Litigation clouds Cooper housing project in Aspen
Defense attorneys will attempt to consolidate two lawsuits the Aspen government faces over a proposed worker housing project on East Cooper Avenue that has drawn opposition from neighbors and support from two city planners, among others.
Ninth Judicial District Judge Denise Lynch is presiding over Cooper Avenue Condominiums Association Inc.’s complaint against the city, while the nonprofit Save Aspen’s lawsuit is pending before Judge Chris Seldin.
“That matter has been assigned to Judge Lynch, but the parties have been discussing consolidation of these two cases. The City will be seeking consolidation of these case in short order,” wrote attorney Josh Marks in a June 4 filing for the city in its defense in the Save Aspen lawsuit. (The Aspen Times incorrectly reported Wednesday that Seldin is presiding over both lawsuits.)
As of 2:30 p.m. Thursday, there were no new filings in the case by the city, according to a court clerk.
The Aspen Historic Preservation Commission was scheduled Wednesday to decide on the application from 1020 Cooper LLC, which is controlled by developer Jim DeFrancia. Citing the current litigation over the matter, however, the development team asked for and received the HPC’s blessing to continue the hearing until Aug. 25.
It will mark the second time the HPC will have reviewed the application; the same board rejected it Feb. 17. But the Aspen City Council, at an April 19 meeting, determined the volunteer board’s decision was tainted by bias some of its members displayed. As a result, the council remanded the application to the HPC.
The plaintiffs and foes of the project, however, contend the City Council abused its discretion and also ignored “abundant information” supporting the HPC’s denial.
A recent ruling by Seldin on a related matter indicated he did not appear convinced the council’s decision to remand the application should endure a judge’s scrutiny.
The judge gave Save Aspen until June 26 to articulate in writing “why this matter should not be dismissed,” according to a June 5-dated ruling.
The matter at hand is whether the plaintiff Save Aspen can carry out a complaint against the city under Colorado’s Rule 106, which allows plaintiffs to seek judicial review of whether a local government abused its discretion during its decision-making process concerning a land use application.
Save Aspen and the condo association are trying to achieve that with their lawsuits, both of which were filed May 14 in Pitkin County District Court.
Their complaints ask the judges to review the Aspen City Council’s decision, with their desired outcome that the courts vacate and void the council’s resolution to remand the application, and reinstate the HPC’s denial of its conceptual review. Conceptual review concerns the application’s site planning, mass, scale, proportions, parking, height and other elements. The next step, final review, gets to the grittier architectural aspects like window sizes and placement, materials and roofscape, among other features.
That the current conceptual-review process is in limbo — as the application is again pending before the HPC — presents hurdles for Save Aspen’s attempt to have a judge review the City Council’s decision to remand the application, Seldin’s order suggested. The judge said he was not aware of any Colorado case law that pertains to Rule 106 complaints regarding a body’s decision to remand a matter to an inferior agency, like the City Council did in April.
However, Seldin said he found a “well-established line of authority from other jurisdictions” barring judicial review in similar instances. The judge’s order cited rulings from such court circuits in New Mexico, South Carolina and Washington that determining that a board’s remand orders are “not subject to review because the agency has not finalized its decision.”
Seldin did not discount that Save Aspen might be able to show other case law in their favor.
“If so, Plaintiff deserves a chance to cite it,” his ruling said.
Critics of the proposal continue to fault the project for many reasons, and also took issue with recommendations for the application’s approval from city planner Kevin Rayes and Planning Director Amy Simon.
Ahead of both the HPC’s Feb. 17 hearing as well as the one scheduled Wednesday, the planners recommended approval of the application in a detailed memo explaining why. They noted the project meets design criteria and advances the Aspen community’s goals to house its workers.
Yet in a blistering letter to the HPC, resident Tiffany Smith, who is opposed to the project, argued that virtually nothing has changed about the proposal ever since the HPC denied it.
“Regarding the ‘updated’ 1020 E. Cooper plan for the June 9 meeting, interestingly, despite all the public comment, your commission’s deliberations, and even City Council’s discussions, it isn’t actually updated at all,“ part of his letter said. ”It’s exactly the same as (the plan brought to the HPC in February). Same height, same mass, same size, same placement on the lot — same everything.
“The developers didn’t listen to anyone at all. They kept their plans and simply changed the narrative of the application to include bits of the Aspen Area Community Plan as a way of swaying your attention away from the importance of your job — historic preservation, and towards helping the developers get as many bedrooms as possible in order for them to get the biggest payout possible.“
The letter went on to suggest that DeFrancia, as one of the developers of the pending Gorsuch Haus project on the western side of Aspen Mountain, is trying to satisfy worker-housing requirements by building the complex on East Cooper rather than onsite.
“For them, this is about money, which is understandable for developers — and possibly mitigating their own affordable housing needs for Gorsuch Haus,” the letter said. “It seems they might be in a bit of a pickle there. However, that’s not your problem.”
The five-unit project proposed for 1020 E. Cooper Ave. includes converting the old miner’s cabin into separate two-bedroom and three-bedroom apartment units, as well as building a structure behind the cabin with two two-bedroom apartments and one three-bedroom apartment. The proposal also calls for four covered parking spaces facing the alley.
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Court action attempting to derail a Cooper Avenue worker-housing project faces skepticism from one judge who recently suggested the lawsuit is on shaky legal ground.