Lot line dispute brings Housing Authority suit
October 19, 2007
ASPEN ” Local housing officials are asking a judge to decide whether a property owner can use a small, historic cottage as a guest house, or whether the cottage must be placed in the Aspen/Pitkin County Housing Authority’s inventory of affordable units.
The complaint, filed Sept. 27 in Pitkin County District Court, is the latest attempt to untangle a complicated land ownership deal between the Hunter Creek Commons Corp., and Scott Hicks and his wife, Maureen Kinney.
The conflict began about a year and a half ago, when Hunter Creek condo owner Bob Nix began a one-man campaign to overturn the deal.
The Hunter Creek Commons Corp. board oversees the condo association for the more than 300 owners at Hunter Creek. In 2002, the board agreed to what was termed a “lot line adjustment,” but which has been characterized as a swap of a 5,600-square-foot piece of association-owned land for a parcel of equal size that Hicks owned nearby.
The deal was created to provide Hicks with sufficient acreage to build a 4,600-square-foot-house for his family at the corner of Williams Way and Spruce Street, and to relocate two historic cottages that had formed two sides of the duplex home, formerly occupied by attorney Maxwell Aley, on the same site. It is one of those cottages that is now under dispute.
The land Hicks traded away is across Williams Way from the homesite, and is partly encumbered by an old city park easement and partly by an affordable housing deed restriction. The land Hicks received in exchange adjoined the homesite, and is now occupied by the two cottages.
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As part of the deal, Hicks paid the Commons Corp. approximately $26,800, on top of handing over his 5,600-square-foot parcel. But the deeds of the two parcels were never formally transferred, which has added to the confusion about who owns what.
Nix questioned the basic propriety of the deal, pointing out that the Commons board never got the OK from the condo association members to trade the land. And Nix and others have indicated that they think Hicks did not pay enough for the land.
Plus, Nix’s research revealed, the condo association cannot own the parcel Hicks traded to Hunter Creek because it carries a county-imposed, affordable-housing deed restriction. That restriction is left over from an earlier land-use approval involving the land’s previous owner.
Pitkin County codes require that the owner of deed-restricted property be an actual person and a resident of Pitkin County, said Commons Board attorney Lenny Oates in an interview last year. Many Hunter Creek owners are not legal residents of the county.
The Commons Corp. board, after hearing Nix’s evidence, ultimately “repudiated” the land swap with Hicks.
The housing authority’s lawsuit is aimed at clarifying a number of issues, said APCHA attorney Thomas Fenton Smith, including a determination as to who actually owns the land underneath the two historic cabins, which housing officials say are both controlled by affordable-housing deed restrictions, as is the Hicks/Kinney couple’s new house.
Smith said Hicks is improperly using one of the cabins as a guest house, while the other is being rented in compliance with housing office rules.
Hicks said Thursday that he has always planned to use one of the cottages as a guest house, and that the Category 3 cottage and his own house, deed restricted as “resident occupied,” satisfy his responsibility to local housing regulations.
Housing officials maintain that one of the cottages should be rented under the “resident occupied” category, along with the Hicks/Kinney home itself, while the other should be a Category 4 “employee dwelling unit.” The deed restrictions, Smith said, were placed on the underlying land back when it was owned by Aley.
“It’s obviously a little disappointing,” Hicks said of the housing authority’s lawsuit. “They’re trying to nullify and void the lot line adjustment.” He said he has never tried to avoid his responsibility to provide affordable housing, and believes he has the backing of City Historic Planner Amy Guthrie and the city’s Historic Planning Commission in his interpretation of the dispute.
Smith said the housing authority is not interested in forcing Hicks and Kinney out of their home, simply in clarifying which regulations apply to the cottages.
“It’s a very complex situation,” Smith said. “We need to break the logjam somehow,” a reference to the fact that the dispute has gone on for four years with little movement.