City looks to end Cooper Street suit |

City looks to end Cooper Street suit

Carolyn SackariasonThe Aspen TimesAspen, CO Colorado

ASPEN The Aspen City Council is poised to settle a legal dispute with the owners of the Cooper Street Pier building, an agreement that would require a low-cost restaurant or bar to permanently reside there.A settlement offer and proposed ordinance, which is scheduled to be discussed by council members Monday, contemplates a deed restriction on the property that would require the basement be a 1,800-square-foot bar, restaurant or brewery.The rent on the property can be no greater than 75 percent of the free-market rental for similar basement space in downtown Aspen and not greater than $50 per square foot for the first year. The other stipulation an unprecedented move in city regulations is that the prices for food charged by the business have to be within the third lowest of all restaurants in town.The price calculation, which will be determined by city officials, includes sit-down restaurants and excludes fast-food restaurants. The tenants menu would be measured separately for lunch and dinner, and prices would exclude alcohol, under terms of the settlement.If the business owner violates the pricing requirement and doesnt correct it within 10 days, the lease will be terminated, according to the covenants of the agreement.The city also is requiring that the business operate 44 weeks of the year and that it be open from 11 a.m. to 11 p.m., six days a week.City officials would be obligated to provide evidence of the amounts paid by commercial tenants in downtown Aspen in order to set the monthly lease rate.Under the covenants, rent would be increased every year equal to either the Consumer Price Index or by 5 percent, whichever is the smaller amount.The city also will require the building owners to make reasonable efforts to find a tenant who agrees to the covenants. That means circulating lease terms and information to local commercial real estate brokers and advertising in a local newspaper when the property is vacant. If the space is empty for more than six months, the city has the right to propose tenants, according to the settlement.In return, the City Council will allow the owners to subdivide the property and redevelop it into a mixed-use building. If they are granted approval, the building owners cant appeal, petition or legally challenge the ordinance, according to the settlement.As a trade-off, the settlement would include an increase in the square footage of the residential portion of the redeveloped building. In the original development application, a 2,008-square-foot free-market condo would have taken up the third and fourth floors. But under the settlement, the conversion of deck space would net 4,527 square feet for the condo on those floors.The basement portion of the building was recently occupied by Siamese Basil, a restaurant that has since closed. It was long occupied by Luccis, a popular Italian restaurant.As for the street-level space where Cooper Street Pier bar currently exists, that will become a retail store. The second floor will be used as commercial or office space, with a portion of it dedicated for the free-market condo, which will be three levels.City officials and lawyers at Garfield & Hecht PC have been in settlement discussions since the buildings owners filed the lawsuit in December. Those closed-door discussions have been facilitated by Judge William Neighbors of the Judicial Arbiters Group.The building owners have agreed on the proposed ordinance and settlement offer. It is up to the City Council to ratify it with a formal vote, which could take place during its regular meeting Monday.Andrew Hecht, his son, Nikos Hecht, Ron Garfield and Joshua Saslove, all of whom are principals in JS Cooper Street LLC, which owns the Cooper Street Pier building, sued City Hall after the council denied their application to subdivide the property. The lawsuit was filed in Pitkin County District Court. The settlement is with seven LLCs, which name Saslove, Garfield and both Hechts, as well as Robert Hurst and Robert Blank as managers of those corporations.The council voted 3-1 last November to deny the subdivision request. The redevelopment proposal had secured approval to demolish the existing three-story building and develop a four-story commercial and residential building, comprising 3,827 square feet of net leasable space divided between the basement, first and second floors. A free-market condo would have taken up the third and fourth floors. Garfield & Hecht argued that elected officials abused their discretion when they denied their plans to subdivide the property. City officials have denied those allegations.The lawsuit alleges that because the application was a request for subdivision approval, the City Council was limited on its review of the project and cant legally deny it on its merits related to land use. And because the council rejected the application based on land-use issues, it exceeded its jurisdiction and acted in an arbitrary and capricious manner, the lawsuit alleges.Council members who voted against the project said it didnt meet the goals of the Aspen Area Community Plan, a driving force in how land-use applications are reviewed and which addresses neighborhood capability, as well as community benefits. The lawsuit argues that the city of Aspen exceeded its jurisdiction because it denied the subdivision application based on design and employee-housing requirements, which is under the purview of the land-use code.Under the settlement, the building owners will have to pay hundreds of thousands of dollars in fees, including $14,210 as a cash-in-lieu payment for pedestrian amenities and $309,710.89 as a cash-in-lieu affordable-housing payment. There also are park development impact fees and school lands dedication

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