Truce reached between city of Aspen, property owners over demolition debacle
The City Council on Tuesday approved settlement agreements with six residential property owners in Aspen who were appealing the community-development department’s denial of their building-permit applications.
The agreements grant approval for demolition allotments to the six owners. Those allotments account for the six ones available in 2023 under the city’s overhauled land-use code, adopted by the council on June 28. The six allotments for 2022 will be granted to a different set of applicants who previously qualified under the city’s email-selection process that was assailed by critics.
“We think this is a a prudent move in resolving this appeal,” Ben Anderson, the city’s deputy director of community development, told the council.
A 13th applicant previously was eliminated from contention for reasons unrelated to the recent flap. With the settlement approved, the 12 property owners will receive notices of approval for demolition allotments with a three-year vesting period, according to Anderson.
In October, lawyers for the property owners put the city on notice they were appealing the community-development department’s decision to eliminate them from consideration for demolition permits after previously being told they had qualified for them. The denial notices went out Sept. 23.
That set the stage for an appeals hearing before the Aspen Planning & Zoning Commission, the body charged with reviewing an administrative denial of an application involving land use and, in this case, residential demolition. Scheduled for Nov. 17, the hearing was postponed until Dec. 20 to allow time for settlement discussions.
That hearing is no longer necessary with the settlement agreement in place, made possible in part by the City Council’s unanimous approval of a resolution allowing City Manager Sara Ott to execute the agreements.
“My clients and I believe that the settlement is fair and reasonable under the circumstances,” said lawyer Chris Bryan of Aspen firm Garfield & Hecht PC. He represented most of the applicants appealing the denials.
The origin of the dispute did not sit well with some residents put off by the city’s sweeping amendments to the land-use code. Called Ordinance 13, the new land-use legislation came amid the emergency moratorium on residential development the council passed in December 2021. The code was changed to redefine “demolition” meaning “to raze, disassemble, tear down, or destroy forty percent (40%) or more of an existing structure (prior to commencing development).”
“I congratulate the folks on some sort of settlement that’s coming forth,” resident Mike Maple told the council. “But, this legislation was wrong for our community. It’s very damaging to those of us that own … 450 people that own underdeveloped real estate where the value is in their home. It has been a tremendous source of stress and angst for your old-time property owners, and I hope you will see the problems in the legislation that you passed, as demonstrated by the fact that you have to enter into a settlement on the first go-round and set this aside. There are better ways to accomplish your goals.”
The moratorium expired Aug. 8, the same date the community-development department started accepting applications for demolition permits for single-family homes and duplexes.
The department’s application process was done through email. Department officials said email applications for demolition permits would be accepted starting at 8:30 a.m. and would be reviewed for approval on a first-come, first-served basis.
On Aug. 18, Aspen planning firm BendonAdams got word from the department that applications for six of its clients jockeying for an allotment were deemed complete, and they were first in the email line.
Property owners who didn’t make the cut called the process unfair because BendonAdams sent 406 email applications for the six properties, overwhelming he city’s email server in the minutes before and after the 8:30 a.m. application process began.
“Staff was not anticipating that six of those applications submitted approximately 400-plus emails in a way that we were not expecting,” said Anderson. “And, after some very detailed analysis of email records, after running the timing of received emails through our common development procedures and the land-use code, staff made the decision to deny six of those applications — initially five and one subsequent application was later denied.”
Anderson was referring to Sept. 23, when BendonAdams learned community development had eliminated six of the firm’s clients from consideration for a demolition allotment, while two others remained eligible. Four property owners not represented by BendonAdams also were told they qualified for a permit, after being told in August that they had not.
The BendonAdams clients were told their applications were denied because city code prohibits multiple land-use applications for one property. Bryan and another lawyer for another BendonAdams client, however, argued in their notices of appeal that multiple applications were not sent. Rather, multiple emails for the same application were sent, they said.
Additionally, the city changed the rules on how the emails were considered during the selection process, they said.
“I think it’s unfortunate that we have this before us, and I think that the process was gamed, and I think that we allowed it to be gamed by not having it well-planned out,” said Ward Hauenstein, who suggested revisiting Ordinance 13 before holding another selection process for demo allotments.
Community Development Director Phillip Supino said the department relies on the “plain language” in the land-use code to act as the “primary guardrails” for applicants, but to “the extent to which individuals in the future may choose to interpret or apply those guardrails in a different way is something we frankly can’t control. That being said, we have and will continue to put thought into how we can make those guardrails even clearer in the context of this particular process.”
Councilwoman Rachel Richards said, “I think this is a reasonable and fair settlement of a sticky situation. I think perhaps we were not as prepared for what would happen, and perhaps there was gaming. But, at this point, we are where we are, and I think that this is a reasonable and fair settlement to take it forward, and I do anticipate, as staff has said, that we’ll work for measures that are different in the future in order to prevent something like this from happening again, but I’m ready to move forward.”
The settlement affects property owners considering demolition in 2023 because all of the allotments are spoken for.
“Property owners contemplating redevelopment would have several paths remaining,” according to a memo Anderson prepared for City Council members ahead of their decision.
Those options include seeking a remodel that doesn’t cross the demolition threshold, pursuing an allotment in 2024, appealing to the City Council, or pursuing two yearly allotments “reserved for long-standing, local homeowners who can show a family connection to the home of more than 35 years,” the memo said.
“We believe that this is an appropriate use of the authority that City Council has to resolve these items in what is a very contentions and disputed position amongst the various applicants,” said City Attorney Jim True at the council meeting.
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