ASPEN – As you stand in front of the new Aspen Art Museum and debate its design with your fellow citizens, it might be helpful to know that the 47-foot-tall cube is there because some members of the Aspen city council didn’t like the design of a different building proposed for the site in 2006.
The new museum opened to the public on Saturday, Aug. 9, 2014, with 33,000 square feet of built space, engendering conversation in the community about its size, its context on the edge of downtown Aspen and how it got city approval.
Somehow that all seems appropriate, given how design issues have dominated discussions over the last eight years on the subject of what should be built on the corner of Spring St. and Hyman Ave.
The corner has long been a community gathering spot. A federal post office – Aspen’s second – was built there in the early 1960s. Then the building became home to Sumo’s, an early Japanese restaurant in Aspen, and then home to the Wienerstube with its cast of regulars around a cozy “joiners table.”
But by 2006, the restaurant’s popularity and charm were waning and a new building – completely consistent with the land use code – was proposed for the corner lot and the adjoining vacant dirt parking lot.
But Aspen city council members struggled with the design of the proposed new Wienerstube building, even though the city’s planning and zoning commission had approved it – and which is where the developer thought the city’s design review should have ended.
The council ultimately denied the proposal for the mixed-use building, which critics felt was too big and 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 the council’s denial of the 47,000-square-foot building.
He 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 his 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 agreed to settle the suit by approving the Aspen Art Museum building, as the museum had been looking for a new location downtown.
Today, people are talking about the new museum’s wooden basket-weave look, its big views of Aspen Mountain from the “public penthouse” on the third floor and how the $46 million building fits in with the downtown core and the residential neighborhood across Spring St.
There are layers of irony to found when peering back through the approval process that led to Shigeru Ban’s new art museum building.
For example, differing opinions about design had left the corner of Spring and Hyman in contentious limbo for years, and then suddenly the new Aspen Art Museum building was given perhaps the most cursory design review by city officials of any significant building built in downtown Aspen in the modern era.
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 being approved.
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?
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. 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 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. And city planners had by then blessed the building’s design.
“Staff supports the proposed design, particularly the modern corner, which holds the corner and creates a dialogue with other buildings in Aspen,” the meeting minutes state. Staff also noted the project included housing for 27 employees.
As the evening meeting stretched on toward midnight, 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.
Still not ‘exceptional’
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.”
Johnson moved anyway to approve the allotments, which would have sped the proposed Wienerstube building on its way toward construction.
Klanderud seconded the motion, according to the minutes.
They both voted yes when the question was called.
Torre voted no.
It looked liked the Wienerstube project had been killed, because there were only two votes, and not the three votes required of a truncated city council.
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 Wienerstube 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. 26, 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, especially as staff was recommending approval.
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 – although it still complied with the city’s code.
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 Aspen Area Community Plan is a guiding document that is advisory only and that it cannot be used as a regulatory document to approve or deny a development application.”
And they claimed the city had abused its discretion in reviewing the project.
A 57-page legal brief, detailing the developer’s case against the city, followed later that year.
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 remained in 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.
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.
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 in an interview on Friday, Aug. 8, 2014.
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 was approved with 38.5 feet of height at it’s highest point, which is set back from the sidewalk, and with 15,000 square feet of commercial and residential floor area.
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 unanimously approved on first reading the museum proposal and said it was part of the proposed settlement plan.
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.
There was a regular city council meeting held on July 26, 2010 with a very light agenda. The art museum was not on that agenda although it came up during public comment.
“Bill Wiener requested council hold public hearings on the Wienerstube/Aspen Art Museum building,” the meeting minutes state. “Mayor Ireland said there is a public hearing scheduled for August 2 at 3 p.m.
“Marc Friedberg, Aspen Art Museum board, told council there is a brown bagbg lunch in council chambers at noon tomorrow, July 27 and open houses Thursday, July 29 at noon and 5 p.m. at the art museum,” the minutes state.
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 memo said.
It also 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 digital images of his design, including one that depicted the dramatic view from the third floor.
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 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.
Bird in hand?
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 Aspen Daily News staff writer Curtis Wackerle’s coverage of the Wienerstube and art museum stories since 2007, along with other sources. Below are links to the stories used in this report and their date of publication, in reverse chronicle order.
New art museum project cited for violation of local construction rules
Thursday, July 17, 2014
City to appoint committee to recommend new museum tenant
Wednesday, July 16, 2014
Ready to launch
Sunday, June 8, 2014
Aspen Art Museum architect wins prestigious award
Wednesday, March 26, 2014
Skadron tries not to make it awkward with art museum
Wednesday, February 5, 2014
Construction of art museum and mixed-use building set to begin
Tuesday, May 8, 2012
Locals up to no good at future Aspen Art Museum site
Thursday, November 17, 2011
Art museum breaks ground, land sale closes
Wednesday, August 17, 2011
Museum nearing fundraising goal
Tuesday, June 28, 2011
Wienerstube demolition nearing, construction starts in fall
Saturday, February 5, 2011
#5 Long, strange trip for the Aspen Art Museum ends
Saturday, January 1, 2011
Art museum looks to begin construction efforts soon
Thursday, October 28, 2010
Lunch club debates art museum project
Thursday, October 21, 2010
Window closes on art museum lawsuit
Friday, September 3, 2010
City rejects art museum vote petition
Friday, August 20, 2010
Petition seeks to challenge art museum approval
Friday, August 13, 2010
City ‘holding breath’ on art museum challenge
Wednesday, August 4, 2010
Aspen approves art museum
Tuesday, August 3, 2010
Public hearing today on new downtown Aspen Art Museum
Monday, August 2, 2010
Wienerstube settlement includes protection from ballot box
Thursday, July 29, 2010
Downtown art museum plan clears first reading
Tuesday, July 13, 2010
New art museum proposed for Wienerstube site
Thursday, July 8, 2010
Wienerstube settlement proposal to be announced
Wednesday, July 7, 2010
Aspen Art Museum still weighing options
Monday, September 21, 2009
City won’t go along with art museum appraisal swap
Tuesday, April 14, 2009
Candidates debate affordability, civility
Friday, April 10, 2009
Art museum petition hits the streets
Wednesday, February 18, 2009
Aspen Art Museum pulls out of ZG master plan
Wednesday, November 19, 2008
New art museum catches critics
Friday, September 5, 2008
Big turnout boosts support for ZG plan
Thursday, March 13, 2008
‘Stube developer says city can’t have it both ways
Monday, February 11, 2008
Limelight a flashpoint in development debate
Monday, February 4, 2008
Wienerstube owners opt for affordable commercial space
Tuesday, January 29, 2008
Wienerstube returns to city council tonight
Monday, January 28, 2008
Council stifles ‘Stube development
Tuesday, December 4, 2007
Council reviews revived Wienerstube project
Tuesday, November 27, 2007
Making sure it’s exceptional
Wednesday, February 14, 2007
City Council considers Stage 3, Wienerstube tonight
Sunday, February 11, 2007
Developers, community digest building ban
Wednesday, April 26, 2006
Editor’s note: Aspen Journalism and the Daily News collaborated on this story, and the Daily News published a version of it on Sunday, Aug. 10, 2014.