Cooper Street building owners fire off legal warning to council
ASPEN If the City Council on Tuesday rejects plans to redevelop and subdivide Cooper Street Pier, it could find itself embroiled in a lawsuit.The property owners attorney, David Lenyo of Garfield and Hecht, last week filed a 28-page legal brief, laying out several arguments as to why his clients have a right to redevelop one of Aspens oldest eating and drinking establishments.Whether the memorandum of law is a threat or an attempt to address certain legal issues stemming from council members comments at a Sept. 10 review of the project is unclear. Lenyo didnt return phone calls seeking comment.But what is clear is that the property owners are strategizing their next move should the council kill their proposal, which is to redevelop the building into four stories with mixed-use commercial space and a free-market condo. Its unknown whether the commercial space will be replaced with a restaurant and bar, or a high-end retail store.I cant tell you [what types of businesses will go into the building], said Joshua Saslove, one of the buildings owners. He added that even with approval this year, it will take months to complete the architectural design and prepare the building for development. That means the bar and restaurant will be open for the winter season and perhaps longer.The legal document reads like a textbook on the parameters of municipal government, routinely pointing out that City Council has no authority, jurisdiction or legal basis to deny the Cooper Street Pier project. Lenyo cites several case law examples to make his arguments.Jim True, special counsel for City Hall, declined to comment.I havent read [the legal brief] in any detail, and I cant comment, he said. He likely will advise the City Council on the merits of the document at the public hearing Tuesday.At least two council members are against the project Jack Johnson and Steve Skadron, who as a former Planning and Zoning commissioner voted to deny the redevelopment. He has recused himself from reviewing the project as a city councilman. The legal brief appears to be in response mainly to criticisms Johnson vocalized in the Sept. 10 public hearing. He said he would vote against it because, while the project meets all land use code requirements, it doesnt give back to the community.In particular, he objected that the proposed redevelopment enjoyed the benefits of the land use regulations which allow construction of a higher building but complained that the proposed redevelopment threatened existing uses, which he described as a dive bar, an arcade and an inexpensive restaurant, Lenyo wrote.Lenyo argues that the buildings owners have a legal right to redevelop despite whether the project gives back to the community or not.The city does not have authority to deny a land-use application that complieswith all the objective land-use regulations, Lenyo wrote. Council comments recognized that the proposed Cooper Street redevelopment is permitted under the land-use code.The project has won the approval of the P&Z, the Historic Preservation Commission and city staff. The proposal already has secured approval to demolish the existing three-story building and develop a four-story commercial and residential building, comprising 3,827 square feet of net leasable space divided between the basement, first and second floors. A 2,008-square-foot free-market condo will take the third and fourth floors.The application before the City Council on Tuesday is to subdivide the property so that legal interests in the building can be separated. Because its a request for subdivision approval, the City Council is limited on its review of the project and cant legally deny it on its merits related to land use.Lenyo points out that the building is in the commercial core zone district and a large number of existing properties around Cooper Street Pier already have been subdivided into separate legal interests.There is no evidence demonstrating that the proposed subdivision of the Cooper Street building would be inconsistent with the character of surrounding properties, Lenyo wrote. Instead, the evidence overwhelmingly demonstrates that the proposed subdivision is consistent with surrounding properties.Further, city staff has recommended that council should approve the application because it meets the citys subdivision requirements. The development also decreases the amount of existing square footage and doesnt increase the number of employees, Lenyo argues.A good portion of the legal brief suggests that just because that some council members dont believe the project meets the objectives of the Aspen Area Community Plan doesnt mean they can deny it a subdivision request does not fall under land-use code regulations. Because the Aspen Area Community Plan is advisory only, it cannot be the basis for denying any application otherwise meeting the criteria required for subdivision approval, Lenyo wrote.As Mayor Mick Ireland pointed out at the Sept. 10 meeting, there are weaknesses in the land-use code and not in the particular application.Mayor Ireland stated that the land use code permits the Cooper Street redevelopment and that the land use code does not protect against the loss of the existing businesses like the Cooper Street Pier bar and restaurant, Lenyo wrote.Johnson said in September that not only is the redevelopment inconsistent with the Aspen Area Community Plan, infill regulations and a public-private partnership between the developer and the city, its also inconsistent with the vitality and a diverse retail environment. He also said approval of the project would negatively affect future redevelopment in the neighborhood by encouraging other developers to build higher buildings. Johnson added that the project would burden existing infrastructure because the owners arent constructing deed-restricted affordable housing on the site for existing or future employees.Lenyo argues that the development meets height restrictions and exceeds affordable housing requirements. The developers have agreed to a cash-in-lieu payment of $3,915,67 that will go toward the citys housing fund.Any purported denial by the City Council of the subdivision request due to an alleged failure to comply with the mitigation requirements would be an abuse of discretion and in excess of the City Councils jurisdiction, Lenyo warned.The property owners also have agreed to a $305,795.22 cash-in-lieu payment as part of the citys multifamily replacement program. The P&Z and the Aspen-Pitkin County Housing Authority have approved both payments.Councilman J.E. DeVilbiss made a motion on Sept. 10 to approve the application, and Dwayne Romero seconded it. The public hearing was continued to Oct. 9. The meeting will begin at 5 p.m. in the basement of City Hall.Carolyn Sackariasons e-mail address is firstname.lastname@example.org
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