What can Aspen regulate? | AspenTimes.com

What can Aspen regulate?

Abigail Eagye

Steve Menscher of Aspen enjoys lunch at the Red Onion recently with Hendrikka Waage and Gudridur Sveinsdottir of Iceland. The future of the historic bar's interior is in question. (Jordan Curet/The Aspen Times)

Aspen, CO ColoradoASPEN Last month, City Council passed an emergency moratorium banning changes to building interiors in Aspen’s commercial core.While the moratorium doesn’t prohibit changes in the way people use buildings, uses are clearly a focal point of the ordinance. It’s not clear what will come of the building ban, but the latest move on the part of the council gives rise to questions about the limits of the city’s power.Norton Steuben, a retired law professor at the University of Colorado, spoke to The Aspen Times about hypothetical opposition to the ordinance – or possible future regulations on uses in general. In the end, it all depends on how a court rules if someone challenges the ordinance or any resulting changes to the land-use code, but Steuben said there are logical arguments for and against placing restrictions on changing the interiors of buildings in Aspen’s commercial core. The city’s core is a designated historic district, and as such, Aspen’s Historic Preservation Commission currently has oversight over the exteriors of buildings – but not interiors. Expanding that purview to include interiors is one possible change the council could make under the new moratorium.

“The city certainly has the power and authority to preclude the renovation, rehabilitation or tearing down of historic structures,” Steuben said. “I think that’s clear across the country.”But, he asked, “does the use of a building have any impact on its historic nature?””You probably can make the argument that we want to preserve [a historic building] as it has been for the past 100 or 50 years, because it’s important for the community to have the memories it engenders and that helped the community develop,” he said.”It’s not a great argument, but it would be made,” he predicted.Steuben, who has been to Aspen and eaten at the Red Onion, used that restaurant as an example, looking at arguments for and against changing the bar. (Part owner Andy Hecht declined to comment on whether the building’s owners would challenge the moratorium.)”There are bars and floors that have a significant historic nature,” Steuben said.

If the owners wanted to move or remove the bar in the restaurant, he said they might argue that “it’s just an old bar. There are [others] like it in Aspen right now, so you’re not losing anything.””You’d have to really look at the facts and say, ‘Is there anything really significant historically about this bar?” he said. “If, in fact, the bar is a significant part of the historic nature of the building, maybe they can’t change it.”Because the ordinance is limited to the downtown core, Steuben said, building owners probably can’t object to it as being too broad. Additionally, the ordinance provides for possible exemptions, through the Community Development office or the council itself.But if, hypothetically, the owners of the Red Onion wanted to change or remove the bar and the city told them no, there might still be legal recourse to challenge the moratorium – or any future regulations that restrict the use of the building, either tacitly or inadvertently. If the Onion’s owners were limited to renting the ground floor to a restaurant only, for example, Steuben said they might argue the ordinance resulted in the city’s “taking” the use of the property from the owners if they can’t find a restaurant to pay their asking rent – or if they were forced to lower the rent significantly to accommodate a restaurant, versus another type of business that might be able to afford higher rents.Similarly, if restricting what they can do with the bar itself means no one but a restaurant would rent the space, they might argue that it has effectively restricted the use of that space to a restaurant, even if the law technically allows other uses.

In either case, it’s not necessarily challenging the legality of the city’s ordinance but saying that it “amounts to a taking,” he said.But that wouldn’t necessarily be enough to convince a court of a taking. A court may say that you can still use that property, but you might make less than you’d hoped, Steuben said.In that case, he said, “it’s probably not a taking if it’s just that [the city] impaired their income to some extent.”The Red Onion building is just one of many that fall under the new moratorium’s restrictions, but the potential loss of the Red Onion restaurant, which leases space in the building, helped spur the council to enact the temporary ban on interior changes while it looks at ways to preserve Aspen’s character, including its characteristic businesses.The council will begin discussions on related land-use code issues in the new year.Abigail Eagye’s e-mail address is abby@aspentimes.com