HomeMy WebLinkAboutagenda.council.special202205171
AGENDA
CITY COUNCIL SPECIAL MEETING
May 17, 2022
5:00 PM, City Council Chambers
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I.CALL TO ORDER
II.ROLL CALL
III.APPEALS HEARINGS
1.Consideration of Bryce Johnson and Laura Biel Appeal – Appeal from Community
Development Director’s determination that Ordinance No. 6, Series of 2022, is
applicable to appellant’s building permit application submitted on March 15, 2022,
for property described as 506 W. Hallam, Lots P & Q, Block 28, City and Townsite of
Aspen, Colorado.
2. Consideration of KDR Trust Appeal - Appeal from Community Development
Director’s determination that Ordinance No. 6, Series of 2022, is applicable to
appellant’s building permit application submitted on March 14, 2022, for property
described as 800 Roaring Fork Road, Lot B, Aspen Company Subdivision,
Amendment No. 1, City and Townsite of Aspen, Colorado.
3. Consideration of 308 North First Street LLC Appeal -Appeal from Community
Development Director’s determination of that Ordinance No. 6, Series of 2022, is
applicable to appellant’s building permit application submitted on March 14, 2022,
for property described as 134 W. Hallam Street, Lot 1, Nolan Lot Split Subdivision,
City and Townsite of Aspen Colorado.
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IV.ADJOURN
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Aspen Office
625 E. Hyman Avenue, Suite 201
Aspen, Colorado 81611
Telephone (970) 925-1936
Facsimile (970) 925-3008
GARFIELD & HECHT, P.C.
ATTORNEYS AT LAW
Since 1975
www.garfieldhecht.com
2652890.1
May 13, 2022
Christopher D. Bryan
cbryan@garfieldhecht.com
Via E-mail: Nicole.henning@aspen.gov
Nicole Henning, City Clerk
City of Aspen
Aspen City Hall
427 Rio Grande Place, 3rd Floor
Aspen, Colorado 81611
Re: Appeal Brief to City Council – Bryce Johnson and Laura Biel for Lots P and Q,
Block 28, City and Townsite of Aspen, also known as 506 W. Hallam Street, Aspen,
Colorado 81611
Dear Ms. Henning:
This letter serves as Bryce Johnson and Laura Biel’s appeal brief for the hearing before
City Council during its regular meeting on May 17, 2022. Please ensure that it is included in City
Council’s packet and confirm, via e-mail, that such has occurred. Please do not hesitate to contact
me if you have any questions.
Bryce Johnson and Laura Biel Appeal of March 30, 2022, Decision of City of Aspen Building
Department Rejecting Building Permit Application Submitted for Lot s P and Q, Block 28,
City and Townsite of Aspen, also known as 506 W. Hallam Street, Aspen, Colorado 81611,
on the basis that it could not proceed under City of Aspen Ordinance No. 2022-6.
Brief of Bryce Johnson and Laura Biel Opposing
Building Department’s Rejection of Building Permit Application
This appeal by Bryce Johnson and Laura Biel (collectively “Owners”) is governed by
Section 5 of the City of Aspen Ordinance No. 6, Series 2022 (the “Ordinance”), which incorporates
the City of Aspen’s Land Use Code (“LUC”) Sec. 26.316.030(e). That section provides the
following standard of review:
… the decision-making body authorized to hear the appeal shall decide the appeal
based solely upon the record established by the body from which the appeal is
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 2 of 12
2652890.1
taken. A decision or determination shall not be reversed or modified unless there
is a finding that there was a denial of due process or the admin istrative body has
exceeded its jurisdiction or abused its discretion.
This is the same standard as Rule 106(a)(4) of the Colorado Rules of Civil Procedure:
[w]here any governmental body or officer … exercising judicial or quasi -judicial
functions has exceeded its jurisdiction or abused its discretion . . .(I) Review shall
be limited to a determination of whether the body or officer has exceeded its
jurisdiction or abused its discretion, based upon the evidence in the record before
[that] body or officer.
C.R.C.P. 106 case law is instructive and guides Council, acting quasi -judicially as the
“court,” in its appellate review of the Building Department’s denial, issued on March 30, 2022,
of the Owners’ application for a building permit to remodel a single-family residence located at
506 W. Hallam Street , Aspen, Colorado (the “Property”) (0107-0109).1 In this instance, such
decision was exceed jurisdiction, arbitrary and capricious, constituted a denial of due process,
and was an abuse of discretion.
The Ordinance did not go into effect until 1:22 p.m. on March 15, 2022. Ordinance No. 27,
Series 2021, was no longer in effect commencing on Friday, March 11, 2022, at 10:45 p.m.,
creating a “window” in which there was no effective moratorium. Therefore, on March 15, 2022,
at 10:30 a.m., Owners’ representatives – RAL Design & Management/Jason Aguirre and Russell
Linch – submitted the application, No. 22-0674 (“Application”) to remodel a single-family home
on the Property (0019-0036). City Staff changed the status of the Application from “New
Application” to “Application Completeness Review” at 4:19 p.m. that same day (0029). On March
17, 2022, Owners’ representatives exchanged e-mails with City Staff regarding the Application
1 Please note that pp. 85-95 and 97-106 of the Record include correspondence between Owners’
representatives and City Staff regarding a separate building permit, No. 22-0510, that was
withdrawn by Owners upon submission of the subject permit, No. 22-0674 (0096; 0107).
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City of Aspen
May 13, 2022 Page 3 of 12
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wherein City Staff informed them to “standby” for additional information (0096-0097).
However, the Owners received no information from the Building Department until March
30, 2022, at 8:51 p.m., when Bonnie Muhigirwa of the City e-mailed Jason Aguirre of RAL Design
& Management:
Your Permit Application #22-0674 for 506 W Hallam Street, Aspen:
273512425007 has been rejected because it was incomplete at the time Ordinance
6, 2022 went into effect at 1:22:26 on March 15. The following items were missing
or incomplete: Structural plans, Residential ECU Calculator, Asbestos Test,
Window and door schedules (to include U-value info), Full written CMP since
Construction Mitigation total area exceeds 2000 SF, WELS pre-submission
checklist (applicant marked “YES” to WELS question). There was not an
opportunity to correct deficiencies after the time Ordinance 6 went into effect, so
items that were uploaded after that time could not be recognized. (0107-0109).
I. Applicable Case Law.
Unless otherwise set forth in a section, each section below must be considered within the
framework of well-settled case law regarding standards for determining whether a governmental
entity acted arbitrarily or capriciously, abused its discretion or exceeded its jurisdiction. Under
BOCC v. Conder, 927 P.2d 1339, 1343 (Colo. 1996),2 a governmental body abuses its discretion
if: there is no evidentiary support in the record for the decision, it exceeded its authority, or it
“misconstrued or misapplied the applicable law.” Review is limited to the record below. Carney
v. Civil Serv. Comm’n, 30 P.3d 861, 863 (Colo. App. 2001).
A governing body abuses its discretion when there is no competent evidence in the record
to support its decision or the governing body misconstrues or misapplies the law. Griff v. City of
Grand Junction, 262 P.3d 906, 909 (Colo. App. 2010); Amer. Respiratory Care Servs. v. Manager
of Revenue, City & Cnty. of Denver, 835 P.2d 623, 625-26 (Colo. App. 1992); see also Leichliter
2 See also Colo. Airport Parking, LLC v. Dept. of Aviation of City and Cty. of Denver , 320 P.3d
1217, 1219 (Colo. App. 2014).
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 4 of 12
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v. State Liquor Licensing Auth., 9 P.3d 1153, 1155 (stating that a court should set aside a decision
of the governmental body if it is clearly erroneous, or contrary to law). “There is no competent
evidence in the Record if the governmental body’s decision is so devoid of evidentiary support
that it can only be explained as an arbitrary and capricious exercise of authority.” Friends of the
Black Forest Preservation Plan, Inc. v. Bd. of Cnty. Comm’rs of Jefferson Cnty., 381 P.3d 396,
400 (Colo. App. 2016) (internal citations omitted). See Griff, 262 P.3d at 909 (citing Condor, 927
P.2d at 1343); see also Stamm v. City and Cnty. of Denver, 856 P.2d 54, 57 (Colo. App. 1993) (“A
reviewing court is required to set aside the final orders of an administrative agency if the agency
applied an erroneous legal standard.”).
II. The Application is not subject to the Ordinance and the City exceeded its
jurisdiction and acted arbitrarily and capriciously in applying the Ordinance to
the Application.
The Owners’ representatives, Jason Aguirre and Russell Linch of RAL Design &
Management, uploaded the Application to SalesForce on March 15, 2022, at 10:30 a.m. (0019-
0036). At that time the Ordinance was not in effect and there was no moratorium in effect at all
regarding residential building permit applications.
Section 3 of the Ordinance provides for exemptions from the moratorium for “[a]ny land
use application for a Development Order or Notice of Approval submitted to the Community
Development Department prior to final passage of this ordinance and deemed to be complete by
the Community Development Department Director” (emphasis added). It is clear that the
Application was submitted prior to the final passage of the Ordinance – the requirement for it to
have been deemed complete is not temporally tied to the passage of the Ordinance. Rules of
English grammar and the canons of statutory construction only require the Application to have
been submitted prior to the passage. The plain language of the Ordinance does not require the
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 5 of 12
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Application to be deemed complete prior to passage of the Ordinance – rather, the Ordinance only
requires that it be “submitted … prior to final passage….” It was therefore inappropriate for the
City to add that requirement when such a requirement was not in the Ordinance itself.
City Staff accepted the Application on March 15, 2022 (0029) and on March 17, 2022,
informed Owners’ representatives that they would be getting back to them about the submission
(0096-0097). The extensive exchanges between Owners’ representatives and City Staff from
March 4, 2022, until March 17, 2022 (while the same building permit moratorium was from
Ordinance 27, Series 2021, was being unlawfully enforced) (0085-0095 and 0097-0106)
concerned the submission of additional information needed and guidance regarding the same for
Owners’ prior submission, application # 22-0510, for an interior remodel only. Owners had every
reason to believe that the submission of the Application was sufficient to put it “in the queue” for
review and issuance, and that they would be given the opportunity to supplement the Application
if needed. Therefore, it is nonsensical to assert that, two weeks after submission, the Application
would be rejected pursuant to the Ordinance.
The record on appeal shows that it is evident that City Staff was aware of this when Ms.
Garrigus sent her e-mail to Jason Aguirre on March 17, 2022, set forth above (0096). The
Ordinance is unclear in its citations to the LUC and use of phrases not found therein; however, it
is clear that City Staff treated the submission of the Application as timely (0029; 0096).
As the Application was submitted on March 15, prior to the enactment of the Ordinance,
the City must process the Application now and not subject it to the moratorium. For the City to
deny the Application on the basis of the moratorium is without merit, is an abuse of discretion,
exceeds the City’s jurisdiction, and invites costly and time-consuming litigation. The City should
either acknowledge that the Application is not subject to the moratorium, or at the very least the
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 6 of 12
2652890.1
City should grant Owner a moratorium exemption per Section 3 of the Ordinance. Section
26.304.050(a) of the LUC states that “if the Community Development Director determines that
the application is not complete, written notice shall be served on the applicant specifying the
deficiencies. The Community Development Director shall take no further action on the application
until the deficiencies are remedied.” (emphasis added). No authority is granted to the City Attorney
to make any determination as to process, nor is such authority granted by the Ordinance. With
regard to building permits, Section 26.304.090(a)(3) states that the “Chief Building Official shall
review the contents of the building permit for completion in a timely manner.”
Section 2 of the Ordinance states that there is a “temporary moratorium on the acceptance
by the Community Development Department of any building permit application for all residential
uses and development, as defined in Section 26.104.100.” However, the Application was submitted
and accepted prior to the enactment of the Ordinance. Pursuant to historic practice and policy in
the Community Development Department, Staff deems applications accepted or complete, for
purposes of continued review, upon submission. Deviation from this was without basis.
III. The City acted arbitrarily and capriciously in rejecting the Application based
upon some unknown standard or procedure set by the City Attorney.
It was arbitrary and capricious for the City Attorney to determine “how to process
applications that came in between the district court ruling and the passing of Ordinance 6,” in a
process that took over two weeks and that only concerned a grand total of four building permit
applications that were received by the City (0110). During this two-week period claimed City
Attorney “review,” Owners’ representatives: (a) were told that the Application “was received and
will be reviewed for completeness in the order it was received” (0082); (b) were told to “standby”
and wait for additional information regarding the Application (0096); (c) then received no
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 7 of 12
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communication regarding the Application or supposed missing items (nothing in Record); and (d)
were informed on March 30, 2022, that “[t]here was not an opportunity to correct deficiencies after
the time Ordinance 6 went into effect, so items that were uploaded after that time could not be
recognized (0107-0109). Section 26.304.090 of the LUC sets forth the procedure whereby building
permit applications are processed; the Ordinance does not change that and does not provide that
the City Attorney had legal authority to make such a determination.
IV. The City’s refusal to process the Application is a denial of due process.
In responding to Owners’ representatives that the Application was rejected, Ms. Muhigirwa
stated that “[t]here was not an opportunity to correct deficiencies after the time Ordinance 6 went
into effect, so items that were uploaded after that time could not be recognized.” (0107-0109). To
arbitrarily decide that although an application was timely submitted, it could not be fully vetted
denied due process to Owners, who were deliberately ready and prepared the Application to submit
as soon as it learned that Ordinance 27 was invalid and unenforceable pursuant to the Pitkin County
District Court’s order enjoining it. Notably, Owners had prepared and submitted application #22-
0510 for an interior remodel only, submitted on February 28, 2022, to comply with the terms of
that invalid Ordinance (0086-0095). Then on March 15, 2022, prior to the enactment of the
Ordinance, Owners’ representatives submitted the Application (0080) and withdrew the prior one
(0096).
It is clear from the record that this decision to reject the Application was made by the City
Attorney, not the Community Development Staff (0097; 0110) – a decision which took two weeks
during which time the Application should have been fully accepted by the building department in
accordance with Section 26.304.090 of the LUC (“Chief Building Official shall review the
contents of the building permit for completion in a timely manner.”). As there were only four
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 8 of 12
2652890.1
residential building permit applications submitted during this time frame, allowing the same to be
fairly processed would not create “a rush of development applications and the related impacts on
the community” as stated in the recitals of the Ordinance.
The Fourteenth Amendment to the United States Constitution provides that no state shall
“deprive any person of life, liberty or property without due process of law.” U.S. Const. amend
XIV § 1. “[C]onstitutionally protected property interests are created and defined by statute,
ordinance, contract, implied contract, and rules and understandings developed by state officials.”
Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir. 2003). The United States Supreme Court and
federal appellate courts define “property” in the context of the Due Process Clause as a “legitimate
claim of entitlement to some benefit.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207,
1210 (10th Cir. 2000). Procedural due process “ensures the state will not deprive a party of
property without engaging fair procedures to reach a decision, while substantive due process
ensures the state will not deprive a party of property for an arbitrary reason regardless of the
procedures used to reach that decision.” Id. “[A] right to a particular decision reached by applying
rules to facts constitutes ‘property.’” Id.3
Here, the City provided no procedure to allow for the corrections, supplements, and updates
to the Application and arbitrarily deprived Owners of a building permit for the Property.
V. The City’s exceeded its jurisdiction by not accepting the Application that could
have been submitted well before March 15, 2022, but for the unlawful adoption
of Ordinance No. 27, Series of 2021.
As described in the previous section, Owners had engaged professionals and were working
3 Owners are adopting herein this section of the Order re: Motion for Preliminary Injunction from
Pitkin County District Court Case No. 21CV30131, Aspen Board of Realtors v. City of Aspen, et
al., a copy of which is attached hereto (“Preliminary Injunction Order”).
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City of Aspen
May 13, 2022 Page 9 of 12
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on the Application, and in fact prepared two applications, one of which would have allowed them
to move forward with a small interior remodel, while the City continued to enforce the unlawfully
enacted Ordinance 27, Series 2021. In the Preliminary Injunction Order, the Court found that the
enactment of this ordinance violated the Open Meetings Law and enjoined the same on March 11,
2022, specifically stating that the “continued enforcement of a likely invalid ordinance
perpetuates” irreparable harm to the public (Preliminary Injunction Order at p. 23). By operation
of law, Ordinance 27 was null and void and unenforceable and invalid since it was enacted in
violation of Colorado’s Open Meetings Law. See C.R.S. § 24-6-402(8) (“No resolution, rule,
regulation, ordinance, or formal action of a state or local public body shall be valid unless taken
or made at a meeting that meets the requirements of subsection (2) of this section.”). The City did
not timely appeal the Preliminary Injunction Order, and the City’s deadline to file an appeal has
now passed. Therefore, by creating the short “window” in which Owner had to submit the
Application, the City exceeded its jurisdiction and acted arbitrarily and capriciously, as the prior
moratorium was determined by the Pitkin County District Court to be invalid, and the City clearly
misapplied and misconstrued the law.
VI. The Application is exactly the type of building project the Ordinance seeks to
achieve, and it is arbitrary and capricious to not process it.
The moratorium imposed by the Ordinance has been extended by City Council until August
8, 2022. One stated purpose of the moratorium is to allow the City time to review and possibly
amend its Code to address climate change and environmental concerns. Another stated purpose is
for the City to amend its Code to address the housing shortage for locals. As described in detail in
the attached letter from Owners’ representative, Russell Linch of RAL Design & Management,
this project will be energy efficient and a model for how construction practices can be changed in
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 10 of 12
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Aspen to meet the City’s environmental goals as set out in the Aspen Area Community Plan and
other governing documents. In addition, Mr. Johnson and Ms. Biel live in the home as year-round
full-time voting residents and intend to continue to do so (they made Aspen their permanent
residence in the summer of 2018, prior to the Covid-19 pandemic). Mr. Johnson first skied in
Aspen in 1977 and spent the summer of 1991 working at the Aspen Music Festival and School.
Ms. Biel’s family opened the White House Tavern on East Hopkins Avenue in May 2013, and
they own the adjacent property as well, upon which the anticipate constructing a second restaurant
sometime this year. Both Mr. Johnson and Ms. Biel live, work and own businesses based in Aspen.
For the City to reject the Application and deny them the opportunity to make their house into an
energy-efficient home with the amenities that they need is arbitrary and capricious in light of the
stated purposes of the moratorium in the Ordinance. This is the type of project that should go
forward.
The moratorium imposed by the Ordinance has been extended by City Council until August
8, 2022. One stated purpose of the moratorium is to allow the City time to review and possibly
amend its Code. Already, the City has not been able to thoroughly review the Code, propose
amendments, conduct public outreach, and amend the same during the moratorium (which, in
reality, actually has already been nearly six months). Therefore, Owners cannot count on the
Application being deemed complete and a building permit issued in August 2022, and at that point
would be subject to whatever new Code provisions were applicable which would likely necessitate
further discussions with City Staff and substantive revisions to the Application. As set forth above,
the Application is not subject to the moratorium imposed by the Ordinance and, under Colorado
law, must be processed under the current LUC. See C.R.S. § 24-68-102.5(1) (land use applications
“shall be governed only by the duly adopted laws and regulations in effect at the time the
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 11 of 12
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application is submitted to a local government”) (emphasis added). Failure to process the
Application until some point after the expiration of the moratorium creates uncertainty for Owners
who cannot move forward with construction plans and who will lose the considerable sums they
expended so far in fees and costs for land planning, architectural, and engineering consultants and
legal expenses and development fees and carrying costs.
VII. Conclusion
The City’s handling of the moratorium, from the start, has eroded the community’s trust.
The City hatched the initial “emergency” moratorium ordinance in secret. And it sprung that
ordinance on the public without giving the legally required notice, which the Pitkin County District
Court found to be in violation of Colorado’s Open Meetings Law. With the enactment of the most
recent moratorium extension ordinance, the City broke its repeated promise to its citizens that the
moratorium would end on June 8, 2022. This Appeal presents an opportunity for the Council to do
the right thing and grant Owners the exemption from the moratorium that it is entitled to under the
facts and the law.
Litigation can be avoided by the City Council’s ruling in favor of Owners in this Appeal
and by directing City Staff to process the Application as fully exempt and outside the scope of the
Ordinance. The City exceeded its jurisdiction, acted arbitrarily and capriciously, abused its
discretion, and denied Owner due process in rejecting the Application as is clearly shown by the
Record and described herein. The City and the public will not be harmed by Council’s overturning
Staff’s determination and not create adverse precedent. Owners, however, will be demonstrably
harmed if the City denies this Appeal and will thus need to seek judicial relief from the Pitkin
County District Court. Further moratorium-related litigation is decidedly not in the City’s or the
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Nicole Henning, City Clerk
City of Aspen
May 13, 2022 Page 12 of 12
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public’s best interest. Grant this Appeal and deem the Application to be exempt from the
moratorium.
Very truly yours,
GARFIELD & HECHT, P.C.
Christopher D. Bryan
Attachments
cc: Jim True, Esq. w/ attachments
Kate Johnson, Esq. w/ attachments
Mary Elizabeth Geiger, Esq. w/ attachments
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Meeting Date: May 17th, 2022
Subject: 506 W Hallam Street, Aspen, CO 81611
Project Applicant: Bryce Johnson and Laura Biel
Project Representative: Russell Linch, RAL Design and Management inc.
Russell@raldm.com 661.373.1981
BACKGROUND
506 W Hallam is a 2 story above ground and a 1 level basement single family home built in 1977 on a
6,000 sqft flat lot. The home has electric floor heaters, electric forced air units, halogen lighting
throughout, and electric hot water heaters. The home has had a remodel done in the 90’s that included
adding a kitchen to the basement level. The home is wood framed with fiberglass batt insulation and a
torch down roof.
The home was purchased in 2017 by Laura Biel’s family (Stonehill Properties LLC) and when Bryce and
Laura married, they decided to move to aspen in 2018, then purchase the home from Laura’s parents in
2021. After moving into the home, they realized they need a proper kitchen and would like to upgrade
their utilities to include natural gas. Laura is a dog trainer and makes homemade dog treats for her 4
dogs. We included in our proposed design a new basement partial kitchen that will allow her to make
dog treats and food for her dogs as well as a new remodeled kitchen using some existing deck space for
her kitchen.
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We started our design in the end of 2020 and had several meetings with planning and building and
safety. Our overall design does not add any lot coverage but recaptures overhang space and deck areas.
These areas of living space exposed to exterior envelope have been studied and are some of the biggest
factors in the home’s overall performance with respect to r values. We want to recapture the space over
the garage as a deck as this provides an access point to the roof for access to pool and solar panels. We
would like this plan to be a model plan for home remodels without an increase to lot coverage.
REQUESTED CHANGES
As the home sits now, the footprint size is 2,848 sqft of a 6,000 sqft lot or 47.5%. Our requested changes
would not change the lot coverage or overall footprint. Our requests are taking a roofed overhang, a
roofed portion of the garage and entrance to create a new deck and portion of a new kitchen. Then
creating a climate-controlled access to basement level from alley. That way there is an access before
heading directly downstairs and a place to drop groceries.
We also are proposing a spiral staircase to access a roof top deck with solar panels and a small pool. Part
of the proposed roof top deck will be a better insulated roof to help with energy and reduce overall
electrical consumption. The double roof would allow for air to pass between the deck and roof and
reduce energy loads of the home. This will allow the snow to not come in direct connect with the
insulation to reduce R value in winter months. The pool is a stainless-steel pan that will be craned in.
The pool is used for Bryce the homeowner therapeutic physical therapy in helping aid his recovery from
2 shoulder surgeries.
PIPELINE STATUS
We would like our project to be considered by the city to be in a pipeline status. By this we would like to
be able to continue to proceed with our designs as is, in return implement these new changes and work
hand in hand with the city to adopt new codes changes for best long term environmental impacts. The
moratorium states that it was put in place for an environmental concern. As it relates to the
construction related waste as well as an increase in home size and the strains larger homes have on
energy consumption. We have carefully studied this project and want to offer the following as a
compromise to being a pipeline project and think our project can be used as a model for all future
projects in Aspen.
Lot coverage, while we are not increasing lot coverage the way the current code reads, we are adding
sqft by adding a deck to our roof. We would like this to be looked at from an environmental impact side.
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By placing a bi decking system and creating a void for airflow our R value of our roofing will gain over 20
points. Then by installing a mid-sized solar array with a battery backup we can reduce our energy
consumption by 30%-40%. Lot coverage with a roof or a deck have no change in energy consumption
and roofed areas should be counted as lot coverage. Railing or planter location again has no real impact
to the lot coverage.
We ask the city to approve our project as complete so we can proceed, in return we will complete our
design with a green building and energy compliance house that not only will use less energy once
completed but prove to the city that there is a smarter way to build and given the opportunity we want
to share our experience with the city to help facilitate the change we believe the city of Aspen needs
and is looking for. Below are a few items we have outlined to show our commitment to helping facilitate
a smart system in place to build.
ENERGY CONSUPITON
Before starting any design work, we have had this home inspected by Charles Cady from Energy Smart
Colorado. He prepared a report showing this home has air sealing problems and exterior envelope that
leaks. This test was done during the winter, so he was inspecting cold air coming into a warm house. We
took this report further and reviewed the r values of the exterior wood framed walls and flat white roof
with only batt insulation and came up with an overall r value of the home’s envelope of R10. We believe
not only replacing the windows and doors but adding a spray form insulation in all wall and ceiling
cavities plus designing a 2-stage roof/ deck and adding ridged insulation to the exterior envelope we can
achieve an overall R value around R30. This would in turn reduce the energy consumption needed to
heat or cool the home. Please see the city of Aspen’s report attached.
Electricity
We took a 3-year average on the KWH consumption and came up with an average of 10,096 KWH per
month. We believe this number will be cut in half once all updates are completed. Along with the solar
we propose installing batteries to capture and reuse peak sun output for consumption at nights or
cloudy days.
We also would be bringing in a natural gas line to exchange electrical floor heaters for gas Fau’s, gas
water heaters for both domestic water and snow melt systems. All Fau and water heaters will have a
dual stage burner to make sure the exhaust is clean and no emissions of fossil fuels from burning natural
gas will be emitted from the home. We can run computer models to forecast future emissions and put a
plan in place to maintain filters for future use, so efficiency is not lost overtime.
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SOLAR AND BATTERY BACKUP
We will be proposing using a mid-sized (21 panel solar array on our roof top). This is enough to generate
a surplus of power and store the surplus in a deep cell battery system. Then each night the battery
system can run Span smart panels to help reduce the homes energy consumption. We will keep with the
Leed design and maintain a system that has enough battery backup to run 30% of the home’s energy
through a year. In the summer this should be closer to 60% and the winter with less sun this will drop
down to 15-20%. The goal is to net 30% a year in reduction of consumption used by our battery backup
systems. We can predict based on weather a yearly consumption report and confirm in plan check phase
we can show a reduction of 30% as part of our plan check.
LANDFILL AND DEMO AND SMARTER SYSTEM TO BUILD
We have had a chance to survey around Aspen as well as Basalt, Glenwood Springs, and Eagle County.
Most contractors from these areas admit to dumping at Pitkin County landfill due to convenience and
drivetime. We like to reference other city’s that use these methods, In Santa Monica CA you must
provide the address you’re dumping construction related debris from, if from outside the city limits
there are additional (usually double the cost) in taxes that must be applied. This helps keep the local
dump for local construction.
For most major remodels a demo and recycling plan is prepared before permits are issued. This must
break down the tonnage that will be sent to the dump and a recycling program to reuse most large
items. For an example, wood, doors, windows usually are resold and trucked off site, all metal is
recycled, all glass is recycled. The concrete is usually pulverized onsite with a crusher and use for base
under new slabs or as drainage filtrations in planters. The only items that end up in the dump are
roofing material, stucco or siding and tile. This usually makes the permitting process longer because you
must source buyers, get all recycling in place prior to getting the permit but it reduced the amount of
demo material that end up in landfills by 75%.
During the construction phase there are a lot of smarter ways to build that reduce construction related
waste. One major item is using ICF vs plywood concrete forms. With ICF, the waste is minimal like a few
large hefty bags of material that goes right back to the ICF plant for recycling vs plywood forms you end
up throwing away 2 sides of concrete forms and supports. Also, the ICF gives a very high R value to
formwork that you don’t get with convention pour in place. Places like Montecito CA, Santa Barbra CA,
Santa Rosa, CA and Malibu all are starting to require ICF used and specified to reduce construction
related debris.
With framing there are system like Framecad that allow you to have all your studs prebuilt off site and
shipped in. This reducing the weight of trucking bringing in raw lumber and throwing 15% back into a
18
landfill. Places like Hawaii are now requiring Framecad software used for any new project or remodel
over 50% to reduce the amount of waste on the islands.
Waterproofing and stone sub straights. Again, we proposed using a Schluter system on all tile sub
straights to reduce the raw material weights and waste. With a kirdi Schluter system they are
waterproof panels that can be installed like drywall. The waste is 100% recycled. Instead of convention
floating that required sand and cement and a waste factor of 20% with Kirdi the waste factor is 0%.
RAL DESIGN MESSAGE
We have had the opportunity to design and build all over the United States and internationally. We
respect the community and respect all that Aspen stands for. We believe we have a unique set of talents
when it comes to designing and thinking outside of the box. We really hope that the city of Aspen sees
our vison for the future and shares our excitement. We would love to help with our designs used as a
playbook to show all the other future applicants how to build and how to be the role models in the state
of Colorado.
We have the ability to show our computer models for a 3, 5, 10 and even 20-year projections to show
our homes remodel has a net savings on energy. We are asking for our project to be considered as
pipeline and let us progress with the design and implementing these proposed changes. This project can
be used as the standard moving forward and greatly effect the way hundreds of homes are designed in
the future. We want to take the lead and work hand and hand with the city to show how we can think
outside of the box and achieve beyond expectations in designing beautiful sustainable homes.
These are just a few options we would like a chance to implement and show the city how serious we are
with a smarter way to build. The way the codes are set up there is no change in construction in the last
50 years.
By implementing a moratorium, you can have a fresh start moving forward. This is the perfect
opportunity for us to show you what we do and why we build in so many places around the United
States. It’s not because we build beautiful homes but because we understand sustainability and the
need to build smart and we want to help the city and our clients get the city moving and hopefully on a
groundbreaking future thinking way to build. We are ready to do the work, work with the city and show
our forecasts for our models, there impacts, and help design an outline the city can use for reference on
all future projects.
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Thank you very much
Russell Linch Owner
RAL Design and Management inc.
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Basement Level
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First Floor
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Second Floor
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DISTRICT COURT, PITKIN COUNTY, COLORADO
506 East Main Street, Ste. 300
Aspen, Colorado 81611
Telephone: (970) 925-7635
COURT USE ONLY
______________________________
Case Number: 2021 CV 30131
Div. 2
Plaintiff:
ASPEN BOARD OF REALTORS, INC., a Colorado
non-profit corporation
v.
Defendants:
CITY OF ASPEN, a Colorado home rule municipality;
ASPEN CITY COUNCIL, TORRE, in his official
capacity; WARD HAUENSTEIN, in his official
capacity; RACHAEL RICHARDS, in her official
capacity; JOHN DOYLE, in his official capacity; and
SKIPPY LEIGH UPTON MESIROW, in his official
capacity
ORDER RE: PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
This matter is before the court on the Plaintiff, Aspen Board of Realtors (“ABOR”)’s
Motion for Preliminary Injunction (“Motion”). The court held a hearing on the Motion on February
23 and 24, 2022. At the hearing, ABOR was represented by its counsel, Christopher Bryan and
Haley Carmer. The defendants, the Aspen City Council (“Council”), City of Aspen (“City”), each
member of City Council, and Mayor Torre, (collectively, “Defendants”) appeared through
attorneys James True, Katherine Johnson, and Josh Marks. The court admitted exhibits 1, 2, 3, 7,
10, 11, 20, 21, 22, 23, 25, 31, 32, 33, 41, 51, 56, 58, 59, 60, 61, A, B, C, D, E, and amended F. The
court heard sworn testimony from Michael Edinger, Tara Nelson, Nicole Henning, Phillip Supino,
DATE FILED: March 11, 2022 10:45 PM
CASE NUMBER: 2021CV30131
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Chris Hendrickson, Bill Guth, Christina Hunt, Ward Hauenstein, Ashely Chod, Torre, Alexandra
George, Lisa Graham, Joe Carpenter, and Pete Strecker.
In addition to the evidence and testimony presented at the hearing, the court has considered
the parties’ written submissions, the pleadings on file, the applicable statutory provisions, civil
procedure rules, case law, and the arguments of counsel. The court is fully advised. Based on the
foregoing, ABOR’s Motion is GRANTED to the extent set forth below.
APPLICABLE LAW
1. Preliminary Injunctions
“A preliminary injunction is designed to preserve the status quo or to protect a party’s
rights pending the final determination of a cause.” City of Golden v. Simpson, 83 P.3d 87. 96 (Colo.
2004). The purpose of a preliminary injunction is to “prevent irreparable harm prior to a decision
on the merits of a case.” Gitlitz v. Bellock. 171 P.3d 1274, 1278 (Colo. App. 2007). An applicant
for preliminary injunctive relief must satisfy the six conditions set forth in Rathke v. MacFarlane,
648 P.2d 648, 653-654 (Colo. 1982). Those requirements are:
(1) there is a reasonable probability of success on the merits
(2) the existence of a danger of real, immediate, and irreparable injury, which
may be prevented by injunctive relief;
(3) the injunction will preserve the status quo pending a trial on the merits;
(4) the balance of equities favors the injunction;
(5) the granting of a preliminary injunction will not disserve the public interest;
and
(6) there is no plain speedy and adequate remedy at law.
Id.
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Each of the Rathke factors must be met before injunctive relief is granted. Id. at 654.
Preliminary injunctive relief is designed “to protect a plaintiff from sustaining irreparable injury
and to preserve the power of the district court to render a meaningful decision following a trial on
the merits.” Id. at 651.
Courts are reluctant to grant injunctions in cases where the injunction will interfere with
the activities of another branch of government. See Rathke. 648 P.2d at 651. Such relief should be
granted sparingly and with “full conviction on the part of the trial court of its urgent necessity.”
Board of County Commissioners of Eagle County v. Fixed Base Operators, Inc.. 939 P.2d 464,
467 (Colo. App. 1997). The reason for this judicial deference is the “doctrine of separation of
powers, which serves to restrain one governmental branch from usurping or restraining the proper
exercise of the powers of another branch.” Id. at 466-67, citing Rathke, 648 P.2d at 651.
“Separation of powers among the legislative, executive, and judicial branches of government is
the foundation on which our democracy rests and the fount from which our liberties flow.”
Markwell v. Cooke, 482 P.3d 422, 423 (Colo. 2021) (observing that “[r]espect for this venerable
principle requires [courts] to afford a certain berth of deference to the decisions and judgments of
[their] sister branches of government.”)
The court may issue a preliminary injunction in connection with a declaratory judgment
action related to an allegedly invalid action of a public body under appropriate circumstances.
Johnson v. District Court, 576 P.2d 167, 168 (Colo. 1978), citing Colorado State Board of
Optometric Examiners v. Dixon, 440 P.2d 287, 290 (Colo. 1968) (upholding a preliminary
injunction restraining enforcement of a regulation prescribing place where optometrists could
conduct their profession).
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2. Open Meetings Law
The OML was enacted in 1972. The legislative declaration within the OML provides “the
formation of public policy is public business and may not be conducted in secret.” §24 -6-401,
C.R.S. To ensure public business is done publicly, the OML requires the public receive “full and
timely” notice of a public meeting. §24-6-402(2)(c), C.R.S. The purpose of the OML is “to afford
the public access to a broad range of meetings at which public business is considered.” Board of
County Comm’rs of Costilla County v. Conservancy Dist., 88 P.3d 1188, 1193 (Colo. 2004). Courts
are to interpret the OML broadly. Id.
A citizen in Colorado has standing to challenge a public body’s action: “Any person denied
any of the rights that are conferred on the public by the OML has suffered an injury in fact, and
therefore, has standing to challenge the violation of” the OML. § 24-6-402(9)(a), C.R.S. The OML
provides for various remedies for violations of its terms. If a state public body adopts a “resolution,
rule, regulation, ordinance, or formal action” at a meeting in violation of the OML, the ordinance
or formal action is invalid. §24-6-402(8), C.R.S. Upon application by any citizen of Colorado,
Colorado trial courts have jurisdiction to issue injunctions to enforce the purposes of the OML.
§24-6-402(9)(b), C.R.S. Finally, if the court finds a violation of the OML, “the court shall award
the citizen prevailing in such action costs and reasonable attorney fees.” §24-6-402(9), C.R.S.
A local public body such as the Aspen City Council “shall be deemed to have given full
and timely notice of a public meeting if the local public body posts the notice, with specific agenda
information if available, no less than 24 hours prior to the holding of the meeting on a public
website of the local public body.” §24-6-402(2)(c)(III), C.R.S. The OML’s notice requirement is
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a “flexible standard aimed at providing fair notice to the public.” Benson v. McCormick, 578 P.2d
651, 653 (Colo. 1978). The court must assess the notice objectively and interpret it “in light of the
knowledge of an ordinary member of the community to whom it is directed.” Town of Marble v.
Darien, 181 P.3d 1148, 1152 (Colo. 2008). The standard is “flexible” and “depends on the
particular type of meeting involved.” Id.
The notice requirement is not intended to interfere with “the ability of public officials to
perform their duties in a reasonable manner.” Id. A public meeting held only to formally adopt a
resolution on an issue that a public body previously decided in a meeting that did not comply with
the OML also violates the OML. Van Alstyne v. Housing Auth. of Pueblo, 985 P.2d 97, 101 (Colo.
App. 1997). The “intent of the OML was not met in cases where the public witnessed only the
final recorded vote.” Id., citing Bagby v. School District No. 1, 528 P.2d 1299 (1974). In Bagby,
the Colorado Supreme Court held that a school board’s practice of discussing the board’s pending
business at private conferences in advance of public school board meetings and then adopting, at
the public meeting, the decisions it had made earlier, violated the OML. 528 P.3d at 1302. The
court explained that when the majority of the public body’s work is done outside the public’s eye,
the public is “deprived of the discussions, the motivations, the policy arguments, and other
considerations which led to the discretion exercised by the Board.” Id. In Bagby, the trial court
issued an injunction requiring all future meetings of the school board, whether termed
“conferences” or not, to be public with proper notice given. Id.
The OML is silent about how its requirements apply in emergency situations. But, its
flexible notice provision means that notice about emergencies can vary depending on the particular
type of meeting involved and the circumstances facing the municipality. Lewis v. Town of
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Nederland, 934 P.2d 848, 851 (Colo. App. 1996). The court in Lewis defined "emergency" in the
context of public notice: "‘emergency’ is defined as an ‘unforeseen combination of circumstances
or the resulting state that calls for immediate action.’” Id. “Thus, an emergency necessarily
presents a situation in which public notice, and likewise, a public forum, would be either
impractical or impossible.” Id.
However, a municipality’s invocation of emergency provisions of its charter is given wide
deference. “When a home rule city enacts emergency legislation in conformity with the provisions
of its charter, the legislative declaration of purpose in enacting the emergency measure is presumed
valid and will not be reviewed by the courts in the absence of a showing of fraud or bad faith.”
Colorado Auto Auction Servs. Corp. v. City of Commerce City, 800 P.2d 998, 1006 (Colo. 1990);
Fladung v. City of Boulder, 417 P.2d 787 (Colo. 1966). “Whether the recital in a municipal
ordinance that it is ‘necessary for the immediate preservation of the public peace, health or safety,’
is true or not, is a legislative, and not a judicial question.’” Fladung, 417 P.2d at 789.
FINDINGS OF FACT
ABOR is Colorado non-profit corporation based in Basalt, Colorado. It is an association of
real estate professionals in the Roaring Fork Valley. The City is a Colorado home-rule
municipality.
This case concerns the City of Aspen Ordinance 27, Series of 2021 (the “Ordinance” or
“Ordinance 27”), which Defendant Aspen City Council (“Council”) passed on second reading by
a unanimous vote at a special meeting on December 8, 2021. The Ordinance imposes a temporary
moratorium on the acceptance of: (1) any new land use applications seeking development orders
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or notices of approval; (2) certain building permits; and (3) the issuance of new short-term rental
(“STR”) permits for properties in the City.
The Ordinance includes 35 declarations about (1) the diminishing availability of affordable
housing and elements of the Land Use Code having been rendered inadequate to respond to the
community’s affordable housing needs; (2) the existence of anthropogenic climate change, the
City’s status as a signatory to various national and global climate agreements, and the City’s
residential development regulations as insufficiently aligned with the City’s climate and
environmental protection policies and regulations; (3) the City’s land use process and procedure
failing to deliver the development outcomes described in the City’s community plan and land use
code; (4) the rapid proliferation of vacation rentals, highlighting a failure of the present permitting
system to provide sufficient data and impacting the actual and perceived value of real estate in
Aspen, (5) a Growth Management Quota System (GMQS) which was developed prior to recent
evolutions in the development environment; (6) the need for the City and the Community
Development Department to have a period of time to review land use codes and regulations and
Council’s desire for staff to conduct an analysis and assessment of zoning, GQMS, affordable
housing, solid waste, environmental stewardship, and other issues, to ensure consistency with the
Aspen Area Community Plan and its Climate Action Plan; (7) the need for a moratorium through
an emergency ordinance to enable a reasoned discussion and consideration of amendments without
creating a rush of development applications and the related impacts upon the community; (8) the
need to hire consultants to assist in analysis; and (9) the necessity of an emergency declaration for
the preservation of public property, health, peace, and safety along with the imposition of a
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moratorium on acceptance, processing and approval of land use applications and on the acceptance
of certain building permit applications.
In passing the Ordinance, Council invoked Section 4.11 of the City Charter (“Charter”),
which authorizes Council to enact emergency ordinances for the “preservation of public property,
health, peace or safety.” Section 4.11 further requires that “[t]he facts, showing such urgency and
need shall be specifically stated in the measure itself.” The City’s Municipal Code (“Code”)
includes notice requirements, and it dictates that in an emergency, “notice shall be as long as is
reasonable under the circumstance.” Code § 2.04.030(c) (emphasis added).
The Ordinance was first considered at a regularly-scheduled Council meeting on December
7, 2021. The Ordinance was not on the City’s publicly available agenda for the December 7
meeting, which had been posted on December 3, 2021 by the City clerk. Council added the
Ordinance to the agenda during the “Agenda Amendments” portion of the December 7 meeting,
when the City attorney introduced the Ordinance and asked that Council consider it. Council voted
unanimously to add consideration of the Ordinance on first reading to the agenda. This was the
first notice provided to the public of Ordinance 27.
Prior to the Council meetings in early December, the idea of a moratorium on short-term
rentals and residential development was discussed at a meeting on November 15, 2021, between
Mayor Torre, Councilman Ward Hauenstein, and Community Development Director Phillip
Supino. Earlier in 2021, Councilman Hauenstein had had a series of one-on-one conversations
with other Council members about the possibility of a moratorium. On November 16, 2021,
Council and city staff held a “work session” at which Council received a presentation on short-
term rentals within the City, and Council told staff to begin drafting an ordinance that would
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prohibit the issuance of STR permits. On November 17, 2021, Mr. Supino began drafting
Ordinance 27. He finished drafting the Ordinance on the afternoon of December 7.
The possibility of a moratorium on STRs had percolated from senior City staff to more
junior staff by November 19, 2021, because around that date, a City staff member would not accept
an STR permit application from a client of witness Ashley Chod, a real estate professional in
Aspen. Ms. Chod and Alexandra George, the president of ABOR, were thereafter told by a City
staff person that STR permits for 2022 were not available because of a “moratorium.” Mr. Supino
testified that around this time, “staff was confused about procedures around land use code
amendments” after the November 2021 work session, and Mr. Supino had to clarify with staff that
“in order to respond to Council direction with respect to the issuance of 2022 [STR] permits, a
land use code amendment was required” and no such amendments had yet occurred.
On December 3, 2021, the City clerk, Nicole Henning, prepared and posted the agenda and
Council packets for the December 7, 2021 meeting. As mentioned above, the agenda did not
include mention of the Ordinance. On December 6, 2021, at 5:18 pm, Mr. Supino sent an email to
the City attorneys and another City staff person with the subject line “Final Ord.” with a document
attached entitled “Ord27 Residential Moratorium 2021.doc.” Mayor Torre testified that he became
aware on the evening of December 6 that the Ordinance would be “coming forward” at the
regularly-scheduled Council meeting the next night.
At a staff meeting on the morning of December 7, 2021, the City clerk Henning was told
to be prepared to post a notice of a special meeting for December 8th. Councilor Hauenstein
testified that he and other Council members saw a draft of the Ordinance at approximately 2:15 on
December 7th. He testified to his understanding that the city attorney had “queried the different
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city Council members and there was consensus” about consideration of the Ordinance. At
approximately 3:00 p.m., Mr. Supino made copies of the Ordinance to pass out at the Council
meeting. Mr. Supino testified that he was under the “working assumption that they did not know
whether it would be considered at a meeting at all” and that Council had many options, including
to “not consider it at all, to consider it a regularly-scheduled meeting, or at a special meeting.” He
recollected that the various procedures were “all on the table.”
Approximately 20 minutes in to the December 7, 2021, Council meeting, the City attorney
proposed that the agenda be amended to include the first reading of Ordinance 27. Council
subsequently voted unanimously to add the Ordinance to the meeting’s agenda. The Ordinance
was read for the first time, discussed by Council and Mr. Supino, and Council scheduled a second
meeting for the following night. At 7 p.m., Henning posted notice of the special meeting scheduled
for the following evening on the City's website and Laserfisch per her typical protocol.
Consideration of the Ordinance was the only agenda item for the December 8 special meeting.
The next morning, just before 7 a.m. on December 8, 2021, Mr. Supino emailed City staff
and stated “last night Council passed on first reading an emergency ordinance putting in place a
moratorium on residential construction . . . I apologize for not providing this group with advanced
notice of this action. It was necessary to keep the possible stoppage to residential construction
quiet until Council was ready to hear the ordinance.” Exhibit 41. He continued, “the Com[munity]
Dev[elopment] staff has developed polices for what applications (planning and building) may be
accepted during business hours today, as there is a window between the first and second reading
for applications to scramble and get an application in.” Id.
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At 7 p.m. on December 8, 2021, Council held the special meeting, took public comment,
and unanimously approved the Ordinance, which was effective upon passage.
CONCLUSIONS OF LAW
1. Reasonable Likelihood of Success on the Merits
a. Declaratory Judgment Claim
ABOR asserts a declaratory judgment related to Colorado’s Open Meetings Law (“OML”)
and seeks a preliminary injunction prohibiting enforcement of the Ordinance while this case is
pending.
As an initial matter, the court concludes ABOR has associational standing to pursue its
declaratory judgment claim. It has long been settled that an organization may assert standing
“solely as the representative of its members.” Int’l Union, United Auto., Aerospace & Agric.
Implement Workers v. Brock, 477 U.S. 274, 281 (1986). This type of standing “recognizes that the
primary reason people join an organization is often to create an effective vehicle for vindicating
interests that they share with others.” Id. at 290. The three-prong test for associational standing
requires (1) the association’s members would have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim
asserted, nor the relief requested, requires the participation of individual members in the lawsuit.”
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977); Denver
Classroom Teachers Ass’n v. Denver Sch. Dist. No. 1, 738 P.2d 414 (Colo. App. 1987).
The test’s first prong is satisfied here because ABOR has members who are citizens of
Colorado who would have standing to sue to challenge the Ordinance in their own right. The
interests ABOR seeks to protect in this case are germane to the ABOR’s purpose, which Alexandra
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George testified was to “represent the best interest of its members,” who are real estate
professionals and other affiliates, including contractors, architects, surveyors, house cleaners, and
others. ABOR has a cognizable stake in the outcome of this court's evaluation of the Ordinance’s
validity. Additionally, the OML claim does not require the participation of individual members in
the lawsuit because, under the third associational standing prong, individual member participation
is not required when an association is seeking prospective or injunctive relief for its members
because “the remedy, if granted, will inure to the benefit of those members of the association
actually injured.” Warth v. Seldin, 442 U.S. 490, 515 (1975). The relief sought by ABOR on its
OML claim is a court order declaring the Ordinance unenforceable. Such a declaration, if granted,
would inure to the benefit of ABOR members affected by the Ordinance.
Turning then to the substance of ABOR’s declaratory judgment claim, the court observes
that the claim raises three separate, though related, issues: (1) whether the Council’s declaration
of an emergency in the Ordinance was justified; (2) whether the text of the Ordinance contains the
“facts, showing [the] urgency and need” for the Ordinance as required by the City’s charter for
emergency ordinances; and (3) whether the public was provided objectively fair notice of the
Ordinance in advance of the December 7 meeting. The court does not reach the first question
because it is a “legislative, not a judicial” question. Fladung 417 P.2d at 789. The answer to the
second question is yes. However, the answer to the third question is no.
The Council’s determination that an emergency existed, one warranting enactment of an
emergency ordinance, is, of course, a legislative act and it is cloaked with the presumption of
validity and entitled to deference. Auction Services, 800 P.2d at 1106; Fladung, 417 P.2d at 787.
In the absence of a showing of bad faith or fraud, this court is without jurisdiction to weigh in on
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the question of whether Ordinance 27 was truly necessary for the preservation of the public peace,
health, or safety. Fladung, 417 P.2d at 789 (whether the recital in a municipal ordinance that it is
‘necessary for the immediate preservation of the public peace, health or safety,’ is true or not, is a
legislative, and not a judicial question.” (emphasis added)). The Ordinance contains 35 recitals
declaring the Council’s rationale and memorializes Council’s conclusion that the Ordinance was
necessary for preservation of the public peace, health or safety. The Ordinance does not appear to
run afoul of the Colorado Supreme Court’s direction that municipalities include a “detailed
statement concerning the specifics of the claimed emergency.” Fladung, 417 P.2d at 789. The
Ordinance’s declaration is hardly “feeble” like the declaration made by the City of Boulder in
McCray which was nevertheless approved, if reluctantly, by the Colorado Supreme Court, which
emphasized its judicial restraint. McCray v. City of Boulder, 439 P.2d 350, 352 (Colo. 1968) (city
council declared construction of a city parking lot an emergency so that Boulder’s citizens could
receive the benefit “increased public health, safety, and convenience” produced by the parking lot
at the earliest reasonable time).
ABOR may disagree with the recitals and the nexus between the recitals and the Council’s
declaration of an emergency, but it is not the court’s job to wade into such a disagreement in the
absence of bad faith or fraud. Colorado Auto Auction Servs., 800 P.2d at 1006 (“the legislative
declaration of purpose in enacting the emergency measure is presumed valid and will not be
reviewed by the courts in the absence of a showing of fraud or bad faith .”). The court has not
found, and the parties have not cited, case law or other mandatory authority which further defines
of “bad faith” or “fraud” in the context of municipal emergency declarations. Black’s Law
Dictionary defines “bad faith” as “dishonesty of belief, purpose, or motive.” BLACK’S LAW
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DICTIONARY (11th ed. 2019). “Fraud” is defined as a “knowing misrepresentation or knowing
concealment of a material fact made to induce another to act in his or her detriment.” Id. ABOR
did not establish at the hearing that the Ordinance was the product of fraud or bad faith on the part
of any City actor. The desire to avoid a rush of development applications was not, as discussed in
more detail below, an emergency justifying a lack of pre-meeting notice. At the same time, such
motivations do not rise to the level of bad faith or fraud. Council and the City was not dishonest
or deceptive about its desire to avoid a rush of applications; indeed, one of the “Whereas” clauses
in the Ordinance specifically references the need for a moratorium through emergency ordinance
to avoid a rush of development applications. There is no evidentiary basis upon which the court
could conclude that Defendants acted in bad faith or fraudulently.
It is worth pointing out that the Colorado Supreme Court declined to invalidate a
municipality’s emergency declaration pertaining to an arguably less pressing issue than climate
change and affordable housing: construction of a parking lot in Boulder. McCray, 439 P.2d at 352.
Similarly, in Fladung, where the Boulder city council declared an emergency about storm sewer
improvements, the Colorado Supreme Court observed that “the degree of the inadequacy of
existing street improvements, and the potential for danger to the public interest . . . are matters for
the exclusive consideration of the legislative body” and again declined to invalidate the emergency
declaration. 417 P.2d at 789. Here, because there was not a showing of bad faith or fraud, the
question ABOR would like the court to answer -- whether the Council’s recital of circumstances
it deemed to be an emergency within the Ordinance was true or accurate -- remains a legislative,
not judicial question. The law is clear that the court is without authority to second-guess the
Council’s invocation of its emergency powers to consider the issues identified in the Ordinance.
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However, there is an important distinction between the Council’s use of the emergency
ordinance section of its Charter and the notice provided to the public about that intended use. As
a “local public body,” the Council is subject to the OML. §24-6-402(1)(a)(I), C.R.S. Any formal
action by the Council requires “full and timely notice” to the public. §24-6-402(2)(c)(I), C.R.S.
Notice is “full and timely” when it is posted “no less than twenty-four hours prior to the holding
of the meeting” and “include[s] specific agenda information where possible.” Id. The City’s
municipal Code mirrors this requirement. Code § 2.04.030(c). For emergencies, the Code provides
that “notice shall be as long as is reasonable under the circumstances,” which is consistent with
Darien’s “flexible standard aimed at providing fair notice to the public” and interpreted “in light
of the knowledge of an ordinary member of the community to whom it is directed.” 181 P.3d at
1152.
For emergency ordinances under Charter § 4.11, neither a public hearing nor a first
publication as provided in Charter § 4.10 is required, and emergency ordinances are effective upon
approval at second reading. The procedures outlined in Section 4.11 for the adoption of emergency
ordinances do not, however, abrogate the OML and the City’s own notice requirements. The
Defendants argue that the emergency provision of its Charter does not require notice, and they
emphasize that the state legislature has not amended the OML to require notice in emergencies in
the wake of Lewis. But the City’s argument ignores that the OML’s notice provision is “flexible”
and the reasonableness of the notice must be viewed objectively through the lens of the
circumstances in which the notice is given (or not given). The City’s position invites the court to
conclude that because the enactment of the Ordinance was done within the rubric of the City
Charter’s emergency provision and the Council employed the correct “emergency” language in
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the Ordinance, nothing required the City to provide notice of the first meeting at which the
Ordinance was considered. The City’s position further invites the court to conclude that the
declaration of an emergency insulates the Council’s determination not to provide pre-meeting
notice from judicial scrutiny. This is a misapplication of the law because it relies on the City’s
subjective determination about what constitutes reasonable notice rather than employing the
objective and flexible standard required by Darien.
Here, Council provided no pre-meeting notice to the public that Ordinance 27 would be
considered at the meeting on December 7. The agenda posted in advance of the December 7, 2021,
meeting included no subject matter to indicate that such an Ordinance would be considered at the
meeting. An ordinary citizen of Aspen did not know and had no way of knowing before the
commencement of the Council's meeting on December 7 that Council would be formally
considering the Ordinance and its moratorium. The public first received notice of the Ordinance
mid-meeting on December 7, when Council amended the agenda to include the Ordinance.
The City characterizes the second meeting contemplated by Charter Section 4.11 as the
antidote which can cure any earlier notice defects. The City argues that Section 4.11 “addresses
the circumstances where, due to an emergency, full and timely notice may not be practical for the
first meeting by requiring a second meeting at which full and timely notice is posted, which is a
reasonable satisfaction of the ‘public’ conditions” of the OML” Closing Argument at 7-8. That
may be true in some circumstances where notice is not practical or possible, but notice was possible
and practical here. And, as Lewis instructs us, an emergency justifying a lack of public notice is
“an unforeseen combination of circumstances or the resulting state that calls for immediate action”
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and “a situation in which public notice, and likewise, a public forum, would be either impractical
or impossible.” Lewis, 934 P.2d at 851 (emphasis added).
One can certainly conceive of emergency circumstances where full and timely notice is not
practical or possible, such as in Lewis, where the town of Nederland was faced with the possibility
of being unable to conduct public business for weeks due to vacancies on its board of trustees and
a 6-week vacation of another trustee, whose absence would prevent the quorum needed to conduct
municipal business. 934 P.2d at 849. Other emergencies such as an active fire, a pandemic, and a
chlorine spill were discussed at the hearing and are circumstances where it is conceivable and
reasonable that a municipality might need to act without first providing public notice and
subsequently provide notice through a second meeting, for example. The circumstances leading
up to the consideration of Ordinance 27 at a meeting without notice, however, were of a different
character than those confronted by the town of Nederland in Lewis or those facing a municipality
grappling with a fire, pandemic, or chemical spill.
When considering the meaning of “emergency” and Lewis’ definition of it in this context,
the following concepts emerge: unforeseen, immediate, carrying potentially drastic consequences,
and impracticality or impossibility of notice. A rush of development and building applications,
even if it would seriously burden the Office of Community Development, cannot fairly be viewed
as satisfying those criteria. That more applications would be forthcoming was not unforeseen;
indeed, Mr. Supino’s email to staff in between the two meetings about the need to keep the
existence of the Ordinance quiet shows that the City foresaw an outcome it wanted to avoid and
sought to take action to prevent it. Fine, but such a circumstance is not an emergency justifying a
lack of public notice for one of the two meetings required to enact an emergency ordinance.
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Moreover, the impact on the Office of Community Development is not a matter of “public
property, health, peace, or safety.” Moreover, the “slow build” emergency, to use a phrase
employed by the Defendants at the hearing, of environmental and housing crises about which the
Council is concerned does not render public notice either “impractical” or “impossible.” The issues
addressed in the Ordinance - affordable housing, climate change, and aligning the City’s land use
code with other City and Council objectives and policies – are longstanding concerns subject to
years of planning and regulation by the City and are therefore not “unforeseen.” Some pre-meeting
notice to the public that the Council would consider an Ordinance imposing a moratorium to
reformulate its response to those longstanding issues was neither “impractical” nor “impossible.”
The Defendants argue that the Ordinance was not ready 24 hours before the December 7
meeting, so it was not “available” to be put on the agenda and the OML only requires notice of
agenda information “if available.” §24-6-204(2)(c)(III), C.R.S. To support this argument, the
Defendants point to the fact that the drafter of Ordinance 27, Mr. Supino, was not done drafting
the Ordinance until after the agenda for the December 7 meeting was already posted. However,
the hearing evidence suggested that the timing of the Ordinance’s introduction to Council was less
about when the Ordinance was prepared or the existence of other circumstances tethered to the
specific date of December 7 and more about when City staff perceived that Council was “ready”
to consider the Ordinance. Council’s readiness to hear a particular Ordinance does not create an
emergency situation justifying a lack of notice. Moreover, there was no specific evidence that the
facts underpinning the emergency declaration had ripened to the point of requiring immediate
action by Council on December 7 without any pre-meeting notice to the public.
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Highlighting the unreasonableness of the City’s notice is the fact that some City staff
thought there was a “moratorium” on STRs in place in November 2021 and had to be instructed
by senior staff that a moratorium did not, in fact, exist, requiring clarification to staff about
procedures for amending the Land Use Code. If time existed for City staff to become aware of the
concept of an STR moratorium, enough so to that a staff member rejected a November STR
application based on a misplaced understanding that a moratorium was in place - which prompted
Mr. Supino’s need to educate certain staff about the process of Code amendments - then surely the
City could have provided more notice to the public about Ordinance 27 than it did. Additionally,
Mr. Supino’s early morning email to City staff on December 8, 2021, between the first and second
reading of the Ordinance, indicated that “ComDev staff has developed policies for what
applications (planning and building) may be accepted during business hours today, as there is a
window between the first and second reading for applications to scramble and get an application
in.” Again, if City staff was able to develop policies for which applications to accept during the
December 7 to December 8 window, then the City certainly could have provided more notice to
the public than the mid-meeting agenda amendment on December 7. Council’s urgent need to act
to address the issues identified in the Ordinance and its desire to limit development applications
do not constitute sufficient grounds for the lack of a pre-meeting notice.
The OML’s declaration of policy provides that the “formation of public policy is public
business and may not be conducted in secret.” §24-6-401, C.R.S. (emphasis added). The formation
of amendments to the City’s land use code is clearly public business. Even where the issues
addressed may be urgent and pressing, the public is entitled to reasonable notice of meetings where
a formal action such as the Ordinance will be considered. The notice provided prior to December
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7 was not reasonable or fair and is at least facially violative of the OML. Formal actions taken by
public bodies in violation of the OML are invalid, and ABOR has established a reasonable
likelihood of success on its declaratory judgment claim.
b. Constitutional Claims
ABOR has also alleged substantive and procedural due process violations under the
Fourteenth Amendment to the United States Constitution, which provides that no state shall
“deprive any person of life, liberty or property, without due process of law.” U.S. Const. amend
XIV § 1. ABOR asserts that “the City has deprived ABOR members and City property owners of
certain property rights without due process of law.” Complaint ⁋ 80. The court concludes that
ABOR has not established a reasonable likelihood of success on these claims.
Procedural due process “ensures the state will not deprive a party of property without
engaging fair procedures to reach a decision, while substantive due process ensures t he state will
not deprive a party of property for an arbitrary reason regardless of the procedures used to reach
that decision.” Hyde Park Co v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). In
order to prevail on either a procedural or substantive due process claim under 42 U.S.C. § 1983,
"a plaintiff must first establish that a defendant's actions deprived plaintiff of a protectable property
interest." Id., quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L.Ed.2d 548
(1972). “The first inquiry in every due process challenge is whether the plaintiff has been deprived
of a protected interest in ‘property’ or ‘liberty.’ Only after finding the deprivation of a protected
interest do we look to see if the [government’s] procedures comport with due process.” American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 60, 19 S.Ct. 977, 143 L.Ed.2d 130 (1999).
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“[C]onstitutionally protected property interests are created and defined by statute,
ordinance, contract, implied contract, and rules and understandings developed by state officials.”
Hulen v. Yates, 322 F.3d 1229, 1240 (10th Cir. 2003). The Supreme Court defines “property” in
the context of the Due Process Clause as a “legitimate claim of entitlement to some benefit.” Hyde
Park, 226 F.3d at 1210. “An abstract need for, or unilateral expectation of, a benefit does not
constitute ‘property.’” Id. “[A] right to a particular decision reached by applying rules to facts
constitutes ‘property.’” Id.
“There is no constitutionally protected right to the most profitable, or desirable use of real
property.” Nopro Co. v. Town of Cherry Hills Village, 504 P.2d 344, 350 (Colo. 1972); City and
County of Denver v. Chuck Ruwart Chevrolet, Inc., 508 P.3d 789, 791 (Colo. App. 1973). A
landowner or an entity with an interest in land “faces numerous restrictions on the full use and
alienability of land depending on the interplay of local, state, and federal law.” Jordan-Arapahoe,
LLP v. Board of County Comm’rs of County of Arapahoe, 633 F.3d 1022, 1026 (10th Cir. 2011).
And, while the right to use property is fully protected by the Due Process Clause, it is also subject
to a proper exercise of the police power. Id.
To have standing, a plaintiff must assert a legal basis upon which a claim for relief is
grounded and “must allege an injury in fact to a legally protected or cognizable interest.” Farmers
Ins. Exchange v. District Court. 862 P.2d 944 (Colo. 1993). Standing goes to the court’s subject
matter jurisdiction and may be raised at any time during a proceeding. Anson v. Trujillo, 56 P.3d
114 (Colo. App. 2002). To constitute an “injury in fact” to satisfy the first standing requirement,
the “alleged injury may be tangible, such as physical damage or economic harm, or intangible,
such as aesthetic harm or the deprivation of civil liberties.” 1405 Hotel, LLC v. Colorado Economic
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Development Commission, 370 P.3d 309, 316 (Colo. App. 2015). The second standing requirement
is that a plaintiff has a legally protected interest. 1405 Hotel, 370 P.3d at 317. A legally protected
interest can be tangible, such as one of property, arising out of a contract, out of a tortious invasion,
founded on a statute which confers a privilege, or intangible. Id., citing Ainscough v. Owens, 90
P.3d 851 (Colo. 2004).
“Colorado has not adopted general public interest standing.” Anderson v. Suthers, 338 P.3d
384, 388 (Colo. App. 2013). “Standing to sue may not be predicated upon an interest of a kind that
is held in common by all members of the public because of the necessarily abstract nature of the
injury all citizens share.” W-470 Concerned Citizens v. W-470 Highway Auth., 809 P.2d 1041,
1044 (Colo. App. 1990).
Here, ABOR is a not-for-profit organization of real estate professionals and affiliates based
in Basalt, Colorado. No evidence was presented to suggest that ABOR itself owns property in the
City. Plaintiff presented the testimony of a variety of witnesses who have an interest in real estate
development, construction, real estate leasing and sales, and short-term rentals in the City. Of those
witnesses, three testified about their ownership of property within the City: (1) William Guth
testified about losing the sale of a property he owns because of the Ordinance; (2) Christina Hunt
testified about the challenges flowing from failing to obtain a short-term rental permit and having
to instead rent to a long-term tenant; and (3) Alexandra George testified briefly about her
ownership of a property in town. However, neither Mr. Guth, Ms. Hunt, nor Ms. George are named
plaintiffs in the case, and the associational standing possessed by ABOR to assert its OML claim
does not extend to asserting constitutional claims for certain of its members. Even assuming the
non-profit organization has an intangible interest in the protection of constitutional due process
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