Zoning code follies: Who do you trust? | AspenTimes.com

Zoning code follies: Who do you trust?

Andy Stone

“Keep Aspen, Aspen.”

That’s the slogan of the campaign to amend the city charter. As slogans go, I suppose it’s a good one — but as slogans also go, it avoids a lot of issues. Which “Aspen”? And, maybe more to the point, whose “Aspen”?

Almost everyone will say they want to preserve “Aspen.” But to some that means preserving their investment portfolio. To others it might mean preserving great skiing or preserving the Paepcke-inspired Elysian Fields out at the Aspen Institute or, who knows, maybe someone even wants to preserve the Valley of the Shadow of Hecht out on East Hyman Avenue.

Some people still mourn the loss of the old canvas Music Tent. Others (count me among them) think Harry Teague did a brilliant job of preserving the spirit of that original tent in a form that will carry on into the future.

Sometimes, when we have to clean house, it’s hard to distinguish the baby from the bathwater. It’s all a vast psych lab — and Aspenites are the lab rats, running little paws down to bloody nubs, sprinting through endless mazes in search of that tiny nugget of reward. And “Keep Aspen, Aspen” is the latest test.

As I assume we all know, at issue is the City Council’s ability to grant variances to the zoning code, allowing developers to build bigger or taller, to provide less parking or housing than the rules strictly require. A residents’ petition placed the amendment to the city charter on the May ballot, barring the council from granting any variances and requiring a vote of the people for any easing of the codes. The council — desperately or cleverly or reasonably, take your pick — responded with an ordinance of its own, allowing it to grant some very limited variances under very limited circumstances and not allowing anything beyond that. Nothing. Period. Not by resident vote or any other way. So now we have opposing choices — residents’ charter amendment vs. council ordinance — both designed to require more strict adherence to the zoning code. And, on the face of it, the council’s ordinance seems even stricter that the residents’ charter amendment.

So here we go again: Psych lab! (Listen closely and you can hear the pitter-patter of little rat feet.)

Think of it as a game of “Who Do You Trust?” (And, yes, I know it should be “whom,” but we’ve got enough to quibble over right now, what with saving Aspen and all that.) On one “Who Do You Trust?” team, we have The People’s Choice, the City Council. Their power to grant zoning variances has a deep legal and historical basis, plus the philosophical argument that this nation is based on representative democracy — and the council members are our representatives. Weighing against trusting the council we have recent instances of what has been termed “rug merchant bazaar haggling” over variances, with results that outraged more than a few people. (And no, we’re not talking about the Valley of the Shadow. That was the fault of an earlier City Council that jacked up the zoning years ago.) On the other team, we have We the People, the citizens. Now the power of the people goes further back than the power of representative democracy — back to Ancient Greece, where the people were the “demos,” the first half of the word “democracy.” So do we trust the wisdom of the people? Or is it really the wisdom of the mob? Remember, it was those same people who, in their collective wisdom, elected the council in the first place.

So, in short, do you trust the untrustworthy council? Or the people who selected that untrustworthy bunch?

But it gets even more complicated (and ridiculous) when you look at it this way:

If the people take away the council’s power to grant variances from the zoning code, the council will still have the power to amend the zoning code itself. In other words, the council won’t be able to bend the rules, but they can rewrite the rules. What would stop them from doing that? Well, maybe the threat of a recall. But after a recall, there’d be an election for a new council — and the same yahoos who elected the present bunch of untrustworthy yahoos would go to the polls to elect a new bunch of … untrustworthy yahoos? And if the people vote against the charter amendment, that’s a decision to trust Team Council and its variance-limiting ordinance. But since the council passed that ordinance, it can just as easily rescind it and go right back to the untrammeled power it always had. And what’s to stop them from doing that? The threat of a recall? Well, please see “Yahoos, untrustworthy,” above. Besides all of that, the charter amendment allows zoning variances by city-wide ballot, which means that the people who voted to elect the untrustworthy council will vote to make the decisions they don’t trust to the representatives they elected. (Are you following this?)

Meanwhile, the council’s ordinance doesn’t provide for city-wide elections to allow zoning variances, but it’s easy to imagine a really determined developer stirring up his own petition drive and getting a variance — or maybe a zoning-code amendment — on the ballot. And let’s face reality. An election’s a crap shoot — with a whole lot of money at stake.

So any way you look at it, you have to trust the council and the people. Both. Or, if you prefer, neither.

And what’s at stake? Aspen. Whatever that might mean.

But here’s a final thought. If restrictions via charter amendment are too harsh, too clumsy, too restrictive to work with, what’s the worst that could happen? A few projects will not get built. Projects that don’t meet the zoning code. And if the restrictions are too lax — or there are no restrictions at all — what’s the worst? I leave it to your imagination.

Now let us pray: Yea, though I walk through the Valley of the Shadow …

Andy Stone is former editor of The Aspen Times. His email address is andy@aspentimes.com.

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