The Aspen couple who have called police 18 times since January to complain about noise and music from restaurants are not entitled to an injunction that would ban all music after 10 p.m., the attorney for two of the eateries contends.
Hopkins Restaurant Group LLC, which owns Syzygy and Ute City, is named in the lawsuit filed by the city of Aspen against the couple, Michael Sedoy and Natalia Shvachko. The city believes that the restaurant group is being impacted by the alleged actions of the building and condo owners.
Sedoy and Shvachko own two condos in the Ute City building on Hopkins Avenue, including the penthouse. The city alleges that the couple and JW Ventures, the developer of the Ute City building, are preventing access for both people with disabilities and the tenants of three affordable housing residences. The city claims they are illegally preventing restaurant patrons and other residential tenants from using the front entrance and an elevator leading to a subterranean restaurant.
Sedoy and Shvachko have filed counterclaims against JW Ventures and sought the injunction Sept. 10. The injunction motion, which has not yet been ruled on, says the “continuing noise has become a health issue.”
Their condos are above Syzygy and Ute City, and located next to the Aspen Brewing Co.
The couple’s 19-month-old child has developed a sleeping disorder and Shvachko has been treated for physical exhaustion and stress, according to a letter the couple wrote to JW Ventures and the building’s homeowners association.
Sedoy and Shvachko have made 18 complaints to Aspen police about noise and music coming from Restaurant Row, according to a recent court filing. That has led to an upcoming trial for the Aspen Brewing Co., which has been cited three times for allegedly exceeding the city’s 60-decibel limit after 9 p.m. (See related Aspen Brewing Co. story.)
The injunction seeks to prevent any music from being played after 10 p.m. in Syzygy and Ute City, neither of which have been cited by Aspen police.
Hopkins Restaurant Group contends in a recent court filing that the move for an injunction is moot because the couple has moved out. Hopkins Restaurant Group included the letter from Sedoy and Shvachko to bolster its argument against an injunction.
Dated Sept. 19, the couple’s letter says that “because of the [continuous] noise harassment and torture of our family by tenants of the commercial units ... and refusal of JWV and HOA” to enforce the condominium declarations regarding noise, they were forced to move out and find other accommodations.
They will live elsewhere “until our rights to peacefully enjoy our property are enforced through the legal system,” the couple wrote. “Both HOA board and JWV decided to intentionally continue the torture and harassment, making our life impossible, and more importantly causing significant damage to the health and well being of our family members.”
But the Aspen attorneys representing Hopkins Restaurant Group, Lance Cote and Kenneth Citron, say that the couple knew what they were getting when they paid $6.3 million for the condos.
The motion opposing the injunction bid says the couple purchased the units “with full knowledge that the businesses operated bars with late-night music in the heart of Aspen’s nightlife.”
In addition to complaints against Syzygy and Ute City, Sedoy and Shvachko also have collectively made eight complaints against the Aspen Brewing Co. and The Square Grouper, which are in the building next door, and Jimmy’s, which is across the street.
Those three restaurants would not be subject to the injunction, were one to be issued by Judge Gail Nichols of Pitkin County District Court.
Cote also wrote that the condominium declaration the couple alleges is being violated is “hopelessly unclear and ambiguous.”
Before 10 p.m., the couple wants a limit of 50 decibels, a restriction Hopkins Restaurant Group calls “extreme.”
The couple “elected to purchase and move into one of the only residential units in the heart of Aspen’s nightlife scene,” Cote wrote. “Now, they seek to convert this vibrant street into a bedroom community.”
If Nichols issues the injunction and bans music from Syzygy and Ute City, it would cost the owners “hundreds of thousands of dollars in lost revenues, if not the total closure of their businesses,” the motion says.
The date for a hearing on the injunction is expected to be set Tuesday.