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SAWHORSE
City prevails in lawsuit against condo developer
Aspen Daily News Online (http://www.aspendailynews.com)
Chad Abraham Aspen Daily News Staff Writer
Building owner must allow access, pay couple nearly $1.3 million in damages
In a huge legal victory for the city of Aspen, a judge has ruled that the developer and owner of a downtown building violated the municipal code when it allowed the owners of two high-end condos exclusive use of an entrance and elevator.
The 90-page ruling by Judge Gail Nichols of Pitkin County District Court, released Friday, means people with disabilities and tenants of three affordable housing units can access residential and commercial spaces from the front of the building. They had been forced to use a service entrance in the alley behind the building that was not compliant with the Americans with Disabilities Act (ADA).
Nichols found that JW Ventures, which developed and owns the mixed-use building at 308 E. Hopkins Ave., violated the city ordinance that approved the building, the International Building Code and its accessibility policy.
JW Ventures had claimed that city planning staff’s approval of the development application allowed the exclusive use of the entry and elevator, which are on the building’s east side, for the owners of two free-market condominiums.
Nichols ruled that such a provision violates the law. She issued an injunction prohibiting JW Ventures from “interfering in any manner” with the public’s use of the east-end entrance and elevator during business hours. The developer must keep the east entryway door unlocked and program the elevator so it does not require a key code for access during business hours.
Chris Bendon, the city’s community development director, heralded the ruling.
“It’s nice to hear that the affordable housing residents can use same front door as everyone else,” he said in an email. “We should never accept anything less.
“The position that affordable housing residents had to use the alley service entrance to get to their homes was repulsive, and we’re happy to hear it was also illegal.”
Nature of the dispute
The entryway and noise issues were the subject of the dispute, as Michael Sedoy and his wife, Natalia Shvachko, claimed that they bought two high-end condominiums in the building in part because JW Ventures promised them exclusive use of the entrance and elevator.
Nichols awarded the couple damages of nearly $1.3 million, ruling that the developer breached its deed with the couple because it granted the exclusive use in violation of land-use approvals.
Sedoy and Shvachko began making local headlines in 2013, when they began repeatedly making noise complaints to authorities about music from nearby restaurants and bars. The condos they bought for about $6.3 million in 2011 are on a stretch informally known as Restaurant Row. (For more on the noise-issue portion of the case, see Monday’s Aspen Daily News.)
Debbie Quinn, assistant city attorney, said the biggest victory stemming from the ruling is for the residents of the affordable housing units.
“They have been so patient,” said Quinn, who argued the city’s case at trial. “They’ve been traipsing through the ice and snow all these years, and that’s not the way the building was approved.”
The Aspen Daily News in 2012 first reported that the three tenants of the building’s second-floor affordable housing units were being told to use the rear entrance. The city sued the couple and JW Ventures in 2013, leading to a seven-day trial last year.
Nichols already ruled in the city’s favor regarding the elevator, finding that it must be made available for people with disabilities.
Last month, the affordable housing tenants were given keys to the front door of the east-side entryway, Quinn said. But doing so has triggered the alarm system installed by Sedoy and Shvachko.
Given Nichols’ ruling, Quinn said she would discuss with the other sides’ lawyers the disabling of the alarm and implementing other aspects of the required access.
“I’m going to tell [the tenants] that they are free to use their keys to go in and out the front door,” she said. “And they should try to use the elevator to see if it will stop on the second floor.”
Jared Goulet, a resident of one of the affordable units, called the decision fantastic. He said he and his neighbors respected Sedoy’s request that they use the alley entrance.
“We have to be good neighbors,” he said. “I just tried to be a diplomat and be a good neighbor.”
Still, the rear entrance is “super dangerous” in the wintertime, Goulet said, as the area is in perpetual shade.
Judge calls developer’s testimony ‘incredible’
Nichols’ ruling details the history of the building, the land-use approval process, and statements made by JW Venture principals, Sedoy and Shvachko, and city staff. Many of those parties also testified at trial.
From the start, JW Ventures’ architect, Charles Cunniffe, and land planner Sunny Vann represented to the city that the east entrance would be used to access the second and third floors, the ruling says.
This would make the development compatible with the Aspen Area Community Plan, according to the growth management application JW Ventures submitted in 2006.
“By integrating the affordable housing units with the project’s free-market residences, the proposed development reinforces and enhances a healthy social balance in the community,” the application says.
Aspen City Council in 2007 adopted an ordinance approving the proposed building, with numerous conditions. One of those was that JW Ventures’ building permit application include the language: “Accessibility and ADA requirements shall meet adopted building code requirements.”
Cunniffe submitted building plans that met the city code, which years ago incorporated the International Building Code (IBC), Nichols wrote.
“Cunniffe intended that all of the units within the building (except unit 101) would have access through the east entryway,” the ruling says. Unit 101 is the commercial space on the ground floor.
By December 2009, the building plans still conformed to the IBC, and JW Ventures received from the city certificates of occupancy for unit 101, the basement commercial space and the affordable housing units.
But around this time, the developer hired a survey-engineering firm to prepare a condominium map. Through this document, JW Ventures granted exclusive use of the east-side entry to whoever bought the free-market condos.
John Provine, a JW principal, testified he didn’t remember if he ever heard Cunniffe and Vann tell city staff that the affordable residences would have the same access as the free-market units.
“The court finds this testimony incredible,” Nichols wrote, adding that Vann and Cunniffe made these statements orally and in writing.
The condo map’s inclusion of the exclusive use violated a subdivision agreement between the city and JW Ventures because it did not adhere to the IBC. The developer had argued that Bendon’s approval of the condo map amended the city council ordinance approving the building.
Nichols disagreed, and said the injunction sought by the city will serve the public interest by enforcing the IBC’s accessibility requirements and “because employee housing will be integrated with free-market housing,” as called for in the Aspen Area Community Plan.
In awarding Sedoy and Shvachko $1,280,000, Nichols cited Dave Ritter, a real estate appraiser who testified for the couple. He testified that without the exclusive use, the value of the two units — which the couple combined into one — would decrease by that amount.
Quinn said she was happy for the affordable housing tenants and “that the city was able to enforce its land-use approval.” An attorney for the couple declined comment, and a message left with JW’s lawyer was not returned.
As for Goulet, he said he and his neighbors will be happy to avoid the alley from now on.
“All three of us have fallen back there,” he said. “It will be great to use the front door.”
chad@aspendailynews.com
Aspen Daily News Online (http://www.aspendailynews.com)
Chad Abraham Aspen Daily News Staff Writer
Building owner must allow access, pay couple nearly $1.3 million in damages
In a huge legal victory for the city of Aspen, a judge has ruled that the developer and owner of a downtown building violated the municipal code when it allowed the owners of two high-end condos exclusive use of an entrance and elevator.
The 90-page ruling by Judge Gail Nichols of Pitkin County District Court, released Friday, means people with disabilities and tenants of three affordable housing units can access residential and commercial spaces from the front of the building. They had been forced to use a service entrance in the alley behind the building that was not compliant with the Americans with Disabilities Act (ADA).
Nichols found that JW Ventures, which developed and owns the mixed-use building at 308 E. Hopkins Ave., violated the city ordinance that approved the building, the International Building Code and its accessibility policy.
JW Ventures had claimed that city planning staff’s approval of the development application allowed the exclusive use of the entry and elevator, which are on the building’s east side, for the owners of two free-market condominiums.
Nichols ruled that such a provision violates the law. She issued an injunction prohibiting JW Ventures from “interfering in any manner” with the public’s use of the east-end entrance and elevator during business hours. The developer must keep the east entryway door unlocked and program the elevator so it does not require a key code for access during business hours.
Chris Bendon, the city’s community development director, heralded the ruling.
“It’s nice to hear that the affordable housing residents can use same front door as everyone else,” he said in an email. “We should never accept anything less.
“The position that affordable housing residents had to use the alley service entrance to get to their homes was repulsive, and we’re happy to hear it was also illegal.”
Nature of the dispute
The entryway and noise issues were the subject of the dispute, as Michael Sedoy and his wife, Natalia Shvachko, claimed that they bought two high-end condominiums in the building in part because JW Ventures promised them exclusive use of the entrance and elevator.
Nichols awarded the couple damages of nearly $1.3 million, ruling that the developer breached its deed with the couple because it granted the exclusive use in violation of land-use approvals.
Sedoy and Shvachko began making local headlines in 2013, when they began repeatedly making noise complaints to authorities about music from nearby restaurants and bars. The condos they bought for about $6.3 million in 2011 are on a stretch informally known as Restaurant Row. (For more on the noise-issue portion of the case, see Monday’s Aspen Daily News.)
Debbie Quinn, assistant city attorney, said the biggest victory stemming from the ruling is for the residents of the affordable housing units.
“They have been so patient,” said Quinn, who argued the city’s case at trial. “They’ve been traipsing through the ice and snow all these years, and that’s not the way the building was approved.”
The Aspen Daily News in 2012 first reported that the three tenants of the building’s second-floor affordable housing units were being told to use the rear entrance. The city sued the couple and JW Ventures in 2013, leading to a seven-day trial last year.
Nichols already ruled in the city’s favor regarding the elevator, finding that it must be made available for people with disabilities.
Last month, the affordable housing tenants were given keys to the front door of the east-side entryway, Quinn said. But doing so has triggered the alarm system installed by Sedoy and Shvachko.
Given Nichols’ ruling, Quinn said she would discuss with the other sides’ lawyers the disabling of the alarm and implementing other aspects of the required access.
“I’m going to tell [the tenants] that they are free to use their keys to go in and out the front door,” she said. “And they should try to use the elevator to see if it will stop on the second floor.”
Jared Goulet, a resident of one of the affordable units, called the decision fantastic. He said he and his neighbors respected Sedoy’s request that they use the alley entrance.
“We have to be good neighbors,” he said. “I just tried to be a diplomat and be a good neighbor.”
Still, the rear entrance is “super dangerous” in the wintertime, Goulet said, as the area is in perpetual shade.
Judge calls developer’s testimony ‘incredible’
Nichols’ ruling details the history of the building, the land-use approval process, and statements made by JW Venture principals, Sedoy and Shvachko, and city staff. Many of those parties also testified at trial.
From the start, JW Ventures’ architect, Charles Cunniffe, and land planner Sunny Vann represented to the city that the east entrance would be used to access the second and third floors, the ruling says.
This would make the development compatible with the Aspen Area Community Plan, according to the growth management application JW Ventures submitted in 2006.
“By integrating the affordable housing units with the project’s free-market residences, the proposed development reinforces and enhances a healthy social balance in the community,” the application says.
Aspen City Council in 2007 adopted an ordinance approving the proposed building, with numerous conditions. One of those was that JW Ventures’ building permit application include the language: “Accessibility and ADA requirements shall meet adopted building code requirements.”
Cunniffe submitted building plans that met the city code, which years ago incorporated the International Building Code (IBC), Nichols wrote.
“Cunniffe intended that all of the units within the building (except unit 101) would have access through the east entryway,” the ruling says. Unit 101 is the commercial space on the ground floor.
By December 2009, the building plans still conformed to the IBC, and JW Ventures received from the city certificates of occupancy for unit 101, the basement commercial space and the affordable housing units.
But around this time, the developer hired a survey-engineering firm to prepare a condominium map. Through this document, JW Ventures granted exclusive use of the east-side entry to whoever bought the free-market condos.
John Provine, a JW principal, testified he didn’t remember if he ever heard Cunniffe and Vann tell city staff that the affordable residences would have the same access as the free-market units.
“The court finds this testimony incredible,” Nichols wrote, adding that Vann and Cunniffe made these statements orally and in writing.
The condo map’s inclusion of the exclusive use violated a subdivision agreement between the city and JW Ventures because it did not adhere to the IBC. The developer had argued that Bendon’s approval of the condo map amended the city council ordinance approving the building.
Nichols disagreed, and said the injunction sought by the city will serve the public interest by enforcing the IBC’s accessibility requirements and “because employee housing will be integrated with free-market housing,” as called for in the Aspen Area Community Plan.
In awarding Sedoy and Shvachko $1,280,000, Nichols cited Dave Ritter, a real estate appraiser who testified for the couple. He testified that without the exclusive use, the value of the two units — which the couple combined into one — would decrease by that amount.
Quinn said she was happy for the affordable housing tenants and “that the city was able to enforce its land-use approval.” An attorney for the couple declined comment, and a message left with JW’s lawyer was not returned.
As for Goulet, he said he and his neighbors will be happy to avoid the alley from now on.
“All three of us have fallen back there,” he said. “It will be great to use the front door.”
chad@aspendailynews.com
