The letter I wrote yesterday to the attorney for the Town of Basalt, Tom Smith, is below in its entirety. One thing to note is that I am ethically prohibited from contacting Town Manager Mike Scanlon or others at Town Hall directly because they are represented parties.
It is disheartening to read in the Aspen Daily News today that the Town has decided to punish our clients for hiring an attorney. There is no ethical, moral or legal principle to support the Town’s refusal to speak with our clients. The glaring problem with that strategy is that Section 16-418 requires relocation assistance regardless of whether a resident is represented by legal counsel. If the Town refuses to pay our clients, then 45% of their homes will need to be replaced.
As I’ve repeatedly said and wrote, we’re not a law firm that shoots first and aims later. We do not want to file a lawsuit against the Town or the Roaring Fork CDC. However, there are a number of legal issues that arise because of the Town and the CDC’s own actions. For example, there is a potential claim of promissory estoppel for our clients. And there is also a possible ex post facto issue with Section 16-418 that we have yet to fully examine. That said, we have held off on drafting a complaint with the hopes that the Town would work with us. The below assumes that the Town will realize its mistake in cutting off communication with our clients and work with us to find a solution for this unfortunate situation.
First, Fidel Castillo and Maribal Canas have mobile homes that can be moved. The rest of the residents are in trailers that, for various reasons, cannot be relocated. We look forward to working with the Town to find vacant land for Fidel and Maribal, and proper alternative housing for the rest. As you know, Section 16-418 has a presumptive formula. To date, the Town has taken the position that there can be no deviation from that formula. However, that position is not supported by the language of Section 16-418.
The value of the home, whether it can be moved and who pays for the relocation or demolition of a home are certainly relevant factors. They aren’t the end of the analysis. The Town Council can consider “unusual circumstances” that justifies additional compensation. See, e.g., Section 16-418(b)(1)(B). We are in the process of putting together our reasons why each resident deserves additional compensation, but as a general matter, we can say that these reasons will include being elderly and having a more difficult time moving, having children of school-age, having long-term ties to the Pan & Fork, having larger families that make moving to suitable other housing difficult, and other similar circumstances. Those reasons are separate from the issue of whether they were promised alternative/replacement housing that has yet to come to fruition. The very fact that these persons have made the determination to seek legal representation and to let the Town know that they do not believe the formula to be sufficient may constitute “unusual circumstances” in and of itself.
You have previously stated in the paper that the Town has a moral, ethical and legal obligation to treat our clients the same as previous residents who have already relocated. Your statement is contradicted by the Town’s statements that they recognize that each individual has their own particular circumstances. It is also contradicted by the Town’s position as stated in today’s Aspen Daily News. As a practical matter, it makes no sense to treat each person the same, not least of all because the persons that previously accepted relocation assistance may have done so without full knowledge of their other options. From our view, getting this matter resolved in a cooperative fashion will require an acknowledgement by the Town that they need to view each resident as a person and not just part of an arbitrary equation.
Second, all of our remaining clients have children that are currently in school. One of our chief concerns for these children is that the threatened eviction on April 1 comes at a time when school will not yet be out of session. Switching to another school that late in the year will unnecessarily inflict a severe hardship or even potential impossibility on these children’s ability to maintain their all-important education. Certainly, when the Town signed the construction contracts for April 1, it knew or should have known that it would have severely adverse impacts on these children. For this reason, we request that, at the very least, the Town agree in writing to extend the leases or to refrain from attempting eviction procedures until Friday, June 13, 2014, which is 9 days after the end of the school year. This will give these children and their families sufficient time to first concentrate on their education and then prepare for moving, if they must move at that point. We also believe that this school-year issue raises issues of “unusual circumstances” that could be addressed through the dictates of the ordinance.
As repeatedly stated, both in this missive and elsewhere, we do not want to engage in needless litigation and truly hope to work with the Town. However, in the event that our clients are forced to fight their evictions, one key component of that battle will be the school issue. Regardless of whether litigation is necessary, the court of public opinion will likely not look too kindly on the Town’s decision to evict children during the school year.
As you are aware, in any action under the Mobile Home Park Act (including attempted eviction), the prevailing party is entitled to attorneys’ fees and costs. Given that our clients will have compelling defenses to an eviction action, including an equitable or promissory estoppel theory and based on the issues raised by interruption of the school year, the Town will have to consider its potential exposure to fees and costs. It is our understanding that the Town paid a significant amount of attorneys’ fees for its battle with the Aspen Times; we hope the Town does not make the same mistake twice and waste funds that would otherwise be used for affordable housing or relocation assistance. Of course, none of that will be necessary if we can find common ground and help these people move in a fair and timely manner.
Third, I have a number of concerns with the attached “Weekend Update” from Mike Scanlon. The suggestion that any of my clients or I are unwilling to work with the Town is inaccurate. If anything, your lack of response to my overture to settle last week and combative correspondence indicate that it is the Town that refuses to work with my clients for no other reason than they question the Town’s methodology. Moreover, Scanlon says that the residents will be offered less because they have hired us. That statement is puzzling because, as noted above, there is nothing in Section 16-418 or the leases you provided or elsewhere that supports offset. If you have support for the concept of offset, please let us know.
Contrary to the representations that Mr. Scanlon made to the Aspen Daily News and you appear to have made to the Town Council, litigation is the last resort for our clients and would only be necessary if the Town remains as inflexible as it appears to us. Cooperation and compromise are two-way streets and right now we feel that we are walking the wrong way down your one-way street. As appearances may be deceiving, please let us know if we are reading the situation incorrectly.
Most concerning is the disconnect between Mike Scanlon’s statement that he would stake his professional reputation on getting our clients into affordable housing and the Town’s commensurate refusal to reduce that promise to writing. As you know, a promise need not be in writing and we believe that Mr. Scanlon’s statement to that effect (and others like it, either in the press, in Town Council meetings, or directly to our clients) constitutes a promise, the breach of which is actionable.
Again, since we want there to be no confusion, it is not our first or even second intention to engage in litigation. On Friday, I asked you to provide me the contracts for Jose Ramos. We are trying to advise him of what he’s signing so he can do what the Town wants: voluntarily leave the Pan & Fork. It is completely illogical for the Town to now refuse to work with us to help Mr. Ramos move. We hope the Town will reconsider it’s position so that at least Mr. Ramos and his family can start a new chapter in their lives.
In sum, our representation of WJDB is centered on one principle: to make sure that our clients are being treated fairly and are given the best help possible under the circumstances, whether monetary or otherwise. You and the Town appear to view our involvement as a threat, but our presence should not be concerning to the Town unless the Town is attempting to act in an untoward manner. By failing to consider alternatives, the Town is creating an issue where one need not exist.
We understand that the position of the Town is that no promises were made to our clients regarding affordable housing. Our clients certainly do not agree with this position, but perhaps that is beside the point for the moment. The Town is acting in a way that is consistent with a promise to provide affordable housing or relocation assistance. If we can capitalize on that momentum and work together to determine solutions that meet the disparate needs of our clients, we will be able to avoid conflict and move forward in a way that is beneficial to everyone.