The gray area of Aspen teacher housing
The Aspen Times
Aspen CO, Colorado
ASPEN ” There is no clear legal precedent regarding whether the Aspen School District can build teacher housing in Woody Creek over any objections from Pitkin County, say authorities on the matter.
“I’m not aware of any case law that specifically addresses the applicability of [state statute 22-32-124(1)] to a non-school building constructed by a public school district,” wrote Boulder County’s deputy attorney, David Hughes. Several other attorneys concurred.
Following the success of its bond proposal in the November election, the school district has moved forward with plans to build more teacher housing on its property in Woody Creek. The 5-acre property is zoned for a single-family house, but the district intends to build six duplexes on it. Such a change, on most properties, would require a major plat amendment and a scenic corridor review, notes a December school district memo on the project.
However, because property is outside the Pitkin County community growth boundary, a rezoning request would likely be denied, the memo says.
The school board, however, has adopted the position that it does not need the county’s permission to build on the property. As an arm of the state, the school district does not have to submit itself to the county land-use process, school board members have said.
Since there is no legal precedent, experts say, the question hinges on the reading of the state statute cited above, which outlines planning procedures for Colorado boards of education. According to the statute, before building, such boards must consult with ” but not ask permission of ” county commissioners.
The only power the statute assigns to county commissioners is the ability to request that a public hearing be held.
But Pitkin County Attorney John Ely has argued that the language is “less certain” about whether the school district has the same authority if it is not actually building a school.
In several places, the statute refers simply to any site or building owned by, or built by, a board of education. However, the final sentence, which unequivocally states that a county board does not have jurisdiction over district buildings, refers specifically to schools. “Nothing in this subsection (1) shall be construed to limit the authority of a board [of education] to finally determine the location of public schools within the district,” reads the statute.
Like Ely, Hughes of Boulder County found the statute’s language open to interpretation.
“The language of the statute leaves room for debate regarding the scope of its application and the extent of a school board’s authority,” he wrote in an e-mail.
But Denver attorney Patrick Mooney, whose firm represents roughly 45 Colorado school districts ” and which represented the Aspen School District in a separate matter about seven years ago ” had a different opinion. He acknowledged that the statute’s language is vague, but said it would be hard to interpret the statute as applying only to school buildings.
“You’d have to construe the statute as basically not meaning anything,” he said.
The Pitkin County commissioners and the Aspen School District have discussed the issue once since the passage of the teacher housing bond, but reached no conclusions at that meeting.
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