Judge dismisses lawsuit over Mill Street Plaza in Aspen, says claims ‘unripe’
A federal judge’s dismissal of Mark Hunt’s lawsuit over municipal zoning regulations doesn’t spell the end of the developer’s land-use dispute with the city of Aspen.
Chief U.S. District Court Judge Philip Brimmer on March 10 threw out the suit filed by the Hunt-controlled North Mill Street LLC, which owns the two-building Mill Street Plaza across from Clark’s Market.
Yet Brimmer’s dismissal of the case and its five claims was made “without prejudice,” which means the LLC can renew the litigation if its updated claims meet certain legal criteria.
Development rights at the Mill Street Plaza are at the center of the dispute.
The complex houses a number of locally serving retailers — an athletics consignment store, a coin-operated laundromat and an auto-service shop, for instance — that operate on the property that is zoned service-commercial-industrial, or SCI.
Hunt bought the center for $15 million in June 2018 and wants to build free-market residential there, while keeping a retail element, as well.
The complex comprises the 465 N. Mill St. property, a 20,000-square-foot building that sits on 49,901 square feet of land; and the property at 557 N. Mill St., an 8,000-square-foot building on 6,301 square feet of land, according to property records.
Hunt sued the city in January 2019, claiming Ordinance 29 — one of six new ordinances City Council adopted from 2016-17 — threatened the building’s potential for future redevelopment because it is “economically unviable.”
Hunt has been unable to rezone the property for his redevelopment at both the Planning & Zoning and City Council levels.
Yet the city has said he hasn’t exhausted the process because he also didn’t seek variances to approve the project through a planned development. The city’s attorneys previously argued in a court pleading that “whether the city has altogether prevented (North Mill Street LLC) from such free market development is still an open question.”
Hunt’s attorneys have argued it would be “futile” to bring a planned development of the Mill Street Commercial Center to the city because it would be rejected.
Brimmer agreed with the city’s motion to dismiss the suit, which it filed in July 2019, saying the LLC’s claims were “unripe”; in other words, Hunt litigated prematurely because the project he is suing over has yet to exhaust’s the city’s land-use approval process.
Brimmer noted “nowhere in its complaint does plaintiff indicate that it has submitted a specific plan for Mill Street Plaza to defendants that would allow for the pursuit of a compromise. The failure of plaintiff’s rezoning application is insufficient to show that defendants have reached a final decision as to the permitted uses of the Mill Street Plaza.”
North Mill Street LLC, meanwhile, on April 1 filed a notice to challenge Brimmer’s ruling in the Court of Appeals for the 10th Circuit. The LLC’s law firm, Garfield & Hecht PC of Aspen, has yet to file an opening brief. Chris Bryan of the firm declined comment when reached Tuesday.
The city is getting its legal representation in the matter from Berg Hill Greenleaf & Ruscitti, which was not available for immediate comment Tuesday.
The LLC’s five claims against the city include seeking a declaratory judgment that Ordinance 29 is invalid and unenforceable, that the LLC’s due process was violated, and that the city devalued the property’s values because of its redevelopment restrictions.
The Aspen Ambulance District seeks a property-tax increase to keep up its level of service, and the Pitkin County commissioners showed initial willingness this week to put the question on the Nov. 8 ballot.
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