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HomeMy WebLinkAbout1981-09-15 Town Council MinutesMINUTES Vail Town Council Meeting Tuesday, September 15, 1981 7:30 p.m. Tuesday, September 15, 1981, the Vail Town Council convened for its regular ting in the Council Chambers located in the Vail Municipal Building. MEMBERS PRESENT: Mayor Rodney E. Slifer Bill Wilto, Mayor Pro-Tem Bud Benedict Paul Johnston 'Tom Steinberg Ron Todd Bob Ruder OTHERS PRESENT: Richard Caplan, Town Manager Lawrence C. Rider, Town Attorney Colleen Kline, Town Clerk The first item on the agenda was the reading of Resolution #26, Series of 1981, a resolution of the Town Council adopting a Minority Business Enter- prise Program for the Town of Vail. Richard Caplan stated that as part of the Urban Mass Transportation Dept. grant and the expansion of the bus barn, the Town must comply with a state regulation that this program be put bo effect in the Town of Vail. Bill Wilto made a motion to approve the olution and Ron Todd seconded the motion. All voted in favor and the motion was passed unanimously. The second item on the agenda was Resolution #24, Series of 1981, a resolution vacating an easement across Lot 16 Vail Village Thirdi'Filing; approving a vacation and abandonment of existing easement agreement. After some discussion Paul Johnston made a motion to approve the resolution and Bill Wilto seconded it. All voted in favor and the motion passed unanimously. The next item on the agenda was Resolution #27, Series of 1981, a resolution approving the granting of an easement for sanitary service purposes to Chevron Oil Company across the Town's Old Shop site. After some discussion Tom Steinberg made a motion to approve Resolution #27 and Paul Johnston seconded it. All voted in favor and the motion was passed unanimously. Mayor Slifer announced that the Casino matter had been postponed until the October 6th meeting at the request of the applicants, as they had not completed all the items that were requested of them from the work session of a week ago. There was no Citizen Participation. 1� next item on the agenda is the review of the proposed development plan for Lionshead Study Area #5. Dick Ryan reviewed the plan for the Council, including the changes planned for the commercial area of Lionshead. Bill Ruoff, architect on the Lionshead for the Improvement District, gave a presentation with a model of the planned development area. Dinah Chapman, President of the Lionshead Merchants Association, voiced her approval of the planned changes. A motion was made by Bud Benedict and seconded by Paul Johnston to approve the Develop- ment Plan for Lionshead Study Area #5. All voted in favor and the motion passed unanimously. The next item on the agenda was the appeal of the ORB decision on the Johnston duplex. SLIFER: I'd like to make a couple of comments on this hearing and set some groundrules. This is an appeal of the decision by the Design Review Board on an issue of.whether or not the house was built in accordance with the plans as approved. For the record, the Council has received a verbatim document of the ORB hearing. They've all had an opportunity to read that. We visited the site this afternoon of the entire and are very familiar with the property. The hearing is to review the Design Review Board's decision and we will only hear the same facts. This isn't a court of law. We are reviewing the decision made by them and in order to make this decision we want you to state facts and we don't want a whole lot of new information introduced. We want the same presentation. We would like for you to keep your presentation as brief as possible, however, complete, again keeping in mind that we have complete verbatim minutes of the ORB hearing. I will absolutely MINUTES Vail Town Council September 15, 1981 Page 2 FER: people talking personalities or talking about other people. If n't.) that sort of commendation goes on, I will terminate your response and ask you to be seated. So, speak to the issue, don't speak to people, this is a house and I will be very strict about that. i will ask you all to, I will have the Planning Department give us background on the matter and I will ask the applicant to present their side of the case and then we will open it up for discussion of the Council and to the floor. We will ask that you only speak once, again, collect your thoughts and speak on whatever issue you plan to speak to, but we aren't going to allow you to pop up every 3 or 4 minutes when you think of something else. So you will be allowed to speak once. Does everyone understand how we will run this? With that we will proceed with the hearing. Peter. PETER JAMAR: Mr. Mayor, members of the Council, this is an appeal of the September 3rd Design Review Board decision denying the requested changes to a duplex which is being constructed on Lot 4, Potato Patch subdivision. Requested changes dealt specifically with four major items, and I'll briefly go through these four items. . The first item was that since the final approval of the Design Review Board for this new duplex on July 30th, 1980, a deck was constructed on the southwest side of the structure and this deck was found to be within a required fifteen -foot side setback. The deck was ordered removed by the Town staff and was removed and the applicants requested revision to this deck area and submitted the revision to the Design Review Board. The second item was that materials used on the exterior of the house were substantially different from those approved by the Design Review Board July 30th, 1980, which was the original approval. The applicant has proposed to restore the structure to the originally approved materials and design. The third item is that the topography of the lot has been altered substantially from what was originally approved. Prior to construction fill was brought onto the Tot which resulted in a 4.7 foot increase in floor slap elevation in the primary unit and 2.5 feet in the secondary unit, and correspondingly, the roof peak elevations in those units, the alteration of that topography has caused a severe drainage problem between lot 4 and the adjacent lot 5 to the southwest. The fourth item is that the retaining wall which was constructed within the required 20 foot front setback exceeds the maximum height allowed of 3 feet and the applicant has presented plans to the Design Review Board for addressing stepping this wall down to the maximum three foot height. So those are basically the four issues that were presented to the Design Review Board for revision. The Design Review Board after hearing the pre- sentation voted 3 to 2 to deny the requested changes. The Design Review Board cited specifically three sections of the Town of Vail Design Guidelines and I'll read these into the record. "The Design Review Board felt that the proposed changes were not in compliance with specifically Section 18.54010B which reads, to insure that the location and configuration of structures are visually harmonious with other sites and sur- rounding structures and do not unnecessarily block scenic views from existing buildings or tend to dominate the townscape or natural landscape." They.felt that the proposed changes were not in compliance with also Section 18.54.07OR in residential areas, location and configuration of buildings should maximize the privacy of surrounding dwellings and should intrude into their views with a minimum extent feasible. ..And also Section 18.54070M which reads, "On hillsides excessive grading should not be permitted for building sites, access drives, offstreet parking, poolsites, recreation areas, or other improvements." The applicants have appealed that Design Review Board denial to the Council. SLIFER: For the record, we should also note that we have received several letters in regard to this matter. I don't have the file with me but those letters are on file. We just received one from the Vail Village Homeowners Association asking that no approval be given. We have received a letter from Fred Meyer MINUTES Vail Town Council September 15, 1981 Page 3 BENEDICT: I'm sorry, what did the Vail Village Homeowners request? SOFER: They asked that no approval be given to the resulting changes in the plans originally approved by the Design Review Board. That they should conform to those original plans as all other persons are required to do. BENEDICT: SLIFER: DIANA: SLIFER: DIANA: SLIFER: MEYER. *FER: And who was that from? Vail Village property owners. It's signed by Lee Association Secretary. Diana Donovan gave it to me.. It is an association that we have formed and there are about 55 members now. Is this regards to Not specifically, no. and so on? Fred Meyer representing Hope Cheslin, submitted a letter. No, Rod, Mr. Velasquez. From Victor Deldmorma, Pual Johnston, Harold Federman, Ruth Federman, Joslyn Boyer and George Boyer, another one from the Federman's, Richard Strauss, Westner, David Lynsey, D.T. Traylor, Ellie Wexner, that appears to be the correspondence we have received to date. Do the applicants then want to present their side? LARRY KELLY: Mr. Mayor, members of the Council, my name is Larry Kelly, counsel to Paul Johnston, Paul Johnston is the owner of lot 4, the lot in question. I'd like to make some preliminary remarks with respect to the statements that you just made, Mr. Mayor and perhaps I can get some clarification on this issue. I'd like to point out for the record that our last Design Review Board meeting consisted of the applicant's time being cut down to about a half an hour. We expected a much lengthier presentation and it wasn't until immediately before the hearing that we were told that it had to be very short and we had to just get right down to the essence of things and obviously many things were left out of that presentation because of the occurrence of that short notice of.:how short the meeting was going to be. In that regard, and speaking for the applicant, I would be appreciative of certain leniencies with respect to what was introduced last time and what might additionally be introduced this time. I believe that fairness would require that. I can speak to a couple of issues as to what I would like to present and have you rule on them individually, I'm not sure procedurely how you'd like to address that. SLIFER: We want the statements that were made to the DRB. If you want to make a new presentation and go back to the DRB and have a lengthier time to present your issue then I would suggest you do so, but we do not want to hear a tremendous amount of information they did not hear. KELLY: I appreciate the general thrust of your statement. There were certain statements that were made at the last DRS that pretty much went unaddressed after they were made and they.include such issues as whether Paul Johnston knew that this thing was being built in excess of the height, things of that nature that we are prepared to address summarily here, and I don't believe 40 it would take alot of time, but I didn't want to tread contrary to your original policies. SLIFER: I'm not sure that's part of the issue. KELLY: I'm not suggesting it is, but SLIFER: I don't think that's the issue, and if it's not part of the DRB presentation MINUTES Vail Town Council September 15, 1981 Page 4 LY: Okay. I'll start into my presentation then with that under- standing of those.guidelines. I might ask that depending on how this meeting goes, that wehave some additional guidelines and that is if we need a record on appeal we've had some difficulty with respect to whether people identify themselves or don't identify themselves before they speak and I'd very much appreciate that people be required to identify themselves and when they refer to any of the exhibits that they refer to the numerical order of them. They're clearly marked up here and that would be helpful also. One other thing that I'd ask of you is as a matter of procedure is that Peter Jamar has out- lined four issues in the 9-9, memo to the Council. And if the Council would think that it would be easier to deal with, we would like to present each issue and have it discussed and analyzed and perhaps even voted on separately so that we don't get down to the last issue and not know whether certain pre - discussed issues were decided one way or the other or what the basic thrust of the thing is. If you find that unduly burdensome, I appreciate that, but if we could address each issue at a time and relate and vote on it, that would be helpful, I believe. SyIFER: I think it would be more appropriate to address all the issues at one time. I think that one issue may inter -relate to another and the decision that the Council might make may hinge on a previous issue, so I think it more appropriate to address them all at once as I assume the DRB did. KELLY: Okay, very fine, yes they did, very fine. I'll skip over my prepared text on who is Paul Johnston and what he was attempting to accomplish and what he knew and what he didn't know, whether Council approval will diminish DRB respect or integrity and get truly into the substance of this thing. I would like, Mr. Mayor, to address the issues in the order of the deck, the materials, the retaining wall, and then, lastly, the issue of topography, that's the most complex and I think if we deferred that to the end that anyway may be of some assistance. If that's acceptable, I'll proceed that way then. The deck as Peter Jamar pointed out, was built on the southwest side of the building. The original plans, as I understand, did show that a deck was in that area. The problem with that deck is that it was supported by concrete foundation, and if it was supported by concrete foundation, then it was not "a deck acceptable to being in a setback area". So the Town staff asked that that be torn off and it was summarily . torn off. We have introduced deck revision plans and I believe that that's in the file in front of you with respect as -to how we would handle that. And basically, that's just tearing off the deck and setting it back in to the structure where it will not set out into the setback area. And there really isn't any more presentation to it than the revised deck plans which takes the deck out of the setback area and sets the hot tub back in to the integral aspects of the structure. STEINBERG: Areyouu saying that the new deck proposal does not intrude into the setback at all? KELLY: That's correct. If there are no questions on that issue, it's just simply that it's not going to set back into the deck area, or excuse me, into the setback area. The materials, number 2, I hope can be handled summarily also. And that is, this simple statement, that the applicant apoligizes for the errors made by the.contractor,with respect to utilizing materials and designs inconsistent with the prior approved plans and the applicant will use the original materials and will build the building according to the original design. It will be quite expensive but it is feasible. We have retained engineers and architecteal construction consultants for the purposes of defining whether it possible to do this and what the cost is and they've told us it's costly but it's possible to do so we're saying that we will do it that way. We will build it the way it was originally approved and we're not asking for any changes in that regard. MINUTES Vail Town Council September 15, 1981 Page 5 LY: I don't know whether that would generate a question or not, but n't.) if there is one. SLIFER: Not at this point. KELLY: Okay. The third aspect is the issue of retaining walls. The Town requires that any retaining wall within a twenty -foot set- back not exceed a maximum height limit of three feet and there was a retaining wall and there still is a retaining wall within the twenty foot setback that does, in fact, exceed the three foot height limitation and with respect to that issue, we have prepared a set of landscaping designs and plans that will eliminate the need for having a retaining wall in excess of three foot within the setback, so we're not asking for any variance on that, on that code element. Again, I don't know if that would generate any questions, but, PAUL Is that issue supposedto address the drainage, does the JOHNSTON: drainage issue come under (Council - member) IDLY: Mr. Johnston, I believe it truly is an aspect of the drainage and it truly is an aspect of the landscaping, but inasmuch as the memo set it out in the Community Development memo, it is a separate item. I just dealt with it as a separate item but I think it is integral to the rest of the presentation, yes. SLIFER: We saw those plans this afternoon and you propose to have those plans or have someone speak to those plans? KELLY: I propose to address them, ah, the fellow who designed them is here and he's over there, and if it's something that I cannot field I'll ask Gary Rosler to prepared them to address specific questions, but I would like to first attempt to describe to you what they are and how they work. I'm a lawyer, not a landscape architect and so I may be not as good as describing some of the features but I want to get to the essence and I think that I may be better at getting to the essence of it and Gary can give it an overview perhaps. JOHNSTON; I just have a question..before we get started on that. Peter, where is some factual..substantiation that there is a drainage problem? JAMAR: Where is there some substantiation? .I think visually on the lot if you were to go up there you would notice evidence of fill dirt that has eroded from Lot 4 onto and across the lot line of lot 5. I believe there are pictures in the file. KELLY: What I would like to do at this point in time while we're on that issue of drainage, I think if we could then get into this last area that is generally referred to as topography, which includes areas of landscaping, retainage walls, the height of the structure, I believe that covers it, with respect to drainage which is a subissue of topography, we have had KKBNA, the engineering firm, review the plans as prepared by Gary Rosler because it was discussed at last DRB, well this is all fine and wonderful, but the water is still going to run onto Lot 4, Okay. Gary said no it would not, but that did not seem to satisfy the audience that it would not, so we've had an engineering consultant look at the drainage problem, the drainage matter I'll call it, and address whether these plans will or will not solve any potential drainage plan and if you'd like I could submit these then for your persual. STEINBERG: Were these submitted to DRB? MINUTES Vail Town Council September 15, 1981 Page 6 LY: No, they were not submitted to ORB. Just the issue of whether there was a drainage problem. We're not bringing up another issue. (Pause to look at plans) When it's appropriate, I can address I think, what the essence of this is. As 1 understand this think, what KKBNA is saying is that given a 100 year flood 24 hour peak rate, the discharge would be approximately 1. cubic feet per second. If things get really tough it's going to generate almost a foot and one half cubic feet per second runoff. The arrangement as designed by Gary Rosler, it says in the 1, 2, 3, 4th paragraph, will handle 13 cubic feet per second, nearly 10 times what would be required in a 100 year flood, 24 hour peak rate discharge of water. I don't know how I could say it any more clearly than that, that this will handle the drainage problem. That has been our opinion all along and this is just another way of stating it. Are there any questions on that issue at all? Disagreements, interpretations of this document? I suppose the one other critical aspect of that is that the owner of Lot 4, Mr. Boyer, had contended contrary to our contention that the water and the original topography would flow from him lot, Lot 5, onto Lot 4, and what Mr. Boyer was concerned, I think I'm stating this properly, is that not it appeared that water would flow from Lot 4, the subject property here, onto his lot. What KKBNA JAMAR: At the present time. KELLY: At the present time. Okay. What KKBNA is saying is that originally the topography, the water would flow from the Johnston lot down the property line to about the bottom 25 percent of the lot where it would flow over onto Lot 5. It would flow in essence to Lot 4 to Lot 5 at the bottom of it. And this plan is intended such that no water as much as reasonably possible, will flow from Lot 4 to Lot 5 whatsoever. So hopefully that will satisfy the Boyer's concern about the drainage issue.. If they have a representative here, I don't know whether they do or not, perhaps it would be appropriate to give them a copy of this. Seeing none and hearing none, I guess I won't. GEORGE (Raising hand). I don't want to use up any of my speaking time. BOYER, JR.: 'OFER: No, you won't. TODD: The calculations here are based upon the original. topography as opposed to the existing and modified formula, is that correct? KELLY: The calculations that are based upon the plans that we are presenting for your approval. TODD: Okay. Those here are based what your current confirguation site is? KELLY: Yes. TODD: Even though he has attached a site plan of the original topography? KELLY: He has attached a site plan of the original topography for purposes of showing that the original.topography showed water running from Lot 4 to Lot 5, but for no other reason. Okay. That being, I think, the first issue of the topography, the drainage, I think its probably appropriate to deal with the landscaping issues at this point, saving for last the ultimate issue, the issue of height, and if that's appropriate I'll demonstrate to the best of my ability what these plans depict. J MINUTES Vail Town Council September 15, 1981 Page 7 JELLY: The first document is entitled Number 1 and it is intended to ntinued) show an overview of.the planning schematic, it's intended to demonstrate that the planning that is being suggested here, oh, before I go into this I ought to point isomething out and I'll do this as you wish. What we have done is, the DRB last time said you know it would be nice to have some pine trees up there also. We originally didn't put pine trees in because we thought the DRB guidelines said use the vegetation that's local in the area and we decided that that meant the vegetation in the area proper of the subject property, so we didn't put pine trees in. So we have overlays here showing pine trees. Now I can take those off or keep those on, or flip them back and forth, or whatever you wish that I do on that. It's inappropriate for me not to tell you that there are pine trees on here that were not on there originally, but we can remove them quite easily. Fine as it is? SLIFER: Yes. KELLY: Okay. Drawing No. I is intended to show an overlay of the planning schematic. The purpose of which is to show that the plants, in and of themselves, do not create a visual impact, that they are clustered close to the home and they are for the purposes of emmularating the impact, the visual impact, of the extra increase in height without themselves not being a view obstruction. That is to say that as you can see, they're clustered in close to the home and that's the purpose of that drawing. Drawing No. 2, I'm going to move this back here, Drawing No. 2 is a sketch of the east elevation. This is the elevation when you drive up Potato Patch Road before you make the turn to come back to the cut -de -sac at the top. Luc Meyer's home would be up this way and this would be your first view of Lot 4 as built. Now what Mr. Rosler has done here, is that as you gentlemen are aware, we had a pretty massive retaining wall set up right here in the corner and what they're intending to do is to make two more series of rock walls or rock planters, if you will, in front of the wood retaining wall and also lower the wood retaining wall, such that no wall here exceeds the three-foot height and that within each planter, shrubs and plantings will grow to reduce the impact of a three wall setup. It will be , 'the intent is to smooth those lines out and in doing an attempt to reduce the impact of'. -.that height, large trees are shown here. With respect to the size of those trees, the question always comes up, are those trees going to be planted that height or are we going to do little bitty ones and let them grow? Mr. Rosler has informed me that those trees will be about as large as can be put in originally for purposes of getting them going, but they're about 3 or 4 years short of the height as shown there; is that correct, Gary. ROSLER: Yes, in most cases, except for where there is a high impact, there are larger trees there. KELLY: Okay, what I'm trying to say is that those are pretty much the trees that we'reigoing.to plant. We're going to plant large trees, not small ones. With respect, can you gentlemen;see this, by the way? Okay. With respect to Drawing No. 3, this is the south elevation. We can call this Lot 4, Lot 5 border. Okay. This is the thing that is almost impossible to walk today and pretty tough and brutal looking and what we intend to do is with respect to the two walls that I mentioned to you on Figure 2, they will be wrapped around thusly, there will be a wall in this area and a wall in here. By the way, here's where the hot tub will sit. Back into the home there as opposed to sitting out away from it. Again, trees are wrapped around and we've used predominately. the native Aspen trees that's up in that area and the pine trees that are shown are not the pine trees MINUTES Vail Town Council September 15, 1981 Page 8 shown to the DRB, but of course we're quite willing to put them in. Onto No. 5 here. A is just a cross-section of the retaining wall and all that means to me is that it is a retaining wall. I don't see any great significance other than that's how it's developed and there is a weephole through the retaining wall that collects water and it runs through that system. I don't know whether there's anything very significant about that. D; on Exhibit 6, is what is intended to run along this area here. It is what's called a French drain, or a natural drain. It is subterranean and it collects water in this system here and it flows down to the street. Now the fact of the matter is that will carry water in normal runoff. Hugh, high peak runoffs is going to be carried in,this area that is a swell, it's a little indentation here and the boys were concerned where that was relative to their lot line and it's clearly on our lot line, or excuse me, it's on our side of the property. The detail here on the righthand has to do with the front of the building with the cul-de-sac being up in this area. Originally there was that massive mound of dirt here. That is being cut back this way so that it won't have that substantial impact. That.was just dirt that was brought out onto the property or dug up, but it's certainly not intended to stay that way in any fashion. The water comes off this roof, it comes into this area here and flows down the south side and part of it will flow to the other direction. Oh, and I think the other important thing of this is that the planting is in close to the house and it's within this lower area here so that itself doesn't become a site impact, but it tends to emmelirate the impact of the house. On to 7, this of course of the garage side and there is hugh mounds of dirt out here right now and this is being stepped and sloped down to a maximum slope of 2 to 1? ROSLER: About 2 to 1. KELLY: Two to one. Okay. As it grades around the house there and, again, the trees are tucked in tight. With respect to what you may have noticed underneath this deck looked like there was a rather sizeable hole, or I don't know what you'd call it, but underneath the deck there was an area. This will be covered with shrubs and things of that nature. The west elevation, again, it just demonstrates, this would be the cul-de-sac looking in at this angle here and this is what these trees will do with respect to minimizing the impact ofj',:that house, that additional 2.5 feet. If you have specific questions on landscaping or what any of these documents are intended to show, Mr. Rosler could address those. I don't think I did a wonderful presentation on landscaping, just trying to demonstrate what they were. So if you have specific questions, perhaps Gary would answer them for you. SLIFER: Any questions on the landscaping? STEINBERG: I'd be interested in the top terrace. Would there still be the wood you have there? KELLY: I'm sorry, I couldn't .,... STEINBERG: The top terrace is wood and the bottom two are stone? KELLY: Oh, the retaining walls. Yes, the plans are presented to the Design Review Board was that th.e top terrace would be wood and then it would step down into two..stone. The idea was that plantings in between the two stones would reduce that impact. Of course, we're willing to do.stone, but that wasn't the presentation and I don't know how to respond to that more than that. MINUTES Vail Town Council September 15,1981 Page 9 0LER: The Review Board did ask us to made that top tier stone. So we did agree to do that. We will make all the will be stone. STEINBERG: That's what I thought I read and then it looked different. ROSLER: It was not presented that way,originally but with the spruce additions ... SLIFER: Any other questions? KELLY: Now I think that you have this in your file here. These specific numbers, I'm not sure whether you do or not, so I'll mention them. The primary unit, its slab was approved at an elevation 8630 feet. Okay, from sea level. It was built on 8634.7. That means the lower slab was raised in the air 4.7 feet. The secondary, or upper unit, the actual highest part of the structure, was approved at 8642.8 and was built at 8645.3. Now I'd like to point out some things about, well, let me also say that the differential increase in the height of the two units gave a nonuniform increase in total structure. The larger unit was built 4.7 feet up, the smaller unit was built 2.5 feet up. ROSLER: May I make a comment? KELLY: I don't know. ROSLER: Everything that's been done here has been done to city code as far as slope angle slope and things like that. The landscaping and everything like that is to the existing city code. SLIFER: We understand. ROSLER: Within the building height and everything. KELLY: Okay. I think it's understood by all that the height issue here is not an ordinance height issue. That is to say, that the structure is in fact not violating an ordinance height limitation. It's just higher than originally approved. Okay. • I thought that went without saying at this point, but wanted to make sure. Uh,:I promised myself I wouldn't say "Uh" for the transcript, but . I think it's important to note that the highest point of the structure is the secondary unit and if we're dealing with the visual impact of the height increase we're really dealing with an issue of 30 inches from say Luc Meyer's home. Anybody who would look down on the project and out with respect to the height itself, this is a short presentatio on height I want to tell you. It is simply this, that the economics of the home, tearing it down, redoing it, chopping it up in fashions, just simply makes it impossible, short of demolition of the building, to do anything with the height. It is where it is and there is nothing we can do about it. Would that we could, we've consulted everybody in sight, but there is no way to lower this structure. You know we played with ideas of lowering the pitch of the roof but that flattens it out, we've talked about bringing up cranes, lifting up the structure and pulling the dirt out and setting it down, but you can't get a crane big enough up Potato Patch Road, on and on and on, the ideas have gone to the bizarre in terms of methods of possibilities and engineering feasibilities and • whatnot. It just simply cannot be done. The home is not in MINUTES Vail Town Council September 15, 1981 Page 10 violation of an ordinance height, I must stress, and there there isn't anything we can do about the height. In a negative vote with respect with what we're attempting to do to reduce the impact of that additional height, we're attempting to do every- thing that we possibly can to eliminate this problem and I must say that it was caused by a bad mistake on who did it. Every- thing that can be done has been done but we can't do anything with the height and a vote against these revisions is a vote .in favor of demolishing the building and I must tell you that if it were possible to demolish the building and still keep Paul Johnston in tact financially, maybe we'd consider it, but we can't keep him in tact financially if his entire future is up in the air here financially, so we don't intend to tear it down, uh, I hope that you will see that as a statement of a sincere attempt to deal with and handle the problems that have befalled Paul Johnston. I think it could have happened to anybody. I really do. And it really is a good faither attempt to deal with this and if there are any suggestions about how we might be able to handle it in a better way, we'd be willing to entertain them. I know that's not your position to tell us how to handle this problem. We've asked every consultant that • we could imagine. We've asked the neighbors to kick in any thoughts they might have on the issue.and the relationship of the neighbors have been very difficult and very trying. It's been difficult and trying for them, I understand that, but with respect to try and get some feedback as to what was acceptable to them, we could not do that, we could not get that information. We submitted prior plans to the DRB with respect to the Lot 4-Lot 5 border, that showed every tree that was known to man planted there. It was a bit garish, and of course they said calm it down a little bit, so we calmed it down a. little bit and the last DRB meeting said why don't you spruce it up a little. It's very difficult dealing in this arena. And I tell you every day that goes by is very, very expensive for us and the loss has been very substantial and I feel that this is an important issue, though, it really wasn't addressed and if you would give me the grace to just discuss one small issue of what would the acceptance of these plans by Council do to the DRB respect, I would appreciate that. If you feel like that's too far field, I won't go into that. SLIFER: I think you can address that ,issue. �LY: Okay. It seems to be its been postulated that how can the Council possibly accept these revisions.,:If they did, wouldn't that encourage everyone to disregard the DRB? A very important function of the Town would be disregarded and everybodywould say they wouldn't have to deal with it. Well, I suggest to you that the truth of the matter is that if anybody thought that it was a wise thing to do to follow in the footsteps of Paul Johnston and through his agents.disregarding the prior DRB approvals, they'd have to be insane. If anything, the loss to Paul Johnston has been in the hundreds of thousands of dollars thus far and obviously, this could be held out as an example of what happens to people who don't follow the DRB. That there is a substantial punishment and penalty for this. And I cannot for the life of me imagine that anybody would seek Council approval to these revisions as.impuning the integrity of the Design Review Board. I think that they have done their task and it's a.complicated task and they've done it well. But I hope that the physological impact of this is not that you feel you must approve the prior DRB denial or you would do them an inservice or an injustice. In any event, I assume there may be some questions on this height and I know that Fred Meyer may wish to speak on this issue for his client, Senor Valasquez from Mexico City, who is the intended purchaser of the unit. Does the Council have any questions on anything that I've said? MINUTES Vail Town September Page 11 Council 15, 1981 SLIFER: Are there any questions. I think we understand it. OLY: Thank you very much for your patience. SLIFER: Thank you. I think we will just open it up to the floor for input from anyone out there who wants to make comments. I don't think I need to remind you of the groundrules, so if you'd like to start. GEORGE Mr. Mayor, I'd like to get up and read my letter to you. I BOYER, Jr. didn't hear my name mentioned in your list of letters. My name is George Boyer, I'm George Boyer's son and not the property owner of Lot 5. However, as a citizen of the Town I did write a letter addressing the issue of the Design Review Board decision of early September: (Letter attached to transcript). I believe that covers what I had to say. SLIFER: Okay. Thank you. Do we have a copy of that letter? BOYER: I sent it to you. I'll give you a carbon. SLIFER: Any other comments? 0Y My name is Gary Rosler, the landscape architect for the project ROSLER: and I've been doing projects in the Vail area for about 4 years now, including the planting plan for the Berry Creek Ranch Golf Course, the Dobson Ice Arena and some other projects and I don't think any project I've done here or in any ski resorts throughout the state, as much has been spent per square foot on this project for landscaping. The, ah, Paul approached me with the idea to do what I have to do to fix it in the best way possible and there was no expense spared on the landscaping. We've got the largest possible trees we can use, we have an erosion control blanket on every slope that's beyond 2 to 1. Every slope within the pro- ject with the exception of the entry cut there on Drawing #2 is less than the slopes of the adjacent property, and in all cases practically. As far as the landscaping approach goes, there is nothing I can do to make it any better than it is, I don't feel. Any questions on that? Thank you. SLIFER: Thank you. Anyone else like to make any comments? DIANE My name is Diane Boyer and I have power of attorney for Joslyn ER: Boyer. First of all I'd like to address three points. Ah, in regards to erosion and topography, you the Town stall and I'm not sure if it's in the hands of the Design Review Board or the Town Council, have a series of photographs which specifically show the erosion clearly in the fill dirt that was placed between Lots 4 and 5, some of which is on Lot 4 and some of which is on Lot 5. Also there is a photograph and unfortunately I no longer have copies of these. They are a matter of record. They show the retaining wall that was originally built to hold this fill back. Let that be a matter of record. Clearly, all these photographs show erosion in all that fill area. Um, we have seen here this evening many very nice landscape plans. I did not realize that the issue was landscape. Perhaps I misunder- stood reading all of the Design Review Board and previous reports from the Town of Vail. I believe other issues - the height of the building, which was also addressed as well as the topography of the land are much more important. Thirdly,.I'd like to read a letter which is addressed to the Town Council Town of Vail, on behalf of Joslyn Boyer. You do have a copy of it but I would like it read. (Letter attached to the transcript.) MINUTES Vail Town Council September 15, 1981 Page 12 Thank you. FER: Are there any other comments? My name is Velasquez. I am a civil engineer. I am a contractor also. I agree partly with what the Boyer family has said, but I would like to make a few comments. You will excuse my very poor English. I still don't know of any project that has been worked to the last detail so that it has been constructed accordingly 100 percent to the way it was projected. It always happens that as you build whatever you are building you just can't improve it a little bit. I just want to establish one thing that has not been saidaat all. The building is within regulations, The building is not according to the original plans but is within regulations. The person responsible for the building not being according to the plans is being punished and has already been punished and his construction license has been removed. At the most, if it should be fair, he should be fined and I know that his is a way most countries deal with this type of problems, Thank you very much, or is there any question? I am the prospective buyer of the place. Thank you. SLIFER: Are you buying both sides? 40 No, just one and the other one is a very close friend of mine. Thank you. I have lived in Vail several years. SLIFER: Any other comments? Fred? FRED MEYER: My name is Fred Meyer. I am attorney for Velasquez. Technically, he is not a party to this, but obviously has a very real interest since he executed a contract with (pause to change tape) SLIFER: Why don't you start over, Fred, so we're sure to get the whole thing? FRED MEYER: My name is Fred Meyer. I'm the attorney for Valasquez who has entered into a contract to purchase this property as of March of this year. I came into this at the request of Luc Meyer who, as you know, is an opponent. Luc recommended me to because I think he thought I could be a peacemaker, a mediator and I have attempted to do so. I've only been involved for the past five weeks and I spent the first week or so trying to investigate all of the issues without coming down on either side. I told Iwhen we first met that I considered my- self first and foremost hopefully a good citizen of Vail and would not represent him in a matter in which I thought would hurt the interests of Vail. I have to tell you it's been a very frustrating four.or five weeks because what I had hoped to accomplish initially I have to say that I have not been able to accomplish. I thought that I'd be able to bring the two parties together in some way, but I failed to do so. As soon as I undertook this I met with Paul Johnston and his attorney and insisted on behalf of that every single possible thing be done to bring this.building back to the way that it had originally been approved. To this end, Paul Johnston, retained a landscape engineer. He retained Channon Associates for soil testing, KKBNA for some construction problems, Gary Rosler, whom you've already heard, and several other people,.both directly and indirectly. In my opinion, they have done everything they possibly could to bring this building back the way it had originally been approved. By way of background, Paul Johnston, and I've made my own independent investigation, is a CPA from Kansas City, he has never built anything before, he bought a piece of land and it's almost humorous, he was given a recom- mendation for a Dan Gagliardo as being one of the best contractors in Vail. He showed me an ad by one of the major •MINUTES Vail Town Council September 15, 1981 Page 13 FRED MEYER: real estate firms in Vail advertising the buildings built by Dan Gagliardo and you'd think they were all Taj Mahals. I don't ever remember seeing any such extreme advertising in the Vail Trail. This contractor went out on his own and decided to do his own thing i.n..actually about a dozen different areas, fortunately most of them were minor. A couple of them, however, were substantial. I would certainly include the changing on the siding on that, and one, of course, was very significant, and that was the change in the height of the building. Some people have said Paul Johnston knew or should have known that the building height had been changed. I want to tell you that I am a graduate engineer and I spent a long time surveying and quite frankly, I wouldn't I'm sure be expected to know by looking at a building that it was several feet higher than it was supposed to be and interestingly enough, I'm certainly not taking any unkind cuts at the building department of Vail, but the building inspector, I think had been up there about 15 times and he had never noticed until the building was almost complete after it had been under construction for, oh, something like about nine months. I consider that having made my own investiation that Paul Johnston is innocent of this and I think I ought to tell you that I've also learned that Paul Johnston took a lie detector test to determine the integrity of his statements and he passed it with flying colors. So I think we should clear the air of that once and for all. Now, as far as the Design Review Board meeting. Larry Kelly told you that it was far shortened, that we Were not able to either of us tell our clients full stories and I was really very disappointed not so much in the decision of the Board but the reasoning or more specifically, the lack of reasoning that was given. It was vague in terms of pointing of certain provisions. It didn't say where the plans failed. Consequently, I was very interested to get Peter Jamar's memorandum a few days later and I sat down and I discussed it with him. But as I went through it and I think you have this before you, his memo of September 9th, and I said, well you know how can the deck be an issue? The deck has been torn down, plans were presented to show that the hot tub was going to be put clearly within the limits that were allowed. The Design Review Board did not say, "We don't like the design of that hot tub". They simply ignored it. Secondly, and this goes back long before I became involved, it was made clear to the Design Review Board that the materials which Gagliardo had used on the outside were going to be torn off the building and they were going to be replaced with the materials that had been approved back in 1980. The Design Review Board said nothing specifically about that and yet we have here as if this is still an issue. It may be, but I can't understand why it would be. If we go to Number 4, we're talking about a retaining wall. We've talking about a redesign of what had formerly been I believe a nine foot railroad�tye retaining wall of which there are many in Vail and admittedly not very attractive. Consequently, came back in and said we will build this clearly within the building code and we believe within what the Design Review Board wanted, i.e. a three-tier step back all of stone, about four times as expensive as the original wall. In other words, certainly since the time I've been involved, and I believe preceding that date, every effort has been made to cooperate only to meet with a great deal of frustration. I'm saving the most difficult, of course, for last, and that's .Number 3. I told you a was a graduate engineer. I told you a was a surveyor, I was also a map maker during the War. I can read maps and I took another look at the original map of the contours on Lot 4 Johnston and Lots 5 and 6, Boyer, and it was absolutely self-evident that according to those maps • water had always flowed off Lot 4 onto Lot 5. There can be no question about it and now there is an engineering report to support it. Nevertheless, the Boyers insisted without any evidence whatsoever, that this was a new state of events. That water was now flying from 4 onto 5. As a matter of�`fact, where the water flows, it is such a tiny little strip that no reasonable people would ever think about arguing. Nevertheless, I MINUTES Vail Town Council Meeting September 15, 1981 Page 14 D MEYER: in order to try to be good citizens we said, alright, we'll go n't.) to the expense of building this Swale, this french drain, so that regardless of how water may have flowed in the past, in the future no drop of water will ever flow from Lot 4 to Lot 5. We tried to present that to the Design Review Board, but the Boyers tried to obfuscate the whole thing. It made it almost impossible for anybody to understand what we had already said would be done. So, again, it shows up here. Nevertheless, the Design Review Board never said the water from 4 is flowing into 5. It shouldn't. It never said we don't like French tiles or French drains or anything of the sort. It simply pointed to some very broad provisions. That brings us of course to the. height and this is something that I obviously have not been able to resolve. Larry Kelly did make the point that the first day that we sat down and I said I want everything brought back, and Larry Kelly said, "Gee, we can't". And harking back to my engineering days, I said, you know I don't understand the word "can't". Why can't you move the house off the property, lift it up in the air with a crane or something like that and then of.course he informed me that it was on a concrete slab. I went up with Peter Jamar and took a look at it and the slope of the roof which is 4_and one half and twelve, the height of the walls which are only eight feet and I suppose nobody can use the word absolutely impossible, but this would be absolutely impractible and well nigh impossible. What we have attempted to do is as we have heard from Gary Rosier, to come up with the best landscaping plan maybe any single resident of Vail has every attempted to do and if that isn't good enough we told the Design Review Board tell us what you want to do. Want us to do and not a word. All of a sudden, court's going to be in session and we've got to take a vote and before the issues could be properly addressed, much less debated, the vote was taken and it was 3 to 2. I want to end the way I started. I came in hoping to be a peace maker. Hoping to bring two sides together. My experience and living in Vail and working with the Council on a number of things, somehow or other we always seem to be able to get together. Somebody gave a little. I have to tell you in this particular instance, I have been up against something that I have never been up before in Vail or in any other place. There has been no movement on the other side. There has been no compromise. They won't even discuss- :it, There's no willingness to even listen. There's no attempt at anything constructive. They just want to stonewall the whole thing and say it's built above where the Design Review Board approved. They're careful not to say tear it down, fine these people a half million dollars, but this is exactly .of what they're saying but they don't have the guts to tell it to you like it is. SLIFER: Let's not get into personalities. MEYER: Okay. I'm going to close by saying if any member here feels that he can offer some additional solution to what issues he thinks may still be open, my client, Harvey A. Val asquez, would be the first to come up here and say we'll do everything we can to try to meet your demands. I just_ hope that you give our request the most thoughtful consideration and hopefully approve what we are trying to do. Thank you. SLIFER: Thank you. Anyone else like to to make a comment. Joe. JOE STAUFFER: My name is Joe Stauffer and I am here primarily for Luc Meyer who wanted to come himself. He, the Council may have gotten a copy of this, he sent his wife over with a letter that he felt.was rather intimidating and basically threatening for him to, that he would be sued if your decision is contrary to the applicant's wishes. I don't know if you haven't seen the letter, I'd like to pass it on to you. Luc suggested that I read it for the records, I don't think it's necessary, I think we can make it part of the record by reference. He says he has not been intimidated by the letter, has not MINUTES Vail Town Council Meeting September 15, 1981 Page 15 OAUFFER: given up his right as a citizen to speak in the council chamber and on (cont.) behalf of Luc Meyer, I would like to voice his opinion that you should uphold the Design Review Boards decision and deny the application which brings me to my own decision as a property owner on Potato Patch and my name is Joe Stauffer if you want a showing,of me in the suit. For speaking my mind. I think that the issue is whether we feel our zoning ordinances and our codes and rules and regulations are valid. If we find they are valid, we have to have the courage to enforce them and, if necessary, the courage to defend them, and whether that means going to court for five years, so it be. You know we have to defend them. If they, in fact, have been deliberately violated and intentionally bypassed, now I'm not the judge to.make that decision that burden rests on you, that's why you got elected and I sympathize with you and (laughter) I'm sorry I can't help you. Thank you. SLIFER: Any other comments. Don DON: ........... SLIFER: Well let's Go right ahead SLIFER: No, let's let him go ahead.. KLINGER: My name is Don Klinger and just from the standpoint from why I wanted to be incorporated into Vail, living in West Vail we had a number of problems that came up, much in the same area, nothing like this, and the reason I fought so hard to be incorporated into this Town is what, this thing did not happen. So builders did not arbitrarily go out and build whatever they wanted to for whatever reason, I'm not saying anybody's wrong. But we had no way to correct it in West Vail. Now we have a way. I hate to pick on anybody, and I don't know whether we should pick on the contractors making the error, pick on Johnston, whether he is the builder or whether he is the contractor, what position he has, but somewhere we have got to stop it. I hope we stopped it in West Vail by becoming part of Vail. What you are going to do know, I don't know, but it has got to be stopped. SLIFER: Any other comments? Yes I don't think so.. * MOND I'm Raymond Gotay. I'm an owner of Potato Patch Lot #2. I've been a GOTAY: tax payer here in the Town of Vail since '63 and I've got to go along with what those last speaker's have been saying, but I would like to bring up an old axiom the lawyers present I'm sure have heard. If you have the facts on your side, you hammer on the facts. I think those facts have been adequately brought forth what they are, what they are not. If you have the law on your side, and in this case it's the ordinances, you hammer on those ordinances, but if you have neither .on your side you hammer on the table. And frankly I've heard an awful lot of table hammering tonight. It has to do with ameliorating,changing and everything, but it's after the fact. Frankly, I go with the facts and I go with the ordinances. They should be upheld. Thank you. SLIFER: Thank you. Any other comments? TAYLOR: I'll try to make this short and brief. I'm Phillip Taylor. I'm an architectural consultant for Paul Johnston. I'm also a native of the western slope of Colorado and paying taxes here all my life and enjoying Vail a long time before it was ever a ski area. What they proposed here. I was asked to determine what the problems were and I've had a lot trouble doing it. One of the things I've done is gone to the Potato Patch area, walked around, perhaps in violation of some people's private property, but trying to determine. We have some ordinances, they are rather vague, they're rather broad, they have to be. I've been a contractor long enough to know that when you're a Design Review Board you have to be given some leniency. I'm trying to find a definition of some terms and I'm looking at properties in the Potato Patch area. What is excessive grading? MINUTES Vail Town Council Meeting September 15, 1981 Page 16 QYLOR: Well, I looked at every single home that was built on a sloping {cunt} lot and none of those homes have this amount of grading. They have greater grading. Some of them double and triple this grading. There is a home in Lot 1, Potato Patch that's been in existence for quite a while, that dominates the valley scene. If you look at Potato Patch you see this home. There is a twenty-five foot retaining wall on that home. What we propose here is three feet. The adjacent property has an eight foot cut behind it. What we are proposing is seven foot cut. I noticed somebody commenting about drainage. The ordinances say that you are not to disturb the natural drainage. I noticed two homes up there that filled a forty -foot ravine in order to create a front lawn. The ordinances state that you are not to have an urban type landscape. That forty foot ravine was filled for the sole purpose of creating an urban type landscape. That twenty-five foot retaining wall on Lot was placed there for the sole purpose of.creating an urban front lawn, tree lined drive, blue -grass lawn. It's huge. It`s offensive. When this happens, when you're a builder and you're approved by the Design Review Board to build according to plans and specifications and you do not do it, you should be punished. You're a builder that violated Town regulations. You should lose your license. That's been done in this case. Now what we are doing is we're going back to the man that hired that builder and punishing him, when he is standing here saying, I have spent in excess of $200,000 to.ameliorate what this man has done, because I don't think it was right either. Please help me. I have gone to:every expert and not picked cheap experts, but gone to the very best. The report you were handed tonight was done by a man that is ranked third in this State for topography analysis and drainage analysis. That is why we went to KKSNA. We went to Chen and Associates to do soils investigations because they're the best. We want to do it right. We stand before you saying, it isn't us that created this problem. It's us that want to correct it. We are on your side. We're on the Town's side. We want to see these ordinances enforced. What we have proposed, complies with every single ordinance that.you have. We can't change past history. All we can do is correct it. We're asking that you allow us to correct it. That's all I'll say. Thank you. SLIFER: Thank you. Any other comments? Diane? DONOVAN: I think you probably already, oh, Diana Donovan. I think you probably already know this, but I'm on the Design Review Board and I just wanted to mention this from my point of view on the Design Review Board. The ideck was not an issue for me cause they could fix that up fine. The siding was not an issue because it could be returned to the approved materials. We made suggestions for the landscaping and they accepted that. However, the topography was changed in direct violation of the ordinance. That change created other violations that solution was presented for and indeed there may be no cheap or easy solution, but that's not our problem. The Design Review Boards job is to uphold the ordinance, not give solutions, particularly to problems created by the builder. That is why I voted the way I did. SLIFER: Thank you Diane. Lou? MASKOMAN: My name is Lou Maskoman and I was on the DIR, DRB at the time this stuff was brought in and this is coming up to an issue of one of the things I feel that a lot of the committee's that the Town has that we make our decisions, we spend our time, we try doing it the best we can, we have tried to enforce the regulations,the zoning covenances that are put up through the Town and we have numerous incidences that I can't name, because I don't have them, of violators, and unfortunately this gentleman, was caught, and the whole crunch of the issue is not how much money he has spent, how much money he is going to spend to try to correct them, but that he and his builder violated the covenances. Are we going to enforce the covenances or turn this into a wide open town? And this is a concern that is coming much more with those of us living here and trying to make this our home. The money issue is something that should never have been brought up. It's unfortunate that it's going to cost him a lot, no matter which way. The only other think I can suggest is we have already had this person in violation of several different covenances things that he and his builder have said, that they would do. What MINUTES Vail Town Council Meeting September 15, 1981 Page 17 3KOMAN: guarantee are we going to put on him and on his word that he would do ont.) the landscaping and the other suggestions that might come out of this if his approval, or repeal is approved. We have to -know what he is going to have and how he is going to make sure it is done. So far, he is biding a minus record on word of his project. Thank you. I would never SLIFER: Well, let's not argue back and forth (laughter). JOHNSTON: I didn't intend to say anything myself because I have, SLIFER: What is your name? JOHNSTON: My name is Paul Johnston, and I own the project. Um, I personally intended from the beginning, and have throughout the whole process of building this thing to have a good property, with no violations of any sort. Uh, These things occurred, I was not aware of them. When I discovered them, we'have made immediate efforts to correct them. The height was something that I didn't know about until the City, or one of the neighbors brought it up and a survey was run. We got rid of the Contractor. We have gotten new Contractors, we've tried to do everything to compensate for this. We are leaving very little problem up there for the people in the surrounding area. I understand that this really., technically is only the view issue, is only an issue that should be considered by people that have structures already on there lots. I think I read something about that in the Design Review Board regulations, that view is a concern of people that have existing structures. We're talking about just two residents up there, Luc Meyer and the Federmans. And Harold Federman gave me a letter that if we would correct the siding problem which was another violation on the part of the General Contractor that I wasn't aware of, that we could proceed with.the construction. So the, to my knowledge there is only one party that even should have a question on this issue of view and that would be Luc Meyer. His property doesn't face our property, it faces off more to the south. You have to look from his front door to see our place and it is two and one-half feet higher than the.original. plan, and.with the vast amount of horizon that there is up there, it is virtually insignificant from his stand point. I, I just can't believe that we've gotten involved in all this detail and all this problem over something that really is not significantly affecting anyone negatively. We have a beautiful property . we're going to landscape it in a manner that is just going to be absolutely gorgeous. It will be a credit to the area. Should increase the value of the surrounding property and I would like you to take these things into account and not cause me such a tremendous disastrous economic problem over something that is not going to be a disadvantage to the City. So I would like to personally appeal to you to consider that what we are doing to this thing will end up being a very favorable addition to the City, and that's about all I can say and I would like to appeal to you to allow us to go ahead and finish this thing so that we will not have this mess sitting out there for any longer than we have to. That's all, Thank you. SLIFER: Craig? SNOWDEN: My name is Craig Snowden. I'm a member of the Design Review Board also. I would like to comment, I was one of the members of the Board that voted in favor of this proposal. I would like to comment on two things. One that, with the building as it is presented, it is still not in violation of ordinances. It meets all the Town Ordinances, it does not comply with the drawings we looked at. But it still meets all the Town Ordinances. The other thing is, granted there was a mistake made, I felt in voting that the owner of the property was doing more than an adequate job of trying to remedy that mistake and that's why I voted the way I did. SLIFER: Thank you. Any other comments? If there are no comments from the floor then I would ask the Council if each of the Council would like to make comments, starting with Mr. Ruder. MINUTES Vail Town Council Meeting September 15, 1981 Page 18 ER: Thanks. Rod, it, it's one of the subjects that I. have not looked forward today to discussing this evening, it's one of the more difficult.decisions that I've faced in the almost six years I've sat behind this table. Because I think in that time that; people sitting.behind.this table have had picking a few words that's come out of the conversations we've heard, have had the courage to fend our ordinances and resolutions and I think we do have courage to defend. Ah, when I first heard of this thing and after inspecting the property today, it's very hard to take a:look at that building in its present state and leave the site.with.a very favorable impression, because there is a tremendous amount of detail that needs to be attended to and it's hard to look at all that=shody workmanship and try to figure out what the issues are. I'm a.builder and a Contractor and I believe, I think I believe that the problems the building problems can be remedied. They're difficult and they're very expensive because I saw all kinds of structural problems and roof sagging and piers and posts without supports under them and it's an endless project to try to remedy the building, but if youpour enough money into it with people with enough expertise, I suppose that those problems can be remedied. In looking at the Design Review thing; ..and looking at the memorandum we got, I think.that the owner of the property has put together a very good team, if that is the right word, to address the problems from a technical standpoint. I know KKBNA.and Chen and Associates and the Contractor that they have selected to do this work and I think they can do it. One of my big concerns is that if we don't allow this person.to repair the problem, and it's a question I guess I would have of Larry, is how long, I mean I don't know what their legal council would suggest that they do obviously, but I'm very concerned as to'how long.that piece of property wouldsit up.there and at the moment, I think that it is somewhat of a'hazard to children perhaps in the area and things like that and the longer it sat.there, especially if it had to go through.this.winter the larger that probTem would be. And I don't like to subject the citizens and kids in this town to those problems and yet I.know that kids like to go.around those kinds of places. Ah, I also have some concern as to how, if we were to allow Mr. Johnson to proceed and perhaps repair.all the damage that has been done to the best of his -ability as he's outlined today, how we would spell this out and I would have to ask Mr. Rider to put together quite a complete briefing as to how he thinks this could be done and how we would cover the additional costs that the.building department the Town of Vail might have,.cause I'think they would have some additional costs because, someone would have to hired to watch over the repair of this process like a hawk, and that we would ha.ve.to have some kind of bonded . guarantee or something that this could be done. I think that Mr. Johnston and his players have made a very effort to try to rectify the problem, it's a very difficult problem and I think that I'm, I don't know what's going to cause precedence with what the Design -Review Board has set out to do, I'°m very happy -I guess at this.point.that.it is not a violation of an ordinance ah, and I think for all of these reasons, at this point I would be in favor of., with some bonded guarantee, and some contractural arrangements to.how the Town would oversee the<process, that we would allow the project to finish and be completed, because I'm not an attorney, but I guess that it would take years to get the thing all the way through the court process, and I think that.at the end of those years, the neighborhood would be damaged more than it's going to be.damaged if we all -ow the thing to be repaired. I just think we need to guarantee the very best way we can that these repairs are made in a quality way. And ah, as proposed by these people and as,.I think the Design Review Board would get one, should get another look at approving finally these repairs and that the cost to the Town would be covered. SLIFER: Ron? RON: I too agree from the standpoint of feeling some sympathy for Mr. Johnston's situation, but I differ with my findings on the facts that have been presented this evening. To begin with, in looking at the original topography, I agree that perhaps that Mr. Boyer's compliant of the drainage is unfounded, at least from my standpoint, and I say that being an architect and dealing with topographic maps in my practice of architecture. But the existing topography points out MINUTES Vail Town Council Meeting September 15, 1981 Page 19 RON: something else to me, I think it's very critical here. Now look at ant.) Mr. Boyer's lot and you can look at the contour tines and.you can see that it is, probably by virtue of shaping of that knoll, the most prominent lot along that side of the street, and I don't know what sort of prices were paid up there; but I would suspect that Mr. Boyer may well have had to pay a premium for that lot and he,paid a premium for that lot because he wanted that prominence on that particular curve of the road. It also became obvious to me today, that.i.n standing on the site adjacent to the building that Mr. Boyer's concern about the amount of fill that were brought onto that property are totally valid, because its easy to see from being up there next to the house and looking down at the marked property line between the.Boyer property and this property that a tremendous amount of fill has been brought in and that house has been placed upon this mound of fill and in so doing is obviously created for Mr. Johnston some foundation problems, which Bob and all of us evidenced. But the thing that it did is it took.away the prominence of Mr. Boyer's lot in my estimation, because now there are two ,knolls, in essence along that side of the road and I don't think that's fair to him as a property owner and I feel that that is a violation of the ordinance. I've heard people say tonight that, that.this project is conforming it's not in violation whatseever. Now I contend that it's in violation in that we have no guarantee that if.this house were presented as it's been presented tonight.that.it would have been approved by the Design Review Board because.of the excessive grading because of the mounding up of the property, because.at that time the Federman's may have felt it wise to complain because of blockage to .their view. I agree that perhaps the blockage of Mr. Meyer's view is marginal. I think that that is true, but the Federman's view is certainly inpacted upon and to say that by coming.back and making these changes.it still conforms to the general ordinance items such as height, set -backs, etc. doesn't address the entire picture of what you have to do with the project in this community, and that's to come in and satisfy the Design Review Board at the time you are ready to build and to satisfy the neighbors and to put together a project that is acceptable across the board. As far as prcedence, we. have trouble with enforcement. Lou pointed it out, he voiced very well the frustration that we sometimes feel by sitting on these boardsand trying to enforce the ordinances by what we do in these meetings and then seeing the ordinances violated many, many times over out inthe field, because we don't have the staff to enforce all of these violations that occur. Fred addressed that, pointed out that it took a. number of visits before it became apparent to the building official. It was pointed out by Mr. Taylor that he saw numerous other violations and that's terribly unfortunate because • those things should not be allowed to happen. But we haven't had the manpower to do it. The minute that we back-down.on our ordinances and every contractor in this valley sees that he has an escape valve, I think we will see more of a propensity to try to violate these ordinances, to try to make changes during the course of construction because if we enforce these ordinances tonight, the.contractor is going to realize that he is going to be held to the letter of the law. But if he sees that we back -down tonight and say well it's an unfortunate situation, and we have to deal with that, he is .going to realize that number one, his chances are very good that he won't get caught, and number two, if he gets caught he can always come to the Town Council and they'll probably be big hearted about it.. I sympathize with Mr. Johnston's situation.. I am convinced from what has been.presented tonight that he was certainly not guilty in his, in concurring with the Contractor. I don't believe he was aware of these violations, but I do think that Mr. Johnston is guilty of negligence, because, to me, Mr. Johnston is the individual that is responsible to this community as the developer of this property and the fact that he is an absentee owner did not have the architect provide any sort of construction administration, that he didn't have substantial visits.to the site to make sure that his contractor was following the ordinance, I feel that there is guilt there through negligence and for that reason I will vote to uphold the Design Review Board decision. SLIFER: Bud? BENEDICT: I'm glad you didn't ask me last because if it was a tie vote I'd (laughter) MINUTES Vail Town Council Meeting September 15, 1981 Page 20 BENEDICT: There is no question that we've seen violations of the ordinance nt) of the building code and there is no question that these people have represented to us there ability and willingness to correct all of the issues that can possibly be corrected. The one of course, that they can not change, and that being the height. I don't feel that the height is that much of a problem, in that I don't feel in, from visiting the site that it does take away enough view to be a major, a major situation. My concern is that same concern that Ron Todd expressed, and that is that I feel there has definitely been negligence in controlling the job and that responsibility has to.be addressed and has to be met and even though I would like sit here and be very compassionate and say that, uhm, let's clean it up and spruce it up and accept it, I don't feel that I can, and consequently for that reason, I would uphold the Design Review Boards decision. SLIFER: Paul PAUL JOHNSTON: For the first time in my life I found somebody who has the same name as my signature. I'm not related by blood or contract to Mr. Johnston, so I'd just establish that in the beginning. Now I don't think it's sad that the errors were caught or that Mr. Johnston was caught as we said, I think it's a sign that our system works and I think we should be excited that the system works .and not be confused that we are abandoning laws, or considering abandoning laws or consider abandoning enforcement, we are in the process of enforcing and by bringing him to a position to where he complies with that which was approved by the Design Review Board in three out of four counts, I think it proves thatthe system is working. The height is not a violation of the ordinance, that's been established. That's a violation of what was intended and I guess of what the Design Review Board approved, thought I would be very doubtful that the Design ._Review Board had a comprehensive knowledge of the elevation on that house on that lot. I don't see anywhere in the ordinances where it requires consideration in the design of one house of unbuilt houses on adjoining properties. I can't see that as a factor at all. I think that the ordinances and the building codes would be upheld by the solution that has been presented and for that reason I would move to reverse the decision of the Design Review Board. (change tapes) That is the motion *FER: OK, could we ask you to reserve that motion JOHNSTON: Sure, you bet. STEINBERG: I still have a few questions in my mind on the whole process,. and whether they were actually brought out to the Design Review which I did not read in the transcript, was there testimony by the Building Inspector as to when and when he discovered the problem and why he didn't discover it earlier? Did he come to testify? SLIFER: No STEINBERG: Any reason that he was not brought in? I don't think that. the time of the discoverance of the deviation from the approved plan was at issue. It was the fact that the building had been built differently than originally approved and that that was the issue. At no -time was it brought up as a question at what point was it discovered so that the Design Review Board STEINBERG: It would have certainly made a lot of difference I would think if • it would have been discovered the first inspection instead of the last one, because it would have made a tremendous difference on the way it could have been adjusted so that, I just feel a little bit hurt that the Town staff, the Building Inspector did not find the problem earlier. I'm not a builder and I don't know if it was possible that he could have? But, so maybe part of the problem is part of our problem. Ah, Was there, or who was the Architect on the project and did he do architecture inspections. MINUTES Vail Town Council Meeting September 15, 1981 Page 21 To my knowledge he did not. Duane Piper was the Architect and in speaking with him he was not retained by the Owner to do any inspections prior or subsequent to Design Review Board approval. You might want to add SLIFER: Is that correct Larry. You might want to ask the Owner. LARRY: That is correct. Mr. Johnston retain Duane to prepare the.plans though we did not make it part of the presentation . No, I can't swear to it as a fact. As I understand it, Mr. Johnston asked Mr. Piper if it was was standard or usual to have and Duane said about 701 of the cases it is not done that way. SLIFER: Well the answer is he did not make onsite inspections. LARRY: Yes, that is correct. SLIFER: OK, I think that answers the question. STEINBERG: So that Mr. Pipe is not liable.at any situation therefore, it was never quite clear to me why the fill was brought in. It was not brought out at least in the transcript any explanation was -the builder brought in to testify as to why he brought in the fill or was it ordered by the Mr. Johnston The answer to that is really very simple. We don't know because Dan Golardo doesn't know, because when it was done he said he wasn't there and the person who did it he fired, and vie were left in a vacuum. With respect to what was actually done, STEINBERG: Was he brought in to testify to that? He did testify at his own hearing when he, when he had the license taken away from Kim, while they said Mr. Golardo how could this happen? and He said, You know, I don't know. And that is our only source of information Sir, and that's why it's very difficult for us to to without. STEINBERG: The two incriminating things that seem to be that somebody did this in a premeditated way, is the fact the building is built on two different levels and the two levels were not elevated at the same time. So somebody had to be aware of the fact cause they wouldn't have matched otherwise. So someone fiagrantly made aneffort to do this on the building level and on the retaining walls that were put in before the fill was put in, so it was obviously premeditated on someone's part, and if the architectural drawings did not call for this, it seems inconceivable that it would happen. It does in fact, seem inconceivable that it would happen as, as.I hope you will accept, Johnston did not know this and whether a decision was made in the field because of some site problem, large rock has been kicked around as maybe the problem that they were in. We simply don't know. SLIFER: Does that answer your question? STEINBERG: That answer's my question. It was not answered basically. It's a tough decision to make Uh, I suspect Mr. Johnston has got a lot of liabilities, it seems to me the Court of Law would have eventually bring him back, some of his losses by suing the builder, or suing the Architect, or whoever is responsible for his problems, I'm torn between.solving the problem immediately for the community and getting the house built and getting the mess cleared up, but the other problem is are we breaking our ordinances • and setting us up for this to happen over and over again. I guess being practical, if I lived up there I would rather have it finished & forgotten the best you can. So I very reluctantly would vote I think to accept the compromise. MINUTES Vail Town Council Meeting September 15, 1981 Page 22 0 FER: OK, Bill Wilto: WILTO: I appears to me that as it has been said before, three of the four problem areas seem to be adequately solved,. and.Perhaps the one remaining problem, the height, could be resolved through landscaping and I'm sorry there hasn't been more cooperation between the adjoining properties and Mr. Johnston. Any way we vote is a situation for us. Uh, I feel inclined but have not made up my mind to vote in favor of upholding the Design Review Boards decision, but if that happens, I think this would probably end up in the courts and might end up there for years and that would certainly not benefit the neighborhood. I wish there was some way to send it back to the Design Review Board and if that were the case I would ask that it be done so eliminating al.l those problem areas that have been discussed with the exception of the height. This is the toughest decision I've had to make in six years. SLIFER: It didn't sound like you made it. WILTO: I didn't. (laughter) FER: My comments will be very brief, because I think everyone else has said what I want to say. I think the three issues of the deck, the materials, and the retaining wall and drainage have been resolved satisfactorily. I think the issue of height is the entire issue in my mind and I think that, that we have to, have to look at all the factors and try to consider whether or not you uphold the DRB decision or ah reverse it and I feel very strongly that this is not a minor violation, it is a major violation and that the ORB decision should be upheld. I think if there are no other comments from council I would entertain a.motion, and I think Mr. Johnston started to make a motion, would you want to make that motion? JOHNSTON: I move that we.reverse the position of the Design Review Board and grant the compromise solution to Mr. Johnston. RUDER: I would second.that motion, but would like to amend it that we add the language as outlined by Mr. Rider to guarantee, I guess via bonding that the project does reach completion as outlined and that any costs that the Town would have during that period would be covered by the property owner. SLIFER: Would you like to amend the motion. INSTON I don't have any real problem with that, but by the same time, our primary premise is that the law is working. I think that is way we are here talking about it. The law is working. SLIFER: So you do not want to amend the motion. JOHNSTON No. I'm not opposed to amending that their watch dog or however it says as far as RUDER: I guess that my, concern is Paul, that I think that the Town is going to have some additional expense because the technical,solution to the technical problem up there is a difficult one and if it isn't watched very closely more than in a normal building process, Uh, we could once again bury some sub -ground problems. And I'd like not to see that happen. JOHNSTON: Well another side of that is, had the Town not approved the slab pour incorrectly we might not be where we are today. Under the building code regulation, if you look at, process does not approve the slab. It approves footings and then once the footings where put in and obviously I can't see below the earth up there, once the footings are put • in we don't always inspect slabs. MINUTES Vail Town Council Meeting September 15, 1981 Page 23 ODER: And if the thing was improperly filled after the footing process and the stemwall process I don't think that the Town necessarily would have had to send an inspector to approve. JOHNSTON: Let me just ask. SLIFER: After we have the motion we will have discussion. if you could just wait until them. JOHNSTON: Let me just ask either of the Peter's if they feel they need additional they would additional assistance in monitoring the revision & completion of the project. In expense or additional assistance. PETER: I don't think from the planning standpoint or some building SLIFER: Building inspection. PETER: Inspections that need to be done on the building may require SLIFER: Dick Rider might be able to address that. ER: I think we are going into a period where most of the major construction, major inspections are going to start to slow down and we will have the time for inspection, building inspection in order to do problem inspections and provide onsite inspections JOHNSTON: But do you feel that would be an inordinate cost to this project, to your inspection department. RIDER: I think we are going to watch it more than normal, just because of the of some of the situation that have been shown on the site so we will probably make more inspections on the site then that is correct. We will be doing more than probably the normal inspections. WILTO: I would suggest that if it comes to the need to call in an additional engineer on behalf of the Town or additional landscape architectural services on behalf of the Town to review it, then that, those types of cost be incorporated in the JOHNSTON: It did occur to me that it might be to the benefit of the builder or the future owner if they were to retain some engineer to satisfy the Town that they were in fact doing what they said they were doing. That • might be in their best interests. SLIFER: After, could you restate the motion. JOHNSTON: I move that the Council repeal the decision by the Design Review Board and that the compromise, compromise submitted by the developer be accepted, that any unusual or additional costs to the Town to supervise the implementation of that solution be borne by the developer. SLIFER: Do I hear a second. RUDER: Yes I would second that SLIFER: Motion by Paul Johnston and second by Bob Ruder. Any discussion on the Motion. MINUTES Vail Town Council Meetina September 1.5, 1981 Page 24 &D I have just one comment to make as it relates to the building codes and the responsibility of the building official. Uniform building code which we operate under specifically exempts the building official from the responsibility in that, If he grants the permit through plan review he is not saying that those plans are totally in conformance with the code and is making no warranty of that. In addition, by giving approval of various stages, in the process of the building, the building official is not warranting that that building is being built according to code or that it is being built according to plans and that's written very clearly in the first chapters of the building code. SLIFER: What is he warranting? TODD He doesn't warranty anything. He is an employee of the Town that is essentially being a watchdog to keep an eye.on construction projects, and I think we should keep in mind that at the same time this project is going on we've had some, how many million dollars of construction underway this summer Hundred Million TODD How Much? Hundred Million dollars of construction going on at the same time with the building department staff of how many? Two full time inspectors: TODD Two full time inspectors. SLIFER: If we warrants nothing what is the value of the inspection? Well for this very reason, to catch the obvious violations. RUDER: The book also defines what is allowable to build and what is not allowable to build and he does as he makes each inspection, inspect that, that particular process is technical correct as outlined by the Uniform Building Code, but he doesn't tell you whether or not the:slab is at grade A or grade B, he tells you how much steel might be in the footings or whether or not the stemwalls are properly designed or whether or not the framing is properly nailed off; or those types of things, but he does not address you know, specific little items such as,they're not specific little.tonight, but specific items such as perhaps grade or siding, or those kind of things. Those come in other process in the Town and that is outlined under the Uniform Building Code as Ron Said in the first chapter. And that they're not warranted to be according to plans & specs,. It is not addressed the plans & specs of the house. RUDER: He addresses the plans and specs as they relate to the Uniform Building Code And the Building Inspector. you ought to understand is a technician whose job it is to insure that the building code, the technical, very specific requirements of the building code are complied with, zoning code, height, those are really secondary and it would be probably the rare building official who would catch those kinds of errors. That's why we have a zoning administrator, but I think as indicated we have only one person to do, you know, all the enforcing, two people to do all the enforcement of zoning, so building official is really not there to catch DRB kinds of considerations. We urge him to do that, but that is the secondary process. (6FER: Any other questions from the Council? Bill. WILTO: Well not on the motion, but just from staff or anyone else who would care to answer. At the southern elevation of the house, or the variation heights seem to be the greatest, what percentage change does that represent from what was presented? I think, well maybe it's not the southern, the most, yes, your right area, eastern elevation. MINUTES Vail Town Council Meeting September 15, 1981 Page 25 This ridge would be 4.7 feet lower than if the house has been built according to the original WILTO: And what is the height of the house at that point? I would have It's only 2-1/2 on the east This ridge is 4.7 WILTO Yes. This ridge here would be 2.5 WILTO: No the other one. The one you first pointed to. 4.7 SLIFER: You want the distance from the ground? WILTO: The ground to the peak? ER: I think that is the same distance Bill in both deals. The difference is the ground change. From the peak of the roof to the ground is the same distance. WILTO: I'm just trying to get an idea what the percentage change was, if it had been It's about 2-1/2 stories Bill, you could estimate maybe it's 25 feet 4.7 out of 25 feet roughly. The building itself, from here to here remains the same as what was originally presented. WILTO: I understand that, I'm just trying to get an idea, to an adjacent property owner what that difference actually represents in a percentage manner. It's about 20%. SLIFER: Any other comments on.the motion? Any comments from the floor. Mr. Boyer? BOYER: On behalf of Mr. & Mrs. Boyer I would only add that should the reversal be appealed, be approved by the Town Council, then perhaps we should consider the possibility of raising lot 5-4.5 feet in elevation before we begin to • construct on lot #5. SLIFER: Any other comments? Ok, if not, I call the motion. The motion is to, reverse the, if you vote yes, you would vote to reverse the decision of the Design Review Board, if you vote no you uphold the decision that the Design Review Board as the motion states with its conditions. As a new twist tonight we will do it alphabetically. Mr. Benedict. BENEDICT: I vote to uphold the decision of the Town Staff. SLIFER: So you vote No.? BENEDICT: That's correct. SLIFER: You vote No. The motion. Mr. Johnston? JOHNSTON: Yes. SLIFER: Ruder? IRE R: Yes. SLIFER: Steinberg: STENTBERG: Yes. SLIFER: Todd? TODD: No. MINUTES Vail Town Council Meeting September 15, 1981 Page 26 *FER: Wilto? WILTO: No. SLIFER: Slifer, No. So the motion is denied four votes to three. So the Design Review Board decision is upheld. Is that right? Do we have to make a motion to uphold SLIFER: I think that to make the record. clear, Mr. Rider, do we need a motion to uphold. RIDER: Since it was to reverse and you did not reverse it, it's upheld. SLIFER: We do not. So we don't. The next item on the agenda, was a Public Hearing relating to the Department tTransportation Grant. Rich Caplan stated that in accordance with the A Grant a public hearing be held to consider public comments regarding proposed Section 3 Grant to expand the bus storage area by approximately 9000 square feet.to enclose 18 new buses. After some discussion the public hearing was closed. The next item on the agenda was the approval of an agreement between Red Sandstone School with the Eagle County School District. Rich Caplan stated that this agreement is to extend our use of the Red Sandstone gym in exchange for snowplowing of the. school lot for a period of 10 years.After some dis- cussion Ron Todd made a motion to approve the agreement and Bob Ruder seconded it. All voted in favor and the motion passed unanimously. The next item on the agenda was the approval of the Fire District Dissolution Agreement. Rich Caplan stated that the Fire District had agreed on this dissolution agreement for the betterment of the Vail community. Mr. Caplan stated that this approval is subject to the approval of the voters. Bob Ruder, speaking as a Fire Board member,stated that he felt the Fire District has come a long way in taking a look at what is best for the community, this will save them some money, combining two operations into one, and will give the Fire Department a chance to grow. Mr. Rider stated that there was no ed to make a motion to approve the agreement, but it should be agreed that Mayor would be authorized to sign for the Town of Vail and that it should be attested to by the Town Clerk. All members were in agreement to this statement. A motion was made by Ron Todd and seconded by Bob Ruder to approve the statement made by Larry Rider. All voted in favor and the motion carried unanimously. Paul Johnston asked as a miscellaneous item that the Public Works Director be asked to repair the back door to the Council Chambers to stop the squeaking each time it was opened. Under the Town Manager Report, Rich Caplan stated that the July sales tax figures had been received for the Town of Vail, which includes West Vail, which was $169,000.00 which was up 26% from last year. Rich Caplan also brought to the attention of the Town Council that the Gilman mine will be closed and the Town should consider buying the property for employee housing. Rod Slifer stated that the County Housing Authority and VA had looked into this earlier and that the Town should check into it further. der Town Manager Report, Larry Rider stated that he had received a ruling om Judge Hart on the West Vail Annexation suit and that he had denied the Motion to Dismiss and ordered us to file an Answer to the issue. The next hearing will be in late October.. MINUTES Vail Town Council Meeting Tuesday, September 15, 1981 7:30 p.m. Page 27 Diane Donovan complimented the Council on their handling of the Johnston duplex appeal. Mayor Slifer stated that he felt the Council as a whole had done an excellent job, regardless of how they voted, and it was a very difficult decision to make. As there was no further business, the meeting was adjourned at 10:30 p.m. Rodney E. lifer, yar ATTEST: Town lerk 9 E 9