Guest column: Aspen’s perfect land-use storm

The public interest is rarely discussed in the Aspen land-use arena — developers are too busy making the most of the highly lucrative, speculative real estate market and the City Council is consumed with deal-making with those same developers because the city’s land-use code has, more or less, no rules. With the passage of the Home Rule Charter amendment, Referendum 1, granting residents the right to vote on certain development approvals that exceed zoning, along with the council’s acknowledgment that their own land-use code is out of whack and needs to be aligned with their adopted master plan (the Aspen Area Community Plan), a perfect storm is in the making.

Will the new City Council act in the public interest, or will it continue to skew the balance in favor of developers? We will find out soon.

Most likely, in anticipation of a land-use code overhaul — a Top 10 goal for multiple council members — city planning staff recently initiated code amendments seeking to codify their own policies regarding pending land-use applications and code changes. (Apparently, staff already had a written “policy” on this subject.) While it is beyond city planning staff’s authority to create policy in the first instance, the actual policy makers — City Council — will now consider if the staff’s ideas should become law.

What exactly is the staff proposing? Does it further the public interest, and what are the implications for future development in Aspen? If you remember the massive “infill” upzonings in early 2000 and the council’s efforts to correct those mistakes through amendments to the CC and C-1 commercial-core zoning districts in 2012, perhaps you also recall the flood of applications rushing to “vest” before those zoning changes took effect. The council’s failure to adopt a moratorium or enact their zoning changes through emergency ordinance allowed developers to vest under the old code. Thus, they have been allowed to develop in a manner most now consider inappropriate and incompatible with community character and goals. Who knows the actual dollar amount, but the council’s failure to act, in effect, conferred millions of dollars in development rights to developers.

As currently drafted, city staff’s proposed code amendment will expand the rights of developers to submit any land-use application, no matter how preliminary, and then freeze the land-use code in effect at the time of initial application for all of the related applications going forward — for one to 10 to 20 to a million years — the time frame for building is unspecified. As with the CC and C-1 rezonings, speculative developers will, of course, file conceptual applications they do not necessarily intend to build, just so they can vest under current regulations. And what about the public interest?

Absent significant site-specific planning for a parcel of land, filing a land-use application for the sole purpose of vesting against regulatory change, is contrary to the public interest. Dynamic land-use regulations should be able to react to changing community goals, new approaches to community planning, evolving views of appropriate land uses and other important public health and welfare issues.

So what is a community to do with these applications more than one person has called “ticking time bombs” that seek to skirt modern land-use regulations? The Washington Supreme Court put it into context in Erickson v. McLerran:

“Development interests … protected by the vested rights doctrine come at a cost to the public interest. … A proposed development which does not conform to newly adopted laws is, by definition, inimical to the public interest embodied in those laws. If a vested right is too easily granted, the public interest is subverted.”

It doesn’t have to be this way. History shouldn’t repeat itself, and the city should learn from its past mistakes. Local regulations should be narrowly tailored, effectuating a balance between the public interest and private property rights, insisting on a rule that rewards diligent development and discourages speculation and piecemeal review of applications. It’s untenable that we have a land-use code that is widely agreed does not reflect community values, yet if we try to align the code with the public interest, developers will race to vest against such changes. Where significant land-use changes are contemplated and “midnight” applications are a threat to the public interest, the city should enact moratoria to allow sufficient time for planning and/or code changes, or, at last resort, the council should enact new land-use regulations via emergency legislation.

Marcella Larsen is an Aspen land-use attorney.