Marolt Park lawsuit goes to federal court

A local group’s claim that construction of the Maroon Creek roundabout violated the Aspen city charter will be heard by a federal court judge in Denver next month.

Chief Justice Lewis T. Babcock is scheduled to hear testimony from local officials and members of the Friends of Marolt Park on Oct. 10 in 10th District Federal Court.

The trial will focus on just one claim made in a broader lawsuit filed by the Friends in May 1999. The group of open space advocates claims the staging area used by the Colorado Department of Transportation during construction of the roundabout was a violation of the city charter because the use was not approved by voters.

A charter provision requires voter approval for any change in use of dedicated open space.

The Friends of Marolt Park sued the city, Pitkin County, CDOT and the U.S. Department of Transportation over the planned Entrance to Aspen, claiming the plan to reroute Highway 82 across open space west of town violates federal and local laws governing the use of open space.

The group’s objection centers on the plan to build dedicated busways in addition to two lanes for vehicle traffic instead of the light rail line and two-lane parkway authorized by city voters across the Marolt-Thomas open space. The bus lanes have been proposed as an interim mass transit alternative until a rail line replaces them.

The Friends last year sought to halt construction of the roundabout, which was the first step in construction of the Entrance to Aspen, but a judge allowed the project to proceed.

The group’s claim that the impact of the bus lanes violates federal environmental laws is still pending against the U.S. Transportation Department. That same claim against the city, county and CDOT was dismissed.

Judge Babcock is reviewing CDOT’s record of decision on the Entrance to Aspen regarding the claim against the U.S. Department of Transportation. He has not yet issued a ruling.

Next month’s hearing, however, will focus solely on the claim against the city – that the roundabout staging area violated the city charter.

The city’s defense is twofold, said city attorney John Worcester. First, when voters in 1996 authorized use of the open space for a two-lane parkway and light rail line, they also authorized “temporary easements,” Worcester said.

“Anyone who drives up and down Highway 82 knows you need a little more land to build a highway. It wasn’t a violation of the city charter,” he said.

The roundabout was built to accommodate the rerouting of the highway across the open space, along with the busway, which can be converted to light rail use, Worcester said. Specific mention of the area used to stage construction, which has since been converted to an open space wetlands area, did not need to be spelled out in the ballot question, he said.

“Our ballot questions have never been so detailed as to mention all these incidental impacts,” he said.

The city’s second defense, Worcester said, is that the city planned to construct the wetlands there anyway. Through a $39,000 change order on the roundabout construction contract, the city obtained the necessary earth work for the wetlands at the staging site. That work would have cost a great deal more had it been done independently, according to Worcester.

“For a relatively small amount of money . the city was able to accomplish roughly $200,000 worth of work,” he said.

Now that the staging area has been converted back to open space, in the form of wetlands, Worcester said he isn’t sure what the judge could do, even if the Friends group prevails in its claim.

“Even if we lose, I don’t know what the judge would order . that we replace it? We’ve already done that,” Worcester said.

The purpose of the claim, said Denver attorney Lori Potter, representing the Friends, is to prevent the city from using dedicated open space for highway construction in the future.

“If the city doesn’t believe it was a violation the first time, the Friends of Marolt Park believe the city will use open space for construction staging again,” she said.

The city’s witness list for the hearing includes: Mayor Rachel Richards; assistant city manager Randy Ready; parks director Jeff Woods; Stan Berryman, Pitkin County Public Works director; and Ralph Trapani, Highway 82 project engineer for CDOT.

On the witness list for the Friends of Marolt Park are: group officers Yasmine dePagter, Dennis Vaughn and Ed Zasacky; plus Bill Stirling and expert witness Peter Swift. Swift, an engineer, designed the Friends’ proposed alternative to the Entrance to Aspen. His proposal preserves the existing highway route into town but calls for a roundabout at Cemetery Lane and modified roundabouts at the two “s-curves” where the highway becomes Main Street.

The open space at the center of the dispute is the 74-acre triangular field between the Highway 82 roundabout and Castle Creek, across the highway from the city golf course.

Local and state officials have slated the property, known as the Marolt-Thomas open space, for new lanes in the final segment of the Highway 82 improvement project.

CDOT spent much of the last decade converting the state highway from a two-lane road into a four-lane thoroughfare. In 1996, voters in Aspen agreed that the parcel should be used to straighten out the road and create a two-lane parkway with light rail tracks running alongside.

As part of the agreement between the city and CDOT, the land that contains the current alignment of Highway 82 would be converted to open space, and at least part of the new highway/light rail system would be buried in a tunnel.