The Aspen Times reports…..An Aspen condominium association’s attempt to ban upper-floor marijuana dispensaries and other retail uses is being legally challenged by the owner of three of the downtown building’s commercial units, one of which houses a pot shop.
The condo association, however, maintains certain second-floor retailers aren’t compatible with the building’s third- and fourth-floor residential dwellers who expect a certain level of decorum.
Following unsuccessful mediation, the lawsuit by Douglas Tomkins against Aspenhof Condominium Association is the latest turn in a years-long disagreement between unit owners and the operators of certain retailers at 520 E. Cooper Ave. Known as the Aspenhof, the building comprises 10 residential units and nine commercial units.
The suit alleges the condo association is trying to force Tomkins, in his role as landlord, to evict the Best Day Ever pot dispensary, as well as a unit used as storage space for wine and other inventory owned by Betula Aspen restaurant.
Best Day Ever has had a lease for Suite 202 since April 2017, exercising its three-year option to stay there through March 31, 2023.
Betula has a five-year lease for Suite 2010 that expires June 30, 2023, according to the suit.
If Tomkins doesn’t evict both tenants, the suit alleges he will remain in violation of the condo association’s declaration amended Aug. 31 to ban pot shops and inventory storage, among other uses, on the building’s upper floors. The new rules don’t apply to the building’s basement level, which includes the marijuana dispensary Silverpeak Apothecary.
The association has noticed Tomkins three times since Aug. 31 that his tenants are violating building rules, and he faces fines of $50 a day for the first 10 days they are out of compliance, $100 a day for the next 10 days, and $250 a day after that, according to allegations in the suit.
Denver attorney Peter Bornstein, who filed the suit Dec. 11 in Pitkin County District Court, said Tomkins is in a tough spot. By evicting his tenants, he would be breaching their lease agreements. By keeping them in place, he’s running afoul of building rules.
“They changed these rules while the leases were in place,” he said of Aspenhof Condo Association.
Bornstein said the association rejected a proposal to grandfather in the two tenants.
“Making Tomkins evict these tenants is illegal,” he said.
The board’s stance is different. The majority of the condo owners support the prohibitions, and they have tried to work out the disagreement with Tomkins to no avail, according to a statement given to The Aspen Times on Saturday.
“The Aspenhof Board received repeated complaints from other owners concerning the activities of Mr. Tomkins’ second floor tenants, making it clear that those uses, in those locations, are not compatible with the other uses in the building,” the statement said. “The Board has attempted to address these issues with Mr. Tomkins for months. The Board is disappointed that Mr. Tomkins chose to cease negotiations and commence litigation, but it does not undermine the Board’s resolve, nor change the fact that that the overwhelming majority of the unit owners in Aspenhof supported the covenant amendments at issue.
“As they have been throughout, the Board and other owners remain reasonable and willing to discuss a compromise.”
When Best Day Ever sought the Local Licensing Authority’s approval of its application in May 2016 to sell recreation retail marijuana, opposition came from several Aspenhof unit owners. One of their concerns was there would be even more congregation on the second floor, which had become a hangout for patrons of neighboring head shop One Love Aspen Smokeshop & Oxygen Bar. Silverpeak’s owner at the time also said another pot dispensary in close proximity to the residential units would be to the detriment of the building’s character.
The LLA, however, approved the license because the building was zoned for retail marijuana and Best Day Ever’s applicant and owner, Michael Gurtman, met the criteria. If the condo association had a problem with Best Day Ever’s impact on the building, then it had the burden to address the issue, LLA members said.
“That’s more of a condo association problem,” LLA member Bill Murphy said at the time. “If they want rules, that’s up to them. We are judging whether the license should be granted based on the evidence we’ve got, based on whether the zoning is correct.”
The condo association appeared to have taken Murphy’s suggestion by amending its bylaws to say “no portion of a Commercial Unit shall be used for adult entertainment, tattoo parlors, hair or beauty salon, barbershop, cultivation of marijuana, or private marijuana clubs, and storage of any inventory, equipment or supplies used outside of the Unit. … Additionally, none of the commercial units located on the 2nd, 3rd or 4th floor may be used for marijuana sales.“
Contacted last week, Gurtman said he has no plans to move or close Best Day Ever while his lease remains valid. Tomkins could not be reached.