Letter: Both sides boxed in
At the City Council meeting Monday night, proponents of Referendum 1 (now Section 13.14 of the Home Rule Charter) requested that the council honor the intent of that measure and apply it to all applications that were filed prior to its passage. There is no debate that Referendum 1 applies to certain land-use applications filed after passage (May 5), but the issue is its applicability to applications on file before passage.
The council has an opinion of the city attorney and an independent outside counsel that Referendum 1 does not apply to land-use applications pre-existing before passage. The proponents have an opinion saying it does apply. Hence a classic difference of opinion and the standoff. On one hand, it would be entirely unreasonable for council to disavow the two opinions it has received and indeed any such action could be deemed arbitrary and capricious on its part. On the other hand, the proponents have no way of testing the correctness of their position because in the absence of an actual case or controversy no court would render an advisory opinion. Thus, they are left with filing more petitions until the pipeline of pre-existing applications runs out.
In the absence of any leverage, the proponents now come forward and argue the intent of Referendum 1 should be followed but that position is deeply flawed. As drafted, it was clear and precise with absolutely no mention of any retroactive effect to include any land-use application on file prior to passage. If Referendum 1 was intended to apply to pending applications that dubious proposition should have been a part of the language put to the voters — it was not. The argument of “intent” cuts against the proponents.
Like it or not, the proponents should admit that this is a transition period in which both sides have no options. Council is duty-bound to apply the law existing as of the time land-use applications were filed. The proponents can pick and choose which of any applications approved by council it wants to subject to petition (a right already embedded in the charter prior to Referendum 1).
The best way out of this morass and divisiveness is for the proponents, and indeed all residents, to push the council to act on the stated goal of aligning the land-use code with the Aspen Area Community Plan. It is a top-10 goal of council and should not be allowed to fester and slip into the pile of unfulfilled wishes. This goal can be managed and solved if all sides get behind it and work together. Positive movement on that front will do much to bridge the divide that currently exists and restore faith in City Hall.
Neil B. Siegel
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