Aspen Highlands housing feud fuels legal threat |

Aspen Highlands housing feud fuels legal threat

Carolyn Sackariason
The Aspen Times
Aspen, CO Colorado

ASPEN ” A legal battle is brewing over who should live in employee housing units at the base of Aspen Highlands.

The Aspen-Pitkin County Housing Authority in January served a notice of violation to the Meyerstein Trust, alleging that the owners of 12 dorm units at Highlands are illegally renting out 63 beds.

At issue is whether those units are set aside for students of the Music Associates of Aspen (MAA) or if they can be rented to whomever the landowner decides. The units currently are being rented to employees of the St. Regis on a month-to-month basis.

The authority alleges that the owner is in breach of the original approval of the Aspen Highlands Base Village development, which was dependent on making the seasonal units available to the music students.

The notice of violation also alleges that the owner failed to have employees who live there qualify with the housing office and provide it copies of the leases.

Lance Cote, a lawyer representing the Meyerstein Trust, requested an enforcement hearing which took place March 5. The housing board voted to deny Cote’s appeal and a resolution reflecting that vote is expected to be approved this week at the board’s March 19 meeting.

Herb Klein, also representing the Meyerstein Trust, argued that even though his law firm requested the hearing, he doesn’t believe the housing board has the jurisdiction to interpret the contract in question and that his client has not violated any rules.

The hearing simply was an opportunity to discuss the issue in order to avoid litigation, Klein said. And if the board passes the resolution this week, Klein said he likely will sue the housing office.

After analyzing hundreds of pages of land use approval documents, the legal argument boils down to the word “may,” which refers to whether the MAA has first right of refusal to the units.

“We feel that the deed restriction, which is the last document in various land approvals … indicates that the final obligation is a permissive manner,” Klein said. “We think ‘may’ means ‘may’ and doesn’t mean ‘must.'”

Tom Smith, legal counsel to the housing authority, interprets it differently and has advised the housing board that “may” can be used in more than one sense and can mean what is “permitted,” what is “possible” or “shall.”

Black’s Law Dictionary states, “In dozens of cases, courts have held ‘may’ to be synonymous with ‘shall’ or ‘must’ in an effort to effectuate legislative intent.”

Julie Kieffer, qualifications specialist for the housing office, said it’s clearly documented that the Meyerstein Trust is required to rent their units to the MAA and that stipulation was dependent on the approval of the development.

“There is overwhelming documentation that these units are for the MAA,” Kieffer said, adding for the past three years, the housing office has not received any qualifying applications from tenants or their leases. “I didn’t know who they were leasing to.”

Once that information was provided, Kieffer said she realized the owners allegedly were in violation of the deed restrictions placed on the units not only because they are refusing them to the MAA but they also are charging more rent than what is allowed.

The MAA has been denied access to the Highlands units for the past two summers and will not be able to occupy them this year, further exacerbating the housing crunch the organization faces every year.

Klein said he doesn’t understand why the housing board favors out-of-town music students over local employees who face the same dismal housing situation.

“It’s shocking to us that they are asking us to displace employees who work here,” Klein said. “I would like to have a public debate about that.”

Kieffer agrees that the situation is unfortunate regardless of the final decision, which will likely be rendered by a judge.

“The St. Regis needs it and so does the MAA,” she said. “It’s not fair either way.”

Peter Thomas, counsel for the MAA, argued at the March 5 meeting that the Meyerstein Trust is refusing to honor the deed restriction, effectively ousting his clients from the dorm units, challenging the housing office’s authority and threatening to sue because of one sentence containing the word “may.”

He also argued that there is plenty of documentation that shows the intent was to set aside the units for the MAA in the summer, and during the winter the priority would be given to employees of Hines, the developer of Highlands’ base village, or Aspen Skiing Co. employees.

“We can talk about contracts and documents but what it all comes down to is that it was promised by the developer, by the county and by this board that the MAA could use these units in the summer,” Thomas said at the March 5 board meeting. “The [Meyerstein] Trust wants to break that promise and in doing so, break the public trust.”

The Meyerstein Trust bought 18 deed restricted condominiums from Hines at Aspen Highlands for $5.65 million in 2005. The trust also owns an apartment building at 909 E. Cooper Ave., which houses St. Regis employees. That property was purchased for $2.1 million in 2002.

Klein declined to reveal the identity of the individual behind the Meyerstein Trust or what his or her relationship is to the St. Regis.

Housing board member Ron Erickson, who made the motion to deny the appeal March 5, said the Meyerstein Trust is breaking the law and its lawyers are capitalizing on making a legal case.

“The intent was clear that the MAA has first right of refusal,” he said. “They have this by right, as far as I am concerned.”