City wins first part of open space suit |

City wins first part of open space suit

Allyn Harvey

Federal District Court Judge Lewis T. Babcock ruled Tuesday that the Aspen charter was not violated when open space at the intersection of Maroon Creek Road and State Highway 82 was used last year as a staging area for construction crews working on the roundabout.

The judge’s decision excuses the city as a defendant even though much of the case is still to be ruled on.

Friends of Marolt, a local group formed last year to fight the use of the open space along the south side of Highway 82 as it approaches the Castle Creek Bridge, filed its case in Denver last year, charging that the city violated its own laws in allowing the use of the Thomas open space to stockpile sand, gravel and pipes, store heavy equipment and be used as a parking lot for construction workers. The portion of the suit still to be decided alleges that the Colorado Department of Transportation violated two federal environmental laws during the environmental review process.

The portion of the case decided yesterday focused on a section of the city charter that requires voter approval for any changes in the way officially designated open space is used. The Friends alleged the city should not have allowed road crews to use two acres of open space as a staging area without first conducting an election.

In his written briefings to the court, City Attorney John Worcester argued voters authorized the use of the Thomas and MoMoore open space for highway construction in 1996 when they approved the two-lane parkway with accompanying rail line across the property in question. He also argued the city had always intended to eventually convert the land used as a staging area into a wetland. That task was completed shortly after the roundabout was finished.

The written submissions were apparently enough for the judge. Even though several Aspenites called to the stand by Friends attorney Lori Potter testified they had not been informed that the 1996 vote permitted use of adjacent open space for construction staging, Judge Babcock issued his ruling as soon as the Friends finished making their case, without any testimony from the city.

“Basically, the judge ruled even if all the facts presented by the witnesses called by the Friends are true, they’re still not due any relief under the law,” said Worcester.

Babcock’s directed verdict said the 1996 vote included language allowing for the use of the needed right of way to complete the Entrance to Aspen project, which could be construed to include staging areas for construction crews, according to a press release from Friends of Marolt.

“We continue to believe the city charter’s restriction on open space should be more meaningful and more strictly enforced than the court construed to be the case,” Potter said. “I think the ruling is important because it lets the citizens of the city of Aspen know that their open space, wherever it is, is at risk of being used in ways they didn’t imagine.”

In addition to the allegation disposed of yesterday, the Friends case alleges that the Colorado Department of Transportation violated the National Environmental Protection Act when it was going through the environmental review process and a section of the Department of Transportation Act that bans highways on park land. That portion of the case has yet to be ruled on by Judge Babcock.

“If the Friends of Marolt wins the overall case, we can’t build the parkway or light rail without writing another environmental impact statement,” Worcester said.

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