Aspen considers extension on residential development moratorium

More time needed for consultants to finish studies, legal review and city staff to engage with community

Residential construction on a home on South West End Street in Aspen in March. Aspen City Council is considering extending its moratorium again on residential development by two more months. (Kelsey Brunner/The Aspen Times)

The moratorium on new residential development in Aspen could be extended by two months, so instead of the planned June 8 expiration, it would last until Aug. 8.

Aspen City Council will consider a new ordinance on Tuesday that extends the moratorium, which was initially passed on Dec. 8 and then again in March due to a technicality based on a judge’s ruling in a lawsuit levied by the Aspen Board of Realtors.

The work associated with having the development community mitigate for growth in the real estate market, which has experienced an explosion in Aspen over the past two years, is taking longer than expected.

Staff in the city’s community development department were expected to bring to council this month and next proposed land-use code amendments for adoption.

Aspen Mayor Torre, who has been telling the real estate and development community since December that the moratorium is a brief pause for the city to make necessary changes, said a little more time is needed.

“The staff laid out a plan and project they thought was going to be achievable,” he said Monday. “Yes, it’s disappointing of course, we wanted to get this work done as quickly as possible.”

Changes to the land use code are meant to ensure that development regulations support community policies, according to Phillip Supino, the city’s community development director.

The moratorium on new land-use applications seeking development or approval and certain building permits for residential uses, as well as issuing permits for short-term rentals through Sept. 30, is so officials can align the city’s rules concerning growth, affordable housing mitigation, climate change and other impacts that the industries are creating on the resort community.

City officials have argued that the moratorium is a necessary tool to pause development while new regulations are created, and it ensures that that activity does not further exacerbate what have been described as emergency conditions in the community.

That is what prompted the Board of Realtors to file a motion for preliminary injunction in January, arguing that people working in the real estate industry were unfairly targeted by an ordinance that was not properly noticed and was approved quickly via disingenuous emergency legislation.

A judge is still reviewing the case and has not made a full ruling but did rule in March that council violated the open meetings law when it first introduced the moratorium ordinance on Dec. 7.

Torre said the litigation is one factor in the delay of work.

“The lawsuit slowed us down,” he said. “It’s not something we are excited about, and it’s our goal to get the work done as quickly as we can.”

That is Supino’s goal as well, he said, but due to constraints like the pandemic, staff and community capacity, the complexity of the topics and potential responses, and the contentiousness of the issues, the original timeline does not afford sufficient time for the work to be completed under the protection of a moratorium.

“There were a lot of variables thinking about what council was asking us to accomplish,” he said, adding that the work left to be done by the city’s consultants is substantial.

That includes an affordable housing mitigation study, as well as a short-term rental fee nexus study and a full legal review of the city’s work product prior to any code amendments presented to council.

The two-month extension is the shortest schedule possible, Supino noted.

That also allows time for city staff to continue engaging with the community at large and with those who work in the development, real estate and short-term rental industries.

Council on Tuesday will consider Ordinance 8 on first reading, which pushes the moratorium until August.

A special meeting has been scheduled for May 3 for council to review the ordinance on second reading.

By state statute, there is a 30-day effective period before code amendments approved by council go into effect.

Because it is impossible to secure passage of the amendments prior to June 8, it is likely the city will see a rush of land use and building permit applications under existing codes, Supino said.

That’s why he recommended approval of the new ordinance so staff, the public and council have sufficient time to process, take public comment and adequately consider amendments to the land use code.

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