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Aspen City Council’s temporary ban on residential development enacted in December 2021 permanently expired in September 2022, but it continues to plague redevelopment plans for a luxury home in the West End neighborhood.
In the third setback to an extensive redevelopment proposal, a three-judge panel from the Colorado Court of Appeals supported findings by both the Aspen City Council and a Pitkin County District judge that the community development department properly rejected the homeowner’s building-permit application on March 30, 2022.
The appellate panel delivered the opinion March 7 after hearing oral arguments from lawyers on Feb. 20 in Denver.
“We affirm the City Council’s decision and the district court’s order,” wrote Judge Terry Fox in the 30-page opinion. Judges Pax Moultrie and Timothy Schutz concurred.
Its redevelopment efforts hamstrung by the moratorium, KDR Trust has been litigating to increase its 9,286-square-foot, single-family home by another 5,680 feet. Among the improvements would be a new garage with subterranean parking, a new bedroom converted from an old garage, and construction of an outside pool to replace the old one in the basement.
The council adopted the moratorium through emergency legislation, called Ordinance 27, in December 2021. The ban was lifted March 11, 2022, when 9th Judicial District Judge Anne Norrdin declared it was unenforceable because the council passed it during public meetings that weren’t properly noticed. The council went by the book when it re-introduced the legislation, changing it in name only to Ordinance 6, on March 15, 2022.
During the ban’s respite, KDR Trust submitted its application on March 14, but it was rejected by the community development department, which cited the application’s incompleteness.
KDR appealed the community development department’s denial during a hearing held May 17, 2022, before Aspen City Council, which upheld the decision. The next stop for KDR was Pitkin County District Court, where it sought a judicial review of the council’s decision.
In April 2023, Judge Chris Seldin ruled that KDR’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.”
Aspen Assistant City Attorney Katharine Johnson also argued to appellate judges in the February hearing that the building-permit application could not be approved because a land-use application had not been completed for the property. A building-permit application cannot be authorized without land-use approvals in place, she said.
Arguing to the judges for homeowner KDR Trust, Aspen lawyer Chris Bryan said the community development department wrongly denied the application even though it had been filed during the three-day window the ban wasn’t in effect. And though the department deemed the application incomplete as the reason for its rejection, that wasn’t their normal operating procedure, he argued.
KDR’s legal arguments before the Colorado appeals court were that that the district court abused its discretion by allowing the city to file case pleadings past deadline; that the city council misinterpreted the land-use application exemption on Ordinance 6 when it upheld community development’s rejection; and that the city council erred when it determined that KDR could not amend the application to make it complete. KDR also argued Ordinance 6 was “unconstitutionally retrospective” because the city would not allow KDR to file an amended and complete building-permit application.
“But Ordinance 6 does not apply retroactively,” the appellate ruling said. “Moratoriums, by their very nature, apply at a specific moment in time and pause activity from that moment.”
KDR Trust could submit another building-permit application, Bryan has said, but the remodeling plans it wanted to pursue were created to conform with the city’s land-use code as it was in 2021. During the motorium, council members made sweeping changes to the land-use code in 2022.