Neighbors, nonprofit take Aspen to court over Cooper housing proposal
A worker-housing project proposed for an east Aspen neighborhood now has legal hurdles to clear in addition to governmental ones.
An Aspen condominium association and a nonprofit organization filed separate complaints late Friday against the city of Aspen over City Council’s 3-2 decision April 19 to remand an application for a five-unit housing complex back to the Historic Preservation Commission, which originally denied the proposal.
Using attorneys from different Aspen law firms, the plaintiffs — Cooper Avenue Victorian Condominium Association Inc. and the group Save Aspen — introduced the complaints in Pitkin County District Court. Both lawsuits were filed under Colorado’s Rule 106, which allows citizens to appeal to the courts a governmental body’s decision on land use and development applications.
Each complaint asks the court to either reverse the council’s decision, formally known as a resolution, or declare it as void and unenforceable. The condo association’s complaint also asks the court to vacate the council’s decision and reinstate the HPC’s denial.
“The gravamen of our complaint is the HPC did its job right,” said attorney Chris Bryan, who with Mary Grieger of the Garfield & Hecht law firm filed suit on behalf of the Cooper Avenue condo association. “The City Council abused its discretion, and therefore, it has to be reviewed.”
When City Council voted to remand the application to HPC, council also found the HPC abused its discretion when it voted 3-1 on Feb. 17 to deny the proposal.
Prior to the vote at the Feb. 17 meeting, two HPC members remarked how increased neighborhood density with as many as 26 new residents would potentially create quality-of-life issues for the area. Those type of comments showed a bias toward the project, eyed for 1020 E. Cooper Ave., without sticking to the criteria to approve or deny a proposal, City Council determined.
The miner’s cabin once owned by the late Aspen Times columnist Su Lum — whose name has been evoked as political fire for both opponents and proponents of the project — is a historically designated structure. That’s why the HPC has the authority to make or break the proposal but is beholden to the city’s land use code and historic preservation design guidelines.
“I just want to clean this thing up, get it back there, get them to treat the project properly, the way it should be under the land use rules and the HPC guidelines,” Councilwoman Ann Mullins said when council voted to remand the application to HPC. “In my mind, they’ve made a mistake, and I’m sending it back to them to correct that mistake.”
City Council’s decision meant that developers Jim DeFrancia and Jean Coulter, who had appealed the HPC vote, will go before the board again for approval.
The proposal 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.
Ray Stover, who lives with his wife on Cooper Avenue, is part of the Save Aspen group litigating the matter. He said Monday opponents of the project are not against affordable housing but they also don’t want to see development that betrays Aspen’s “look and feel.”
Stover said the city should put more comprehensive planning into the construction of affordable housing intended to mitigate for free-market and commercial developments elsewhere.
“We plop those things down and they are destroying the magic in this town,” he said. “Everybody loses, except the developers.”
The motto for Save Aspen — created March 25, according to the secretary of state’s office — takes a backhanded shot at a fellow Colorado ski-area resort operator: “It’s not aVAILable for overdevelopment.”
“Save Aspen brings attention to and actively opposes out-of-scale developments that threaten Aspen’s character,” the website says. “We oppose developments that exploit loopholes and deploy strategies never anticipated by the city’s zoning codes.”
The group has been misportrayed as NIMBYs by the project’s supporters, Stover said.
“We welcome affordable housing,” he said, adding, “just do it responsibly.”
City attorney Jim True said Monday he was aware of the Cooper Avenue condo association’s complaint but not the one from Save Aspen. The city will review the matter and its law firm will take up the case, he said.
In an April 9-dated letter to the city from the Praxidice law firm, as well in Save Aspen’s lawsuit, attorney Peter Thomas argued the HPC followed its design guidelines and criteria when it denied the 5,000-square-foot project, which would stand 32 feet high.
“They found the proposed structure failed to comport with the criteria of the HPDG (Historic Preservation design guidelines) by being entirely out of proportion to the historic structure in both mass and scale, and in eliminating desirable open and transitional space,” said both the letter and complaint.
Stover said the Cooper Avenue project, if approved, would set a precedent by allowing nonconforming lots to accommodate housing developments.
“It won’t be this one project,” he said.
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A condo association can continue to fine a landlord $500 daily for allowing an Aspen pot shop and wine cellar to lease his units, a judge ruled last week.