Elizabeth Milias: Self-dealing in Aspen’s West End
The Red Ant
The city’s latest boondoggle stands to capitalize on the new land-use regulations that permit the development of multi-family subsidized housing in all zone districts.
On July 12, the city approved the voluntary historic designation of the unique 1950s-era Swiss chalet and two out-buildings on an 18,000-square-foot lot at 949 W. Smuggler in the West End.
The long-time owner approached the city to voluntarily designate the property in exchange for a lot split (into two parcels, 10,000 square feet and 8,000 square feet, where the 8,000 corner lot could be sold) and a variance to relocate an existing structure.
The Aspen Modern program, the voluntary designation of significant 20th-century historic assets as determined by the Historic Preservation Commission, enables an owner to negotiate variances and other concessions from the city in exchange for formally designating a property as a historic landmark. The benefit to the community in this instance is the preservation of a truly historic asset.
The commission agreed, approving the proposal. However, in the process, they identified unusual and seemingly unethical “right of first refusal” language that would exclusively enable the city to purchase the newly-formed 8,000-square-foot corner lot.
The commission ordered this condition struck from their resolution. It’s in the minutes. But, two weeks later, the city reinserted an “exclusive 30-day window to negotiate with the owner” back into the proposed ordinance for council’s approval.
The city’s interest in the 8,000-square-foot lot in the West End, previously zoned R-6 for single family homes and duplexes, should come as no surprise. Now that housing can be developed anywhere in town, the city likely wants this parcel for a multi-family, subsidized-housing development. Neighborhood character, parking pressures, public feedback, mass and scale be damned, these are the new rules.
Thankfully, the owner is not compelled to sell to the city. But, should they reach an agreement, we’ll likely see Ordinance 13 in action, and an indication of how devastating its city-wide impacts are soon to become.
Many questions surround this revelation of the city negotiating favorable circumstances for itself. Where did the “first right of refusal” originate? Who overrode the Historic Preservation Commission when the designated deciding body struck it? Why should the city have this undue advantage? Such conditions have no place in Aspen Modern negotiations.
This proposal was an obvious “yes,” a straightforward win-win for the owner and the community, but the city has managed to muddy the waters. The 30-day exclusive negotiation window begins soon.
There is interesting case law that relates to the city’s questionable tactics. Koontz vs St. John determined the government is liable for “a taking” when it withholds a permit until the landowner agrees to dedicate personal resources to a public use.
In that case, landowner Koontz requested a permit of the St. John Wastewater District to develop some of his land that was designated as wetlands. St. John had jurisdiction and agreed to issue the permit on the condition that Koontz place a conservation deed on the rest of his property and to do some mitigation work in the form of funding improvements to nearby government-owned land.
Koontz agreed to the deed, but not to the mitigation work. St. John denied the permit application.
Koontz sued, citing the takings clause of the Fifth Amendment. A trial court found in favor of Koontz, and the Florida appeals court affirmed. Later, the Florida Supreme Court reversed.
In 1994, in a 5-4 decision, the U.S. Supreme Court granted certiorari, holding that the government may not conditionally approve land-use permits unless conditions are connected to the land use and are proportional to the effects of the land use.
Such demands (asking for property or money from an applicant) place an undue burden on the applicant, which diminishes the land’s value and violate constitutional protections against having property taken without compensation.
In our case, the property owner got what he asked for and only had to agree to a special negotiation period, not a sale, so a lawsuit is unlikely. However, the sketchy initial “first right of refusal” and later exclusive 30-day negotiation window definitely sound like a bribe, as in: If we approve this proposal, then we get first dibs on the new lot. And, now that we can build subsidized housing on any lot in any zone, and since we don’t have to mitigate or pay fees like everyone else, and since we can pay any price you ask with public funds, we’re your buyer.
Ordinance 13 is set to impact every vacant lot in the city. The city is the only developer willing and able to build subsidized housing when the numbers don’t pencil. Worst of all, the surrounding neighborhoods will sadly bear the long-term brunt of this newly-permitted development, including the associated decrease in property values.
The voluntary historic designation of 949 W. Smuggler should have been a straightforward victory for the owner and the Aspen Modern program. But, the city’s self-dealing adds an unfortunate asterisk. It’s hard not to see the true motives of a punitive government that seeks to redistribute wealth by devaluing neighboring properties and, in so doing, destroying neighborhoods.
And, they’re coming to a vacant lot near you.
The city’s agenda appears very different from the community’s. What is going on? Contact TheRedAntEM@comcast.net
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