Residents and developer countersue city, say officials signed off on entrance plan
An Aspen couple and the company that developed their downtown condominium are countersuing the city of Aspen in a battle over building access to affordable housing units and compliance with a federal law for the disabled.
In separate filings, condo owners Michael Sedoy and Natalia Shvachko, and JW Ventures, which developed the mixed-use Ute City building several years ago, say the city signed off on a plan that would allow the couple private use of a staircase and elevator.
The city in July sued them and JW Ventures, seeking an injunction to force the defendants to comply with the building permit that was issued for 308 E. Hopkins Ave. The couple and developer are accused of preventing affordable housing tenants and disabled people from using a staircase and an elevator, respectively, that are on the building’s east side.
Those features provide access off Hopkins Avenue to the residential units and to Syzygy restaurant in the building’s basement. Affordable housing residents currently must use the alley to access the service entrance and elevator located on the development’s west side.
Two city officials approved the building permit, certificate of occupancy, and condominium declarations and map for the development, Shvachko, Sedoy and JW Ventures say in responses filed last week in Pitkin County District Court.
The declarations and map provide the owners of the free-market units “the exclusive right to use and enjoy” the eastside staircase and elevator, and that tenants of the second floor’s affordable housing residences have an easement to use the westside elevator, wrote the couple’s attorney, John Case of Aspen.
A resident of an affordable-housing unit, however, said in July that that elevator hasn’t worked for months.
Shvachko and Sedoy, who paid about $6.3 million for two condos on the second and third floors, also have filed counterclaims against JW Ventures and 308 East Hopkins Condominium Association, another defendant in the city’s lawsuit.
On Jan. 25, 2011, the city’s community development director, Chris Bendon, approved and signed the condominium map for the building, Case wrote.
The map depicted the east entrance from the sidewalk, the east hallway and the east elevator as “limited common elements,” Case’s response says.
On Feb. 3, 2012, City Engineer Tricia Aragon approved the same map, Case wrote.
He also quotes from correspondence between the couple’s then-attorney and City Attorney Jim True in September 2012. True wrote that the city believed it was important to reach an understanding about the east elevator and stairway before the final inspection and the issuance of the certificates of occupancy for the free-market units.
“Simply put, this is not our clients’ problem to solve,” the attorney wrote back. The units “are in full compliance with all applicable law, and your letter does not suggest otherwise. Please direct staff to issue the certificate of occupancy for [the] units ... immediately.”
In October and November, the city issued those certificates, Case wrote.
Case’s filing also touches on another legal case for the couple, who have complained repeatedly to Aspen police about music and noise from nearby bars and eateries in the downtown area’s Restaurant Row.
Employees with the Aspen Brewing Co. have pleaded not guilty to noise violations, and a trial is set for next month in Aspen municipal court.
“Since Sedoy and Shvachko began residing in [the units], excessive noise in violation of the declaration has been a continuous and ongoing nuisance and disturbance,” Case wrote.
The couple contends that JW Ventures has “refused to fulfill its obligations under the sales contract and the condominium declaration to complete noise mitigation work ...”
The amended sales contract also spelled out that “no loud or live music would be permitted in the commercial units of the building that was a disturbance to” their condos, the court filing says.
The developer allegedly also was to submit to the city an application to “confirm the private use of the east elevator,” something that JW Ventures has failed to do, Case wrote.
It is necessary for a judge to interpret the legal status of the limited common elements and to determine “the extent to which the city has any legal justification to take private property and force public use of the east entrance and elevator ...,” the filing says. “The city’s attempts to take Sedoy and Shvachko’s private property for public use will cause [them] irreparable injury.”
JW Ventures, which is controlled by Aspen developer John Provine, went through a “lengthy and expensive development process” for the property, wrote the company’s Aspen attorney, David Kelly.
The condominium map “clearly shows the east stairway and elevator as limited common elements for the use of the Sedoy and Shvachko units,” he wrote. “The condominium declarations clearly spell out the access for each of the units. Affordable housing [tenants] are to use the west stairs and are not to use the east elevator for general access.”
The counterclaims do not mention access to the elevator leading to Syzygy.
One of JW Ventures’ counterclaims against the city says it is attempting to alter the conditions of the building permit and map that were approved.
“The city has taken a contrary interpretation of the documents and has asked this court to enforce such interpretation,” Kelly wrote.