Town turns down request to relook at horizontal zoning

Zero block of Elk in question

With its first challenge, the Crested Butte Town Council made it clear it did not intend to change the horizontal zoning ordinance—despite objections from community members that businesses located on the zero block of Elk Avenue should be exempt, or the ordinance’s language should be changed to better address the area.

The discussion ensued after the Town Council was informed that Crested Butte resident Robb Fessenden had violated the ordinance by renting office space to the Office for Resource Efficiency (ORE), a nonprofit focused on increasing energy efficiency in public and private dwellings. Town manager Susan Parker told the council she called Fessenden informing him of the violation and he requested to meet with the council.
Fessenden said during the regular meeting on Monday, February 4 that he didn’t realize the ordinance applied to the zero block of Elk because the town treats the block differently from the rest of Elk in terms of maintenance, and very few retail businesses have been successful there.
"I feel like we are pretty removed from normal business and foot traffic on Elk," said Fessenden, whose Elk Avenue property is on the north side of the street in the zero block. "I just assumed we weren’t part of the deal."
Fessenden said he wasn’t against the ordinance and understood its purpose, to retain a vibrant shopping experience for tourists.
Fessenden told the council he didn’t believe a retail store could be successful in the rented space, and if the ordinance was not changed, he could be forced to turn his property back into residential space.
"The bottom line is, we don’t get a lot of foot traffic up there and if the ordinance is left as it’s written, I am left with very few potential renters," Fessenden said. "I guarantee a retail shop would fail."
In an email sent to the council earlier that day, Fessenden asked the council to consider two courses of action: either amend the ordinance exempting the zero block of Elk Avenue, or change the allowed uses for offices in the B3 zone.
Prior to the approval of the ordinance, Fessenden said, the space was used for wellness programs such as yoga and Pilates and as office space for his and his wife’s personal businesses. The space was rented to ORE on December 15.
Both Parker and town attorney John Belkin reminded the council the decision could be appealed. "This is just the first of potential other situations challenging the ordinance," Belkin said.
The council first discussed whether or not the decision was the council’s or should be referred to the Board of Zoning and Architecture Review (BOZAR).
Town Council member Skip Berkshire said, "Horizontal zoning was a political decision," and the council needed to make the decision. Building and zoning director Bob Gillie agreed with Berkshire and recommended the council not send it to BOZAR.
"This very much is the council’s animal—to throw it to BOZAR is a dodge, quite frankly," Gillie said. Gillie also advised the council to not change the ordinance.
During the discussion, council members discussed if nonprofits should be included in the definition of office space use.
Council member Billy Rankin advised the council to take time to review the ordinance and reconsider provisions addressing nonprofits. "Maybe we need to amend the ordinance and we need to support our nonprofits," Rankin said.
Council member Dan Escalante also said he thought the council should consider amending the ordinance based on Fessenden’s argument that the zero block of Elk Avenue is treated differently. He was uncomfortable with keeping the ordinance as is without being able to offer the block some assurances the Town would dedicate additional funds for improvement for the block.
"It looks different in the winter and it looks different in the summer—it doesn’t get the TLC the rest of the street does," Escalante said.
Berkshire said the issue had to do more with zoning and allowing office space within the B3 zone. "Maybe we could be a little more flexible," Berkshire said. "I also don’t think opening the B3 zone up to nonprofit office space is going to encourage a plethora of nonprofits in the B3 zone."
Council member Kimberly Metsch was not in favor of amending the ordinance based on the allowable uses already permitted in the measure. "Where he is located, it can be used for anything but office space," Metsch clarified. "I am little wary making exceptions on a one-by-one basis—it could open a can of worms."
Council members Leah Williams and Reed Betz, along with mayor Alan Bernholtz, opposed changing the ordinance. Williams said, "I agree with Kimberly: Where does it end if we make changes to it?"
Christi Matthews, executive director of the Crested Butte/Mt. Crested Butte Chamber of Commerce, said exempting nonprofits could potentially upset businesses. "There was a reason you included them in the first place, and you should reconsider it before you change the ordinance," Matthews said.
A voice vote at the end of meeting found four members not in favor of taking action. Bernholtz instructed staff to enforce the ordinance and told Fessenden ORE would have to vacate the premises.
The horizontal zoning ordinance was passed in July last year after months of work sessions and public hearings. The ordinance resurfaced after concerns about a proliferation of non-sales-tax-generating businesses on Elk Avenue and flat sale tax revenues.
The council first passed horizontal zoning in August 2006, but it was appealed after a group of citizens protested the decision with a petition.
The ordinance allows for non-conforming uses of a building to continue if a business or property changes hands. In addition, personal service establishments are allowed throughout B1 and B3 zones on Elk Avenue. Office uses for real estate, law and financial institutions are not allowed.