Aspen city attorney decries allegations of bad faith and fraud |

Aspen city attorney decries allegations of bad faith and fraud

Sides wrap up arguments in moratorium case; judge’s decision at least a week away

In a sharp retort to allegations the Aspen government skirted open meetings laws and secretly plotted an ordinance to temporarily freeze residential development and new vacation-rental permits, City Attorney Jim True said Friday no rules were broken and the evidence proves it.

“There was no violation,” True said. “There is not a scintilla of evidence of bad faith, there’s not a scintilla of evidence that it was done inconsistently with the language of the statute, there’s no scintilla of evidence that it has violated its own charter … or acted in bad faith in adopting this … and therefore, this court should deny the plaintiff’s motion for a preliminary injunction.”

True’s comments were part of the city’s concluding remarks to the second and final day in the court hearing over the Aspen Board of Realtors’ motion for a preliminary injunction to lift the City Council’s moratorium that was approved Dec. 8.

Because it was proposed as emergency legislation, the ordinance took effect immediately after its passage. The council approved the ordinance on first reading Dec. 7 and second and final reading Dec. 8. A non-emergency ordinance would have required at least two weeks between the first and second reading. As well, a non-emergency ordinance would not have taken effect until 30 days after its passage.

While True and ABOR attorney Chris Bryan summarized their arguments to wrap up the hearing, both sides have until the end of the business day March 4 to file written closing arguments for the judge’s review.

“I’ll look forward to your submissions next Friday and I’ll try to get an order as soon as possible after that,” said 9th Judicial District Judge Anne Norrdin, who is presiding over the case.

Norrdin’s decision concerns whether the moratorium will remain in effect until the scheduled expiration dates of June 8 for residential development and Sept. 30 for short-term rental licenses. Arriving to a decision will involve examining case law, open meetings law, city charter and state legislation, and sorting through court pleadings and this week’s testimony where each side offered different interpretations of how the polarizing moratorium came to be.

ABOR has argued that emergency Ordinance 27 declaring the moratoriums, which the City Council adopted Dec. 8, was ramrodded through with no public notice and in violation of open meetings law. ABOR also has maintained the emergency powers city authorities used to rapidly pass the ordinance — that residential development is adding to climate change — lacked merit and was a ruse to have it quickly passed and immediately enacted.

“Claiming an emergency when there’s not one,“ Bryan argued, ”really dis-serves the public interest because it makes us lose faith in the government. That’s not good. We need to have strong governmental institutions that people trust. And when people sneak things in and don’t notice them on an agenda, this community is very wary of what its government is doing in secret.“

A main point of contention concerns open meetings law and properly notifying the public.

Bryan argued this week that the city ignored both the state’s and its own rules that agenda items must be noticed at least 24 hours ahead of city council meetings.

In the case of Ordinance 27, it was not placed on the agenda for the Aspen City Council’s meeting held Dec. 7. After the meeting started, however, the agenda was amended to include the ordinance and paper copies of it were handed out to City Council members, city staff and people in attendance.

“They didn’t do that (notice Ordinance 27 before the meeting) because they didn’t want to give notice,” Bryan argued.

True countered that while a 24-hour notice for a public-body meeting is required, it was not a legal necessity to notice the ordinance being considered. He cited the Colorado open meetings law as it applies to noticing governmental body meetings. It states: “The posting shall include specific agenda information where possible.”

“Mr. Bryan likes to omit the phrase ‘where possible,’’’ argued True.

The city’s agenda for the Dec. 7 meeting was posted online Dec. 3, which was the Friday before the upcoming Monday meeting. Ordinance 27 was not included on the agenda.

Bryan, however, argued the city already had crafted it by Dec. 6, which is when Community Development Director Phillip Supino emailed his version of the ordinance to city attorneys. The city had ample time to notify the public about the ordinance before the meeting, Bryan said.

“It was shrouded in secrecy and was a surprise to the community,” Bryan said. “And not giving notice — that’s a violation of the law.”

True countered the two-day hearing for Ordinance 27 gave the public plenty of opportunity to hear and learn about what the Aspen government was considering. The City Council’s actions on Ordinance 27 demonstrated they were playing above board, True said.

“What is the primary evidence that the council wanted it done in public? It’s that it was added to the agenda in a regularly scheduled, well-attended public meeting,“ he said. “It knew it had to have a second meeting and it had that second meeting in which a hundred people observed and at least between 30 and 40 people actually participated by speaking to council.

“This is the transparency in government that this City Council very, very strongly believes in. There were two public meetings well attended, well considered and they adopted this and it was submitted by the agenda amendment and was allowed by the open meetings law and the city rules.”

Bryan and the ABOR also contended the climate emergency the city declared to justify the ordinance posed no immediate threat to the peace, safety and health of the Aspen community. An expert witness ABOR hired agreed.

“There is no scientific basis to declare emergency conditions related to anthropogenic climate change in the City of Aspen due to the spatial and temporal scale of global climate change,” concluded professional environmental engineer Lisa Graham in an exhibit to the case. “The moratorium on free-market residential development was not based on scientific evaluation of quantified greenhouse gas emissions in order to differentiate between land use development types: commercial, affordable housing, lodges and free-market residential. There are no data to quantify that the greenhouse gas emissions associated with pre-empted free-market residential development applications would be prevented or increased. The moratorium on the issuance of short-term vacation rental permits did not evaluate the greenhouse gas impacts of varying outcomes, such as increased vehicle emissions.”

Graham also testified Friday.

True, however, said it is not the court’s place to determine the validity of an emergency declared by a public body.

“I recognize that the plaintiff wishes the court to take a position that it can address the dispute that plaintiff wishes to raise about whether an emergency exists,” True said, adding case law demonstrates an emergency declaration is a “legislative and not a judicial function” and is “presumed valid and will not be reviewed by the courts in the absence of a showing of fraud or bad faith.”

“Fraud or bad faith is the fundamental aspect of this where the plaintiff’s case is severely lacking,” he said. “The legislature acts as the legislature is supposed to act. The court is not in the position to review those kind of determinations unless there are showings of bad faith or fraud. And there’s none here, not any scintilla of evidence of bad faith or fraud on the part of the city of Aspen.”