Aspen Residential Moratorium Case heard by Colorado Court of Appeals

Two Aspen lawyers sparred before three judges on the Colorado Court of Appeals on Tuesday over the redevelopment status of a single-family mansion in the West End neighborhood.

The appellate judges got a crash course from the attorneys on the city’s development requirements and procedures and the temporary ban on residential development and construction the Aspen City Council initially adopted in December 2021.

The property at the center of the dispute, at 800 Roaring Fork Drive, is where the owner, KDR Trust, is seeking to add 5,680 square feet to what is now a 9,286-square foot residence, along with extensive improvements to the existing home — a new garage with sub-terrain parking, the old garage converted into a bedroom, and construction of an outside pool to replace the old one in the basement, among other changes, according to public records.

KDR Trust hasn’t realized those plans. The city chief building official denied its building permit application, citing its incompleteness, on March 30, 2022. 

KDR Trust also lost an appeal it made to Aspen City Council over the application’s rejection, prompting the homeowner to sue the city in June 2022. KDR Trust stumbled at the district court level in Pitkin County when Judge Chris Seldin ruled in April 2023 that the homeowner’s “application to proceed … had to be complete. There is no dispute it was not. … Accordingly, Ms. (Bonnie) Muhigirwa (the city’s chief building official) acted properly in rejecting the application. … When she did that, (KDR Trust) no longer had an application pending.”

Lawyer Chris Bryan argued to the appellate panel that the city violated its protocol by not allowing KDR Trust to complete its application. KDR Trust also submitted its application on March 12, 2022 — when no moratorium was in place. 

A day earlier on March 11, 9th Judicial District Judge Anne Norrdin ruled that the council’s residential development moratorium, Ordinance 27, was unenforceable. Norrdin’s order was based on evidence that the city didn’t notify the public within the required 24 hours of the council’s December 2021 meeting where it passed the emergency moratorium known as Ordinance 27. Bryan also led that litigation against the city on behalf of the Aspen Board of Realtors. 

The city regrouped and properly noticed a meeting for March 14-15, 2022, when the council passed new emergency legislation, Ordinance 6, temporarily banning residential development. 

Seldin’s order noted that “since Ordinance 6 had put in place a moratorium, (KDR Trust) could not file an amended application. This is all quite straightforward.”

Council members said the moratorium was needed to slow the pace of development and allow time to revise the municipal land-use code to hold property owners to stricter standards. 

“My clients applied before that moratorium went into effect,” Bryan said.

The incomplete building-permit application was nothing out of the ordinary, Bryan told the panel.

“Almost never is an application made to the city of Aspen’s community development department that is nearly full and complete,” Bryan said, adding that city staff abandoned its process by not notifying KDR Trust about the insufficient application within the five days that it was submitted.

Bryan continued: “What the city is trying to say in this litigation is, ‘No, you didn’t have everything in before the new moratorium went into effect and therefore it’s deemed rejected and you have to start over.”

Aspen’s assistant city attorney, Katharine Johnson, countered the building-permit application didn’t pass muster because a land-use application had not been completed for the property. A building-permit application cannot be blessed without land-use approvals in place, she said. 

“Not only was it insufficient, it was fatally insufficient because they would have to go back and get land-use approval before we could ever accept their building permit as complete,” she told the panel.

The building application was lacking nine “substantial items, including structural plans and other items that would be included in any building-permit application before the city,” according to Johnson. 

The city’s Ordinance 6 expired in August 2022, around the same time that the council’s revised land-use code was implemented. Bryan said if KDR Trust loses on appeal, it will need to start over the redevelopment process because of the city’s updated land-use rules. 

“The stakes are high here for my client because all of the architectural work, all of the engineering work, all of the land-use planning work that was all done under the previous pre-moratorium iteration of the code,” Bryan said. 

Panel judges Terry Fox, Pax Moultrie and Timothy Schutz heard the arguments and took the matter under consideration.

By: Rick Carroll | Aspen Daily News I February 21, 2024