November 9, 2007

WOW condemnation order
By Lynda James

Eleventh Judicial District Judge Charles Barton has ordered Will-O-Wisp Metropolitan District to pay attorney fees and costs to Magness Land Holdings LLC in a case involving attempted condemnation of Magness’ Land by the district.

The attorney fees were awarded because the court held that there was no legal authority to condemn all the land listed in the condemnation case because all the land was not needed.  

The order stemmed from an immediate possession and condemnation case filed by the metro district in December 2006 to condemn part of Lot 134, Woodside Park Unit 5 – and a small portion of the adjacent Hidden Valley Ranch. Both are owned by Magness. The ranch and subdivision are north of Pine Junction in northeast Park County.

The district’s water rights on Elk Creek must be diverted and pumped to the district to serve the new Tanglewood Reserve development, which has about 450 lots. It is located just southwest of Pine Junction on both sides of U.S. 285. The development is within the district’s service area. The metro district had determined the diversion point on Elk Creek to be on Magness’s land.  

A hearing on the condemnation was heard on May 8 and then continued to June after the issue of the exact location of the diversion point was raised by Magness and Woodside Park Units 5 & 6 Homeowner’s Association, another defendant in the case.

The district claimed the historic diversion point was on Lot 134 based on testimonies from water commissioners, the existence of a partial flume not far from Elk Creek and different surveying methods used 100 years ago than used today.

Defendants argued the decreed point was 330 feet to the east on Lot 133, based on a recent survey and the original survey found in Park County Court archives.

A May 25 letter from Colorado Division of Water Resources Assistant Engineer David Nettles said that a diversion could not be more than 200 feet from the decreed point.  

The district then filed a motion to vacate the June hearing and requested time to amend the condemnation case to include other land and include the property owners of Lots 131 and 133. The district also stated it will still need to condemn a portion of Lot 134 for a pumping station.

Barton’s October order granted the district 45 days to amend the condemnation petition to include other properties. State law allows amendments once a condemning government determines additional land is needed.

The metro district also seeks to condemn the HOA’s covenants that prohibit any activity on lots other than residential use.

Barton denied the Woodside HOA’s motion to dismiss the case and require a filing of a new case. Woodside’s motion for attorney fees and costs was denied.

In denying Woodside’s motions, Barton said that adding new lots and property owners did not affect the HOA’s position in the case. Barton concluded that Woodside’s interest was the same regardless of which lots were condemned.

Woodside had argued that the district acted in bad faith and fraudulently because it knew that the proposed diversion point on Lot 134 was incorrect before the condemnation case was filed.

Judge Barton disagreed. He wrote, “The court does not conclude that petitioner initially acted in bad faith or fraudulently… This is not to say the court approves of the petitioner’s approach to this proceeding. It is troubling that the district attempted to seize land for which it had no need when the question of the point of diversion was so evidently problematic.”

Magness had 15 days from the Oct. 11 order to submit documentation of the total amount of attorney fees to the court and the metro district. The district then had five days to respond. If necessary, Judge Barton will conduct a hearing on the fees and costs.

The amended motion to condemn property must be filed by the metro district before Nov. 26.

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