Aspen City Attorney Slams Allegations of Bad Faith and Fraud
In a scathing response to allegations that the Aspen government circumvented open meeting laws and secretly plotted an order to temporarily freeze residential development and new vacation rental permits, City Attorney Jim True , said on Friday that no rules were broken and the evidence proves it.
“There was no breach,” True said. “There is not a shred of evidence of bad faith, there is not a shred of evidence that it was done inconsistently with the language of the law, there is no shred of evidence that it violated its own charter…or acted in bad faith in enacting this…and therefore, this court should dismiss plaintiff’s motion for a preliminary injunction.
True’s comments were part of the city’s closing remarks on the second and final day of the court hearing on the Aspen Board of Realtors’ motion for a preliminary injunction to lift the city council’s moratorium that was approved on Tuesday. December 8.
Because it was proposed as emergency legislation, the ordinance went into effect immediately after it was passed. The council approved the ordinance in first reading on December 7 and in second and final reading on December 8. A non-urgent order would have required at least two weeks between first and second reading. Moreover, a non-emergency order would not have taken effect until 30 days after its adoption.
While True and ABOR attorney Chris Bryan summarized their arguments to conclude the hearing, both parties have until the end of the business day on March 4 to file written closing arguments for the judge’s consideration.
“I will look forward to your submissions next Friday and will try to get an order as soon as possible after that,” said 9th Judicial District Judge Anne Norrdin, who is presiding over the case.
Norrdin’s decision concerns whether the moratorium will remain in effect until the scheduled expiry dates of June 8 for residential development and September 30 for short-term rental licenses. Coming to a decision will involve reviewing case law, open meeting law, city charter and state law, and sorting through court arguments and testimony from this week where each side offered interpretations. different from how the polarizing moratorium came about.
The ABOR argued that Emergency Ordinance 27 declaring the moratoriums, which the city council passed on Dec. 8, was enacted without public notice and in violation of the Open Meetings Act. ABOR also argued that the emergency powers used by city officials to quickly pass the ordinance — which residential development adds to climate change — lacked merit and were a ruse to get it passed quickly and immediately.
“Calling for an emergency when there isn’t one,” Bryan argued, “really doesn’t serve the public interest because it makes us lose faith in the government.” It’s not good. We need strong government institutions that people trust. And when people are sneaking around and not noticing them on an agenda, that community is very suspicious of what their government is doing in secret.”
A main point of contention concerns the law on public meetings and the proper notification of the public.
Bryan argued this week that the city ignored both state rules and its own rules that agenda items must be posted at least 24 hours before city council meetings.
In the case of Ordinance 27, it was not placed on the agenda for the Aspen City Council meeting held on December 7. After the meeting began, however, the agenda was changed to include the ordinance, and hard copies of it were given to the city. Council members, city staff and those present.
“They didn’t (note ordinance 27 before the meeting) because they didn’t want to give notice,” Bryan explained.
True countered that while 24 hours notice for a public body meeting is required, it was not legally necessary to be aware of the intended order. He cited the Colorado Open Meetings Act as it applies to notice of government agency meetings. It is said: “Posting should include specific agenda information wherever possible.”
“Mr. Bryan likes to omit the phrase ‘whenever possible,'” True argued.
The city’s agenda for the December 7 meeting was posted online on December 3, the Friday before the next Monday meeting. Order 27 was not on the agenda.
Bryan, however, argued that the city had already drafted it on Dec. 6, when Community Development Director Phillip Supino emailed his version of the order to city prosecutors. The city had ample time to notify the public of the ordinance before the meeting, Bryan said.
“It was shrouded in secrecy and came as a surprise to the community,” Bryan said. “And not giving notice – that’s a violation of the law.”
True countered that the two-day hearing for Order 27 gave the public plenty of opportunities to hear and learn what the Aspen government was planning. City Council’s actions on Ordinance 27 demonstrated they were playing above the board, True said.
“What is the main evidence that the council wanted this done in public? It was that it was added to the agenda of a regularly scheduled and well-attended public meeting,” he said. “He knew he had to have a second meeting and he had this second meeting which about 100 people watched and at least 30 to 40 people actually attended addressing the council.
“It is the transparency of government that this city council believes very, very strongly in. There were two well-attended, well-thought-out public meetings and they passed this and it was submitted by the amendment to the agenda and was authorized by the open meeting law and the city rules.
Bryan and the ABOR also argued that the climate emergency declared by the city to justify the ordinance posed no immediate threat to the peace, safety and health of the Aspen community. An expert witness hired by ABOR agreed.
“There is no scientific basis for declaring anthropogenic climate change emergency conditions in the City of Aspen due to the spatial and temporal scale of global climate change,” concluded professional environmental engineer Lisa. Graham in an exposition on the case. “The moratorium on market residential development was not based on a scientific assessment of quantified greenhouse gas emissions to differentiate between types of land development: commercial, affordable housing, lodges and free market residential. There is no data to quantify that greenhouse gas emissions associated with anticipated open market residential development demands would be avoided or increased. The moratorium on issuing short-term vacation rental permits did not assess the greenhouse gas impacts of different outcomes, such as increased vehicle emissions.
Graham also testified on Friday.
True, however, says it is not for the court to determine the validity of an emergency declared by a public body.
“I recognize that the plaintiff wishes the court to take a position that allows it to resolve the dispute that the plaintiff wishes to raise as to the existence of an emergency,” True said, adding that the case law demonstrates that a declaration of urgency is a “legislative and not a judicial function”. and is “presumed valid and will not be reviewed by the courts in the absence of evidence of fraud or bad faith”.
“Fraud or bad faith is the fundamental aspect of this case where the plaintiff’s case is sorely lacking,” he said. “The legislator acts as he is supposed to act. The court is unable to review such decisions unless there is evidence of bad faith or fraud. And there’s nothing here, not a shred of evidence of bad faith or fraud on the part of the City of Aspen.