Special Meeting Aspen City Council August 2, 2010 Mayor Ireland called the special meeting to order at 3:10 p.m. with Councilmembers Skadron, Torre, Johnson and Romero present. ORDINANCE #16, SERIES OF 2010 – Aspen Art Museum 633 Spring II LLC Subdivision Review Mayor Ireland said this proposal is a litigation settlement, which means this is not subject to the same land use reviews through various bodies of the city. Mayor Ireland reminded everyone that the city denied the Wienerstube project; the applicants sued; the city prevailed; the applicants appealed. Mayor Ireland said the urgency is that the courts are ready to make a decision, which could satisfy neither the city nor the applicant and the community could get the building that citizens did not like very much. Mayor Ireland noted the existing land use code would allow more development on the property than this proposal. Mayor Ireland pointed out the settlement offers the city repossession of the current art museum space. Mayor Ireland said he feels settlement has advantages over litigation, which results may satisfy no one. Chris Bendon, community development department, presented the affidavit of public notice. Bendon said the nature of litigation required the principals to negotiate directly, which is different from the standard land use process. Council has been presented with a proposal to settle litigation, which staff felt was compelling enough to bring forward. The settlement suggests two new buildings on the site; a mixed use building and a new art museum. The proposed project has been reviewed by staff and the technical review agencies; their requirements are in Ordinance #16. Bendon pointed out since first reading, the public has been encouraged to visit the art museum and view a model and drawings. The city held 3 brown bag meetings in the Council Chambers. This information has been on the city’s web page, which was visited by 140 people. Nikkos Hecht, applicant, told Council he purchased this land 7 years ago and went through review on the property. Hecht said he was approached by the Art Museum and he felt it was an opportunity for Aspen to take a cultural step with a museum downtown. Hecht told Council he is excited to be part of the project. Heidi Zuckerman Jacobson, Aspen Art Museum, showed Council pictures of the current exhibition at the art museum. Ms. Jacobson noted the art museum is open 6 days/week, year round. The art museum offers year round programming and does not charge for admission. Ms. Jacobson said in the past year more than 32,000 visitors have come to the art museum, which is a 20% increase over the previous year and a 120% increase over the last 5 years. Ms. Jacobson noted the art museum is offering 26 workshops with over 310 children participating, a 182% increase over last year and a record high. Ms. Jacobson said among the groups partnering with the art museum are CMC, ACES, the Aspen Writers’ Foundation, Aspen Historical Society and others. Ms. Jacobson said the art museum is committed to being an art educator in Aspen and in the region. The exhibit in a box program travels to all schools within a 2.5 hour driving radius of Aspen and includes a trip to the museum by those schools. The museum reached 1,611 3rd grade students at 30 schools, which is a 30% increase over the past year 1 Special Meeting Aspen City Council August 2, 2010 and 4 years ago only 250 students visited the museum. Ms. Jacobson told Council the art museum also partners with the Pitkin County Library and Jail. Those programs are the essence of what the museum does and they will continue these in an expanded form in a new facility. Ms. Jacobson said the museum board has been seeking a location for a new facility in order to relocate to the downtown core. Ms. Jacobson said after the May 2009 election, the board agreed to pursue properties for sale and met with 12 property owners. Ms. Jacobson said in meeting with 633 Spring II LLC, the art museum felt the attributes of the site are amazing, within walking distance of nearly 7,000 pillows in the core, encourages intermingling of activities downtown, activates the east end of Aspen and will be a bookend to the Wheeler on the other side of town. Shigura Ban, architect, said he has spent time in Aspen to try to understand Aspen and to embody the spirit of Aspen into the design. Ban said the museum should be totally open to the public and act as a gathering space. Ban said he designed the museum “upside down” with the rooftop as the main lobby of the museum and open to the public. There is a 12’ wide stair on Spring street open to the public in order to climb up to the roof top. There is a glass elevator in the corner to bring people to the roof top. Ban said this mirrors the idea of skiing, take the lift to the top and enjoy coming down and at the museum take the elevator to the top and work down through the museum. Ban said one can see what is happening in the museum from the sidewalk as well. Ban showed a mock up of the wooden transparent screen which will be used on the outside of the museum. Ban said this wood is supposed to look like the brick used throughout town. Ban said the minimum ceiling height needed is 14’ with 3’ in between floors. There will be a sculpture garden on the roof. This all adds up to 47’ including the photovoltaic and other mechanical equipment. Ban reiterated the 3rd floor will be for the public and will not be setback like residential units. Stan Clauson, representing the mixed use building, showed how the mixed use building will be set back and be subordinate to the art museum so that the focus is on the public building. There are 3 stories in the mixed use building with the 3rd story setback 25 feet. The 1st story is 3500 square feet of net leasable; 2nd story has 4500 square feet of net leasable for a total of 8100 square feet net leasable commercial. The 3rd story is two units of residential. Clauson noted the original Wienerstube building was 49,376 square feet and at the time conforming to the requirements in the land use code for the C-1 zone district. The current proposal for both buildings is 41,500 square feet or 16% less than the original proposal. Clauson told Council the current proposal is 45,000 square feet or about 8 to 10% less than is allowed. Clauson said there is employee generation from the commercial, which is 9.6 employees and to be provided for off site. Clauson said this building would be 25% larger if the affordable housing is built on site. Ms. Jacobson told Council the art museum board is fully committed to privately funding 100% of the cost to acquire the land, to construct the facility and for an operational 2 Special Meeting Aspen City Council August 2, 2010 endowment. No taxes dollars are being sought for this project. Ms. Jacobson said there is also private endowments for free admission in perpetuity. Ms. Jacobson said there are elements of the AACP which are relevant to this proposal, relating to the vision; these are to encourage a unique mix of people, to foster the inclusive nature of the community, to seek accidental cross culture of people, to encourage a more classless and interactive Aspen, to allow change without restrictive rules dictating a level of conformity that stifles creativity, to build strong community character, and to provide more get together places that encourages mix of the population. Bendon pointed out the application was submitted in 2006 prior to a building moratorium and changes to the land use code. The application is being reviewed under those standards, the code in effect at the time of submission. Bendon told Council both buildings comply with zoning. The art museum site allows for a building of 42’ with an additional 5’ for mechanicals; 47’ is permitted. The zoning allows for a sloped roof which could be developed with a higher ridge line than in this proposal. The mixed use building is lower than the art museum and complies with the height restrictions. The proposed floor area for the art museum is less than allowed; it could be almost 20% larger. The mixed use building is smaller than allowed; the building could have almost 50% more building with affordable housing incentives and free market residential. Bendon noted the land use code was amended through the moratorium; however, under the old code the building could be about 30% larger and it could be about 8 to 10% larger under the current code than this proposal. The Wienerstube proposal was larger than this proposal and had about 4 times the amount of subgrade space, which increases construction time. Bendon reminded Council the size of the Wienerstube was a reason for the denial. Bendon said an outgrowth of the moratorium was the city’s design standards, which the city did not previously have. This proposal complies with the city’s design standards. Bendon told Council new development is expected to be consistent with the AACP, which reflects the attitudes and aspirations of the community and is a touchstone in guiding decisions. Bendon pointed out all subdivisions must meet the AACP. This property is being divided into two lots. The AACP talks about arts and culture and education as essential to Aspen’s year round economy, its vibrant international profile and its future. Bendon said he thinks the new art museum fits that description. The AACP recognizes that Aspen is predominantly built out, physically and notes the community should decide wisely with the few remaining opportunities. Bendon said a new public building is compelling under that scenario. The AACP calls for more get together places. A free art museum and its public roof deck articulate that vision. Bendon reminded Council the civic master plan adopted in 2000 states a downtown location for art related events and activities reinforces Aspen’s identify as a center for arts and culture. The civic master plan encouraged the art museum to explore downtown locations. In 2000, a study described the art museum as on the wrong side of Main Street and recommended an in-town location that could bring more excitement and increase vitality to the down town. The AACP states all public projects must raise standards of 3 Special Meeting Aspen City Council August 2, 2010 design quality and staff feels the project does well on that score. Bendon stated staff believes the project meets all the standards for subdivision. Parking, the AACP calls for relying less on the automobile and more on walking, biking and transportation. The AACP calls for reduction of surface parking in downtown. Bendon said there are between 800 and 900 public parking spaces downtown. Bendon noted parking on site would limit gallery space below grade and would require a taller building. The city’s land use code allows for reduction in parking in circumstances where it is practically difficult or would result in an undesirable development scenario, which staff feel exist on this property. Bendon told Council staff believes adopting this ordinance and the settlement would be a good decision. The pending litigation challenges the city’s ability to use the AACP in a manner in which the community has grown accustomed. The result of approval would be a new public building downtown with arts and culture in the heart of the community, a building that expresses the Aspen idea. Bendon stated staff believes the proposal is compliant with zoning and with the AACP and meets the city’s development regulations and recommends approval. Councilman Skadron asked what percentage of the size reduction is due to moving the affordable housing off site. Clauson said that would require calculations and it does figure into the reduction of size. The art museum building is not built out to its maximum allowable floor area. Councilman Skadron asked how much under allowable is the art museum. Bendon answered the overall project could be 30% larger under the 2006 code and under the current code it could be 8 to 10% larger. Councilman Skadron asked how much of the 41,500 square feet is underground. Clauson said the art museum proposes one floor subgrade and the mixed use building does not have any subgrade. The original Wienerstube proposal has 2 floors subgrade. The lack of subgrade lessens the construction impact and removal of material from the site. Councilman Skadron asked about priority of use and hours of use for a space that is termed “public”. Ms. Jacobson said the conceptual plan is to have the roof deck/sculpture garden open the same hours as the museum. Councilman Skadron said there is a “dark skies” initiative in the community to keep lighting at a minimum in order to experience the natural beauty of the night skies. This proposed building is glass and lattice. Councilman Skadron asked if the lighting from the building will be controlled. Ms. Jacobson said there is no intent to light this building like an illuminated beacon. Ms. Jacobson pointed out this building includes proper spaces for viewing art including being day lit. Councilman Skadron asked when issues like lighting are dealt with. Bendon said typically at building permit stage. Bendon pointed out there is a condition in the ordinance for the project to comply with the city’s outdoor lighting provision and that the community development department review issues like transparency, materials and how lighting affects the area. Councilman Skadron asked if the commercial design guidelines differ for the C-1 zone and the CC zone. Bendon noted the commercial core is a historic district and the design objectives for the commercial core require maintaining a retail orientation, promote creative contemporary design respecting the historic context, 4 Special Meeting Aspen City Council August 2, 2010 maintain traditional scale of buildings, keep a variety of building heights, accommodate outdoor public spaces, and promote variety of street level experience. The design objectives for the C-1 district ask to strengthen relatedness to the commercial core historic district. C-1 is not a historic district. The other objectives are to maintain a retail orientation, promote contemporary design, encourage a well defined street wall, and reflect a variety of building heights. The guidelines are similar without referring to the historic context. Councilman Skadron asked if staff feels this application meets the commercial design guidelines for the C-1 district. Bendon said it does. Councilman Skadron asked if this application violates the dimensional requirements of the C-1 zone. Bendon stated both buildings are in compliance with C-1 zoning. Councilman Skadron asked about the transitional intent of the C-1 zone. Bendon said the intent statement is to transition between the CC and other multi-use zones. That intent is expressed through a slight reduction in development, height, floor area and allows for offices on the ground floor. Councilman Skadron said the maximum height is 28’ for a 2 story element and 36’ for a 3 story element and up to 40’ through commercial design review. This ordinance establishes the allowable height at 42’ plus 5’ for mechanical for a total of 47’, how can that not be a variation. Bendon reminded Council the application was submitted in 2006 and the code at that time allowed for 42’ building plus 5’ for mechanical in the C-1 zone before changes were made to the zoning code through the moratorium. Bendon told Council the mechanicals for the art museum are all designed within the building. Councilman Torre said that seems like an interpretation of the code and the overall building envelop is 47’ including mechanicals and the entire building is 47’ and it could be interpreted as in compliance or as a variance. Bendon said the original Wienerstube building took full advantage of the land use code. Bendon noted the land use code talks about the ways in which height is measured, how appurtenances are measured, 5’ above the specified maximum height which includes solar panels and mechanicals. Councilman Torre said this building is 47’, which should be made clear. Councilman Skadron noted the current land use code is more restrictive than the code in effect in 2006. Councilman Skadron said he thought this building was going to be in compliance with the current code and this proposal is larger than expected. Ms. Jacobson said this design has not gotten bigger or smaller than when presented from the beginning. Ms. Jacobson said this proposal is smaller than what could be allowed. Councilman Romero asked who will own the museum property. Ms. Jacobson said pending approval of the litigation, the art museum will have a fee simple conveyance and will own this property. Councilman Romero said the credit being applied for employees, 13.6 FTEs in the existing building, goes to the mixed use building site. Councilman Romero asked how this project relates to the update of the AACP in progress. Bendon said that AACP is still in review; Council and the BOCC have not yet started their review of the AACP. Bendon told Council he has not seen anything that would change staff’s opinion of this project. 5 Special Meeting Aspen City Council August 2, 2010 Councilman Romero said this ordinance requires adherence to the city’s lighting plan and suggested the ordinance be amended so that the project be particularly sensitive to light pollution because of the nature of the project and the location. Councilman Johnson said he has heard public comment that the community would like to see more kids programming at the art museum. Ms. Jacobson told Council a challenge for programming for kids is the lack of classroom space in the museum; the art museum holds a number of kids’ camps at CMC. This design provides for a classroom on the ground level. Councilman Johnson brought up safety issues with the probability of climbing on the lattice work on the front of the museum and the maintenance of the screen. Ban said there will be glass at the ground level so people cannot climb on the screen. Ban told Council they are working on the engineering details of the wood, the screen and the wood on the roof. Ban said unless they have confidence in the durability, they will not use that wood. Bendon said there will be review by the building department before a permit is issued. Ban told Council if the wood screen does not work; there are ceramic tiles that can work. Bendon reiterated a building permit will only be issued if the project is what was represented and what staff thought it would be; the results will come from the technological challenges and how different the project is. Councilman Torre said this is a difficult application to consider because of the process it has gone through. Councilman Torre said he is disappointed there is no input from the P&Z and the regular land use process. Councilman Torre stated he is excited about the possibilities of the museum proposal. Councilman Torre noted the ordinance states the applicants will contribute financially to city affordable housing project in an amount necessary to housing 9.6 employees. Councilman Torre asked if this is above and beyond traditional cash-in-lieu payments and will completely finance the construction to house 9.6 employees. Bendon noted the housing requirements are derived from the mixed use building; the art museum has expressed interest in partnering with the city at Burlingame or other projects or pay cash-in-lieu. The art museum is looking at all those options and the easiest is the cash-in-lieu, which is the most stable option. Councilman Torre noted the city encourages on site affordable housing as the first option; off site housing within the urban growth boundary and cash-in-lieu being the least favorite option. Councilman Torre asked about a maximum of two free market residential units and suggested changing that to a minimum of two free market residential units. Bendon pointed out the ordinance discusses combining the residential units in the mixed use building and the flexibility of being able to redesign the units. The maximum allowable in the land use code is 2000 square feet with the ability to land a TDR; this ordinance does not have the 2000 limitation. Councilman Torre asked about the public amenity space and will it be accessible to the public only when the museum is open. Ms. Jacobson noted the entire art museum is a public amenity space and will be accessible. The current museum is not ADA accessible and the new building will be ADA accessible. Councilman Torre said the code requires public amenity space be ground level and accessible to the public; this public amenity 6 Special Meeting Aspen City Council August 2, 2010 space will be on the roof with limited access. Bendon reviewed various public amenity spaces that are accessible when businesses are closed and those, like restaurant seating, that are not. Bendon said there are security reasons to not have the museum public amenity space open when the museum is closed. Councilman Torre reiterated his concerns are process and that the lawsuit is leveraging this. The projects could and should stand on their own merit. Councilman Torre said he is not sure how transparent the screening will be. Councilman Torre said there maybe ways to make this building appear less massive like redesigning the northeast corner, which is where the greatest height is. Councilman Torre said other concerns for him are birds, people climbing on the screening and weathering of the façade. Councilman Torre asked about the completion bonding and the financial assurances. Bendon noted there is a site protection section to insure building permits are not being released unless the applicant has the ability to complete the project. This will allow the city to access an escrow account in case the developer walks away from a project and the city can make sure the basic public safety needs on the site are met. Councilman Torre asked if there would be parking requirements for the art museum. Bendon told Council there are no parking standards for civic buildings; these are set through the review. Council is to consider the nature of the use and the location. Councilman Torre said people have differing philosophy about parking and he agrees about the location and walking to the museum. Councilman Torre said this project is coming in as an exceptional project and this could set a precedent for other buildings that are not public. Bendon said the community struggles; community members do not like traffic; however, they like the concept of being able to drive to exactly where they are going and to park there. Bendon said forcing developers to provide parking invites people to drive and look for parking. Councilman Torre said he favors minimizing traffic and parking in the downtown. Councilman Torre said one of great things about the art museum is the free admission. Ms. Jacobson told Council there are donors who have underwritten the cost of free admission, which originally was from May 2008 for 10 years and is now through the first 10 years of the new facility and may be in perpetuity. Councilman Torre said there are benefits with this project and some areas of concerns. Mayor Ireland asked if there is a potential to bring in a greater diversity of shows with a larger museum space. Ms. Jacobson said the museum is currently programmed within the physical limitations. This proposal increases museum space from 4,000 to 12,000 square feet and there would be the opportunity for more extensive exhibitions and to increase the variety of offerings. Mayor Ireland said he would like the ordinance amended to limit the use of payment-inlieu to Council’s discretion. Mayor Ireland stated he is not a fan of payment-in-lieu and there are many opportunities for partnering on housing. Mayor Ireland said he would suggest the ordinance be amended so the project complies with whatever future light regulations are adopted by the city. Mayor Ireland noted he received comments that the 7 Special Meeting Aspen City Council August 2, 2010 existing art museum space is adequate for the town. Mayor Ireland disagreed and stated the current space does not allow for a lot of exhibitions. Mayor Ireland pointed out the city has two good size hockey rinks. Art has a place in this community and it does not need to be limited to 4,000 square feet. Mayor Ireland said he received comments that the museum is “elitist” which is anomalous since the museum is free. Mayor Ireland presented a slide show outlining answers to e-mails and pointed out there are no tax dollars in the proposal and the land is private land, not publicly held land. Mayor Ireland said the art museum is currently on city-owned land and their lease would terminate when they move into a new museum. The city will regain public land. Mayor Ireland pointed out this proposal is smaller than the prior Wienerstube project. Mayor Ireland said Council’s choice is not between this proposal and open space or this proposal and the existing businesses. Mayor Ireland reminded Council the prior application could be approved by a Court of Appeals and could possibly contain a total of 85,000 square feet, above and below grade, and 6 residential free market units. Mayor Ireland said there was a time when governments could change their regulations during a pending application. Now, once one applies, that application goes forward with the code as existed when the application was filed. Mayor Ireland presented slides of the Wienerstube building application in 2007 from several views. Mayor Ireland noted the existing zoning allows 45,000 square feet above grade and 36,000 square feet below grade. Mayor Ireland reiterated if this proposal is denied, an applicant could reapply for a 45,000 square foot building within the zoning code The current land use code would require a building to be 2’ lower or 45’. This proposal asks for 41,500 square feet above grade, less than the allowable zoning. Mayor Ireland said an outcome in front of the Court of Appeals is an unknown thing. Mayor Ireland said the present art museum is on historic grounds and is governed by a flood plain so the ability to expand the art museum is limited. If this proposal is approved, the art museum property would revert back to the city for other non-profit uses. Mayor Ireland opened the public hearing. Barbara Bloemink, Anderson Ranch, told Council she is 100% in support of a new art museum building; this would add reasons for coming to Aspen. Stephan Edlis said America loves gutsy moves. Edlis said if this is approved, he will help fund future exhibitions. Alan Fletcher, Aspen Music School & Festival, said he feels this building meets community requirements in imaginative ways. Fletcher said putting art in the commercial core is an overriding public value and the roof top space will be a unique opportunity for the community. Mike Kaplan, Aspen Skiing Company, stated Aspen is a great place to live and visit and it did not happen accidentally; it happened as a result of perseverance and following though on the Aspen idea. Aspen art museum will be a great cultural experience and a great socializing experience. The art museum is constrained on its current site. The art museum will provide public benefits in this building and will have a diversity of offerings 8 Special Meeting Aspen City Council August 2, 2010 which makes it unique. Fern Hurst, Spring and Hopkins, told Council this will be a welcome addition to her neighborhood. John Phelan, vice-president art museum board, noted several years ago the lift ticket designed by an artist stated “give more than you take”. Phelan said this building will be a public benefit, paid for by private donors, it will have a public roof deck, it will provide jobs, it will enhance Aspen’s image, free admission is endowed into perpetuity, there is a school and community outreach program. Phelan noted this is a win/win for the public and private sectors and will settle litigation. Travis McLain told Council he supports moving the art museum into the commercial core as a good move for businesses. Kitty Boone, Aspen Institute, said this proposal represents what the Aspen idea is about, bringing art into the downtown core of Aspen fosters mind, body and spirit. Ms. Boone said the architect brings quality and environmental commitment to his work. The design philosophy is in keeping with the Aspen idea. Maureen Poschman said is it exciting that the art museum will invest in downtown Aspen. Ms. Poschman said cultural tourism has a unique impact. This proposed building is smaller than the previous development. The proposed building will help revitalize the east end. Corey Enlow, Sky Hotel, stated he supports the project. Enlow said his guests like to comingle with locals and the art museum in this location will encourage that. Les Holst said this is a climbing wall. Holst said this building violate the AACP and the land use code and the view planes. This is an unsuitable building and needs to be someplace else. Holst said this building was not designed in the context of Aspen. Holst stated rules are made to be kept. Camilla Auger said she is concerned about the weathering of the façade of the art museum. Ms. Auger said this proposal will be an amenity for the city and community and it would be irrational to turn it down. Raymond Auger said the screen design is a disaster and is a 47’ square box and will be precedent setting. Auger said this building may not be owned by the art museum in perpetuity and could become a commercial building. David Guthrie said his children love to go to classes at the art museum and the leadership and team at the art museum are involved in the community. This is a great value to the community. Denise Reich said this was voted down because it was massive and because it did not fit. This proposal is out of code, there is no parking, it is a 47 by 47 box. Bill Wiener told Council he is in favor of moving and expanding the art museum. Wiener stated he does not support that this does not have to follow the normal process and the codes. Wiener noted the solar will not work because it is not perpendicular to the sun. Wiener stated the building it to tall and too massive. Wiener said the proposed screen makes the building look bigger. Wiener said the service trucks will not be able to back into the alley and will park on the street. Wiener said Council should consider the impacts to the entire community, not who it owner might be. 9 Special Meeting Aspen City Council August 2, 2010 Jack Crawford pointed out the city will be getting this building free. Aspen is a resort town dependent on tourist money and Aspen should keep up with the competition. Michael Owsley said the town is in danger of being moribund, of being stuck in stasis. Council should be making decisions to embrace the future. Aspen needs change. Jeremy Bernstein said he understand the applicant would have the right to build something on this space so essentially there is no choice. Bob Magoon said this is a great museum and great architecture; the entire community will be proud of the building. Magoon said the museum staff is dedicated to serve the community, young and old. Magoon said he feels Aspen needs a shot in the arm and this is it. Marc Friedberg, art museum board, told Council he is very excited about this proposal. Friedberg said an incredible art museum in the downtown core will help to encourage pedestrian traffic. The museum offers many benefits to residents and tourists alike. Friedberg said this is a chance for Aspen to do something significant to help the town; arts is one of the main driving forces in the viability of the town. This will provide a economic engine for many businesses. Larry Rosenfield said he would like to see the art museum smaller than this proposed box; green space is needed around the building. This building is too big. Bob Magoon noted people voted against using city property. Junee Kirk said she is not opposed to a museum in town; she is opposed to a building not in compliance with the design guidelines. Ms. Kirk said there should be indentations and open space on the ground level. There needs to be variations at the street level. This design is not transparent. The building will block views of the mountains. Ms. Kirk questioned having screening that does not serve any purpose. Jackie Kasabach said she favors the art museum having a more central location on the east side of town. Ms. Kasabach said the architecture is breathtaking. Ms. Kasabach noted she is excited about the possibility of this project and is in favor of settling the lawsuit. Patrick Sagal said he would like to see the art museum in this location. Sagal suggested some amendments to the ordinance, that only a certain percentage of light could be emitted; that a percentage of public access to the roof be declared; that perhaps the museum could have more varieties of arts; that 0% of the employees drive to work. Sagal said there is too much mass and scale in this lot. Sagal said he would prefer to see the previously approved building on this location. Sean Gooding, resident across the street, told Council he has a problem with the size of the building. The 47’ blocks a portion of his view. The solar panels are incorporated in the roof making it 5’ higher. Gooding stated he does not see how this can be exempt from the code. Gooding suggested the building be allowed to go below grade. Gooding said the screen makes the building look extra large. Tom Sharkey told Council he is a former board member of the art museum. Sharkey said he has watched the museum outgrow their space and is in favor of moving the art museum downtown. Rick Magnuson said he is a fan of the museum and the city should do this deal. Jody Edwards agreed settlement to litigation is preferable; however, there is nothing in the city code which exempts legal settlement from normal review process, including the filing of a complete application and going through the normal review process. Edwards 10 Special Meeting Aspen City Council August 2, 2010 noted this ordinance approves subdivision, commercial design review, special review for parking for and essential public facility, GMQS for commercial space and essential public facility space and vested rights. Edwards opined the 2006 code is not applicable in this context; however, under either 2006 or the current code, P&Z has final authority for commercial design review, special review for parking of an essential public facility and GMQS for commercial space. Edwards stated P&Z has not seen this design. Edwards pointed out the code requires Council approval on some of these issues after a recommendation from P&Z. Edwards stated Courts require the city to follow the code. Edwards quoted from a Colorado supreme court case on procedural due process. Edwards told Council Boulder amended its code to allow negotiated agreements with land owners in certain areas. Edwards said the city does not have a court order mandating they sign the plat or the ordinance. This is a contingent settlement agreement the city negotiated with 633 Spring LLC; it is a contract. There is nothing in the code stating legal contracts for settlements are exempt from the code. Edwards said an application was submitted for the Wienerstube property in April 2006; that application was denied and this is a new application for an entirely different project and only the original application is entitled to be reviewed under the 2006 code. Anita Thompson said it is ironic people say this museum is elite; the museum is free and that is a gift to Aspen. Young people will benefit from this new museum the most. Sharon Rice, Chateau Aspen, told Council she lives to the south of the proposed building. The building is huge; it will be 20’ higher than the current building, which is 28’. The lack of parking is an issue. Ms. Rice said no other development would be let off without providing parking. Ms. Rice said the city should use this opportunity to down scale the building and make it work. Richie Cohen said although the thinks this is a great concept, he has a problem with the scale and with the process. Cohen said when Council turned down the original proposal, the community felt like nothing could be worse on this site. From the picture, this appears to be a 5 story building. Cohen urged Council to go to the back of the Wheeler Opera House and view a 50’ wall. Cohen said this is a wonderful building in the wrong place on less ground than it needs. Cohen said he feels like the city is being subject to pressure and approving a building with no parking. Cohen said this is in the transitional zone and the proposed building is out of scale. Jim Pomeroy said the town needs more public buildings. Pomeroy told Council his kids have gone to programs put on by the art museum. This building will have classrooms and space for kids. Pomeroy said he hopes the existing businesses will have a chance at moving into the mixed use building. Tim Mooney said the nature of art is that people love it or people will never love it. Mooney said he is excited about the screen and rather than one façade, the architect has created a kaleidoscope. The building on the other side of the screen will change. Mooney pointed out the art museum will not change, like commercial business in town and the building is designed for a specific function. Mooney said if this is not the art museum, it will be another infill building. The public benefit for this project is that the art museum will be open to the public. 11 Special Meeting Aspen City Council August 2, 2010 Lani White stated she is not opposed to the art museum in general and was opposed to the original redevelopment of the Wienerstube. Ms. White said she would object less to this building without the screen. Ms. White said this building need green space and trees around it. Ms. White stated this building does not belong in this location. Toni Kronberg agreed there has been no review by P&Z. The height, scale and mass should be reviewed when looking at subdivision. This building is too much scale and not appropriate for this corner. Warren Klug stated he is a business advocate who supports activity in the downtown. The present art museum building is too small and too restrictive. This interesting new museum will help strengthen the economic benefit, especially on the east side of Aspen. Klug said this building will encourage more foot traffic. The arts and culture are important to Aspen. Ms. Jacobson entered into the record letters from people who had to leave; Dave Fuentes, Bill Kane, Tamara Tormohlen Mike Jahn, Kathleen Wanetowitz, Keith Good, Dick Carter, Pam Alexander, Peter Louras, Karl Wolfgang. Bendon entered e-mails regarding the project into the record, Rich Burkley, Sara Dubow, Tony DiLucia, Paula Brodin, Sarah Challinor, Maleka Vrana, Jill St. John and Robert Wagner, Ryan Miller, Abby Nims Lavy, Autumn Miller, Virginia McNellis, Bob Rafelson, Michael Eisner, Kathy Fry, Lynne Rosenfield, David Floria, Alleghany Meadows, Lissa Ballinger, Thomas Nims, Dylan Hoffman, March Edelstein, Barbie Lish, Haley Fucci, Sarah Broughton, Rose Abello, Don Bird, Maria Rojas, Steve Hansen, Les and Nicole Tarumianz, Jeff Berkus, Andy Mill, Elaine Mariner, Matthew Mammola and Ernie Fyrwald in favor and John Keith, Jasmine Tygre, Steven Ferrell, Allyn Harvey, Dan Mysko, Jean Trousdale and Owen Minney opposed to the project. Ms. Jacobson said the applicants are fine adding language that lighting will comply with the code; they do not anticipate lighting up the building when it is not open. Ms. Jacobson said the applicants would like the screening to be more translucent, and they are committed to doing that. Ms. Jacobson said upon receipt of a c/o and opportunity to move, they would relinquish their lease to the city. In terms of limiting the payment of cash-in-lieu, they need to review. Ms. Jacobson noted the art museum has committed to free admission in perpetuity. Mayor Ireland said he would like some assurance this will remain a public space for a certain amount of time. Mayor Ireland said Council should have the final say whether payment-in-lieu is made. Ms. Jacobson said as long as that option is not off the table but is at Council’s discretion that is fine with the applicants. Councilman Torre said he would like to discuss the language in the ordinance that allows joining of two residential units without further reviews. Councilman Torre said he would like an explanation of why stick to this design and not make any modifications to the design. Dave Lenyo, representing the mixed use project, told Council the Court of Appeals had scheduled oral arguments for tomorrow. The city and the applicants told the Court there was and ordinance on the table, the Court has allowed a status report and if there is no ordinance in August, the court will rule on the briefs. Councilman Torre asked why the 47’ is necessary. Councilman Torre pointed out there are ways to reduce mass and scale using architecture. 12 Special Meeting Aspen City Council August 2, 2010 Shigura Ban told Council the 47’ height is minimal for their needs; a gallery height is 14’ with 3’ for the floors between equals 17’ times two is 34’; there is only 13’ for the roof level. If the top floor is lowered, the ceiling height becomes less than 10’, which would be low for a public space. Ms. Jacobson pointed out a portion of the roof is uncovered and is a sculpture garden area. Glenn Horn pointed out one does not want to design a building that is obsolete for its purpose when it opens. Horn reminded Council the art museum is only a portion of the development; the mixed use building will have 28’ and 38’ heights. The contrast in heights will create the variation in the building facades as called for the commercial design guidelines. Councilman Romero pointed out there is already a portion of the art museum that is subterranean and dedicated to gallery space. Councilman Romero said he would not support going down another level. Ms. Jacobson noted the building is designed so that all the art spaces have natural light. The building is designed to put art on a level with the viewer. Councilman Romero asked about the programming on the top floor. Ms. Jacobson said there are 3 levels of art space and the top floor is the public amenity space which will have a reception area, a bookstore, a café and sculptures which can be both inside and outside. The ceiling heights are only 10’ as it is not a proper art viewing space. The northeast corner is the public access, the moving room to the top floor. Ms. Jacobson noted one of the goals of the design is the animation of the space and the northeast corner has the potential to be constantly moving. Mayor Ireland asked if the screen is thinner, how will it be supported. Ban said it may be hung off the structure. Horn said the applicant thinks the screen is important to the project but it does need further study with the architects and engineers. Horn said the applicants have heard the message that the screen should be more translucent. Councilman Romero said an important piece of this application is that this is an essential public facility and how will this stay an essential public facility. Bendon noted this property is coned C-1; there is not a request for rezoning. The C-1 zone allows for a museum and for a mixed use building. Bendon said there is a process for Council to consider “essential public facilities”. Councilman Romero asked what would happen if the art museum phases out in this location and they want to sell the property to a commercial enterprise. Councilman Romero asked if the applicant would come back and ask for a change in use. Mayor Ireland said the applicant could offer a deed restriction to the uses of this as an essential public facility, which deed restriction would run to the benefit of Council. Bendon said when an essential public facility converts to another use, they are required to go through a change in use review and he will add that to the ordinance. Ms. Jacobson reiterated if this is approved, it is the intention of the art museum to buy the property with private funds, to build it with private funds, to permanently endow it with private funds. Councilman Romero said for pacing of the two projects, to the extent the mixed use building is ahead of the museum, the museum has benefited from the affordable housing credits of 13.6 FTEs from the Wienerstube site is built into the formula. Stan Clauson noted the employee credits are being transferred to one of the two 13 Special Meeting Aspen City Council August 2, 2010 resulting properties. If the art museum were not to go forward but a commercial proposal, there would be no credit for that lot. Councilman Romero suggested the draft ordinance does not specify that; it describes separating the land and giving a site specific development approval to each of the two lots but it does not attach the credits to a particular lot. Clauson said that is the intention and the ordinance can be amended. Bendon said the credit will only apply if the Wienerstube building is demolished or otherwise decommissioned. Councilman Romero another issue to consider is raising the site protection escrow from $100,000 to $250,000. Mayor Ireland said this money is released sometime during the process. Ms. Jacobson agreed to leave the $250,000 escrow until certificate of occupancy. Councilman Johnson asked about the process and why this application did not go through the normal land use process. Worcester agreed this is not a typical land use application; it is a resolution of a lawsuit. Council can accept or reject the terms of the settlement; the issue before Council is whether they want to accept the terms of the settlement which includes approving a land use approval ordinance. Bendon told Council a proposal came to the city from the applicants about a way to settle this lawsuit. Council agreed to explore this further. Staff began discussing with the applicants zoning, use, designs and about 5 weeks ago, the city and applicants began presenting this to the public. There was a review by the city’s technical review agencies; the city held 3 brown bag lunches, the proposal was on the website, the art museum help open houses. Councilman Skadron said a threshold issue for him is a land use decision made under threat of losing an appeal does not result in the best outcome. Councilman Skadron said the question before Council is not a land use issue but does Council wants to settle a lawsuit on these grounds. Councilman Skadron asked the applicants if this goes to appeal and the city loses the appeal, would they build the original Wienerstube proposal or this proposal. Lenyo said there will not be an up or down by the court; there are many issues in the lawsuit and this is impossible to answer the question. Nikkos Hecht said in a settlement, both parties give something; Hecht said he feels this is a proposal worth doing and is a unique opportunity. Clauson said the applicants have worked hard to come up with something that is a public benefit. People have testified as to the importance of the art museum and the importance of an in town location. Councilman Skadron stated his first responsibility is to serve the interests of the community. Councilman Skadron said he feels Aspen is a work of art and the Council needs to chose wisely what occurs in the vacant spaces. Councilman Skadron said a good project is a balance of many elements. This building is imaginative; however he has issues about whether a highly contemporary design competes with the elements that make Aspen historic and intimate. Ms. Jacobson agreed this is an important decision and part of the reason for that is that this is a once in a lifetime proposal. Ms. Jacobson pointed out art and culture is on the fringe of Aspen; the ballet is out at the school, music is out on the west end; theatre is in a 14 Special Meeting Aspen City Council August 2, 2010 tent where when it rains, one cannot hear. Ms. Jacobson said Aspen prides itself on mind, body, spirit and an issue is whether the city wants a cultural amenity that is privately paid for in the downtown. Mayor Ireland said the people who created Aspen’s heritage in the 1890’s were innovators and gamblers and took chances. The Wheeler Opera House did not match its built environment but made a statement about arts in Aspen. Mayor Ireland said many towns have put schools or cultural buildings on the fringes of their towns because land is cheaper. Mayor Ireland said Council has an obligation to take a chance on behalf of the community and do something that will bring life to downtown. There are few opportunities to do that because downtown is high end residential or luxury shops, not things that create vitality. Council has worked hard to bring vitality to town. Mayor Ireland said he would rather have Council vote on this proposal than to rely on a Court of Appeals to make a decision on what should happen in Aspen’s downtown. Councilman Johnson said Council is negotiating a settlement and the applicants have brought a proposal that is as close to a win/win as possible. Councilman Johnson said he sees a benefit in having the art museum move into the core of town. Arts and culture are a core part of what Aspen is. Councilman Johnson stated this building in this location has an opportunity to be a once in a lifetime building. Councilman Johnson noted Aspen has a reputation for being bold and this proposal will be good for the community. Councilman Torre questioned whether this is a negotiation and whether there is a conversation on both side of the table. Councilman Torre said he would like to be able to address community concerns by going through give and take. Hecht said this proposal is reduced from the one that was turned down; this is 2 separate buildings and the city is getting a museum, which is a gift to the community. Councilman Torre said this proposed building is the same height, 47’ across an entire roof line on two sides of a corner. Councilman Torre said there are things in the proposal that have not been fully vetted because of the abbreviated process. Councilman Torre said the mixed use building has had very little discussion. Councilman Torre stated he is excited about a museum on this location. This is a community balance question and it is an all or nothing issue. Clauson said this proposal combines the art museum and a mixed use building. The art museum proposes a building they need in terms of height and square footage. Councilman Skadron questioned whether the proposal meets the criteria of the Aspen Area Community Plan. Hecht stated someday something will be built on this land; this is an opportunity for the city to decide what will be built here. Mayor Ireland said Council can deny this proposal and wind up with what the courts direct. Mayor Ireland said he feels the previous building was intrusive and did not meet community character and did not serve the community. Mayor Ireland questioned whether the community needs more luxury residences or retail stores and this proposal breaks the pattern of luxury development. Mayor Ireland said he is willing to take a chance on this proposal with some conditions. 15 Special Meeting Aspen City Council August 2, 2010 Councilman Romero agreed the Aspen Area Community Plan is central to this; and this community use is what the AACP is anchored around, vitality and a diversified economy, environmental ethics, pedestrian accessibility. Councilman Romero said he feels this proposal is what the city was looking for and they got it through public/private partnering with no capital investment from the city. Councilman Romero noted people are willing to put money into the art museum building. Councilman Romero said for him the risk is failing to embrace this partnership; the losses outweigh the potential benefits. Councilman Torre asked about the access or redesigning the stairs. Ms. Jacobson noted with the current design, there is a way to access the roof even when the museum is closed. Councilman Torre asked about the effectiveness of the solar panel roof. Ms. Jacobson said the horizontal solar panel is an innovation in the design; it is a new photo voltaic technology that allows a horizontal panel with comparable absorption to angle panels. Councilman Torre asked about the possibility of a canted corner at Hyman and Spring or more cut outs in the design. Councilman Torre noted part of the design guidelines are breaking up designs vertically and horizontally. Ms. Jacobson reminded Council that corner is the location of the reception elevator so a cut out in that space is not possible. The primary defining feature of the museum is taking people from the ground floor up to the rooftop for the view and allowing a descent through the museum. Councilman Torre asked about the issue of keeping the existing businesses in the mixed use building. Hecht said there is no prohibition against those businesses. Hecht stated he has not contemplated any particular retail businesses. Mayor Ireland said Councilmembers Torre and Skadron are asserting Council’s prerogative on this project, which is important. Mayor Ireland stated he needs written assurance that the public access will remain intact, a guarantee of a minimum of public access. Ms. Jacobson agreed to that condition. Another issue is an explicit description of a change in use process from a public use, even if the code section were to be amended. Mayor Ireland said the ordinance should specify that this will be done with private funds. Mayor Ireland stated the applicant has agreed before there is payment-in-lieu for affordable housing, the Council would have to approve it. Mayor Ireland noted another change is the site protection fund will be $250,000 and will not be released until a certificate of occupancy is issued unless otherwise consented to by the city. Mayor Ireland stated the applicant has agreed to comply with the city’s lighting ordinance now or that adopted in the future to minimize light pollution. Mayor Ireland noted another condition is that the current art museum site reverts back to the city after certificate of occupancy and adequate time to relocate. Mayor Ireland stated he would like staff to assess the adequacy and effectiveness of these solar panels. Mayor Ireland said he would like written responses to Wiener’s written assertions. Councilman Torre brought up the residential units in the mixed building. It appears an administrative review would allow the two units to be joined up to 3500 square feet. Councilman Torre said allowable floor area under the existing code is 2000 square feet expandable by a TDR. Councilman Torre said he feels there would be better utilization of the downtown space by keeping two units; it adds to the vitality. Hecht said this is a 16 Special Meeting Aspen City Council August 2, 2010 small building and dividing up the 3500 square feet to include walls and circulation, there will only be about 500 to 750 square feet left over after a 2000 square foot unit. Councilman Torre asked what is allowed by code and what would the process be. Bendon answered there is a process to expand beyond 2000 square feet by landing a TDR. Bendon said the ordinance is written to allow combination of the two units into one unit. Hecht said that flexibility is necessary. Clauson agreed if the building were bigger, it would be easier to have more than one unit. Councilman Torre said he worked hard on the code amendments concerning the size and number of free market residential units in mixed use building. Councilman Torre asked why vested rights is requested at 5 years rather than 3 years. Councilman Torre said everyone seems to request 5 years and perhaps the code should just be changed. Ms. Jacobson said she was trying to be prudent and seeking protection for a non-profit in this challenged economy. Ms. Jacobson said if that is a variance, she could agree to 3 years. Bendon agreed applicants are concerned about the sustainability of approvals over the long run and the economic conditions. Bendon noted there could be two different vested rights for the two projects. Mayor Ireland said Ms. Jacobson agreed to 3 years and Council has approved extensions in the past. Council agreed to leave the vested rights at 3 years. Councilman Torre noted the ordinance states that the art work may extend over the height limit. Councilman Torre said he would like some clarity on what exactly that means. Bendon said that language exempts art from the height limitations. Mayor Ireland suggested adding language that no art exceeding the height limit will be in place for more than 4 months. Councilman Torre said he cannot agree to exceed the height limit however high for 4 months. Councilman Skadron said he does not want the museum to be in a position not to be successful and if there is a favorable vote, it comes with the understanding there may be art exceeding the height limit for 4 months. Bendon brought up the employee mitigation generation and to apply the credit to the existing commercial to lot 2 only and if the existing Wienerstube building is not demolished, the credit does not apply. Lenyo said he understands some of these conditions apply to the art museum only. Ms. Jacobson agreed. Councilman Johnson said he would approve 5 year vesting rights; Councilman Romero agreed however he wants to move forward with the consensus. Mayor Ireland said the applicant agreed to 3 years. Mayor Ireland moved to adopt Ordinance #16, Series of 2010, conditioned upon the incorporation of the requirements listed by Council; seconded by Councilman Romero. Councilman Torre stated this process did not serve the city well and the city gave up points with a lessened ability to negotiate. Councilman Torre said he does not feel city codes are taken seriously by applicants, which should be discussed by Council and staff. Councilman Torre said he will vote for art; vote for the future and vote for hope. Councilman Torre said he will support the art museum. 17 Special Meeting Aspen City Council August 2, 2010 Councilman Skadron said few things are more important than adapting Aspen’s built environment over time to help regenerate itself and the one thing that might be more important is the process by which change comes about. Councilman Skadron stated he supports the art museum in this location but does not support the process that limits Council’s ability to serve the community’s best interest. The issue before Council is whether they want to settle a lawsuit on these grounds. Councilman Skadron stated he cannot support that. Councilman Johnson agreed the process has been forced but the outcome is a win/win and a possible foundation of the community for a long time. Mayor Ireland stated settlement is superior to litigation in most instances. Mayor Ireland said the city is taking a risk in approving the proposal; however, the city has to take risks in moving the economy from speculation and real estate to a more sustainable tourist economy and this is a step in that direction. Roll call vote; Romero, yes; Skadron, no; Torre, yes; Johnson, yes; Mayor Ireland, yes. Motion carried. Councilman Romero moved to approve Resolution #58, Series of 2010, on the condition that Council is satisfied with the amendments; seconded by Mayor Ireland. All in favor with the exception of Councilman Torre, motion carried. Councilman Torre moved to adjourn at 10:20 p.m.; seconded by Councilman Johnson. All in favor, motion carried. Kathryn S. Koch, City Clerk 18