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Aspen property owners challenge city’s affordable-housing fees

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The Colorado Court of Appeals will decide whether a limited liability company can advance its claim that the city has charged developers of luxury homes in the West End area excessive affordable housing rates.

A three-judge panel of the state court of appeals held oral argument on Nov. 16 in Denver. The LLC alleges that the city overcharged developers of luxury single-family homes in the West End by charging them impact fees. $755,278 in affordable housing relief.

One of the allegations in this lawsuit seeks a declaratory judgment that the city miscalculated the charges, refunded the property owners the difference in the amounts they were erroneously charged, and paid other damages.

The second motion seeks the court to find that the city “abused its discretion and acted in an arbitrary and capricious manner.”.

According to the lawsuit, the landowners paid the fees the city required before issuing the building permit.

The merits of the lawsuit are not a matter before the Court of Appeal. Instead, a panel of three judges is tasked with deciding whether plaintiffs are eligible to sue the city.

District Court Judge Dennis Lynch didn’t think so, based on a July 2021 order to dismiss the case. The order argued that the plaintiff was ineligible to sue because it was not the actual landowner who paid for the housing in question, and agreed with the city’s position through a motion to dismiss the lawsuit. Regarding government-imposed development impact fees, Lynch cited a state law that “specifically designates landowners and those who paid impact fees during the development process as parties that can be challenged.”

Lynch’s order stated that “it is incontrovertible that the plaintiff is not the landlord” of the property subject to the fee.

Plaintiffs also amended Lynch’s action to seek permission to challenge a second housing charge in the amount of $543,539. From 1940 he was auctioned to the U.S. Forest Service, which owned the undeveloped land until 2013.

That motion was also denied by Lynch in July 2021. That decision is also being appealed.

The plaintiff identifies itself as DR 24F16, a limited liability company established on February 3, 2021 by Aspen law firm Garfield & Hecht, according to the Secretary of State’s Register of Companies. DR 24F16 does not own either parcel, but instead is the “assignee” of claims from the actual owner of the property.

In court filings, Garfield & Hecht’s attorneys said that even if the court of appeals upheld Lynch’s dismissal, the judge would order that the complaint be amended to identify the property owner as the plaintiff in the case. claimed to be able to overturn the denial of her motion to do so.

In a related matter, two property owners sued the city in January with similar allegations, at least on paper. The plaintiff is Forest Lookout II LLC, owner of 426 N. Eighth St., for whom he paid $755,278 in affordable housing relief, and owner of 412 N. 8th St., for $543,539. Identified as Aspen Forest 8th St. for $ paid.

Public financing documents identify Aspen hotelier Michael Brown as manager of Forest Lookout II. Aspen Forest 8th St. is based in Las Vegas and is linked in real estate records to former Wynn Resorts Chief Operating Officer Marc Schorr.

“If the case goes to final judgment and the property owner wins, does this case make no sense?” asked Court of Appeals Judge Lino S. Lipinsky de Orlov at a hearing in November.

Boulder’s attorney, Joshua Marks, defended the city of Boulder at a hearing in November and said, “It should be.”

Boulder’s attorney, Joshua Marks, defended the city of Boulder’s side and said, “It looks like you can only take a bite of an apple.” “But technically there is no proof that the assignee (DR 24F16) should not advance on this claim (appeal). It has to be the property owner. We will have a day in court to determine if property was enacted and property was imposed.”

The Court of Appeals is the third forum for litigation, originally submitted in February 2021 in the U.S. District Court in Denver, before being refiled in Pitkin County District Court.

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