Plans to file a lawsuit against the city of Aspen for allowing the Residences at Little Nell at the base of Aspen Mountain to be occupied are on hold, for the moment, while attorneys discuss the problems a nearby homeowner is having with construction of the project.
“At present there is no legal action; it’s been considered and it’s on hold as we’re talking to the developer and the city,” said Matt Ferguson, an attorney with Garfield & Hecht, who is representing homeowner Preston Henn, on Wednesday. “That could change but it won’t change within the next two days.”
Ferguson presented the city with an open records request on Monday that asks for all correspondence and documentation related to the conditional certificate of occupancy the city granted the Residences at Little Nell on Nov. 30. He wants to study the information provided, he said, to determine “if it impacts our rights” and to try to come to a settlement.
Henn, of Fort Lauderdale, Fla., owns the home directly above the Residences at Little Nell on Galena Street. He said earlier this week that he, through his attorneys, was planning legal action against the city for issuing a conditional certificate of occupancy for the project. Henn said he’s had numerous issues with his home as well as access to it and the city should not have signed off on the project until all those issues are settled.
“At present we are preparing a Petition for Certiorari or Mandamus to be filed contesting the temporary CO issued by the City of Aspen because it was improvidently granted given the developer’s failure to meet the conditions of approval in almost every respect as it pertains to Mr. and Mrs. Henn,” wrote Bill Scherer, one of Henn’s attorneys, in an e-mail on Dec. 16. The e-mail was entitled, “Nero fiddles while Rome burns.”
Henn and his wife had traded the house they owned for 18 years for another house just uphill of the construction site — the original home, along with a handful of other buildings, was demolished to make way for the luxury mixed-use project. But in order to get to the new house, Henn claims he, his family and guests have had to trespass on other private property, walk on the ski hill to get to the house, and more recently go through the Residences where they have sometimes been stopped by contractors. Henn got a parking space and elevator access in the Residences as part of the deal, he said.
“During Christmas week I would like to advise you ... my house guests were locked out. The contractor there said it wasn’t safe,” Henn wrote in an e-mail to Stephen Kanipe, chief building official for the city of Aspen, on Dec. 29. “The elevator was locked off at the bottom and the top so my guests couldn’t use it. My guests were not permitted to park under the Residences even though we have an easement ... I would appreciate if you would check this out as this all comes under the original development order with the city of Aspen.”
City attorney John Worcester Kanipe said that the city hasn’t “done anything wrong,” and city special counsel Jim True said that the Henns’ “battle is with the Residences and not with us; they say the issuance of the CO is somehow related to this but I don’t know how.”
Neither attorney were aware of the specifics of the legal action at the time, although both had received the open records request.
But according to Ferguson, Henn’s attorney, “It has everything in the world to do with it (Aspen), because the purpose of a CO is to ensure the safety of the people in the houses and everyone nearby, and my client’s property is part of the PUD.”
Henn and two other nearby homeowners had filed separate lawsuits against the Residences at Little developers and general contractor, claiming that the ground around the project was shifting due to the construction and causing problems with their homes.
“My house has been moving and cracking, the engineers say there’s a lake underneath it,” said Henn, adding that a retaining wall put in for the Residences project was stopping runoff on Aspen Mountain from draining away. He said when he first had some problems with the home moving, the developers put a large steel tieback behind the house, but the problems continued and they wanted to put in another one, but didn’t want to pay him for the damage to his house.
“All through my house there’s cracks, some cracks you can put your little finger in,” Henn said last week. “They repaired all the cracks a month ago, and three weeks ago another crack appeared.”
In the mid-December e-mail, Scherer outlined 12 claims of failures on the developer’s part, including failure to provide insurance indemnity, temporary trash and mail services, and reimbursement for costs incurred as a result of the supposed soil movement. The claims also mention a city red tag that was issued to the home that “thereby placed a stigma on the property thereby reducing the future value of the Henn property.”
The city has actually issued multiple certificates of occupancy for the project. Final certificates of occupancy were issued to the 26 luxury fractional units, most of which have been sold, in order to allow those residences to close.
The conditional certificate of occupancy allows access to other areas of the complex, but requires that certain things in the common areas and on the exterior, for example, be completed prior to issuance of a final certificate of occupancy. This includes things such as replacing broken pavers, striping parking spots and keeping entrances and exits free of construction debris. Conditions must be completed by Feb. 28.
It’s not unusual to grant a certificate of occupancy to part of a building and a conditional one to another part of the building, said Kanipe in the city building department, pointing out that it would be silly to hold up occupancy for a landscaping requirement that can’t happen until spring anyway, for example.
“It’s consistent with the way we’ve done it for the past 15 years when we started getting these larger projects in (like the Ritz and Obermeyer Place),” he said, “and that’s finishing the projects in phases but not putting anybody in any sort of jeopardy.”
The Residences at Little Nell includes the 26 three- and four-bedroom luxury units, eight hotel rooms, eight affordable housing units, three retail spaces, one restaurant, a rooftop pool and garden, a fitness center and ski locker rooms. It has nine levels, a parking garage and encompasses 218,000 square feet.
lutz@aspendailynews.com