Aspen P&Z debates nonconformity code redlines: hardship test, basement expansions and tying mitigation bonuses to community benefit

At a July 15 work session the Aspen Planning & Zoning Commission reviewed redlines to the city’s nonconformity and special‑review code and engaged in extended debate over three core issues: how to define "community benefit" when mitigation floor‑area exemptions are awarded, whether to retain an "unnecessary hardship" requirement, and how to treat large subgrade (basement) expansions that materially increase gross floor area.

Haley Hart, long‑range planner with Community Development, outlined the commission’s three requested research topics and the next steps: "the next step would be to send out the red lines once P and Z feels like they're in a good place" so stakeholders can comment before the city proceeds to ordinance readings. Staff presented six proposed review standards for replacement of nonconforming structures and said the sixth criterion would apply only when a project seeks a mitigation floor‑area bonus (a gross increase to floor area).

Tilly Pines (staff) recommended using the Aspen Area Community Plan (AACP) "as a guiding tool, to define community benefit" for projects that seek the mitigation bonus. Pines said other municipalities typically tailor community‑benefit tests to their comprehensive or neighborhood plans; Aspen’s AACP, staff argued, already contains relevant policy goals and could provide a consistent review standard.

Several commissioners raised concerns about relying on the AACP because parts of the plan are dated (last approved in 2012) and because policy language can be philosophical rather than black‑and‑white. "Parts of it are still pertinent and relevant, but there are lots of it that's very dated," Commissioner Mary Ann said. Commissioners pressed staff on whether tying floor‑area bonuses to "community benefits" would create vague or discretionary outcomes and whether that discretion would be manageable in hearings.

Commission discussion also focused on the code’s treatment of "reasonable use" and "unnecessary hardship." Some commissioners argued an explicit hardship requirement would be legally fraught and would result in frequent denials; others said a hardship test has been a longstanding part of nonconformity review and helps protect property owners. Staff and commissioners converged on an approach to capture hardship‑related concerns within revised review criteria (for example, requiring that any special characteristics be property‑specific and not self‑created) rather than reinserting a standalone "unnecessary hardship" definition.

A recurring practical issue was large subgrade basements: staff and commissioners cited past cases in which gross floor area doubled because of basement construction, and several said mitigation bonuses that allow similar expansions should be tied to demonstrable community benefits. Commissioners debated whether to require benefits that are "proportional" to added floor area (some objected that proportionality is too vague) or to use the AACP policy language and retain discretion.

By the session’s end staff said they would clean up the redlines, circulate them to the development community for written comment and return revised language for the commission’s recommendation to City Council. Commissioners signaled general support for the redline structure but asked staff to revise the hardship language, clarify terms such as "reduces the property's nonconformities," and tighten how community benefits are documented when mitigation floor‑area exemptions are sought.