Aspen’s double moratorium goes to court, testimony begins
Challengers contend Aspen staff and City Council violated open-meeting laws
In its bid to convince a judge to lift the City Council’s ban on new residential development and new applications for short-term vacation rentals, the Aspen Board of Realtors through its attorney called four witnesses to the stand Thursday who said they have lost business and income ever since the moratorium took effect Dec. 8.
Additional testimony and closing arguments are set to take place Friday as part of a two-day hearing in Pitkin County District Court, the venue for the board’s motion for a preliminary injunction to pause the enforcement of a double moratorium City Council passed through Ordinance 27 on Dec. 8. The ban on residential development expires June 8 and the prohibition on applications for new STR licenses ends after Sept. 30.
One of ABOR’s witnesses Thursday was general contractor Chris Hendrickson, owner of Hendrickson Construction Inc., who testified that “I ended up losing three jobs” to build homes in Aspen, resulting in revenue losses of $24 million to $26 million, after the moratorium took hold. Other testimony came from a real estate broker/investor, an architect, and an owner of a condo intended to be used for short-term rentals, all of whom said they’ve taken substantial financial hits because of the emergency-styled legislation.
Bryan said he expects to call three more witnesses or possibly four; city attorneys said they anticipate calling two people to testify ahead of Friday’s closing arguments. Judge Anne Norrdin is presiding over the hearing.
Through Bryan, ABOR has contended city staff and the City Council violated open-meeting laws by respectively presenting and adopting the ordinance yet not properly noticing it to the public.
By declaring an emergency, the council was able to bypass rules requiring ordinance hearings to be publicly noticed no less than 24 hours before they are scheduled and adopt the ordinance in just two days. Bryan has argued in pleadings, however, that the emergency the city declared is dubious because the ordinance singles out STRs and residential development while ignoring commercial or affordable-housing development.
Ordinance 27 states that “a pause in certain types of residential development is necessary in order to assess the current state of the affordable housing program, assess gaps and opportunities in the regulations and delivery of units relative to need, and consider future community needs in the housing sector in the context of larger Land Use Code issues.”
It goes on to say “anthropogenic climate change and the impacts to the ecological and economic health of the community constitutes an emergency and a threat to the health and safety of the residents of the City of Aspen and the global community” and “residential development contributes to climate change through transportation required to construct and service residential properties, the energy and impacts inherent in creating and sourcing the materials necessary for residential development, the natural resource consumption required for the operation of residential structures, and the production of solid waste and associated disposal impacts from the construction and operation of residential structures.”
Bryan spent a good part of the day quizzing city Community Development Director Phillip Supino about the process taken to adopt Ordinance 27, the impetus for the emergency legislation and the reason commercial and affordable-housing developments were not put under the moratorium.
Residential development is the biggest offender when it comes to greenhouse gas emissions generated through local construction projects, and to include commercial and affordable-housing would compromise city staff’s ability to effectively examine the situation, Supino said. The city is working toward aligning its land use code with its environmental initiatives during the duration of the moratorium, he said.
“Our present land use code does not make an efficient connection between the demolition, construction and operation of a residential property and greenhouse gas emissions reduction,” said Supino, who noted several times that $880 million in building permits are approved or are under review for 2022, and Aspen’s residential sector accounts for most of that figure. “And that is a major hole in our land use regulations, and council made it clear their desire for us to fix it.”
Bryan asked Supino numerous times why the city felt it necessary to pass an emergency moratorium rather than taking the usual steps where an ordinance is initially presented to council for a first reading, and two weeks later for a public hearing and second reading, while taking effect 30 days after it is passed. Suppino remained consistent with his answers — that to telegraph plans for a moratorium would result in a barrage of land use, building permit and STR applications filed with the city, which would be counterproductive to the city’s strategy to step back and examine what officials consider a crisis scenario.
Supino also noted that STRs have become a “major driver of real estate development” and function like “micro-lodges” by demanding services such as shuttle transportation.
STRs are for periods of no more than 30 days, and city leaders have said they have changed Aspen’s character and made it less of a community, while shrinking the inventory of available housing for full-time residents. There are approximately 1,200 active STR licenses in the city, Supino said.
“Recent evolutions in the residential real estate market and economy, including new financial dynamics, the proliferation of short-term rentals, have rendered elements of the Land Use Code inadequate to respond to local affordable housing needs,” states Ordinance 27.
Supino said he was part of discussions with city attorneys, Environmental Health officials and Mayor Torre and Councilman Ward Hauenstein in mid-November about the potential for a moratorium.
Hauenstein closed out the day’s testimony, and said he learned about the draft ordinance on Dec. 7 but that discussions about a moratorium dated back to the summer of 2021. The ordinance was presented to the council in the early stages of its Dec. 7 meeting and was not on the public agenda, a move the city was able to pull off because it was presented as emergency legislation.
“There was, I believe, damage being done to our community,” Hauenstein said.