Wheeler RETT misappropriation
December 3, 2009
The city of Aspen has misappropriated Wheeler real estate transfer tax (RETT) funds for the proposed $30 million expansion of the Wheeler, and city officials have routinely misrepresented how Wheeler RETT funds can be utilized.
Following repeated inquiry with city officials and an Open Records Act request, the record is clear – Wheeler RETT funds are not permitted to be used for a substantial expansion of the Wheeler.
In 1979, the voters of the city of Aspen approved a ballot initiative that said: “Shall the city of Aspen impose a Real Estate Transfer Tax … the proceeds of which tax will be used only for the purpose of renovation, reconstruction and maintenance of the Wheeler Opera House and for the purpose of supporting the visual and performing arts.”
The corresponding 1979 Ordinance 20 repeated the ballot language and added that such funds “… shall be subject to appropriation by the City Council of the city of Aspen only for the purpose of renovation, reconstruction and maintenance of the Wheeler Opera House.” This language remains unaltered in the code.
Renovation, according to Webster’s, is “to restore to a former better state (as by cleaning, repairing, or rebuilding).” A $30 million expansion is not a “renovation.”
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Perhaps concerned that the RETT funds might be plundered, in 2002 Ordinance 46 created the Wheeler Endowment Fund and established that all excess revenue shall be “… deposited in the Wheeler Endowment Fund to create an endowment to secure the long-term financing of Wheeler Opera House operations, capital improvements and grants to local nonprofit arts organizations …”
City officials have claimed the proposed expansion can be funded with RETT funds because the 1979 ordinance referenced a master plan that contemplated such an expansion and use of the RETT. While the 1979 Master Plan, “The Wheeler Plus …,” contemplated an expansion of the Wheeler, it clearly stated that with the exception of a 6,000-square-foot production support basement, funding for a performing arts theatre expansion should come from “non-city sources, primarily business, industry, foundations and individuals with some funding from county, state and federal governments.”
Today the Wheeler operates with an annual taxpayer subsidy of $2.1 million, or about $99 per person attending a live entertainment event, or $41 for every person taking a seat in the theatre for live entertainment, movies, lectures, training and private uses.
The Wheeler and the RETT are extraordinary assets of the citizens of Aspen. Operations and any proposed expansion should start with a clear vision and utilization plan followed by careful projections of revenues and expenses. Consistent with the Home Rule Charter, Colorado Constitution and the 1979 voter-approved ballot question, any expansion planning costs should not come from misappropriation of narrowly defined RETT uses.
Once a vision and sound plan is developed, just as in 2002 when voters rejected a proposal to utilize the RETT for land acquisition for Wheeler expansion (56 percent no, 44 percent yes), the voters alone must decide if the RETT may be used for something other than its approved purpose – “… renovation, reconstruction and maintenance of the Wheeler Opera House and for the purpose of supporting the visual and performing arts.”