Judge lifts moratorium, cites open meetings law violation

A judge’s ruling issued Friday temporarily lifted an emergency ordinance the Aspen City Council adopted Dec. 8 that temporarily banned residential building activity and new short-term vacation permits within city limits.

Ninth Judicial District Judge Anne Norrdin’s order approved the Aspen Board of Realtors’ motion that had sought a preliminary injunction to lift Ordinance 27 until a decision is rendered in its pending lawsuit against the city seeking a permanent injunction and a declaratory judgment making the ordinance unenforceable. While the judge found the city violated the Open Meetings Law, she ruled against the Board of Realtors’ claim that the city violated due process provisions under the 14th Amendment of the U.S. Constitution.

The temporary injunction took effect immediately; however, it does not affect a separate city ordinance (No. 26) also banning new short-term rental licenses of 30 days or fewer, which the council adopted Dec. 7. Under Ordinance 26, the city is not issuing new STR licenses for 2022, and 2021 licenses that were extended into 2022 expire Sept. 30. City leaders have said the moratorium was passed to give them adequate time to examine the land use code in order to make the changes necessary to address the community impacts of residential development and short-term rentals.

“The City correctly notes that an injunction against enforcement of Ordinance 27 does nothing to impact enforcement of Ordinance 26, which also addresses STRs,” the ruling said. “An injunction likewise would not prohibit the City from engaging in future lawmaking, so long as it is in compliance with the OML (Open Meetings Law) and other applicable law. These factors do not change the fact that the OML prescribes governmental decision-making and requires the ‘formation’ of public policy to be made in the sunshine.”

The city responded to the ruling over the weekend when it publicly noticed a special meeting for 4 p.m. Monday, which is when City Council will entertain a new emergency ordinance imposing a moratorium on new land-use applications seeking development or approval, and certain building permits for residential uses. The second meeting is scheduled Tuesday.

“Although we are disappointed in the issuance of a preliminary injunction and disagree with the Court’s conclusions that led to that ruling, we respect the decision and agree with the Judge’s determinations on several very important issues,” City Attorney Jim True said in a statement. “Given the rulings in favor of the City and the fact that a pause in development is so necessary to the process of considering changes to the land use code, it is important to bring the moratorium back for immediate consideration.”

As for Ordinance 27, the City Council used its emergency powers to adopt the legislation in just two days, similar to what it might do this week. Norrdin’s ruling, however, deemed Ordinance 27 unenforceable because the city did not notify the public about the double-moratorium at least 24 hours prior to the meeting, which is required under the Colorado Open Meetings Law.

“I hope the city of Aspen does not try to do this in the future,” said attorney Chris Bryan of Garfield & Hecht PC, which has been legally challenging the moratoriums. “It’s just not right. Don’t spring surprises and be open and don’t try to do it in the cover of the night.”

The council unanimously approved Ordinance 27 at a meeting held Dec. 8. One day earlier at a regular City Council meeting, on Dec. 7, city officials presented the ordinance to City Council members and the attending public after the meeting had started. The ordinance also had not been included on the meeting agenda that the city publicly posted Dec. 3.

Judge Norrdin pointed that out in her ruling.

“Here, Council provided no pre-meeting notice to the public that Ordinance 27 would be considered at the meeting on December 7,” according to the ruling. “The agenda posted in advance of the December 7, 2021, meeting included no subject matter to indicate that such an Ordinance would be considered at the meeting. An ordinary citizen of Aspen did not know and had no way of knowing before the commencement of the Council’s meeting on December 7 that Council would be formally considering the Ordinance and its moratorium.”

Bryan filed the motion for preliminary injunction on Jan. 11, arguing that people working in the real estate industry were unfairly targeted by an ordinance that was not properly noticed and was approved quickly via disingenuous emergency legislation.

The city had argued during a two-day hearing on the preliminary injunction, held Feb. 23-24 in Pitkin County District Court in Aspen, that the ordinance had not been written and edited in time to post it on the agenda or add it to the city website in advance of the meeting. It also contended that the council’s declaration of an emergency — that residential development and the proliferation of STRs were negatively impacting the climate because of their respective construction activity and demands on services — gave it more leeway with public-noticing requirements.

Additionally, the city said adopting an ordinance through the regular process of a first reading and two weeks later at a public hearing/final approval, while enacting it 30 days after final approval, would effectively overburden staff with an onslaught of land-use applications, certain building permits and STR license applications.

The judge disagreed with the city’s explanation.

“The desire to avoid a rush of development applications was not … an emergency justifying a lack of pre-meeting notice,” the ruling said. “At the same time, such motivations do not rise to the level of bad faith or fraud. Council and the City was not dishonest or deceptive about its desire to avoid a rush of applications …“

The public also had a right to know about changes to the city’s land-use code being proposed to the City Council, Norrdin concluded.

“The formation of amendments to the City’s land use code is clearly public business,” the ruling said. “Even where the issues addressed may be urgent and pressing, the public is entitled to reasonable notice of meetings where a formal action such as the Ordinance will be considered. The notice provided prior to December 7 was not reasonable or fair and is at least facially violative of the OML (Open Meetings Law).”

The ruling did not address the merits of the city’s emergency declaration because Norrdin found no evidence of fraud or bad faith on the city’s part, which is a prerequisite for courts to rule on the validity of government-declared emergency legislation.

“In the absence of a showing of bad faith or fraud, this court is without jurisdiction to weigh in on the question of whether Ordinance 27 was truly necessary for the preservation of the public peace, health, or safety,” the ruling said.

Even so, the ruling noted the City Council’s climate emergency wasn’t one that rose to the level of bypassing open meetings law requirements and quickly passing legislation.

“Other emergencies such as an active fire, a pandemic, and a chlorine spill were discussed at the hearing and are circumstances where it is conceivable and reasonable that a municipality might need to act without first providing public notice and subsequently provide notice through a second meeting, for example,” Norrdin wrote. “The circumstances leading up to the consideration of Ordinance 27 at a meeting without notice, however, were of a different character …”

Norrdin supported her ruling by citing evidence showing the city had been contemplating a moratorium on new STR licenses and residential development as far back as Nov. 15, which is when Mayor Torre, Councilman Ward Hauenstein, and Community Development Director Phillip Supino privately discussed the idea. Hauenstein also had been talking about the idea one-on-one with council members earlier in 2021, while on Nov. 16 the council held a work session on STRs.

More evidence showing the city was working on a moratorium surfaced Nov. 19, when junior city staff inadvertently refused to accept an STR application from real estate brokers Ashley Chod and Alexandra George, who are respectively the former chairwoman and current chairwoman of the plaintiff Aspen Board of Realtors. The staffer cited the moratorium for the denial, even though the moratorium had not been officially considered or approved by the council.