Aspen government sued over land-use ordinance
The ownership group of a commercial building has taken legal steps to see if a new Aspen city ordinance meets legal muster.
North Mill Street Investors, owner of the Mill Street Plaza building, which is located next to the Aspen post office and across from the Clark’s Market shopping center, filed a complaint Tuesday in Pitkin County District Court. The defendants are the city of Aspen and the five members of the City Council — Art Daily, Adam Frisch, Ann Mullins, Bert Myrin and Mayor Steve Skadron.
The complaint contends that Ordinance 29, one of six new ordinances that are part of sweeping changes made to the city’s land-use code over nearly the past year, unfairly targets the Mill Street Plaza by not allowing residential development there.
The land-use code has undergone major overhauls since March when the City Council — concerned about the growing number of residential projects downtown as well as a land-use code that was out of line with the overall desires of Aspen residents — passed an emergency ordinance freezing all development applications in the city’s commercial zone districts.
The City Council has adopted five of the ordinances; the moratorium is scheduled to be lifted March 17.
Mill Street Plaza is a hodgepodge of locally serving businesses including an athletics consignment store, laundromat and auto-service shop, among other establishments. It is zoned service-commercial-industrial, more commonly referred to as SCI.
North Mill Street Investors bought the 20,000-square-foot building for $20 million in 2007, the complaint says, “for the purpose of redeveloping it as a mixed-use building incorporating service, commercial and light industrial uses together with free-market resident units.”
Ordinance 29, however, prohibits future residential development in SCI districts. There are four properties zoned SCI in Aspen — the Mill Street building, Obermeyer Place, the lumberyard parcel off of Highway 82 near the Aspen Business Center and the Andrews MacFarlin parcel on Mill Street.
Other than Mill Street Plaza, the other properties have residential units, while the city plans to develop the lumberyard into an affordable-housing project, the complaint says.
“The Mill Street Plaza is the only property in the SCI zone district that has been completely precluded from developing free-market residential units under Ordinance 29 as applied,” the complaint says, noting that the city partnered with Obermeyer Place on its development of 21 free-market units and 21 affordable-housing units.
The complaint also alleges that the city “has the ability to circumvent the restrictions of Ordinance 29” should it move forward with an affordable-housing project at the lumberyard.
“By adopting Ordinance 29, the city of Aspen is treating the Mill Street Plaza differently than the city of Aspen has treated other landowners in the SCI zone district, including the city of Aspen and its private partners,” the suit says.
The complaint seeks a court ruling on whether the city’s downzoning of the SCI district “was arbitrary and capricious.”
Aspen law firm Garfield & Hecht, which filed the complaint, declined comment.
City Attorney Jim True said he had not seen the complaint by Wednesday, the day the court made it public.
“There was no indication that they were doing that,” he said. “You always know when you’re doing significant land-use legislation that it’s possible someone could take exception to it.”
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