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Aspen’s residential development moratorium ends Monday

A rush of applications is expected on Monday morning; longer term effects on the city of Aspen's affordable housing program addressed in new ordinances

City of Aspen
Courtesy

The eight-month moratorium on residential development in Aspen ends on Monday, and officials expect to see an onslaught of applications coming in to secure one of the six demolition permits allotted each year.

That limitation is just one regulatory tool in an arsenal that was created via ordinance to address what city officials perceive as an emergency in the community related to a lack of housing and environmental concerns.

When council passed the emergency ordinance declaring the moratorium in December, elected officials said they wanted to address the unprecedented amount of growth in recent years that has caused quality-of-life impacts to traffic, affordable housing, environmental conditions and other issues.



That resulted in ordinances and land use code changes that hold residential property owners to a higher redevelopment standard in their building’s efficiencies and diverting demolition and construction waste from the local landfill.

Ben Anderson, the city’s principal long-range planner, said the changes made in affordable housing mitigation for residential development will have a lasting impact on the community.




“I think the affordable housing stuff that we did might be more impactful with the things that we did in terms of creating some space, creating opportunity and reducing some of the review process for compliant affordable housing projects,” he said. “I think those things are a really important piece of what we did, and members of the development community to this point have been really focused on the demolition topic, but I think in terms of community impact, the affordable housing work was equally as important.”

ADVANCING AFFORDABLE HOUSING

Several code amendments were made that make it easier for developers of affordable housing to get their projects approved and have growth mitigated at a higher rate.

The fee-in-lieu amount developers must pay now increases annually 8.5%, which is based on national construction costs.

Another change is the inclusion of sub-grade areas, garages and vertical circulation in what building area counts toward mitigation, and the removal of the exemption for existing floor area in redevelopment scenarios.

Those changes are supported by a new residential employee generation study, conducted by consultant RRC and Associates, in an update to work that was last done in 2015.

The ordinance also allows for an administrative review path for 100%, deed-restricted, affordable-housing projects that meet the requirements of the land use code.

Those projects previously were subject to a review with the Planning and Zoning Commission, even if they are compliant with underlying zone district dimensions, parking requirements and other restrictions.

That process could take up to 18 months with public hearings and studies, Anderson said.

The change is designed to streamline review and bring more predictability to private and public sector affordable housing projects.

The new ordinance also removes unnecessary obstacles in the development of affordable housing across most of Aspen’s zone districts, and in a few specific situations, it provides additional opportunity within the dimensional limitations of underlying zone districts.

For example, developers now can develop 100% affordable triplex or fourplex structures in residential zones that are currently limited to single-family and duplex.

It also gives dimensional flexibility to existing and currently non-conforming multi-family properties in zone districts that preclude that if those properties were to convert to deed-restricted affordable housing.

“Throughout the zone district regulations, there were kind of intentional and unintentional obstacles to affordable housing development that had sort of been developed over time,” Anderson said, adding community feedback in the lead-up to the ordinance suggested that residents didn’t want developers to get more allowable height or square footage. “So we didn’t do anything that gave expanded dimension, but we were really clear about making sure that affordable housing was a permitted use every place and that there weren’t other things that were precluding the development of affordable housing either intentionally or unintentionally.”

FREE MARKET LIMITS

The new rules also prohibit the establishment of new free-market residential units in the city’s mixed-use zone district.

All of the work prior to ordinances 13 and 14 being passed last month was during a pause on development designed so city officials and the community could address the stressors on the built environment.

The pace and scale of residential development saw an uptick in 2021, with 15 demolition permits issued.

Since 2013, the average number of building permits issued annually has been around six, Anderson noted.

When the city begins accepting applications for new residential development at 8:30 a.m. Monday, city officials are bracing for the pent-up demand as it is a first-come, first-serve scenario.

“Based on the anecdote of who I’ve heard from, there’s definitely going to be a demand for more than six in this initial swing,” Anderson said.

When applications seeking demolition permit are deemed complete is when they are given an allotment. Those that are incomplete go to the back of the line.

The standards laid out in the ordinances will be required when the project receives a building permit, Anderson said.

One remnant left in the code is allowing an individual to seek a multi-year allotment and get their project approved by council if they agree to additional measures like increasing affordable housing mitigation or a transit amenity, for example.

“They would be granted an allotment from one of the six available in 2023,” Anderson said.

There are many renovation and remodel projects that were in the queue that were put on hold during the moratorium that will now be subject to the new affordable mitigation requirements.

LAWSUIT STILL IN PLAY

What is still ongoing related to the moratorium is a lawsuit levied against the city from the Aspen Board of Realtors that sought a permanent injunction and a declaratory judgment, which would make the emergency ordinance unenforceable.

Ninth Judicial District Judge Anne Norrdin did not rule in favor of that but did approve this past March the Board of Realtors’ motion that sought a preliminary injunction to lift the ordinance enacting the moratorium.

While the judge found the city violated the Open Meetings Law, she ruled against the Board of Realtors’ claim that the city violated due process provisions under the 14th Amendment of the U.S. Constitution.

The temporary injunction left a day and a half of the original ordinance unenforceable because Norrdin ruled that council hadn’t given proper notice prior to Dec. 7 when it first introduced the emergency ordinance and passed it on second reading the following day.

Council corrected that by introducing and passing a new ordinance with the same language on March 15.

There are two motions pending, one of which is from the city arguing that all issues are moot because a new ordinance was passed.

The other motion is from the Board of Realtors seeking summary judgment, asking for the disposal of case without a trial.

Chris Bryan, a lawyer for Garfield & Hecht, P.C., who represents the Board of Realtors, said the summary judgment motion is to determine attorney’s fees that should be paid by the city.

“It’s in the hundreds of thousands of dollars,” he said, adding that the position of the Board of Realtors is there was never an emergency in which to enact a moratorium on residential development. “It’s disingenuous to say that on Aug. 8 there is no longer an emergency.”

csackariason@aspentimes.com


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