Elizabeth Milias: The Burlingame bombshell
The city of Aspen has many responsibilities to its citizens, but being a developer is not one of them. This doesn’t mean the city doesn’t build plenty. It does, but it shouldn’t.
The capital asset management department is currently up to its eyeballs completing the Taj Mahal City Hall and has just broken ground on Burlingame Phase 3. City-as-developer is likely the most hypocritical yet most cherished of all city functions, primarily because the city can build what it wants, where it wants, with your money and without responsibility.
Today, Burlingame Phase 2 is mired in legal wrangling as the subsidized housing development literally crumbles. Built between 2014 and 2017, the 82 units were developed under a city contract with Haselden Construction and R.A. Nelson as builders. Problems started immediately when the exterior stain on the buildings started coming off, exposing the bare wood to Aspen’s extreme elements. Turns out, the exterior wood used was not to code and resulted in insufficient protection for the application.
To its credit, for a time, under a four-year warranty deal with the builders, the city began addressing the reported issues. However, with three city representatives on the five-member HOA board, the cost of re-staining the entire complex with proper material was abruptly shifted from a city-funded capital improvement to a yearly operating expense for the new homeowners.
In response, the homeowners got an independent analysis that concluded that the wrong wood and materials were indeed utilized for the project. This prompted the city to offer a quick $125,000 for fixes, as long as the city could dictate how the money was used and it was released from all future liability. Wisely, the homeowners declined. Due to the makeup of the board, however, there was no will to go after the city-as-developer for comprehensive construction defect damages. The city-dominated board refused to approve a claim against itself.
When the right of the city to control the HOA expired, the board was restructured and assumed the right to proceed independently. This is when the HOA hired a renowned construction defect attorney who brought in Denver counterparts to pursue the mounting construction defect issues as claims against the city of Aspen. Multiple forensic analyses of myriad construction defects, some known and others discovered, were compiled, and the resultant estimate to address the construction defects at Burlingame 2 approached $8 million, including the lawyers’ fees. (The case was taken on contingency because the subsidized housing HOA is in no financial position to retain counsel.) The city has recently offered the HOA $175,000, ostensibly to go away.
In addition to the exterior stain issues, which subject the exteriors of the buildings to fading and deterioration, other major quality of life and life safety problems exist, including the installation of an “open-loop” system where domestic drinking water and fan coils is one and the same, which is not NSF rated, the solar heating system was widely installed on low-slope roofs, creating twice the heat thereby melting the system, causing leaks and ice dams, and has resulted in numerous ceiling collapses, and the water pressure regulation valves (PRVs) are designed for “constant flow” commercial use but were installed in a residential, low-flow environment. The decks were designed and constructed with bolts that make for flimsy connections (unsafe for children) and the exterior fire alarm pull stations outside of every unit feature modules specifically rated for inside use, causing regular false alarms and widespread malfunctioning. And to add insult to injury, the coaxial cable was so damaged upon its installation that Comcast has indicated that it will, at some point, no longer provide service to Burlingame 2 unless this is replaced. The list is extensive.
Claiming “governmental immunity,” the city is seeking to avoid all responsibility for the massive problems at Burlingame 2 despite being the developer. The construction defect case is currently on hold while the courts determine whether or not the city-as-developer can be held responsible for the countless problems the forensic auditors identified. Last fall, Pitkin County District Court Judge Denise Lynch sided with the city in its immunity claim, but that case is now in Denver on appeal.
There is no legal precedent for challenging a government entity acting as developer in a construction defect case, so this is likely to go on for years. Regardless of whether the city has a legal case, this is an outrage and so patently wrong. We all know that the city is a lousy developer. Everything they build is a disaster, and not just a financial one. But for our local government to build defective housing and sell it to local workers and working families, and then claim immunity from responsibility for blatant construction defects, is shameful, unconscionable and a community embarrassment.
How can Aspen continue to support elected representatives who condone both the mismanagement and oversight of public construction projects and the resulting mistreatment and disrespect of its affected citizens? It’s time for city council to direct the city manager and city attorney to settle this case, and to cease all future city-as-developer activities.
When non-builders build, the results are predictable.The BG2 fix won’t be pretty, but it’s the right thing to do. Contact TheRedAntEM@comcast.net
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