June 15, 2007

WOW says it may need to amend condemnation - Will-O-Wisp district files motion to vacate hearing, gain time

By Lynda James
Correspondent

On June 5, the Will-O-Wisp Metropolitan District filed a motion to vacate the immediate possession June 25 hearing date for property in Wood- side Park, Unit 5, Lot 134 and a small portion of the adjacent ranch. Magness Land Holdings LLC owns the property.

The case was filed by Will- 0-Wisp to gain immediate possession of land north of Pine Junction in a condemnation case. The property is needed to transport water to the Tanglewood development approved by Park County’s Board of County Commissioners about a year and one half ago.

The district court hearing had been continued from May 8 by Judge Charles Barton in order that he might hear further testimony on whether the land could be used by the district to install infrastructure to withdraw water from Elk Creek.

The central .issue was whether the Colorado Division of Water Resources would administer the water rights at the proposed diversion point on Lot 134. The decreed point had been surveyed by a third party and found to be in Lot 133.

On May 25, Assistant Division Engineer David Nettles issued a letter stating the proposed diversion point must be located within 200 feet of the decreed point.

The request to vacate the June 25 hearing date was based on Nettles letter because the proposed point is 330 feet from the decreed point.

Homeowner's association party to case

In the motion, the Will-O-Wisp Metropolitan District states it needs time to explore the impact of Nettles’ decision and that the district may need to amend the condemnation petition to modify the legal description of the property to be condemned. It states the district may also need to bring new parties into the case.

The district also requested that discovery and time- frames for written responses be stayed at this time.

The motion requests the court give the district until July 15 to amend the condemnation and immediate possession case.

Woodside Park Units 5 and 6 Homeowners Association president Robert Nevadomski said the association has not filed its response yet, but will request that the court dismiss the case and order that a new case be filed when the district has determined a new legal diversion point, completed the engineering, and surveyed all land needed for the infrastructure.

The association is a party to the case because the condemnation action also seeks to overrule the association’s covenants on land needed for infrastructure. The covenants allow only residential use of the lots in the subdivision.

Magness’s attorney, Todd Miller, could not be reached.

The district’s attorney, Richard Toussaint, did not return The Flume’s call before press time.

According to Nevadomski, Judge Barton has not yet ruled on the motion to vacate the trial date.

In a related case filed by the association against the district for covenant violation, Barton has not set a trial date after ordering the case be set for trial at an April status conference hearing. The case had been set for a March date, but was vacated because the district filed a motion stating it wasn’t yet ripe for trial.

The motion requests the court give the district until July 15 to amend the condemnation and immediate possession case.

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