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Exclusive Access Fails Building Code in Aspen Condo Dispute

Sep 30, 2014

The building at the center of the dispute, at 308 East Hopkins in downtown Aspen. The entrance in question is on the right side of the building.
Credit Loopnet.com

This week, the city of Aspen is going toe to toe with a developer and townhouse owners, over access to a building downtown. The City requires builders to make sure they provide access for affordable housing tenants and people with disabilities. Now, town attorneys are arguing in court the developer JW Ventures and two of their condo owners failed those mandates…. by letting the condo owners keep everyone else from using the main entrance.

  Amy Robertson is a civil rights attorney in Denver. She works for the Civil Rights Education and Enforcement Center, and says she’s never seen a similar case to the one being tried in Aspen. It all comes down to free market tenants wanting exclusive access to the best door in the building… and creating access issues for everyone else.

According to Robertson, the developer initially met the requirements. “As far as the design and construct goes, JW ventures did what they were supposed to do," she says. "They provided access to the commercial parts of the building.” 

The remaining door and elevator, considered the "service entrance," available for affordable housing tenants and disabled patrons and visitors.
Credit Elise Thatcher

 For example, the company built a good entrance with an elevator, making it easy to get to all four floors, including two restaurants in the building. But then, “As landlord, they have participated in a policy and a legal maneuver, that now blocks people who use wheelchairs, from getting to certain parts of the commercial establishments. And that is, I think easy call: illegal under the title three Americans With Disabilities Act.”

In this case, JW Ventures let townhouse owners Natalia Shvachko and Michael Sedoy claim exclusive access to the main entrance… forcing restaurant patrons and affordable housing residents to use other far more difficult doors. In the case a judge is looking at whether the arrangement violated a city code, rather than federal law. But the Americans With Disabilities Act could come into play down the road. It’s not clear whether federal law would similarly instruct straightforward access for affordable housing tenants. Again, attorney Robertson.

Attorney Amy Robertson is with the Civil Rights Education and Enforcement Center.
Credit Creeclaw.org

“And I would argue, although this is so bizarre that I could not, I don’t believe, cite a case on this, but I would certainly argue that again the landlord of the affordable housing units would have the obligation to make a reasonable modification of policies and procedures to allow access.”

But, the developer may be in a pickle now on how to do that. In the court dispute, JW Ventures is at odds Shvachko and Sedoy, who also made headlines over a noise case during the last year.

They argue there’s an oral agreement with JW Ventures guaranteeing the exclusive access; so much so, they say it’s designed only to go right into their apartments. The City of Aspen hasn’t helped clear up all this. Years ago, officials approved initial plans with a variety of ways to get in and out of the building. Then, they later approved plans that restricted affordable housing access.

Senior Research Associate Robert Hickey is with the National Housing Conference.
Credit National Housing Conference

Reporter: Underlying all of this is the issue of wealth— and whether it can buy privacy. Robert Hickey is with the National housing Conference in Washington, DC. And he says there’s been a shift in multi use developments.

“More places are adopting these policies in very expensive places to build. And it’s not so much that then people that are unalike are bumping into each other, it’s that it can be with high land prices, really more economical, and there are strong incentives for the developer to maximize the amenities for the highest paying tenants.”

Like, say, promising exclusive access to an elevator…

“And to find a way to reduce overall costs, to make the mixed income building work. And it’s possible to cut corners and to create an egregious design that creates an upstairs downstairs kind of a building.” 

Civil rights attorney Amy Robertson plans to watch the Aspen case closely—including a detail that raises doubts about how genuine the developer has been all along. Court documents include an email describing Aspen’s Building inspector as being in a wheelchair and, quote, “has a personal agenda with handicap usage” unquote. Again, Amy Robertson.

Townhouse owner Natalia Shvachko speaks as a witness during a 2014 jury trial considering her neighbor, Aspen Brewing Company.
Credit Elise Thatcher

“And I was just deeply offended by the architect who would say in writing that he questions the motive of someone in the building department who’s in a wheelchair. That’s probably what will stick with me.”

The trial starts tomorrow, first in a Garfield County courtroom due to scheduling issues. Judge Gail Nichols has decided that so far it looks like the developer is failing city code… but there’s more to hammer out in court this week.