DISTRICT COURT, PARK COUNTY, COLORADO
Park County District Court
300 4th Street
Fairplay, CO  80440
Telephone:        719-836-2940

Petitioner:

WILL-O-WISP METROPOLITAN DISTRICT, a quasi-municipal corporation of the State of Colorado

Respondents:

MAGNESS LAND HOLDINGS LLC, a Colorado limited liability company; NORTH FORK ASSOCIATES, a limited partnership; WOODSIDE LTD, a Colorado corporation; WOODSIDE PARK UNIT 5 HOMEOWNERS’ ASSOCIATION, a/k/a WOODSIDE PARK UNITS 5 AND 6 HOMEOWNERS’ ASSOCIATION, a Colorado non-profit corporation; and MICHELLE A. MILLER, in her official capacity as Treasurer of Park County.

Attorneys for Respondent Woodside Park Units 5 and 6 Homeowners’ Association:

Kenneth K. Skogg, #17053
Karen L. Brody, #27215
Lowe, Fell & Skogg, LLC
370 Seventeenth Street, Suite 4900
Denver, Colorado  80202

Phone Number:            (720) 359-8200

Fax Number:                (720) 359-8201

E-mail:                          kskogg@lfslaw.com

Michael C. Schaefer, #3421
500 Meadow Drive
Pine, Colorado  80470

Phone Number:            303-337-6969

Fax Number:                303-838-6068

   COURT USE ONLY   

 

Case Number:  06CV320

 

Division:           B

RESPONDENT WOODSIDE PARK UNIT 5 HOMEOWNERS’ ASSOCIATION’S REPLY IN SUPPORT OF MOTION TO DISMISS the Petition in condemnation, REquest for an Award of Attorneys’ fees and costs under c.R.S. 38-1-122 AND REQUEST FOR EVIDENTIARY HEARING

Respondent Woodside Park Units 5 and 6 Homeowners’ Association (the “HOA”), by its attorneys, Lowe, Fell & Skogg, LLC and Michael C. Schaefer submit the following reply in support of its motion to dismiss Petitioner’s condemnation petition, request for an award of attorneys’ fees as permitted under C.R.S. 38-1-122 of the Colorado eminent domain statute and request for an evidentiary hearing under C.R.C.P. 121 1-15(4).  

I.                   INTRODUCTION

Petitioner Will-O-Wisp Metropolitan District’s (the “District”) vitriolic response to the HOA’s motion to dismiss is an attempt to divert attention from the fundamental issue before the Court – that the District filed this action without the right or power to condemn the specific property identified in the Petition in Condemnation in the first place.  Because the District did not have the right to condemn a portion of Lot 134 in order to divert water from the Glasmann Ditch, the Petition should be dismissed, not amended.  The District should not be permitted to correct an improper and improvidently filed condemnation petition by amending the petition to acquire completely different property from new landowners, particularly when the District knew before filing this action that it was condemning the wrong property.   Allowing the District to do so would reward a condemning authority that has abused the power of eminent domain, and deny the Respondents the only real protection that they have under the Colorado eminent domain statute against such abuse – the right to be reimbursed for their attorneys’ fees and costs under C.R.S.  38-1-122 because the District lacked the power to condemn the property identified in its petition.  

All of the District’s arguments and accusations do not change the fact that before filing this condemnation, the District knew that it did not have a clear and undisputed legal right to divert water from the Glasmann Ditch at the location on which it relied in its condemnation Petition.  Instead of complying with its legal duty to fully investigate the point of diversion and to ensure that the Colorado Water Division – the entity responsible for administering the point of diversion – agreed with its position, the District opted to “take a flier” at the Respondents’ expense.  The District filed this action based on a fabricated point of diversion.  Cloaking itself in the power of eminent domain, and arguing to this Court that it is entitled to complete deference, the District tried to push its case through, knowing that once it obtained immediate possession, the Respondents would face an uphill battle to further challenge the project.  When the Court questioned the District’s “historic” point of diversion argument and refused to rubber-stamp the District’s request to proceed with this condemnation, the District attempted to hide what it had done by claiming that the Water Division had changed its position, requiring the District to rely on the point of diversion that the Respondents contended was the true point of diversion all along.

Under these circumstances, it would be patently unfair to allow the District to amend its condemnation Petition.  Instead, the Petition should be dismissed because the District could not and cannot satisfy the legal prerequisites to exercising the power to condemn the specific property identified in the pending Petition and the HOA should be awarded its attorneys’ fees and costs incurred in defending against this improperly filed action.  

II.                ARGUMENT

A.        The Petition should be Dismissed because the District Failed to Establish that it Had the Right to Condemn the Property Identified in the Petition

In order to exercise the power of eminent domain, a condemning authority must first prove, inter alia, that a proper public purpose is being served by the acquisition of the property and that the condemning authority has the prerequisite legal authority to condemn the subject property.  Denver W. Metro. Dist. v. Geudner, 786 P.2d 434, 436 (Colo. App. 1989); Bd. of Comm’rs v. Intermountain Rural Elec. Assoc., 655 P.2d 831, 833 (Colo. 1982).   The condemning authority bears the burden of proof on each of legal prerequisite to exercising its power and cannot proceed with a condemnation without demonstrating that each prerequisite has been satisfied.  The District has not demonstrated (and cannot demonstrate) to this Court that it had the legal right to condemn the property before commencing this action.   Consequently, the pending Petition in Condemnation should be dismissed, not amended. 

The District represented to this Court in its condemnation Petition that it had the right and power to condemn a portion of Lot 134 and that the taking was for a public purpose.  See Petition in Condemnation,  2-5.  The Court held a hearing on May 8, 2007 to address these issues at which the District bore the burden of demonstrating that it had satisfied all of the legal prerequisites to exercising the power of eminent domain.  At the conclusion of the hearing, the Court found that the District had not met its burden.  The Court refused to find that the District had the power to condemn a portion of Lot 134 and was condemning that land for a public purpose because the District had not sufficiently established that the point of diversion for the Glasmann Ditch existed on that property.  The Court directed the District to return with more persuasive evidence that established the location of the point of diversion on which it relied. 

The District never provided the Court with the evidence requested because no such evidence exists.  Days after the May 8, 2007 immediate possession hearing, on May 18, the District wrote a letter to David Nettles, Assistant Division Engineer for the Colorado Water Division and responsible for administering water rights and points of diversion, trying to convince him of the validity of its claimed historic point of diversion.  See Exhibit G to the HOA’s Response to Motion to Amend Petition in Condemnation, Motion to Dismiss Petition in Condemnation and Request for Award of Attorneys’ Fees and Costs Under C.R.S. 38-1-122 (referred to hereinafter as the “Motion to Dismiss”).  When Mr. Nettles had the opportunity to review all of the relevant information, including the same information provided by the HOA in December 2006, before the commencement of this condemnation, to the Park County Board of County Commissioners at the District’s 1041 hearing (and to this Court in the HOA’s motion to dismiss), Mr. Nettles rejected the District’s “historic” point of diversion and concluded that the point of diversion for the Glasmann Ditch would be administered on Lot 133, the location where the Respondents contended the point of diversion was located before the filing of this lawsuit.  See Exhibit I to Motion to Dismiss.  In short, the state regulatory agency responsible for administering the point of diversion for the Glasmann Ditch made clear to the District that based on all of the historical information available about the point of diversion – information that the District without question had in its possession before asking this Court to condemn a portion of Lot 134 – no point of diversion existed on Lot 134 and the District had no right to divert water from the location on which it based its condemnation Petition.

As the HOA addressed at the May 8 hearing, in order to condemn on Lot 134, the District had to prove that the taking is for a public purpose.  When a condemnation has not been initiated for public use, the action must be dismissed.  Geudner, 786 P.2d at 436.  Under Colorado law, “[w]hether a contemplated use is a public use is an issue for judicial determination.”  Silver Dollar Metro. Dist. v. Goltra, 66 P.3d 170, 174 (Colo. App. 2002) (citing Pub. Serv. Co. v. Shaklee, 784 P.2d 314 (Colo. 1989)).  No single definition of public use exists under Colorado law applicable to all eminent domain actions.  Goltra, 66 P.3d at 174.  In considering the issue of public use, Colorado courts have found that when a condemning authority is unable to obtain approval to proceed with its project in the manner specified in its condemnation petition, a court may properly find that the taking is not for a public use because the condemnor will be precluded from making any use of the property condemned.  Id. 

It is undeniable that the District has no legal right to proceed with its condemnation project as requested in its original Petition in Condemnation.  The Petition seeks to condemn a portion of Lot 134 in order to divert water from the Glasmann Ditch.  The Colorado Water Division will not allow the District to divert water from this location and has found that the District has no legal right to do so.  Without state approval, the District cannot make any use of the portion of Lot 134 that it seeks to condemn in its Petition.  Under Goltra, the District’s inability to proceed with its project as conceived and to obtain required approvals from the Water Division demonstrates a lack of public use for the condemnation.  As a result, the Petition should be dismissed and the District required to re-file a new action.

B.        The District Has Never Provided this Court with Actual Proof of the Location of the Point of Diversion

As a threshold matter, it is simply astounding that the District has attacked the HOA so fervently when the District has never provided this Court or anyone else for that matter with an actual, professional, independent, legal survey demonstrating that the point of diversion is located on Lot 134 as the District claims.  If the District believes so strongly that the point of diversion is located on Lot 134, and that it has the right to divest the Respondents of their private property rights based on this location, one would think that the District would have obtained a legal survey establishing its position. 

The District went through the effort of preparing and filing a 1041 application relying on a Lot 134 point of diversion, and has appeared on more than one occasion before the Park County Board of County Commissioners pleading its case.  The District went through the trouble of filing this action almost one year ago relying on a Lot 134 point of diversion.  The District then expended significant energy on May 8 telling this Court that it needed to condemn a portion of Lot 134 and that it had the right to do so and has filed more than one brief touting its position.  The District then went to great lengths to try to convince the Colorado Water Division that the point of diversion was located on Lot 134.  Notwithstanding the time that has passed, the resources expended and the representations made, the District still has never brought forth a survey demonstrating that its position is correct and that the point of diversion is located on Lot 134. 

Instead, the District now feigns complete innocence, writes the Water Division’s position off as a mere “difference of opinion” and asks this Court to believe that based on its exchange of letters with Mr. Nettles it is now willing to abandon all of its prior efforts and move the point of diversion.  The District’s quick “about-face” in light of Mr. Nettles’s position does not demonstrate a desire to compromise and accommodate over a difference of opinion.  The District got caught by the Court, the Water Division and the Respondents.  Its swift retreat and request to amend the Petition can only be interpreted as an attempt to avoid the consequences of its improper conduct. 

C.        The District Clearly Knew that the Adjudicated and Legal Point of Diversion did not exist on Lot 134 Before Filing this Action; Consequently, the District Acted in Bad Faith in Proceeding with this Condemnation

The District claims that it could not possibly have known that it had the point of diversion for the Glasmann Ditch wrong because locating the point of diversion in 2007 is fraught with difficulties and subject to multiple interpretations.  The District accuses the HOA and its counsel of effectively violating ethical obligations by making “wild and unsupported claims of bad faith and deception against a governmental entity seeking to construct a project for proper public purposes.”  It is the District, not the HOA, that has crossed the line.   The District unequivocally knew that the point of diversion for the Glasmann Ditch was not on Lot 134 before filing this action and its feigned innocence is unsupported by the facts.

The District is presently a defendant in litigation in water court with Drayton and Vera Dunwody relating to its claimed ownership of Glasmann Ditch water rights, captioned Drayton Dunwody & Vera Dunwody v. Will-O-Wisp Metropolitan District, Case No. 07-CW-045.  See Affidavit of Vera Dunwody,  2, attached hereto as Exhibit 1.  In that litigation, the parties have disclosed various documents in their respective files relating to the issues in the case.  Exhibit 1, 8.  On October 5, 2007, the Dunwodys reviewed the District’s disclosure documents.  Exhibit 1,  8.  In that disclosure, the District provided a copy of documents that it had received as part of its due diligence process when it allegedly purchased its Glasmann Ditch water rights in 2002, four years before filing this condemnation.  Exhibit 1,  8.  The due diligence documents included a survey relating to the Glasmann Ditch. Exhibit 1,  8.  As page 2 of the survey document identifies, this survey is dated August 11, 1981.  Exhibit 1, 8.  Page 3 of the survey identifies that the point of diversion for the Glasmann Ditch is located on Lot 133 of the Woodside subdivision.  Exhibit 1,  10.  In short, historic documents from the District’s own files establish that the District knew that there had been a survey in 1981 of the Glasmann Ditch showing the point of diversion located on Lot 133, not on Lot 134 as claimed in this condemnation.

Not only did the District know that Lot 134 was not the true location of the point of diversion, the District has taken affirmative steps to conceal the location.  As acknowledged in the District’s response, on December 6, 2006, the District presented testimony to the Park County Board of County Commissioners for its 1041 permit application.  The District contended at that hearing that the location of the point of diversion was on Lot 134.  The Park County Commissioners asked Roger Mlodzik, Water Commissioner for District 80, the district in which the Glasmann Ditch is located, whether he would administer the diversion of water from the Glasmann Ditch on behalf of the District at this location.  Exhibit 1,  4.  Mr. Mlodzik testified that he would administer diversion of water at that location based on the fact that he had located it using the legal description for the point of diversion and a Global Positioning System (“GPS”) marking that he had performed.  Exhibit 1,  4.

At the conclusion of that meeting, the Dunwodys asked Mr. Mlodzik to explain the basis for his conclusion that the point of diversion was located on Lot 134.  Exhibit 1  5.  The Dunwodys advised him that they believed that based on their knowledge of the Glasmann Ditch, the point of diversion was not located on Lot 134.  Exhibit 1,  5.  The Dunwodys specifically asked Mr. Mlodzik to tell them the location of his starting point for conducting his GPS marking.  Exhibit 1,  5.  Mr. Mlodzik told them that he stood at the location that Richard Toussaint, the attorney for the District, directed him to stand in order to conduct his GPS measurement and advised her that he is not a surveyor.  Exhibit 1,  6. 

Mr. Mlodzik also told the Dunwodys that in 1984, when he was the new water commissioner for District 80, he believed that the point of diversion for the Glasmann Ditch was located on property known as Elk Falls Ranch, not on Lot 134.  Exhibit 1,  7.  Mr. Mlodzik then advised them that subsequently, Mr. Toussaint told him that the point of diversion was on Lot 134 and that his original assumption was incorrect.  Exhibit 1,  7.  Mr. Mlodzik stated that he then changed the state records to show that the point of diversion was located on Lot 134.   Exhibit 1,  7.

The District’s concealment relating to the true point of diversion for the Glasmann Ditch is particularly evident from the exchange of letters in May 2007 between Lee Johnson, one of the District’s attorneys, Mr. Nettles of the Colorado Water Division and Robert Trout, water attorney for Mr. and Mrs. Dunwody.  This exchange is discussed at length in the HOA’s Motion to Dismiss and will not be repeated here.  See  Motion to Dismiss, pp. 19-21.  This exchange demonstrates that the District provided the Colorado Water Division with incomplete information in an effort to gain approval for its claimed point of diversion, and that when the Water Division was provided with full facts, rejected the District’s position. 

The arguments and new evidence included in the District’s response to the HOA’s motion to dismiss does not help its case. 

The District claims that the fact that it disclosed Lot 134 as the point of diversion in its June 2006 1041 application unequivocally establishes that it did not know the true point of diversion prior to commencing this condemnation.  The fact that the District may have disclosed Lot 134 as the location of the point of diversion in its 1041 application says nothing about what the District actually knew before filing this action and does not refute any of the evidence presented by the Respondents in this case that the District knew that the true point of diversion for the Glasmann Ditch could not possibly be located on Lot 134. 

The District’s new evidence in the form of an affidavit from Ken Salser, a former Water Commissioner, is particularly unpersuasive.  In the first instance, the District offers no explanation as to why this evidence was not presented to the Court at the May 8 hearing or in any of the District’s briefs in this case.   If the District truly believed that this was such important and valid evidence, it would have been made a cornerstone of its case much earlier.   

More importantly, Mr. Salser’s testimony is completely inconsistent with State of Colorado’s records for Water District 80 relating to the point of diversion for the Glasmann Ditch and with the District’s own prior testimony. 

Mr. Salser states in his affidavit that the Glasmann Ditch was “pointed out” to him in 1975 and that he saw the point of diversion in 1975 and that it was located on Lot 134.  See Petitioner’s Verified Combined Reply to Respondents’ Responses to Petitioner’s Motion to File Amended Petition Together With Petitioner’s Response to Respondent Woodside’s Motion to Dismiss Petition in Condemnation and Request for Attorneys’ fee and Costs (referred to hereinafter as the “Response to Motion to Dismiss”), pp. 14-15.  Mr. Salser also states that he administered the Glasmann Ditch Water from that location from 1975 until his retirement in 1990.  See Response to Motion to Dismiss, pp. 14-15.  The District claims in its response that based on the best information that it had available at the time of filing its 1041 application, the District determined that the point of diversion was located on Lot 134, where a headgate and flume had existed for many years.  See Response to Motion to Dismiss, pp. 14-15.  The District further represents that Mr. Salser confirms that this diversion point existed even before 1975 and was used by him to administer water rights.  See Response to Motion to Dismiss, pp. 14-15. 

The State of Colorado Water Engineer’s public records for Water District 80, attached hereto as Exhibit 2, show that the headgate (i.e., point of diversion) for the Glasmann Ditch was washed out in 1973 and 1974.  As the myriad of historic photographs provided by the HOA in its motion to dismiss demonstrates, there is no evidence of any headgate located on Lot 134.  See Motion to Dismiss, pp. 12-14.  If the official state records for the Glasmann Ditch show that the headgate or point of diversion was washed out in the 1973-1974 timeframe, how could Mr. Salser have possibly been administering a water right on Lot 134 as he contends in his affidavit?

The inconsistency of Mr. Salser’s testimony is further demonstrated when compared with Mr. Mlodzik’s representations.  As set forth above, in December 2006, in conjunction with the public hearing held on the District’s 1041 application, Mr. Mlodzik represented that he mistakenly administered the Glasmann ditch water right in Elk Falls Ranch and then was advised that the point of diversion was located on Lot 134.  Yet in its response, the District contends that Mr. Salser advised Mr. Mlodzik in 1989, when he first was appointed Water Commissioner for District 80, that the point of diversion was located on Lot 134.   See Response to Motion to Dismiss, pp. 15-16. 

The District disingenuously characterizes the circumstances surrounding the point of diversion as nothing more than a disagreement over a “100-foot net difference in location” and suggests that reasonable minds could easily adopt either party’s position.  See Response to Motion to Dismiss, p. 2, 16.  This is not the case.  First and foremost, the parties are not in disagreement over only a 100-foot net difference in location as the District claims.  The point of diversion claimed by the District is over 300 feet away from the true point of diversion for the Glasmann Ditch, as was established at the May 8 hearing.  While it is true that Mr. Nettles, in his May 25, 2007 correspondence to the District stated that when the exact location of a point of diversion is not completely clear, the state will allow the owner of a conditional water right to divert from a stream at any point falling within 200 feet of the decreed location, he also concluded that the decreed point of diversion is 300 feet from the location claimed by the District (and rejected by the Division of Water Resources.).   See Exhibit I to Motion to Dismiss. 

Moreover, the District has known for years that the point of diversion was not located on Lot 134.  With this knowledge, the District has taken steps to not disclose the true point of diversion from the Park County Board of County Commissioners, this Court and the State Division of Water resources and then improperly filed a lawsuit and attempted to divest landowners of private property rights.  Under these circumstances, dismissal of the District’s Petition is warranted.

D.         The District Misrepresents the Law Relating to Dismissal

The District argues at length that Cucharas Sanitation & Water District v. C.J. Mounsey, 805 P.2d 1177 (Colo. App. 1990) is “on all fours with this case,” and requires that the Court allow amendment of the Petition.  See Response to Motion to Dismiss, pp. 5-7.  The District’s continued and heavy reliance on this case defies logic because the case does not, in any manner, address the any of the actual facts or legal issues before the Court.  

In Cucharas, a special district filed an action to condemn a portion of ranch property.  In the condemnation petition, the district pled that it had the authority to condemn private property for a sewage treatment facilities and to acquire rights-of-way for sewer lines.  Cucharas, 805 P.2d at 1178.  The District did not, however, actually seek to condemn any easements in its petition, and did not include the legal description for easements in its petition.  Id.  The landowners filed a motion for summary judgment to dismiss the condemnation petition because the district had failed to include a claim for the taking of easements.  Id. at 1178-79.  The trial court granted the motion and awarded the landowners their attorneys’ fees under C.R.S.  38-1-122.   Id. at 1179.  The Colorado Court of Appeals reversed finding that the district should have been permitted to join its easement claims under C.R.S. 38-1-104.  Id. at 1179-80.  Because the court found that summary judgment should not have been granted, the court also concluded that the trial court had improperly awarded the landowner its attorneys’ fees.  Id. at 1180. 

The issue raised in Cucharas, completely overlooked by the District, is whether the trial court erred in dismissing a condemnation petition solely because the condemnor failed to include a claim for an easement in addition to a claim for land in fee in its condemnation petition.  Id. Cucharas is a case analyzing the mandatory joinder of claims in a condemnation action, nothing more.  The case analyzes whether a condemning authority’s failure to include all of the interests that it might require from a landowner in a single action is a basis for dismissing a condemnation petition.  Id. at 1179-80.  The trial court found that the district’s failure to include the easements in the condemnation action was a fatal error requiring dismissal of the petition.  The Court of Appeals disagreed, finding that the district was not required to join all of technical infirmity was not a basis for dismissing the petition; rather, the district should have been permitted to amend and the landowner, therefore, should not have been awarded attorneys’ fees under C.R.S. 38-1-122.   Id. at 1179-80. 

There is no similarity between the instant action and Cucharas, and the District’s contention to the contrary is difficult to comprehend.  This is not a case concerning the mandatory joinder of claims in which the District merely forgot to include a claim for easements in its Petition in Condemnation, nor is this a case where the District clearly had the legal right to condemn the property in question before filing its condemnation action.  Here, the District had specific knowledge that the location of the point of diversion for the Glasmann Ditch was not on Lot 134 yet filed a condemnation action based on this point of diversion.  Unlike in Cucharas, the District commenced a condemnation without having a public purpose for doing so as the Division of Water Resources’ position has made clear.  The District without dispute has no present right to divert water from Lot 134 (based on the Water Division’s determination), and, therefore, cannot make use of the property sought in its condemnation Petition.  The District had every opportunity before filing this action to ensure that the Colorado Water Division agreed with its position on the point of diversion before filing this lawsuit and expending the resources of both the Court and the Respondents.   Instead, the District filed this action, required both the Court and the Respondents to spend time and effort on the case, and then attempted, unsuccessfully, to secure the approval needed for the point of diversion from the Water Division.

Contrary to the Districts’ assertion, the most analogous case to the issues before the Court is Akin v. Four Corners Encampment, Case No. 05CA1228, 2007 WL 1150450, at *1 Colo. App. April 19, 2007).  The case identifies the limits of a condemning authority’s right to amend a condemnation petition.  Under Akin, leave to amend a condemnation petition may be denied when a condemning authority is dilatory, ignores information that challenges its authority to condemn and unnecessarily causes landowners to incur significant expenses in litigation.  Akin, 2007 WL 1150450, at *6-7.  As set forth above, the District’s conduct in this action rises to the level of that on which the Akin court relied to deny amendment of a condemnation petition.  Accordingly, the proper remedy is dismissal, not amendment of the Petition.

E.          The HOA Will Suffer Significant Prejudice if Amendment is Permitted

The District’s assertion that the HOA will not be harmed by amendment of the Petition is disingenuous at best.  As the District is well aware, if permitted to amend the HOA will be denied its right to recover attorneys’ fees and costs under C.R.S. 38-1-122, which is the only protection with teeth that landowners have against improperly filed condemnation actions.

C.R.S. 38-1-122 requires that if a petitioner is not unauthorized by law to acquire real property or interests sought in a condemnation action, the court shall award reasonable attorneys’ fees, in addition to any other costs assessed, to the property owner who participated in the proceedings.  C.R.S. 38-1-122.  The clear purpose of this statute is to protect landowners from the very type of conduct engaged in by the District in this action – being hauled into court without fault by a governmental authority that did not have the right to condemn the property interests at issue in the first place.  

None of the Respondents in this action asked to be here, nor did they engage in any affirmative conduct that gave them notice that the District could file a lawsuit against them.   While any property owner might anticipate the possibility of a condemnation, a property owner has every right to expect that governmental entities will only exercise this extraordinary power when absolutely necessary, for a public purpose and only when the governmental entity has the legal right to do so.  To protect this right, the Colorado General Assembly included C.R.S. 38-1-122 in the eminent domain statute.  This statutory provision ensures that when a condemning authority files a condemnation without the right to do so, and improperly drags an innocent property owner into court, the owner will suffer no loss in the form of legal fees and costs. 

This is not a situation where a condemning authority has merely made a mistake or filed a condemnation action based on a legitimate belief that it had the right to do so.  As the overwhelming evidence demonstrates, the District not only knew that the point of diversion on which it relied in order to condemn Lot 134 was incorrect and contested, but also took steps to conceal the true facts. 

A condemning authority should not be permitted to amend a condemnation petition when to do so would be prejudicial or fundamentally unfair to one of the parties, or would reward bad faith on the part of the condemnor.  Akin, 2007 WL 1150450, at *6-7; C.R.S. 38-1-104; Benton v. Adams, 56 P.3d 81, 86 (Colo. 2002).  The District’s conduct in this action not only requires dismissal of the Petition, but also presents one of the clearest cases as to why C.R.S. 38-1-122 exists. 

F.        Request for Hearing

Rule 121 1-15(4), C.R.C.P. provides that a court may order oral argument or an evidentiary hearing in its discretion if requested in a motion or any brief.  Because of the complexity of the issues raised in the HOA’s motion to dismiss, and the importance of the resolution of the motion, the HOA respectfully requests that the Court permit an evidentiary hearing so that the HOA may present its case and have the opportunity to cross-examine, under oath, the District’s witnesses.

III.             CONCLUSION

For the foregoing reasons, the HOA requests that the Court dismiss the Petition in Condemnation and award the HOA the right to reimbursement of its attorneys’ fees and costs under C.R.S. 38-1-122.

Respectfully submitted this 8th day of October, 2007

LOWE, FELL & SKOGG, LLC

s/ Karen L. Brody

Kenneth K. Skogg #17053
Karen L. Brody #27215
370 Seventeenth Street, Suite 4900
Denver, Colorado 80202

Telephone:  (720) 359-8200

and

Michael C. Schaefer #3421
500 Meadow Drive
Pine, CO  80470
Telephone:  (303) 337-6969

ATTORNEYS FOR respondent WOODSIDE PARK UNITS 5 AND 6 HOMEOWNERS’ ASSOCIATION

A duly signed physical copy of this document is on file at the office of Lowe, Fell & Skogg, LLC pursuant to CRCP Rule 121, Section 1-26(9)

CERTIFICATE OF SERVICE

I hereby certify that on this 8th day of October, 2007 a true and correct copy of the foregoing RESPONDENT WOODSIDE PARK UNIT 5 HOMEOWNERS’ ASSOCIATION’S REPLY IN SUPPORT OF MOTION TO DISMISS, REQUEST FOR ATTORNEYS’ FEES PURSUANT TO C.R.S. 38-1-122 AND REQUEST FOR EVIDENTIARY HEARING was sent as indicated below and properly addressed to the following:

Leslie A. Fields, Esq.
John R. Sperber, Esq.

Faegre & Benson LLP

1700 Lincoln St., Suite 3200

Denver, CO  80203

Attorneys for Petitioner

Via LexisNexis File & Serve

 

Todd W. Miller, Esq.

Holland & Hart LLP
8390 E. Crescent Parkway, Suite 400
Greenwood Village, CO  80111-2800

Attorneys for Respondent Magness Land Holdings LLC

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Stephen A. Groome, Esq.

County Attorney

Park County Attorney’s Office

P.O. Box 1373

Fairplay, CO  80440

Attorneys for Respondent Michelle A. Miller

Via LexisNexis File & Serve

Anne J. Castle, Esq.

Holland & Hart LLP

555 Seventeenth St., Suite 3200

Denver, CO  80201-8749

Attorneys for Respondent Magness Land Holdings LLC

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