This discussion is obsolete, but has been left up for historical context.
NOTE: This discussion will be easier to follow if you look at the two proposals on Page 2 first.
If we go to the polls with just the Direct Connection question, people who want the Cut and Cover tunnel would combine with the vote of people who oppose using the Marolt property for anything. We would have another NO vote on a highway solution.
If we go to the polls with just the Cut and Cover question, people who don’t like the tunnel idea would combine with the vote of people who won’t agree to using the Marolt for anything. We would have another NO vote on the highway.
I’ll vote for yours, if you’ll vote for mine.
The best answer for this mathematical problem is to move forward with both alternatives. Literally, have everyone sign both petitions and vote for both designs so that we don't cancel each other out. At least this way, both groups have a good shot at ending up with their favorite, and we more than double the odds of getting the entire entrance fixed.
For people who don't like the tunnel: Would you rather spend four seconds in a tunnel or twenty minutes in a traffic jam?
For the people who do like the tunnel: Would it really be so bad if the trail system goes under the highway, rather than over it?
Legal Issues
Highway 82 is a state highway built with federal funds, so neither the citizens nor the city council of Aspen can unilaterally declare a preferred alternative for the entrance. The federal Environmental Impact Statement (EIS) process governs the procedures which the state must fulfill to qualify for federal funding.
Early in 2006, in order to satisfy EIS regulations, the Colorado Department of Transportation (CDOT) began a “written reevaluation” of the "preferred alternative" of 2 highway lanes and light rail, “to determine whether the environmental document and project decisions remain valid, prior to potential advancement of project elements”. This step is required if no major action to advance the project has occurred within three years.
Federal EIS procedures rely heavily on the input of elected officials, established public planning processes, and special public meetings used to gather citizen comment. Ballot questions are not a direct part of those procedures. Consequently, Aspen voters could approve one or both of the four lane highway designs which are the subject of this petition drive, but still have the preferred alternative which is recognized by CDOT under the federal EIS process remain as a two lane parkway and light rail system.
The ballot questions are necessary to satisfy a City of Aspen charter requirement for voter approval of any change of use on property originally acquired for open space purposes. In a completely separate process, a written reevaluation specific to the alternative chosen by the voters must be completed before that alternative can be built. Once both requirements are fulfilled, legal challenges can still be made by private citizens who wish to block construction of the highway.
For all the above reason, and although it may seem extremely unusual, we will be asking voters for a majority vote in favor of both four lane designs. The alternative with the highest number of votes will be first in line for consideration, but CDOT and the Federal Highway Administration, in order to satisfy regulatory requirements and successfully defend against legal challenges, could, while still acting in good faith, choose to accept the second place alternative. We want to provide them that option because of the enormous body of regulations which may apply to any project, combined with the unique circumstances of this particular highway:
1.
A group calling themselves “Friends of Marolt Park” (FMP) filed a lawsuit prior to construction of the roundabout, as that was the first small step in constructing the two lane parkway with light rail plan called for in the Entrance to Aspen Record of Decision (ROD).
Although their intention was to stop the project, the court would not satisfy that desire with an injunction, so construction proceeded while the court case was decided.
The FMP suit resulted in the court siding with the Federal Highway Administration, who argued that they could build any option other than the original preferred alternative, “as long as the selected option was fully evaluated”. This outcome was exactly the opposite of the one hoped for by the “Friends”, who prefer that nothing be built on the Marolt property.
No decision was provided on the other main FMP argument relating to use of open space, because the court agreed that construction of the new highway through the Marolt property, “is not imminent or even foreseeable”.
As soon as construction is imminent or foreseeable, everyone pretty much expects FMP to re-file their lawsuit.
2.
The “Direct Connection” alternative, which is the subject of one of our petitions, was originally developed before the EIS called “East of Basalt to Aspen” was split into two parts: “East of Basalt to Buttermilk” and “Entrance to Aspen”. At the time of the split, the Direct Connection was an integral part of the preferred alternative for the entire highway segment between Basalt and Aspen. Aspen voters approved construction of the Direct Connection in 1990, and funding was in place.
The political decision of the Aspen City Council to kill the Direct Connection has no basis in the federal laws which govern the EIS process. There was no valid regulatory reason to stop the East of Basalt to Aspen EIS, and create a new document, and separate project, specifically for the last 2 miles of highway into Aspen. As a result, the Entrance to Aspen EIS, from which the “Modified Direct, Cut and Cover Tunnel” alternative is taken, is on legal ground as shaky as you’ll find, and it is conceivable that the ROD could be abandoned by CDOT at some point.
Consequently, it was especially desirable to reach back to the prior EIS to establish a “clean” record for one of the alternatives. That era was also the only source for an illustration of the Direct Connection design, as this option was heavily suppressed in the later process.
3.
The primary innovation in the Modified Direct version of the entrance, aside from slightly sharper curves, is the Cut and Cover Tunnel. As the name implies, this will be as much a mound as a tunnel, as there in no topographical need to tunnel through the Marolt property. However, the advantage is that some of the land taken for the highway is returned as open space, presumably in the form of a landscaped knoll. Also, this design does provide a very attractive means to route existing trails over the highway.
In comparison, while the open space mitigation element for the Direct Connection is the dedication of land elsewhere to open space, there is no proposed method to re-create any onsite.
The FMP has argued in the past (as best we understand it) that in order to satisfy federal regulations, whichever design takes the least open space is the option which must be chosen. It is currently unknown whether any federal judge agrees with this assessment, but it is the most significant point of potential legal contention for the Direct Connection.
In conclusion, having stated the case for a dual approval, the residents of Aspen may have no interest in one or the other option, and if one does not attract sufficient petition signatures, or does not receive a majority vote, we will proceed with a single alternative. The point of this initiative and ballot campaign is for the voters to express their preference, and for government officials to act on that information. If there are legal hurdles to be cleared along the way, it should not be the concern of the voters; it should be the job of their representatives.