Tuesday, September 23, 2008

What a crock!

Another tempest in a teapot this past week here in Aspen, this one stirred up by a ridiculously wrong characterization of an attempt to clean up an ordinance here in Aspen. Happily, the City Council last night unanimously passed the ordinance notwithstanding the opponents' attempt to mislead.

What follows is an email exchange on which I was asked to weigh in:

IamMBB writes:

From reading all of the emails (but not the attachment) and with admitted biases regarding some of the players (Red Ant - bad, "city staffer" - good), it appears to me to be a typical Red Ant et al. based attempt to mischaracterize what city council and city staff are attempting to do.

I find "city staffer"'s explanation credible and the "Red Ant" propaganda incredible.

I think that none of this affects you in the least as an owner of a condo. You can remodel or sell to a new owner who might want to remodel with no more difficulty than when you remodeled before.

What "city staffer" is saying is that if your entire building burnt down, under the current rules, in order for the building to be rebuilt, the building would be treated like a new building which would require employee housing mitigation. "City staffer" doesn't think that's the way it should be, so city staff is asking city council to amend the ordinance to allow an exemption in the case of such a catastrophe. This "Red Ant" group (which I despise by the way) sees this as an opportunity to obscure the real issue and try to repeal the requirement for any mitigation at all in any circumstance. Red Ant thinks employee housing is bad.


In a message dated 9/20/2008 1:18:33 P.M. Mountain Daylight Time, xxxxxxx writes:

Hi Bridget

What do you think of all of this? Would there be any reason for you to attend the meeting? It sure sounds bizarre to us. Since we own a unit in a very old building, should we be concerned? Give us your thoughts.

Sent: 9/19/2008 5:09:43 P.M. Central Daylight Time
Subj: City of Aspen Ordinance 22 Could Affect your Property Rights

Dear Condominium Association Member,

On Monday September 22, Aspen City Council is considering a proposed amendment to an existing code that could affect your property rights.

To help understand the proposal we have inserted email communication from "city staffer" and also an email from the Red Ant. Also attached are the associated documents for your consideration.

If you would like to protest I have included the email address for each Councilman and that of the Director of Planning. Any letter of protest would then become a part of the formal proposal packet which is given to each Councilman. Alternatively there is a link on the Red Ant email to send a letter of protest as well.

>From:"city staffer"

Sent: Wednesday, September 17, 2008 9:35 AM
To: Real Estate Agent #1
Cc: Real Estate Agent #2
Subject: RE: City of Aspen code changes

These requirements have been in place for some time now, about 20 years. They don’t affect remodeling, but do affect demolition and combining of units. The requirements became very restrictive as a result of the moratorium that ended in May 2007. Staff is proposing a few exemptions to these regulations to accommodate situations that we don’t think should be required to provide mitigation – for example, replacement after a catastrophic fire. City Council did want to see a wholesale range of options for more substantive changes to the program and may be interested in further loosening of the requirements or getting rid of the regulation altogether.

So, yes – the requirements are very limiting for those who want to do more than interior remodels. Any combining of units triggers substantial mitigation. But, the regulations are not new. They’ve been in place for some time and were made more restrictive during the moratorium. Staff is proposing some relaxation for unique situations. And, Council may want to go further on relaxing the requirements.

Monday night, staff will be asking for approval of the proposed exemptions at a minimum and direction on the more substantive changes that Council wanted to discuss.

"City staffer"

From: Real Estate Agent #1

Sent: Wednesday, September 17, 2008 10:19 AM
To: City staffer
Cc: Real Estate Agent #2
Subject: RE: City of Aspen code changes

So if a 4 to 40 unit condominium complex becomes obsolete by way of not being economically feasible to remodel and best to completely rebuild at same dimensions, # units etc., how does current code handle that? There would be required mitigation. In the past, the mitigation would only be required for the expansion, not the replacement. But the 07 code changed that. This type of situation is really where there’s a desire to look at the whole program. There is a point at which older buildings have fundamental issues beyond aesthetics.

How would new proposal change that if any? There’s a full range of options from keeping the situation the same to getting rid of the requirements altogether.

If not a complete re build is their some % of renovation, and if so how calculated, at which the same rules would apply as a complete re build? The City has a definition of demolition with a defined methodology of measuring demo. It was last amended in ’01 or ’02 (?).

If true that a building would want to re build do they switch from free market to deed restricted? There would be required mitigation under today’s code, yes. The existing free-market units can be replaced without having to be deed restricted. If the code is amended, that could change.

We have heard there may be a proposal to mandate all buildings be sprinklered in the City - is that true? I’ve not heard that although starting about 15 years ago the fire code requires buildings over 5,000 s.f. gross to be sprinklered.

Real Estate Agent #2.

Civil Commotion Condo-Style. . .

Issue # 10, Sept. 19, 2008

The Red Ant regrets that her instincts (and facts) were right on proposed Ordinance #22 - next Monday night's big discussion at City Council that will update a long-standing land use code section concerning the combination, redevelopment and demolition of "multi-family unit dwellings" (condos, townhouses, etc.) and tighten the exemptions that owners have liberally enjoyed for years.

Later in this email you may click through to send a message to Council to voice your concern before the Monday meeting.

It seems that the City is pressing for unprecedented control of what they see as the destruction of POTENTIAL housing for local workers, regardless of whether or not it's YOUR free-market owned unit.

Community Development Director Chris Bendon read The Red Ant Issue #9 and told us that he "saw nothing off base" in our interpretation.

Consider these realistic examples if the formerly loosely-interpreted list of exemptions is formalized into law, and now enforced:

-Identical units in the same building can have wildly different market values depending on who has lived in each unit in the past. (If a locally employed person --even a well paid executive-- ever lived there, those units would be poisoned, and trigger the "mitigation" rule, others would not.)
-The due diligence process for a condo buyer will be nearly impossible. Imagine having to prove whether or not a local worker (never mind this "local worker" is undefined) EVER lived in a specific unit!
-Lenders, as if they are not nervous enough already in the current market, will be ESPECIALLY wary of this due diligence process and valuation issue.
-And realtors, how do you plan to disclose the ramifications of Ordinance #22 to your condo and townhome buyers and sellers? Will contractual materials mandate a lifetime history (rental and ownership) that indicates whether or not residents were "local workers?"
-This regulation likely will have the perverse result of causing condo owners and HOAs to preclude renting/selling to local workers to avoid tainting the units for future mitigation requirements.

Civil Commotion as a Commodity?

The list of exemptions to Ordinance #22 graciously exempts from the punitive measure "non-willful demolition" due to flood, fire or other natural catastrophe. Then there's the curious exemption due to "civil commotion." Civilcommotion? (We're serious.) Of course there's no definition, but apparently if this is the cause of demolition," well, then, exemption is granted.

Yippee!! There goes the neighborhood! We can see it now. Invitations to the Tupperware parties of tomorrow, a.k.a "A Condo Commotion Posse for-hire." Invite 'em over and they'll show up with their blow-torches and tire irons, have a few beers, and next thing you know, your condo is demolished, and, what a coincidence, so is the one next door. Oh no! OH YES! A "Condo Civil Commotion" just occurred! And now you get to re-build your condo and the one you own next door, as one, thankfully without having to build four bedrooms of affordable housing next to the HOA's swimming pool or in your 2-car garage. " But officer, I swear, I just invited a few buddies over for beers. Yep, they were a little hacked at City Council telling them how many ounces they could drink, and it started a little commotion."

The Gant Ants' House Party!

Thankfully, there are several "Options" open for discussion on Ordinance 22. City Council requested that Staff develop additional options for consideration.

The Red Ant encourages you to re-read Issue #9 and the proposed Ordinance 22, which includes these options in Exhibit A

We feel strongly that there is only one choice:
Option 8. The elimination of the program in its entirety.

The Red Ant is an ardent supporter of affordable housing in Aspen, however, this highly questionable land use code section within Ordinance #22 is not the answer. Many experts we have talked with even question its legality.

The Ant has made it easy to make your voice heard.

To send your recommendation for Option 8 to the Mayor and City Council members, CLICK HERE. You will be asked for your name, local address, and an email will automatically be sent to each of them expressing your view. You may edit or make additions to the email text.

Experts Agree

Our mailbox was full with all of your feedback and advice on our questions about Ordinance 22.

A local real estate attorney states: "The ordinance will create uncertainty in the marketplace. In this shaky economic environment buyers need assurance that their investment is safe. But this ordinance will force buyers to consider whether the future value is going to be appropriated by the local government. And every realtor in town will have to disclose this ordinance to potential buyers."

And local realtor Charley Podolak adds: "One of the many unintended consequences of this ordinance is that many buildings fall into total disrepair. If owners must replace 100% of the units on site with affordable housing first, they will likely utilize all of the allotted FAR, density and height before they can build any free-market units to pay for the development."

Be There! Council Needs To See Your Concern

The Red Ant will be at Monday's City Council meeting to promote Option 8. But this measure needs a large chorus of voices to make an impact on Council. Please join us in Council Chambers to speak to this issue. The meeting starts at 5 p.m. However, this item is well into the meeting agenda.

Public comment will take place when the agenda item is discussed. Your email AND your presence is important to make a difference. If passed, the measure will become law in 30 days.

We have been working on The Red Ant blog,

It is now easier to leave your comments about local civic matters, using a screen name or your real identity. We would love to read your opinions!

Marilyn Marks

Elizabeth Milias

Our email address is RedAntAspen@gmail.com

Join our mailing list!

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