Public could call for hearing on Snowmass Base Village vesting decision
October 14, 2014
Allegations of ex parte communication about Related Colorado's most recent development application could lead to a judge's review of the Snowmass Village Town Council's decision to extend Base Village vesting.
That's if someone decides to ask for such a hearing, which is allowed under Colorado Rule 106(a)(4).
"It's a court rule that provides the ability to go to the District Court to test the validity of (an action)," said attorney Arnie Mordkin, who is also a candidate for Snowmass Village mayor. "Ultimately what you end up with is a district judge making a decision as to whether a quasi-judicial body has followed the rules."
A council can communicate about an application openly when it's acting in its legislative role, Town Manager Clint Kinney said. But in a "quasi-judicial" hearing, when the council acts as judge, the elected officials can consider only the information presented to them in the public process.
The council was acting as judge, according to Kinney, when it reviewed Related Colorado's application to extend its Base Village vesting, which it approved Monday by a 3-2 vote. Before the decision, Councilman Chris Jacobson, one of the officials who voted in the minority, alleged that council members Fred Kucker and Markey Butler communicated about the application with Aspen Skiing Co., one of Related's development partners.
To Jacobson, that amounted to inappropriate communication with an applicant because Kucker allegedly amended the application based on information he exchanged with Don Schuster, Skico's vice president of hospitality development.
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To Kinney's knowledge, a Rule 106 proceeding wouldn't result in any fine or punishment against the town, but the council's decision could be overturned, and the body could have to conduct the review process again.
The rule states that a judge's review is "limited to a determination of whether the body or officer has exceeded its jurisdiction or abused its direction."
"(A judge) won't be looking at the merit of the decision; they'll be looking at the process of the decision," Kinney said.
Kinney said he was not aware of any such filing yet, but resident Richard Goodwin has threatened to sue the town before and said Wednesday that he plans to take action.
"If they don't voluntarily excuse themselves and they don't cancel their action, and no one else sues, I will," Goodwin said. "They're playing around with my little town in the Rocky Mountains, and I won't stand for it."
Jacobson said he thinks that asking for a judge's review on the decision would be appropriate, although he would prefer that a resident call for it rather than himself.
"I haven't ruled it out," he said of filing a complaint himself.
Unless a statute specifies a timeline for review, a complaint seeking a review under the rule must be filed no later than 28 days after the decision, according to the Colorado Rules of Civil Procedure.
In addition, the town's municipal code allows for Snowmass Village voters to petition the council to reconsider any ordinance.
Goodwin also wrote a letter to local newspapers calling for Kucker's resignation. He thinks the council was unnecessarily trying to rush a decision on the vesting application and finish it before the municipal election in November.
Resident Gary Rosenau also said he disagreed with the council's decision.
"I'm not crazy about the mayor wanting to push things forward," Rosenau said. "I didn't want a Base Village."
Other residents spoke out in favor of approval of the application at Monday's meeting, even Bianca Hooker, who voted against the development in 2004.
"As long as we have made the decision for Base Village to go forward, … this is the best thing we can do right now," Hooker said.
Related is still expected to submit a new application to amend the approved plans for the overall project Wednesday. That will include changes to buildings on Lots 2, 3 and 4 and possibly to Lots 5, 6, 7 and 8, according to the development agreements approved Monday.
A court throwing out the decision or the town even having to go through a Rule 106 proceeding would be detrimental to the community, Mordkin said.
"I think having now granted the extension of the vested rights, I want to see the project move ahead," Mordkin said.