Aspen City Council questions power of ‘no complaining’ clause
September 13, 2013
The Aspen City Council on Monday voted 3-1 to approve a new three-story development in the Hyman Avenue pedestrian mall amid questions concerning a stipulation that whoever occupies the penthouse of the building cannot complain about downtown noise. Councilwoman Ann Mullins was absent.
The "no complaining" clause written into the application requires the penthouse owner of the building to recognize the nature of moving into the downtown core, including noise levels and operating hours at adjacent restaurants.
"I'm assuming that the ordinance can't supersede the law," council member Adam Frisch said, regarding it as more of a warning than anything else. "The complainer has a legal right to seek stoppage of the noise."
“I’m assuming that the ordinance can’t supersede the law,” council member Adam Frisch said, regarding it as more of a warning than anything else. “The complainer has a legal right to seek stoppage of the noise.”
Senior planner Sara Adams said it has more teeth than a warning — that it brings the penthouse owner's attention to what living in downtown entails.
Council member Art Daily agreed that the "no complaining" language only goes so far, but it's a good first step.
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Frisch said the clause could be stronger if the council were to address maximum noise levels. Before 9 p.m., the limit is 65 decibels in the downtown area. After 9 p.m., it drops to 60 decibels. Representative of the owner, Charles Cunniffe, said he thinks noise levels and operation hours should be extended. For him, a person who moves into the core should be fully aware of what they're getting into.
Council member Dwayne Romero said the recent squabbles over noise levels are a result of poor education and that the clause will help mitigate some of those problems.
Mayor Steve Skadron, the dissenting vote, said he wanted to make clear that he was against the entire application, which calls for the demolition and replacement of the property housing Zocalito, Annette's Mountain Bakeshop and CB Paws.
He said it does not satisfy two subdivision standards — one, that the building must be consistent with the character of the existing land-use in the area, and two, that it must not adversely affect future development in surrounding areas.
"There is evidence that the mixed uses don't work," Skadron said.
The applicant also requested an extension of its vested rights, from three to five years, to allow more time for businesses to grow in the commercial space. Skadron said it wouldn't be prudent for the council to extend vested rights, given the unpredictably of ownership.
"So often what happens in this community is a developer comes in with all good intentions, the permissions are granted, entitlements are given, and the property is sold to someone who has an entirely different vision of what it should be," he said.
Owner John Martin, of New Zealand, pointed to his proven track record of restoration and community building. With the majority of the council against that move, the vested rights will remain at three years.
The Historic Preservation Commission will review materials for the final design of the project before final approval.