APCHA board rejects appeal to allow divorced owner to keep deed-restricted property

An APCHA homeowner lost her appeal to remain in the property that she owns with her ex-spouse, due to him leaving town and no longer meeting eligibility requirements as outlined in the property’s deed restriction.

The APCHA board deliberated the decision to confirm, deny, or send back the hearing officer’s determination that the owners were in violation of the deed restriction on the property at their meeting on Wednesday. 

The three voting board members, Pitkin County Commissioner Kelly McNicholas Kury, Board Chair Carson Schmitz, and Aspen City Council member Ward Hauenstein unanimously voted to confirm the hearing officer’s finding. The decision will force the remaining owner to vacate and sell the property.

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The Times is withholding their names because the petitioner is a survivor of domestic abuse. 

The board first heard the appeal at their Feb. 7 meeting, where the petitioner’s attorney and APCHA staff presented arguments. After hearing arguments from both parties, the board voted to table deliberations and a decision to Wednesday. 

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Kury said she feels some of the arguments presented in the case fall outside of APCHA’s purview, and she would like to see those resolved in a court setting, though she did not specify which arguments. She supported the hearing officer’s determination.

“I think … the clarity related to the rules of our requirements for when a marriage is dissolved and how a property is treated in the dissolution of marriage are straightforward, and the evidence was straightforward,” she said. “I support that finding of the hearing officer.”

The resident’s attorney, Alan Feldman of the Basalt firm Feldman Wertz, blasted the board for its decision and said he and his client intend to file an appeal in court.

“APCHA’s ruling today indicates that they didn’t read or consider 95% of the entire case that my client has presented,” he said after the meeting adjourned. “This was a lazy ruling, and it will be appealed in court.”

The owners of the property received a Notice of Violation from APCHA on Aug. 31, 2023. The notice lays out violations against just one owner of the property, alleging that he had failed to prove eligibility as a working resident of Pitkin County with at least 1,500 hours employed locally, and he no longer uses the property as his primary residence.

Those violations impact the petitioner, as the deed restriction on the property requires both owners of the property to live in it for at least 5 years and remain eligible for APCHA housing. 

The couple married in Feb. 2022, and the petitioner was added to the deed on the property with her then-husband in June 2022. By Aug. 2022, they filed for divorce. The petitioner alleged domestic abuse against her ex-husband. 

In the Findings of Fact, Conclusions of Law and Ruling document that outlines hearing officer Mick Ireland’s findings and decisions from the Sept. 26 and Oct. 11, 2023, hearings, he concluded that the petitioner herself could not sufficiently prove 1,500 hours of work in Pitkin County for the past few years.

Feldman argued in briefs and at the Feb. 7 hearing that Ireland does not have the authority to determine the legality of a deed restriction, that the Notice of Violation was not directed at his client — just her ex-husband — and that Ireland overstepped by investigating her, and that she is a longtime local and valuable community member who has worked in hospitality and for Aspen Skiing Company.

“For some reason, Mr. Ireland just was dead set on investigating (my client). He lost his way. A hearing officer is not an investigator. A hearing officer is supposed to be impartial, neutral. APCHA presents their case, then (the petitioner) presents their case, then the hearing officer rules. That is absolutely not what happened here,” Feldman said to the APCHA board on Feb. 7. “It’s clear from the record in the transcript, the transcript in particular, that Mr. Ireland took on the role of not only a prosecutor, but he actually took on the role of leading APCHA as the captain of the prosecution team.”

Ultimately, the board felt the hearing officer sufficiently demonstrated that the Notice of Violation should be upheld due to one owner’s absence from the property, which violates the deed restriction.

At the Feb. 7 hearing, APCHA staff said that the provision requires owners of a deed-restricted property to live in the property for five years to prevent marriages for the sake of handing off the deed-restricted property. 

In a brief, Feldman called Ireland’s conduct during the hearing racist when Ireland was “analogizing (the petitioner’s) deed restriction to illegal immigration.”

The petitioner has 28 days from the APCHA board’s adoption of a resolution to uphold the hearing officer’s findings, scheduled for the next APCHA meeting on March 6, to file an appeal in district court. 

APCHA Attorney Tom Smith said if the petitioner does file an appeal in district court, the court will likely issue a stay against forcing the sale of the property while the case is pending. No new evidence would be admissible, he said, just what was submitted to the hearing officer.

If she does not appeal, Smith said the sale of the property would move forward. The timeline for that sale is not clear.

Editor’s note: Feldman called Ireland’s conduct “racist,” not the APCHA regulation requiring owners of a property to live there for five years. The story has been updated to reflect that change.