ASPEN - A letter from a local lawyer asks the Aspen City Council and Mayor Mick Ireland not to take action at Monday's regular meeting that would change the way the city does business with regard to impact fees and affordable-housing mitigation for residential development.
Jody Edwards, in the Jan. 24 letter, says he is writing on behalf of several property owners, real estate sellers and other members of the community in questioning two proposed ordinances that "mandate that residential property owners pay impact fees, provide on-site housing or deed-restrict free-market property to provide affordable housing as a condition of residential development."
Edwards wants the council and Ireland to wait 90 days before taking action to allow more time for examination and public discussion of the ordinances, which are said to involve a greater financial burden on property owners and developers than the existing rules require.
"We believe that the proposed ordinances unfairly impose the costs of affordable housing on the private residential sector because these costs are not analytically related to any reasonable methodology for determining the costs of the impacts," Edwards' letter states. "We believe that the requirements proposed for providing on-site affordable-housing units, the buy-down requirements and amount proposed as a payment in lieu (of providing affordable housing) are likely well in excess of the impacts of residential construction."
The letter hints at potential legal action against the city should the council proceed along the direction it's been heading.
"Although the city has had similar programs on the books for quite some time, the cost of compliance has not been so great as to encourage legal challenges," Edwards wrote. "However, this should not be assumed to mean that the programs are not legally vulnerable."
Chris Bendon, the city's director of community development, wrote in a memorandum to the council that one of the ordinances amends the city's accessory-dwelling-unit program while the other measure contains revisions to the fee-in-lieu system based on research and suggestions from the Aspen/Pitkin County Housing Authority.
An accessory dwelling unit is a small living space - typically a studio or one-bedroom unit - that homeowners are required to build, separate from a main house, in order to become exempt from city growth restrictions.
"The objective is to amend the mitigation options to those that provide actual housing," Bendon wrote in explaining the initiative. "Because (accessory dwelling units) are not required to be rented, and actual occupancy (of existing accessory dwelling units) is low, the impact of new development is not being mitigated by the production of more (accessory dwelling units)."
The proposed ordinance would eliminate "voluntary-occupancy of (accessory dwelling units) as a mitigation option," Bendon's memo states. "Voluntary occupancy" is the term for when a property owner or developer of redeveloped property, such as a single-family home or duplex, supplies a small living space to a worker who qualifies under affordable-housing rules as a way of meeting the mitigation requirement.
"Voluntary-occupancy (accessory dwelling units) have limited usage - estimated at 20 to 30 percent," Bendon wrote. "This form of mitigation has been criticized as having little actual effect in addressing the community's housing dilemma caused by development."
Tim Semrau, a local builder and former councilman, wrote in a guest opinion in The Aspen Times last week that the city's plan essentially seeks to charge property owners and developers an expensive housing fee based on the difference between the market cost of luxury free-market housing and what a Category 3 affordable-housing employee can afford.
"The (housing authority) office calculates the current 'affordability gap' to be $708 for every additional square foot of free-market housing built in town," Semrau's opinion piece states. "The implication of this policy is that every free-market owner is responsible and should pay for the difference between what their house is worth and what local employees can afford.
"This policy also implies that there is no limit to the affordable housing needed, no limit to the amount of money the local government will collect and no limit on the number of units the government intends to build. This is a complete change from the current policy based on one employee needing to be housed per 3,000 square feet of new free-market housing and the actual cost to house them."
Bendon's memo outlines several options for the council to consider, from raising fees to a rate that more accurately represents the cost of developing affordable housing to lowering or eliminating the fees altogether to encourage more development activity.
Monday's meeting begins at 5 p.m. at Aspen City Hall. Public hearings on the two ordinances are scheduled at the end of the meeting agenda.