Business Monday: Motion: Residential not off the table at North Mill
After more than two years, as well as two court venues and several amended complaints, the city of Aspen is seeking the dismissal of a lawsuit alleging one of its land-use ordinances is unconstitutional.
The city’s motion, filed July 12 in Denver federal court by the Boulder firm Berg Hill Greenleaf & Ruscitti LLP, calls for the suit’s dismissal on the grounds that it was filed prematurely.
City government and City Council are defendants in a lawsuit concerning development rights at the two-building Mill Street Commercial Center, which is located next to the Aspen post office and across the street from the Clark’s Market complex.
In January, developer Mark Hunt’s North Mill Street LLC sued the city government and council, in both state district court in Pitkin County and federal court in Denver, claiming Ordinance 29 has threatened the owner’s ability for future redevelopment because it is “economically unviable.”
Ordinance 29 was one of six new ordinances City Council adopted from 2016-17. Hunt’s attorneys at the Aspen firm Garfield & Hecht PC claim it unfairly targets the Mill Street Commercial Center by not allowing residential development there.
Both sides agreed in June to drop the case in Pitkin County District Court, placing the legal dispute now solely in federal court.
“We agreed the ordinance that’s being challenged was a legislative act and not a quasi-judicial act, and therefore the claims can be heard in federal court,” said Chris Bryan, one of the attorney’s representing North Mill Street LLC.
The city’s motion to dismiss says that no determination has been made “if free market residential uses are permissible” at Mill Street Commercial Center because it owners have not pursued a planned development review, “a procedure meant to encourage flexibility and innovation in land development.”
In other words, while Ordinance 29 precludes residential development in the city’s service-commercial-industrial district, the city’s motion states that “whether the city has altogether prevented (North Mill Street LLC) from such free market development is still an open question.”
The lawsuit should be dismissed, the motion argues, because the claims “unripe” for litigation.
Efforts to have the property rezoned haven’t worked so far, Bryan said. Planning and Zoning denied an application to rezone the property, and in April, the City Council rejected a similar proposal, according to Bryan.
The Mill Street center’s tenants are locally serving business — including an athletics consignment store, a coin-operated laundromat and an auto-service shop, for instance — that have been operating in limbo for more than a decade because of the changing ownership’s plans to redevelop the property.
Both buildings are zoned service-commercial-industrial, more commonly referred to as SCI. Hunt bought them in June 2018, paying $15 million for both the 465 N. Mill St. property, a 20,000-square-foot building that sits on 49,901 square feet of land, and the 557 N. Mill St. address, an 8,000-square-foot building on 6,301 square feet of land, according to property records.
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