City wants Aspen Realtors docs backing claims of financial losses
Arguments over open meetings laws, emergency ordinances and due process are central to a court battle between the Aspen Board of Realtors and the city over the adoption of a moratorium banning residential development and new short-term rental licenses. But another issue has come into play, and it concerns the board’s claims that its members have suffered financially and the city’s claims that they are motivated by profit.
On Friday, attorneys for the city of Aspen filed court papers asking the Board of Realtors to produce a bevy of documents supporting the organization’s claims that the moratorium has caused its members to lose business since it took effect Dec. 8.
The request was filed hours after a pre-trial conference between city attorneys and Chris Bryan, who is lead counsel for the Board of Realtors in its lawsuit and motion for a preliminary injunction to stop enforcement of the moratorium. The conference was held in lead-up to the scheduled Feb. 24-25 hearing on the preliminary injunction motion. Judge Anne K. Norrdin is the presiding judge.
The city wants the board to produce the documents by Feb. 18. They include every residential property purchase contract or agreement held by all members of the Aspen Board of Realtors, dating back to Dec. 8.
Bryan, during last week’s virtual hearing, called the request a “fishing expedition” and said he could not force all of the board’s members to produce those documents in such short order. Norrdin said she would decide on the city’s request after its filing.
“On one hand it sounds like it’s incredibly broad and very onerous, and on the other it is very targeted,” the judge said.
The city also wants the board to produce “any and all documents, records, data, reports and correspondence” showing loss of income by Board of Realtors members caused by the moratorium. Additionally, the request seeks “all correspondence to, from, by, between and among” Board of Realtors members and employees associated with sworn affidavits from brokers and developers saying their business has a suffered as a result of the moratorium.
In a written pleading made Feb. 1, the city cast doubt on the Realtor board’s claim that the residential moratorium, passed in the form of Ordinance 27, is hurting the local real estate industry.
“There is no indication in the City’s records that Ordinance 27 … has impacted the real estate market in the City of Aspen,” city Assistant Attorney Katharine Johnson wrote in the city’s response to the motion for preliminary injunction. “Community Development continues to receive land use applications for development exempt from the moratorium, and over 300 building permits remain active in the City’s queue, including a significant number of single family or multi-family residential related permits.”
The filing, which asked the judge to deny the motion, said the Board of Realtors has made speculative arguments to support its cause.
“The only harm alleged by those ABOR members who provided affidavits in support of the Motion is nothing more than speculative financial harm that is insufficient to support injunctive relief,” the city’s response said. “Loss of commission, loss of projected associated fees, and loss of short-term rentals as a source of income are the harms conjured by ABOR.”
The answer made clear the city believes the Board of Realtors’ litigation is driven by its members’ motivation for financial gain.
“Explicit in the Ordinance is the City’s desire to promote well planned growth and protect the health, safety and welfare of its citizens through land use regulations,” the answer said. “In contrast, ABOR’s only interest is the financial profits of its members. The balance of equities must weigh in favor of the City, because to find otherwise would be to place the financial well-being of ABOR members above the public health and safety of the City’s citizens.”
The assertion did not go over well with the board’s attorney Bryan.
“Defendants’ Response snidely asserts that ABOR’s ‘only interest is the financial profits of its members,’” Bryan wrote in a filing made Wednesday. “Hardworking Aspenites’ standing up to their local government to protect their ability to support themselves and their families is a completely proper motive worthy of consideration in the Court’s equity-balancing analysis.”
The filing went on to say the ordinance created a lack of public trust, and said the city “shame ABOR’s members for attempting to earn livings by accusing them of being ‘motivated by financial gain.’ ABOR’s members are opposed to the Ordinance not only because it was enacted in violation of applicable law but also because it significantly impairs a major sector of Aspen’s economy that thousands of people in our community rely on to earn a living and to support their families.”
The Board of Realtors filed suit Dec. 27 in Pitkin County District Court against the city and the City Council, also identifying each elected member as an individual defendant. The complaint said the city skipped due process by presenting the ordinance as an emergency, which allowed the council to approve the legislation much quicker than usual.
The suit suggested the city’s explanation for an emergency ordinance — that residential development has come at the expense of climate change, and Aspen’s worker-housing options have been reduced by the impact of short-term rentals — was insincere and unjustified, violating both the spirit and letter of Colorado open meeting laws. As well, Bryan argued in filings that the city violated state law and its own charter by not properly noticing the ordinance. The city has countered by saying it properly followed the law when the ordinance was introduced to the City Council on Dec. 7 and passed the next day.
The moratorium halts residential development until June 8 and also prohibits applications for new short-term rental licenses until after Sept. 30.