ISSUE # 76 ... ReluctANT Minds

"Politicians are people who, when they see light at the end of the tunnel, go out and buy some more tunnel." -- Banker Sir John Quinton

"The actions of men are the best interpreters of their thoughts." -- John Locke

THE LITTLE ANNIE'S BROU-HA-HA  You've probably heard that Little Annie's and its next-door neighbor the Benton Building have been spared from the landfill. Considering the two are questionably historic (at best), this is indeed a victory for the sentimental "I wish it were still 1972" Historic Hysterics who want nothing to change downtown, ever. But why don't they recognize this victory? Why are they still complaining? It's simple. The very land use code that many of them helped design that provides incentives to owners of historic properties came back to bite them. In 2011, after a nearly 18-month fight to create a law that would enable the involuntary designation of private properties, the end result was instead a voluntary historical designation program called "Aspen Modern." The program enables private property owners of buildings on "the list" to negotiate with the City for "benefits" if they choose to voluntarily designate their property. Such "benefits" include variations from and exceptions to the land use code, economic benefits, fee waivers, and priority approvals, among others. When Aspen Core Ventures, owners of Annie's, Benton and the big empty parking lot at Hyman and Hunter, submitted their development plans for a mixed use building on the site, some (including mayor Mick) went wild. How could anyone tear down Annie's? Or the Benton building, where artist Tom Benton lived and worked (before it was changed numerous times and included many different businesses including O'Leary's Pub)? But the Historic Preservation Commission (HPC) did not consider either building historic so the fate was sealed. But life-long local and Aspen Core Ventures partner Nikos Hecht heard the outcry, and saw the opportunity that Aspen Modern provided. If he were to voluntarily historically designate Annie's and Benton, then his building proposal would be in a position to negotiate for benefits from the City. And that's exactly what he did. By sparing Annie's and Benton from the wrecking ball, Hecht is now able to build a larger penthouse on the building's third floor (one 6900sf unit as opposed to several 2500sf maximum-sized units) and a second unit on the second floor (2000sf). But the outcry abounds. Some think the penthouse itself was a concession by the city. Nope. The land use code allows for every inch (height/mass/scale) of the new building. But mayor Mick is incensed. He even called Hecht an "extortionist" and his proposal "blackmail" because he couldn't legally kill the project. Aspen Modern and the law of unintended consequences have created inevitable negotiations between the city and private property owners. These don't necessarily favor the city and certainly don't kill development. In the case above, it was a win-win for the developer because his building proposal with or without Annie's and Benton was completely within the code. It was through Hecht's generosity and subsequent negotiations with the city that the Historic Hysterics eeked out their own win when the city made concessions to keep Annie's and Benton standing. In addition, Hecht agreed to lease the Annie's building to an affordable restaurant tenant in perpetuity. Former Mayor Bill Stirling recognized the up-side of the deal, stating that the city has "something on the table that is very workable." So now what? Look for draconian changes to the land use code. I've mentioned before how mayor Mick is vehemently opposed to any more free-market housing in the downtown core. He went so far as to tell The Aspen Times, "I want to make downtown less attractive for luxury residential speculation."   Subsidized housing, fine. Free market housing, not so much. Council is inclined to agree. Councilman Adam Frisch speaks often about making changes to the land use code, recommending "shrinking the goalposts" and not moving them. Ok, sounds like good campaign rhetoric, but what will it really mean? Watch council pull a classic (and predictable) knee-jerk reaction and limit all downtown development to current height limits or to just two stories. It's likely. This will prevent the addition of within-current-code penthouse additions to tired (and debatably historic) buildings. Mick will be happy because no part-time residents will live in the core. Oh, but here comes the law of unintended consequences once again. The next questionably historic building will instead be fast-tracked to the landfill. It's that simple. Without room for negotiation, incentives for the owner, and/or the opportunity for the construction of an economic engine to fund the voluntary historic preservation of buildings, who in their right mind would keep them standing? Not a soul. It'll be a mess. And then we'll be back at square one. The Historic Hysterics have a choice: stay with Aspen Modern and recognize that "negotiation" means give something to get something, OR force a radical change in the land use code. If it's the latter, don't come crying when your next sentimental shack meets the bulldozer. MICK'S CLASS WARFARE WILL HAVE IMPACTS Another less-immediately apparent impact of Mick's ongoing vitriolic and punitive attitude toward development of private property could very well be a reduction of our competitiveness as a high-end, world class tourism destination. Aspen is tremendously unique as a destination because the town IS the resort. This can't be said of other ski resorts. Locals, part-time residents and visitors all converge (sleep, eat, recreate) in the same place --- Aspen. To say that certain people are no longer welcome to physically live in the downtown core WILL have repercussions. There are many other choices for those who wish to purchase private residential property downtown; they may very well stop coming. In turn, the town, its businesses and consequently the locals will feel the effects as the make-up of the community experiences incremental change. This, of course, is the intent of Mick's class warfare. But it's simply not good for Aspen. HYDRO HAPPENINGS It's official. The city clerk has confirmed that the 953 petition signatures turned in last month included at least the 594 required to force council to make a decision: rescind Ordinance 30 of 2011 that rezoned open space land for industrial use (for the Hydro Plant) or conduct a special election on the issue. Citizens are hoping for an election, primarily because many feel duped by the bond measure that passed in 2007. The horrific escalating costs and the environmental mess are the primary concerns of local voters who signed the petition. Mick is going berserk with the knowledge that SO many citizens loathe his pet political destiny project. Rather than addressing or even acknowledging the community's concerns, he has turned his efforts toward a witch hunt to root out the funding source(s) for some educational advertising that ran in both papers during the petition signature collection period. Local stream-protection non-profit Saving Our Streams (SOS) has proudly claimed responsibility for the ad buys, citing its shared desire for protecting Aspen-area streams with petition initiators Ward Hauenstein and Maurice Emmer. SOS' interest was in educating the public on the petition effort, but Mick is incensed since he does not know who the donors are to this private entity. His latest diatribe against the entity was that voters would be "suspicious" if SOS donors are not disclosed. Mick has additionally created a legal "goose chase" that only serves to utilize taxpayer funds (through legal costs) and cost the non-profit money. He has demanded that SOS register as an "issue committee" because the group spent more than $200. This is ludicrous because there is no "issue" on the table (or the ballot) at this time, and the non-profit does NOT have a major purpose of supporting a ballot question or issue. Obviously, Mick just wants to run up the group's legal bills because his argument "is incorrect as a matter of law," according to the group's Denver-based attorney. Meanwhile, for the past month, the City of Aspen has been purchasing (with taxpayer funds) print advertising in both papers that promotes the Hydro Plant! Yes, quarter and one-third page color ads. With YOUR money. But worst of all is the content of the PROPAGANDA (see bullets below) campaign called "Aspen Hydro Power - Smart, Clean, Local, Healthy" they are putting forth to mislead voters toward supporting the Hydro Plant, should the issue come to a vote. (IF/WHEN there is an election, it is ILLEGAL for the city to expend public funds to promote its stance in an issue, therefore they are just doing it early). The Castle Creek Energy Center (CCEC) will ... be the ONLY significant source of power that could be used in an emergency if the grid is down. Nice. The ad shows a picture of "Emergency Shelter at the ARC (rec center)" on CCEC power vs a dark square illustrating "Aspen in an Emergency without CCEC." Really? This argument is an insult to the intelligence of every Aspenite. This is the City's emergency plan? A small hydro plant that is designed to produce just 8% of current demand and is likely to be producing far less at the time of year such an emergency is most likely to occur, such as during a major winter storm event when the water levels are very low. Where is the City's REAL emergency plan?? Please tell me that Aspen has a better plan than sending everybody in town - residents, tourists, employees -dashing on over to the ARC in the middle of a 100-year snow storm event or other emergency? All 30,000 people during high season? Yeah, right. That's not an emergency plan, that's a scare tactic!! The useful life of solar panels and wind turbines is 20-25 years. Hydro is paid off after 25 years with at least 50 more years of hydro power for Aspen to use. For well-planned, economically-constructed and efficiently-maintained hydro facilities, this may be true. But for CCEC, this is flat-out nonsense. It has been shown by numerous sources, The Red Ant included, that the poorly planned and politically motivated hydro plant will operate at a loss for its entire lifetime. If you are aware of a 75-year-old hydro plant that has covered all of its costs over its entire lifetime, please forward the audited financials to The Red Ant. I would love to see the proof. There just may be a few examples where this has happened, but the history of hydro is that over decades, the cost to mitigate for its slow but steady environmental damage and unanticipated maintenance costs overwhelm any chance of breaking even. Ask the Bonneville Power Administration about that one. They operate some of the oldest and largest hydro projects in the nation, and they lose money every year. Why? Mitigation for environmental damage that was not recognized until decades after construction. Plus, given the city's track record in maintaining small hydro projects (back in the 90's they had to replace the turbine at the existing Maroon Creek facility after only a few years due to poor maintenance), this project's costs are going nowhere but straight up! Those who ignore history are doomed to repeat it. Aspen is ignoring not only history but its own incompetence. Aspen will continue to buy as much wind as possible but a utility portfolio cannot be made up only of wind (or solar) because when it isn't windy (or sunny), there is no power. There must be reliable back-up power which is coal or hydro. One is green (hydro), one isn't (coal). The City argues that wind-generated electricity is not available as "base load" power - that is, power necessary to provide base services on a 24-7-365 basis. Yet independent inquiries of MEAN (the Municipal Energy Authority of Nebraska), the City's provider of electricity through the power grid, have indicated that the City could purchase more wind power if they wanted to. Additionally, "green" energy is growing, with more wind and solar power being added to the grid annually, and the technologies for generating and delivering such energy are improving. So why does the City prioritize an overpriced, old technology solution that is likely to harm our local ecology while only generating a fraction of Aspen's power needs over the virtual certainty of less expensive options with no negative local impacts? So Council can take credit and get their names on the plaque of the new Castle Creek Energy Center, that's why. Aspen should take responsibility for its own energy production and contribute to lowering global carbon emissions. Really?? I beg to differ and bet dollars to doughnuts that the citizens of Aspen agree with me. Aspen should take responsibility for being a good environmental steward, but not at ANY cost (monetary, environmental, public policy). This project's "opportunity cost" - that is, the relative cost of current and future alternatives to achieve the same environmental result over the project's lifetime, is far too high to be justified in economic terms. The CCEC is an environmentally sound project that is emission free, local and offers unprecedented protection for Castle and Maroon Creeks basing energy production on water flows. No other water users on those rivers have offered such protection. Ever. This is a seemingly plausible argument that is factually inaccurate and misleading. In other words, it is sophistry. The Red Ant knows of no other Castle or Maroon Creek water users who are currently required by law to take action to protect Castle and Maroon Creeks. The City, on the other hand, very clearly attempted to mislead the Feds by applying for a "conduit exemption" that would have allowed them to sidestep much public review, and environmental disclosure and study necessary under a normal FERC permit application process. And now they have the nerve to claim they are the ones PROTECTING the streams?? Good grief! 66% ($6.9M) of the Hydro Plant is already paid for. $3.6M more to complete the project. Finishing the project is a local investment which builds wealth in the community. Puh-lease. Only Aspen's city hall would use its own incompetence as defense for continuing to build such a poorly planned capital project. To quote a recent letter to the editor from a Glenwood Springs resident, "Their argument is that even though they're running 70% over budget, they've already built or bought most of the plant. So if they've gone this far without really caring what many respected members of the community think, why stop now?" Classic. Besides, do they REALLY think anyone buys this nonsense? "Builds wealth in the community?" As if. You get the idea: This is propaganda at its VERY (and desperate) best! The cost of these misleading ads has exceeded $10,000 to-date. Next steps: My guess is that council will be too chicken to put the issue before the electorate. They'll rescind the ordinance, which sadly will not kill the hydro plant, yet. (They can re-zone later if/when they get federal approval.) Even though this will be a big middle finger to the Aspen voters, they'll do it anyway. They are in a hole and simply can't stop digging. But, if they were smart, they'd quickly throw the issue to the voters. When it gets voted down and the hydro plant gets shut down, they can just say, "It was the will of the voters." These guys HATE making decisions so a public vote would be the easy way out. To further illustrate the contempt the City has for the public process related to the Hydro Plant, they issued a victorious press release when the feds (FERC) recently approved their application for a "traditional licensing process" (TLP) for the Hydro Plant. Many respected entities and experts opposed this application, including the White River National Forest, American Rivers, the Western Rivers Institute, Trout Unlimited, Roaring Fork Conservancy, Public Counsel of the Rockies, and Aspenites Connie Harvey, Tillie Walton and Tom and Maureen Hirsch, who instead favored the more stringent "integrated licensing process" (ILP). Since when is an expedited application process that minimizes public input a victory? Only in Aspen's city hall. It is my guess that with the esteemed and diverse group of stakeholders who oppose the project, the licensing decision will be legally contested. Look for a rescind vs vote decision at the March 12 city council meeting. It will take four of the five votes to rescind the ordinance, so there is still a glimmer of hope for that election.  Keep your fingers crossed. IF YOU CAN'T STAND THE HEAT.... City attorney John Worcester resigned recently. Seems the legal issues that the City is currently facing grew too cumbersome for the long-time civil servant. The City faces a Colorado Supreme Court battle with Marilyn Marks over public access to the voted ballots from the 2009 municipal election, and Worcester has been a key proponent of keeping the ballots locked up, despite showing the ballots on GrassRoots TV on election night. It has long been wondered what is on those ballots that Worcester doesn't want shown to the public. Furthermore, the City is embroiled in a lawsuit with neighbors of the Hydro Plant who claim that the City abandoned its water rights for a Hydro Plant when they decommissioned an earlier plant on the site in 1958. And there's the looming question for the City of whether or not the Colorado Supreme Court will take on a case APCHA (the housing authority) has been fighting since 2008. The case involves a landlord who sued APCHA claiming that its affordable housing program that mandates below-market rents in his local buildings is unconstitutional. The case is expected to go before the Supreme Court this year. (If APCHA loses the case, it could potentially have a $100M consequence for the City of Aspen.) I simply loved Worcester's claim in his exit interview that he said he never "technically" lost a case in his 21 years in the city attorney's office. So, losing 3-0 at the court of appeals on the 2009 CORA/ballot lawsuit doesn't count as a loss? Or how about that inane 2004 lawsuit Worcester filed against Kinder Morgan alleging consumer protection violations because the company doesn't account for the impact of high altitude on the heating capacity of natural gas in its rates? That was another loss at the 9th district and in the court of appeals. I guess "loss" means different things to different people! I am personally glad to see Worcester go. He was instrumental in the dismissal and public humiliation of the 2009 Election Commission of which I was a member. Worcester's collaboration with former councilman Jack Johnson to obfuscate the real issue (the election commission refused to certify the 2009 election due to numerous irregularities) and instead vilify the members showed me firsthand what citizens of Aspen were up against when challenging the City on any legal front. Worcester's resignation does save me the completion of my formal complaint to OARC: the Office of the Attorney Regulation Council regarding Worcester's role in the 2009 election commission dismissal. Worcester was a classic perpetrator of SLAPP: Strategic Lawsuits Against Public Participation, intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense. His goals were accomplished when the defendant succumbs to fear, intimidation, legal costs and exhaustion. SLAPP also intimidates others from participating in the debate. With Worcester now gone, will the culture of "so sue us" end at city hall? Time will tell. But his replacement is assistant city attorney Jim True, who never met a conflict of interest he didn't embrace -- so don't hold your breath! That OARC complaint draft may just come in handy some day! MY RIDDICU-LIST: THE "YOU CAN'T MAKE IT UP" FILE My favorite statement from council on the subject of a special election on the Hydro Plant came from councilman Steve Skadron who complained about the $16K cost of a special election, "My preference would be a November vote rather than a special election; it's less expensive." Never mind by law the special election must be scheduled during a period of between 30 and 90 days following the March 12 meeting. And especially never mind the $10.5M project is $5M (and counting) over-budget. Puh-lease. Less expensive? Since when does Skadron care about money?? ST. ANTon RECAP My recent ski trip to Austria and Switzerland (St. Anton, Kitzbuhel and Gstaad) was great fun with fabulous skiing. They have more snow this season than they've had in 50 years! Doing our part to undo the PR damage mayor Mick did in Europe last summer on his unofficial and unauthorized (yet still reimbursed from the public coffers) goodwill tour, my friend Gail and I donned our Aspen best at après ski: