Aspen electeds say citizen board abused its discretion when denying affordable housing proposal

City Council: Historical Preservation Commission members used subjective and prejudicial factors to deny a five-unit project in an east end neighborhood

Affordable housing developers are appealing the denial of their proposal for the five-unit housing complex at 1020 E. Cooper Ave. in Aspen. (Kelsey Brunner/The Aspen Times)

Finding that the Historic Preservation Commission abused its discretion in denying an affordable-housing proposal in an Aspen east end neighborhood, Aspen City Council on Monday voted to remand the project back to the citizen volunteer board to conduct a fair and legal review of the land-use application.

The applicants, developers Jim DeFrancia and Jean Coulter, appealed the HPC’s 3-1 February denial of a five-unit affordable housing complex located at 1020 E. Cooper Ave. to council.

After reviewing the record of the HPC’s Feb. 17 meeting, council members in a special meeting Monday were unanimous that commissioners abused their discretion by using subjective and prejudicial factors outside of their purview, and therefore reversed the commission’s decision.

The HPC, which has final decision-making authority on projects that involve historically designated structures, is limited to considering the city’s land-use code and historic preservation design guidelines. The site in question is an old miner’s cabin.

Council members agreed that HPC members Roger Moyer and Scott Kendrick made comments prior to their “no” votes in February that were inappropriate and not legal.

Moyer and Kendrick said they felt that there were too many apartments proposed and that neighborhood opposition counts in their decision-making.

Moyers went as far as suggesting what types of people would be living in the proposed apartments, saying from his own experience in living in a multi-family building that “it’s terrifying what happens when you have development immediately (next) to your building.”

He went on to describe what he viewed as the consequences of approving five affordable-housing units, according to a statement of appeal filed by law firm Holland & Hart on behalf of the applicants.

“It’s not a marvelous place for possibly 26 people to be living there and 26 people is 26 cars and 26 people is 26 bags of garbage every two to three days and 26 people is a hell of a lot of cigarettes and 26 people could be 26 dogs,” Moyer said at the Feb. 17 meeting.

Commissioner Moyer concluded those issues could be resolved only by changing the proposal to a two- or three-unit project, according to the appeal.

And that is outside of HPC’s purview and therefore an abuse of discretion, city council members said.

“It’s not about whether people play banjos on the front porch and hang their underwear,” said Councilwoman Rachel Richards, noting that the mentality of Not In My Backyard with regard to employee housing has been a form of opposition for decades. “I think that it really, really inflames the community.”

Councilman Skippy Mesirow said he finds it awful that HPC members commented on the potential degradation of the neighborhood in reference to would-be residents in the affordable-housing complex, yet they routinely approve single-family homes that sit empty most of the year.

“We heard comments that it was just too big, period, that the mass and scale was too big, despite it being under the requirements of code and instances of meeting it,” Mesirow said.

Nearby homeowners, some of whom use their properties as short-term rentals and have hired lawyers and threatened to sue the city, said in their public comments at HPC hearings that they were concerned the residents of the units would disrupt the neighborhood with noise, trash and pot smoking, to name a few objections.

Council on Monday voted 3-2 on a resolution to remand the project to HPC to review and use only the allowable criteria to make a determination.

“I just want to clean this thing up, get it back there, get them to treat the project properly, the way it should be under the land-use rules and the HPC guidelines,” Councilwoman Ann Mullins said. “In my mind, they’ve made a mistake and I’m sending it back to them to correct that mistake.”

She had the support of Richards and Mayor Torre.

Mesirow and Councilman Ward Hauenstein dissented. Mesirow expressed his desire to remand it back with conditions and direction for changes to the project.

Hauenstein said he felt that council should have approved the project and take HPC out of the equation.

Torre, like Mullins, said they took issue with HPC chair Kara Thompson voting against the project on Feb. 17 to avoid a 2-2 deadlock.

It was done at the request of the applicants, to give them the opportunity to file an appeal with council.

That also was an abuse of discretion, council members agreed.

HPC now will review the proposal again in the confines of the design guidelines and the land-use code in the coming months.

The proposal includes converting an old miner’s cabin, once owned by longtime Aspen Times advertising representative and columnist Su Lum, into a two-bedroom apartment and a three-bedroom unit.

A new structure behind the cabin is proposed to have two two-bedroom apartments and one three-bedroom apartment, with four covered parking spaces facing the alley.

Richards said HPC has a chance to redeem itself with another review.

“HPC, inadvertently under pressure … whatever … made mistakes in not even seeing a way out of that last vote, so let them correct those mistakes because I do think that is the appropriate path to go forward,” she said. “I expect it to be a fair hearing. … I think that trying to restore the order to the procedure is probably the move with the best integrity for the city and for putting HPC and these sorts of discussions back on track.”