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ISSUE # 97: ByzANTine Conundrums

"The greater the obstacle, the more glory in overcoming it."  

                              -- Moliere


Mayor:        Steve Skadron (2-year term)


Council:       Adam Frisch (2 years remaining on his 4-year term)


Council:       Ann Mullins (4-year term)


Council:       Art Daily (4-year term)


Council:       Dwayne Romero (2-year remainder of Skadron's term)



These are YOUR elected officials. Communicate with them!

Well, we're finally off to the races! With the bold and promising leadership step of switching his vote and casting a ballot for Dwayne Romero in the final vote for the 4th council member, new mayor Steve Skadron made certain that HIS council would be out from under Mick's shadow. When council was deadlocked 2-2 and facing a roll of the dice to determine the council appointee to fill Skadron's vacated council seat for the remaining 2 years of the term, only Howie Mallory and Dwayne remained in contention. Mallory, a retired banker, chair of the Open Space board and a long-time Mick supporter, was the odds-on favorite since submitting his application. But in the end, I believe it was Romero's even-handed reputation and prior willingness to run for elected office that won the day. (That's not to mention widespread cries for diversity on council that many thought only Dwayne could bring.) Skadron also wisely recognized that a roll of the dice for this critical role would likely make Aspen a laughingstock - lesser council moves in the past have garnered national media attention, and not the good kind.

I am optimistic. I like what I've seen from newly seated mayor Steve Skadron so far. He runs a collegial and efficient meeting - the first few were just 90 minutes long. And there is a palpable new and welcoming tenor in council chambers. The appointment process for his vacated seat was as transparent as he promised it would be. And, in stark contrast to Mick, Steve showed up at the opening of this year's Music Festival in coat and tie, with a welcoming and gracious message. (Recall how Mick rolled in last year, wearing grungy bike clothes, and pontificated about smoking pot.) Yes, optics count. Thank you, Steve, for honoring our treasured institution, our community and our guests. You're off to a great start.

The Red Ant is not alone. Local hater and Aspen Daily News columnist Doug Allen is particularly incensed at Steve's dramatic departure from the ways of Mick. His most recent column (read it HERE) has him spitting nails at all to be viewed so favorably.

Aspen faces many difficult issues and potentially divisive challenges ahead. The honeymoon won't last forever, but I like the start. It's an opportunity to re-group and re-prioritize. And let's face it, we're all in this together. Let's give it our best shot.


Imagine this -- the city's in-house legal department has quite the full plate. Mick's lawsuit-happy tenure leaves the new council with many legal entanglements (most are abuses of litigation for political and personal purposes) that can hopefully be resolved and/or settled out of court in a timely manner. As of June 10, 2013, city attorney Jim True/False, assistant city attorney Debbie Quinn and their paralegal are addressing 11 cases of docketed litigation. That's quite a serious workload. One estimate has the legal costs of all this litigation at over $1.5M of your tax dollars annually. Here are the cases: 

1. Saving Our Streams, et al v. City of Aspen, 2011CW130: lawsuit filed by residents along Castle Creek, claiming the city abandoned its water rights for a hydro plant. Trial is set to commence 10/31/13.


2. Verner, et al v. City of Aspen, et al, 11CV178: lawsuit filed by neighbors of the former Boomerang Lodge claims council abused its discretion and exceeded its jurisdiction by up-zoning the property for 46 subsidized housing units with 33 underground parking places as well as 12 head-in parking spaces on 4th St. In June, district court judge Gail Nichols ruled in favor of the city. It is unknown whether or not there will be an appeal. 

3. Vagneur, et al v. City of Aspen, et al, 07CV175: lawsuit brought by champions of the 4-lane "straight shot" across the Marolt Open Space who sought to get their petition on the ballot in hopes of raising property taxes by 1.7 mils to fund the project. The case was originally dismissed in favor of the city, and the appeals court later upheld the district court's opinion by ruling that the issue was an administrative vs. legislative matter and therefore could not be decided by voters. The Supreme Court has ruled in the city's favor on all issues, but the case remains open until the court's formal remand is received.


4. Aspen/Pitkin County Housing Authority (APCHA) v. Maureen Mary Kinney, et al, and Intervener Defendant, Cross Plaintiff and Third Party Plaintiff: Robert Nix v. City of Aspen, 07CV152: this tangled lawsuit pertains to a deed restriction that involved a lot line adjustment and property exchange, as well as a historic development approval. Mr Nix seeks to undo several of the approvals that were granted to Ms Kinney and Mr Hicks as well as clarify the rights of various parties regarding the property exchange. The matter is set for trial 5/12/14.


5. Meyerstein Trust v. City of Aspen, et al, 2013CA000330 (08CV56): lawsuit challenges whether Aspen's subsidized housing program violates a state ban on rent control in privately owned buildings. The complicated lawsuit began in 2008 and is now at the Supreme Court because the appeals court abstained from issuing a finding on the legality of the deed restrictions in question.


6. Aspenitall, LLC v. City of Aspen, 09CV74: lawsuit claims the city had no established process and inconsistent justification(s) for removing 2 on-street parking places from in front of a private Mill Street property. The 4/9/12 order from the court found in favor of the city on all issues, however the plaintiff has filed a notice of appeal.


7. Marks v. Koch, 09CV294: lawsuit requested access to 2009 ballot images. The case was originally dismissed but later unanimously reversed in an appellate ruling in favor of Marks that also awarded legal fees. The city is challenging its payment of fees to Marks despite the court's ruling because they believe that their "win" at the district court level precludes them from paying fees for this portion of the suit. Amounts currently are approaching $300K.


8. Koch v. Marks and Branscomb, 2012CA2446 (11CV299), suit against Marilyn Marks and Harvie Branscomb for requesting to see 2011 ballots, given the outcome of Marks v. Koch. City claims that until this new legislation, state law prohibited the examination of cast ballots.


9. Mill Street Aspen, LLC and Scott DeGraff v. City of Aspen, 10CV318: lawsuit stems from a 2010 liquor license denial and finding that DeGraff did not meet the city's "good moral character" standard because of a 2000 civil case in Illinois. Suit asks that the city set aside the license denial as well as the personal finding, claiming that only a criminal record or violations of the liquor code can be judged in liquor license proceedings. Awaiting determination of the court. 

10.  Colorado Union of Taxpayers v. City of Aspen, 12CV224: lawsuit claims the city is in violation of TABOR (taxpayer's bill of rights) because the city's "fee" for paper grocery bags is actually a tax, and taxes must be approved by the electorate, not council. Because this case involves a constitutional challenge, the Attorney General's office is additionally involved.


11. Burlingame Ranch 1 Condominium Association, Inc. v. Certainteed Corporation, City of Aspen, et al, 12CV104: lawsuit names the city, among others, including the contractor and siding manufacturer for construction defects in the 5-year-old subsidized housing project. Settlement talks have occurred, however no final resolution has been reached.


Recently added to this list is City of Aspen vs JW Ventures: lawsuit seeks to force the property owners to comply with a building permit that was issued for the project that allows subsidized housing residents to use a front staircase and elevator despite the project's plat map - approved by city planners - showing the front entrance hallway as a "limited common element" solely for the free market owners' use.


Note to new council: work toward solutions. Many of these cases can be cleared up in short order. It won't necessarily be pretty for the city in all cases, but you have no obligation to continue fighting Mick's personal vendettas with public money. It is not in the public's best interest for the city to engage in lawsuits with citizens as a matter of practice; only when absolutely necessary.  

And The Red Ant knows of litigation that is likely to be filed against the city in coming months.  I'll be writing about it. Hopefully the new council will take the necessary steps to avoid this particular issue....



I recently wrote about "Caribbean Rotations" in subsidized housing (see Issue # 94) where retirees will soon be allowed to rent out their subsidized housing units to qualified employees while away from Aspen for up to 6 months at a time. I got great feedback from readers on the stupidity of this idea.


One reader, however, took great umbrage at my critique of the new sanctioned subsidized housing-abuse program. Her perspective is illustrative of how far we have gotten off the path of reality when dealing with the challenges of reasoning with those in subsidized housing. The level of entitlement is absurd. She wrote: "When it comes to seniors being in employee housing, I must say many of us have 'paid our dues.' Most of us have fixed up our homes with all kinds of amenities we don't get credit for, and we actually lose money when we sell. One mayoral candidate (who lost) had a good idea: pay us what it would cost to build a new unit. That may have been a good way to get rid of us, though some would still like to stay. I like the idea of being able to rent for 6 months, but how does one choose someone who would take care of our furnishings and personal items? The housing office allows $50 over and above the amount they set as accepted rental rates. For me, that is far below what my expenses are. So, this creates a big dilemma. Who can afford to have someone come and take everything out of the unit, paying for storage and help? I have no idea what the answer is, as I personally dislike the long winter months more and more." 

The Red Ant is pretty clear on what the answer is. It begins with said paying of dues. What dues? Folks in subsidized housing have not paid dues, literally or figuratively. In the literal sense, most homeowner associations in APCHA's portfolio are notoriously negligent in the collection of dues from their residents. In the figurative sense, what dues? With subsidized housing, those who paid for the construction of said housing paid the "dues" in the form of the real estate transfer tax (RETT). Those who live there reap the benefits without paying market costs. Regardless of how long one lives in subsidized housing, the benefits only accrue. There is no "payment of dues" whatsoever. The best way to think about subsidized housing is as a college scholarship. It's earned (based on qualified employment in Aspen vs. grades), but it is not guaranteed forever (must comply with APCHA requirements vs. keep grades up/stay enrolled). In Aspen, there is the added bonus of retiring in a unit built for employees - kinda like graduating and still getting to live in the dorms.  

What is lost on this population is that, in the 'real world,' when someone wants to live in a warmer climate, they figure out how to do it: split time (if they rent out their place, or if they can afford to, leave it empty) or they move. In our subsidized housing program, designed for employees but increasingly occupied by retirees, leaving the units empty is thankfully not allowed. It's not a personal thing. If retired residents of subsidized housing want to fly south, they too should have to make some hard choices. Why should they be any different? And they certainly shouldn't have an easier decision matrix! The rental option is not ideal, but it does provide an option that was not previously available.


Furthermore, I absolutely do not believe that those in housing should have the same (potential) financial upsides as those in the free market. No way. Those in free market housing have far greater investment risk (from market forces), and with great risk comes the potential for great reward. No risk (for those in housing) should reap that same no reward. It's basic economics. Again, it's not personal. Subsidized housing has enabled a great part of our community to live in Aspen when they otherwise couldn't because of the cost, but to assume/demand a guaranteed financial upside on par with the free market is astonishing. The upside for those in housing is the ability to live, subsidized, in the most expensive town in America.



As part of a settlement with the city that yielded permission to build a 4527 sf condo on the building's 3rd and 4th floors, the developers of the Cooper Street Pier building agreed to provide for an affordable "people's" restaurant in the 1800 sf basement space. (See Issue #4 from way back in 2008.) The benefits/requirements for the lucky tenant are communistic:

  • Rent must be less than 75% of the free market rate for a similar space
  • Rent cannot exceed $50/sf in the first year
  • Menu items must be within the bottom 1/3 of Aspen restaurant prices 

Imagine - the developers are having a difficult time finding a tenant! But now it's the city of Aspen to the rescue. The city, in its new foray into the restaurant business, will begin soliciting qualified tenants who will initially have to invest in a "full tenant finish" for the otherwise empty space. This costly endeavor, coupled with the capped food sales prices, will likely be none too popular for aspiring restaurateurs who actually want to make money. But the city is already asking prospective tenants what kind of discount (read: public subsidy) they will need to offset the cost of this build-out. It simply never ends.



Thanks for the overwhelming responses to last issue's (Issue #96) expose on We-Cycle, the highly controversial bike sharing program. Among readers of The Red Ant, We-Cycle is widely perceived to be a political folly. And the kiosks? Aspen's version of urban blight.


The program's organizers have gone on record with their belief that 100 trips a day is a resounding success, so The Red Ant ran some numbers. Here are some interesting facts:


If We-Cycle averages 100 trips a day at $2 per trip, the program will generate a mere $40K in annual operating income ($2 x 100 trips x 200 days per year of operation - remember, the bikes are stored during the winter months), or less than one-fifth of what they need to cover their $261K projected annual operating expenses. Never mind covering the cost of capital. Assuming a cost of capital of 2.4% (10-year treasury), their annual cost of capital is $74K ($650K at 2.4% for 10 years) on a 10-year depreciation schedule which is probably too long. It should probably be 5-7 years. And never mind 200 days is nearly 7 months! We live in ASPEN. May - November (inclusive) is a wee bit optimistic!

I cannot see any way the program will ever make environmental or financial sense. To cover operating and capital costs in total, We-Cycle would have to average 800 trips per day at $2 per trip (that's right, 800 trips EVERY DAY FOR 200 STRAIGHT DAYS). If we forgive the cost of capital completely, the program would still have to average 650 trips per day for 200 days of annual service to cover its operating budget with fees alone in order to avoid needing an operating subsidy. Can you say "money pit?"


The program's creators are actually brilliant. They have positioned We-Cycle as a "transit" program, so transit financial standards can be applied to measure its success. Transit is notorious for requiring operating and capital subsidies. This is a textbook publicly-funded program, especially with the added perception of an "environmental benefit." And we all know that spending untold thousands of public monies in the name of saving the environment is what we should all be doing, right?


The Red Ant has learned from folks in the transit world in Denver that governments regularly treat CMAQ grants like "found money" because there is no real accountability for how these federal dollars are spent. There is no oversight or requirement to produce beneficial outcomes from its use; money just ends up being used to achieve political ends rather than solving real problems. No wonder Aspen was so keen to do it!



Whether you own, rent or use a We-Cycle, soon you won't have to stop at stop signs when biking in the city of Aspen. Heralded as a "safety measure" and an incentive for more people to ride bikes, Aspen Police and city staff recently convinced council (Skadron, Mullins and Frisch) that Idaho's "stop-as-yield" approach is actually safer. What? Assistant Police Chief Bill Linn explained that "cyclists are actually at greater risk when they stop at stop signs because of a few factors: one of them being that there is always an unknown element for motorists in the area when a bicyclist comes to a stop sign. Is that bike going to stop or not?" Really?? Apparently some cyclists have difficulty dealing with the inertia when they come to a hard stop. Puh-lease. The Red Ant doesn't like it. The word "splat" comes to mind. Time will tell. Be careful out there.


HERE's another hilarious installment from Aspen Times columnist Glenn Beaton: Fly the Affordable Skies.  Enjoy.

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