Inside the build up to the museum

by Brent Gardner-Smith, Aspen Journalism

How the Aspen Art Museum got approved by the city

As you stand in front of the new Aspen Art Museum and debate its design, it might be helpful to know that the 47-foot-tall cube is there because city officials didn’t like the design of a different building proposed as five feet lower in 2006.

The new museum opened to the public on Saturday amid plenty of controversy in the community about its context, its size and how it got city approval. Which seems only right, given how design issues have dominated discussions over the last eight years on the subject of what should be built there.

Relying on the city’s land use code design standards, council members struggled with, and ultimately denied, the original proposal for a mixed-use building, which had its own critics who felt it was too tall and didn’t fit in with the character of the neighborhood.

As a result, developer Nikos Hecht sued the city of Aspen in 2010 over council’s denial of the 47,000-square-foot commercial and residential building proposal on the site of the former Wienerstube restaurant. 

They argued that Aspen City Council members abused their discretion when they relied on the Aspen Area Community Plan (AACP) to deny the proposal. One of their legal arguments was that the plan is only an advisory document and cannot be used as a basis to deny a development application.

The city prevailed at the district court level, but Hecht appealed and the lawsuit went to the Colorado Court of Appeals. Rather than risk the overturning of the lower court’s decision, elected officials at the time agreed to settle the suit by approving the Aspen Art Museum building, which includes 33,000 square feet of built space.

Today people are talking about the $46 million museum’s exterior wooden basket-weave look, its big views of Aspen Mountain from the “public penthouse” on the third floor and how it fits in with the downtown core.

Massing and design

On April 24, 2006, an entity called 633 Spring II, LLC filed an application with the city to develop a mixed-use commercial building on the Wienerstube property, as well as on the dirt parking lot next door.

The proposed building, as originally submitted, was 42 feet tall at its highest point and included 47,000 square feet of space for retail stores and offices, six free-market condos, 12 employee housing units and 46 underground parking spaces.

The proposal complied with the city’s “infill” land use code, which had resulted in bigger projects such as the Limelight Hotel and the Dancing Bear fractional condo development on Monarch Street.

The day after the Wienerstube application came in, at perhaps the height of the pre-recession real estate frenzy, the Aspen City Council adopted an emergency six-month moratorium on any new applications for multi-use buildings in the downtown commercial zone.

But since it got in before the moratorium, the proposal would be reviewed under the “infill” land use code.

By Oct. 17, 2006, the development plan to replace the Wienerstube building was under review by the city’s planning and zoning commission.

Steve Skadron, then a planning and zoning commissioner, and now the mayor of Aspen, expressed a concern about the building’s dramatic transition from a modern look on the corner to a more traditional look across the balance of the block.

“Will this be one of those buildings where people say, ‘What were they thinking?’” Skadron asked.

The answer in hindsight? Yes.

Exceptional enough?

The developers of the Wienerstube building set themselves up for a review of their building’s design when they asked the city to give them the right to build six residential units in 2006.

However, the city has a grown management system that sets aside a certain allotment of free-market units for each calendar year. When the developers applied in 2006, there was only one unit left in that year’s allotment. So the developers had to ask to “borrow” five units from the 2007 allotment.

The city’s rules allow for that, but only if a building or project is deemed “exceptional” against a set of criteria, including design and architecture.

However, city planners had recommended that the developers needed to “look at the massing and design,” according to the Oct. 17 minutes of the P&Z meeting, which was the first indication that the Wienerstube building was going to be reviewed on the merits of its design.

By Feb. 12, 2007, the Wienerstube redevelopment proposal won the approval of P&Z and had made it in front of city council, or at least a truncated version of it.

Jasmine Tygre, a 26-year P&Z member, had been sworn-in as a city council member in January after being appointed to fill a vacancy. But because she had voted on the Wienerstube project on P&Z, she had to recuse herself from reviewing the project while on council.

Then former district court judge J.E. Divilbiss, who was serving on Aspen City Council, recused himself from reviewing the proposal because he was a daily regular at the Wienerstube’s community table and he wanted “to avoid any suggestions of impropriety,” according to earlier reports in the Aspen Daily News.

That left three council members — Torre, Helen Klanderud and Jack Johnson — to review the proposal. But under city rules, it would still require a three-vote majority to approve something, so the decision had to be unanimous.

And on Feb. 12, 2007, the Wienerstube building was on the verge of a key approval at the city council level.

City planning staff and P&Z had both recommended granting the developer the requested multi-year allotments requested.

Klanderud and Johnson said they were ready to approve the project. Torre, however, was not, primarily based on how the building looked. 

“This is just my reading of this, but this reminds me of LoDo in Denver,” he said.

The meeting was continued to Feb. 26, 2007 so the developers could try to meet his design concerns. But the effort was to no avail.

“It still has a boxy and massive presence on the street,” Torre said. “I’m still not buying that this is as exceptional.”

Klanderud moved anyway to approve the allotments. Johnson seconded. Torre voted no.
It looked liked the Wienerstube project had been killed.

But city council that night continued the meeting until the next day. Klanderud and Johnson then voted to reconsider Monday night’s vote and keep the project, exceptional or not, alive.

Torre again voted no, but because the vote was on a motion to reconsider, only two of three votes were needed to keep the project alive.

Meanwhile, Aspen Art Museum CEO and director Heidi Zuckerman Jacobson was out looking for a new home for the cultural facility.

On March 22, 2007, city planners held a planning charrette for the Galena Plaza area, which includes the library and the former youth center building. The big idea was building a 25,000-square-foot Aspen Art Museum in the middle of a revitalized civic center and plaza.

Same as the old boss

By Nov. 27, 2007, the Wienerstube project had gone back before P&Z and duly received its five units from that year’s allotment, so it no longer needed to be deemed an “exceptional” building.

Now, after having been found compliant with the land use code, it was before council again seeking an approval to subdivide the proposed building’s internal space — which, in the developer’s mind, should have been a relatively procedural review.

But the make-up of city council had changed by then. Torre and Klanderud were both off the board. Mick Ireland, Dwayne Romero and Skadron had been elected and they joined incumbents Johnson and DiVilbiss.

DiVilbiss was still self-recused from the Wienerstube project. And like Tygre, Skadron had to recuse himself because of his time on P&Z. So, the developers were again seeking three affirmative votes from three people: Ireland, Johnson and Romero.

At a public hearing on Dec. 3, 2007, some neighbors complained that the proposed building was too tall, even though it was consistent with the applicable land-use code.

“You can’t do a project and make it invisible,” Stan Clauson, an Aspen land use planner representing the project, told city council.

On Feb. 11, 2008, the developers returned with a slightly modified design. But the height was still a sticking point.

By March 3, 2008, the developers had lowered the height for most of the building to 38 feet tall. Only a small portion reached 42 feet.

It was not low enough.
According to the meeting minutes, mayor Ireland said the building is not consistent with the AACP because it is out of context with its surroundings.

Johnson said “the proposed subdivision will adversely affect future land uses” because it likely would spur owners of other buildings to also propose taller buildings.

“This places too much pressure on existing structures,” he said.

Ireland, Johnson and Romero all voted no on the project. The next day, the Daily News headline was “Stube stuffed.”

On March 31, 2008, Hecht and 633 Spring II, LLC filed a “rule 106” lawsuit in district court seeking to overturn city council’s March 3 denial.

The suit named Ireland, Johnson, DeVilbiss, Skadron and Romero “in their official capacities only.” The developers sought a declaration “that the 2000 AACP is invalid as a regulatory document that restricts the use of private property.” And they claimed the city had abused its discretion in reviewing the project.

Art and about

On March 12, 2008, city planning staff showed the public a revised plan for Galena Plaza then called the ZG Master Plan. It got a positive review and the art museum building was still at the center of the plan at the north end of Galena Street.

But by Nov. 18, 2008, the art museum wanted out of the cumbersome ZG Master Plan process and announced it would move forward on its own.

On March 2, 2009, the city agreed to ask Aspen voters to approve the sale of the city-owned youth center building to the museum at a yet-to-be-determined price.


 Jordan Curet/Aspen Daily News
Locals and visitors alike take in the views of Ajax from the roof of the Aspen Art Museum during the opening on Saturday evening. According to Heidi Zuckerman Jacobson, Aspen Art Museum CEO and director, it is the only publicly accessible rooftop deck in the city. 

The art museum unveiled a Shigeru Ban design for the Galena Plaza location. It included six galleries in 30,000 square feet, with wood lattice central to the design. Four floors would step down toward Rio Grande Park.

Aspen voters were either not impressed, or didn’t trust the city and the art museum to come to equitable terms in a sale.

On May 5, 2009, they rejected a ballot question by a margin of roughly 62 percent, or 1,471 votes, to 38 percent, or 902 votes.

City prevails

On June 3, 2009, district court judge Gail Nichols ruled in favor of the city in the lawsuit over the proposed Wienerstube building. She found that the city had properly exercised its authority to deny a request for subdivision approval because “it would adversely affect the future development of surrounding areas.”

The judge also found that the AACP was a regulatory document, but only when referenced and adopted by ordinance into sections of the land use code, as it had been by the city in the section on creating subdivisions.

It was a victory for the city. On July 1, 2009, the developers filed a notice to appeal the judge’s ruling.

Meanwhile, the art museum had lowered its head after its defeat at the polls in May.

“There’s a huge perception versus reality gap surrounding the museum,” Zuckerman Jacobson said in September of 2009. “One of the things we are focusing on is trying to close that gap.”

Another focus had been finding another downtown property for a new Aspen Art Museum building.

“I basically offered up my lawsuit as a door for them to slip under,” Nikos Hecht said on Friday.

An unusual deal

A year later, on July 7, 2010, city and museum officials held a press conference to announce a settlement in the Wienerstube lawsuit.

“I know this is a bit unusual,” Ireland said at the time.

The deal allowed for the art museum and the neighboring “Muse” building, also owned by Hecht, to go up after a swiftly expedited review instead of the proposed Wienerstube redevelopment. The Muse building is 38.5 feet high and includes 15,000 square feet of commercial and residential space.

The proposal, and the swift approval plan, had been discussed and negotiated for months in closed-door sessions with council members, Hecht and Zuckerman Jacobson.

Meanwhile, oral arguments before the appellate court were coming up.

“I think there is an opportunity here,” Ireland said at the press conference.

Zuckerman Jacobson “touted the public accessibility of the museum’s rooftop space, which would be the only publicly accessible rooftop deck in the city,” the Daily News reported.

“You can bring your own bologna sandwich,” she said.

Hecht viewed the proposal as an opportunity to develop a new downtown cultural center.

“Someone once told me that no one wins in litigation,” he said. 

Skadron said at the time, “nothing will get done without the appropriate land use process. All the appropriate review mechanisms will be in place.”

But Chris Bendon, the city’s community development director, said the project would not be reviewed by P&Z or be subject to the same review process as other projects because it was part of a legal settlement.

On July 12, 2010, the council approved the settlement deal and the museum proposal on first reading. The new plan included 40,000 square feet of development across the art museum and Muse buildings, as compared to the 47,000 square feet in the Wienerstube development denied in 2008.

A public hearing was set for Aug. 2. It would be the only public hearing on the art museum proposal that included public comment.

Between the July 7, 2010 press conference and the Aug. 2 public hearing, “the museum and the city held three sparsely attended informational lunchtime sessions about the project at City Hall,” the Daily News reported.

A July 30, 2010 memo from city planning staff on the proposal was enthusiastic.

“The proposed museum is consistent with the character of existing land uses in the area,” wrote Bendon and Ben Gagnon, the city’s special project planner at the time.

“For a portion of the Aspen Art Museum to be taller than most surrounding buildings … reinforces the civic and public nature of the structure,” the report said. “At the same time, the semi-transparent wooden honeycomb-like screen around the museum building will substantially offset the perception of height and mass.”

Ban, the Japanese architect who designed the museum, was at the Aug. 2, 2010 meeting and presented several computer images of his design, including one that depicted the dramatic view from the third floor.

The ordinance approving the project and the conditional settlement agreement are silent on the terms of use of the third-floor deck, but the staff memo noted that the “public roofscape sculpture garden would be the only rooftop in downtown Aspen that is free and accessible to the public.”

And while the rooftop deck has generous views, the patio and café will only be open when the art museum is open, which is Tuesday through Sunday, 10 a.m. to 8 p.m. And the museum has the right to close the deck to the public for private functions, apparently as often as it would like.

There were other streamlined aspects of the council’s review. The council only saw conceptual plans for the building and site plan, and drawings were not required for up to a year.

The museum was declared an “essential public facility” and all employee housing requirements were waived. The neighboring Muse building, however, was still required to provide employee housing for 10 people, which it intended to do at the city’s Burlingame Ranch development across from Buttermilk.

A subsequent agreement in July 2011 between Hecht and the Aspen Art Museum required the museum to pick up the housing fee for six of those employees, to the tune of about $800,000.

The majority of the usual development fees were waived, and no on-site parking was required for the museum. In addition, eight parking spaces on the corner of Spring and Hyman were eliminated in order to create a larger public space on the sidewalk in front of the museum.

The museum looked good to the city. And the lawsuit still looked threatening.

“The pending litigation directly challenges the city’s ability to use the AACP in the way we’ve been accustomed to,” Bendon said.

The council approved the settlement deal and the conceptual building proposals by a 4-1 vote, with Ireland, Torre, Derek Johnson and Romero voting yes, and Skadron voting no.

“I’m uncomfortable at this time believing that the best decision comes under the threat of losing an appeal,” Skadron said at the Aug. 2, 2010 meeting.

Ireland said at the time that he would rather come to a settlement than have the appeals court decide the matter.

By Aug. 19, 2010, the city had turned back a citizen’s petition to overturn the approval of the settlement and put it to a vote. The city attorney had advised that city council’s vote on the subdivision of the Wienerstube building was administrative in nature and not legislative, therefore, it not subject to referral to voters.

Torre said at the time he believed an art museum was a better solution for the Wienerstube site than a mixed-use building.

“Is the height enough to negate the benefits of having a museum there?” Torre said. “Life is full of trade-offs. This is about weighing our individual and community values.”

On Aug. 15, 2011, the Aspen Art Museum bought the lot on the corner of Spring and Hyman from Hecht for $7 million.

Hecht said Friday the property was worth $10 to $12 million, but he gave the art museum a good deal — while also realizing it would be good for his other downtown projects.

“I thought walking to the museum was great for Aspen, great for all Aspenites, and great for all of my real estate,” he said.

He has interest in five buildings on Hyman Avenue, as well as two on Cooper Avenue, among others.

“There was altruism and there was some business,” Hecht said of the sale. “Money was a factor but I gave up money too.”

By then, the museum had raised over $46 million from private donors for the new building.

A lingering question

If the city won the first round, why didn’t it risk losing the appeal?

If it lost, the proposed Wienerstube redevelopment would have only been 42 feet high and come with employee housing for 27 people in a downtown building.

But a loss also could have weakened the city’s reliance on the Aspen Area Community Plan.

Hecht said Friday he was confident he would have won on appeal, saying district court judges often support municipal decisions.

“Losing the first round is standard,” he said. “And we, by almost every wise man’s opinion, were going to win that next round.”

Hecht said Ireland was not motivated to settle out of fear.

“He is not one to cave out of fear,” Hecht said. “Mick wanted this deal. Mick wanted this museum. He didn’t care how high it was. Mick loves the idea of a major art museum in town. And so do I.”

He also said he and Ireland barely spoke during the negotiations.

“Nikos is speculating that I didn’t care about the height,” Ireland said Friday, noting that he wouldn’t have voted to go above the applicable code.

That would be the 2006 code, which has a 42-foot height limit, but allows five feet for solar panels, mechanical equipment and “similar features.”

“In this case,” the July 30, 2010 city staff planning memo stated, “the bifurcated triangular roof on the top floor of the proposed museum is a combination of glass and photovoltaic cells, and is therefore compliant with the code.” And it also provided for a 47-foot-tall basket-cube of a building.

Asked if he was happy with the museum and how things turned out, Ireland said “I’m not happy about the angst that it has caused, but whether it is a good idea or not, time will tell.

“And like anything else in Aspen, there is good and bad about it. People who don’t like the architectural style I think will like the patio space.”

Editor’s note: Information for this article was compiled from staff writer Curtis Wackerle’s coverage of the issue since 2007. Aspen Journalism is a local nonprofit investigative news organization. More at www.aspenjournalism.org.