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ISSUE #88: Sick fANTasies

"It is not a crime to be ignorant of economics, which is, after all, a specialized discipline and one that most people consider to be a 'dismal science.' But it is totally irresponsible to have a loud and vociferous opinion on economic subjects while remaining in this state of ignorance."

-- Murray Rothbard


In the dark of night, your city council and the professional city hall bureaucrats have set in motion a land grab not unlike Ordinance 30 of 2008 when they tried (unsuccessfully) to force historical designation upon private property owners. This time, however, it's worse. Far worse. With two sneaky maneuvers to further expand the subsidized housing inventory and diminish (destroy?) all development in the city and county, APCHA (the housing authority) and our city leaders have put forth some draconian new subsidized housing mitigation requirements that reach far beyond anything even contemplated in the recently adopted Aspen Area Community Plan (AACP). (The AACP stipulates that our community must maintain a "critical mass" of working residents in local subsidized housing.  What it doesn't do is define that number.) Once again, the city forces the rest of us to adhere to the stipulations of the AACP while doing what they please above and beyond what it states. The new ordinances are onerous, unfair and probably illegal. They are certainly unethical and immoral. But that's never stopped these guys before.

Recall that the city requires the redevelopment ("scrape and replace") of single-family and duplex properties as well as any new development to provide subsidized housing mitigation. Mitigation options include providing an off-site unit, providing an Affordable Housing (AH) certificate, or building an "accessory dwelling unit" (ADU) on the property, separate from the main house, that may only be rented to a local worker.

The first ordinance (#34 of 2012) changes the Accessory Dwelling Unit (ADU) mitigation option from building one unit on site (and potentially leaving it unrented) to a REQUIREMENT that owners BUILD AND SELL the on-site ADU to qualified employees for approximately $150,000. This is worse than eminent domain; it borders on a "taking" because it requires the owner to sell a portion of his private property for governmental purposes in order to personally build on it.

The second ordinance, prepared by APCHA, proposes raising the current cash-in-lieu payment for subsidized housing mitigation to $708/sf, a nearly 10-fold increase. (For example, mitigation for a 900 sf expansion would cost the owner/developer over $630K! This amount is likely far more than the construction cost of adding the 900 sf!) This PREPOSTEROUS amount is based on a new-fangled "market affordability gap" methodology that measures the difference between what a free market unit costs in Aspen and what a Category 3 APCHA qualified resident can afford! Each year, the amount per sf would be adjusted by any (presumably upward) change in the cost of free market housing.

City staff has recently acknowledged that this is quite excessive and proposes initially using a 30% multiplier on the cash-in-lieu figure (or $212/sf) which is almost THREE TIMES HIGHER than what it is today ($76/sf). But regardless of the starting point, it's just a matter of time before the cost rises to $708/sf! This, of course, shows a complete lack of understanding of economic principles; how does charging the owner of a home a fee equal to the "affordability gap" close this "affordability gap"? It doesn't! It DOUBLES the affordability gap! This purely punitive action that artificially increases real estate costs is designed to line the city's coffers and ensure that the majority of locals will NEVER have the opportunity to own housing in the free market.

(Note:  This ordinance has NOTHING to do with housing a "critical mass" of workers per the AACP. Rather, it has EVERYTHING to do with penalizing everyone in the free market.  This ridiculous system has NEVER been discussed in our community!  If council and APCHA's goals are to prevent any new free market residential in the core -- they've already done that.  If their goals are to prevent it in the entire city and likely the county, well, here we go.  Next we'll see citizens' PROPERTY TAXES raised to a level that bridges the "affordability gap" between the value of their home and what the city deems affordable for a local employee.  It's not mitigation -- it's class warfare!)

Remember, "mitigation" kicks in whenever you build something new or expand your floor area ratio (FAR). So, who does this affect? A lot of people. Do you own property that has expansion potential? This definitely affects you if you ever plan to expand. This also affects the buyer to whom you will sell someday, negatively affecting your sale if said buyer is interested in expanding. And if you own vacant land in the city or county, bummer. This will clobber you. (Yes, while the city is voting on this in 2 weeks, the county is not far behind - APCHA is a city/county organization.)

The Bolsheviks on council just approved these ordinances on first reading (second reading and final vote is in two weeks -- on January 28). This will be your ONLY opportunity to speak out in opposition!

These guys are bad, really bad. If you have floor area ratio (FAR) for expansion or a vacant lot, I strongly urge you to share this information with everyone you know and get yourself to the city council meeting on January 28. Please speak out against this punitive idea before it's too late.


The Red Ant has learned that Phase I of the Burlingame subsidized housing project, just 5 years old, is already falling into terrible disrepair. According to my sources, it's so bad out there that the homeowner's association (HOA) has recently filed suit against the city, APCHA, Shaw Construction and Certainteed, the siding manufacturer, through a Denver-based construction defect law firm. (Shaw has subsequently filed a third-party complaint against five additional subcontractors.) Once all of the parties are in the case, the matter will be set for trial and discovery will begin. It's gonna get ugly, folks. It seems that there are THOUSANDS of cracks in the subsidized housing project's siding, on every building. All parties (city staff of all levels included) have viewed the problems, and the bids for removing all the siding, fascia and soffits, and replacing it, range from $3 million to $7 million. (Guess that fancy "green" construction wasn't so good after all....)

Notably, city hall has not shared this lawsuit with council or the public. I asked a councilman about the suit and all he had been told was that Shaw was suing its subs over the matter. Good old city attorney Jim True/False is being none too forthcoming with the truth.... once again!

The problems are so bad that those who are looking to sell are likely trapped. They can't. Mortgage companies for potential qualified buyers are threatening to refuse financing the purchase of existing units at Burlingame due to the shoddy construction and issues with the siding. To date, the city has left the HOA high and dry; it sold the units to local workers and then left them. Now the workers can't sell.

Why are you reading this in The Red Ant and not in the papers? Who knows. But I suspect that the city's desperate desire to finagle $17 million out of council to begin to build and sell units in Phase 2 of Burlingame has something to do with it!

I will elaborate on this issue and the lawsuit in a future issue (and yes, I have photos), but in the meantime, do let your employees and others know about this problem. The city is trying to keep it under wraps. Buyer beware. Pass it on.


Despite the lack of demand for additional subsidized housing (and the problems above), the city plows forward with the construction of Burlingame Phase 2. On tap for 2013 are 48 new subsidized housing units and 6 "resident occupied" (RO) 1600 s.f. 3-bedroom homes. The RO category of housing is traditionally restricted to qualified APCHA applicants who are required to work in Aspen/Pitkin County for 1500 hours a year and do not own other property in the valley. Most deed restrictions on RO properties cap the assets of the owners at $900K. In earlier discussions to prop up the market for RO re-sales, council lifted the requirement that RO owners live in the County for 4 years before buying*. Even so, in this market, RO units languish on the market for months and months, sometimes years. (*This 4-year residency requirement is actually a "preference" foisted on applicants by APCHA as a "guideline" that most likely violates the Federal Fair Housing Law as it applies a tenure requirement to government subsidized housing applications. But I digress....)

The RO units at Burlingame are expected to cost $1 million each. Yes, you are reading that right. $1 million for a deed restricted piece of the dream! (Who in their right mind and in this economy, with $1 million to spend, would purchase deed-restricted housing of any kind? But that's another story.) Unique to the RO category is that these units are not subsidized; they are sold at cost. But let's be honest here; as part of a subsidized housing project, the RO units benefit greatly from the heavily subsidized project infrastructure!

A whopping 3 or 4 people have "expressed interest" in RO units at Burlingame 2 to-date, so council is again relaxing the requirements for purchase. The idea is for the RO units in APCHA inventory to go to families. But to "move" units, it looks like we'll see some new rules in coming weeks. But don't worry, the city says they won't build all 6 RO unit until at least 2 are sold! How's THAT for rationale?!

Additionally, buyers in Phase I were prevented from owning dogs because the property was adjacent to a working ranch and conservation easement zone. Now, to enhance the attractiveness of Phase 2, the city wants to allow dogs for this group. How quickly they forget. (Or break their own rules!) They'll stop at nothing to push these units, never mind we need more subsidized housing like a hole in the head. How about jobs for those ALREADY in subsidized housing who aren't working??


It should come as no surprise that my email box was full and my phone rang off the hook last week upon the Daily News story that Mayor Mick, term-limited out as mayor this May, is considering a run for city council because he fears a different majority could emerge on council in his absence. Imagine that!? Needless to say, citizens are outraged, as they well should be! (This, on the heels of late December's news that all 4 "echoes" on council are thinking of running for mayor!)

His platform? To revive the hydro plant, despite its loss at the polls in November. His rationale? If we don't complete the project, we will "waste a lot of money." Huh? Isn't that what Mick does best? (He also wants to ensure that the USA Pro Challenge bike race continues to come through Aspen, never mind the questionable economic impacts and massive community and government subsidies.) Can you just imagine Aspen's Putin, side-stepping his former role, only to "rule" through a puppet Medvedev (Torre? Skadron? Yikes.) in the mayoral position!?

There are questionable legalities involved; Mick is operating on the opinion of recently-departed, crooked and compromised former city attorney John Worcester who said in 1998 that a council run in this case would be a-ok. Equally compromised city attorney Jim True echoes this opinion in a convoluted interpretation of the state constitution and Aspen's laws. But this is just True's OPINION. It is his job to defend the actions of council, not to counsel them on right and wrong. If Mick wants to run again, True gives him an opinion that it's legal - in effect, daring the citizens to sue the city if they disagree. (An honest legal opinion would conclude that the matter is somewhat unclear and that legally, a 6-year mayor might be term-limited from running for a 4-year council seat.)

The key legal question is whether the role of mayor is considered a role on council, and if so, this would mean that he would be out after a maximum of 3 consecutive 2-year terms - and that would be this May. (Council positions are limited to 2 consecutive 4-year terms.) Lo and behold, a quick look at the Aspen City Charter language shows that the mayor is indeed "a member of council." The charter addresses the term of the official, not the term of the office. Additionally, the purpose language of the charter indicates that the term limit is to "broaden," not restrict, "the opportunities for public service." In other words, recycling the same people does not broaden opportunities for public service unless one takes the language to mean "broaden opportunities for public service by the same people." (One COULD argue that as a member of council, the mayor should not be allowed to serve more than 8 consecutive years, on par with councilmen, but since he has already served 6, an additional 4-year council term would exceed this limit.) Mick, you're out. (And True, you're false.)

Furthermore, just imagine the worst case scenario: Mick runs for council and is elected, and then someone challenges the validity of that election. Then the challenge is upheld. What then? Would the votes of council in which Mick's vote was decisive be valid? Would many council decisions be subject to legal action because they occurred illegally? In other words, should the city subject itself to this risk just so one person can indulge his personal agenda? Mick, get a life.

Even the Aspen Times weighed in with an editorial notably titled, "Local government needs new blood." Following a lukewarm (at best) review of the current group, the Times "put out a call for qualified Aspenites to consider throwing their hats into the various rings." They continued, "Fresh faces might disrupt the system of continuity and like-thinking in city hall, but they also can bring about innovative solutions to time-worn problems." Bravo to the Times. Their suggestion that "people with little or no experience in local government, but with the necessary brains and a feel for what's best for the community, consider a stint in local government" is a welcome message. The Red Ant just wants to know when "necessary brains" became a requirement! Don't get me wrong, I like it, especially given what we've got!

My favorite reaction to this news was a letter to the editor from civic leader Ward Hauenstein. Read it in its entirety HERE. In short, "The culture has to change. The era of suppression of expression of divergent views through tactics of belittlement and scorn must end. The era of imagining what the law is and demanding that everyone follow those fictitious laws must end. Laws are made to apply to all. A desperate and pathetic attempt to circumvent term-limit laws should be seen for what it is. If Mick's version of what Aspen should be is shared by so many, there will be others to come forward and legally run for office on a platform upholding those views. There comes a time when people in power need to step aside and let the process proceed. Now is that time for Mick."

Hauenstein went on to present the concept of a charter amendment that would cap consecutive years of service (either as mayor or council) at council on Monday night. Frisch was open to it, noting that "small-town character is about turnover of fresh faces and new ideas," but Torre and Mick vehemently opposed the idea. (Imagine that!) According to the Daily News, Torre, who will likely run for mayor in May when his term on council is up, found the idea "interesting, but wondered why anyone would be in support of preventing the public from having the option to vote for candidates they think represent them well." Swell, another career politician wanna be! And Mick went nuts. Citing state term limit laws that were passed in the 1990s "by a pre-Tea Party movement," Mick complained that "weak office holders" would weaken government. (Presumably, new faces in government are inherently "weak" in the mayor's mind.) "I'm just not buying in to the idea that inexperience is somehow an asset," he added.   Jeez - just look where Mick's "experience" has gotten us!!

And yes, I still do have a number of "Sick of Mick" bumper stickers and a few yard signs. Please let me know if you want one! (It looks like we may need them again!)


Mick's war on cars looks to be fought on yet another front: Hopkins Avenue!   Seems the city has proposed "parklets," tiny and temporary "parks" that can be created by reclaiming downtown parking spaces. They say this will enhance the pedestrian experience. Really? It will certainly frustrate the driving experience! (I suppose that's the idea.) And imagine such a mess on Aspen's restaurant row! Mick, in his effusive glee over the stupid idea, equated the "parklets" to the original experiment that led to the Hyman Ave and Cooper St malls. Kiss more downtown parking goodbye....


A recent guest opinion by Glenn Beaton in the Aspen Times stated, "Here in Aspen, we voted whether to spend more (and more) to squeeze electricity out of a streamlet so small that you can wade across without getting your shins wet (or, some days, even the tops of your feet). We voted 'no.' Our vote not to spend more, however, has not stopped city council from planning to do just that. We know the council DID notice our vote because it scolded us for voting wrongly.   If we keep voting this way, then I suppose the council won't let us vote at all." And that about sums up what's going on with the hydro plant.

The city has acknowledged that voters rejected the hydro plant at the polls, but since Mick made sure that the vote was merely "advisory," they CAN (and likely will) ignore this result. As a meaningless nod to the opposition to the hydro plant, the city has asked for "completely baked" ideas that will: generate 5.5 million kw hours/year of average production, have a $3.1 million price tag (the city's estimate of what it will cost to complete the hydro plant), provide a local and direct tie to the distribution grid with no electric transmission services required, offer a 75-year lifespan, and utilize city infrastructure. In other words, according to hydro plant opponent Ken Neubecker, "The invitation is fraught with caveats, limitations and strings attached. The 'criteria' pretty well leads to only one possible conclusion: the Castle Creek Hydro Plant." The timeframe for this assignment? Less than 2 weeks. The conclusion is foregone. Obviously. Watch and see. Council has scheduled a work session on January 22 to discuss and potentially vote on all of this.

And did you know that the city is aggressively pursuing the construction of two dams - one each on Castle and Maroon creeks? Apparently the city's 20-year-old water management plan doesn't comprehensively incorporate the city's current views on the emerging threat of climate change so they will be updating it with a focus on the potential need to build large dams on the local creeks. According to an investigative piece by Aspen Journalism, the 1990-era plan cites conditional decrees for the reservoirs (circa 1971), but nothing was ever approved by council and the plan remains in draft form to this day. The 1990 plan notably suggested a $24 million expenditure on a 155-foot high Castle Creek dam in 2000 and another $15 million expenditure on a 170-foot high Maroon Creek dam in 2005. Thankfully those dates came and went, but council obviously did pursue the plan's suggestion to seek out and determine a location for a hydro plant.

The good news is that the Maroon Creek dam would be located on White River National Forest Service land, and this currently conflicts with forest service regulations regarding wetlands and scenic values. The Castle Creek dam would primarily be on private land, and besides, tests drills on that site in the 1970s found poor soil conditions for a reservoir there. But forewarned is forearmed. The water police are coming!


When Mick and the 4 echoes listed their greatest accomplishments for 2012 (read it HERE), I couldn't resist. HERE is a letter I wrote to the editor in response.

And, in early December, I sat down with Jerry Bovino on "The Jerry Bovino Show" on GRTV. (Get your popcorn and watch it HERE.) We spent an hour discussing local and national politics. I am pleased to have learned just how many people watch GrassRoots TV! Let's do it again, Jerry!


Imagine, after an infusion of $46.4 million to "revolutionize" the bus-riding experience in the valley (you've seen the new bus stations, replete with faux fireplaces), RFTA ridership is DOWN 4.12% through November.


City staff is operating on "assumptions" that as a community, we will need 657 new subsidized housing units for our workforce in the next decade but we only have land to make 377 units a reality. Apparently this is a city hall "consensus." No data, of course. And specifically no information on where all those jobs are going to come from!



Many of you often ask about the status of Marilyn's legal case against the city and the court-mandated reimbursement of her legal expenses, stemming from her 2009 open records lawsuit. As you recall, last June, the state Supreme Court declined to take on the city's appeal so the Court of Appeals' 2011 ruling in Marilyn's favor was upheld. This meant that voted ballots are indeed public records (a new state law), and the city must show the 2009 ballots and reimburse Marilyn. But not so fast. Judge Boyd, whose 2009 summary judgment was overturned by the Court of Appeals, has yet to even act on the Appellate Court's orders. And, recently, Judge Gail Nichols ruled in another ballot-related matter that a recently adopted city ordinance prohibiting ballot review trumps the new state law! Yes, the judge has ruled that municipal governments can take away our state constitutional rights by simply passing an ordinance at the council table. So the saga continues. Only in Aspen. Can't make it up.


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