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Park Place protesters prevail

Janet Urquhart

An initiative petition that seeks to put a proposed parking garage before Aspen voters has been ruled invalid, and the man who circulated the petition is blaming the city.

Garage developer Peter Fornell promised an appeal Wednesday and lashed out at the city for providing him with petitions that couldn’t withstand a protest by several neighbors of his project.

“Am I mad? I would say frustrated is a better word,” Fornell said. “I can’t believe they [the city] sent me out on the street with a document that wasn’t legit. I can’t believe it.

“Rest assured there will be action at Park Place,” he continued. “I know the next step here is appeal.

“I’m considering whether I’m going to request the resignation of the city attorney or seek legal recourse against the city. I got set up and spit out by the city of Aspen.”

Fornell represents Hyman Avenue Holdings LLC, which has proposed Park Place, an automated parking garage, at 707 E. Hyman Ave., next to the Benedict Commons affordable housing.

After the City Council rejected the project late last year, Fornell circulated a petition and collected the 736 required signatures to force a public vote on the garage proposal if the council was unwilling to reconsider its denial.

Six neighbors subsequently lodged protests against his initiative. After a hearing on the protests Friday, hearing officer Karen Goldman issued her decision yesterday. She concurred with one of the two arguments proffered by the protesters and concluded the initiative petition is “not sufficient.”

The protesters, represented by local attorneys Michael Hoffman and Herb Klein, said Fornell misled the public about the nature of the garage project while collecting signatures. They also claimed elements of his initiative weren’t valid subjects for the initiative process.

Goldman, who was appointed by the city, rejected the first claim, but sided with the protesters on their second argument, relying on a legal opinion issued by City Attorney John Worcester.

Fornell’s initiative sought to put the same ordinance before voters that the City Council had voted down in rejecting the Park Place proposal.

The ordinance included a request to rezone the property slated for the garage, which Worcester concluded is a valid subject for a citizen initiative. However, the ordinance also contains a number of administrative matters that are key parts of a city land-use approval, but aren’t proper subjects for an initiative, according to Worcester.

“The powers of initiative and referendum reserved to the people by the Colorado Constitution do not include the power to bypass these important administrative matters that are an integral part of the city’s land-use code and process for approving site-specific land-use plans,” Worcester wrote.

Both attorneys for the protesters lauded the decision as the correct one.

“We’re pleased,” Hoffman said. “We think that the opinion of the hearing officer, and especially the legal opinion [of Worcester’s] she relied on, is extremely well-reasoned and sound.”

But Fornell wonders why the city would prepare petitions at his request that can’t meet legal muster.

City Clerk Kathryn Koch said Fornell brought in the ordinance and sought initiative petitions to circulate. She drafted the summary that appeared at the top of the petition form, as required, and attached the petition to the ordinance. Worcester looked at the petition and reviewed the summary, she said.

The protesters also challenged the summary paragraph as lacking and misleading, but Goldman found it sufficient.

When a citizen proposes an initiative, it’s not the city’s place to reject it, Worcester said.

“I don’t want to interfere in people’s ability to petition the government for any reason,” he said.

But, had Fornell sought his advice, Worcester said he would have advised Fornell to consult with his attorney regarding whether or not the ordinance could be put forward through the initiative process.

“I couldn’t have given him legal advice,” Worcester said. “I didn’t know the answer.”

Worcester said he didn’t begin to research the case law relevant to Fornell’s initiative until it was contested by the protesters.

“I am not aware of any Colorado court decision that has addressed this particular question,” Worcester wrote in his opinion.

Janet Urquhart’s e-mail address is janet@aspentimes.com


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