Basalt townhouse owner files suit against Arbor Park board | AspenTimes.com

Basalt townhouse owner files suit against Arbor Park board

Andre Salvail
The Aspen Times

In a lawsuit filed in late February, a Basalt woman alleges that she is the unfair target of her townhome association’s board, which has assessed more than $4,000 in fines, penalties and legal fees against her for having a roommate.

The suit, filed by attorneys for Stephanie Fitzpatrick, claims that the Arbor Park Townhomes Association board has been “motivated by personal animus” by imposing the fines, filing a lien and changing its occupancy policy in violation of the association’s rules.

“Fitzpatrick has suffered damages that are ongoing as a result of the association’s breach of fiduciary duty,” the complaint says. “The association has … intentionally and materially interfered with Fitzpatrick’s ability to enter into agreements with prospective roommates and tenants, preventing formation of a contract to lease her unit.”

Bruce Ross, president of the Arbor Park board, said he had not seen the suit and therefore could not comment on its details. He said the matter has been turned over to the board’s insurance company and also to its attorney, Jeffrey Conklin, of the law firm Karp Neu Hanlon in Glenwood Springs. Conklin could not be reached for comment Monday afternoon.

“Obviously, we would think (the suit) is invalid,” Ross said. “We have had a lot of problems enforcing our regulations with Ms. Fitzpatrick. This is a result of some of the actions we’ve taken to enforce our covenants and restrictions.”

The suit says that for six years, from August 2006 to August 2012, Fitzpatrick leased her unit but continued to live there. Her tenant had undivided leasehold interest, in accordance with association rules and use of the entire unit for its intended purposes as a single-family zoned residence. The town of Basalt’s municipal code defines a single-family residence as a single individual or two or more persons related by blood or marriage, but also as “a group of not more than three unrelated persons occupying the same dwelling unit.”

The tenancy was not hidden, with both the tenant and Fitzpatrick entering and exiting the unit under “normal, unhampered circumstances,” the suit states.

Then, in August 2012, Fitzpatrick’s tenant moved out, and two months later a friend of Fitzpatrick’s moved in. Fitzpatrick continued to reside there. As with the previous tenant, the roommate held an undivided leasehold interest and had use of the entire unit, according to the suit.

The document states that the board’s adopted association policy in March 2009 stipulates that units may not be occupied by more than two unrelated persons. Thus, the lawsuit says, Fitzpatrick and the roommate were living in accordance with association policy. The policy “was in effect at the time the roommate’s tenancy in Fitzpatrick’s unit began” in October 2012, the suit states.

Soon, the board began expressing a concern about the living arrangement, the lawsuit says. It quotes an email said to be from the board to Fitzpatrick: “Our rules do not permit a tenant while the owner is occupying.”

The next month, Fitzpatrick responded to the board’s inquiry.

“I have had ‘someone’ living downstairs since 2006, and that remains the same,” she wrote in an email. “The occupancy of my unit has been ‘2’ since 2006, that remains the same. I am a little surprised that I am being asked to explain my relationship to people who are living in my home. Why would it matter if that ‘someone’ is a roommate, a friend, a brother, a sister, a mother, a boyfriend, a husband, a child, a caretaker, a nanny, etc.??? This would be my business, not anyone else’s.”

In January 2013, the board amended its policy and limited a unit’s occupancy to cohabitating adults, legal dependants, blood relatives and occasional guests.

“Realizing the roommate did not violate the 2009 occupancy policy, the board decided to adopt a new occupancy policy targeted at Fitzpatrick and her roommate,” the lawsuit says. “The board adopted the 2013 amended occupancy policy in order to create a mechanism to impose fines on Fitzpatrick for alleged violations that the board knew it could not impose under the 2009 occupancy policy.”

The suit seeks an order that the 2013 occupancy policy violates the association’s declarations and state law. It asks for monetary damages and payment of costs and legal fees, as well as a judgment finding that the association’s actions amount to a breach of contract and illegal interference of existing and prospective contractual relationships.

asalvail@aspentimes.com


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