Aspen wins Wienerstube lawsuit |

Aspen wins Wienerstube lawsuit

ASPEN ” The city of Aspen has prevailed in a lawsuit filed by owners of the Wienerstube building. The city denied the building’s owners an application seeking redevelopment of the property.

Pitkin County District Court Judge Gail Nichols on Wednesday denied the request by 633 Spring II LLC, which is controlled by building owners Stephen Marcus and John Provine, to make the council’s 2008 decision null and void.

Nichols also shot down the lawsuit’s request to grant subdivision approval so the Wienerstube building at 307 S. Spring St. ” at the corner of Hyman Avenue and Spring Street ” can be redeveloped by separate owners.

The council voted 3-0 in March 2008 to deny a subdivision approval for the 18,000-square-foot property. Council members said their primary reason for the denial was the three-story building was out of character with the area and was too tall.

While developers said the project meets city regulations, the council said it didn’t meet the guidelines set forth in the Aspen Area Community Plan (AACP), a driving force behind the land-use code that guides how a development should fit in with a neighborhood.

The lawsuit argued that the AACP is an advisory document and not regulatory. The lawsuit alleged that because the application in question was a request for subdivision approval, the City Council was limited on its review of the project and couldn’t legally deny it on its merits related to land use.

And because the council rejected the application based on land-use issues, it exceeded its jurisdiction and acted in an arbitrary and capricious manner, the lawsuit alleged.

Nichols refuted that argument in her 36-page order, agreeing with the city that subdivision approval hinged largely on the AACP, which is a regulatory document.

She also ruled that the City Council properly denied the subdivision application because the proposed project would adversely affect future development.

Before casting their votes, Councilman Jack Johnson and Mayor Mick Ireland said the proposed building’s height would put pressure on surrounding properties to build higher in order to see the mountain.

In her ruling, Nichols cited a city code that requires subdivisions to not adversely affect future development of surrounding areas. She also noted that there was testimony from at least two people that if the developers were permitted to build to 42 feet, those in the surrounding buildings would want to build higher.

In the “findings of fact” portion of the ruling, Nichols wrote that the size, bulk or mass of the project was always an issue.

“City Council very consciously focused its attentions on the code’s criteria for subdivision review: (a) shall be consistent with the AACP; (b) shall be consistent with the character of existing land uses in the area and (c) shall not adversely affect future development of surrounding areas,” Nichols wrote.

“… City Council could also consider the project’s mass and scale in conducting its subdivision review because the size and mass of the proposed subdivision were relevant to several of the subdivision criteria,” Nichols continued.

The Wienerstube’s land-use plan called for redeveloping the property into a 47,000-square-foot complex that would house the Wienerstube restaurant for at least 10 years, Ajax Bike and Sport, and four or five smaller affordable commercial spaces that would have faced the alley. The 12 affordable housing units and six free-market condos would have been on the upper levels along with additional commercial and office space.

It’s unknown whether the developers will appeal Nichols’ ruling.

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