Aspen Board of Realtors lacks standing to challenge ordinance, city argues in pleadings
In its first public response to the Aspen Board of Realtors’ litigation challenging an ordinance that temporarily bans residential development and new license applications for short-term rentals, the city is seeking dismissal of the complaint.
Through city attorneys Jim True and Kate Johnson, a filing made earlier his week said the ordinance “was properly adopted” and the suit’s allegation that it was passed in violation of Colorado open meetings laws “has misrepresented the law and the facts regarding the notice required by this statute and City Charter …”
As well, the city is seeking dismissal of the suit based on its contention that the Board of Realtors lacks standing to challenge the ordinance through litigation.
The Aspen Board of Realtors filed suit Dec. 27 in Pitkin County District Court against the city and the City Council, also identifying each elected member as an individual defendant.
The thrust of the complaint is the city skipped due process by presenting the ordinance as an emergency, which allowed the council to approve the legislation much quicker than usual.
In this instance, the five Aspen officeholders passed the ordinance on Dec. 8 after it was introduced to the public and City Council a day earlier. Had it been an non-emergency ordinance and approved by council on first reading, then the council could not hold a second reading and public hearing until at least seven days after first publication of the ordinance, according to the Aspen Home Rule Charter.
The charter also states: “An emergency ordinance shall require passage at two (2) meetings of the council. However, neither a public hearing nor a first publication” as required for non-emergency ordinances is necessary.
The suit suggested the city’s explanation for an emergency ordinance — that residential development has come at the expense of climate change, and Aspen’s worker-housing options have been reduced by the impact of short-term rentals — was insincere and unjustified, violating both the spirit and letter of Colorado open meeting laws. As well, Garfield & Hecht’s Chris Bryan, the lead attorney in the litigation, argued in filings that the city violated state law and its own charter by not properly noticing the ordinance.
In an motion for preliminary injunction filed Jan. 11, Bryan argued the ordinance “fails to show any reasonably conceivable relationship between a temporary moratorium on free-market residential development and short-term rental permit applications and the City’s interest in advancing affordable housing and mitigating climate change. This is especially true since commercial and affordable housing development have the same climate-change impacts as free-market residential development, yet only the former can proceed unabated under the Ordinance.”
The city’s response, which was filed Monday, countered that “the Plaintiff has misrepresented the law and the facts regarding the notice required by this statute and City Charter and what was provided in this instance and therefore denies these allegations.”
The answer also said the City Council committed no wrongdoing by passing the ordinance in short order.
“The Municipal Defendants affirmatively assert that in doing any act complained of by Plaintiff, the Municipal Defendants were acting under and pursuant to the law,” said the response.
The city’s answer contained little elaboration or details, essentially denying all of the allegations and arguing that it acted accordingly within the law.
Both sides will get a chance to make oral arguments at a hearing on the Board of Realtors’ motion for a preliminary injunction, which is scheduled Feb. 24-25 before Judge Anne K. Norrdin.
The moratorium halts residential development until June 8 and also prohibits applications for new short-term rental licenses until after Sept. 30.
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