Appeals court delivers blow to Lee Mulcahy’s employee-housing status in Aspen
September 15, 2017
Aspen activist Lee Mulcahy has lost the second round of his legal fight to keep his employee-housing residence at Burlingame Ranch.
The Colorado Court of Appeals announced Thursday its affirmation of a Pitkin County District Court judge's order in June 2016 that Mulcahy sell his house because he ran afoul of eligibility rules set by the Aspen-Pitkin County Housing Authority.
Mulcahy said the ruling would not hold him back, noting he would either ask the Colorado Supreme Court to hear the case or ask the appellate court to reconsider its opinion. He said either approach would be handled by the Denver law firm Haddon, Morgan and Foreman PC, which could not be reached for immediate comment.
"Let's call this what it is," Mulcahy said. "It's politics, and it's about the ability of lawyers to keep churning the system."
In the meantime, Mulcahy can continue to reside at Burlingame Ranch until the legal process plays out, said Tom Smith, counsel for the housing authority. Were Mulcahy not to fight the Court of Appeals' decision, he would need to vacate his home and list it for sale by Oct. 27, which is when the appellate court's order would take effect, Smith said.
"We're talking at least until the end of October, possibly longer if he files (for the appellate court to reconsider its decision or asks the state's high court to hear the case)," Smith said.
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Mulcahy, who lost his bid in the May election to unseat Aspen Mayor Steve Skadron, is a tenacious critic of government, big business and what he decries as the "Aspen establishment."
Even so, the 22-year Aspen resident seized the chance to buy an undeveloped lot through the local government housing lottery for $150,000 in 2006. Acting as general contractor, Mulcahy started to build his single-family home in March 2011 and finished the job in 2015, gaining a certificate of occupancy in March 2016.
But three months earlier, in December 2015, Mulcahy found himself defending his eligibility to live in the affordable-housing development after the housing authority took court action to evict him. Among Mulcahy's transgressions, the housing authority alleged, were Mulcahy's failure to work full time in Pitkin County as required by the authority and not using the property as his sole residence.
Mulcahy learned that the housing authority was suspicious of him in July 2015, when it first notified him that he had potentially committed six violations that jeopardized his eligibility.
Mulcahy responded by claiming that he had to live elsewhere because he did not have a certificate of occupancy at the time, and that his employee status had not changed in four years.
"Mr. Mulcahy explained that he was working more than 40 hours a week in Pitkin County as a property manager, leasing agent, artist and as a founder for a charity founded by his parents, African Waterwells, which provides potable water for Kenya communities," stated his opening brief filed March 2 with the Court of Appeals.
The housing authority discounted Mulcahy's work in Kenya, however, because the 1,500 hours of work required per year must be performed in Pitkin County.
Mulcahy's work in Kenya with his mother has been a central point of his argument. That's because after he received his second compliance letter Aug. 5, 2015, Mulcahy was given 14 calendar days to respond to the housing authority, or 60 days to fully resolve it.
After receiving the letter, his law firm argued, Mulcahy told the housing office he would be leaving Aspen on a charity mission to Kenya with his elderly mother and would later be exhibiting his artwork for sale out of the country. Mulcahy's father, Bud, also had helped on the African missions and helped his son build his home. He died May 26, 2015.
Meanwhile, the housing office mailed the younger Mulcahy another notice of violation Aug. 25, this time giving him 15 days to seek an administrative hearing to contest the violations, list the property for sale or document his compliance with the authority's residential and employment requirements.
Mulcahy, however, claimed he did not receive the notice because he was out of the country, and the housing authority purposefully sent it to him knowing he would not be able to respond. But the appellate court said there was no "competent evidence" showing Mulcahy left Aspen before he received the notice.
"But the facts, even viewed in light most favorable to Mulcahy, do not support his contention of a due process violation," the Court of Appeals' ruling said.
The appellate court also said the Aug. 25 notice "started the clock on Mulcahy's 15-day period to demand a hearing to contest the violations."
Another housing office letter sent to Mulcahy on Oct. 1 — which he demonstrated that he was out of the country at that time — demanded that Mulcahy list his property for sale. Mulcahy has contended that the letter also violated his due process.
"The timing was very suspect," Mulcahy said, "by sending that letter that had to be answered when I was in Africa and Kenya, escorting my 80-year-old mom on a humanitarian effort because my dad had just passed."
The Court of Appeals disagreed: "The final letter merely demanded that Mulcahy list the property for sale, … saying nothing about the ability to request an administrative hearing."
Smith explained that because Mulcahy ignored the Aug. 25 letter to seek an administrative hearing, he lost the chance to hold onto his home.
"That final letter (from October) said you didn't appeal, now you've got to sell it," Smith said.