City critic slams Aspen council over Burlingame lawsuit
February 12, 2013
ASPEN – A frequent opponent of city government claimed at Monday’s Aspen City Council meeting that the city has been negligent in responding to a problem with exterior siding at the Burlingame Ranch Phase I affordable-housing development and suggested that the issue has prevented at least one homeowner from selling a unit.
Elizabeth Milias said the problem led the homeowners’ association there to file a lawsuit in September against the city, the Aspen-Pitkin County Housing Authority, Burlingame I builder Shaw Construction LLC and siding manufacturer Certainteed Corp. Milias – keeper of the anti-local-government blog “The Red Ant” – emailed copies of the lawsuit to local media just before she addressed the council.
Burlingame Ranch, just west of town, is a project funded and initiated by the city to give local workers the ability to own a housing unit at a subsidized rate. Milias has been a frequent critic of the city’s affordable-housing program.
Neither council members nor city officials have discussed the legal matter publicly at any work sessions or regular meetings that involved Burlingame I or the second phase of Burlingame, which is slated to begin construction this year. However, the city’s longtime practice has been not to discuss lawsuits or legal issues in open meetings, reserving those talks for executive sessions that are closed to the media and the public.
“I acquired this (lawsuit copy) through the open-records-request law,” Milias told the council. “Because I just kept hearing little inklings about it. And I’m just curious. I’ve had a couple of conversations with a few of you who didn’t seem to know very much about it.
“I am wondering what you all know about this. Now that I have it in my hands, I see that it is as bad as I thought it was. And if you don’t know about this, there’s a communication breakdown here within the walls of City Hall.”
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Milias alleged that although Burlingame I development was completed only five years ago, it’s already falling apart.
“Terrible problems with the siding,” she said. “Terrible problems with construction. And one of my horrible projections (in the ‘Red Ant’ blog) was that it’s just a matter of time before residents and owners out there are unable to sell their units because banks will refuse to carry a mortgage from potential buyers. And sadly, that just happened last week.”
Soon after her remarks, Mayor Mick Ireland asked City Attorney Jim True to provide an assessment of Burlingame Ranch I Condominium Association’s lawsuit against the city.
True said he prefers to discuss specifics about ongoing litigation in executive session. However, he mentioned that the city is requiring the construction company to handle its defense and related costs.
“We have filed cross claims and made demands for Shaw to really take all of the costs and claims asserted against us in litigation based on our contract,” he said. “If you need further updates, I prefer to do it in executive session.”
True said there are two claims asserted in the lawsuit. One is that Shaw inappropriately installed the siding. The other is that Certainteed improperly manufactured it.
“The dispute is really between the installer and the manufacturer as to who was really responsible,” True said. “What is clear is that the city of Aspen, by contract, is requiring Shaw to address the claims that have been asserted by the association. And we are doing so in litigation.”
True said he recently heard about an issue with a bank refusing to finance a mortgage for a potential buyer at Burlingame I but that he has no specific information.
“(The Aspen-Pitkin County Housing Authority has) been dealing with this, … and I do not know whether this has prevented a sale or a purchase at all,” he said. “We heard that some lenders have looked at this litigation as an issue that causes them concern, but I do not know of any specifics.”
After the meeting, Ireland characterized the legal issue as relatively minor and suggested that Milias – his most outspoken critic of the past few years – is playing political games by bringing up the lawsuit as though it were some kind of revelation.
“In construction litigation, (this type of) lawsuit is very common,” Ireland said. “What you do (as a plaintiff) is you have to drag the owner (the city of Aspen) into the lawsuit so that the other guy (the builder) can’t plead that it was all the owner’s fault. The jury could assign blame to the owner without the owner being defended. … Our presence in the lawsuit is not because of our malfeasance; our presence in there is because they need to do that as a matter of law and good common sense.”
Ireland said he has seen the exterior-siding problem, and while it is apparent, to his knowledge it has not affected interior spaces.
“Obviously we’re sympathetic,” Ireland said. “We want this thing fixed, but we think it’s not the responsibility of the community to fix but the company we hired to do the project, Shaw.”