Pleading: APCHA, hearing officer didn’t give North 40 homeowners a fair shake
Aspen couple is appealing order to sell their home
Pitkin County District Court is the next step for a couple fighting to keep ownership of their single-family home in Aspen’s North 40 subdivision.
Cameron and Tricia McIntyre last week filed what’s called a Rule 106 challenge to a hearing officer’s order Sept. 12 to sell their deed-restricted, employee-housing after finding they were behind a limited liability company that owns a free-market townhome in Aspen that they have been renting out on a long-term basis.
Aspen and Montrose lawyer Michael Hoffman argued in the filing that the couple did not get a fair shake from the Aspen-Pitkin County Housing Authority, which issued the couple a notice of violation in March. As well, the filing said hearing officer Mick Ireland showed bias toward Tricia McIntyre during the hearing, which was spread over three dates in April and July.
“During the proceeding it was clear that the hearing officer was biased against the Plaintiffs. He adopted a prosecutorial approach toward Mrs. McIntyre, presumed her ‘guilt’ before documents and other information were offered into evidence and was repeatedly disrespectful to her,” the pleading said. “Neither the proceeding before the APCHA nor the hearing officer was fair and impartial as required by law.”
The couple also are appealing on the grounds that neither APCHA nor Ireland had the authority to order them to sell the house.
“There is nothing in the Deed Restriction that authorizes the APCHA Board of Directors to delegate its authority to a hearing officer,” the filing said. “There is nothing in the Deed Restriction that authorizes the APCHA Board of Directors, or its designee or delegate, to unilaterally order the sale of the deed restricted property in question.”
By siding with APCHA, Ireland found the couple to be in violation of the master deed restriction for the North 40 subdivision, which is a combination of 59 single-family residents and 13 townhomes next to the Aspen Airport Business Center.
The restriction prohibits North 40 homeowners from owning “alone or in conjunction with others, any other developed residential property in those portions of Eagle, Garfield, Gunnison or Pitkin counties, which are part of the Roaring Fork Drainage.”
Ireland’s order to sell the North 40 home was based partly on his determination that the McIntyres created a limited liability company called CMTR that was the deeded owner of a three-bedroom, three-bath townhome on Park Circle. The LLC bought the residence for $1.2 million in 2017.
The McIntyres have maintained the townhome was actually intended as a college graduation gift for their two sons, whose names are on the corporate papers for the LLC that owns the townhome.
Tricia McIntyre, a licensed property broker, helped rent out the home while the sons weren’t living there, but, “There is no evidence in the record that Mrs. McIntyre was not authorized to do those things on behalf of the LLC, that she was not entitled to a reimbursement of expenses, that she did not have express or apparent authority to do so, or that her actions on behalf of the LLC were not ratified by the LLC members to the extent, if any, necessary,” the appeal said.
Their appeal also said 1996 APCHA guidelines allowed the McIntyre children to own property in the Roaring Fork Valley. The North 40 project was approved under employee housing guidelines from 1996-97.
“Mrs. McIntyre relied on the language of the Deed Restriction and the 1996/1997 Guidelines when she: a. gifted to her children the moneys necessary to fund the LLC’s purchase of the Park Circle Property, b. caused the LLC to purchase the Park Circle Property, and c. managed the LLC and its real estate holdings (including the Park Circle Property) for the LLC for the benefit of her sons,” the appeal said.
APCHA also incorrectly alleged the LLC violated exclusion area prohibition and wrongly said the two brothers were subject to the prohibition, the appeal argued: “Family members of an owner of real property subject to the Deed Restriction are not subject to the Exclusion Area Prohibition.”
The appeal also said Ireland incorrectly stated APCHA was firm on making the McIntyres sell their North 40 property, there was not sufficient evidence to show that Tricia McIntyre was the alter ego of CMTR LLC, and evidence was lacking that showed Cameron McIntyre had any involvement and should not be punished.
For more information, read our previous coverage:
A family’s decision to cancel a wedding event at The Little Nell because of COVID-19 restrictions did not entitle them to a deposit refund of nearly $60,000.