The Red Ant - The Red Ant

#JeSuisCharlie

THE "NO VARIANCE" PETITION

You've probably heard - there's a major effort underway to get a ballot initiative in front of Aspen voters this spring that will strip city council of its ability to grant land-use variances. A dedicated group (vociferously supported by Mick Ireland and other anti-development zealots and class warfare inciters like Marcella Larsen and Marcia Goshorn) is working to collect 300 signatures (5% of Aspen's registered voters) by February 4. The idea stems from a recent action in Telluride where "a resident petition drive began over fears that big development was threatening town character," according to The Aspen Times. Telluride's town council ultimately adopted the petition, stripping itself of the right to grant waivers to developers. Of course, this has the anti-development crowd in Aspen salivating.

Aspen's version proposes that ANY council-approved variance on height, floor area, housing and parking be subject to a public vote, no exceptions.

The Red Ant has very mixed feelings on what I unfortunately see as a fait accompli. I am a huge advocate of grassroots politicking and commend the petition organizers for their undertaking; I know all too well the work involved in a petition effort. However, the law of unintended consequences - a frequent visitor to the city of Aspen - waits in the wings for yet another sojourn to our little town. I believe variances should ALWAYS be a possibility, on a case-by-case basis however, not as a party favor. To change the city charter restricting variances to those only approved by a public vote is simply too "mob-ocracy" for The Red Ant.

I also see this petition to change the city charter as Mick Ireland's tactic of hijacking the local democratic process and "schooling" the current city council simply because he can. He knows more than all of them combined ever will about manipulating the public process to attain his selfish goals. He is going to show them - and us - that he doesn't have to hold elected office in order to control this place his way. Mick simply cannot handle the new level of civil discourse enabled by his departure 2 years ago. Instead, he prefers an iron-fisted fiat. This variance issue is one of land use, not something to be changed in our city charter! (And this of course begs the inevitable question: will the old dragon be announcing his candidacy for office this spring, using this issue as the platform? Another story for another day....)

I saw one of the signature collectors at the market this week and learned that they have already collected well over 300 signatures. Once something like this gets on the ballot, it's as good as won, given the "screw the rich," anti-development, bring-back-the-quiet-years activism that runs rampant in Aspen these days.

Former mayoral candidate (oh, if only) Maurice Emmer recently outlined the pros and cons of the proposed amendment to the city charter. He makes very good points.

Pros (arguments FOR removing council's variance-granting power):

Councils inevitably devote too much time to variance requests while neglecting councils' more basic functions, such as supervising city management. Removing this power would allow more time for other functions only councils can perform.
Knowing that all councils inevitably grant major variances, developers over-invest in real estate, virtually requiring a variance bailout from councils. If councils were powerless to grant variances, developers wouldn't over-invest and wouldn't require the variances.
Fights over significant variance requests are unnecessarily divisive in the community.
The variances inevitably granted can negatively impact the character that many locals prefer for our city.
Significant variances would still be possible, but the case would have to be strong to win a public vote.

Cons (arguments AGAINST removing council's variance-granting power):

Because variances have a widespread effect on the city, elected officials should make the call. This is a representative democracy, after all.
Because no two real estate developments are alike, the system should not be so restrictive as to prevent reasonable variances.
It isn't necessary to repeal council's power; it's only necessary to elect different council members.

I absolutely understand the proponents' frustration - the variance shakedown game has truly gotten out of hand. Current/recent councils have made some really bad decisions on granting waivers that have only encouraged more developers to ask for more exceptions. But I truly lament the fact that council has not taken pro-active steps to avoid such a dramatic showdown. They have only themselves to blame, I'm afraid. It didn't have to be like this. There has been plenty of opportunity for council to engage the "no variance" proponents as well as others in the community (like myself) who strongly and vociferously support much-needed changes to the city's land use code and have for a long time. Instead, they are about to have their wings severely clipped for good, and have it written into the city charter! Sadly, failing to have reformed the land use code or otherwise tackle this problem before activists seized the initiative is, itself, indicative of poor management by council and makes the case for curtailing council's powers. (Imagine, for example, a relaxation of the land use and zoning codes so that rational rules apply to everyone. This could alleviate the need for most all variances.) By its own inaction, the current council (and its successors) is soon to be left powerless in the dust.

Since this "no variance" measure appears poised for success, there ARE several "companion" reforms that council should work to enact. Pronto.

SIGNIFICANTLY reform the land use and zoning codes to make them more rational, easing pressure for needing variances for every development project.
Reform the subsidized housing program, emphasizing the management of current inventory instead of continuing to build more units. This would result in less burdensome requirements for every new development to contribute to additional "housing" stock into perpetuity, therefore reducing the call for variances.

The measure is distinctly anti-development with heavy class warfare undertones. Have the proponents determined that ALL development is bad? I think they have. It's in their DNA. How a "no variance" measure will specifically and economically impact future development in Aspen is anyone's guess, but with NO POSSIBLE EXCEPTIONS to the current rules without a public vote, the environment for development has certainly just gotten a lot worse.

BEFORE YOU SIGN THE PETITION: Consider, this measure will take council's quasi-judicial role - where they act like a court, evaluating matters affecting individual property rights - and turn it over to the "mob-ocracy." Land use decisions are NOT legislative decisions. They are quasi-judicial because they impact individual rights, in this case property rights. If this proposal were brought up anywhere but in a western mountain town, it would be challenged as unconstitutional because it delegates decisions on individual property rights to a popularity contest. Additionally, how is the land use code to be updated in the future? If only the voters can approve variances, how can the code be amended by council? Must all land use code changes be put to a public vote as well? Just imagine having to stage a campaign to assert your property rights. That is precisely what this measure will require. Any property owner wanting even the smallest, legitimate variance from the code would have to go through an election process - essentially a popularity contest - for approval. And what of the slippery slope? It gets truly terrifying. What other individual rights might be trampled by a community electorate that is becoming a homogenized, subsidized housing plutocracy whose power arises not from their wealth or their contributions to the community but from their collective ignorance and narrow-mindedness?

NOTE: At press time, council has directed city staff to craft some changes to the land use code that would limit council's ability to grant variances. Perhaps this is a last-ditch effort to appease the "no variance" proponents? I'm not sure. My guess is that the "no variance" measure will be on that May ballot regardless of what council does at this late date. Perhaps the hope is that voters might see council trying to self-police on variance granting and therefore decide that the "no variance" measure is too extreme and inflexible? Good luck with that. It's a day late and a dollar short. Changes to the land use code by council should have been made long ago. The chickens are finally coming home to roost.

And just today, a fabulous letter to the editor ran in the paper, courtesy of Neil Siegel. When I can't say it better myself, I have no problem yielding the floor. Here it is:

"Isn't it ironic that the biggest cheerleader for Bert Myrin's ill-conceived ballot initiative is our former mayor? Yep, the same guy who strong armed and proudly put his stamp of approval on the Aspen Art Museum among other skyline altering projects now wants to neuter council's authority and put the brakes on all development.

Make no mistake, this is every bit as much of a power play as if the former mayor still had the gavel in his hand. But, however meritorious the issue, the battle is being waged on the wrong terrain. The Home Rule Charter is no place for the bile and whims of those distrustful of elected officials (past and present according to Myrin) to spill out. Rather, it is the land use code itself that needs to be revised so that reasonable development can proceed apace without the requirement for wholesale variances, project after project.

Consider the just-approved Molly Gibson Lodge, a project all agreed had appeal and considerable merit as a step forward for the community. It was approved with multiple variances granted on allowable floor area and setback requirements. But, if Myrin's proposal was law today, council would be hog tied and the proposed project would have to go to the voters for approval, a costly waste of time and energy for everyone.

More properly, these issues are properly debated in the realm of the land use code itself. Today it is an entanglement of requirements worthy of Dickens' Jarndyce vs. Jarndyce in Bleak House. Why can't the protagonists here back off and focus their efforts and expertise on a revised, understandable and enforceable land use code that reflects a consistent and sustainable vision on the critical issues of mass and scale, parking and affordable housing requirements. Rather than tear the town apart, an unbiased and robust debate could yield positive results, and I do not mean another treatise of rules and regulations.

A revised code would have real teeth and put all developers on notice that the horse trading and Persian-rug-market environment we see today will simply not be allowed. A variance, by definition, is a departure from the rule, yet today we are upside down because it is the norm. Everyone agrees that needs to be fixed. For example, a revised land use code should set forth a very high threshold requiring a compelling showing that any variance by itself is clearly in the public interest - that is, not one justified as the result of bartering with the city. A very high bar would give council a substantive reason to say 'no' and at the same time build a record based on firm requirements embedded in the code."

Bravo, Neil.

HUNT'S "AFFORDABLE LODGE" UPDATE

Ask Mark Hunt about the development environment. It's bad enough today, yet he still gets to negotiate civilly with council. Sure, the guy is asking for some significant variances for the proposed "affordable lodge" developments he is willing to build in the downtown core. After all, the community has long been bemoaning the loss of small lodges and affordable beds. Think about it - as I've said before, why would Hunt build affordable lodges on the two valuable parcels he owns (730 E. Cooper where Domino's Pizza is located and the Conoco gas station at Main and Monarch) without some concessions from the city? Affordable lodges are hardly the best economic use from a development standpoint, but he is willing to build what the city says it needs - if the city will play ball. This is why variances are necessary!! You don't get something for nothing in this world, folks. City hall is going to learn this the hard way.

Late last week, Hunt "iced" the Main Street lodge (called "Base 2") proposal. Council balked at the requested variances (off-premise parking, increased floor-area-ratio, a break on subsidized housing mitigation) because the parcel is across the street from the technical downtown core, so for now the project is on hold. But don't hold your breath. My bet is that Hunt maximizes his investment and builds a commercial project that meets the current zoning on the site. Kiss 40 affordable lodge rooms goodbye.

The Cooper Street project (called "Base 1") is still deeply mired in the muck. Within code at 17,000 sf, Hunt is requesting a waiver on 25 off-street parking places, $40,000 in impact fee waivers and a waiver on subsidized housing mitigation for 1.97 employees. Hunt is negotiating with the city for 25-50 parking spaces nearby in the Rio Grande garage, but council is pretty dug in against this project with any of the requested waivers. Simply put, they want an affordable lodge ($150-$200 a night) but don't want to give up anything to get it. As if.

EMPLOYEE GENERATION SURVEY

It's been almost a year since city hall commissioned a survey to "determine" a scientific multiplier for the number of employees generated with each square foot of residential housing development. It's bad enough that the city only looks at new development as rationale to build more subsidized housing instead of perhaps providing much-needed jobs for our under-employed-yet-living-in-subsidized-housing workforce. But the reality, a year into the "study," is that there is no report. Excuses are rampant, including "no draft yet" and "no survey results have been provided." To this I say BS! It has become clear that the survey results and the consultant on the project (and perhaps the staff over-seers as well) cannot support the conclusions the city desires so they are working on other ways to justify the proposed increased housing mitigation numbers. The level of obfuscation is growing by the day. And council has been silent. The only pressure on the city to produce a report (for which taxpayers paid $33K) comes from concerned citizens. I'm one. Lifelong local Mike Maple is another.

If employee generation cannot be easily and logically proven, with a narrow range of deviation, it should not require mitigation. Period. Furthermore, any viable report must include an analysis and quantification of the multiple means by which Aspen property owners already pay for subsidized housing. Isn't 2/3 of the RETT (1.5% of the purchase price of every Aspen property) enough subsidized housing mitigation? In my book, more mitigation sounds a lot like double taxation! Furthermore, a resident-occupied dwelling likely already provides housing far in excess of its impacts. This too should be given consideration in any analysis.

Sadly, I'm not holding my breath. The city will go to great lengths to justify its desired mitigation numbers. This will be yet another survey that uses too many "existing" data sources (census, Bureau of Labor, etc.) that have limited if any relevance to Aspen, and will inherently assume that every job created by residential development will go to a new employee who needs subsidized housing. I have very little trust in this process - never have - and even less in the outcome of the survey, if we ever see it.

And at the risk of sounding like a broken record, as I've said numerous times before and will continue to say, how can we even begin to discuss subsidized housing NEEDS when we don't know what we have, who lives there and whether or not they're compliant? This entire issue needs to be first addressed with a comprehensive subsidized housing audit.

NEW TENANT FOR THE OLD POWER HOUSE

A recent council meeting exposed the cluelessness of council and city staff when it comes to proper due diligence in evaluating "finalists" (that they've chosen) for tenancy at the Old Power House, recently vacated by the Aspen Art Museum. The newly-added requirement that whichever entity "wins" provide a public food and beverage operation is nothing short of ridiculous. Is the idea of this "café" to somehow drive traffic or to feed employees?

The 5 finalists for the city-owned 7200 sf space include four local non-profits: Aspen Science Center, Powerhouse Performing Arts Center, The Power House Aspen (a community gathering place) and Aspen Media Powerhouse (a new studio and archive facility for GrassrootsTV). The fifth finalist is a commercial tenant, Power Plant Brewery operated by the Aspen Brewery. I wasn't originally aware that the city was considering a commercial lease for the property; I always thought that council was trying to "assist" a local non-profit with a public facility at a very favorable rate (the Aspen Art Museum paid $1 a year in rent to the city during its tenancy, 1979-2014). And notably, quick research yielded the fact that the Old Power House site isn't even zoned for commercial use! Council would have to amend the planned development uses (PUD) to ok the Brewery! It's pretty clear council doesn't really know what it's doing.

The rational and responsible thing to do would of course be for the city to utilize the Old Power House for its own needs, but let's face it, no city staff wants to be so far from Peach's!! Staff wants to work "in town," preferably in the proposed new palace on Main Street! By leaving the Old Power House out of the mix (for potential municipal uses, despite allegedly "needing" 70,000 sf more space), the city has concluded that there is no suitable public use for that building. But, they are willing to spend money from the public coffers to upgrade it for a new tenant, including quite likely a commercial kitchen! This, while looking to house a city function or two in the recently-vacated teeny tiny Mountain Rescue cabin on Main Street. It simply defies common sense.

Council is currently situated to choose the least incompetent of this group in coming weeks. Typical. Yet another missed opportunity. In its desire for a utopian "unique community asset," the upcoming decision will be a purely political one. Best use for the space and what is authorized by law will have nothing to do with it.

Local resident and city watchdog Neil Siegel points out in a recent letter to the editor that it's not too late for council to "pull the plug" on this very flawed process, take a step back and evaluate the best potential uses for the valuable city-owned site and start anew. Read it HERE. I wholeheartedly agree.

Short of that, and short of a commercial lease (which should be put out into the competitive marketplace as opposed to being granted to a select for-profit tenant), the only reasonable choice is GRTV. It's the only entity that has proven to be a sustainable community asset that can demonstrate funding and a solid record of operating a facility for over 40 years. In fact, several of the other finalists are newcomers to scene and cannot demonstrate much! Good grief. (Besides, GRTV is dedicated to free speech. And I like that. A lot.)

For the highly curious and easily entertained, check out the original applications and council's (laughable) evaluation matrix HERE.

THE LATEST ON HYDRO - IT JUST WON'T GO AWAY, OR WILL IT?

The federal permit for the hydro plant on Castle Creek expires on February 28. Phew, right? Not so fast. The preliminary permit, originally granted for 3 years in 2008 and renewed in 2012, should clearly be allowed to lapse, given council's direction to city staff to cease work on the hydro plant and pursue other renewable energy options last year. "Should" is the operative word. City staff filed a progress report with FERC last March stating that "The Aspen City Council has not abandoned the project. The project remains a viable project at this juncture..." despite a November 2012 advisory vote that told the city to stop. Then, council decided to pursue other renewable projects (not CCEC) in April and the city settled a lawsuit over water rights for the hydro plant in June. Both the settlement and the subsequent council resolution specifically stated that "the city will not be pursuing or seeking to complete the CCEC hydroelectric project at this time." But, in September, in defiance of council and the terms of both the settlement and resolution, city staff sent FERC a progress report that suggests the nail is not yet in the CCEC's coffin. "In the event the city council decides to proceed with the CCEC project as a chosen alternative, the city will move forward as appropriate," according to the document. What???

This says to me what I have long written here: city staff is hell-bent on completing the CCEC hydro plant and only plans to wait out the current council. As soon as they have a hydro-favorable board seated, we'll quickly be back in the hydro business. The good news is that FERC isn't real keen on granting 3^rd successive preliminary permits, however, the city continues to pay its outside water lawyer to keep the dream alive.

As recently as December, staff was still lying to council about the hydro plant. City attorney Jim True/False told council in an open meeting on December 14 that in the June 2014 memo to FERC, he informed FERC that the city had determined not to pursue the CCEC but would be pursuing micro-hydro options. In researching this June memo, there are indeed references to micro-hydro but not to CCEC. There was only one small acknowledgment of CCEC's demise and that was in a deeply buried exhibit. The letter itself bragged on and on about all the things the city continues to do to advance the CCEC hydro plant.

Under the auspices of "pursuing micro-hydro" projects on Castle Creek, city staff desperately wants that permit renewed. This is entirely unnecessary. The city can let the current permit expire, as it should, and then apply for new permits for micro-hydro projects if and when these come to fruition. But don't be fooled, city staff desperately still wants the CCEC hydro plant and until it's really dead, it remains alive.

NOTE: At press time, council has directed staff to let the FERC permit expire. In the reporting of the decision however, there is strategic use of the term "for now" when referring to the CCEC hydro plant being "dead in the water." The next step for council is to direct staff to immediately sell the custom $1.7 million turbine it ordered as soon as the votes for the hydro plant were counted in 2007. We'll only get pennies on the dollar for it, but at least it would be gone. This would be a logical and responsible next step toward the final death knell for the hydro plant. In the meantime, we watch and wait.

TOO MANY TOURISTS?

On a very different note, here's something that came across the transom that really, really disturbed me. I got the following email from a concerned citizen (name withheld from this publication):

"I was told the environment in Aspen over Christmas was less than pleasant because the town was so incredibly crowded and the visitors were rude and obnoxious. I wish council was capable of weighing the balance between opening the flood gates to increase profit versus being a good steward before all Aspen charm is lost. Aspen has become too large both high season winter and high season summer. Council is elected to PRESERVE Aspen and its charm, not make decisions based solely on profit and greed. God help us!"

This begs numerous questions. Is COUNCIL responsible for controlling the "flood gates" that ostensibly "let" people in (or "keep" them out)? Is anyone? Who gets let in? Who gets kept out? What's the criteria? Or, are we a resort destination whose economy is tourism based? Really!! I'm appalled.

As far as I'm concerned, we get to live in a world class resort that, as a result of its success, is able to sustain a diverse and vibrant local community. Neither could exist without the other, but I think it's safe to say that without the tourists, Aspen would no longer be a resort. We'd have no economy. Some community THAT would be!

NOTABLE NEWS

Mail-in Election in May: All registered Aspen voters will receive a ballot in the mail for the municipal election on May 5. Ballots will be mailed out on April 13. Detailed info is not yet on the city's website, however if you are planning to leave Aspen for spring travels prior to April 13, I encourage you to contact the city clerk ASAP to work out how you can get a ballot and vote!! Don't worry, I'll let you know what I'm thinking about candidates and the issues! Clerk Linda Manning can be reached at linda.manning@cityofaspen.com and 970-429-2687

Get Your Food Tax Refund: HERE is the food tax refund application form. If you are a registered Aspen voter (prior to January 1, 2014) who has lived in the city for all of 2014, you and your dependents qualify for $50 each. The city created the food tax refund as an incentive to encourage voters to support a sales tax referendum. It was intended to reimburse voters the approximate amount of sales tax that they would pay annually on groceries due to the 1% city sales tax. More info HERE. Deadline is April 15 at 5pm. Free money from the city. Get yours.

Repeal of Bag Ban in Huntington Beach, CA: I have long opposed the City of Aspen's half-witted plastic grocery bag ban and "fee" (which I see as a tax). HERE is an interesting piece on an Orange County community's decision to repeal their bag ban. Theirs didn't have the fee/tax implications and controversy that ours does, but the situation raises some interesting points none-the-less.

Happy New Year from The Red Ant ... Just home from skiing in Austria.