Aspen family’s hardship case sets precedent for affordable housing
An Aspen couple was deemed eligible to bypass the affordable-housing lottery and purchase a home after a committee determined the wife’s medical hardship is severe enough to grant them the precedent-setting exemption.
Jim and Jill Pomeroy, who have two sons, earned permission after the committee, which reviewed their case March 8, voted 2-1 that special circumstances existed. The board’s ruling overrode a staff decision, which was unequivocal, by the Aspen-Pitkin County Housing Authority not to grant the exception to the Pomeroys.
“We recommended against approval,” said Julie Kieffer, the qualifications specialist for the housing authority.
Committee vote trumps Housing Authority position
The housing authority’s qualification system is set up, however, to allow residents to obtain a so-called “super priority” from a special review committee if they can demonstrate that an unusual hardship exists.
That three-person board is composed of Assistant City Manager Barry Crook, Pitkin County Public Works Director Brian Pettet and Becky Gilbert, who is a member of the housing authority’s board of directors.
A Feb. 18-dated memo from the housing authority to the special review committee said the agency was concerned that granting the Pomeroys a variance could spark similar requests. The memo also said the housing authority did not believe the Pomeroys had made the case that their circumstances were severe enough to allow them to buy the affordable-housing unit by bypassing the lottery.
“The (housing authority) strongly recommends the Pomeroys’ request for a waiver from the lottery and sales bid process be denied because it is neither an unusual hardship (generally speaking) nor consistent with the intent and polices of (the housing authority) and would set a harmful precedent that would undermine the fair application of the housing program guidelines,” the memo said.
A privacy rule established under the Health Insurance Portability and Accountability Act precludes the housing authority from releasing details of Jill Pomeroy’s medical-hardship case that was analyzed by the special review committee, said Kieffer, who would not provide minutes from the meeting.
Jill Pomeroy’s medical issues, however, have been revealed in letters to the Aspen newspapers as well as her GoFundMe website, which say she has suffered migraine headaches since she was 14; their severity so bad that she couldn’t work and caused her to spend some days bedridden and miss her sons’ sporting events. She has undergone surgeries and an array of medical treatments.
“It’s an unusual hardship and beyond medical,” said Jim Pomeroy, adding there is much more to his wife’s condition than has been publicized. “What we choose people to know or not know about her medical condition is up to us.”
The Pomeroys declined further comment for this story.
Despite the housing authority’s recommendation, both Crook and Gilbert voted in favor of the Pomeroys’ request.
“I think we were persuaded by their description of the hardship and their request for the waiver,” Crook said.
While Jim Pomeroy works for the city government as a zoning officer, Crook said that as assistant city manager, he is not his direct supervisor.
“I know Jim, but he doesn’t work for me in any chain-of-command center,” Crook said.
Gilbert did not return telephone messages seeking comment for this story.
Pettet, who cast the dissenting vote, said he wasn’t convinced an unusual medical hardship existed.
“It’s incumbent on someone who is appealing (a housing authority) staff decision to prove that they have a hardship, and I think in the Pomeroys’ case, I didn’t see a hardship at all,” he said. “There are life situations that happen to everyone, and I didn’t think there was a hardship proven in this case. I feel sorry for their situation and what they’re dealing with in life, but I don’t think it warranted them circumventing the housing lottery.”
The special review committee’s decision is final and cannot be overturned, according to housing authority documents.
The couple’s future permanent home is a Category 4 unit, meaning the owners, provided they have two dependents — which is the case of the Pomeroys — can’t have a maximum gross income and net assets in excess of $160,000. It will become available for the Pomeroys to buy this summer, with a maximum purchase price of $286,199. Pitkin County’s average price for a free-market multifamily home — the category under which a duplex falls — was $1.9 million in 2015, according to Land Title Guarantee Co.
A special case?
An unusual hardship, according to a July 2015 letter from Housing Authority attorney Tom Smith concerning the Pomeroy case, “is not just any hardship. It requires a demonstration of a hardship that is unique to the applicant and not general in character. … It is a given that affordable housing is difficult to obtain; that is why there is a lottery procedure and a bid priority process.”
The authority’s guidelines mandate that in order to acquire an affordable-housing unit in Pitkin County, qualifying residents must enter the housing lottery. Or, if a resident already owns an affordable-housing unit in the same complex where another unit becomes available, they can submit what’s called an in-complex bid.
In October 2014, the Pomeroys initially sought the housing authority’s blessing to skip the lottery and buy the four-bedroom, two-bath affordable-housing duplex at 80 Williams Ranch Drive in Aspen.
The couple had been renting the unit from owner Mike Hoffman since September 2014. They asked the housing authority for priority to buy the home after the Hoffman family’s leave of absence ended.
The Hoffmans received permission from the housing authority to lease the house to the Pomeroys while they took a leave of absence from June 2014 to May 2015. The Hoffmans later extended the leave through May 2016, according to housing authority documents. Hoffman notified the housing authority in January that he planned to sell the duplex.
The Pomeroy couple in February asked for a hearing by the special review committee.
The housing authority’s objection to the Pomeroys’ request was firm.
“Our concern is that a medical-hardship justification for a variance from the strict application of (the housing authority’s) rules vis-a-vis the bid priority and lottery process could (and most certainly would) open the door for all kinds of medical-hardship requests,” the memo said, adding that granting the Pomeroys a variance would “be unfair to other prospective applicants.”
The memo continued, “We view this case as a substantial threat and detriment to the intent and policies of the housing program because it could create a perverse incentive in leave-of-absence cases for anyone claiming an unusual hardship based on any medical condition. We also fear setting such precedent could encourage under-the-table deals in similar cases, which would be very difficult for (the housing authority) to document and enforce.”
Smith, whose letter did not offer a legal opinion but gave guidelines to the special review committee, also warned about the ramifications of a precedent-setting decision.
“You must also bear in mind that (the housing authority) has a duty to treat similarly situated persons the same,” Smith wrote. “If the circumstances that are the basis for granting a special review approval in one case occur in a subsequent case, that person is entitled to the same treatment.”
Crook said the special review committee discussed the potential for a precedent but said, “We just feel that this particular hardship warranted the consideration that they requested.”
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