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2021.04.09 Letter to Nicole Henning Re Brief of Riverside Condominium Association in Support of HPC DecisionGLENWOOD SPRINGS OFFICE 901 Grand Avenue, Suite 201 Glenwood Springs, Colorado 81601 Telephone (970) 947-1936 Facsimile (970) 947-1937 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com 2441951 April 9, 2021 VIA E-MAIL MARY ELIZABETH GEIGER Nicole Henning, City Clerk City of Aspen 130 S. Galena Street, 2nd Floor Aspen, CO 81611 E-mail: nicole.henning@cityofaspen.com megeiger@garfieldhecht.com Re: 1020 Cooper LLC Appeal of February 17, 2021 Decision of Historic Preservation Commission (“HPC”) Concerning the Development Application of 1020 Cooper LLC for the East 13.79’ of Lot O and all of Lot P, Block 34, East Aspen Addition to the City of Aspen, also known as 1020 East Cooper Avenue, Aspen, CO 81611 Brief of Riverside Condominium Association in Support of HPC Decision Dear Ms. Henning: This office represents Riverside Condominium Association, Inc. (“Riverside”). Attached please find Riverside’s brief in support of the HPC decision described above, submitted in accordance with City Council, City of Aspen Resolution No. 33, Series 2021. Please confirm the receipt of this record and that it will be transmitted to the City Council in advance of the hearing on this matter scheduled for April 19, 2021. Please contact me if you have any comments or questions. Thank you. Sincerely, GARFIELD & HECHT, PC /s/ Mary Elizabeth Geiger Mary Elizabeth Geiger cc: Riverside 1 1020 Cooper LLC Appeal of February 17, 2021 Decision of Historic Preservation Commission (“HPC”) Concerning the Development Application of 1020 Cooper LLC for the East 13.79’ of Lot O and all of Lot P, Block 34, East Aspen Addition to the City of Aspen, also known as 1020 East Cooper Avenue, Aspen, CO 81611 Brief of Riverside Condominium Association in Support of HPC Decision (submitted in accordance with City Council, City of Aspen Resolution No. 33, Series 2021) Riverside Condominium Association (“Riverside”) incorporates by reference herein the standard of review of this Appeal as set forth in the brief of Cooper Avenue Victorian Condominium Association, submitted contemporaneously herewith. Despite what 1020 Cooper LLC (“Applicant”) would assert, the proposed project for 1020 E. Cooper Avenue is not “fully Code-compliant.” T1, p.16,ll.22-23. In fact, such statement completely ignores the thrust of the HPC’s decision to deny the project on February 17, 2021, by finding that the mass and scale of the new building was too large in comparison with the historic resource. See T2, p.131,ll.12-15; p.132, ll 10-13. HPC was the development review body in accordance with LUC Section 26.415.070(D)(3). (000003; 000455). As such, the HPDG apply. See HPDG Introduction: “The Aspen Historic Preservation Commission (HPC) must determine that a sufficient number of the relevant guidelines have been adequately met in order to approve a project proposal. . . Note that not every guideline will apply to each project, and that some balancing of the guidelines must occur on a case-by-case basis. City Staff or the HPC will determine that a sufficient number of the relevant guidelines have been adequately met in order to approve a project proposal;” see also proposed Resolution at 000466. Applicant, when insisting that this project is fully Code-compliant, only can refer to the fact that it did not request any variances pursuant to the applicable LUC provisions for GMQS, parking, setbacks and affordable housing. (000497; T2, p.8,ll.22-25). However, such statements ignore the inescapable fact that this lot is only 4379 square feet and is thus a non-conforming lot 2 within the Residential Multi-Family (“RMF”) zone district, which has a minimum lot size of 6,000 square feet. (000002; 000012; T1, p.54,ll.20-23; LUC Section 26.710.090(d)). As such, the only allowed use on this lot, without the historic resource, would be a single-family home. T1, p.29,ll.4- 9; p.55,ll.1-6; LUC Section 26.312.050(a)(2). This is what puts the project within the purview of the HPC, which then means it must comply with the relevant HPDG. See Brief of Cooper Avenue Victorian Condominium Association; see also LUC Section 26.312.050(c). Applicant opened its presentation at the February 17, 2021, meeting stating “This is about the Historic Preservation Design Guidelines, of course.” T2, p.7,ll.23-24. Therefore, Applicant’s attempt to push these aside has no merit. The HPDG are incorporated into the LUC and the HPC review by Sections 26.415.010 and 26.415.060(B)(I), the latter which states that “[c]onformance with the applicable [HPC] guidelines and the common development review procedures set forth in Chapter 26.304 will be necessary for the approval of any proposed work.” Sec. 26.415.070(D)(3)(b)(2) then provides that “[t]he HPC will review the application, the staff analysis report and the evidence presented at the hearing to determine the project’s conformance with the City Historic Preservation Design Guidelines.” These are all “Code” provisions, and since the HPC found that the project did not comply with the HDPB Guidelines 11.3 and 11.4 regarding mass and scale, it is disingenuous to call the project “fully Code-compliant.” T2, p.131,ll.12-15; p.132,ll.10-13. That rhetorical trick didn’t work with HPC, and it won’t work with Council—even Applicant has readily admitted that “[t]his is about the Historic Preservation Design Guidelines, of course.” T2, p.7,ll.23-24. Yet, Applicant ignores its own statements and says that “this code-compliant project is about meeting the intent and the requirements of the multi-family zone district.” T2, p.8,ll.3-4. As set forth above, the RMF standards for a multi-family development would not apply and would not be available without the 3 historic resource. The HPC was correct not to fall for this argument and to not ignore HPDG 11.3 and 11.4. “The only reason this is even in front of you guys is because of that historic resource and that is – needs to be preserved and the mass and scale should be appropriate.” T2, p.86,ll.21-23. “The only reason that affordable housing is even becoming part of the conversation is because of that historical resource.” T2, p.87,ll.5-7. Per LUC 26.414.070(D)(3)(B)(2), the HPC properly exercised and stayed within its authority in deciding this matter, as supported by the Record. Neither neighbor to the project, at either Cooper Ave. Victorian or Riverside, is against affordable housing. “The neighborhood opposition to this property has nothing to do with affordable housing” (Baron Concors, Riverside, T2, p.58,ll.15-17). “We have no issue with the affordable housing. It’s sheerly – it’s the scale of which is definitely a concern” (Bryan Schroy, Riverside, T2, p.61,ll.9-10), “The neighbors have made it clear that they are not opposed to affordable housing” (Chris Bryan, attorney for Riverside and Cooper Ave. Victorian, T2, p.63,ll.10-12). Members of the public, as well as several HPC members, stated on the record that a scaled-back project (of, say, three instead of five affordable housing units), would substantially decrease density and be more acceptable under the applicable provisions of the HPDG. (“Danusia Novak of 1015 East Hyman. She feels the density is too much and suggests three units.” T1, p.84,ll.9-11; “Lorne and Laura Leil have concerns with the mass and scale of the project. . . They feel that . . . three units is appropriate.” T1, p.85,ll.3-6; Comm’r Halferty: “I think we can definitely revisit and the number of units perhaps goes down,” T1, p.100,ll.9-10; Comm’r Moyer: “I don’t know how they can reduce that [mass and scale] without having less units and perhaps it has to be a three-unit project or a two-unit project,” T1, p.103,ll.12-14; “A final comment, Sara. I still think it’s too many units,” T1, p. 112,ll.9-10. The record is abundantly clear that the proposed density of five units would not comply with HPDG 11.3 and 11.4 regarding mass and scale. 4 Despite that clear direction, Applicant refused to modify the density for its project and returned to HPC with the same number of units. (Sara Adams: “. . . five deed-restricted units is reasonable and to be expected,” T2, p. 26,ll.2-3. Leisha John: “I have to say I do appreciate the tweaks that have been made to the project along the way, but, like others have said, my biggest issue is around the mass and scale compared to the very small lot and I’m all for affordable housing. . . .it’s way too many units.” T1, p.68,ll.8-14; Chris Bryan: “Most neighbors believe that an application for fewer units, three, should be supported and it could be supported and this HPC board told the applicant that last time and then didn’t come back with reduced units. They just lobbed off a little bit of height and then put a dormer on.” T2, p.63,ll.19-24; Diane Wuslich: “. . . then, secondly, affordable housing is just that affordable but we were told on the last conference call that the bedrooms or the units would not be reduced in this building because they weren’t financially feasible, which kind of says you’re saying we want to provide affordable housing but the builder doesn’t want to cut back on his profit by cutting back on units.” T2, p.67,ll.15-22; Michael Smith: “What did the applicant do? The applicant revised the proposal slightly … removing no units, not even a single bedroom so how responsive were they to the comments of the commissioners? They basically thumbed their nose at the commissioners.” T2, p.88,ll.8-17.1 But the provision allowing affordable housing does not trump the other provisions of the LUC or 1 This goes to the concern that many members of the public had about the crowded density of five units (consisting of 12 bedrooms) on a small non-conforming lot, on top of one another, decreasing the livable space and the quality of life for the inhabitants.T2:p.59,ll.22-24; p.60,ll.1-5; p.62,ll.21- 25; p.63,ll.1-5; p.75,ll.9-13; p.80,ll.21-24; p.81,ll.1-5. The units are below APCHA’s minimum square footage for affordable housing units. T2, p.62,ll.9-15 (“With the applicant’s modifications from the prior hearing, three of the five units still do not meet the minimum size requirements for affordable housing, as set forth by APCHA”). 5 the HPC’s determination that HPDG 11.3 and 11.4 regarding mass and scale are not met.2 Applicant spent time presenting a comparison of the project to “other multi-family buildings in the neighborhood,” arguing that the project was not taller nor was it excessive in FAR. T2, pp.21-23; 000585. However, these neighboring multi-family buildings are not historic landmarks or properties, nor are their lots non-conforming – they are much larger (See 000583; T1, p.114,ll.3-16; T2, p.59,ll.8-12). Such comparison is meaningless as far as HPDG 11.3 and 11.4. Yet, Applicant stated they were “under floor area. We’re under height. We’re contextual with the neighborhood and we exceed the parking requirement.” T2, p.109,ll.1-4. But what Applicant could not say, and what HPC found, was that Applicant met the requirements of HPDG 11.3 and 11.4. See T2, p.132,ll.10-13. Commissioner Kendrick specifically stated “the whole idea that this project is code compliant I think is – you know – a bit misleading. If it weren’t for the historic designation on the property, this project wouldn’t be allowed. It’s a non-conforming lot. It’s very small and slapping an HPC designation on it is not – you know – free rein to build to the limits of the code. I think our – our purview is still to protect the historic resource.” T2, p.114,ll.7-14.The stated policy of Chapter 11 of the HPDG is that “[n]ew detached buildings may be constructed on a parcel that includes a landmarked structure. It is important that the new building be compatible and not dominate the historic structure.” In denying the project, HPC clearly, and correctly, stated that, the project does not comply with the HPDG. See T2, p.132,ll.10-13. Not only did the public comment from both the January 13, 2021, and the February 17, 2021, HPC hearings support this 2 HPDG 11.3 states that developers must “[c]onstruct a new building to appear similar in scale and proportion with the historic buildings on a parcel,” and “[r]eflect the heights and proportions that characterize the historic resource.” HPDG 11.4 requires the front elevation of the new building to “be similar in scale to the historic building,” such that “[t]he primary plane of the front shall not appear taller than the historic structure.” 6 finding (see Brief of Cooper Ave. Victorian Condominium Association) but the following information in the hearing documents does as well: The following factual information was included in the hearing documents for the January 13, 2021, HPC meeting: Depiction of project shown on 000128-000129; 000135-000136. Height of new building: 31 ft. 8.25in. (000041). Height of historic resource: 15’4” one story (000061)/14’8.75” (000087). Proposed square footage of livable space: over 5,000 sq. ft. (000162). Floor area: 4,241 sq. ft. (000162). Lot size: 4,379 sq. ft. (000161). The following factual information is from the hearing documents for the February 17, 2021, HPC meeting: Floor area: 3,899.5 sq. ft (000493). Height – South elevation: 27 ft. 6in; North elevation: 26 ft. 8.5in; East elevation: 29 ft. 8.5in; West elevation: 29 ft, 1.5in (000497). Now saying historic resource is 16’6” (000517). Still five units (000665). Depiction of revisions (000666-000670). In finding that the issues in HPDG 11.3 and 11.4, regarding mass and scale, were the most relevant to the project (see T1, p.94,ll.18-19: “I think, obviously, the – the biggest one for us to discuss is our conceptual review, mass and scale”), HPC was required to ensure the project met these provisions. Chapter 11 states that “[a] new building must be compatible in mass and scale with its historic neighbor and not overwhelm it” (emphasis added). Black’s Law Dictionary, 7 following the courts, defines “must” as “[t]his word, like the word ‘shall,’ is primarily of mandatory effect.” Thus, the new three-story, three unit, building proposed behind the historic resource was required to be compatible in mass and scale. Council can only overturn HPC’s decision if it is arbitrary and capricious, if HPC exceeded its jurisdiction or abused its discretion, or if HPC misapplied or misinterpreted applicable law (including the LUC). See Elec. Power Research Inst., Inc. v. Denver, 737 P.2d 822, 825 (Colo. 1987) (final orders of a governmental body are to be set aside if, in the exercise of quasi-judicial authority, the governmental body exceeds its jurisdiction or abuses its discretion). As set forth above, HPC did not exceed its jurisdiction because it had to—was duty-bound to—consider the HPDG in reviewing the application. See LUC Sections 26.312.050(c) & 26.415.070(D)(3)(b)(2). Nor did it abuse its discretion, as there is ample evidence in the record to support the decision, which is what the Colorado Supreme Court has stated is the legal standard. See Board of County Comm’rs of Larimer County v. Conder, 927 P.2d 1339, 1343 (Colo. 1996). Finally, HPC neither misapplied nor misinterpreted applicable law – the project is not “fully Code-compliant,” it does not meet the requirements of HPDG 11.3 or 11.4, as outlined herein. See also Griff v. City of Grand Junction, 262 P.3d 906, 909 (Colo. App. 2010) (the misapplication or misinterpretation of applicable law—including a municipality’s own code—may constitute an abuse of discretion). Therefore, Council has no choice but to uphold the HPC’s decision, which was made properly, in accordance with the HPDG and LUC, and well within the jurisdictional power and discretion of HPC. In sum, HPC did its job and faithfully applied the HPDG in reviewing the application. Council should similarly do its job and faithfully adhere to its role as the reviewing body on appeal. Accordingly, Council should not disturb HPC’s decision.