Wealthy Aspen homeowners battle over 25-foot long sidewalk | AspenTimes.com

Wealthy Aspen homeowners battle over 25-foot long sidewalk

The former owner and developer of Base Village in Snowmass was ordered by a jury Friday night to pay $100,000 in actual damages and $50,000 in punitive damages to a neighboring homeowner at the base of Aspen Mountain.

Pat Smith and his Westpac Investments LLC were ordered after a five-day trial to pay the damages to Preston and Betty Henn in a case where both parties accused the other of trespass and nuisance.

The jury also awarded Westpac and Smith $1 in nominal damages in the long-running spat between neighbors.

The case pitted two wealthy and flashy entrepreneurs against each other over a 25-foot sidewalk. Henn, 84, made his fortune establishing the Fort Lauderdale Swap Shop, which features a giant indoor and outdoor flea market, amusement rides, video arcade and drive-in movies. He has a racecar collection that several online sources touted as unparalleled. He also was the first person to buy a Gulfstream G650.

Smith, a California developer, once headed the firm that bought Base Village, borrowed extensively and pursued development. The project stalled during the recession and Smith lost control of the property. Smith and Westpac retained ownership of a 4 bedroom, 4½ bathroom house slopeside at Aspen Mountain. Renters have access to all amenities offered by the luxurious Residences at Little Nell. The rate is advertised at $5,000 nightly during the ski season; $7,000 nightly during holidays.

The house has one apparent flaw. To get to the house, renters must take the elevator up the Residences at Little Nell, walk across a covered footbridge, then across a dirt and gravel path that’s in the Henns’ front yard. The footbridge ends at the edge of the Henns’ property. Smith’s property is another 25 feet away.

Westpac and Smith sued the Henns in 2009 trying to win the right to build a flagstone sidewalk with an underlying snowmelting system across the Henns’ front yard.

Pitkin County District Judge James Boyd granted a preliminary injunction in May 2010 that established that Westpac had the right to use the historic path. The path, used since 1959 by owners of slopeside property, was gravel and dirt. Smith wanted something fancier. Boyd hasn’t ruled on that request yet.

The Henns contend that Smith and Westpac tried to improve the pathway three times, in 2011, 2013 and 2014-15, contrary to the court’s order. They filed a counterclaim alleging trespass and nuisance.

Aspen attorney Matt Ferguson, whose firm represents the Henns, said his clients put up a fence for three months in 2009 to block Smith’s use of the path. However, he claimed they were willing to drop the fight and abide by the judge’s 2010 ruling.

“He didn’t want what the judge gave him. He wanted much more,” Ferguson said of Smith. “He kept suing, suing, suing.”

The Henns also sued. They appealed the ruling that Smith had a right to use the historic path to higher courts. It landed back in Pitkin County District Court.

Boyd determined before the trial that Westpac wasn’t eligible for actual damages and punitive damages for the Henns’ erection of the fence. As a result, the jury determined Westpac was entitled only to $1 for nominal damages on the trespass complaint against the Henns over the 2009 placement of the gate.

The Henns were awarded damages for Smith and Westpac’s repeated trespasses for building the unauthorized sidewalks on the lawn. The jury also determined that the Henns entered an agreement with Residences at Little Nell LLC that benefited Westpac as a third party. However, that settlement didn’t entitle Westpac to a flagstone sidewalk.

The Henns didn’t get all the damages wanted. Ferguson said they had requested $500,000 in damages as the trial opened. However, the case between the wealthy neighbors wasn’t just about money.

“I think it’s just old-fashioned, private-property rights,” Ferguson said.

Joe Krabacher, one of the attorneys for Westpac and Smith, declined to comment on the case.


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