ISSUE #273: Ireland's Inquisitions Are a Losing Bet for APCHA (4/23/24)

"I ruin everything I touch."

-- Inspector Jacques Clouseau

A long-time local family has recently been vindicated after a five-year witch hunt by APCHA and its resentful and power-hungry hearing officer, housing zealot Mick Ireland.  Tipped off by neighbors in 2019, APCHA alleged that North 40 residents Cameron and Tricia McIntyre were in violation of their deed restriction by additionally owning local residential real estate through an LLC called “CMTR.” Slapped with a notice of violation that accused them of controlling CMTR, which holds title to a free market Aspen townhome on Park Circle, the McIntyres were directed to sell either their North 40 home or the Park Circle property. So they lawyered up and requested a formal hearing. Enter Mick, Aspen’s former mayor, a former county commissioner, and today APCHA’s official hearing officer, whose zeal for retribution and bullying tactics over the course of a 3-day hearing generated a ruling that Tricia “effectively owned” the Park Circle property through CMTR which he deemed was her “alter ego.” He then ordered the McIntyres to sell their North 40 property within 90 days. Not the free market property, the APCHA one. (He made the independent decision to force the sale of the APCHA property – their home – surely because of the financial windfall associated with a sale of the free market property. He simply could not tolerate the idea of the McIntyre’s profiting by what he saw as a violation, and at the same time, attempted to exact the harshest possible punishment.) The McIntyres then sued APCHA, challenging the decision of the government body and its officer to determine whether the officer exceeded his jurisdiction or abused his discretion with his ruling. Notable Facts:  ·      CMTR, LLC is actually legally owned by the McIntyre’s two adult sons who are the LLC’s sole members. Any gains, losses and tax responsibilities are borne by the sons, not Tricia and Cameron. ·      CMTR holds title to the Park Circle property that is not part of APCHA’s portfolio, therefore it is not subject to any APCHA deed restriction. ·      The McIntyre sons don’t owe any duties to APCHA. ·      The 1996/1997-era deed restriction on the McIntyre’s North 40 home does not preclude their sons (individually or through an LLC) from owning local residential real estate. ·      The McIntyre sons contracted with Tricia to manage their LLC. She is their mother, after all. ·      Tricia McIntyre “managing” CMTR’s real estate interests is not unusual nor is it unlawful. Lo and behold, it was no surprise to anyone but APCHA when the district court ruled in favor of the McIntyres, and excoriated Ireland in the process:  He MISAPPLIED CORPORATE VEIL PIERCING doctrine, employed only under extraordinary circumstances by the courts to impose liability on individual shareholders for a corporation’s obligations. It is “not a fact-finding mechanism for administrative agencies,” the judge wrote. Furthermore, Mick’s use of this doctrine to make a factual conclusion about CMTR’s ownership and ordering injunctive relief (requiring the McIntyres to sell their home) was was an ABUSE OF DISCRETION and not recognized by the law. ((Edited to include: The judge ruled that Mick had no authority to assert the equitable power of piercing the corporate veil. This is only reserved for actual judges. Mick really thinks he is a judge!)) Ireland had concluded that CMTR was used to perpetrate fraud but the judge ruled this was not supported by evidence. “Controlling and owning an LLC are distinctly different under the law.” (Tricia’s contracted management of the property is not the same thing as owning it, nor does this justify corporate veil-piercing. And there is nothing in the North 40 deed restriction that bars Tricia from “controlling” property.) In addition, Ireland went far beyond what is contemplated in the McIntyre’s North 40 deed restriction (circa 1996/1997), which plainly states remedies for established breaches, therefore his arbitrary administrative declaration to force a sale was BEYOND HIS AUTHORITY. And perhaps most damning, CMTR wasn’t even a party to the proceedings. The matter was between the McIntyre parents and APCHA. Mick LACKED JURISDICTION over CMTR yet made a judgment that EXCEEDED HIS AUTHORITY that amounted to an ABUSE OF DISCRETION. In other words, Mick’s quasi-judicial jackassery went far beyond the matter at hand, and in the end proved only costly to the public who now owes the McIntyres. (In late February, the district court VACATED and SET ASIDE Ireland’s ruling and order, and according to a recent filing, the McIntyres are entitled to legal fees which currently exceed $168,000.) But APCHA intends to appeal. The APCHA board is so focused on what they perceive to be a violation because how could an APCHA-housed family possibly have sons who could purchase local real estate. They not only let loose their angry pitbull on an innocent family, no one at the housing authority took the time to look at the McIntyre’s deed restriction to ascertain what is and isn’t permitted, nor the corporate documents of CMTR which plainly show ownership solely by the McIntyre sons. It is jealous rage, pure and simple, and notably outrageous given that two APCHA board members are executives at local banks, who one would think might be able to read and understand basic corporate documents. The APCHA board is surely aware now of what’s at stake. The initial investigation, followed by Ireland’s hearing and the judge’s ruling have now unleashed a problem for APCHA that no one contemplated with the original issue. Instead of doing proper due diligence and determining the McIntyre’s compliance was NOT affected by the real estate investments of their sons, APCHA has now written and published the blueprint for how any APCHA owner can now purchase local real estate as long as they do it quietly through an LLC. “Corporate veil piercing” cannot be employed for “fishing expeditions” like Ireland’s, so who would ever know? APCHA can’t use this to prove it. In short, because assets only matter on the day one purchases APCHA property, local free market real estate ownership is now possible for APCHA owners; yet another outlandish benefit for those “in the system.”  So here we are. With savvy financial planning, annual gifts and lifetime exemptions, any APCHA owner can also give their kids money and that money can be invested in Aspen real estate though an LLC unless specifically prohibited by one's individual deed restriction. There is no loophole to close. The McIntyre case, if handled with proper discretion, could have been an eye-opening, legal example of what is inherently possible within our ownership housing program with the hope that not many would actually partake in such an opportunity. However, following the brazen and ill-conceived witch hunt, hearings and judge’s ruling, that example has been lit up in bright lights for any and all to follow. Ahh, the law of unintended consequences, again.  This has become Reason #279 why APCHA housing should be all rental. The ownership model continually creeps closer and closer to mimicking free market real estate ownership on the upside, yet still reaps entitlement benefits such hefty initial subsidies, low property taxes and no income/asset limits once in the system. Hardly the intent of the program. And, at press time, Ireland finds himself at the center of yet another complex APCHA lawsuit in which the plaintiff claims APCHA has falsely accused her of marriage fraud to justify forcing her to sell her unit. Clearly, our very own Inspector Clouseau’s role as a hearing officer has once again gone to his head. He is being accused of investigating an APCHA owner far beyond the scope of her case in an effort to force a sale of her property, when the only “evidence” he had was a “recital clause” in the deed restriction which does not hold water in court. (Recognizing the recital clause was unenforceable, Ireland took it upon himself to demand tax information and divorce documents to conduct an in-depth investigation into unrelated issues in order to bolster his case.) He’s out of control. To Mick, it’s clearly personal. I can appreciate the importance of properly enforcing program compliance, but this isn’t it.  APCHA counsel Tom Smith and Ireland, an attorney himself, are clearly ill-equipped to fulfill their roles in professional, responsible or capable manners. And as a result, the public is continually on the hook for the sizable attorney’s fees awarded to plaintiffs when APCHA predictably loses these cases. (A note about how out of touch APCHA-contracted attorney Tom Smith is, earlier this year, he had a hard time grasping the concept of “remote workers.” He continually insisted that “remote workers” are local workers who live outside of the county yet work from home for local employers, seemingly oblivious to the more problematic APCHA dwellers who work for Google, Lockheed and Meta from the comfort of their in-town APCHA units.) Mick’s interrogations, investigations and inquisitions are an outrageous over-reach. He and his vendettas against those he dislikes and envies are a stain on our community that only serve to perpetuate APCHA’s reputation as a corrupt police force that picks winners and losers. Mick is the loser. He needs to go, now. * * *  THE FEEDBACK LOOP Got an issue with city government? The VERY BEST way to communicate your concerns is by email: council@aspen.gov Is CommDev taking too long with your permit? Do you have concerns about the Castle Creek Bridge replacement? 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