Aspen woman poised to prevail in fight against housing authority

An Aspen woman who was sued by the Aspen-Pitkin County Housing Authority in an attempt to force her to sell her apartment for allegedly breaking the affordable housing rules will be able to remain in her unit, according to a settlement that will be presented to the agency’s board next week.

A Pitkin County District Court judge has intimated that APCHA’s rules of residency and employment are not applicable to Julie Peters’ one-bedroom apartment on East Hyman Avenue that she bought in 1991.

The APCHA board in 2018 voted to kick out Peters because she allegedly violated three guidelines governing the program: failing to live in the unit full time, failing to work at least 1,500 hours a year in Pitkin County, and failing to request a leave of absence.

A neighbor complained that she wasn’t living in the unit, which prompted APCHA to investigate.

After she was served a notice of violation, Peters explained to the board in an appeal hearing that she was spending time in Virginia sorting out the estates of her deceased parents.

In response to a motion to dismiss by Peters’ Aspen attorney Alan Feldman, Judge Denise Lynch’s order intimates that APCHA would have a difficult time convincing the court that forcing Peters to sell her home is justified.

The unit was built before APCHA was created, and has covenants on it from a 1982 agreement between the city and the original buyer which do not mandate that Peters live there full time.

Peters, 65, a retired Aspen school teacher and a current substitute teacher, entered into an agreement in 1991 that was nearly identical to the 1982 one.

However, the provisions in the 1982 agreement allowing for an owner of the unit to cure any residency problem was removed.

Peters’ property is not subject to APCHA’s guidelines, including employment requirements, although there is a stipulation that that she reside in the property for at least nine months a year. Just how that is calculated or determined is not specifically set forth in the agreement.

“The 1991 agreement does not contain any continuing occupancy or use restrictions, aside from the requirement that the owner maintain the unit as his only full-time ‘domicile’ and rent it for no more than three months per year,” Lynch wrote. “The court concludes that the 1991 agreement incorporates the APCHA affordable housing guidelines only to the extent that they establish updated qualifications for purchases in the event the unit is sold. Since Peters is not alleged to have attempted to sell her unit, (APCHA) has failed to state a plausible claim that she violated the affordable housing guidelines as incorporated by the 1991 agreement.”

APCHA attorney Tom Smith acknowledged this week that the deed restriction is weak and written before the housing program was established.

“It’s not a good deed restriction,” he said. “It’s a one-off, customized deed restriction.”

The unit is one of hundreds that will have its deed restriction lifted and go on the free market 21 years after the death of Michael Kinsley, the last living county commissioner who approved the development known as the Vicenti Condominiums.

The settlement agreement between Peters and APCHA that the board will consider Wednesday offers that the unit will remain deed restricted in perpetuity.

The two sides agree that it’s not worth litigating.

“It’s very much a compromise,” Smith said. “Sometimes you have to think of what’s good for the program.”

Feldman said it’s not worth the time and expense to take the case any further, so his client agreed to the deed restriction in perpetuity and allowed for an amendment that when Peters sold, APCHA can acquire the property and preserve it in its inventory.

His client also agreed to a small fine.

“There are times when you just don’t fight things not worth fighting,” Feldman said. “Under the terms of the settlement, Peters won the case in that APCHA is not seeking to force her to sell her home she has lived at since 1991. That is the result sought in the litigation and that was the result obtained.”

He added that APCHA didn’t do its due diligence in investigating the deed restrictions before going after Peters in its administrative capacity, which it had no right to do in the first place.

“This should empower people with old deed restrictions to take a closer look at those restrictions,” he said. “Everyone should know their rights, especially related to their homes.”