Realtors seek injunction to stop Aspen moratorium

Motion: Emergency didn’t cause moratorium, but moratorium caused emergency

Workers bring out pails of snow from a residential construction site on E. Cooper Ave in downtown Aspen on Wednesday, Jan. 12, 2022. (Kelsey Brunner/The Aspen Times)

It is the Aspen Board of Realtors’ position that a climate emergency did not justify the City Council’s moratorium on residential development and new short-term rental licenses, but the moratorium has caused financial setbacks for architects, brokers, construction workers, property managers and others who make their living through the real estate trade.

The board’s latest legal salvo came Tuesday when attorney Chris Bryan filed a motion for preliminary injunction in an attempt to pause the moratorium while its lawsuit is pending against the city and its elected council members. ABOR’s lawsuit, also against the city and its officeholders, is pending in Pitkin County District Court and is seeking a declaratory judgment from the court deeming the moratorium unenforceable.

“Notably, ABOR’s review of MLS data and its due diligence shows that, to date, approximately $41.19 million in Aspen real estate sales have already been lost due to the moratorium, not including prospective purchasers who chose not to go under contract as a result of the moratorium,” said the motion. “These harms are suffered by a wide swath of people who live, work, and own property in Aspen. That, plus the lack of other available remedies to redress those economic impacts … shows irreparable harm.”

A conference scheduled Jan. 18, with Judge Anne K. Norrdin presiding, will determine a hearing date for the preliminary injunction motion.

“We are currently reviewing the motion that we received last night,” Jim True, city attorney, said Wednesday through an email. “Although we cannot comment on specifics, we can state that we intend to defend the City in this litigation and this motion for preliminary injunction vigorously.”

After holding two public meetings Dec. 7-8, the City Council adopted Ordinance 27, a two-pronged moratorium that halts residential development until June 8 and also prohibits applications for new short-term rental licenses until after Sept. 30. By declaring an emergency, the council was able to circumvent rules requiring ordinance hearings to be publicly noticed no less than 24 hours before they are scheduled, and also pass it in short order — in just two days.

Residential development activity in Aspen, the ordinance said, “contributes to climate change through transportation required to construct and service residential properties, the energy and impacts inherent in creating and sourcing the materials necessary for residential development, the natural resource consumption required for the operation of residential structures, and the production of solid waste and associated disposal impacts from the construction and operation of residential structures.”

If residential development does negatively impact the climate, the motion for preliminary injunction questioned why the City Council did not ban all types of development in Aspen.

“Conversely, the Ordinance is devoid of any explanation of how an immediate moratorium on free-market residential development and new vacation rentals will mitigate global warming — especially when commercial and affordable housing development presumably have the same climate change impacts but are left unchecked — or create affordable housing,” said the motion.

The motion continued, “Moreover, the Ordinance is self-referentially incoherent: it allows commercial and affordable housing development to continue, but it preposterously singles out free-market residential development as the sole culprit for ‘anthropogenic climate change and the impacts to the ecological health of the community’ …”

The city’s position on short-term rentals, which are for periods of no more than 30 days, is they have altered Aspen’s housing landscape to the detriment of worker housing. The ordinance said, “Recent evolutions in the residential real estate market and economy, including new financial dynamics, the proliferation of short-term rentals, have rendered elements of the Land Use Code inadequate to respond to local affordable housing needs.”

Bryan argued in the motion that the city hasn’t produced any studies on how the moratorium will help the council achieve its goal to amend the land-use code, and it also hasn’t sufficiently explained why it can’t work on the land-use code without a moratorium in place.

“The Ordinance need not be in effect for Defendants to amend the LUC to address their environmental and affordable housing goals,” the motion said. “And Defendants have not showed — and cannot show — that additional residential development applications and short-term rental permits will result in immediate, material, irreversible impacts to the health, safety, or welfare of Aspen citizens. If the injunction issues, an addition may be constructed for a Cemetery Lane house, a short-term rental permit may be issued to a small condominium in Aspen’s commercial core, and construction may start on a vacant lot within City limits. All the while, Defendants can continue their work of amending the LUC as they have the undisputed right to (and routinely) do.”

Eleven sworn affidavits from people who said they have been negatively impacted by the moratorium accompanied the motion.

“Because of the Ordinance, I am no longer able to book the Condominium for short-term rentals during the months of October, November or December 2022,” stated Linda DeSoto, who owns a condo on East Hyman Avenue, in an affidavit. Rental funds help her pay costs for the condo. “Those wishing to secure short-term rentals during the fall and winter 2022 and beyond will simply look to other mountain towns that have not enacted a moratorium.”

Realtors also said that home deals are falling through and they’re losing commission because of the moratorium.