Joint resolution: Aspen pot shop, HOA close to settlement deal

Parties embroiled in a court fight over an Aspen building’s commercial uses are favoring a peace pipe over litigation.

A settlement in a months-long lawsuit will allow two commercial spaces to remain occupied by both a marijuana dispensary and a restaurant’s storage space until their respective leases expire March 31, 2023, and June 30, 2023.

“There remains a small risk that the Settlement Agreement does not finalize, but at this moment, the HOA Board is confident the hurdles will be met,” Scott Zodin said Tuesday in an email.

Zodin is president of the Aspenhof Condominium Association’s board of directors, who govern the downtown building at 520 E. Cooper Ave.

Though the agreement is not official, it came up at a Local Licensing Authority meeting Tuesday, which was unrelated to the litigation but instead concerned Best Day Ever’s application to renew its marijuana license pending before the volunteer board. The hearing, however, was canceled because the sole party opposing the license’s renewal — Aspenhof Condominium Association — withdrew its objection as part of its lawsuit settlement agreement.

“The previous objectors have withdrawn their objections and are not present here to further object to the renewal,“ city attorney Jim True told the LLA members.

The agreement keeps the pot shop at its current address for the duration of its lease, said attorney Andrea Bryan, speaking on behalf of Osiris LLC, the corporate identity of Best Day Ever, and its CEO and founder, Michael Gurtman.

With no other opposition, the board unanimously renewed the license.

“I can confirm what I stated in the hearing this morning, which is that a settlement has been reached pursuant to which Aspenhof withdrew its complaints and Osiris will be permitted to stay in its space until March 31, 2023,” Bryan said in an email. “Beyond that I cannot comment on the terms at this time.”

The Aspenhof building’s second floor is where Best Day Ever has operated from since 2017, and also where Betula Aspen leases a unit to store wine and other restaurant inventory.

The building’s upper-level space comprises nine residential and 10 commercial units, and the majority of their owners have said the pot shop isn’t compatible because of its noise, crowds and other issues. Betula’s use also is disruptive due to the constant transport of rattling glasses, bottles and other items, neighbors on the third and fourth floors have said.

The condo association upped its opposition to the tenants in August 2020 by adding a second-floor ban on pot shops and inventory storage to the building’s bylaws. Soon after the association, intent that the bans took immediate effect, began notifying landlord Douglas Tomkins that it was time to evict Best Day Ever and Betula or he would face $500 in daily fines.

After failed mediation talks, Tomkins sued the condo association in December on multiple grounds, the essence of his suit that Aspenhof singled out the two businesses and could not retroactively enforce a ban.

Osiris joined the lawsuit March 30 as an intervenor and made claims against Aspenhof for tortious interference with contract and tortious interference with a prospective business advantage.

As well, Aspenhof counter-sued and most recently was trying to add Betula as a defendant.

In a telephone call, Zodin said the condo association isn’t “a bunch of ogres” with a vendetta against either business. They simply don’t mesh with the upper floors of the building, which also has another pot shop in its basement space, he said.

The agreement also includes the waiver of all fines Aspenhof levied against Tomkins, Zodin said. The mounting fines were on pace to hit $500,000, Tomkins’ attorney Peter Bornstein argued in court filings.

The agreement also means that Aspenhof’s ban will be in full effect once the unwanted tenants leave in 2023.

“I can report that the Settlement provides compensation to the HOA in excess of its legal fees incurred, a date certain the tenants will vacate the property, and a legal affirmation of the Aspenhof’s Amended and Restated Declarations,” Zodin’s email said.

Zodin also expressed appreciation that the matter is close to settlement.

“The Board is grateful to (unit owner) Bill Guth and Doug Tomkins for working with us on finding a mutually acceptable compromise, and looks forward to permanently settling this matter in early August,” the email said.

The lawsuit is on file in Pitkin County District Court.