January 27, 2012

Elk Falls POA and Lower Lake Ranch owners trial set to begin on Jan. 30
Road ownership dispute to head to trial

Mike Potter
Staff Writer

Lower Lake Ranch

The Elk Falls Property Owners' Association lawsuit against the owners of Lower Lake Ranch at Elk Falls will go to trial on Jan. 30. The lawsuit is over a dispute of ownership of some roads that run through Lower Lake Ranch, shown in part in this photo. (Flume file photo)

The Elk Falls Property Owners' Association and the owners of the Lower Lake Ranch at Elk Falls are set to go to trial over a dispute of ownership of portions of Juniper and Jenson roads, and a portion of South Elk Creek Road.

The Elk Falls subdivision is near Pine Junction.

Juniper Road extends north of South Elk Creek Road, and then branches off to the east to create Jenson Road. South Elk Creek Road extends west from U.S. 285 at Shaffers Crossing.

The trial is to be heard by Fairplay-based District Judge Stephen Groome, and it is scheduled for 12 days beginning on Jan. 30. The attorneys for the Elk Falls Property Owners' Association indicated in a trial management order that was submitted to the court on Jan. 10 that they believed the trial could be heard in five days. The attorney for Drayton and Vera Dunwody, who own Lower Lake Ranch, expect that the trial couldn't be completed in less than two weeks.

The Elk Falls Property Owners' Association is seeking a permanent injunction against the Dunwodys that would bar them from blocking the roads in dispute.

"These roadways represent the only reasonable primary access for large portions of Elk Falls, Block 1 and 3," said lawyer for the POA in the trial management order.

The Dunwodys are seeking the dismissal of the lawsuit.

The Elk Falls Property Owners' Association is asserting that its residents have a right to access the roads, as they have for decades, while the Dunwodys argue that the roads are part of privately owned property they bought in 2002.

The issue of the roads came to a head in February 2010 when the Dunwodys asserted ownership of the roads by placing boulders across Juniper Road just north of South Elk Creek Road, blocking that access to the Elk Falls subdivision. Residents could still access the subdivision from Upper Ranch Drive, on the east side of the subdivision.

When the boulders appeared, the Elk Falls Property Owners Association sued the Dunwodys and won a temporary injunction barring the Dunwodys from blocking the road until the ownership of the road was resolved.

Subdivision's arguments

According to the trial management order, the Elk Falls Property Owners' Association is arguing that it has an express easement of the roads granted in 1959 by Alice Berg, the wife of the subdivision developer, when she dedicated roads on a plat map to Jefferson County.

"Her intent is clear because there is no reason to include the two ‘50-Foot Right(s) Of Way' on the Block 1 Elk Falls plat map other than Alice Berg evidencing her intent to grant express easements," said the POA argument in trial management order.

Fred Skillern, the attorney for the Elk Falls Property Owners' Association, said it was odd that the expression of the right of way appeared in the Block 1 plat map when the actual roads the POA argues Berg was referring to were on adjacent property owned by her. That property was in Park County, while the Block 1 plat map showed land in Jefferson County.

"We don't know why they didn't go down and get the Park County commissioners to sign off on that one, other than they figured it didn't matter or they forgot to, or it was too expensive," Skillern said.

When it comes to ownership of the portion of South Elk Creek Road that is in dispute, the Elk Falls Property Owners' Association argues that it is a public road because it has been used as such for decades.

"Similarly, CDOT, the U.S. Department of Transportation, and, at least, Jefferson County all consider the entirety of South Elk Creek Road to be a public road," said the POA argument in trial management order.

The property owners' association argues that the road is public pursuant to Colorado Revised Statute 43-2-201 (1)(c).

According to that statue, "All roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years" are declared public highways.

Skillern said the only way for some residents of Block 3, the westernmost part of the subdivision, to access their properties is by using South Elk Creek Road.

"Beyond any doubt, once you get into the Block 3 division on the south, that's a public road as it leaves Jefferson County. The Dunwodys are saying that the connection between the two is their private land," he said. "Park County would never have knowingly approved a subdivision with a street that is landlocked."

Dunwodys' arguments

The Dunwodys allege that the Elk Falls Property Owners' Association has no property interest in any of the disputed roads, and that it lacks standing to bring any claims against the Dunwodys since the roads aren't considered public roads.

The Dunwodys also argue that the Elk Falls Property Owners' Association cannot establish "prescriptive rights to the roads by virtue of continuous adverse use" (referred to in 43-2-201) because all of the homeowners have had historical permission to use the road.

The Dunwodys also assert that some homeowners were granted express easements to use the roads.

Those people were the owners of lots 30-46 in Elk Falls Block 3, they argue.

According to the trial management order, the Dunwodys argue that neither Alice Berg, nor the Elk Falls Ranch Development Co., the developer of the subdivision, promised or represented that property owners in Blocks 1, 2 and 3 would be granted easements across the roads in dispute.

The Dunwodys are also arguing that the Elk Falls Property Owners' Association cannot bring the lawsuit against them because it is not an "association," which is defined in Colorado Statute as being organized "no later than the date the first unit in the common interest community is conveyed to a purchaser."

The attorney for the Dunwodys, Victor Boog, couldn't be reached for comment.

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