Judge wants to hear town of Aspen over moratorium
Aspen City Council’s temporary stop on residential development and short-term rental permit applications, which came into effect immediately by an emergency ordinance it passed on December 8, will remain in place for now. .
Judge John Neiley’s written decision came on Tuesday in response to a case filed by lawyers for the Aspen Real Estate Board, which requested a Temporary Restraining Order (TRO) to prevent the city from enforcing the order. Through the company Aspen Garfield & Hecht PC, the TRO motion was filed on Monday at 11:30 p.m. in Pitkin County District Court and came 11 hours after the board of directors filed a complaint about the same question.
Neiley’s order said he could not issue an ex parte TRO, which would have been granted without knowing the city’s position.
“At this early stage of the litigation, the court is not inclined to question the city’s decision-making process, let alone issue a restraining order against it ex parte,” the judge wrote in a four-page letter. and a half pages. decision. “The court is not inclined to issue an ex parte restraining order against the city on such a thin case. The City deserves an opportunity to be heard.
The board’s complaint and the TRO motion argued that the city council deprived the public of due process and violated the city’s charter of autonomy and land use code by passing an ordinance under the auspices of an emergency.
An emergency ordinance can be passed in an unusually quick order, which the city council did on December 7 and 8 by approving the moratorium. Typical ordinances are publicly notified and take longer to pass, first by passing a first reading, then at least seven days before a public hearing is held and when a second reading is voted on by the government. advice.
City council moratoria on residential development and short-term rentals came in the form of Emergency Ordinance 27.
Part of the urgency to pass the moratorium, according to Ordinance 27, was the environmental damage caused by residential development activity in Aspen, which “contributes to climate change through the transportation required to build and maintain residential properties, the energy and the impacts inherent in the creation and supply of materials required for residential development, the consumption of natural resources required for the operation of residential structures, and the generation of solid waste and associated disposal impacts resulting from the construction and operation of residential structures.
Further, the ordinance stated that “man-made climate change and its impacts on the ecological and economic health of the community constitute an emergency and a threat to the health and safety of residents of the town of Aspen and of the world community ”.
Short-term rentals, which do not exceed 30 days, have also changed the real estate landscape in Aspen, according to the ordinance, noting that “recent developments in the residential real estate market and economy, including new financial dynamics, the proliferation of term rentals, have made elements of the land use code inadequate to meet local needs for affordable housing.
Garfield & Hecht attorney Chris Bryan, who is advocating on behalf of the board, said on Tuesday that other government jurisdictions have passed moratoriums related to STRs and development, but not through the fast-track means of declaring a emergency.
“Due process is important and this is a big problem, and we allege that this emergency ordinance was not made in accordance with the city’s own law,” he said, adding that the ordinance draws sweeping conclusions and lacks details to justify an emergency.
Neiley’s order denying the TRO affected the due process argument.
“(Aspen Board of Realtors) is correct that if the city fails to abide by its charter and land use code by not providing proper notice and other procedural safeguards, there could be a viable claim in due process, ”the ruling said.
The question is therefore whether there was a real emergency that justified the order, according to the judge’s decision. This is a question in court that is currently unanswered.
City attorney Jim True could not be reached for immediate comment on Tuesday. The city has 21 days to respond to the TRO request from the date of service.
Neiley’s ruling also said the TRO motion failed to adequately demonstrate that the moratorium is causing economic harm to the 800 members of the Aspen Realtors Board, as well as 500 other affiliated members which include architects, planners, contractors, property managers, lawyers and others in the residential development and short-term rental industry.
“At this point, the claims of immediate harm and irreparable harm are purely speculative,” the ruling said. “At a minimum, the Court believes that the City should be given the opportunity to defend itself against the allegations (ABOR) of irreparable harm and to develop the case more fully.”
Bryan said the moratorium, now three weeks old, has already put a “bunch of people stuck in limbo – homeowners who might want to renovate their homes, people who want to sell their homes but no one is going to buy their properties.” unknowingly and understand the new land use code changes that the city council has yet to consider.
The lawsuit, meanwhile, seeks an injunction and a declaratory judgment that the moratorium is unenforceable. The lawsuit identified the five council office holders as individual defendants, as well as the town of Aspen.
The residential moratorium is in place until June 8, with the short-term rental break due to be lifted after September 30.