Citizens’ bid for restraining order on entrance denied
August 12, 2002
City officials are expected to convey the easement for the Entrance to Aspen to the state this week as planned, after local citizens failed to convince a judge to halt the property transfer.
Judge Thomas W. Ossola last week refused to grant a motion for a temporary restraining order, made by the Citizens for a Small Town Entrance, allowing the city manager to sign the right of way over to the Colorado Department of Transportation.
The property deal is expected to close this week, according to City Attorney John Worcester. It will give CDOT the right of way necessary to realign the highway across open space at the western entrance to town in exchange for land near the intersection of Highway 82 and Brush Creek Road.
Once the easement is in CDOT’s hands, an after-the-fact legal battle over conveyance of the right of way gets a little trickier, conceded Denver attorney David Hutchinson, representing the Citizens.
“There is no doubt that it becomes a more complicated legal path to pursue,” he said.
In a hearing last Thursday on the motion for the restraining order, Hutchinson told the judge that handing over the easement could render the lawsuit filed by the Citizens moot.
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In their suit, the Citizens are asking the court to order the City Council to either adopt an ordinance that repeals a previous council resolution authorizing the easement conveyance or to refrain from handing the right of way over to CDOT until city voters OK the transfer.
The Citizens, who oppose use of the open space for the highway, will pursue their lawsuit despite the initial ruling, according to Bert Myrin, one of the group’s organizers. “It doesn’t change anything,” he said.
Ossola has scheduled an Aug. 21 hearing on a preliminary injunction to suspend the easement conveyance pending the outcome of the case, but by then, it will most likely be a done deal.
“Certainly, it’s not going to help us if the easement is conveyed between now and the 21st, as I expect it will be,” Hutchinson said.
In a two-page decision issued Friday, Ossola declined to order an emergency halt to the conveyance before the Aug. 21 hearing.
“To do so would in practical terms give plaintiffs the ultimate remedy they seek without a full hearing on the merits,” the judge wrote.
The city and CDOT, defendants in the case, have argued that voters already approved conveyance of the right of way when they approved use of the Marolt-Thomas Open Space for the Entrance to Aspen in 1996. The city later entered into memoranda of understandings with CDOT and the Federal Highway Administration to memorialize certain agreements concerning construction of the highway, including conveyance of the right of way.
If the city doesn’t convey the easement, it could jeopardize the entrance project’s chances of receiving state funding, Worcester said at last week’s hearing.
State officials are now in the process of prioritizing transportation projects around Colorado.
“Here, the city previously acted upon the results of the 1996 election by entering into memoranda of understandings with other government agencies and funding of the highway project hangs in the balance,” Ossola noted.
The 1996 vote authorized a two-lane parkway and light-rail corridor across the open space, linking the Maroon Creek Road roundabout to the upper end of Main Street. The new alignment would bypass the Cemetery Lane intersection and the “S-curves” – two 90-degree turns that funnel traffic through the West End.
At the heart of the lawsuit is the issue of whether or not the council resolution that authorized the city manager to convey the easement can be repealed through the citizens’ initiative process.
The Citizens for a Small Town Entrance have put forth an ordinance to repeal the resolution or force a vote on the conveyance through the initiative process.
Although the group collected sufficient signatures to put their ordinance on a ballot, the council rejected the initiative after determining it was not the appropriate mechanism to overturn a resolution.
Worcester argued the resolution was an administrative rather than a legislative act, and can’t be repealed via a citizens’ initiative.
“This court concludes . that is more likely than not that Resolution 34 represents an administrative action, not a legislative action, and that repeal of such an action is not the property subject of an initiative process,” he wrote.
“Having so concluded, this court further concludes that it cannot find that there is reasonable probability that the plaintiffs will succeed on the merits of its claims,” Ossola continued.
Mayor Helen Klanderud, who has opposed conveying the easement to CDOT before voters are asked a new question regarding the controversial Entrance to Aspen in November, said she may press fellow council members one last time to hold off on the transfer.
“I would probably argue to change their minds,” she said. “If the council’s going to put this question on the ballot, I can’t understand the need to make the conveyance before that point. My position all along has been not to do this now.”
The council is scheduled to discuss the wording of an entrance question at its work session on Tuesday. Members have contemplated asking voters whether they prefer the existing alignment for future highway and transit improvements or the new one across the open space.
Three council members – Tom McCabe, Tim Semrau and Tony Hershey – have supported transferring the easement to CDOT so as not to jeopardize funding for the entrance project, should voters support the new alignment in November.