The roots of the anti-variance movement
A decade of debate over development precedes potential charter amendment
Take a stroll down Hyman Avenue to see the fruits of the city’s decade-old infill legislation, which many observers point to as the beginning of the story that continues today with the effort to force voter approval of big development that skimps on parking and affordable housing.
Two projects — the completed Aspen Art Museum and the still-under-construction building at the corner of Hyman and Hunter Street — stand out from surrounding, lower lying developments. To some, they stick out like sore thumbs, but their height and mass conform to the limits set out in the 2003-through-2005 legislation that upzoned the downtown core.
While the council three years ago reversed infill, setting height limits in much of downtown to 28 feet (infill allowed up to 42 feet), the feeling that too much of the growth and development that gets proposed for Aspen is out of character is hard to shake for proponents of the charter amendment that voters will likely decide on the May ballot. If passed, it would require a public vote on any council-approved downtown development projects that include zoning waivers on height, overall square footage, parking or affordable housing.
Both of the new Hyman Avenue projects started with applications that predated the spring 2012 downzoning to 28 feet. In the case of the Aspen Art Museum, the saga began in 2006, when developers applied for a mixed-use building on the site that then contained the Wienerstube restaurant and a parking lot. The building conformed to the infill codes, and included all required affordable housing and parking on site. But city council denied the project in 2008 on the basis that it did not fit in with the neighborhood — a subjective criteria that was included in the requirements tied to city subdivision approval.
The developers, led by Nikos Hecht of Aspen, sued the city. While a district court judge backed the council, an appeal was pending, and the city, led at the time by Mayor Mick Ireland, decided to accept a settlement offer. Instead of the mixed-use building, and a potential judicial ruling against it that could wreak havoc on the city’s development review process, the council backed the plan to put the art museum and a smaller mixed-use building on the site. The approval — which went down after only one public hearing — circumvented the normal process that would have included a review by the Planning and Zoning Commission.
A block away at Hyman and Hunter, the structure under construction is the result of another Hecht development proposal that ran into community opposition. In the summer of 2011, Hecht submitted an application to tear down Little Annie’s and the Benton building, which at the time were next door to a parking lot on the corner. The original plan would’ve seen an entirely new building built across the block, with the corner section of the property developed in a similar fashion to what is being built today. The middle portion of the site would have been a one-story building set back from the sidewalk, with a three-story structure containing affordable housing where Little Annie’s sits.
Tearing down the 40-year-old restaurant and former studio and home of artist Tom Benton was seen as an outcome worth fighting, however, and council negotiated a deal with Hecht to preserve those buildings. In exchange, Hecht got a waiver on affordable housing requirements for the corner-lot building, as well as the right to build a nearly 7,000-square-foot penthouse, when rules in place at the time capped downtown condos at 2,500 square feet.
While those developments have stoked the fires
that led 1,036 to sign the petition to put the anti-variance charter amendment on the ballot, Aspen Mayor Steve Skadron, who opposes the charter amendment, said that the situation has changed. Council was forced to negotiate from a position of weakness in both of those projects, because of the height and massing allowed by infill.
“What’s different today is that we have the law on our side,” he said. “We’ve filled a porous land use code. We didn’t have that at our disposal back in the day.”
While most of the town has been downzoned, an ill-fated attempt to create incentives for developers to build more lodging last summer created a prelude to the current charter amendment movement.
The “lodging incentive package,” as it became known, came out of an effort to waive city fees and ease the permitting process for small lodges seeking to make upgrades. It morphed into a 91-page ordinance that included height bonuses, provisions for bigger rooms, breaks on affordable housing, free parking passes and an unknown fiscal impact that Ireland described as an affront to community values.
Council approved the package in August, but soon thereafter, local citizens Bert Myrin and Cavanaugh O’Leary began circulating a petition to overturn the ordinance. After over 400 signatures were collected, the council decided to rescind the ordinance instead of putting it up to a vote that even proponents of the package acknowledged would likely go against four-story buildings.
Myrin and O’Leary are among the initiators of the new petition to amend the city’s charter.
Former city councilman Jack Johnson, a supporter of the Myrin proposal, said average citizens are tired of seeing growth that only serves the high end of the market. The charter amendment petition, which Myrin turned in last week with 1,036 signatures, is a result, Johnson said.
“In a certain sense, the community is saying we don’t trust the process,” he said.
Johnson supported infill when he was on the council, hoping that redeveloped buildings would add small-scale lodging, affordable housing and new commercial spaces that would be rented out by local businesses. Instead, the city got development that was “bigger and worse” than much of what it replaced, he said, pointing to the 508 E. Cooper Ave. project containing a high-end boutique and a 4,000-square-foot penthouse that replaced a beer-and-burger joint.
Stan Clauson, a planning consultant who has worked on many post-infill projects, said council has not been keen to give out big variances. He questioned what’s really motivating charter amendment proponents.
“From a bulk and massing standpoint, there weren’t any variances,” he said of the museum and Little Annie’s projects.
With the new laws in place, the council “has not been falling all over themselves to provide variances,” he said, pointing to the current proposed lodges from developer Mark Hunt that would require all parking to be in a still-to-be-determined off-site location. Council has been holding the developer’s feet to the fire on that and other aspects of the land use code, Clauson said.
“They’ve been increasingly restrictive on their own, without the need for a public vote,” he said.
Skadron’s beef is with charter process
Skadron is no fan of the proposed amendment to the city’s charter. Government by citizen initiative to change the city’s most binding legal document — which requires a vote of the people — is no way to make public policy, the mayor said.
However, he said last week that he would consider supporting the voter-approval-of-variances concept if it was incorporated as a part of the land use code, which can be amended with a majority vote of the council.
Skadron said he supports the general concept of sticking to the land use code and only supporting growth that is in line with Aspen’s small town character — goals he shares with the initiative proponents.
But the method bothers him, the mayor said.
“I would hate to see this community go the way of California, where legislation is made by petition and referendum,” instead of by elected officials working to represent their constituents, he said.
While the anti-variances idea “speaks to my interests, the next one might not,” Skadron said, referring to potential future charter amendment campaigns.
If the charter amendment is successful, and a big development project goes to a vote of the people, Skadron also didn’t hold out high hopes for the ensuing democratic process.
Once a development project gets on the ballot, “it turns into a marketing campaign that serves the interest of those who are the best organized and well funded,” he said.