How 2012 shaped the city of Aspen’s moratorium strategy |

How 2012 shaped the city of Aspen’s moratorium strategy

Ordinance 7 at a glance

Ordinance 7, an emergency moratorium, is a temporary prohibition on filing of land-use applications in the city’s commercial, service-commercial-industrial, neighborhood commercial and mixed-zone districts. The moratorium, set to expire Feb. 28, 2017, means there can be no expansion of net leasable or livable space in the targeted districts. The legislation, which took effect at 5 p.m. Tuesday, does not apply to the city’s residential or lodging districts.

Before the City Council passed an emergency ordinance Tuesday halting development in Aspen’s commercial districts, it didn’t want to repeat what happened in 2012.

At a City Council meeting on Feb. 27 of that year, then-Councilman Torre floated an emergency ordinance aimed at downzoning Aspen’s Commercial Core District and the Commercial District on the west side of town. It garnered three votes, not enough for the required four to pass emergency legislation that would have gone to a second and final reading the next day — and take effect immediately upon its passing.

Then-Councilmen Derek Johnson and Adam Frisch, who is on the current council, voted against it. Then-Mayor Mick Ireland, Torre and Steve Skadron, who is now mayor, voted for it.

Even so, the ordinance, no longer an emergency version, passed on second reading and took effect in early May 2012. Its intentions, however, fell seemingly short. That’s because it gave developers and planners enough time to file a slew of land-use applications under the less rigid rules with the Community Development Department.

“It was a logical response to the discussions that were had in public about code changes and the lessons of 2012.”Jim TrueCity attorney

“This emergency ordinance was introduced when we didn’t have the votes,” Ireland said. “What happened was that Torre, without talking to me, introduced this as an emergency ordinance when he didn’t have the votes.”

At Tuesday’s special meeting, when Ordinance 7 was passed, Community Development Director Jessica Garrow reflected on how the 2012 ordinance backfired.

“In 2012, we had at least 10 (land-use applications) in a month” after the ordinace passed, she said. “And typically we see two (a month), so it was a rush of applications.”

Torre didn’t see it that way, saying that with the way the development climate was at the time, those applications likely would have been filed with or without the ordinance, which amended the land-use code to lower building heights from 42 feet in the Commercial Core District and 40 feet in the Commercial District to 28.

“I don’t necessarily think we saw an inordinate flood of applications because (the emergency ordinance) didn’t pass,” he said. “I think you would have seen the same volume.”

Torre said he was doing what he felt was right at the time, “but we just weren’t able to win over one other vote.”

A different outcome

This time around, members of the City Council and city staff began discussing an emergency moratorium in earnest outside of the public eye about two weeks ago. By doing so, they could keep developers in the dark about their intentions and orchestrate a well-planned legislative act in which they were confident they had the required minimum of four votes to pass it.

They also had to be careful about not violating Colorado’s Open Meetings Law that requires a public notice when at least three council members are in the same place to conduct city business.

“The staff met with individual council members at times,” City Attorney Jim True said. “Sometimes it was with me, or Jessica (Garrow) or Jennifer (Phelan, the deputy director of Community Development). We were very, very careful not to have any communication that would be subject to an Open Meetings Law violation. We were cognizant of the rules and we did not violate them.”

Email communication about the emergency ordinance was limited, True said. “There were no three-person (among the council members) emails,” he said.

The idea of the measure first publicly surfaced at a City Council work session in October. That’s when Frisch rolled out the possibility for a temporary moratorium so the council and city staff members could have adequate time to match the land-use code with Aspen Area Community Plan, a summary of residents’ vision for the town. Oftentimes the land-use code and Community Plan, which is not legally binding, are at odds with each other. One of the council’s chief goals for this year is to align the two. Skadron said he didn’t expect the idea to be hatched by Frisch at the fall meeting.

“I said, ‘Seriously, coming from you?’” Skadron said. “Then, Adam and I started to talk more and more about it.”

Frisch, at Tuesday’s meeting, explained his shift in philosophy about emergency measures. He cited comments he made in February 2012 when he voted against the emergency ordinance: “My initial comment was ‘Aspen does not have an emergency unless one, the gondola falls over or two, I see tanks rolling up Highway 82.’”

But in 2012, Frisch said he was only given a few hours to digest the emergency ordinance and its implications on downtown development.

On March 8, City Manager Steve Barwick announced the hiring of Garrow, who had been a long-range planner for the city. She replaced Chris Bendon as development director, who resigned at the end of the year to start a private planning firm.

It was around that time that more serious and less informal moratorium discussions began among city leaders and elected officials.

“I can’t necessarily say there was one person driving it,” True said. “It was a logical response to the discussions that were had in public about code changes and the lessons of 2012.”

The public didn’t learn about the proposed freeze on land-use applications until Monday’s regular City Council meeting, when Barwick announced the first hearing of Ordinance 7 that night. Some 24 hours later, the council passed it. It took effect immediately. “If we’re going to be effective in our community as legislators, we’ve got to learn from that experience, and that it was a failure,” Councilman Art Daily said at Tuesday’s special meeting, noting that “I don’t think our community can risk a repeat of what took place in 2012.”

This time around, the council had more than enough votes: It passed, 5-0.

Said Torre: “I think the most important thing here is, there’s been a lot of us going back years and years, who have been wanting and calling for land-use code changes. I think it’s long overdue, and it helps to have a moment to decide what are the appropriate changes to make, and I support that.”

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