Colorado Supreme Court will not hear Mulcahy case over Aspen home ownership
The Colorado Supreme Court announced Monday it will not hear a case from an Aspen man ordered by a lower court to sell his home at the Burlingame Ranch affordable-housing neighborhood.
With no written explanation, the high court’s website said Mulcahy’s petition for writ of certiorari — the legal term for judicial review — had been denied.
That means Mulcahy, an outspoken critic of local government and a host of Aspen institutions, must comply with Pitkin County District Court Judge Chris Seldin’s order from June 3, 2016. That ruling ordered Mulcahy sell his deed-restricted home because he did not meet the Aspen-Pitkin County Housing Authority’s requirements that he work 1,500 hours a year in the county to qualify for ownership.
Mulcahy, in an email Monday responding to an Aspen Times inquiry, said he was in Los Angeles for a pop-up art exhibition but noted he was aware of the Supreme Court’s decision. He continued to accuse APCHA of being corrupt, the city of being unfair, and both of them of retaliating against him for his prior battles with Aspen Skiing Co., which is under the majority ownership of the prominent Crown family of Chicago.
“At its dark heart, this case wasn’t just about APCHA and its corrupt practices, but about making an object lesson on anyone who dared to criticize the owner of the company that owns the company town, billionaire Lester Crown,” Mulcahy’s email said. “In a contract, both sides have to play fair. The city of Aspen failed to play by their own arbitrary rules throughout and consequently shouldn’t receive the benefit of our family’s blood, sweat and tears. Sadly, our justice system is in poor shape.”
Mulcahy also accused Seldin of having a bias.
Mulcahy’s sentiment toward the Aspen’s political, legal and industrial framework, however, won’t help his current plight, which is to comply with the court order and list his residence for sale. Because Mulcahy has exhausted all state legal avenues — and in February, the APCHA board denied his settlement offer to donate $50,000 to charities while keeping his house — his last legal option is the U.S. Supreme Court.
His attorney, Norman Mueller of the Denver-based firm Haddon Morgan Foreman, did not return a telephone message Monday.
Should Mulcahy not pursue action in the nation’s highest court, some legal formalities must play out before he must list his home for sale, APCHA attorney Tom Smith said.
That includes a mandate from the Court of Appeals, which affirmed Seldin’s ruling in September, enforcing Seldin’s decision.
“In my experience, they issue them fairly promptly,” he said. “But it does have to be issued for it to become effective.”
Mulcahy, whose family is from Texas, has trumpeted the “Remember the Alamo” refrain in his crusades against Skico, the Aspen Art Museum and the Aspen Institute, and most recently employed the battle cry against APCHA over its attempts to make him sell his home. Smith, however, said he expects the one-time mayoral candidate to comply with the court order.
“He needs to comply with this as a matter of law, and we expect him to do that,” Smith said.
Mulcahy struck a tone of defeat on his Facebook page, posting “CO Supreme Court declined to hear case on house we built ourselves. End of road.”
In his email to the Times, however, he hinted the saga might not be over just yet: “Can APCHA/Judge Seldin FORCE sale if not voluntary listed(?)”
Smith said it could, through two options. APCHA could seek a court appointment of a receiver to list the property for sale, or it could seek a judgment conveying the home to APCHA.
Yet even with one of those court orders taking place, Mulcahy could stay put at his home, something APCHA officials have discussed. “He has said before that he wouldn’t leave,” Smith said. “So that’s obviously been discussed by APCHA officials and me, but we haven’t been in a position to really make any determination about whether that’s going to happen. What do you do if it does happen?”
The standard procedure, if Mulcahy stands pat, would be to get a writ of execution from the Sheriff’s Office, “and the sheriff is expected to enforce it,” Smith said. “An order can be given to the sheriff to remove the person who’s not supposed to be there. But obviously we’re not expecting that to happen. We hope he will see the sense of voluntary compliance.”
Sheriff Joe DiSalvo, who knows Mulcahy, said forcibly removing him from his residence is not the course he would take, chiefly out of safety concerns.
“I’m hoping Lee sells his house and we all move onto the next page,” DiSalvo said Monday. “That’s what I hope happens. Any decision I would make would be on what’s the risk of human life over property, and I’m not willing to risk human life over property. … (The Sheriff’s Office is) famous for our patience. I’m not willing to let someone get hurt over property.”
The city has made clear it considers Mulcahy a potential safety threat, as evidenced by measures it took Feb. 1 to restrict his access to two of its municipal buildings — City Hall and offices at the Mill Building.
A letter signed by City Manager Steve Barwick and delivered to Mulcahy at his Burlingame home said Mulcahy would be required to set up an appointment and have an escort with him in the event he wanted to visit either building. The letter mentioned Mulcahy’s alleged threats to building department employees and police officers, and bullying behavior and verbal abuse through social-media posts and personal interactions.
“You have demonstrated behaviors that have crossed the boundaries of the city of Aspen’s policy for a safe work environment,” the letter said.
Mulcahy has denied such behavior.
At recent APCHA board meetings, there also has been police presence due to concerns about Mulcahy.
Mulcahy bought the undeveloped Burlingame lot as part of APCHA’s resident-occupied, or RO, program for $150,000 in October 2006.
He built the home — “with my own two hands,” he has often said — and completed it in 2015, gaining a certificate of occupancy in March 2016.
The 1,912-square-foot home would be listed between $900,000 and $1 million, Smith said. The Pitkin County Assessor’s Office gives it an actual value of $995,000.
“Lee can get a maximum resale for that property,” Smith said. “It just doesn’t get listed for nothing at a loss. It’s not like the property is being stolen from him.”
Mulcahy had contended that he was an artist and also worked for his family’s charity in Kenya, which he argued made him qualified for ownership.
Mulcahy once had a full-time job as a ski instructor with Aspen Skiing Co., which fired him Feb. 1, 2011. Skico said it was for performance issues; Mulcahy said it was because he was outspoken about low pay.
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Aspen City Council is considering yet again to ask voters whether to repurpose Wheeler real estate transfer tax for another community use. The idea has been discussed dozens of times over the years by various councils.