Clock running on moratorium |

Clock running on moratorium

A month and a half into the city’s moratorium on building applications and permits, there is some question whether the remaining five months are enough for council to achieve its goals.”It’s an ambitious undertaking for a very short period of time,” Councilwoman Rachel Richards said.Richards and council members Jack Johnson, J.E. DeVilbiss and Torre voted the emergency ordinance into effect April 25. Mayor Helen Klanderud opposed the ordinance.The ordinance states that “recent land use applications … do not appear to be consistent with the goals and vision as expressed by the 2000 Aspen Area Community Plan and are having … negative effects upon the community.”Among the negative effects the ordinance cited are the pace of construction, failure to meet the community plan’s affordable housing goals, negative impacts on locally serving businesses and that “‘infill code amendments’ are not having the desired effects upon development activity in the community.””There’s always going to be unintended consequences,” Richards said of the city’s infill codes. She wants to use the moratorium time to evaluate the unintended consequences of the current code and alter it as necessary to achieve the desired effect.At the council’s May 30 work session, the four members who supported the moratorium agreed that the pace of construction was a priority. Klanderud was not at that meeting.Richards identified the two main concerns regarding the pace of construction:First, the number and scale of the projects going on simultaneously is too much for the city to handle. Noise, dust and congested traffic sour the Aspen experience for residents and visitors alike.Second, with no control over the pace of new projects, the council is put in a position that it must make decisions on new applications before the city has the chance to witness the results of approved development. As a result, members may vote for a project that conforms to code without really knowing the true effects of those codes.Richards points to local eatery Boogie’s as an example of an unpredictable final outcome. During the restaurant’s approval process, many people objected to Boogie’s plan, and Richards said a number of locals vowed never to set foot in the restaurant. More than a decade later, however, the restaurant is popular with both locals and tourists.Johnson, who helped craft the city’s current “infill” codes, is the first to admit the codes aren’t having the desired effect. Although those codes were meant to encourage development consistent with the AACP, Johnson said that many of the applications he saw before the moratorium might have met the city’s codes but not its goals. He, too, wants to amend the codes further to ensure a “direct correspondence between the land-use codes and the AACP.”Johnson, DeVilbiss and Richards would prefer to use codes rather than the AACP as the basis for denying a proposal. It is uncertain whether the AACP has the legal teeth for denials.Pitkin County Commissioner Mick Ireland thinks the AACP is sufficient for denying applications that don’t fit the city’s goals: “A master plan is an adequate basis for denying an application, even though it’s an advisory document,” he said.DeVilbiss defers to the city attorney to weigh in on whether the AACP is legally binding, but he said working the plan’s goals into the city’s codes would solve the problem, making the AACP legality question moot.”What you want is mandatory language” in the codes, DeVilbiss said. “In legislative language, you want ‘shalls’ instead of ‘mays.'”Richards is adamant that using inconsistencies with the AACP to deny proposals that otherwise meet the city’s codes is an invitation for a lawsuit.”The courts are … constantly reinterpreting what we can do,” Richards said. She cited a case in Telluride in which the Colorado Supreme Court sided with a developer who challenged the city’s right to impose deed-restrictions or require other mitigations for affordable housing. The court called the measures rent control, which is illegal in Colorado.”You don’t want to end up in court,” Richards said. “You can end up damaging your cause.”Each of the four council members who voted for the moratorium has a specific list of issues they want addressed to better align the city’s codes with the AACP. Richards, Johnson and DeVilbiss don’t want to see the moratorium lifted until that goal is met.”I don’t think it can be done in five months, but I could be wrong,” Johnson said. “I don’t want it to be extended, but I’m not afraid of extending it.””The moratorium we enacted is not that severe or all-encompassing,” said DeVilbiss, who wanted the moratorium to cover residential development as well as commercial.From his perspective, ending the moratorium without addressing its goals might be worse than extending it. DeVilbiss is concerned that if developers know changes are in the works, they might race to submit applications before the changes take effect. The result could be a greater flood of applications than the city saw leading up to the moratorium, putting even greater pressure on the council.”I don’t want the moratorium to extend one day longer than it absolutely has to,” he said. But “I do not want the moratorium to end until we’ve done our work. I sincerely hope we’re able to do our work within the six-month period.”Torre and Klanderud were not available for comment, but before voting against the moratorium, Klanderud told the other members of council she didn’t believe the current pace of development constituted an emergency.”I can’t support what I consider to be too Draconian at this particular time,” she told the council April 24. “I think we have some serious work to do, but I don’t think this is the way to go about it.”The council’s next regular meeting will be at 5 p.m. Monday, June 12.Abigail Eagye’s e-mail address is

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