Aspen City Councilman Dwayne Romero must recuse himself from deliberations on the Aspen Walk residential project tonight because he is under contract to purchase property in the neighborhood.
Over the course of the last month or so, Romero has been in negotiations to purchase as an investment a Park Avenue duplex, but only entered into a “hard contract” to purchase the property two weeks ago, he said.
During the time Romero was in negotiations with the current property owners, two items came before Aspen City Council with controversial effects in the neighborhood: the Aspen Walk proposal, which would combine affordable and free-market housing; and a plan to build a sidewalk on Park Avenue while making it and Midland Avenue one-way streets.
There have been two public hearings on Aspen Walk this summer. While the Aspen/Pitkin County Housing Authority and the developers are pitching the project as an innovative public-private partnership that would redevelop aging housing stock, there has also been some criticism of the building’s size. At 46,000 square feet, it would be a large presence on the east side of Park Circle, where three separate buildings housing locals now exist. The council, including Romero, were unanimous in directing that the project be tweaked to soften the mass and scale. The development would incorporate 14 free-market condos with 24 affordable housing units.
According to the city’s ethics handbook, a conflict of interest occurs when a city representative takes “direct official action” in a matter in which that person has a “substantial financial, contractual or employment interest.”
Romero said he considered the situation carefully and decided there was no need to recuse himself or declare his consideration of the property, because at the time of both issues, he was in the negotiation phase and had no financial obligations.
“When you are in negotiations ... it’s not appropriate to go around disclosing that,” Romero said. “There’s a reasonableness standard. You have to apply your common sense there.”
But now that Romero has an “equitable interest secured,” there is a clear need for him to step aside on the Aspen Walk decision. It’s city law that a council person must recuse him- or herself from a land-use application when he or she lives in or owns property within 300 feet of the site in question.
With Romero’s absence from the discussion (and J.E. DeVilbiss’ seat not yet filled), only three council members will remain to decide the ordinance, meaning that any approval will have to come from a unanimous vote. Further, a shadow of doubt has been cast on the proposal as a result of an FBI investigation into a business connected to the housing authority’s private sector partner, the Petters Group of Minnesota. However, the real estate division is said to be wholly separate from Petters Capital Inc., a financial arm of the company that is the subject of the investigation.
In the case of the sidewalk, Romero could theoretically vote on it, even though the sidewalk or a realigned road would run directly in front of his property, because council members are allowed to vote on items that potentially could be construed as a conflict of interest if there is a “common public interest” that affects the whole city. Since the sidewalk is a health and safety issue, the common public interest clause might apply.
But, “if anyone says Romero has a sidewalk vengeance, I’ll step away,” Romero said.
Aspen City Attorney John Worcester said the bottom line in conflict-of-interest questions — which usually must be decided on a case-by-case basis — is the “substantial interest” concept. While he would not discuss specifics, being in negotiations to buy property probably would not cross that line.
Conflict-of-interest questions can be the hardest to answer because of the large gray area, Worcester said. It’s also important to remember that the perception of a conflict of interest — perhaps unwarranted — can be as damaging as an actual conflict of interest, he added.
“It’s always better to declare what your situation is,” Worcester said.
But Worcester also noted that the city charter requires council members to vote unless there is a substantial conflict of interest. In other words, if a council member does not recuse himself, he can’t abstain from voting.
Romero is the chief operating officer of Related WestPac, which is developing Snowmass Base Village. Being part of such a large company in the community (Romero started the job this month) could cause potential conflicts down the line.
For example, Romero might have to withhold his service on the Roaring Fork Transportation Authority board because of Cattle Creek Crossing, a 1,000-unit Related WestPac housing proposal for Garfield County. Besides the RFTA trail running through the property, there will likely be significant negotiations between RFTA and Related over providing public transportation to the new small town.
Any Aspen decisions involving Snowmass, such as those related to funding bus service from Snowmass to Aspen, could also trigger a conflict-of-interest recusal.
Each situation deserves its own analysis, Romero said, noting that concerns such as Cattle Creek Crossing and RFTA “will be the exception, and not the rule.”
“You just work through it one situation at a time,” Romero said. “Up front, clean and clear.”
In the case of the Park Avenue deal, Romero and other business partners are seeking to purchase both units in a 1980s duplex as an investment.
“I don’t know that I’d tear it down,” he said. Instead, he’d like to use the place to showcase what can be done with renovation, as opposed to scraping and replacing.
“It’s my day job,” Romero said of the property investment. “It’s part of what I do.”
Romero recognizes the delicate balance he must strike in being both a council member and a developer. But his role, particularly with Related WestPac, should be encouraging to the community, Romero said. In council meetings, he has been consistent in his support for affordable housing and green building. He says he appreciates the issues of the day and quality of life impacts.
“If anyone should be deterred, it’s Related WestPac,” he joked.
While Aspen Mayor Mick Ireland noted that while it is always best to “err on the side of disclosure,” Romero did nothing wrong by not disclosing that he was in negotiations on the Park Avenue duplex. Romero is doing the right thing by recusing himself now, Ireland said.
“It’s unfortunate, because his perspective is always valuable,” he added, citing Romero’s background in development, which can help inform decisions at the council table. “It’s a loss to the rest of us.”
curtis@aspendailynews.com
