Referendum 1 opinion backs Aspen attorney Jim True |

Referendum 1 opinion backs Aspen attorney Jim True

Karl Herchenroeder
The Aspen Times

A legal opinion released Tuesday supports City Attorney Jim True’s estimation that development applications submitted before certification of the May 5 election are not subject to Referendum 1.

In a letter dated June 2, Denver-based attorney Steve Dawes argues that development applications are subject to the laws and regulations active at the time of submission. Dawes points out that a city may apply a new law to pending applications if there is a need for the immediate preservation of public health and safety, but he argues there is no evidence to suggest that was the case with the charter amendment adoption.

The city sought Dawes’ opinion last month after referendum sponsors Cavanaugh O’Leary, retired tax attorney Maurice Emmer and land-use attorney Marcella Larsen challenged True’s evaluation. Referendum 1, which made Aspen’s electorate the final authority for land-use variances on height, mass, parking, affordable housing and viewplanes, spurred an influx of development applications in the weeks leading up to the May 5 election.

After discussing the opinion with a colleague Tuesday, Emmer said issues remain with both True’s and Dawes’ opinions, though he doesn’t anticipate taking any legal action. Dawes’ failure to address the law’s applicability to variance requests and the denial of Aspen residents’ voting rights are among the issues Emmer raised.

“A developer cannot file a variance request and be protected,” Emmer said. “This statute (which True and Dawes cite) does not protect that. This opinion doesn’t even address the point, so to me, it’s not a very useful opinion.”

True said Tuesday that he anticipated disagreement with the opinion, and if there is a request that the city address retroactive applications differently, his recommendation will be for the city to stand by his and Dawes’ opinions.

“Some people will disagree with my opinion and his opinion, and that’s fine,” True said. “At some point a decision has to be made to move forward in a direction, and my recommendation is we move forward with these applications that were deemed complete, recognizing that they would not be subject to the referendum.”

A number of developer Mark Hunt’s projects have been at the forefront of the debate, including his Main Street lodge concept Base2. The council approved that project recently after green-lighting his Cooper Avenue economy lodge, Base1. Both include zoning breaks that would have triggered public voting under the referendum.

Officials were anticipating publication of the Base2 decision by the end of Tuesday or today. Residents have the ability to petition the decision to a public vote, which if successful would most likely occur in November. Any group that starts a petition will need to gather around 600 signatures within 30 days of publication in order to advance the question to the ballot.

Based on discussions with potential organizers, Emmer said Tuesday that there is “strong possibility” for a petition drive.