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ISSUE #108: ANTipathy Abounds - Summer Musings

  "The hardest mistakes to learn from are those that lack consequence."   

   -- Jasper Sole 

Sometimes, all it takes is a little perspective.  Over the course of the summer, I monitored the goings-on in Aspen from my summer house on nANTucket.  I "read" the papers on most days and heard from many of you regularly -- thank you!! I was often entertained (who can believe some of this stuff??), frequently horrified, but more often than not, simply incredulous that this level of buffoonery continues, year-in and year-out, more or less unchecked.

The inmates are clearly running the asylum in the People's Republic of Aspen!

About 18 months ago, it seemed that we might be turning a corner, what with the "new" council and the absence of Mick.  But it was not to be.  At this stage, rumblings about the May 2015 municipal election are already heating up and I can't say I'm surprised.  I am far from impressed with any action by this council aside from the decision to shutter the hydro plant.  Best I can tell, they've become simple pawns, having abdicated their oversight role to our pal Steve Barwick and his roving band of buffoons. The remarkable thing is that they don't even realize it!

In short, here's what I'm talking about:

Earlier this summer, council ok'd a change in the law whereby bicyclists no longer have to stop at city stop signs. City staff brought it to council's attention that bikers were ignoring stop signs throughout town anyway so this seemed like a logical way to go. Somehow, the city thinks this will encourage more people to ride bikes in Aspen! The new law of course furthers the city's war on cars. It's all fun and games until someone's kid gets hit. Not if, but when.


The Colorado Union of Taxpayers' (CUT) 2012 complaint against the city of Aspen argued that its $0.20 per single-use paper grocery bag fee is an unconstitutional tax. When finally heard by 9th Judicial District Court Judge John Neiley, he ruled in the city's favor, when in irrefutable fact the"fee" is not a fee, it is indeed a tax!

  • Aspen's bag "fee" provides no individualized service but chips funds into a bucket for educational purposes aimed at reducing usage of "single use" items.  (A "fee" must specifically benefit the payer of the charge.)      
  • Aspen's bag "fee" is a value-based, rather than cost-based, charge.  (Government charges against the value of privately sold goods are taxes, whereas fees pay for government services provided to those seeking a service.)        
  • Aspen's bag "fee" is a mandatory government charge applied to the cost of privately provided services.  (The very definition of a tax.)      

Besides, and perhaps most notably, despite arguing that the bag tax is a fee, the city does not classify the funds garnered from the bag tax "fee" with other government fees, despite having a detailed "fee" report in its annual budget. Nope. The city spends many pages of its lengthy budget justifying that all fees are collected appropriately, but omits the bag tax "fee" every year. Why? Because it's not a fee.

As usual, the city can do no wrong in the eyes of the district court. The state constitution says that such matters, when close, are to be decided in favor of the taxpayer. Neiley's decision does just the opposite. It seems the judge relied at least in part on the intent of the "fee" to reduce the use of disposable plastic bags. This is an irrelevant legal consideration. The concept of "intent" in this matter pertains to whether the charge is intended to fund an activity that specifically benefits the payer of the charge. That the government imposing the charge doesn't even bother to evaluate the relationship between the charge and the costs of rendering a benefit seems to provide evidence of a lack of intent to connect the charge with the benefit.  But most notably, the judge got it wrong when he misapplied the import of the purpose being to reduce usage.  A general public policy like that is an indicium of a tax, not a fee.  But he (wrongly) said that was indicative of a fee.

Hopefully, the Colorado Union of Taxpayers expected this outcome and will appeal.

In an effort to create incentives for the development and re-development of lodge rooms to increase the dwindling bed base in Aspen, city staff prepared a cumbersome 91-page manifesto for council's approval. The 17-step tome presented a 5-year plan that included allowances for 4-story buildings (upon council approval), more free-market residential unit components per project, development fee waivers, fewer subsidized housing requirements and other pro-development perks.  

It is widely acknowledged that we need more tourist accommodations in town. Statistics show that we've lost about 2700 "beds" and 20 small lodges in the past 20 years. SkiCo and ACRA both agree on and espouse the urgency of addressing reinvestment and modernization of our infrastructure. The incentive program narrowly passed council 3-2, only to be reversed shortly thereafter once an opposition group mounted an aggressive petition effort to overturn the ordinance. (Having been integrally involved in a citizen petition effort to nix the hydro plant, I am happy to see that council has learned that the power of the citizenry is indeed something to be reckoned with. However, it is widely known that this particular petition effort employed exaggerated fear-mongering a la "council has approved sky scrapers at the base of Aspen Mountain" in order to garner signatures.)

At this stage, it's back to the drawing board. But the facts remain: we need more beds. The answer? KISS. Keep It Simple, Stupid. And additionally, the historic hysterics need to kiss The Quiet Years goodbye. A small but angry, aggressive and loud faction of our populace is vehemently opposed to ANY development, especially development that might bring more people to our little town. They could not care less that Aspen is a tourism destination that depends economically on tourism dollars for its very survival. They have their piece of the Aspen pie so to heck with everyone else.

A 91-page ordinance is NOT the answer, but we do need a plan. We've already squandered a once-in-a-lifetime opportunity for a second base area at Aspen Mountain. That ship has sailed, with Mick at the helm. (Recall how the then-mayor voted for the hotel project as part of a citizen's committee before he voted against it as mayor. It is his legacy.) Luxury townhomes are now pre-sold and slated for development on the 1A side of Ajax, forever ending the possibility of another ski-in, ski-out hotel in that primo location. Woulda, coulda, shoulda. New base areas don't grow on trees. 

Council never seems to get it that city staff works for them, not the other way around. Tell staff what we need and tell them to write it up! No grand manifesto, just a nuts and bolts solution. But make sure it's a solution! Like this:

  • Roll back development fees, but don't give as much opportunity for height variances or free market residential components.  The city does not need the one-time development money; it needs the beds and the sales tax revenue from modern, competitive lodge year-over-year for the next 30 years.    
  • Streamline the EXISTING code.  The solution should be the rule, not an exception in the form of an incentive plan.  (Check around.  Surely there are examples in use in other communities!)       
  • Speed up the review process.  Set timelines where an applicant must be quickly granted a hearing in front of P&Z or council.  Limit the required public hearings to one or two, not an infinite number.  The current open-ended process, used punitively in the past, enables nay-sayers to use the public process to extend the debate and financially bleed applicants.       

In 1979, Aspen voters approved a real estate transfer tax (RETT) of 1.5%, with funds going to subsidized housing (1%) and the Wheeler Opera House (.5%). The current tax sunsets in 2019 so city officials are FINALLY taking a look at the 35-year haul as it relates to maintaining one of Aspen's jewels into the future. The Wheeler received $3.1 million from the RETT in 2013 on top of a city subsidy for operations of $2.6 million. The current "Wheeler Fund" balance is $26.8 million. This slush fund is a frequent source for the city to dip into to entertain pet projects which in the past have included ridiculous real estate purchases at above-market valuations. Free money.

Some background: An endowment for the Wheeler was created in 2002 with the intent of growing it to $70 million over 17 years and then ending the tax. Then management of the Wheeler changed and operations of the facility began to cost the city more than $1 million more per year. There was no longer sufficient income to build the endowment fund to a level where it would be self-sustaining. Then, in 2008, the endowment was eyed as a source for a massive expansion. Again, looking at the fund as free money! Because the costs at the Wheeler are now so high, the concept of an endowment is no longer financially sustainable (there would need to be about $50 million in the fund to support the Wheeler's required subsidy).

While one would hope that a $26 million fund balance could establish an endowment for the facility, it is not to be. The current management of the Wheeler spends money like drunken sailors and the city continues to subsidize these follies. Yes, there are arguably many other pressing needs for that .5% RETT money. But the city will have to whip the Wheeler management into fiscal shape if we want to re-allocate the RETT funds. It will take voter approval to make such a change. But don't hold out hope that anything will change regarding funds for subsidized housing. It's Aspen! There can never be enough.

In the earliest days of The Red Ant, I wrote about "Chairman Mao's Diner." Read it HERE. In an extortionist move against the developers of the building that now sits where the Cooper Street Pier once did, the city extracted a concession that an "affordable" restaurant be situated in the new building's basement. The new "people's restaurant" would be required by law to serve meals that are priced within the third lowest of all restaurants in town.

That was 2008. Today, council is all in a bother because the building developers have not yet found some poor sap who is willing to lease this dire space, finish it out (at a cost of about $1 million) so as to physically have a restaurant there, and be willing to serve legally-mandated cheap eats. Who would? It's ludicrous. And another example of the law of unintended consequences coming back to bite the city right you-know-where.

Look how stupid our city bureaucrats are! They don't even understand the most basic concept in private sector economics: supply and demand. When there is a supply of restaurant spaces that are NOT price-regulated by the government, why would there be any demand for the one space that IS price-regulated? It may have seemed like a good idea at the time, but economically it just doesn't pencil out. Never did.  Memo to the city: you tried. It didn't work. Give it up. Learn a lesson. Cut your losses. Walk away. It should not be incumbent upon the developer to solve this one. The space is there, as required. You're the ones who put the prohibitive stipulations in place.

No one, local or visitor alike, is without an opinion on this one. But wherever you stand, the reality is that it exists. Let's collectively hope that the cultural offerings of our newest "attraction" bring visitors to Aspen. Never mind they might not be able to find a place to park, the admission is always free. But it's in Aspen's best interest that the AAM succeed. It's also in our best interest that this be the last time something like this gets built under such extenuating circumstances.

If you want the real story on how the AAM came to be, the singular best piece on the subject is by Brent Gardner-Smith, published in the Aspen Daily News this summer. Read it HERE. It is by far the best example of investigative journalism of the year. (And yes, you CAN thank Mick for this too.)

My personal hope is that with all of the new gallery space in its new facility, the AAM will continue its support of the Roaring Fork Open, showcasing the works of local artists, as well as bring back the ever-popular Roaring Fork Valley Kids Show. A little goodwill never hurt.

On the "hot plate" and currently in the news....

If you own property in Aspen, you've received THIS survey. It's the latest expenditure ($33K) by the city to "involve" property owners in pending punitive legislation to increase the costs of development so as to further pad the coffers for yet more subsidized housing. The current housing "mitigation" fee is $76 per square foot. The city certainly can't build subsidized housing for this so they think the number should be higher. As in A LOT higher - like $200+ per square foot. Of course they overlook the fact that a private property owner has already paid 1.5% of the purchase in RETT, with 1% already going to housing! And, there are evil undercurrents to charge second homeowners a different (and ostensibly even higher) rate!

In simple terms, picture a 20x20 addition to a house. 400 square feet. Currently, it would cost $30,400 in housing mitigation before you even buy a nail. The city wants this to go up to at least $80,000. Their thinking is that the larger your house is, the more local employees you need, measured in what they call "full-time equivalents" (FTE). So, the survey wants to know how many people you employ and how often. Clearly, that 400 sf addition creates some sort of dramatic need for more people to serve you that the community must provide housing for at a subsidized rate!

Of course, neglected in this model is the fact that you might not generate ANY new employee needs with your construction. And even if you did, perhaps it would be much needed and highly desired work for the many workers already living in subsidized housing who are under-employed and would welcome new clients! But that doesn't fit their narrative, does it? They want you to brag and tell them that you employ a small army. This will justify their flawed rationale for a huge mitigation fee increase. Please answer and submit the survey. (And you know the answers!)


Parking-gate in Aspen. This one is CLASSIC. It seems that for the past four years, a merry band of local swindlers have "paid" for parking in Aspen with zeroed-out pre-paid debit cards, bilking the city of Aspen as much as $800,000 in uncollected parking revenues! Apparently our parking meters don't process transactions in real time, only in batches, so clever scofflaws figured out how to use empty gift cards in order to park for free. Then they told two friends who told two friends, who bought parking passes for their entire office or construction site all day every day, and a major scam was afoot. In 2010, losses from the scam amounted to $26,580. In 2011, it rose to $78,036. By 2012, $227,000. So far in 2014, it's already at $448,000. City officials say they had no clue because parking revenues were not affected. Right. Rumors abound that the city has long been aware but just didn't bother to do anything.

When pressed about this blatant negligence at a recent council meeting, our pal Steve Barwick got VERY defensive. He blames the scofflaws, the technology, credit card processing laws - anyone but city officials. A million here, a million there. To Barwick, it's all free money so who really cares! Also defensive about the matter is mayor Steve Skadron who got all teary and emotional when questioned by citizens about financial oversight in city hall. Clearly, in this case, there wasn't any, so the question was incredibly valid. In his defense of all things city, the mayor said it was "impossible" that this could happen in any other department. Sure, Steve. Where does your confidence come from? Is it because Steve Barwick told you so? Puh-lease. As if there haven't been MANY reasons to clamp down on and even fire Barwick over the years, once again council sits idly by. For shame!

But this isn't anything new. Parking in Aspen has a long history of misfeasance. In 2005, it was discovered that the city had over $1 million in unpaid parking fines that had not been turned over to collections. (See the pattern? A million here, a million there.) In 2009, it was revealed that the parking meters were accepting payments outside of paid parking hours. And parking department director Tim Ware knew about it but lied to cover his you-know-what. In 2011, the parking department was not following its own rules for carpool parking passes (requiring two DRIVERS in the car), electing to give passes to moms with an infant but not to commuters with a high school student of non-driving age. All of these issues can be neatly traced to Tim Ware, assistant city manager Randy Ready, and of course, Steve Barwick. How is it all three of these guys are still employed??

Furthermore, any sensible entity has a forecast of what its revenues should be. Did the city have a forecast? Did they ever once compare forecasts to actuals? Anyone with responsibility for revenue of any magnitude receives daily and weekly reports on actual vs expected revenues. They're called variance reports. A 5% variance is serious. A 30% variance is grounds for termination. Who is in charge over there??

For two weeks running, local columnist (who just so happens to be the former city finance director who knows where the bodies are buried) Paul Menter has been on the case. He wisely calls for an independent audit of the issue while pointing out how council, in their responsibility for overseeing city manager Steve Barwick, feebly questioned the bureaucrat and stood silently by as he took zero responsibility while criticizing citizens who dared question the city's integrity. Click through and check out Paul's comments from September 17HEREand September 24HERE. Simply put, he nails it.  Good job, Paul!

We'll be getting new and improved parking meters soon (to the tune of $600K) and the cops are investigating to see if they can determine who the bad guys are (good luck with that), but what about the oversight? The parking scam should never have become what it did. This should have quickly been nipped in the bud YEARS ago!  But no one was looking. Barwick is responsible for overseeing the parking department. And Barwick reports to council. The city finance director reports to Barwick but per the city charter has a fiduciary responsibility to council. Unfortunately, council is clueless and has likely never read the city charter. They ask all the wrong questions when they bother to ask any at all. And they certainly don't manage Barwick (he manages them). So, when the watchers stop watching, who's watching the city's millions? Just asking.


In one of my favorite columns of the summer, Aspen Times columnist Glenn Beaton shares his thoughts on one of my favorite local topics - class warfare. You'll get a real kick out of it. I've read it several times and laugh out loud every time. HERE it is. Enjoy.

And one last quip that still has me snickering....

In August, our none-to-classy former mayor helped himself to food and drink at a private party. Yep, the grungy freeloader rode his bike up to a picnic and dove into the buffet. When asked to leave, he went nuts, screaming obscenities at women in the group. Misogyny. Who knew that this was yet another trait of our fine former dictator, although I can't say I'm surprised! In the end, Mick was "forcibly escorted" from the event by 84-year old Allen Mayfield, a retired US Air Force Colonel, who was in attendance. When Mick started swinging at Al, the octogenarian was forced to defend himself with a few pops to put Mick in his place. And thus, the quote of the summer from the Colonel, "I could have cold-cocked him if I had wanted to." You go, Al. Thanks for taking on this insipid bully. Your restraint is admirable. Many others would certainly have cold-cocked him if given the chance. I'm one.


This general election will be administered by the Pitkin County Clerk and conducted by MAIL-IN BALLOTS. To be certain that you receive your mail-in ballot, go to right now and verify your mailing address. I just did it and it's simple.

Ballots will be mailed to you on October 14. You can mail your ballot in or drop it off at the clerk's office - 530 E. Main Street, across from St. Mary's Church. And if you insist, you may also vote in person on election day or during the "early voting" period beginning October 20, 8:30a - 4:30p, Monday-Friday, and Saturdays 10/25 and 11/1 10a-2p.

On election day, "voting centers" will be open 7a - 7p at the clerk's office, Snowmass Town Hall and Grace Church in Basalt. Ballot drop off in Redstone is available 7a - 7p at the Church at Redstone on election day.

If you have questions or concerns, please contact or 970-429-2713. And do yourself a favor. Don't wait until the last minute.

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