, HU S ~K EZ ICH, P.C.
t II
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BY-
RWH/caa
cc: Thomas J. Starodoj
Kenneth J. Denberg, Esq.
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December 3, 1984
Bob Hughes
Oates', Hughes & Knezevich
Aspen, Colorado 81611::.
Hand Delivered
Adjacent Owners to Lot 5, Block 2, Aspen Grove Subdivision are:
Lot 4, Block 2, Aspen Grove Subdivision
Frantz T. Stone IY
Box 3668
Aspen, CO 81612
Lot 3, Block 2, Aspen Grove Subdivision
Gideon I. Kaufman
P~; .O. Box 10001
Aspen, CO 81612
Lot 8, Block 2, Aspen Grove Subdivision
Joseph Michael Zanin and Judith L. Zanin
0308 McSkimming Road
Aspen, CO 81611
Lot 6, Block 2, Aspen Grove Subdivision
David Michael, Jr.
501 E. Hyman Avenue
Aspen, CO 81611
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AFFIDAVIT OF NOTICE BY POSTING
OF A VARIANCE
THE UNDERSIGNED, having been first duly sworn, upon
oath deposes and states that:
I~ ~L~C,cJ/-~,~.f~~2GiU/STS being or representing an
applicant before the Board of Adjustment of Pitkin County,
personally certify that the sign to which this Affidavit has
been attached was posted as Notice of the variance hearing on
this matter in a conspicuous place on the subject property and
that the sign was posted and visible continuously from the 13th
day of December, 1984, to~the ~ day of December, 1984.
Dated:
- ~
STATE OF COLORADO )
ss.
COUNTY OF PITKIN )
Subscribed and sworn to before me this £~.E'~day of
December, 1984, by ~//~~ .T ,P~,2Q~/57"'
WITNESS my hand and offici`al seal.
My commission expires: /U/~~
(SEAL)
Notary P lic
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LAW OFFICES
GATES, HUGHES & KNEZEVICiH
PROFE5510NAL CORPOflATION
THIRD FLOOR. ASPEN PLAZA BUILDING
533 EAST HOPKINS AVENUE
LEONARD M. GATES A6PE N, COLORADO 61611
ROBERT W. HUGHES AREA CODE 303
RICHARD A. KNEZEVICH TELEPHONE 920-1)00
DEBORAH OUINN TELEGOPIER 920-1121
January 2, 1985
BY HAND
Ms. Patsy Newberry
Pitkin County Building Department
517 E. Hopkins Avenue
Aspen, Colorado 81611
Dear Patsy:
You will please find enclosed herewith the fully
executed Covenant which was required as a part of the granting of
the variance to Bertrand J. and Janice A. McDOnall on Lot 3,
Block 2 of Aspen Grove Subdivision. It is my understanding that
you will take care of preparing the Resolution for recording and
we would ask that you record the Covenant at the same time. I've
enclosed our check in the amount of $3.00 to pay for the
recording costs.
matter.
Thank you for your assistance and cooperation in this
Very truly yours,
GATES, HUGHES & KNEZEVICH, P.C.
~~ilit/YLGP ~~`~~~~/
Leo and M. Oates
LM017.21/gj
Enclosure
pp pppp
BOOR ~C7~~ PA6c t0~
COVENANT
THE UNDERSIGNED, owners of Lot 5, Block 2, Aspen Grove
Subdivision, Pitkin County, Colorado ("Lot 5"), for themselves, their
successors, heirs, grantees and assigns, in consideration of the sum
of Ten Dollars ($10.00) and other good and valuable consideration in
hand paid to them by the owners of Lots 3, 4 , and 6 Block 2,
Aspen Grove Subdivision, the sufficiency of whwhich is hereby acknowl-
edged, hereby confirm and covenant that the following shall be a
burden upon Lot 5, and a benefit to the tracts of land thereto ad-
joining, specifically the said Lots 3, 4 , and 6 , Block 2, Aspen
Grove Subdivision and shall run with the benefitted and burdened
tracts aforesaid, and shall be binding upon the undersigned, their
heirs, personal representatives, and assigns, to-wit:
The home constructed on Lot 5 shall at no time
be used for other than single-family residential
purposes. The motor vehicle(s) of the owner(s) of
Lot 5, his, her, its, or their guests, invitees and
licensees shall, except on special occasions not
exceeding several hours in duration, at all times be
parked entirely within Lot 5 and at no time shall be
parked or allowed to remain within or upon Alice
Lane. The owner(s) of Lot 5 shall, as well, assume
responsibility for timely snowplowing that portion of
Alice Lane, not otherwise plowed by Pitkin County,
that abuts Lot 5. In the event of any violation of
this Covenant, the owners of the parcels benefitted
hereby as aforesaid specified shall be entitled to
seek the specific performance hereof by any lawful
means, and the prevailing party in any such action
for specific performance shall be entitled to the
award of their costs and reasonable attorney's fees.
z 1~+WITNESS WHEREOF, the undersi ned have executed this
ChCoven a~ th~s
~ day of 198
_
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~' Bertr d J. Mc pall
~D ~ z '_' Luc ~,~/
o Y nice A. McDonall
n5TATE 'dam CO~RADO )
~ ) ss.
COUNTY OF PITKIN )
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~':'~'he f egoing instrument was acknowledged before me this
~~. 'of nn ti0 198 by Bertrand J. McDonall and
:Jan lcp ~A. McDonall.
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J~~~.-`~', AITNESS my hand and official seal.
~'t ~`My commission expires: 9ja~{ ~,$b
(SEAL). '~. ~~r~..,
Notary Public
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LAW OFFICES
GIDEON I. KAUFMAN
DAVID G. EIS ENSTEIN
GIDEON I. KAUFMAN
eox 10001
315 EAST HYMAN AVENUE
ASPE N,COLORAD081811
December 27, 1984
HAND DELIVERY
Pitkin County Board of Adjustment
506 E. Main Street
Aspen, Colorado 81611
Re: Lot 5, Block 2, Aspen Grove Subdivision
Dear Board Members:
TELEPHONE
AREA CODE 303
9258188
I write this letter on behalf of adjacent property
owners to Lot 5, Block 2, Aspen Grove Subdivision concerning
their request for a variance from County FAR's.
The attorney for the applicant has assured us that
the attached covenant will be signed by the McDonnells and
recorded. With the signing of this covenant we feel
comfortable that the previous problems created by a lack of
garage on the subject property will be remedied. I would ask
that the covenant be placed in the public record and that the
record also reflect that the adjacent property owners David
Michael, Gideon Kaufman and Fran Stone feel that a variance
from the FAR is now appropriate. We feel this way since the
parking and snow removal problems are being taken care of.
It is obvious to us that a hardship exists and that your
Board by granting a variance will remedy that situation.
I thank you in advance for your consideration in
this matter.
Very truly yours,
LAW OFFICES OF GIDEON I. KAUFMAN,
a Professional Corporation
By
~~
Gi o Kaufman
GK/kl
,,, ,. ,y
... a ...
December 26, 1984
Pitkin County Board of Adjustment
Pitkin County Courthouse
506 E. Main Street
Aspen, CO 81611
Re: First National Bank in Aspen/McConnell--
Request for Variance, Lot 5,
Aspen Grove Subdivision, Pitkin County, Colorado
Gentlemen:
Please be advised that I am the owner of improved
residential property adjacent to Lot 5, Aspen Grove Subdivision,
which property I occupy as my principal residence. This letter
shall serve as notice of my support of First National Bank in
Aspen's and the McConnells' request for a floor-area ratio
variance on Lot 5. I am supportive of this variance because I
recognize the practical difficulties involved in altering the use
of the improvements in place, and desire to see the improvements
on the property put back in the form of a single-family resi-
dence.
At the time Stefen Isberian was in the process of
building the improvements which caused the floor-area ratio
problem, I personally complained to the Pitkin County Building
Department and at that time nothing was done about the problem.
I am sympathetic to First National Bank in Aspen who was unaware
of the land use violations at the time it made a loan on the
property. It is my understanding that its appraisal on the
property did not point out how the floor-area ratio excesses.
I will not be able to personally attend the meeting on
December 28, but ask that this letter be read into the record in
support of the request for variance.
Very truly yours,
1 ~GC 1, < <C~J V ~~ C
~-CC~ ~.
David Michael
DM/mis
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BOARD OF ADJUSTMENT
PITKIN COUNTY
December 27, 1984
Members Present: Bill Mason, Chairman
Paul Kr ausch
Joe Zanin
Alternates: Kandy Shaffran
Bill Mason called the meeting to order. There were no minutes as of this time
from the last meeting. Mason questioned if all of the applicants had posted
their notification signs. They all had.
Bertrand & Janice A. McDonnall 84-43
Lot 5, Block 2, Aspen Grove S/D, requesting a variance from the Floor Area
Ratio for remodeling. A letter was received from Gideon Kaufman, representing
the adjacent property owners stating that there was no objection to the
variance if a covenance was signed for parking. Lenny Oates was there to
represent the owners and stated that the owners could make the committment
as to whether or not the covenance is acceptable to them. Oates stated that
he was also representing the First National Bank of Aspen, who sold the
property to the McDonnalls. Oates returned the posted sign to the Board along
with an affidavit stating that the sign was posted for the alotted time.
Oates also presented the Board with a letter from David Michael which he
requested be read into the record. Michael, as an adjacent property owner,
expressed his support for the variance request due to the fact that he wanted to
see the property put back in the form of a single family residence among other
reasons.
Oates explained that the First National Bank leant some money in a secondary
position on the above property, and after much research felt the value was there
and nothing was brought to their attention with regards to problems. A second
kitchen was mentioned in the appraisal, but the bank felt if it did create a
problem it could be removed. The property was then foreclosed and offered for
sale to the McDonnalls. At the time that the McDonnalls went to get a building
permit to renovate the property they were advised that the property was over
the allowable F.A.R. Oates stated that was why the applicant was before the
Board with this application. Oates stated that the owners were willing to agree
to restore and maintain the structure as a single family residence and also to
agree not to park on Alice Lane and to plow in a timely the fashion the area
adjacent to their property that the County could not reach.
Newbury stated that the previous owner did a garage addition with a room above
which brought them to their maximum floor area ratio. At that time it was
required that the second kitchen be removed. Newbury stated that it had been
an ongoing problem for some time. Mason questioned if that construction had
taken place around 1980. Newbury acknowledged that it had. Shaffran remembered
that in 1972 the kitchen on the South side had been expanded.
Oates pointed out to the Board that the property in question was a candidate for
possible annexation by the City and under R-15, as currently exists in the City,
is under the existing F.A.R, would conform. Krausch questioned what exactly
brought the house over the allowable F.A.R. It was determined that when the
garage was enclosed, which was done without proper permits, was when it went over
the allowable F.A.R. Shaffran questioned why the realtor involved was not
aware of the problem and present the problem to the bank. The banker involved
was present and explained that they went by the appraisal that was done and
when the second kitchen was mentioned, the McDonnalls had agreed that they were
going to take it out. The banker also pointed out that it was the F.A.R. that was
the problem and not the second kitchen. Mason felt that it was an unusual hardship
and did merit the consideration of the Board. Shaffran stated that she did not
have a problem with the variance request but wanted to comment that she felt it
was a realtor's responsibility to research the lots.
aa,o~oRO P~a~,~„,„~ moo„ of„yea R E C O R D O F P R O C E E D I N G S
Page 2 Board of Adjustment December 27, 1984
Krausch questioned Newbury if the Building Dept. had ever followed up on
information that illegal building had been taking place. Newbury stated that
if a complaint was called in the Building Dept. probably investigated.
Krausch moved to grant the variance to the McDonnalls. Shaffran thought the
appliances had been removed from the second kitchen and wondered why they
were still calling it a kitchen. Oates stated that the past owner had
removed many fixtures in the house when he left. He stated that the
applianced for one kitchen would be replaced. Krausch continued that
the variance he granted to the McDonnalls recognizing the unusual circumstances
with the understanding that the parking be accomplished as requested and that
the residence be converted to a single family residence. Zanin second the motion.
Newbury expressed her concern that a permit for a garage would be requested.
McDonnall expressed the desire to have a garage on the property at some time.
Mason felt that at that time, due to the configuration of the lot, the owner
would need to come back before the Board. A vote was called for and all
were in favor.
The Aspen Group, Inc. 84-44
70 Pacific Ave., Bldg 15, requesting a variance to place a satelite dish
within the 10' sideyard setback. Mason pointed out to the Board that the
P&Z had reviewed the request and had no objections. Greg Poschman was there
to represent Grassroots T.V. along with Michael Monroe. The satelite dish
would allow Grassroots to bring in programs produced elsewhere. Poschman explained
that Building 15 is 12.3' from the next building and the dish is 12' wide and
will be tilted on an angle to fat into that location. Kraucch questioned why
that location was chosen for the dish. Poschman stated that it was the least
intrusive location. Other options were out in front of the building, which would
probably require a variance, There were no objections from the adjacent property
owners. Krausch suggested the roof. Poschman stated that one, the accessibility
would be more difficult on the roof, and two, the loading on the roof would be a
problem. Also it would be more visible on the roof. They felt that placed where
proposed would be better for the security of the dish. Zanin moved to grant the
variance for a 10' sideyard setback variance with the approval of planning and
zoning due to the fact that it is the least intrusive location. Shaffran second
the motion. A vote was called for and all were in favor.
Steven Fisher 54-45
Lot 3, Holland Hills S/D, requesting a 20' variance from the NW property line
a 40' variance from S.E. property line, a 20' variance from access road to the
NE for a single family residence. Darryl Hersky was there to present the
owner. Mason questioned what the original setbacks for that subdivision were.
Newbury stated that there was no problem with the Highway setback. She explained
that 100' was required from the frontyard and 30' from the sides and rear. She
stated that after a plot plan had been done it was determined that all he needed
was a variance from the frontyard setback. An 80' setback was necessary. Newbury
also pointed out that Holy Cross has a right-of-way across the property for a
service line. Krausch questioned why the owner did not put the house 100'
from Highway 82. Hersky stated that they were trying to keep the home as far
back as possible from Highway 82. Mason questioned if Hersky had placed the house
in line with the others in the area. Hersky stated that there were no others.
Mason felt that the decision of the Board regarding this application could set a
standard for future construction and they could keep the houses away from Hwy 82.
Shaffran agreed. Krausch moved to grant the variance of 80' frontyard setback
due to downzoning. Shaffran second the motion. A vote was taken and all were
in favor. Hersky questioned if the owner could build up to 100' of the Highway
although it was not stated as such in the application. Krausch stated that that
was not how the application read and they were acting by what the application
proposed. Shaffran added that the Board agreed to the variance because they like
the thought of keeping the house back from Highway 82. Hersky questioned if
the other setbacks were permanent even though the only variance requested and
granted was the frontyard. Mason stated that if the owner was within the legal
setbacks, the Board could do nothing about it, although they prefer it further from
Hwy 82.
i
a„.o~oRO „~A~,=„,„~ ~o., of„~E„ R E C O R D O F P R O C E E D I N G S
Page 3 Board of Adjustment December 27, 1984
Margaret Mason 84-46
0024 McSkimming Road, requesting a 10' rearyard setback variance for
an er.isting gazebo. Mason was there to represent self. At the last meeting
Mason was denied the variance to enclose her gazebo and now she is requesting
that the gazebo be allowed to remain. She informed the Board that she talked
with Jim Reeser, who surveyed her neighbors property, and he said that the
owners did own 7~' into the easement. Also, Holy Cross stated that the owners
own that amount of the easement. However, there is no proof in writing. She
had a lead from a gentlemen who worked with Aspen Title, but had not heard
back from him. On the other hand, it cannot be proved that they do not own
they part of the easement. Newbury stated that the setback requirement on
the rear is 10'. With the possibility of the 7~' added to her property,
and the 1' of room she had now, the request would be for 2' which Kr ausch felt
was very reasonable for the enclosure of Mason's gazebo. Kr ausch stated
that he would be willing to vote for such a variance if proof could be
established that the 7z' of the easement was her property. He then made
a motion granting a 2' rearyard setback variance for the enclosure of the gazebo
if proof could be~established that she owned the property. 7.anin second the motion.
This is with the assurance that the gazebo be allowed to remain no matter what
determination was made regarding the easement. A vote was called for and all
were in favor.
Meeting was adjourned.
Respectfully submitted,
Chairman
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