City attorney may keep Hallam Lake clarification confidential | AspenTimes.com
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City attorney may keep Hallam Lake clarification confidential

M. John FayheeSpecial to The Aspen Times

Aspen City Attorney John Worcester is working on a procedural clarification regarding the Hallam Lake Environmentally Sensitive Area, but may not release that clarification directly to the public.The city’s Planning and Zoning Commission on Tuesday night directed Worcester to determine the degree of latitude P&Z has in making a ruling about a proposed swimming pool above Hallam Lake.A public hearing Tuesday discussed Jonathan Lewis’ desire to build a lighted pool, patio and covered stairway that would extend into the Hallam Lake ESA. At the beginning, community development director Chris Bendon told P&Z members that they must base their decision solely upon whether the application met all seven points of the Hallam Lake Bluff review standards. The Hallam Lake Bluff review segment of the city’s land use code includes those standards.Lewis’ lawyer, David Lenyo, of Garfield & Hecht, concurred with Bendon.Lenyo argued to the commission that Lewis’ application met every one of the ESA review’s criteria, and, therefore, that P&Z had no legal standing to deny the swimming pool – despite the fact that 17 out of the 22 people who spoke at Tuesday’s meeting opposed Lewis’ plan.Attorney Ted Gardenswartz, representing actor Jack Nicholson, who owns property next to Lewis’, countered that P&Z not only had the right, but the obligation, to factor in the ESA’s “purpose” sections. Those sections, he said, allow subjective discretion in granting development permits in the city’s Environmentally Sensitive Areas, which include various view planes, stream margins and greenlines in addition to Hallam Lake.Two P&Z members, Dylan Jones and Mary Liz Wilson, asked for copies of the entire ESA part of the land use code, and Worcester was asked to provide an opinion whether P&Z legally could include the purpose sections in its decision-making process.Worcester said Wednesday that he had already begun work on his opinion. But, he said, he had not yet determined whether his opinion would be released directly to the public.”I have been asked to determine what is the purpose of a purpose statement,” he said. “This is covered by attorney-client privilege, so, typically, I would not release it to the public. I will probably release my opinion directly to P&Z, and they can do with it as they please.”The “purpose section” of the land use code’s ESA section states: “Certain land areas within the city are of particular ecological, environmental, architectural or scenic significance and all development within such areas shall be subject to heightened review procedures and standards as set forth in this Chapter.”Then, under a Hallam Lake-specific subsection, the document states: “Development in this area shall be subject to heightened review as to reduce noise and visual impacts on the nature preserve, protect against slope erosion and landslide, minimize impacts on surface runoff, maintain views to and from the nature preserve and ensure the aesthetic and historical integrity of Hallam Lake and the nature preserve.”Gardenswartz argued that there was no way to predict how Lewis’ pool plans would affect the visual and auditory aesthetics of Hallam Lake and the Aspen Center for Environmental Studies.Two wildlife biologists told P&Z that there is little doubt that even minimal increases in noise and light levels would irrevocably harm the nature preserve.Lenyo countered that no proof had been presented that “this particular development would harm the nature preserve.”P&Z chairperson Jasmine Tygre said yesterday that she believes it is perfectly appropriate for the commission to integrate purpose clauses into its decision-making process.”We do it all the time,” said Tygre, who has served on P&Z for more than 20 years. “We have long tried to match the intent and purpose of the code to the realities of the applications. We need to have some kind of reference when we are acting in a quasi-judicial capacity.”Still, Tygre said, it is important for decisions to follow the kinds of objective criteria Bendon outlined.”We need to make certain that we don’t make decisions based upon the fact that we like or don’t like a particular project,” Tygre said. “We have to have objective criteria upon which to base our decisions. But that does not mean we can’t put those objective criteria into a larger context as expressed by the purpose clauses of the land use code.”Tygre expressed surprise that Worcester said he was inclined not to release his determination to the public.”His determination will be made public at the April 11 meeting either way,” she said.Tom Kelly, one of the state’s leading media attorneys, said Wednesday that a city attorney works for a city government, rather than for the residents of a city. There, he said, he has every legal right to invoke client-attorney privilege in this case. Whether P&Z members will factor in the generalized language included in the land use code’s purpose sections will be the argumentative crux when P&Z revisits Hallam Lake on April 11.


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