Forum Post: Occupy Aspen leader forced out of home he built by Judge

Judge orders man to sell his residence

by Curtis Wackerle, Aspen Daily News Staff Writer

Tuesday, June 7, 2016

A judge on Thursday ordered Lee Mulcahy to sell his deed-restricted home, faulting the outspoken artist for failing to follow through with an administrative appeal of his case because he was on a trip to Africa.

Judge Chris Seldin of Pitkin County District Court granted the Aspen-Pitkin County Housing Authority’s motion for summary judgment in a 10-page order, meaning he decided the case based on the motions filed without holding a hearing. Mulcahy said Monday he plans to appeal.

APCHA opened a compliance case against Mulcahy last May, after a neighbor called in a tip that he was not meeting the minimum work requirement, among other violations. Mulcahy won a lot in the Burlingame affordable housing project in 2006, and over the past five years has done most of the work himself building his single-family home. It’s valued by the Pitkin County Assessor at $791,000.

Mulcahy contends that, through his art and other jobs, he was meeting the 1,500-hour-per-year work requirement that binds affordable housing residents. But those arguments were not material to Seldin’s order, and he never made them before the housing authority board.

A former ski instructor, Mulcahy has been a topic of local news articles since his 2011 firing by the Aspen Skiing Co., which contends he lost his job because of performance issues. Mulcahy believes it was because of his activism for higher wages, which included distributing fliers in Gondola Plaza. He has since sued SkiCo, which has banned him from its resorts and other properties; he has also taken aim at what he sees as the elitist practices of The Aspen Institute and Aspen Art Museum. Mulcahy has also ran unsuccessful campaigns for the Colorado Senate and Aspen School District Board of Education.

APCHA sent Mulcahy two letters informing him that he was believed to be out of compliance with housing rules — the first on July 14, followed by a second on Aug. 5 — followed by a formal notice of violation on Aug. 25. The notice carried a Sept. 9 deadline to either list the property for sale, document his compliance with the guidelines or request a hearing in front of APCHA’s board.

Mulcahy throughout this timeframe was in communication with APCHA compliance officer Julie Kieffer, who requested tax and employment records. But Mulcahy never sought the hearing before the housing board, nor satisfied Kieffer’s compliance concerns, and on Oct. 1, APCHA issued a final letter demanding that he list his home for sale for $180,481 within 30 days, Kieffer said. He also took an extended trip to Africa in September and October, where he worked on bringing clean water systems and laptops to remote Kenyan villages.

When Mulcahy did not comply with the Oct. 1 notice, APCHA filed suit in Pitkin County District Court in December. The authority sought a “decree of specific performance,” requiring him to list his home and also provide documentation on the value of the home so the housing authority can determine the sale price.

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A Pitkin County judge last week ordered Aspen artist Lee Mulcahy to sell his home in Burlingame.

In his order, Seldin agreed with APCHA that Mulcahy’s arguments are moot because he did not exhaust all his potential administrative remedies. Mulcahy argued that he should be excused from being held to the requirement to exhaust all administrative reviews because of the Africa trip, but Seldin repeatedly took apart that reasoning in the ruling.

“The court concludes that Mulcahy was aware of APCHA’s pending enforcement proceedings when he elected to travel to Africa,” Seldin wrote. “He cannot blame his travel choices on APCHA, and he cannot use them as an excuse to avoid compliance with the plain language of the deed restriction.”

Seldin later in the order writes that “the court finds it surprising that someone facing the potential loss of his home would neglect” to follow through with APCHA procedures for contesting a compliance-enforcement case.

“Despite being on notice that a notice of violation was coming ... Mulcahy evidently decided to travel to Africa where it was not possible to reach him. Mulcahy cannot lay the consequences of this choice at APCHA’s door,” says Seldin’s order. Mulcahy on Monday said that APCHA’s case against him was convoluted, and as late as mid-October he was debating with Kieffer on how an artist is to demonstrate compliance with the work requirement.

He alleged that APCHA could have pursued the compliance case at any time in the past 10 years, but waited until his home was finished to try to kick him out. He contends that APCHA is prevented from taking its enforcement actions because the statute of limitations has expired.

He also said the housing authority's final letter demanded he sell the home for under $200,000. “This was done with a message to anyone who speaks truth to power who wants to be a whistleblower — watch out in Aspen,” Mulcahy said.

He did not pursue an appeal to the housing board because he said he was not confident in the body’s ability to treat his case fairly, adding that it hinges on “matters of law” of which the board is not well equipped to deal.

As for the Africa trip, Mulcahy said it was taken in honor of his late father to complete a service project he started before his death in May 2015. He called Seldin’s scolding of him for the trip “shameful.”

Seldin, in the order, writes that he does not “perceive any manifest injustice” in the case, as Mulcahy argues.
“Instead, the court perceives a simple enforcement action whereby APCHA is pursuing its rights under the deed restriction after giving Mulcahy ample notice of its intentions, his rights and the consequences of failing to pursue them,” the order says. “… The court concludes that it would be inequitable for those who benefit from the tremendous advantages of affordable housing to not hold up their end of the bargain by working in the community as they agreed to do.”

Mulcahy stated, "This Judge is in the pocket of war profiteering billionaire Lester Crown, owner of Aspen, General Dynamics and Wall Street's JP Morgan Chase. Lester's history and penchant for bribery has been well documented by the Chicago Tribune and New York Times."

curtis@aspendailynews.com