Attorneys for Mark Hunt have filed court documents indicating they will appeal a federal judge’s order that could derail the developer’s plans to build free-market residential units next to the Aspen post office.
Mediation also has been held between counsel for Hunt and the city of Aspen, according to records in the Tenth Circuit Court of Appeals.
Those discussions have come in the aftermath of Chief U.S. District Court Judge Philip Brimmer’s March 10 dismissal of all five civil claims Hunt’s North Mill Street LLC brought against the Aspen government in Denver federal court.
The LLC sued the city because it wouldn’t rezone the properties at 465 N. Mill St. and at 557 N. Mill St. to mixed-use, which would allow free-market residential units there. The buildings’ tenants include a coin-operated laundromat, sports consignment store, auto mechanic and a host of other locally serving retailers and services that fall under the city’s SCI definitions.
Both the Planning and Zoning and City Council reasoned in their decisions, respectively rendered in February 2019 and April 2019, that a residential component in that area was inconsistent with the surroundings, which includes the Clark’s Market shopping center. Prior to then, Hunt’s federal suit was pending and claimed Ordinance 29 — which City Council adopted in January 2017 and bans residential development in SCI zones — was unfair. The suit also had not been served on the municipal defendants, but following the city’s rezoning denials at the P&Z and City Council levels, Hunt pressed forward with litigation.
Garfield & Hecht LLC, which represents Hunt, continues to maintain in court pleadings that the city singled out Hunt’s project by denying a rezone. That’s because the city allowed free-market housing at three other SCI-zoned developments in Aspen prior to the adoption of Ordinance 29. Hunt’s LLC acquired the building in June 2018, after Ordinance 29 took effect.
“Ordinance 29 therefore effectively singled out Mill Street Plaza as the only SCI-zoned property barred from engaging in any type of free-market residential development, rendering its future redevelopment economically unviable,” said Garfield & Hecht in what is called a docketing statement, which was dated April 14 in the Court of Appeals.
Hunt’s LLC has until June 22 to file an opening brief.
Its docket statement says it will asks the Court of Appeals to determine whether Judge Brimmer erred on a number of decisions in his March order, including whether Hunt’s LLC exhausted all avenues in the land-use approval process.
Brimmer said the LLC’s claims were “unripe,” meaning Hunt litigated prematurely. The city had argued, and the judge agreed, that the LLC could have sought variances to approve the project through a planned development. Hunt’s attorneys have argued that would be a “futile” effort.
Even if Hunt’s appeal is denied entirely or partially, he still could refile the original lawsuit because Brimmer dismissed its claims “without prejudice,” which means the LLC could renew the litigation with updated claims meeting certain legal criteria.
Hunt paid $15 million for both the 465 N. Mill St. property, a 20,000-square-foot building that sits on 49,901 square feet of land, and the 557 N. Mill St. address, an 8,000-square-foot building on 6,301 square feet of land, according to property records. The amount Hunt paid was $5 million less than the sellers, which included members of the Garfield & Hecht firm, bought the property for 11 years earlier.
rcarroll@aspentimes.com