Aspen Board of Realtors Files Suit Against City

The Aspen Board of Realtors — a local industry association representing more than 800 members and 500 affiliate members — doesn’t take issue with the city council’s right to enact an ordinance affecting short-term rentals and the land-use code; rather, it objects to the way in which it was done, as an emergency ordinance.

That’s according to a lawsuit filed Monday, in which Mayor Torre and each of the Aspen City Council members are individually named as defendants, as well as the city of Aspen as a home-rule municipality.

Ordinance 27 — which serves as a moratorium on all new short-term rental permits (until Sept. 30) as well as new residential development, with a few exceptions (until June 8) — was unanimously passed during a Dec. 8 special city council meeting at which more than 100 community members attended. Of the 38 people who spoke during public comment, 34 were opposed to proposed emergency ordinance, the legal complaint notes.

But the lawsuit does not allege that Ordinance 27 is in itself beyond the scope of city council’s legislative rights in general, but instead claims that the city council, by enacting an emergency ordinance that ABOR alleges was not properly noticed in the meeting agenda, acted outside its own charter.

“Under the Charter Sec. 4.11, council may adopt emergency ordinances in limited circumstances for the preservation of public property, health, peace or safety, and ‘the facts showing such urgency and need shall be specifically stated in the measure itself,’” the legal complaint outlines.

According to Ordinance 27, “a pause in certain types of residential development is necessary in order to assess the current state of the affordable housing program, assess gaps and opportunities in the regulations and delivery of units relative to need and consider future community needs in the housing sector in the context of larger Land Use Code issues.”

Additionally, the city of Aspen via the ordinance notes “anthropogenic climate change and the impacts to the ecological and economic health of the community constitutes an emergency and a threat to the health and safety of the residents of the city of Aspen and global community.” 

But, says attorney Chris Bryan, of Garfield and Hecht who represents ABOR in the lawsuit, climate change is a decades-studied phenomenon and does not constitute an urgent matter requiring immediate action. 

“The only set of facts or circumstances described in the ordinance as being an ‘emergency’ is anthropogenic climate change,” the complaint observes. Bryan issued a Colorado Open Records Act request seeking more information constituting an emergency and, as outlined in the lawsuit, did not receive satisfactory responses. “The response included several studies and reports, none of which discusses how residential development impacts climate change, let alone supports the city's claim that immediately halting residential development in city limits is necessary to meaningfully mitigate the impacts of climate change and their negative effects on the health, safety, or welfare of its citizens. Regardless, no such facts are stated in the ordinance itself as required by the charter.”

Further, the complaint draws a comparison between residential and commercial real estate development, alleging that the latter contributes more than the former to overall climate impacts but that Ordinance 27 only puts a moratorium on residential development, to detrimental economic impact to the ABOR membership.

“Commercial development contributes to climate change in the same manner (and potentially to a greater degree), yet commercial development was wholly excluded from the Ordinance. The commercial and private planes and cars that bring visitors to Aspen and fuel its tourist economy and economic base also exacerbate climate change. 

“The Ordinance makes no factual showing, as required by the Charter, that prohibiting residential development for six months or more is urgently needed to cause a measurable reduction of the impacts of climate change in Aspen,” the complaint continues. “Nor does it identify or explain any new or emergent climate change impacts caused by residential development (or even development generally) that justify an emergency moratorium on development.”

Mayor Torre on Monday was not overly familiar with the language of the lawsuit — it was unclear Monday evening if the city had in fact been served paperwork — but said he looked forward to further dialogue with ABOR and respected its right to dispute the city council’s decision, even if he himself stood by the call that was made.

“This council is hoping to have the opportunity to speak with our community and try to make the best decisions we can for the best future of our community and our town, and I’d hope the board of aspen realtors would like to engage with that and not stop that process, but I’m also a big believer in process and people’s rights to challenge as they wish,” he said. 

As for the use of the emergency ordinance, the mayor continues to agree with the assessment that the current state of affairs as outlined in Ordinance 27 — that more “aggressive measures” are needed to ensure the long-term needs of the community and the preservation of community character in an environmentally sustainable way — together outline an emergency.

“I still believe the emergency nature is justified,” he said. 

Still, not even the mayor wants to see the moratorium persist for the entire six months.

“My hope, as the mayor, is that this city council gets to the code work that we’re intending to do — and we do it in record time and we can put in place any amendments that we seek,” he said, alluding to room for broader dialogue with community stakeholders during the process. “And then we can lift this moratorium sooner than anybody thinks possible.”

By: Megan Tackett I Aspen Daily News I December 28, 2021