City seeks a second legal opinion on Referendum 1 |

City seeks a second legal opinion on Referendum 1

Karl Herchenroeder
The Aspen Times

Officials have hired a Front Range land-use attorney to offer a second opinion on whether Referendum 1 can be retroactively applied to development applications.

City Attorney Jim True has contended that the referendum-spurred Home Rule Charter amendment does not apply to applications completed prior to certification of the May 5 election. Referendum sponsor Cavanaugh O’Leary, land-use attorney Marcella Larsen and retired tax attorney Maurice Emmer have challenged True’s assertion. After consulting Aspen City Council members individually, True sought a second opinion.

The city has hired Steve Dawes, an attorney with Denver-based Light, Kelly & Dawes P.C. who has worked with Aspen in previous capacities. True estimates his services to cost a few thousand dollars and said an opinion is possible before Monday’s City Council meeting.

Referendum 1, which made Aspen’s electorate the final authority for land-use variances on height, mass, parking, affordable housing and view planes, was a focal point for the council Monday, when it reviewed developer Mark Hunt’s Main Street lodge concept, Base2. The project includes requests for zoning breaks on floor area and setbacks, which would be subject to public voting under the charter amendment.

True said Wednesday that if Dawes disagrees with his opinion and articulates that, the city will respect that opinion and retroactively apply the referendum. If True and Dawes are in agreement, the city will proceed based on the original opinion, True said.

“If you’ve got an issue that could lead to litigation, and you want to make sure you’re on the right path, you go and seek a second opinion,” True said. “The only opinion that would ever really count is that of a court, but you can always do your best to get as much information as possible.”

O’Leary, Larsen and Emmer, in a letter to Dawes, raised two specific concerns about the charter amendment’s applicability. O’Leary said Wednesday that his group would like to know two things: whether the people’s right to vote trumps the state statute True has cited and whether the statute applies to a change in the city charter.

If Dawes returns with the opinion that Referendum 1 does not apply to previous applications, O’Leary said he would like to see the council honor the spirit of the May 5 election, which solidified the charter amendment with 53 percent support. If the council does not honor that will, O’Leary said, and it approves a project with zoning breaks, his group will consider starting a petition drive to bring the application to voters.

On Tuesday, council members told Hunt his Base2 proposal is workable and that they would like to see it come to fruition. Base2 would serve as the sister hotel to Base1, Hunt’s Cooper Avenue lodge concept that won unanimous council approval in February. Hunt has claimed that together, the hotels would bring at least 80 rooms to Aspen, sized around 200 square feet and priced between $150 and $200 a night. He also has stated that one cannot be built without the other, as no reputable hotel manager will operate fewer than 80 rooms.

The vast majority of Tuesday’s public comments were in support of Base2, with many younger residents and visitors arguing that it would draw the type of demographic Aspen has been losing for decades. Reuben Sadowsky and Joey Stokes, event producers who organized last year’s Super Dope, Semi-Secret Dance Party You Can Probably Get Into, have been ardent supporters of Hunt’s projects.

O’Leary said Wednesday that organizers made a conscious effort not to appear Tuesday out of “politeness” to the council. As O’Leary explained, council members had told him they will honor the spirit of the referendum. It wasn’t until he realized Hunt supporters had come out in droves that he decided to leave home and speak for the opposition at City Hall.

“We were absent intentionally, both to be courteous to council because we thought Referendum 1 passed and it was clear, and we didn’t want to beat a dead horse,” O’Leary said.

Base2 is scheduled to return to the council Monday.