Referendum 1 and retroactive applications: Where does Aspen go from here? |

Referendum 1 and retroactive applications: Where does Aspen go from here?

Karl Herchenroeder
The Aspen Times
One of Mark Hunt's concepts envisions replacing the propert home to Grey Lady, Jimmy's Bodega and the Popcorn Wagon with a 28-foot structure. Under Referendum 1, the application's view plane exemption would trigger a public vote.
Jeremy Wallace/The Aspen Times |

One prevailing reaction from last Tuesday’s election was the surprise at the margin of victory for Referendum 1, which on Thursday made Aspen’s electorate the final authority for specific land-use variances.

Official results show that 53.1 percent voted in favor of Referendum 1 in a 1,300-to-1,145 decision. Councilman Adam Frisch, an opponent of the measure who successfully defended his seat Tuesday, envisioned a result closer to 57 percent to 43 percent. That the decision was not a landslide was reassuring for Mayor Steve Skadron, a fellow incumbent and referendum opposer. He said the result tells him that the community is not entirely convinced it was the right thing to do, and in the long run, he anticipates a repeal similar to the dismantling of infill, a controversial set of land-use-code changes that allowed for greater height in hopes of spurring economic activity in the early 2000s.

“I think that (repeal) will happen a generation from now, when the community looks back and says, ‘What the heck were they thinking?’ Just like today, we’re looking back at the infill council wondering what they were thinking,” Skadron, who was elected to a second term, said Thursday.

Skadron’s view is based on economic cycles, and he believes that in the next downturn, business and tourism will be hurting and the council will be forced to do something about a measure that’s too restrictive.

The community has spoken

While the referendum wasn’t the overwhelming victory Frisch anticipated, the community has spoken, he said Thursday, and the council “will have to work with that as part of our puzzle as we implement the land-use code.”

Organizers behind Referendum 1 began their campaign with the slogan “Keep Aspen, Aspen,” garnering petition signatures around town in an attempt to advance it to the ballot. Frisch said it was an easy enough sell, standing outside of City Market discussing building heights only a few hundred feet from Sky Hotel, which won unanimous council approval after dropping all variance requests from its 2014 application.

But Frisch contends that as more information became available on the measure, and as the opposition began explaining its negatives, the referendum lost steam. He also regarded the election as a perfect social experiment that showed Aspen is not simply a one-issue town, based on his and Skadron’s decisive victories.

“There are definitely people that will vote for somebody or against somebody solely based on one issue, but I think this is a perfect live, social experiment that the vast majority of people aren’t single-issue voters, because they supported the two people who are against the referendum that passed,” Frisch said.

Former Mayor Mick Ireland, who will face fellow Referendum 1 organizer Bert Myrin in a June 2 runoff for the remaining council seat, said the variance issue was heightened with the Sky Hotel application, which saw a lowering of 45 feet to just within code at 40 feet. Ireland said John Sarpa, who represented Sky Hotel ownership, took note that the community was not willing to stomach variances.

Ireland disagrees with Skadron that there will be an effort to repeal the referendum. In fact, he said the community will find the charter amendment is working in the community’s favor. If there are issues surrounding development, he said, the land-use code can be revised to allow for greater height and mass or less parking.

In order to repeal the charter amendment, there must be a resident-led or council-driven effort to get it back on the ballot. Aspen voters would then have to approve the decision.

City saw many applications before election day

The weeks leading up to the referendum’s passing saw an influx of development applications. Four came from prominent developer Mark Hunt, who appears to be avoiding the public votes his mountain-viewplane exemptions would trigger. It’s City Attorney Jim True’s opinion that Hunt’s applications will not be subject to the referendum, as they were submitted before election certification.

Hunt also has submitted alternate plans for his Base2 lodge concept on Main Street, plans that include a variance request on floor area that, according to True, would not be subject to Referendum 1. In the application, Hunt’s team states that Base1, a Cooper Avenue lodge concept that won unanimous Aspen City Council approval in February, will not be possible without the operation of Base2. Hunt contends that based on conversations with several potential hotel operators, there is “a minimum threshold of 80 rooms necessary to get hotel operators interested.” Both concepts have been pitched as the economic lodging Aspen needs, with prices around $200 a night per room.

Myrin said Thursday that if the council has integrity, it will honor the fact that it is no longer the final authority on variances and deny such requests. Alternatively, the applicants who beat the referendum clock can resubmit their applications so that they are subject to the new measure, Myrin said.

“They can have that clean conversation without the sort of game that’s being played right now,” Myrin said.

Ireland said the council can’t ignore the implications of Referendum 1 when considering the upcoming applications, which echoes similar statements from Frisch.

“(The council is) not going to try to cram in some variances under a technicality that, you know, the thing was funded three days before the ballot,” Ireland said Thursday. “Council is not rigid, and they’re not dumb. They’re smart. They’re going to look at that and say, ‘OK, what people want us to do is not grant variances, so we won’t grant variances.’”

Ireland added that there’s no sense in facing a legal battle over whether the referendum can be applied retroactively. And so down go Base1 and Base2, but that’s if all these statements from council and Hunt hold true. Ireland was dismissive of Hunt’s claim, alluding to the old Aspen adage that involves a puppy and a gun.

“Not every puppy gets shot,” Ireland said. “Sometimes people threaten to do certain things, and then confronted with a strong council, they back away and say, ‘Maybe I can work this out.’”

Frisch’s comments are somewhat in line with Ireland’s, as he said the council will be “looking through the prism of Referendum 1 passing.” Yet Frisch challenges referendum supporters to find one building in town that was granted variances and has caused heartburn. Both the Aspen Art Museum and “that orange thing” near Little Annie’s were passed within the parameters of infill, he said.

A disservice?

The perception of a variance, he said, has become, “The community gets screwed and the developer gets richer.” For Frisch, that’s not the case. He said his council, and previous councils, have granted variances based on the prospect of community benefit. One concern he has with the charter amendment is the scenario where a moderate lodge is proposed with variances, but because it won’t pass public scrutiny, it ends up a high-end commercial space instead. In that case, he said the referendum would be a disservice to the community.

“The council has not approved variances because they want the developer to make more money,” Frisch said. “The reason, I believe, the vast majority of council people support a variance is because they think it’s productive for the community.”

Myrin said that variances should only be granted based on hardship, but over time, they’ve become requests for more profit.

“There seem to always be an unlimited request for variances,” Myrin said. “Variances should be granted based on the property itself and if there’s a hardship at the property, not as horse-trading for benefits to the community.”

Frisch said he is preparing for the next development application with the mindset that the referendum passed and the message behind it.

“If the majority of the community were to vote on this, would they support it or not?” Frisch said he will ask himself.