City of Aspen charts new but same path on residential development moratorium
New ordinance cleans up a procedural misstep and puts a fresh but the same temporary ban on new land-use applications in the city
Aspen City Council on Monday took a step in fixing a procedural mistake in passing a six-month moratorium on residential development in December, per a judge’s ruling last week.
Council on first reading passed Ordinance 6, which reiterates Ordinance 27 that took effect on Dec. 8.
Ninth Judicial District Judge Anne Norrdin’s order on Friday found that the council violated the Colorado Open Meetings Law because it did not properly notice a Dec. 7 meeting introducing Ordinance 27 on first reading.
City officials presented the ordinance to City Council members and the public attending after the meeting had started. The ordinance also had not been included on the meeting agenda that the city publicly posted Dec. 3.
To correct that, the city on Sunday noticed Monday’s special meeting 24 hours in advance and Tuesday’s special meeting at noon for final reading on Monday.
“We have noticed and are prepared for a second meeting as our charter … requires passage of emergency ordinances with two meetings,” City Attorney Jim True told council on Monday.
On Sunday, True said the city disagreed with some of the court’s conclusions and officials are disappointed with the issuance of the preliminary injunction on Ordinance 27.
Norrdin’s temporary injunction took effect immediately, leaving Monday and a portion of Tuesday with the moratorium on residential development unenforceable.
Aspen attorney Chris Bryan, on behalf of the Aspen Board of Realtors, filed a motion for preliminary injunction on Ordinance 27 in January.
He and those in the real estate industry argued they were caught off guard by an ordinance that was not properly noticed and rushed to approval under the declaration of a so-called emergency.
The ABOR’s lawsuit against the city seeking a permanent injunction is still in play as Norrdin’s final ruling has not yet been rendered.
In Friday’s ruling, Norrdin did not address the city’s declaration of an emergency in passing Ordinance 27, which imposed a moratorium on new land-use applications seeking development or approval, and certain building permits for residential uses, because she found no evidence of fraud or bad faith by the municipal government.
She did, however, rule against the ABOR’s claim that the city violated due process provisions under the 14th Amendment of the U.S. Constitution.
Mayor Torre said he agreed with some of Norrdin’s ruling but not all of it.
“I believe the judge’s ruling on supporting the moratorium in its emergency nature,” he said. “I do not agree with the judge’s ruling … I will respect it but I found the language to not lend itself to a defect of process here.”
The preliminary injunction does not affect the nine-month pause on the issuance of short-term rental permits, which council passed on Dec. 7 via Ordinance 26.
Council paused both new residential development and short-term rental activity in response to the unprecedented growth in both industries.
The temporary ban allows the government to align its land use codes with the impacts to the community, as well as update its affordable housing mitigation requirements and determine how short-term rentals and increased demolition of smaller homes in favor of building larger ones contribute to the climate crisis and work against the city’s climate action goals.
Other opposition to the moratorium appears to be gaining ground, as local real estate agent Bill Guth updated council on Monday that he and his supporters have the signatures of over 900 Aspen registered voters on a citizen-initiated ordinance who want a special election to repeal the legislation.
The group needs 993 signatures of registered Aspen voters, which is 15% of the electorate, to move the initiative forward, according to city officials.
“We are ready to turn those in this week for consideration and I want you to know we have worked really, really hard on that effort,” Guth said. “It’s almost 35%, if my math is right, of the people who voted in the last election are telling me this is a bad idea and are asking you to repeal Ordinance 27, so I think the same statement, the same theory applies to what you consider today.”
Guth added that the city’s public outreach and attempts to bring people in from the real estate industry have been weak thus far.
“I have participated in the pop-up sessions and the focus groups on new development that’s supposed to be happening during the moratorium and I have to tell you I am tremendously disappointed,” he said. “We are halfway through the moratorium and there is zero policy that’s being proposed for consideration from feedback from the public and they are pretty rudimentary fact finding sessions going on.”
Council will discuss at its Tuesday work session policy options for the pace and scale of residential development in the city and affordable housing opportunities as part of the work happening during the moratorium.
Councilwoman Rachel Richards said changes need to be made and the moratorium is necessary to understand the landscape better.
“It is my belief that the work necessary to accomplish code revisions sufficient to bring our code in greater alignment with the Aspen Area Community Plan and elements of service and human infrastructure used to support the resort need to be realigned and I will support this going forward,” she said.
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