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16425243_10 CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 1 APPLICANT STATEMENT OF APPEAL Holland & Hart LLP represents 1020 Cooper LLC (“Applicant”) in connection with redevelopment of the property located at 1020 E. Cooper Avenue (the “Property”), which is a designated historic landmark. On February 17, 2021, the Historic Planning Commission (“HPC”) voted to deny Applicant’s request for approval to develop five affordable housing units on the Property. Because the Commissioners who denied the project based their decision on issues completely unrelated to the applicable Land Use Code provisions or Historic Preservation Design Guidelines (“Design Guidelines”), including instead their own subjective reasons, we respectfully request that Council reverse HPC’s decision and approve the project. A. Overview of the Property and Project The Property is situated in the Residential Multi-Family (RMF) zoning district. It is located mid-block. The neighboring lots to the east and west of the Property both contain multi- family buildings. The lots behind the Property (across the alley) are also developed as multi- family housing. Currently, the Property contains one historic home, which was created by the “stitching” together of two nineteenth century miner’s cabins. Applicant proposes to redevelop the existing home into two affordable housing units and to construct a new detached building, in the rear portion of the Property, containing three affordable housing units. In support of development of the affordable housing units and to cure an existing nonconforming east side yard setback condition, Applicant proposes to relocate the existing historic home approximately 11 feet forward and approximately 2.5 feet westward. To develop the affordable housing project, Applicant requested Conceptual Major Development, Relocation, Demolition, Growth Management, Certificate of Affordable Housing Credits, Transportation and Parking Management approvals. CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 2 B. Staff Findings and HPC Analysis Applicant’s proposal first came before HPC on January 13, 2021. At that time, Planning and Historic Preservation Staff (“Staff”), supervised by Planning Director Amy Simon—who has over 25 years of historic preservation experience in Aspen—recommended approval of the project, subject to limited conditions. Staff found that: the project satisfied all dimensional standards in the Land Use Code, including standards for floor area, density, height, setbacks, and parking; because all dimensional standards were met, approval of the project did not require a variance; and the project also satisfied all applicable Design Guidelines. At the public hearing, the Planning Director explained that Staff had “work[ed] with [Applicant] so that they can exercise [permitted development rights] in an appropriate way that supports the preservation of the resource” and that “design guidelines are met[.]” T1, p. 38, ln 4- 7. Notwithstanding Staff’s findings, two Commissioners communicated their dislike of the project based on the proposed number of housing units and on personal opposition of certain neighbors. Commissioner Moyer stated: I think design wise and – and as far as what staff has approved and the relocation and all of that – it’s all okay. I mean it’s all legal. . . . But it’s not – it’s just too big. . . . [W]hen you have 15 neighbors adamantly opposing, we’re not doing our job[.] T1, p. 97, ln 10-16. He went on to describe what he viewed as the consequences of approving five affordable housing units: “it’s not a marvelous place for possibly 26 people to be living there and 26 people is 26 cars and 26 people is 26 bags of garbage every two to three days and 26 people is a hell of a lot of cigarettes and 26 people could be 26 dogs.” T1, p. 97, ln 18-22. Commissioner Moyer concluded that those issues could be resolved only by changing the proposal to a two- or three-unit project. T1, p. 103, ln 12-14. When asked if he would continue to oppose the project if the number of housing units was not reduced, Commissioner Moyer said CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 3 that he thought he would, because “it’s simply too many units.” T1, p. 112, ln 13-14. Similarly, Commissioner Kendrick commented on the number of people that would live in the building and observed: “the mass of the this proposed project allows more people to live there and if we reduce the mass . . . it also reduces the burden of infrastructure on that property.” T1, p. 105, ln 19-22. Commissioner Kendrick also emphasized that neighbor “buy-in” would be “very important” for approval. T1, p. 111, ln 14-16. HPC ultimately voted to continue the public hearing on the project. On February 17, 2021, Applicant’s proposal came before HPC for the second time. In response to the Commissioners’ prior feedback, Applicant made several changes to the project design, including:1 reducing the height of the new building; reducing the massing of the new building by stepping back the third floor; adding a dormer to the rear non-historic portion of the historic structure to increase living space; and increasing the front setback of the historic structure. In addition, Applicant responded to the Commissioners’ concerns regarding the number of people in the building by volunteering a deed restriction limiting occupancy in each unit to no more than one unrelated adult per bedroom. T2, p. 127, ln 16-21. Again, Staff recommended approval of the project. In so doing, Staff carefully considered and applied the Design Guidelines to the revised proposal. Staff found that Applicant’s proposal to preserve the entire historic home as a free-standing structure was a “successful preservation outcome,” given that there are very few examples in the City of miners’ cottages that have been preserved with no significant addition. Rec. 0455. With respect to 1 None of the changes proposed by Applicant were necessary to comply with dimensional requirements in the Land Use Code. The original project proposal presented to HPC on January 13, 2021 complied with all dimensional standards. The revised project proposal presented on February 17, 2021 was well within dimensional standards. For example, the Code allows a maximum floor area of 5,474 sq. ft. Both the original (4,241 sq. ft.) and revised (3,899 sq. ft.) project proposals were well within the maximum allowed floor area. CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 4 guidelines concerning mass and scale of new structures, Staff found (Rec. 0482-0483): [The new structure] is in fact notably larger than the historic resource, but the resource is particularly small in footprint and diminutive in height, making it difficult to express the development rights allowed on the site in a similar form. The fact that the expansion is detached very significantly reduces its historic preservation impact. The applicable guidelines for new construction as expressed in Chapter 11 [of the Design Guidelines] are primarily written to anticipate a new structure being proposed directly next to a historic structure, for instance in a historic landmark lot split. . . . The impact of the height of the rear building on the historic resource will be reduced because of its placement some distance behind [the historic resource]. . . . The context of the property, and the fact that it is a mid-block lot, allow for the addition to appear as a backdrop. . . . Based on HPC feedback at the last hearing, the applicant reduced mass on the upper floor and created a break in the vertical plane of the south façade so that the new structure steps down in height adjacent to the [historic] resource. . . . Staff finds the design guidelines to be met for Conceptual approval. With apparently no consideration given to Staff’s professional findings, Commissioners Moyer and Kendrick again declined to approve the project. Both Commissioners asserted that the mass and scale of the project was a basis for denial. But they did not meaningfully apply the Design Guidelines applicable to mass and scale. Rather, their statements were conclusory: “I feel that the mass and scale is too much period.” T2, p. 114, ln 1-2 (Moyer). Furthermore, Commissioners Moyer’s and Kendrick’s testimony suggested that the number of affordable housing units—and not the mass or scale—was the real driver of their dislike for the project. Commissioner Moyer stated: “If there were three units, it would work but five units is not a livable place[.]” T2, p. 117, ln 10-11. Near the close of the hearing, Commissioner Moyer reiterated that, “they really need to look at making a smaller project and that would probably mean three units instead of five[.]” T2, p. 126, ln 12-14. When asked how the project could be improved, Commissioner Kendrick likewise concluded that the project “just CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 5 needs to be less units so the overall scale of building can be smaller.” T2, p. 120, ln 18-19. By contrast, Commissioners Halferty and Thompson both agreed with Staff’s findings that the project satisfied Design Guidelines for mass and scale. T2, p. 113, ln 1-3, 17. In Commissioner Halferty’s words: “our purview is to protect the historic resource[.]” T2, p. 112, ln 22-23. Ultimately, the Commissioners reached a 2-2 deadlock, with Commissioners Moyer and Kendrick against approval of the project and Commissioners Thompson and Halferty in favor of approval. At Applicant’s request, Commission Chair Thompson broke the deadlock and voted to deny approval, to give Applicant an opportunity to file this appeal with Council. C. Council Should Reverse HPC’s Decision, Because HPC Abused its Discretion When Voting to Deny Approval of the Project. Council has the power and duty to review appeals of decisions issued by HPC concerning applications to develop a historic landmark. LUC 26.208.010(g). Council may reverse a decision by HPC if there was a denial of due process or if HPC exceeded its jurisdiction or abused its discretion. LUC 26.316.030(3). Because, in this case, two of the Commissioners abused their discretion when they evaluated Applicant’s proposal, the Council should reverse HPC’s decision. 1. Commissioners Moyer and Kendrick abused their discretion by evaluating the project based on extraneous considerations, outside of the Land Use Code and Design Guidelines. A development application must be evaluated based solely on criteria that are generally applicable to all other such applications. Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 790 P.2d 827, 832 (Colo. 1990); Bauer v. Wheat Ridge, 513 P.2d 203, 204 (Colo. 1973). A decision-making body cannot look beyond generally applicable criteria to evaluate an application. Accordingly, it is an abuse of discretion for a decision-making body to deny an CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 6 application based on extraneous considerations that are not included in the generally applicable criteria. See Cherry Hills, 790 P.2 at 832-33; Sherman v. City of Colorado Springs Planning Comm’n, 763 P.2d 292, 297 (Colo. 1988). In this case, Commissioners Moyer and Kendrick abused their discretion by evaluating the project based on the proposed number of affordable housing units, preconceived notions regarding the people living in those units, and neighbors’ negative sentiments, rather than on criteria in the Land Use Code and Design Guidelines. Commissioners Moyer and Kendrick repeatedly stated that that the number of housing units in the project should be reduced. In the January 13th hearing, when Applicant’s representative asked if Commissioner Moyer would oppose a redesigned project if the project continued to have five housing units, Commissioner Moyer responded “I think so.” T1, p. 112, ln 11-13. In response to Commissioner Moyer’s statement, the Planning Director cautioned the Commissioners to not consider matters outside of HPC’s purview (i.e., number of housing units). T1, pp. 112 (ln 24-25) to 113 (ln 1-3). Notwithstanding that caution, in the February 17th hearing, Commissioners Moyer and Kendrick again asked about the issues they may consider when reviewing the project, and the Planning Director again advised them to limit their review to the “criteria in place.” T2, p. 49, ln 23-24. It is clear from the record that the Commissioners did not heed the Planning Director’s advice. In the February 17th hearing, Commissioner Moyer stated (repeatedly) that the project should have three units instead of five. Likewise, in the February 17th hearing, when asked what could be done to improve the project, Commissioner Kendrick stated that the number of units needed to be reduced. T2, p. 120, ln 17-19. Commission Chair Thompson responded: “I don’t think we can discuss that . . . the number of units and number of people.” T2, p. 120, ln 21-23. CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 7 Commission Chair Thompson was correct. Nowhere do the provisions in the Land Use Code or Design Guidelines limit the number of housing units that may be included in this project. Certainly, the Land Use Code and the Aspen Pitkin County Housing Authority (APCHA) specify standards for minimum net livable area for affordable housing units. Those standards, however, are met by the project. Not only did Commissioners Moyer and Kendrick improperly focus on the number of proposed housing units, they espoused speculative opinions about the impacts of people who would live in those units. Commissioner Moyer brought his own experiences living in a multi- family building into his consideration of the project, stating “it’s terrifying what happens [when] you have development immediately [next] to your building.” T1, p. 95, ln 15-17. In particular, Commissioner Moyer’s judgments regarding the trash, dogs, and cigarettes that he believed to be associated with future inhabitants were discriminatory and offensive, especially when compared to the philosophical statements on Housing contained in the 2012 Aspen Area Community Plan (“AACP”) (p. 38): Our housing policy should bolster our economic and social diversity, reinforce variety, and enhance our sense of community by integrating affordable housing into the fabric of our town. A healthy social balance includes all income ranges and types of people. Each project should endeavor to avoid segregation of economic and social classes. The Commissioners additionally allowed their evaluation of the project to be steered by neighbors’ personal sentiments. Indeed, both Commissioners Moyer and Kendrick advised Applicant that neighbor approval would be critical to their decision whether to approve the project. In his exchange with Applicant’s representative, Commissioner Kendrick stated: MR. KENDRICK: . . . I also want to reiterate . . . getting some community buy-in on whatever the new -- the new tweaks on the design I think are going to be very important to this. CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 8 MS. ADAMS: What do you mean by community buy-in? I mean -- MR. KENDRICK: -- neighbors. Direct neighbors especially. T1, p. 111, ln 13-20. Comments like these show that Commissioners Moyer and Kendrick treated neighbor approval as a relevant criterion to evaluate the project, although it is not. A local governing body abuses it discretion when “it is apparent from the record that [the body] abandoned the proper issues and struck the application on considerations totally outside the scope of proper inquiry.” See Western Paving Constr. Co. v. Bd. of Cty. Comm’rs, 506 P.2d 1230, 1232 (Colo. 1973). Here, Commissioners Moyer’s and Kendrick’s testimony shows that they improperly relied on the proposed number of affordable housing units—as well as other extraneous factors, including neighbor attitudes and judgment about the people who would live in those units—when voting to deny the project. As stated by Commissioner Moyer: “I went through the list and . . . agree that this project has met all of the criteria.” T2, p. 48, ln 18-19. But he voted to deny the project anyway. 2. Commissioners Moyer and Kendrick abused their discretion by wrongly interpreting and applying the Design Guidelines. Even if Commissioners Moyer’s and Kendrick’s votes to deny the project had been based on the Design Guidelines, the Commissioners abused their discretion by interpreting and applying those guidelines incorrectly. A decision-making body abuses its discretion if it misconstrues or misapplies the applicable law. Shupe v. Boulder Cty., 230 P.3d 1269, 1272 (Colo. App. 2010). Where a decisionmaker articulates and applies an incorrect legal standard, and that decisionmaker’s vote affects the outcome of the governing body’s decision, there is an abuse of discretion. See Canyon Area Residents v. Bd. of Cty. Comm’rs, 172 P.3d 905, 910 (Colo. App. 2006) (remanding after one board member applied the wrong legal standard). CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 9 In this case, Commissioners Moyer and Kendrick wrongly interpreted and misapplied the Design Guidelines pertaining to mass and scale of new construction. As a threshold matter, the Design Guidelines are clear that “[n]ot every guideline will apply to each project, and that some balancing of the guidelines must occur on a case-by-case basis.” HPDG p. 8 (emphasis added). Thus, various and competing guidelines must be weighed. Staff undertook this balancing exercise when it applied the guidelines for mass and scale to the project. Staff applied the principle that “minimizing any addition to the historic resource and shifting square footage to the new structure is generally desired.” See HPDG p. 85. Weighing this principle against the size of the proposed new building and its location in the rear of the Property, behind the historic home, Staff found that the Design Guidelines were met. Neither Commissioner Moyer nor Commissioner Kendrick engaged in this balancing, which they were required to do under the Design Guidelines. Rather, the Commissioners treated “mass and scale” as an entirely subjective and the only relevant standard, which allowed them to decide in their sole judgment how big was too big. E.g., T2, p. 114, ln 1-2 (Moyer: “I feel that the mass and scale is too much period.”). Further, Commissioner Moyer expressly declined to consider the Property’s context, when in fact consideration of context is required by the Design Guidelines. The Guidelines state: The character of a historic structure is greatly influenced by the surrounding framework of streets and public spaces, the physical characteristics of the specific site, and the way in which the historic resource is situated on the lot. It is important to analyze the context of a property before developing a strategy for treatment and/or alteration. HPDG, p. 3. In the February 17th hearing, however, Commissioner Moyer stated that he was “discounting the buildings on either side” of the Property and “imagining it’s anywhere in the [W]est end of Aspen[.]” T2, p. 117, ln 13-15. This was wrong, because the buildings CITY COUNCIL OF CITY OF ASPEN Appeal of HPC Denial Issued February 17, 2021 Page 10 surrounding the Property are properly viewed as “context” for the project.2 Commission Chair Thompson recognized this error and cautioned that Commissioner Moyer’s interpretation “goes against our guidelines because we are required to view the context of the site[.]” T2, p. 117, ln 19-21. Commissioner Moyer also erred by evaluating the project as if it was in the West End. The West End is zoned Medium-Density Residential (R-6). Unlike the RMF zone district, which expressly allows multi-family dwellings, LUC 26.710.090, the R-6 zone district does not allow multi-family dwellings, LUC 26.710.040. Thus, Commissioner Moyer both failed to consider the correct neighborhood context and then applied the wrong neighborhood context.3 In sum, Commissioners Moyer’s and Kendrick’s public testimony illustrates that the Commissioners improperly voted to deny the project based on factors outside of the Land Use Code and Design Guidelines. To the extent that the Commissioners did apply the Design Guidelines, they did so incorrectly. These failures were apparent to both their fellow Commissioners and Staff. Because the Commissioners’ denial of the project was an abuse of discretion, we respectfully ask Council to reverse HPC’s decision and approve the application. SUBMITTED this 9th day of April, 2021. HOLLAND & HART LLP By: Thomas J. Todd, Reg. No. 1628 Hayley K. Siltanen, Reg. No. 54937 ATTORNEYS FOR APPLICANT 2 Both Commissioners Halferty and Thompson properly considered adjacent development. Commissioner Halferty, for example, noted the “canyon effect” caused by the surrounding buildings and stated that he “always look[s] for the context on the next door and neighboring projects[.]” T2, pp. 112 (ln 1 6-17) and 115 (ln 5-6). 3 By contrast, Commissioner Halferty, who voted to approve the project, recognized that the R -6 zone district is not appropriate context: “We’re not in the R6 zone. If we were in the R6 zone, there’d be a lot of different I think comments from our board.” T2, p. 112, ln 1-3. Commission Chair Thompson similarly observed that “[w]e don’t review a lot of projects in the RMF zone,” which “allows for more massive structures[.]” T2, p. 115 (ln 23-25).