Aspen Land-Use Code Changes, Explained

The Aspen Skinny \\ March 31, 2017

Aspen Land-Use Code Changes, Explained

When a yearlong moratorium on new development applications in Aspen’s commercial core expired on March 17, a series of far-reaching land-use code changes went into effect. The code tweaks, which consumed many an Aspen City Council meeting for over a year, apply to building heights, free-market residential uses, downtown commercial mix, parking, affordable housing mitigation, and more. Council even tinkered with what kind of stores to allow in Aspen. It’s the most extensive rewrite of Aspen’s land-use codes since the “infill” regulations of the early 2000s loosened them. Here’s your guide to what’s changed.

Free-Market Residential Ban


The Mill Building, completed in 2016, includes two third-floor penthouses that new city regulations now ban.

Ordinance 29 bans new free-market residential units in any area of Aspen where commercial uses are allowed. The new rules broaden the scope of a policy that started down this road in 2012, when City Council prohibited upper-floor, free-market residential units in the central core (CC and C-1 districts). The thought was that developers were constructing or redeveloping buildings in order to sell expensive penthouses, with little attention to the viability of the commercial components. Finding that the trend was also playing out beyond the commercial core, council this year approved extending the free-market residential ban to the city’s outlying commercial areas, which include the Service/Commercial/Industrial (SCI) and Neighborhood Commercial (NC) zones. In the Mixed-Use (MU) zone, which stretches along Main Street, residential development is limited to standalone buildings with no commercial uses and must provide an equal amount of free-market and affordable housing.

The move has prompted one developer so far to sue. North Mill Street Investors, which includes prominent local developers Andy and Nikos Hecht, claims in its suit that it purchased the Mill Street Plaza — whose businesses include a secondhand sporting goods store and a laundromat — in order to redevelop it as a mixed-use complex including free-market residential units. The downzoning was “arbitrary and capricious,” the suit claims, and burdens the property unfairly, as it’s the only one in the SCI zone without free-market residential already.

Height Limits Lowered

Buildings as tall as the 47-foot Aspen Art Museum can no longer be built in Aspen under the new codes, which limit downtown heights across the board to 28 feet.

Buildings as tall as the 47-foot Aspen Art Museum can no longer be built in Aspen under the new codes, which limit downtown heights across the board to 28 feet.

Another part of Ordinance 29 tackles dimensional standards, most notably height. Maximum building heights have been lowered to 28 feet across the board in the central core (CC and C-1 zones) and all surrounding commercial districts except the SCI zone, which is permitted to have buildings up to 35 feet. Previously, a third story up to 40 feet was allowed in the core, but just on the north side of the street and only for short-term lodging (e.g. hotels). Heights in the outlying commercial zones could previously be increased with special review.

Council also approved changes in dimensional standards that reduce massing by reducing cumulative floor area ratios (FAR) of downtown buildings, essentially reverting back to the pre-infill days on that philosophy.

Second-Tier Spaces

The Bidwell Building's below-grade courtyard is an example of second-tier space that must be provided in new development under new city rules.

The Bidwell Building’s below-grade courtyard is an example of second-tier space that must be provided in new development under new city rules.

A brand-new requirement prioritizes “second-tier spaces” in commercial buildings. These are spaces that typically do not command premium rents — they may be subgrade or above the ground floor, or if on the main level accessed by an alleyway or interior courtyard (meaning less visible from the street than a typical storefront). Under the regulations, new commercial development is required to provide at least 20% to 35% of its total leasable area (depending on the zone district) as second-tier space, which theoretically increases the viability for local-serving and mom-and-pop businesses with potentially more affordable rents. Remodels or redevelopments with existing second-tier space must preserve 50% of that in the new development.

Ordinance 33 also increases the amount of pedestrian amenity, or open space, required on a building site.

Affordable Housing

Affordable housing mitigation has increased. Now, new development must provide housing mitigation for 65% of employees generated, up from 60% in the old codes. Council also eliminated a loophole whereby replacement of commercial buildings that pre-dated affordable housing requirements didn’t generate new affordable housing. Ordinance 31 gradually increases the percentage of housing required for scrape-and-replace projects, starting with 15% and building up by a 3% annual increase until 2034, when housing will have to be provided for 65% percentage of employees generated, like all other new development.

Parking and Transport

With Ordinance 32, parking requirements have been tweaked to encourage alternative transportation. The City has increased the cash-in-lieu mitigation fee for new development, and added an option for some development projects to meet parking requirements with mobility improvements.

For even more detail, the City has produced a guide to the full suite of land-use code changes.

Formula Retail

Finally, in a separate but related series of discussions, Aspen City Council voted in early March to establish a new conditional-use review process for “formula retail” in the commercial core and Main Street historic district. What this means is that if a business with at least 11 US locations and meeting certain criteria pertaining to staff uniforms, signs, standardized merchandise and the like, wants to come to Aspen, it’ll trigger a special review process, which would look at criteria such as whether the proposed store brings diversity to the town’s retail mix, for example.

Large national retail brands will have to undergo special review if they want to open up shop in any new buildings in Aspen.

Large national retail brands will have to undergo special review if they want to open up shop in any new buildings in Aspen.

First proposed by an ad-hoc group of local citizens in November 2016, the chain store regulations have spurred fierce debate in and outside of the council chambers, with its proponents — including former mayors Bill Stirling and John Bennett and venture capitalist Jerry Murdock — hosting an all-day symposium on the issue. The purpose of the new rules, they successfully argued to City Council, is to temper the homogenization of downtown from corporate chains that are thought to have more financial wherewithal to sign high-rent leases than smaller and more local-serving businesses.

When council unanimously approved the ordinance on March 6, it was a watered-down version of the initial proposal. The legislation exempts all existing buildings, plus any development in the approval pipeline, so it will only apply to new development yet to be proposed when it goes into effect on April 5.

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