Wienerstube building owners, Aspen spar as lawsuit proceeds |

Wienerstube building owners, Aspen spar as lawsuit proceeds

Carolyn Sackariason The Aspen TimesAspen CO, Colorado

ASPEN Owners of the Wienerstube building who are suing the city over its denial to redevelop claim in recent court papers that the Aspen Planning and Zoning Commission has more authority than the City Council when making such decisions.In their 50-page opening brief, lawyers representing 633 Spring II LLC, which is controlled by building owners Stephen Marcus and John Provine, argue the P&Z is the final decision maker on design and growth issues in land-use applications. And because the Aspen City Council in March voted 3-0 to deny a subdivision approval for the 18,000-square-foot property at 307 S. Spring St. despite the P&Z’s recommendation that it be approved, the council abused its discretion, the lawsuit claims.The council had 30 days to call up the P&Z decision for an appellate review and attorneys argue the council chose not to do that.Instead, City Council belatedly held improper de novo hearings in 2007 and 2008 regarding the size and height of the 633 Spring Street building during subdivision review, according to the brief filed by David Lenyo of the Aspen law firm Garfield & Hecht.Subdivision review does not provide for a de novo hearing regarding design issues, including size and height issues, previously approved by the P&Z as part of the design approvals of the building itself.City Attorney John Worcester on Friday filed an responding brief, arguing it was completely appropriate for the City Council to review and vote on the land-use application.City Councils task in this matter was to sit as a quasi-judicial body and decide whether plaintiffs application for subdivision review met the standards set forth in the citys land use code, Worcester wrote.Not only was size and height considered, but mass, scale and character was also discussed at length. Each of these characteristics are relevant not only to the P&Z consideration of the commercial design standards they were required to consider, but are proper subjects for council to discuss and consider when reviewing plaintiffs application and the review standards for subdivisions in the city of Aspen.While developers say the project met city regulations, the council said it didnt meet the Aspen Area Community Plan, a driving force behind the land-use code that refers to development fitting in with the character of a neighborhood.But the suit argues that the community plan is an advisory document and not regulatory. The lawsuit alleges that because the application in question was a request for subdivision approval, the City Council was limited on its review of the project and cant legally deny it on its merits related to land use.In his 62-page brief, Worcester pointed out that 1988 was the first time that the AACP was referenced in a subdivision review.It is particularly curious for plaintiff to now question the meaning of various provisions of the AACP and claim that it is void for vagueness, Worcester wrote. Even if they did not understand the requirements of the AACP upon making their initial application, they were certainly given every conceivable opportunity to find out.Plaintiff was in the process of obtaining its land use approvals for close to two years. During that period of time, City Council had multiple opportunities to simply deny plaintiffs application for subdivision, the brief reads. Instead, council repeatedly advised the plaintiff at public meetings that its proposed building was too big and counseled plaintiff on how to amend its application so that it would be consistent with the AACP.A Pitkin County District Court judge will ultimately decide the fate of the Wienerstube case.

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