Wienerstube owners hoping to win appeal in development lawsuit |

Wienerstube owners hoping to win appeal in development lawsuit

The owners of the Wienerstube building are looking to the Colorado Court of Appeals to overturn a local judge’s ruling that effectively tossed out their lawsuit against the city of Aspen over the denial of their development proposal.

633 Spring Street LLC, which is controlled by building owners Stephen Marcus, Andy Hecht and John Provine, last week filed a notice of appeal with the appellate court. The court document was filed by the group’s attorney, David Lenyo, who works at Garfield and Hecht PC.

Marcus said he and his partners are still discussing their next move in the courts.

“We’re just thinking about what to do,” he said.

They have 45 days from the notice being filed to submit a formal appeal, said City Attorney John Worcester.

“They are putting the court and us on notice that they are going to appeal,” he said, adding the case could take up to a year to be resolved.

Judge Gail Nichols of Pitkin County District Court on June 3 denied their request to void the Aspen City Council’s 2008 decision to deny the redevelopment project. Nichols also shot down the lawsuit’s request to grant subdivision approval so the Wienerstube building at 307 S. Spring St. – at the corner of Hyman Avenue and Spring Street – can be redeveloped by separate owners.

The council voted 3-0 in March 2008 to deny a subdivision approval for the 18,000-square-foot property. The Wienerstube’s land-use plan called for redeveloping the property into a 47,000-square-foot complex that would house the Wienerstube restaurant for at least 10 years, Ajax Bike and Sport, and four or five smaller affordable commercial spaces that would have faced the alley. The 12 affordable housing units and six free-market condos would have been on the upper levels, along with additional commercial and office space.

Council members said their primary reason for the denial was the three-story building was out of character with the area and was too tall.

While developers said the project meets city regulations, the council said it didn’t meet the guidelines set forth in the Aspen Area Community Plan (AACP), a driving force behind the land-use code that guides how a development should fit in with a neighborhood.

The lawsuit argued that the AACP is an advisory document and not regulatory. The lawsuit alleged that because the application in question was a request for subdivision approval, the City Council was limited on its review of the project and couldn’t 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 alleged.

Nichols refuted that argument in her 36-page order, agreeing with the city that subdivision approval hinged largely on the AACP, which is a regulatory document.

She also ruled that the City Council properly denied the subdivision application because the proposed project would adversely affect future development in that surrounding building owners would ask for taller and bigger structures.

Nichols, who is familiar with development issues relating to the city of Aspen and the AACP, said the council was right to deny the Wienerstube proposal.

Whether the higher court will agree remains to be seen.

“I hope the court of appeals spends as much time as the district court did in understanding the issues in Aspen and what’s involved in this case,” Worcester said.

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