November 23, 2007
One warm night in July Aspen’s elected leaders declared an emergency, and they’ve been operating in crisis mode ever since.
In a nearly empty council chambers, the City Council on July 9 passed an “emergency ordinance” that effectively preventing thousands of property owners from altering their buildings, including the ultimate Aspen sin ” tearing them down to build anew.
City Council members didn’t talk much among themselves or with the public on the direction of their historic preservation program before they voted on the ill-fated Ordinance 30. The law prevented the demolition or alteration of any building more than 30 years old without a bureaucratic and somewhat arbitrary review to determine its historic significance.
The owners of some 2,100 affected properties were shocked, angered and confused. Fearful that their property values would plummet as a result of their buildings being pegged as potentially historic, they began writing letters, speaking up at meetings and generally making life difficult for council members. Verbal fights erupted outside council chambers as citizens clashed with each other and with city officials.
The process has even generated a satirical documentary called the “That’s Historic, A Saga of Ordinance 30,” created by local gadfly Andrew Kole and West End resident Marilyn Marks, who is vehemently opposed to the council’s legislation. The 24-minute DVD pokes fun at the entire process, highlights some of the law’s absurdities and chronicles elected officials’ backtracking on the issue.
“In a sense we created our own emergency and I acted on it,” said City Councilman Steve Skadron, who first supported the emergency ordinance and later voted to rescind it.
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Boiled down to its essence, the legislation is an effort to preserve 1960s and 1970s architecture. Properties targeted include the Wells Fargo Bank, the North of Nell building, the Aspen Athletic Club complex and dozens of decrepit homes that need significant repairs.
Despite the fact that three of five council members have since admitted there was no emergency, the saga continues. Property owners have come out in force to demand the law be rescinded but the majority of the council has stuck to its guns. The measure was warranted, they have said, because many structures from Aspen’s postwar renaissance were being demolished.
But then, in deference to their critics, elected leaders made another unprecedented move: They virtually gave two citizens heading up the fight against Ordinance 30 carte-blanche access to city planners in order to rewrite the law.
“I don’t even have that kind of access to city staff, or I would have gotten legislation to [the public],” said Councilman Jack Johnson at a Nov. 12 meeting. “I can’t keep up [with the changes to the ordinance] and I know the issue.”
Johnson, who first rang the legislative alarm bell, still contends there is an emergency.
“We could have been using these past four months alleviating the anxiety and fear but we didn’t,” Johnson said this month. “It’s high time we should.”
Hundreds of hours have since been spent fine-tuning the original law, which has morphed from Ordinance 30 to Ordinance 45 and now Ordinance 48.
At one point council members even considered reimbursing homeowners’ defense costs in their fights against historic designation. Aspen property owners have argued that designation not only devalues their properties, but that the costs to defend their property rights would be prohibitive.
The latest version of the ordinance (scheduled for consideration on Nov. 26) requires that, if property owners want to be freed from historic designation, they must provide five years of their personal tax returns to City Hall to prove financial hardship.
City Council members agree the process has become protracted, confusing and consuming. Yet the City Council isn’t really any closer to establishing a historic preservation policy than it was in July. Meanwhile, about 90 properties are still lingering in bureaucratic purgatory.
The citizens fighting City Hall haven’t won their battle, but they have at least convinced their elected leaders that perhaps they acted too hastily and without sufficient public involvement.
“After a great deal of thought, what I characterize a crisis in conscience, I concluded there was not an emergency,” said Councilman J.E. DeVilbiss at a September meeting.
City Councilman Dwayne Romero maintains the ordinance is an invasion of property rights, yet he has tried to work with other council members to draft a better law knowing that he’s a minority. He called the entire process that he and his colleagues created a “nasty hornet’s nest.”
At a recent meeting, Romero likened the situation to a marriage: “At some point, you have to acknowledge that you screwed up and say you are sorry.”
Romero’s colleagues haven’t gone that far, but each has backtracked in some way from his July position.
“We’ve never had stable ground, and we’ve been all over the place,” Johnson recently said, adding that allowing citizens to be part of the legislative process has clouded the task at hand. “We got led down the wrong path ” we were supposed to be adopting an interim ordinance.”
The City Council was scheduled Nov. 26 to pass a scaled-down, simplified version of Ordinance 48, the latest version of the ever-evolving emergency ordinance.
Property owners argued that the original, one-page Ordinance 30 had an arbitrary set of historic review criteria to determine the fate of their multimillion-dollar investments.
Enter the Aspen Citizens Group, headed by activists Marilyn Marks and Mike Maple, homeowners not on the list but opposed to City Hall’s perceived attack on property owners’ rights. When they learned from local newspapers on July 10 that the council had passed the emergency ordinance, they mobilized nearly 100 property owners and put themselves in center of the storm.
Maple and Marks have been integral in rewriting Ordinances 30, 45 and 48. They have met regularly with Mayor Mick Ireland, Community Development Director Chris Bendon and Historic Preservation Officer Amy Guthrie, spending hundreds of hours crafting legislation that typically is left to city officials.
“I’m very troubled by policies that make it more difficult to live here for people like me,” said Maple, who lives in the Cemetery Lane neighborhood and whose house isn’t subject to historical review ” yet. “I don’t want to go to bed and wonder if I should sell my house.”
The City Council was set to vote Nov. 26 to establish the list of potentially historic properties, which forbids owners to apply for a demolition permit or land-use application for six months. During that time, a citizen panel will be formed to rewrite the law again while a communitywide discussion takes place about the city’s historic preservation program.
Marks called the ordinance nothing more than a six-month moratorium on “scrape-and-replace” projects. And she thinks the council’s plan to review homeowners’ tax returns is the ultimate example of government intrusion.
“Just when I thought it couldn’t get more bizarre, this happens,” she said. “It’s beyond belief.”
In its infancy, Ordinance 48 (the third legislative iteration) was designed to give property owners a bigger say in the historic review process. It also established what the economic impact would be for a particular homeowner if his or her property was historically designated. Maple and Marks convinced elected officials that the review process would hurt property owners by forcing them to hire real estate experts and lawyers to defend themselves.
The City Council actually considered reimbursing property owners for their own defense, then later weighed the idea of hiring a city staff person to act as a “public defender” for property owners.
“Asking the city to compensate is absolutely bizarre,” said former Mayor Bill Stirling, whose Hopkins Avenue apartment building is on the current list of potential structures.
Stirling led the effort to designate Aspen’s Victorian homes during his administration in the late 1980s and early ’90s. A law was passed that mandated Victorians be designated without homeowners’ consent, but it didn’t happen until a public process was fleshed out.
“How do you expect to respond? People are panicked,” said Stirling, who is in favor of historically designating 1970s-era buildings. “It galled people because it was rushed and slammed down their throat. It was a mistake in strategy.”
Stirling, who has been a real estate agent for decades, said Aspen home prices continue to climb regardless of historic designations. He’s experienced that personally as well.
“My family owns a Victorian and we are constantly dealing with changes in the rules and regulations. It caused us to lose value initially, but over time we’ve always gained value,” he said. “Buyers here are very sophisticated and they want to be here.”
Some think the controversy is really driven by angry speculators, who fear they won’t be able to raze old buildings and make windfall profits.
“There’s a lot of greed in this room,” said one Historic Preservation Commission board member after hearing public comment at an October council meeting.
The City Council is expected to pass the overhauled Ordinance 48, but the controversy is far from over.
“That’s why it’s a saga,” said Kole, who co-produced the documentary poking fun at elected leaders. “It’s never going to end.”
The council appeared to be regaining the trust of the citizenry on Nov. 12 when board members looked like they might scrap the whole thing and start over. But then the council decided to keep the 90-or-so property owners on the list.
“You’ve spent all of this time and nothing has been accomplished,” said Aspenite Terry Hale. “Historic preservation needs friends in this community, not enemies.”
That’s why Stirling believes homeowners should be offered incentives to participate in the preservation program. Homeowners who participated in the earlier preservation program were able to get lot splits and more floor area to expand. They were required to provide less affordable housing than what the city code allowed.
“It started adding up and provided advantages for them,” he said. “We are at a similar point here.”
It’s likely a concept that the task force will consider in the next six months.
Meanwhile, dozens of property owners can’t do much to their buildings without City Hall saying it’s OK.
Marks asked the City Council during a recent public hearing if saving questionable architecture is really worth alienating so many Aspenites.
“I ask you, is it worth it?,” she asked the council. “All of this negative energy?
Carolyn Sackariason’s e-mail address is firstname.lastname@example.org