May 18, 2007

Will-O-Wisp condemnation still pending - District wants land to
divert Elk Creek
By Lynda James

Will-O-Wisp Metropolitan District’s immediate possession hearing in Park County Combined Court for land owned by Magness Land Holdings LLC was continued until June 25.

The metro district is seeking to condemn Lot 134 in Woodside Park Unit 5 subdivision and a small portion of the Hidden Valley Ranch that is adjacent to Woodside Park. The property is north of Pine Junction in northeastern Park County.

The land is needed to divert water from Elk Creek and install related infrastructure to pump water to serve the Tanglewood Reserve development just west of Pine Junction.

Woodside Park Unit 5 and 6 Homeowners Association is also named in the immediate possession hearing because the case relates to the association’s covenants that allow only residential use on the subdivision lots.

The case was brought against Magness because the metro district was unable to reach a voluntary agreement with Magness to acquire the property.

By state law, during an eminent domain proceeding, also known as condemnation, the condemning party may request to take possession of and the property before just compensation has been determined and the condemnation is final.

According to the court brief filed by the metro district, only five issues can be raised at an immediate possession hearing.

At the hearing, Magness’s attorney, Scott Miller, and water rights counsel Ann Castie argued the issue of necessity.

“They say they need to condemn in order to take water from Elk Creek, but they can’t prove that the diversion point is on this property,” said Miller in his opening statements.

“Their water people now admit it (the diversion point) is not on Lot 134,” added Castle.

Woodside’s attorney, Ken Skoggs, went a step further, challenging the public purpose and whether the project could move to completion if the county does not grant a 1041 water project permit or if the ditrict does not have a right to divert water from the proposed diversion point.

Will-O-Wisp’s. attorney, Lesley Fields, argued that the issues raised were not appropriate. She said five Colorado Supreme Court cases have held that it is solely up to the petitioners to determine the feasibility of a project and that case law has held that the lack of all necessary approvals can’t be used to deny. She also said the issues could not be raised at trial because they were not raised in pre-trial briefs.

Miller countered that he had only recently learned that the diversion point had been surveyed by Braning Land Surveying and found t& be on Lot 133, not Lot 134. He cited a March 2007 Colorado Supreme Court ease that upheld a district court decision that it is premature to condemn land when a water right has not yet been decreed.

Miller cited a 1945 Supreme Court case that determined a right to condemn was not unlimited and that reasonableness of a project could be raised, in such hearings.

Brian Zick, metro district project engineer, testified that the historical diversion point is on Lot 134 because part of a water flume and evidence of a partial ditch is present.

Zick also testified that Water Commissioner Roger Mlodzik had testified at the December 2006 Park County 1041 hearing that he could administer the water rights at the district’s proposed point of diversion.

Metro district water attorney Lee Johnson testified that the historic survey description of the diversion point started at the west quarter corner of section 26, Township 6 North, Range 72 West. In the historic survey, that west quarter corner was identified as a pile of rocks next to a 16-inch-diameter tree.

Johnson said the area was resurveyed in 1985 and pins were set to mark section corners. Using the 1985 section pins did put the diversion point on Lot 133, he said, but if the 1873 surveyed section point was used, the diversion was on Lot 134.

Castle questioned if the pile of rocks existed today to mark the point. He said the district had tried to locate the pile of rocks, but had not.

Castle asked how, without proof to the contrary, Johnson knew the 1873 section line marker isn’t the one used today.

Johnson answered that he hadn’t talked to Braning to know how the survey was prepared. He said he understood that the surveyor did not locate the west quarter corner in the field, but had only drawn the survey in the office.

The small red dot is where Will-O-Wisp Metropolitan District says the diversion point is for taking water from Elk Creek. The heavy blue wavy line at the top is Elk Creek in 1996, overlain on the 195 aerial. The large blue dot with the arrow pointing at it is the actual surveyed diversion point which was on the creek before it changed course sometime between 1956 and 1996 (Courtesy Map)

In further cross examination, Johnson testified that h had not seen a response to an April letter from Park Count water attorney Jeff Kahn to Mlodzik.

That letter asked Mlodzil if the state would recognize the proposed diversion point since it is 331 feet from the surveyed point, or if the district would need to return to water court to change the point of diversion for their water rights.

The last witness was Wood side Park Units 5 and 6 Homeowners Association President Robert Nevadomski. He testified that he had seen George Hurst, former Wood side developer, use a tractor to create several ditches around the property in 1981 or 1982 and he also saw Hurst install the flume on Lot 134. He said Hurst and he recreated in the area at the time. Nevadomski said Hurst and he were friends at the time.

Nevadomski showed pictures taken in 1980 that showed no evidence of any ditches on Lot 134. He also testified that he had never seen a ditch there before the ones Hurst created.

After testimony, Judge Charles Barton said case law gives courts the authority to determine necessity of a condemnation under limited circumstances and that a condemnation has to be reasonable and viable.

“This is a half-baked hearing,” Barton said. “If the court goes ahead, that still doesn’t give (the metro district) the right to start if water court is involved.”

Barton added that the court was struggling with taking property if it wasn’t reasonable and couldn’t be used. He said the central questions were if the diversion point was where the district believed it was and if not, would the district need to go back to water court. He said he did not have enough information to answer those questions.

Barton ordered the parties into discovery and reset the hearing to June 25 to hear from the surveyors, Mlodzik and any other witnesses the parties wanted to testify.

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