Kelsey Brunner/The Aspen Times
A trio of aspen elected officials said they will seek harsh penalties for the developer of a spec home that has run afoul of its original building approvals, including doubling the height of some of its exterior and retaining walls, encroaching on open space, building at a higher elevation than what was approved, and failing to make its on-site tennis courts ADA compliant as part of an agreement with the city.
Representatives for the developers contend they have been following the rules because the city has approved changes to the project. But at their Aspen City Council meeting Nov. 11, members Ward Hauenstein, Ann Mullins and Rachel Richards called for stiff, punitive measures to be taken against the development team, led by Leathem Stearn, behind the spec-home project at 1001 Ute Ave.
“I just think it’s unconscionable that the developer did it,” Hauenstein said, adding that “if they did it intentionally … it’s shame on us for not catching it.”
The matter came to the council’s attention during its first reading of the developer’s request seeking “approval to memorialize” the improvements that are inconsistent with the council’s original blessings, made in 2006, that came with the planned development.
Still unfinished, the home is perched on an eastern slope of Aspen Mountain and near the Ute Trail. It sits on a 21,636-square-foot lot.
As part the approval process with council more than 13 years ago, the developers gifted a 4.1-acre parcel of open space — an area considered a vital link to the adjacent Ajax Park, as well as the Ute and Ajax trails — to the city.
The deal also included the development of a three-bedroom working housing unit on the developer’s property. An additional condition of approval required the development of three on-site tennis courts, with ADA accessibility from Ute Avenue, that the developers would lease to The Gant — a condominium-hotel across the street — for 100 years.
Also included in the agreement was the construction of a second free-market house in the immediate area, which gained its certificate of occupancy in 2011.
The other house as well as the worker unit, however, have not received their certificates of occupancy. Richards suggested the “most extreme” measure would be for the city to not issue COOs for the unfinished home and employee unit.
“That would strike the developer more deeply than anything else,” she said, noting the luxury property could not be marketed for sale without a COO.
Council members agreed that having the developers undo their alleged damage isn’t feasible given how far the project has come. Even so, they were open to hearing what the affected neighbors might want.
“Is there community service, something that will make an impact on these developers that they can’t develop the lots at their convenience?” Mullins said.
City Attorney Jim True urged council to pass issue at first reading so it can advance to a public hearing Dec. 10, when more details will emerge. By a 4-0 vote, council approved the first reading. Mayor Torre recused himself because as a tennis pro, he works at The Gant’s courts.
The city began investigating the project’s compliance earlier this year as a result of a neighbor’s complaint that a portion of developer’s free-market home project’s air-conditioning units and staircase were encroaching on common area open space. That led to the city’s discovery of other infractions, including that both free-market homes’ first-floor grades were finished at elevation of 8,012 feet, higher than the allowable 8,007 feet.
The city also found that some of the property’s retaining walls are as tall as 6 feet, more than twice their allowable heights in some areas.
The developers also are seeking City Council’s approval to provide ADA access to the two tennis courts The Gant manages on its side of Ute Avenue, instead of its original agreement to make the three courts on its side of Ute Avenue handicap accessible. Richards said she would be wary of making that concession because it would deny disabled people, whether they want to play tennis or merely observe a match, access to the three courts on the homes’ side.
At an Oct. 1 meeting of the Aspen Planning & Zoning Commission regarding the same issue, planner Chris Bendon, on behalf of Stearn and the developers, said the city had signed off on the changes it now considers out of compliance. Multiple change orders that were submitted to the city gained approval from its engineering staff, leading the developers to believe they were cleared to proceed with their amended plans, he said.
Before Bendon’s remarks at the Planning and Zoning meeting, True said the developers were seeking forgiveness for running out of compliance. Bendon, however, disagreed.
“We don’t particularly agree with asking for forgiveness as a way of describing it,” Bendon said, “because we think what we submitted for, we had a permit for.”
In a memo in advance of last week’s City Council hearing on the matter, planner Kevin Rayes wrote that the city’s engineering department reviewed and improved the elevation change because it satisfied grading and drainage standards.
“The Zoning Department was not routed and did not review the change order,” the memo said.
Regardless of where the project stands now, council members expressed frustration that it got this far in the first place.
“My first question is: How does this happen?” Mullins said.
