Lawsuit delays construction on Boomerang housing in Aspen
ASPEN – It could be quite some time before affordable-housing units at the former Boomerang Lodge property in west Aspen are ever built.And then there’s the arguably not-so-slim chance that they may never be realized.Because opponents of the 40-unit project, which the City Council approved in July, have filed a lawsuit challenging the council’s decision, a potential 2012 construction start appears to be in limbo.Critics of the project, led by the site’s West Hopkins Avenue neighbor Steve Goldenberg, have employed delay tactics for most of the last year in a concerted effort to quash it. The lengthy approval process involved nine public hearings of the City Council and Planning & Zoning Commission during the first half of 2011 as the project was criticized, whittled down, challenged on technical grounds alleging a lack of due process on parking issues, and trimmed down some more.The continual battle has cost developer Steve Stunda and his East Coast partners much time and money, he said in an interview last week.”In an ideal world, we’d be under way,” Stunda said. “The appeal hindered and delayed the moving forward of what I feel is a beneficial community project. “It can’t move forward with a lawsuit hanging over it. No lenders have signed on for pre-construction financing because they don’t know if the appeal of the council action will be upheld and if [the approval process] will have to run its course again,” he said. “I wish I could say with 100 percent assuredness that this frivolous suit would be dismissed out of hand as soon as it goes to the judge, but I can’t tell you that.”As of now, the lawsuit against the City Council, the city of Aspen and the development group, Aspen FSP-ABR LLC, is the subject of legal responses, information discoveries and the like between both sides – a process not expected to run its course until March or April.At some point following the attorney filings, Pitkin County District Judge Gail Nichols will make a determination in the matter. She could rule that the action against the city and the developer has no merit, which could result in an appeal from the plaintiff. Or she could find favor with the plaintiff, which could kick the project back to the council for further review and another lengthy approval process. Much depends on Nichols’ ruling and the opponents’ level of commitment in their war on the Boomerang proposal.”My hope is this case will be heard expeditiously by the judge and that during the building season a positive response will come back to our case, and that will allow me then to move forward with the project,” Stunda said.”I thought the process worked and everybody had a chance to make comments,” he said. “I thought the project was consistently modified and compromised to accommodate concerns of the neighbors. I really was quite surprised when the appeal was filed.”During the meetings and hearings on the proposal, neighbors sometimes turned out en masse to complain about a host of issues related to the plans, including what they see as a lack of adequate parking to support the facility, a change to the neighborhood’s quiet character and a building complex that’s too large. Proponents touted the addition of much-needed units to the Aspen/Pitkin County Housing Authority inventory, an opportunity for employers to purchase housing it can lease to highly valued employees and a plan to turn the former lodge property into something fresh, modern and useful.Supporters didn’t attack the critics’ motives directly, but a common sentiment expressed behind the scenes was that the opponents were “NIMBYs” – an acronym for “not in my backyard” that is somewhat derisively ascribed to residents who don’t want something built near them for various reasons, including the overriding fear that their property values would suffer.Council members gained concessions from the developer that included breaking up the initially monolithic building plan, adding more green space and ensuring that a few of the units would be “car free” – meaning that the owner wouldn’t be allowed to maintain a vehicle within the city limits or park it near the complex. The lawsuit, filed in late August, is technically an appeal of the council’s decision. It also seeks to recoup legal fees in connection with the process. Plaintiffs are neighbors Daniel Verner, Staspen LLP (represented by Goldenberg) and the Christiana Aspen Condominium Association.The council’s decision to upzone the property, which lies along West Hopkins between Fourth and Fifth streets, is at the heart of the matter. The change in zoning doesn’t conform to the intent of the city’s 2000 Aspen Area Community Plan, according to the suit. That plan, however, has been revised, and the council is expected to take up its approval process this month.”The rezoning of the property granted by the ordinance is not compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics,” the suit states.The lawsuit also mentions the controversy surrounding Section 7, a late addition to the ordinance written on the day of the final public hearing on the Boomerang issue. The section detailed rules for a pre-sales effort that would have allowed local employers to purchase some of the units and then rent or sell them to workers in need of housing.Confusion over the addition to the ordinance led critics to ask for another delay in the process. They charged that the new section meant a lack of due process, given that they hadn’t time to study its details. The issue seemingly was resolved when Stunda and city staff scrapped the section, but it’s mentioned in the lawsuit in detail.Construction is estimated to cost about $15 million, Stunda has said. After the project was approved in July, Stunda said he was working toward a May start, with completion a year email@example.com
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