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2021.04.09 Letter to Nicole Henning Re Brief of Cooper Avenue Victorian ...ASPEN OFFICE 625 East Hyman Avenue, Suite 201 Aspen, Colorado 81611 Telephone: (970) 925-1936 Facsimile: (970) 925-3008 GARFIELD & HECHT, P.C. ATTORNEYS AT LAW Since 1975 www.garfieldhecht.com 2441948 April 9, 2021 VIA E-MAIL CHRISTOPHER D. BRYAN Nicole Henning, City Clerk City of Aspen 130 S. Galena Street, 2nd Floor Aspen, CO 81611 E-mail: nicole.henning@cityofaspen.com cbryan@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 Cooper Avenue Victorian Condominium Association in Support of HPC Decision Dear Ms. Henning: This office represents Cooper Avenue Victorian Condominium Association, Inc. (“Cooper Ave. Victorian”). Attached please find Cooper Ave. Victorian’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 Christopher D. Bryan cc: Cooper Ave. Victorian 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 Cooper Avenue Victorian Condominium Association in Support of HPC Decision (submitted in accordance with City Council, City of Aspen Resolution No. 33, Series 2021) This appeal by 1020 Cooper LLC (“Applicant”) is governed by the LUC Sec. 26.316.030(e), which provides the following standard of review: … the decision-making body authorized to hear the appeal shall decide the appeal based solely upon the record established by the body from which the appeal is taken. A decision or determination shall be not be reversed or modified unless there is a finding that there was a denial of due process or the administrative body has exceeded its jurisdiction or abused its discretion. This is the same standard as Rule 106(a)(4) of the Colorado Rules of Civil Procedure: [w]here any governmental body or officer … exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion . . .(I) Review shall be limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its discretion, based upon the evidence in the record before [that] body or officer. C.R.C.P. 106 case law is instructive and guides Council, acting as the “court,” in its appellate review of the HPC’s denial of Applicant’s application. That application seeks to relocate the miner’s cabin (“historic resource”) at 1020 E. Cooper Ave. (i.e., Highway 82) forward on the property and to construct a five unit (two within the historic resource and three in a tall detached building behind) affordable housing complex behind the historic resource, with four parking spaces adjacent to a narrow dead-end alleyway. (000039-000045; T2, p.62,ll.4-8.)1 Under BOCC v. Conder, 927 P.2d 1339, 1343 (Colo. 1996),2 a governmental body abuses its discretion if: there is no evidentiary support in the record for the decision, it exceeded its 1 There is no denial of due process when Applicant was afforded two public, quasi-judicial hearings lasting over 2.5 hours each. 2 See also Colo. Airport Parking, LLC v. Dept. of Aviation of City and Cty. of Denver, 320 P.3d 1217, 1219 (Colo. App. 2014). 2 authority, or it “misconstrued or misapplied the applicable law.” The decision of the governmental body must be upheld unless there is no competent evidence to support it, meaning the decision is so devoid of evidentiary support that it can only be explained as being arbitrary and capricious. Carney v. Civil Serv. Comm’n, 30 P.3d 861, 863 (Colo. App. 2001).3 Review is limited to the record below. Id. Review may not include new evidence or remand for further findings. Id. “Generally, express factual findings are not a prerequisite to a valid decision by an administrative board if the necessary findings may be implied from the action taken.” Canyon Area Residents for the Env’t v. BOCC, 172 P.3d 905, 909 (Colo. App. 2006).4 In reviewing the Record, there is overwhelming support for HPC’s decision to deny the application. The Applicant, City Staff, and HPC all agreed that HPDG Chapter 11, which applies to new buildings on landmarked properties, governs. (000003; 000023; 000060-61; T2, pp.113- 114.) HPDG Chapter 11 states that “[a] new building must be compatible in mass and scale with its historic neighbor and not overwhelm it.” HPDG 11.3 says 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 a 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.” The HDPG are incorporated into the LUC at Sec. 26.415.010: “…new construction in historic areas shall respect the character of each such setting, not by imitating the surrounding structures, but by being compatible with them as defined in historic preservation guidelines.” 3 See also BOCC v. O’Dell, 920 P.2d 48, 50, 52 (Colo. 1996); Conder, 927 P.2d at 1343; Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo. App. 2008); Friends of the Black Forest Preservation Plan, Inc. v. BOCC, 381 P.3d 396, 400 (Colo. App. 2016). 4 Citing Sundance Hills Homeowners Ass’n v. BOCC, 534 P.2d 1212 (Colo. 1975). 3 Sec. 26.415.060(B)(I) states that the HPC has adopted the HDPG, which “set forth the standards necessary to preserve and maintain the historic and architectural character of designated properties and districts.” Therefore, the HPC did not exceed its authority in applying the HPDG. The LUC is the legal framework for land use development in Aspen. Such provisions “are to be construed as a whole to give a consistent, harmonious, and sensible effect to all of their parts…. When we interpret a comprehensive legislative scheme, we must give meaning to all portions thereof and construe the statutory provisions to further the legislative intent. In construing a statute, we look first to the plain language of the statute and words should be given their plain and ordinary meaning. If the statutory language is clear and unambiguous, the statute must be interpreted as written.” Droste v. BOCC of Pitkin Cty., 159 P.3d 601, 605 (Colo. 2007). Thus, the HPC must incorporate the HPDG in reviewing any application, like this one, per Sec. 26.415.070(D)(3)(000003). Public comment on an issue before the HPC at a public hearing is competent evidence: “opinions expressed…by ordinary citizens can be considered by the commissioners.” Western Paving Constr. Co. v. Jefferson Cty., 689 P.2d 703, 706 (Colo. App. 1984). The HPC meeting transcripts include public comment and discussion of mass and scale: The following are from the transcript of the January 13, 2021, HPC Meeting (“T1”): Sara Adams: “[W]e’re proposing a three-story building behind the one-story landmark.” p.21,ll.3- 4. Mary Geiger: “Focus here on Guidelines 11.3, 11.4, with regard to mass and scale…the mass and scale of this proposal is much too large for really the lot and frankly dwarfs the historic resource.” p.54,ll.17-20; p.55,ll.7-10. “I’d like for the Commission to really look at the fact that this is a very small lot and the mass and scale of this project dwarfs that historic landmark.” p.56,ll.6-8. Baron Concors: “[T]he main issue remains the same as the previous project, which I’m surprised was glossed over in all the discussions prior to this, which is mass and scale. . . It 4 overwhelms the lot.” p.57,ll.13-21 & 25. Bukk Carleton: “And then we have your guideline saying that the back building should not overshadow the front building. Well, when you have a building that’s 30-feet high – 34 feet high over a building that’s 10 feet high, you sure as heck are overshadowing it in [sic] having a 10-foot differential is not going to make the difference.” p.60,ll.3-8. Michael Smith: “Then mass and scale, the project shreds the historic guideline at 11.3 and 11.4 requiring that, quote, a new building appear similar in scale and proportion to the historic building and have a front elevation similar in scale to the historic. It’s not possible to look at the front rendering on page 134 of the packet and conclude that these criteria are even remotely met. There’s a three-story rear structure that towers 18-feet above the roof [of the historic resource].” p.70,ll.21-25; p.71,ll.1-4. Scott McDonald: “one is struck first by the significant massing of the three-story five-plex.” p.74,ll.8-9. Tiffany Smith: “My continued primary concern with the 1020 East Cooper project is, of course, the mass and scale … in relation to – both to the historical source and the very narrow and non-compliant lot size.” p.77,ll.13-17. “… historic resources have become so rare in our multi-family zoned area that the 1020 house and it’s lovely lot, formerly owned by … somewhat iconic Aspenite, Su Lum, is actually more precious and should be honored and not completely and literally overshadowed by an enormous dark tower looming over it.” p.78,ll.5-11. Chris Bryan: “This board and commission knows what it’s supposed to do. It’s supposed to follow the guidelines. It’s not following 11.3 if it approves this project. The new building is supposed to appear similar in scale and proportion. This is a single-story historic home that will be dwarfed by a multi-family building that’s nearly 32 feet high with what looks like porches that overhang the front that go over the historic structure. . . . The height of this new building is more than twice of the historic structure” p.80,ll.18-25; p.81,ll.8- 9. “I also draw your attention to [HPDG] 11.4. The design of a front elevation is to be similar in 5 scale to the historic building. The primary plane of the front shall not appear taller than the historic structure. Again, this project, as currently conceived, is too high and it’s too large.” p.81,ll.10-15.5 Comm’r Thompson: “the biggest one for us to discuss is our conceptual review, mass and scale…” p.94,ll.18-19. Comm’r Moyer: “I have a huge number of comments but I think speaking strictly to mass and scale, it’s way too large…” p.95,ll.6-8. “So, at any rate, all of these comments were … terrific and I think if this project went to City Council right now they’d deny it and … I am not prepared to allow it to go on at the size that it is.” p.96,ll.12-15. Comm’r Halferty: “Although the building isn’t attached on the proposed application, I feel like the mass and scale is just too large.” p.98,ll.15-17. “I just think the scale is just too tall.” p.99,ll.12-14. “[O]ur goal and our purview as historic preservation members is to make an architecture that fits in with the historic resource as well as the neighborhood but mostly the resource and I just feel…especially with chapters 10 and 11 [HPDG], that the addition is not exactly conforming to our resource…mostly the mass and scale and how it lurches over the top of or perches over the top of the historic resource.” p.100,ll.2-12. Comm’r Kendrick: “Whereas, I am a very big proponent of affordable housing…we are…here to preserve historic resource and I, like – like Jeff and like Roger, I do believe that the mass and scale is just too large for this project.” p.101,ll.5-10. Comm’r Thompson: “I mean my…biggest concern is the mass and scale.” p.115,ll.5-6. The following are from the transcript of the February 17, 2021, HPC meeting (“T2”): Lou Stover: “I’m concerned about the sheer size of this…at the last meeting the developer was directed to reduce the size and I think very minor things were done. I don’t feel that the historic group is following their own guidelines as to the feel and development of the historic property.” 5 Chris Bryan: “Look at p.6 of the staff report. The 2019 application for this parcel had a proposed floor area of 2,370 sq. ft. This project is almost 4,200 sq. ft. and just as with the prior proposal this project cannot result in buildings that are double the size of the original structure.” p.82,ll.4-9. 6 p.57,ll.12-17. Baron Concors: “The neighborhood opposition to this property has nothing to do with affordable housing. This is about the overwhelming mass and scale that’s been talked about now for two years.” p.58,ll.15-18. “The back structure completely overwhelms the historic resource and goes against the very principle, which the…HPC was created to ensure massive structures like this are not built on our historic properties. In the opening statements, the developer’s FAR and height analysis compares apples to oranges. None of the properties being compared to 1020 Cooper are historic. This is about the mass and scale of the historic property, not non-historic properties.” p.59,ll.4-12. Bryan Schroy: “it’s the scale of which is definitely a concern…this is a very tall building in a historic lot.” p.61,ll.10-12. Chris Bryan: “The applicant and staff have not done enough to reduce mass and scale.” p.62,ll.1-2. Mary Geiger: “The important thing here is…whether it meets the critical guidelines – the critical historic guidelines and the critical one here is mass and scale…. the applicant has come back and made some changes, as was discussed, with regard to reducing the roof height by a few feet, extending the front yard by a foot and a half and changing the floor area and those…but it still does not get there on mass and scale. You are going to dwarf this resource.” p.85,ll.15-20; p.86,ll.8-14. “I think you guys gave some great feedback to the applicant last time about looking at a reduction in the number of units…. Applicant has said that they weren’t going to go that route.” p.87,ll.14-18. Stephen Abelman: “I have to say we are discouraged with the outcome of this proposed updated application. The very minor mass and scale changes are just disappointing and actually do make the situation worse,” p.102,ll.9-12. Michael Smith: “the size, the mass, quote, way too large, too large, too overwhelming for the historic structure. 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 7 commissioners…I find it offensive, made only a 3.7 percent reduction in floor area and actually made the units less livable.” p.88,ll.8-17.6 Tiffany Smith: “My concern with the latest application is that the minor changes though attractive are basically meaningless. They don’t adequately address the main concerns of both the neighbors and three members of the HPC board per our last meeting. The addition is still too massive and overwhelms the historic cabin.” p.104,ll.8-13. Comm’r Kendrick: “Going back to the mass and scale, I appreciate all the efforts that the applicant put into the redesigning and I think it is a nicer design. In the end though, I don’t think it really affects the mass and scale that much…it still overwhelms the historic resource.” p.113,ll.18-24. Comm’r Moyer: “I feel that the mass and scale is too much period.” p.114,ll.1-2. “The structure behind this tiny little miner’s cabin is simply too large so I cannot support it.” p.117,ll.15-17. Comm’r Thompson: “we’re moving to deny this because of the mass and scale…that a reduction of a story or a reduction – a significant reduction in the mass of the second structure is what we would be looking for here but that doesn’t seem like that would be feasible to the applicant.” p.131,ll.13-19. Comm’r Kendrick: “I don’t believe that it applies – that it complies to our guidelines.” p.132,ll.10-11. Comm’r Moyer: “I don’t either believe it complies with our guidelines.” Id. at ll.12-13. HPDG 11.3 & 11.4 clearly were not met; HPC’s decision must not be disturbed: HPC didn’t act arbitrarily and capriciously, didn’t abuse its discretion or exceed its jurisdiction, and didn’t misconstrue or misapply the law. Western Paving, 689 P.2d at 707.7 6 Michael Smith: “11.3, quote, construct a new building to appear similar in scale and proportion with the historic building on the parcel. There is no similarity in scale and proportion between this three-story new building and the single-story historic building. You just can’t say it is. It’s…not true. 11.4, design a front elevation to be similar in scale to the historic building. The primary plane of the front elevation shall not appear taller than the historic structure…. [T]he ridge peak…stands 32 feet above grade. The historic is 15…nobody can say that that meets the guideline.” pp.89-90. 7 “…the zoning resolution…set forth that traffic consideration is a legitimate zoning objective. A decision made in furtherance of a legitimate zoning objective is not an abuse of discretion. [The] assertion that the commissioners exceeded their jurisdiction…is without merit....”