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TC Minutes 03-28-1995MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL HELD MARCH 28, 1995 - 7:30 P.M. A regular meeting of the Avon Town Council of the Town,of Avon, Colorado was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado, in the Council Chambers. The meeting was called to order by Mayor Reynolds at 7:31PM. A roll call was taken with Councilors Richard Carnes, Jack Fawcett, Tom Hines, Celeste C. Nottingham, and Judy Yoder present. 'Also present were Town Manager Bill James,. Town Attorney John Dunn, Town_Clerk Patty Neyhart, Town Engineer Norm Wood, Police Chief Gary Thomas, Director of Municipal Services Larry Brooks, Director of Community.Development Mike Matzko, Recreation Director Meryl Jacobs, Town Planner Mary Holden, and Community Service Officer Steve`Hodges, as well as members of the press and public. Citizen Input was a request for refund of real estate transfer tax by Mr. Bob Hintermeister: Mr. Hintermeister informed he closed on`his Avon property September 30, 1994. He received written notice that his request for an exemption of the property transfer tax was granted the following Tuesday, after the closing date, October 4, 1994. Mr. Hintermeister requested $1,600 be refunded to him in a letter sent to Mr. James on October 10, 1994. Mr. Hintermeister received a letter from Maggie Simmons, accounting assistant on October 20, 1994 informing the refund was denied on the basis the transfer tax code does not make provisions for reimbursement of monies received in payment of transfer tax. Mr. Hintermeister consulted his attorney, Mr. Helwig. Mr. Helwig sent a letter of appeal to Mr. James. Town Attorney John Dunn responded via letters and with a phone call. Attorney Dunn offered a compromise of $800. Mr. Hintermeister declined the compromise. Mr. Hintermeister requested a full refund of the $1,600. Attorney Dunn noted the general rule is the taxpayer will lose his or her right to claim a refund in situations when the tax was paid in a completely voluntary fashion with full knowledge of the consequences. The ordinance of the town makes no provision for refunds. The ordinance makes provisions for the exemptions, which are typically granted before the closing. Although an exemption had been granted prior to closing, the entire amount of the tax was paid at closing, collected by the title company and remitted to the town. It was all done entirely in a voluntary fashion. For that reason, the tax should not be refunded. Attorney Dunn did offer a compromise in an effort to conclude the matter without having to trouble the Council and the compromise was rejected. Councilor Fawcett asked why the tax was paid at closing. Mr. Hintermeister stated he was instructed by his counsel, Mr. Helwig. Mr. Hintermeister stated at the time of closing he had no knowledge that the exemption was indeed going through; de did not receive notification of the exemption until after the closing. The closing was on September 30th. Mr. Hintermeister added he did not receive written notification that the exemption was granted until October 4th - the following Tuesday, after closing. Ms. Maggie Simmons, accounting assistant, stated she telephoned Mr. Hintermeister on September 27th notifying him the exemption had been granted. Mr.'Hintermeister stated Ms. Simmons is correct. Mr. Hintermeister stated he was aware of the granted exemption, but that he did not have written notification of it. Discussion followed. Ms. Simmons noted, before the closing and during the September 27th phone conversation with Mr. Hintermeister, she informed him there was no provision for a refund. Ms. Simmons checked with Mr. James'and again confirmed via telephone conversation with Mr. Hintermeister on September 28th there was no provisions in the code to refund the money. Further discussion followed. Attorney Dunn noted, at this time, the staff has denied the refund. If Councilor Carnes wishes otherwise, he should make the motion that the refund be allowed. If the motion is not made or not carried, than the decision of the staff stands. Councilor Carnes motioned to give Mr. Hintermeister his $1,600 back on the moral grounds that it is wrong for us to keep it. The motion died, due to lack of a second. First Reading of Ordinance No. 95-8, Series of 1995, AN ORDINANCE AMENDING CHAPTER 17.20 OF THE MUNICIPAL CODE OF THE TOWN OF AVON TO ALLOW FOUR RESIDENTIAL UNITS PER LOT IN CONJUNCTION WITH BUSINESS OPERATION AS A SPECIAL REVIEW USE IN THE INDUSTRIAL AND COMMERCIAL IC ZONE DISTRICT Mr. Mike Matzko stated this is a proposed amendment to the text of the zoning ordinance. Basically, it is to allow for an increase in the number of residential units, by special review, in the IC zone district. Currently there is one unit per lot maximum density and this is proposing to increase that density to four per lot. The Planning and Zoning Commission recommends approval with a change to the ordinance presented to Council. That change being to add in section 17.20.010 D.6. Maximum Density: "not to be subdivided". Councilor Nottingham motioned to approve Ordinance No. 95-8, Series of 1995 with section 17.20.010 D.6. amended to read, "four dwelling units per lot, when approved as a special review use, not to be subdivided". Councilor Yoder seconded the motion. Mr. John Perkins, representing Dr. Doug Bryant, stated the "not to be subdivided" is restrictive and asked for flexibility to have a vehicle of conveyance for the units. Discussion followed on deed restrictions. Dr. Bryant stated, from an investment stand point, employee housing, is very marginal. Dr. Bryant noted that if he is individually committing the effort and money towards employee housing, he is requesting maximum flexibility and support from the Council. Dr. Bryant would like to be able to offer his long- standing employees the opportunity of owning their own places. Dr. Bryant was open to discussing deed restrictions. Further discussion followed. "Ten year, twenty year, 'and perpetuity deed restrictions were mentioned. The Wildwood Townhomes deed restrictions were mentioned. •-Dr.; Bryant stated he would consider the deed restrictions so that 'he~could.sell:it and to see some appreciation. Mr. James stated staff will work with Dr. Bryant on the deed restrictions. Mr. James informed the "not to be subdivided" will,be dealt-with during the special review process.' Councilor Nottingham withdrew the former motion. Councilor Yoder withdrew the former second. 2 • f. Councilor Nottingham motioned to approve Ordinance No. 95-8, Series of 1995, on first reading.' Councilor Fawcett seconded the motion. Mayor Reynolds called for a roll call vote. The motion carried unanimously. Second Reading of Ordinance No. 95-7, Series of 1995, AN ORDINANCE-APPROVING AN AMENDMENT TO THE PLANNED UNIT DEVELOPMENT PLAN AND DEVELOPMENT STANDARDS FOR LOT 3, NOTTINGHAM STATION,. TOWN OF AVON, EAGLE COUNTY, COLORADO Mayor Reynolds announced this is a public hearing. Mr. Norm Wood informed Ordinance No. 95-7 will approve an amendment to an existing Planned Unit Development (PUD) for Lot 3., Nottingham Station. This tract of land is located between the railroad tracks and the Eagle River, immediately to the east,of Avon Road. It is approximately a 14 acre parcel. Currently the parcel has an approved PUD which would allow 83 residential units by the railroad tracks and 66 residential units on the 4.7 acre parcel by the river. The current PUD also provides for the dedication of a 3. acre open space tract along the river and the construction of the extension of Hurd Lane from Avon Road to connect with Eaglebend Drive. The proposed amendment to the existing PUD would allow 69 residential units on a 2.8 acre parcel located between the proposed Hurd Lane and the railroad tracks and 70 residential units on the 4.7 acre parcel between Hurd Lane and the Eagle River. The proposed amendment includes the dedication of a 3.6 acre open space parcel along the Eagle River, construction of a multi-use path, and construction of Hurd Lane from Avon Road, connecting with Eaglebend Drive. The proposed PUD includes establishment of building setbacks, building heights, building envelopes, and.establishes parking and open space requirements. The public hearing has been held before the P & Z Commission. The P,& Z Commission recommends approval of the amended PUD. Mr. Mark Donaldson, representing Wintergreen Homes and Shapiro. Development Company, gave a review of,previous discussions on,the amendment to the PUD. Mr." Donaldson reviewed the proposed Ordinance with Council. Councilor Hines stated=two-letters have been received and questioned where the,one came from.-Town Planner Mary Holden informed she'received the longer letter from Steve, of Land Designs by Ellison. Mr. Shapiro interjected the shorter one is from a concerned citizen, Ms. Linn Schorr. Dr. Eric Olgeirson reviewed the riparian mitigation plan and addressed the understory and the tree story, with the assistance of displayed diagrams. Twenty two trees will be replaced with '211 caliper trees. There are no endangered species that they are aware of - and those studies have been done. Unable to transcribe the many individual discussions that were going on while viewing the maps and diagrams. Mr. Ken Shapiro noted a typographical error in the Council Meeting Minutes of February 28th. The area that was requiring mitigation - the minutes say the estimated total acreage of disturbance is 24 acres, when in fact it is .4 of an acre. This area of mitigation is very minimal in relation to a 12 acre project. 3 0 11 Dr. Olgeirson noted the effect of the river is not actively regenerating the riparian zone. The restoration is an opportunity to do some actual mimicry of what the river is not sufficiently doing at this time. The design of the mitigation is to provide mimicry. Ms. Chris Ekrem, resident of Eaglebend Drive, asked Council, that if'this amended PUD is approved, to make sure it doesn't happen again.- Ms. Ekrem voiced concern regarding how close the project -is to the river and density. Mr. ,Shapiro stated this property has gone through numerous down zonings in the process and is not being developed close to what it was anticipated, at an earlier time. Mr. Shapiro noted the, multi-use path, currently contemplated to be, goes through riparian and wetland area. If another arrangement comes up, Mr. Shapiro is more than willing to do that. If the path were to disappear, Mr. Shapiro added he would be willing to make'an economic contribution of like amount to the Town's path system. Unable to transcribe - too many individual discussions at one time. Discussions centered on height of buildings (501) along the river; sub-area 10 - the river front district - the stepping down of the buildings - the caliper of trees. Mr. Donaldson recognized difference of opinion on the stepping down of buildings and, reviewed his interpretation of the code. Mr. Donaldson stressed to look not at individual concerns, but to look at the whole. Councilor Nottingham stated a PUD is a planned unit development where the developer gets to suggest or make their own rules or guidelines, hopefully using what is within the town and what we have thought would be good suggestions. Councilor Nottingham voiced concerns of building height, dormers, and.stepping of buildings. Councilor Nottingham felt our guidelines are behind -the technology that we should be looking at for 'a better product. Mr. Shapiro commented he has no objection to using a larger caliper of tree, however that produces bigger holes, thus more disturbance and riskier tree life. Mr. Shapiro reminded that there is an existing PUD for this property. There were approximately ten negative comments or objections during the process for the existing PUD,and it was Mr. Shapiro's intent to improve on as many of those objections as possible. Mr. Shapiro felt they have improved on eight out of the ten issues. Mr. Shapiro felt they have not made the height any worse and have now even addressed the riparian areas, which were never raised during the previous PUD. The alternative is the other plan is already approved. If this amendment is not approved, the other plan in some form is likely to be built. Council recessed at 9:27pm and reconvened at 9:35pm. Mayor Reynolds read, in it's entirety, the letter received from Linn Schorr (see attached Exhibit A). Mr. Jeff Spanel stated they are in the process of doing final sight designs as far as the subdivision process and preliminary plat. We are complying with the requirements of the town and we are addressing the master drainage study. Councilor Nottingham questioned soils report. Mr. Spanel stated specific recommendations will need to be done as the building plans are developed. 4 • • Councilor Nottingham voiced concern regarding density - existing PUD versus proposed PUD. Mr. Donaldson stated there are more units proposed on the river side, however they have opened up the entire Hurd Lane. Mr. Shapiro added the project also has a low cost housing component that was not articulated in the previous arrangement. This is a package deal. We were able to improve the economics on the river side to allow us to lower the cost on the railroad side. Also, we were able to get more units on a smaller foot print, with less impact on the river corridor. Councilor Nottingham stated P & Z Chairman Jack Hunn suggested that the applicant lose one building to loosen up the site. Also, Councilor Hines made that same recommendation at last Council meeting. Mr. Donaldson stated they have looked at reducing the buildings, but have not. Mr. Shapiro stated the actual design of the project is 66 units, not withstanding the request for 70. The reason the additional four units of density are being requested as we have not exhausted our efforts to design all the product. We believe there may be an opportunity to convert certain units that may be 2,000' into two units of 1,0001; therefore we are preserving that option. That change would not effect the foot print, closeness of the river, heights, etc. It would only effect the physical interior of the space of the building. With respect to dropping Building A; there is a wetland line encroaching up the bank and if Building A was dropped, there is no opportunity to spread out the remaining buildings. Councilor Hines suggested removing Building A. Place Building B where Building A was and increase the amount of open space between the remaining buildings through out the project. Mr. Shapiro stated the number of units was reduced. In the original plan there were nine eight-plexes. We took out the equivalent of one six-plex. We have a combination of six eight- plexes and three six-plexes which gives us more variation. Councilor Hines voiced concern of density along the river front and was hoping to hear that they had lost a building. Councilor Hines voiced additional concerns of the building height, mitigation of lost riparian, and the stepping•,of the buildings to reduce the "canyon effect". Mr. Shapiro asked what needs to be done in order to have Council support the project. Mr. Mike Bruen, homeowner on the east.end of Eaglebend Drive, voiced concern.,of increased traffic, once Hurd Lane'and Eaglebend Drive become one.road. Mr. Bruen mentioned narrowness of-the.' road, no streetlights, and children playing in the road as concerns. Mr. Bruen was not opposed to the development, only the traffic it will bring. Ms. Debra,Lemon echoed Mr. Bruen's concern of increased traffic and questioned why this road needs to go through; what is the purpose? Councilor Hines stated our master transportation plan outlines that road as being a thoroughfare. Ms. Lemon asked why it wasn't constructed wider. Mr. James stated that was a County road prior to the Town annexing it. Mr. Wood commented, but transcription unavailable, as he was away from the microphone. Councilor Nottingham asked about a traffic light on Hurd Road and Avon Road. Mr. Wood stated we would need state approval after traffic warrants it. Mr. Jim Wear, on behalf of the current owners of the property - Nottingham Associates, stated Nottingham Associates has owned the property for almost twenty five years. We are here as we are anxious to sell it, however, we feel this plan makes the most sense of any we have seen. This is a quality project, a great chance for success, and will be an asset to the town. Mr. Art Kleinstien, a principal of Wintergreen, stated there were inherent flaws and we have tried to come up with an improvement. 5 Mr. Kleinstien asked Council to approve this PUD so that development can begin. Mr. Mauri Nottingham stated this project is head and shoulders over what Council has already approved. Mr. Donaldson felt the development team is a little bit confused in terms of what the standards are. Mr. Donaldson requested to review the development guidelines, while collecting Councils' concerns. Mr. Donaldson stated the development team needs some direction; if Council is going to deny the project,. the team needs to know that. They would also like to.know what'-it would take to approve it. - Mr. Donaldson proceeded to go through the guidelines one,'"by one seeking Council's concerns and direction.'. Mr. Shapiro interjected,we am.trying to get to a bottom line. How do I,get a majority vote to approve? What do I-have to change to meet all these different people's desires? Councilor Yoder stated she would like to stand on the site and get comfortable with the building height. She does not have a comfort level and would prefer not to vote on it tonight. Councilor Hines thought it fair to offer up comments, but until the motion is made he preferred not to comment on his vote. Mayor Reynolds thought it was time for a motion. Councilor Nottingham suggested hearing from staff. Councilor Fawcett stated P & Z and staff are recommending approval. Councilor Fawcett motioned approval of Ordinance No. 95-7, Series of 1995, on second reading. Councilor Carnes seconded the motion. Mayor Reynolds called for a roll call vote. The motion carried with Councilor Hines and Councilor Nottingham opposed. Resolution No. 95-13,,Series of 1995, A RESOLUTION APPROVING THE PRELIMINARY AND FINAL PLAT OF BIG SKY TOWNHOMES, A RESUBDIVISION OF LOT 3, BLOCK 5, WILDRIDGE, TOWN OF AVON, EAGLE COUNTY, COLORADO Mayor Reynolds announced this is a public hearing. Mr. Wood stated this is a preliminary plat for a five unit townhome project located in Block 5 of Wildridge. It exceeds the maximum of four lots to be considered a minor subdivision, so it does require going through the preliminary plat process and'the public hearing. This project is virtually complete. Staff is recommending approval. Councilor Nottingham motioned to approve Resolution No. 95-13, Series of 1995. Councilor Fawcett seconded the motion and the motion carried unanimously. Resolution No. 95-15, Series of 1995, A RESOLUTION APPROVING THE PRELIMINARY CONDOMINIUM MAP OF AVON TOWN SQUARE COMMERCIAL CONDOMINIUMS PHASE I, LOT 2, AVON TOWN SQUARE SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO 6 J Mayor Reynolds announced this is a public hearing. Mr. Wood stated this isa preliminary condominium plat fora . project on Avon Town Square, a proposed project south of the Slifer, Smith, and Frampton Building, on Lot 2, Phase I. Staff recommends approval with one change. Change No. 3 to read, "no individual unit may be assigned more parking spaces than the minimum required for the total floor area and allowed use of that unit". Councilor Nottingham motioned to approve Resolution No. 95-15, Series of 1995, with condition No. 3 reading no individual' unit may be assigned more parking spaces than the minimum required for the total floor area and allowed use of that unit. Councilor Hines seconded the motion and the motion carried unanimously. Consent Agenda: Item e.) Approval of the February 28, 1995 Council Meeting Minutes was removed from the Consent Agenda. a.) Resolution No. 95-14, Series of 1995, A RESOLUTION APPROVING THE FINAL PLAT FOR A RESUBDIVISION OF LOT 42, BLOCK 3, WILDRIDGE, TOWN OF AVON, EAGLE COUNTY, COLORADO b.) Resolution No. 95-17, Series of 1995, A RESOLUTION'APPROVING THE FINAL CONDOMINIUM MAP AND SUBDIVISION IMPROVEMENTS AGREEMENT FOR VAIL AVON COMMERCIAL PARK, A RESUBDIVISION OF LOT 14/15, BLOCK 1, BENCHMARK AT BEAVER CREEK, TOWN OF AVON; EAGLE COUNTY, COLORADO c.) Resolution No. 95-16, Series of 1995, A RESOLUTION AMENDING THE 1995 BUDGET d.) Award 1995 Street Overlay program to Grand River Construction f.-) Financial Matters Councilor Yoder motioned to approve the Consent Agenda. Councilor Nottingham seconded the motion and the motion carried unanimously. Approval of the February 28, 1995 Council Meeting Minutes: Councilor Hines motioned approval of the February 28, 1995 Council Meeting Minutes with the following change that page 3, first paragraph, second to the last line, estimated total acreage of this disturbance.is 24 acres should be changed to .4 acres. Councilor Nottingham seconded the motion and the motion carried unanimously. Adj ourn : There being no further business to come before Council, Mayor, Reynolds called for a motion to adjourn. Councilor Hines moved to adjourn. The motion was seconded.by'.Councilor Yoder:. The meeting was adjourned by Mayor Reynolds at 10:37PM. 7 9 0 RESPECTFULLY SUBMITTED: Patty New Town Clerk APPROVED: 0 0, MEMO TO: MAYOR REYNOLDS AND TOWN COUNCIL MEMBERS FROM: PATTY NEYHART, TOWN CLERK DATE: APRIL 12, 1995 RE,:_ COUNCIL MEETING MINUTES OF MARCH 28, 1995 Regarding the caliper of trees, below are excerpts from the tape of the Council Meeting-of March 28, 1995. The Council Meeting Minutes of March 28, 1995 may be approved as presented or may be approved with the following changes: Page 4, paragraph 6 be amended to read: Discussions centered on height of buildings (501) along the river, sub-area 10 - the river front district -the stepping down of the buildings - the caliper of trees. Councilor Nottingham stated the guidelines, regarding sub-area 10, river front district, recommends to require the replacement of all quality 5 caliper and larger destroyed trees with a minimum of 3 1/2 caliper deciduous or 8' tall coniferous trees in numbers equal to the negotiated value of the destroyed trees. So, that is a little bit of a variation. You have talked about doing 2" caliper trees - that is a little bit less, almost half less than what the recommendations would want us to consider for the sub- area 10, river front district. Page 4, paragraph 9 be amended to read: Mr. Shapiro stated he would like to'comment oft a couple of the issues that CC (Councilor Nottingham) raised. One is that the landscape consultant informed me that, with-respect to the comment about the caliper- of the trees - we have ho objection to using-a larger caliper of tree. The reason that we used a smaller caliper tree was because we are trying to be sensitive to the amount of equipment,and,difficulty, and the size of the,holes that have to be dug.for'the trees, and the likelihood .that the tree will survive. The landscape consultant is telling"us that the larger trees are going to require larger equipment to plant the tree, bigger holes to be dug, there will be more disturbance to get the trees in there and those types of things. But, we are not doing it for an economic savings. We will be glad to use the bigger trees. I don't want it to be misunderstood - that we were trying to not meet up to the guidelines for some devious reason. We will be happy to do it - we are in favor of mitigating riparian impact to the fullest extent possible. We are on the town's side in that regard and we will do it however is the best way to do it. Mr. Shapiro reminded that there is an existing PUD for this property. There were approximately ten negative comments or objections during the process for the existing PUD and it was Mr. Shapiro's intent to improve on as many of those objections as possible. Mr. Shapiro felt that they have improved on, eight out of the ten issues. Mr. Shapiro felt they have not made the height any worse and have now even addressed the riparian areas, which were never raised during the previous PUD. The alternative is the other plan is already approved. If this amendment is not approved, the other plan in some form is likely to be built.