ADU owners file motion to make appeal easier in case against town

Plaintiffs ready to move on to appeal 

By Mark Reaman

The plaintiffs in a lawsuit with the town of Crested Butte over requirements to actively rent their accessory dwelling units (ADUs) have filed a motion for “reconsideration, clarification or certification” in Gunnison District Court. The motion is in response to a ruling by district court judge Steven Patrick issued on May 3 that made it clear Patrick feels the town was within its rights to clarify the law and deed restrictions governing the ADU regulations.

Filed on behalf of John Kiltz of Sopris 715, LLC and Christopher Mize, who both own ADUs in Crested Butte but do not actively rent them, the motion states that the deed restrictions are essentially recorded contracts and cannot be changed. According to the motion filed on Friday, May 12, when the ADUs in question were purchased, “the Town agree(d) to allow a zoning exception and reduced tap fee in exchange for an agreement by the owners not to rent their units for less than six month periods.”

The plaintiffs say they are abiding by the original regulations.

“Reaching the conclusion that the deed restrictions incorporate by reference future amendments to the Town Code’s definition of long term rental is tantamount to handing the Town a blank check to do what it will with Plaintiffs’ property,” the motion states. “An owner would find it absurd and certainly extremely ill-advised to ever enter into such an agreement.”

The motion says that Patrick ignored a “vast body of case law” when he wrote that “the Crested Butte Municipal Code, like any other municipal code, is not a static document: it is subject to amendments and changes…”

Filed by attorney Marcus Lock and Law of the Rockies, the motion also says that the town has done more than just attempt to simply  “clarify” the law through recent amendments to the original 1990 ordinance.

“Not only do the amendments accomplish a number of substantive changes as argued at length in the briefing, the Order mistakenly states that, ‘Each revision/amendment declares itself to be a clarification of the Council’s original intent.’ The 2013 ordinance added the residency requirements and reflects that it is an amendment to ‘amend the defined term ‘Rental, long-term’ to include residency requirements.’ There is no question that these are provisions that the Town wants to add, but they are nevertheless new substantive requirements.”

Part of the reason for the recent filing is to make clear whether there is any reason to proceed with the District Court proceedings or whether the next substantial step should be an appeal of Judge Patrick’s ruling.

“Given that the Order effectively disposes of the central issues in the litigation, the sooner the Order may be appealed the less delay the parties will experience in reaching a final judicial resolution of the dispute,” the motion states.

Lock did not wish to comment further on the motion. Neither did attorneys for the town.

A court conference is scheduled for May 24.