Hunter Creek land swap might be void
November 29, 2007
ASPEN ” The homeowners at the Hunter Creek Condominiums complex in Aspen say there is no valid land-swap deal with nearby landowner Scott Hicks, calling into question whether a new home occupied by Hicks and his wife, Maureen Kinney, was built legally.
As a consequence, Hicks and Kinney might need to renegotiate with Hunter Creek for ownership of a parcel of land that once belonged to Hunter Creek but was traded to Hicks four years ago.
Attorneys for the Hunter Creek Commons Corp., which manages the complex for the homeowners association, recently filed documents with the Pitkin County District Court as part of a complicated lawsuit involving Hicks and Kinney, the Aspen-Pitkin County Housing Authority (APCHA) and Hunter Creek.
A key issue in the case is a land swap engineered by Hicks in 2002, as a way to give him clear title to enough land to build his 4,600-square-foot home at the corner of Spruce Street and Williams Way. The Hicks-Kinney property is about an acre of land, adjacent to the northern lot line of the Hunter Creek condos, some 5,600 square feet of which had been orphaned when Williams Way was built on an easement across the property in the early 1990s.
The Hunter Creek Commons Corp. owned another 5,600-square-foot parcel of land, also orphaned by the Williams Way easement, which abutted the larger remnant of Hicks’ land.
A city park easement covered the Hicks parcel, so he could not build on it. The condominium association’s parcel could not be developed by Hunter Creek under the city’s original approvals for the condo project.
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Hicks arranged to swap the parcels, leaving Hunter Creek essentially owning a city park and Hicks with enough land to move aside two historic cottages that formed the core of an earlier home, and begin development of his new house.
The lawsuit was initiated earlier this year by the housing office, which is seeking clarification as to whether Hicks and Kinney can use one of the historic cottages as their private guesthouse, or whether it should be added to the APCHA’s inventory of affordable housing units.
One of the cottages already is in the inventory, and the Hicks-Kinney house also carries an affordable-housing deed restriction. Hicks has argued that his obligations to the housing program are satisfied, and the remaining cottage should be his guest house to do with as he pleases.
But another aspect of the case could cast doubt as to whether Hicks’ and Kinney’s new home was built legally.
Court documents, filed recently by attorney Karl Hanlon on behalf of Hunter Creek, cite numerous irregularities in the original swap, including the lack of a formal vote of approval for the swap from the Hunter Creek condo owners, as the association’s charter requires.
In addition, the deeds to the two parcels have never formally been updated to reflect the trade, meaning neither Hicks nor Hunter Creek has title to the parcel each received under the provisions of the deal.
Finally, the land Hicks traded to Hunter Creek carries a Pitkin County deed restriction for affordable housing. Since many Hunter Creek owners are not county residents, the homeowners association might not legally own the parcel.
Bob Nix, a retired Illinois judge who has lived at Hunter Creek for several years and is a member of the association’s board of directors, initiated the investigations into the deal with Hicks.
“The whole deal is void,” Nix said of the five-year-old land swap, which originally was characterized as a “lot line adjustment” by city of Aspen officials who reviewed the deal as part of Hicks’ development applications.
“But even if it isn’t,” Nix continued, “there shouldn’t be unjust enrichment for Hicks.”
Nix and others have maintained that Hicks, who paid Hunter Creek approximately $26,800 as part of the trade, should have paid more given the potential value of the new Hicks-Kinney home.
Hicks, in previous articles about the matter, has maintained the deal was legal and above-board and that everyone involved gave it a green light at the time.
Nix, asked if the ultimate outcome of the suit could mean Hicks and Kinney could lose their home, said he did not think that was likely.
But if a judge agrees that the 2002 land swap is now void, it might mean Hicks and Kinney need to come up with more money to buy the Hunter Creek land.
“If the deal is rescinded, and Scott Hicks wants a deed, he makes an offer, and the [Hunter Creek Commons] board puts it to the homeowners,” Nix said. “I don’t think a court would make them tear the place down.”
He said the condo association has submitted to Hicks, through the respective attorneys, a proposed “fair market value” price tag for the roughly 5,600-square-foot parcel. He declined to say what that price is.