Aspen homeowners face unintended consequences of bureaucracy
July 29, 2009
ASPEN – A small group of homeowners wants to remodel their 41-year-old Aspen condominium complex, but they can’t because they are caught up in the bureaucracy of the city’s land-use laws.
John and Ricki McHugh, representing the Aspen West Condominiums Homeowners Association, appealed to the Aspen City Council on Tuesday, asking for a variance to a 20-year-old law that requires owners of existing multifamily dwellings who seek to combine, demolish or convert units to replace them with 100 percent affordable housing on site.
For the McHughs, and three other owners who live in the Cooper Avenue complex, their renovation plans put them just a few points over the 40 percent cap, which differentiates between a remodel and a demolition. If more than 40 percent of the structure’s shell is torn down, it constitutes a demolition, according to Ordinance 22, adopted in 1988.
The HOA’s current plans reach 38.41 percent but the code forces them to build a roof of varying heights in order to stay under the demolition threshold, as well as replace an inconsequential wall made out of sound board and no insulation. They’ve requested a variance of 5 percent.
Based on legal advice from city attorney John Worcester, the council didn’t grant the variance because it would’ve set a precedent and open the city up for possible legal action by other owners of multifamily dwellings who want to demolish their properties.
Known as the “Multi-family Replacement Program,” the law was passed by the City Council in the 1980s after officials became concerned that the demolition of existing free-market residential units was resulting in the exclusion of working residents from the city’s neighborhoods. The law was created so there would be no net loss of the total number of units between existing development and proposed development.
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As a compromise, the council agreed Tuesday to let city officials craft an emergency ordinance that allows for exceptions to the rule for cases such as the McHughs’. The council is scheduled to vote on the first draft of the ordinance Monday, Aug. 3, with a final vote the following day.
The environmentally friendly upgrades to the deteriorating building will make it more energy efficient and possible for everyone to continue living there, the couple argued.
“We come to you as frustrated homeowners looking for some help,” Ricki McHugh wrote to Aspen Community Development director Chris Bendon in a July 17 letter. “We realize the 40 percent demo code was written to prevent the destruction of multifamily buildings that would displace employees only to be replaced with a couple of luxury homes that were rarely occupied.
“Since our building does not fit into that category but is truly the antithesis of it, we are here requesting an exemption …”
As the McHughs and their neighbors began their remodeling project nearly two months ago, they discovered the roof was rotting and the back wall was made of sound board with no insulation. They both need to be replaced but that would put the homeowners over the threshold of 40 percent, constituting a demolition, according to the city’s law.
Ricki McHugh said Wednesday that the renovation project is completely green and will create enormous energy efficiencies. The renovation includes installing new windows, insulation, water lines, boilers and the exterior structure.
She said she’s hopeful that the council will see that their efforts are the opposite of the code’s intent.
“We’re glad they realize that the green part is more important,” McHugh said Wednesday. “Hopefully on Tuesday, we’ll crack open the champagne.”
Meanwhile, the building is torn apart, and its inhabitants are living elsewhere while the renovation plans are in limbo.
“Our dilemma is that there are six apartments in the building, and we cannot stall or hold up the construction any longer while we wait for a possible code amendment,” the couple wrote to the council. Ricki McHugh added that the units are continually being rained on while the project is delayed.
The council has been considering possible amendments to the code for the past few months and is slated to make changes in the future that better reflect the intent of the law – for property owners to mitigate based on the increase of square footage, not necessarily demolition, so people like the McHughs can do remodels that improve the condition of the property and create energy efficiencies.
Granting a variance specifically for the McHughs and their neighbors isn’t appropriate because it renders the law meaningless, city officials say.
“If the council waves its hands, it’s not applying the rule of law but the rule of man, and the closer you get to that, the weirder things get,” Bendon said. “It opens the door for people who don’t like the city’s rules to beg and plead … and that’s not right.”
Worcester said during the council’s Tuesday work session that the McHughs and the city are caught in a precarious position.
“I’m embarrassed to say, I don’t know how to get out of this bureaucratic dilemma,” he said.
On Wednesday, Worcester said he’s pleased with the compromise of crafting an emergency ordinance.
“As a bureaucrat, this is the kind of thing we try to avoid,” he said. “[The McHughs] were caught up in an unintended consequence of our ordinance.
“I’m glad we could do something for [them] and give them some relief that they are entitled to.”