Attorney casts doubt on city of Aspen’s Referendum 1 stance |

Attorney casts doubt on city of Aspen’s Referendum 1 stance

Rick Carroll
The Aspen Times

Smith's opinion

Two activists have obtained a legal opinion on Referendum 1 that is at odds with the city attorney’s advice given to Aspen City Council.

Thomas Smith, who was hired by Aspen residents Maurice Emmer and Steve Goldenberg, wrote a seven-page opinion he provided to city attorney Jim True on Wednesday.

True has maintained that Referendum 1, which Aspen voters passed May 5, does not apply to development applications that were filed before the election. The referendum amended the city’s Home Rule Charter so that City Council could not approve land-use applications that sought variances on height, mass, parking, affordable housing and view planes. Instead, applications seeking such waivers would require a public vote.

True also sought a second opinion from Denver attorney Steve Dawes, who supported his position to grandfather in variance-seeking applications.

Smith, a name partner with Aspen law firm Austin, Peirce & Smith PC, as well as counsel for the town of Basalt and the Aspen-Pitkin County Housing Authority, opined that the city’s position is off base.

“The Charter Amendment (Referendum 1) applies to any land-use approvals which include variances that are granted after the effective date of the Charter Amendment including those applications pending at the time,” Smith wrote. “The City Council must refer all such applications to the electorate for authorization for variances, and without such approval the variances are of no effect.”

True said he had not read the entire opinion, but noted he informed City Council members that Smith’s position cast doubt on the city’s.

“As I’ve said all along, people can form different opinions on this issue, and the only opinion that will ultimately matter is that of a judge,” True said.

True declined to talk about the merits of Smith’s conclusion, saying he was initially told that the opinion would be kept confidential.

Emmer, who provided the opinion to The Aspen Times after True wouldn’t release it, has publicly argued that the city attorney’s position is incorrect. Both Emmer and Goldenberg campaigned in favor of Referendum 1, which passed 1,300 to 1,145.

They also supported a petition drive aimed at bringing a Main Street lodging project, known as Base2, to voters after City Council approved it June 2. The city approved the project granting it multiple variances; under Referendum 1, the proposal would have been required to go to a municipal election. But True told City Council that prolific developer Mark Hunt’s application was grandfathered in because its application was submitted before the May contest.

City Clerk Linda Manning said as of 1:30 p.m. Wednesday, she had validated 36 of the 1,312 signatures submitted by petition organizers Ward Hauenstein and Marcia Goshorn. Twelve names had been denied, she said, noting she will complete the certification process within the next few weeks. If she validates 617 of the names, City Council can either repeal the Base2 ordinance or refer it to voters.

Smith’s opinion

Smith said the Base2 issue is moot now because the petition effort will likely prevail.

“(The opinion) wasn’t about that project,” Smith said. “But it’s much more about other applications will be reviewed in the future.”

Emmer and Goldenberg hired him a few weeks ago to analyze Referendum 1 as it applies to pre-Election Day land-use applications seeking city concessions.

As Basalt’s attorney, Smith said he would offer the same advice to the Town Council if it had a similar referendum in the books.

“Absolutely,” he said. “I’m not going to talk out of both sides of my mouth.”

At the request of Emmer and Goldenberg, Smith presented his opinion to True. Emmer said he hopes Smith’s opinion prompts “City Council to decide whether they are going to go with the developers or go with the right to vote.”

There are a number of variance-seeking applications that were filed before the May election. Among them, said Community Development Director Chris Bendon, are view-plane variances sought by Hunt for the Bidwell building and another structure he owns in the Hyman Avenue mall. The new owners of the Golden Horn building also have sought a view plane variance. Other projects seeking variances are St. Mary Catholic Church and Hotel Jerome. All of those applications, had they been submitted after the May election, would require a public vote under Referendum 1, Bendon said.

Smith based his conclusion on interpretations of both state and local statues.

His opinion cites the Colorado Vested Property Rights Act, which says development applications adhere only to the laws that were in place at the time they were submitted. But that law is not applicable to Referendum 1 because the Act does not include variances, Smith’s opinion noted. And since Referendum 1 “applies only to variances, applications for variances pending at the time that Charter Amendment became effective are submitted to voter authorization …”

Smith’s opinion also says Referendum 1 supersedes Colorado law because it the referendum is an amendment to the city’s Home Rule Charter, and the city can “apply newly enacted and more restrictive regulations to pending land use applications where the (Colorado Vested Property Rights Act) does not apply.”