Citizens sue to block entrance
August 9, 2002
A district court judge is expected to rule today on a citizens’ request for a temporary restraining order that would prevent the city from turning over the easement for the Entrance to Aspen.
Judge Thomas W. Ossola heard arguments on the restraining order from attorneys for the city of Aspen, the state and the Citizens for a Small Town Entrance at a hearing Thursday afternoon in Glenwood Springs.
The Citizens filed a lawsuit yesterday seeking to halt conveyance of the highway right of way to the state until voters have authorized the property transfer. The group also filed a motion seeking a temporary retraining order to prevent the city from handing over the easement to the Colorado Department of Transportation before their case can be heard in court.
Once the easement is conveyed, “it is certainly possible this lawsuit would be rendered completely moot,” argued attorney David Hutchinson, representing the Citizens. The restraining order is necessary to preserve the status quo, he told the judge.
The status quo, countered City Attorney John Worcester, means the city has the right to convey the property, as voters authorized it to do in 1996.
“The status quo, even if they’re right, is that the city manager has the right today or tomorrow to sign that easement, whenever it’s ready to go,” Worcester said.
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The city had expected to close on the conveyance next week, he said.
With the Colorado Transportation Commission scheduled to meet Wednesday to consider criteria for prioritizing transportation projects, the Entrance to Aspen may be jeopardized if the city does not convey the easement, according to state attorney Harry Morrow, who participated in the hearing via a speaker phone in the courtroom.
CDOT’s acquisition of the right of way is “an important consideration,” Morrow said. “This will have a negative impact on funding for this project.”
“The city and county run the very real risk of failing to receive state funding,” Worcester told the judge.
The litigation itself may hurt the project’s chances of funding, according to Pitkin County Commissioner Mick Ireland, who is also chairman of the Intermountain Transportation Planning Region. He was on hand to testify, but Ossola declined to hear any witness testimony at the hearing.
In their lawsuit, the Citizens are looking to repeal a resolution passed by the City Council in April that authorizes City Manager Steve Barwick to convey the easement to CDOT in accordance with an agreement that dates back to 1998.
The group circulated an initiative petition that proposes an ordinance repealing the resolution. Last month, the council refused to either adopt the ordinance or put it to a public vote after determining the initiative was not an appropriate mechanism to overturn their resolution.
In the lawsuit, the Citizens contend their proposed ordinance is legislative in nature, and therefore appropriate for the initiative process.
“Why should the voters be denied the right to change a policy that they effected in 1996?” Hutchinson said.
The city is arguing that the resolution that was passed in April is an administrative act that is not subject to repeal through a citizens’ initiative.
“What they’ve attempted to do is subvert the process,” Worcester said.
The $62 million Entrance to Aspen, approved by voters in 1996, calls for rerouting Highway 82 over open space on the west side of town. The plan calls for a two-lane parkway and light-rail corridor linking the Maroon Creek Road roundabout and the upper end of Main Street.
Subsequently, voters rejected funding for light rail and construction of a two-lane parkway plus dedicated bus lanes as an interim transit measure.
Given the voters’ rejection of use of the open space for the bus lane alternative, Hutchinson questioned whether the 1996 vote is still valid.
“I think it’s an open question whether the city even has the authority today . to grant that easement,” he said.
The Citizens’ lawsuit asks the court to order the city to approve the group’s proposed ordinance or put the conveyance before the electorate for a vote.
The group has also asked Ossola to require either no bond or a nominal one to cover damages the city or state could incur if the temporary restraining order is issued. The defendants don’t face losses resulting from a delay since the project isn’t ready to build, the Citizens argue.
Worcester and Morrow both pressed for a sizable bond. It should be at least sufficient to cover the cost of proceeding with design work on the project, Worcester suggested.
Ossola scheduled an Aug. 21 hearing in Aspen to consider a preliminary injunction that would prevent the city from conveying the easement pending the outcome of the lawsuit. A temporary restraining order is an emergency action to preserve the status quo until the formal preliminary injunction can be considered. Witness testimony will be accepted at the hearing on the injunction.
“I’m assuming the city manager of Aspen is not going to set pen to paper until tomorrow evening,” Ossola said at the close of yesterday’s proceedings.
“I assure the court he will not,” Worcester said.
[Janet Urquhart’s e-mail address is email@example.com]