May 6, 2007

Will-O-Wisp court cases continue
Parties in three lawsuits battle over water rights, condemnation, and covenants

By Lynda James, Correspondent

Three court cases have been filed that relate to the Will-O-Wisp Metro District plans to expand its water supply system to serve Tanglewood Reserve, located within the district boundaries just west of Pine Junction.

Woodside covenants

Woodside Park Units 5 and 6 Homeowners Association and Christie Investments filed the first lawsuit in December 2005. It states that the subdivision's covenants prohibit any use of the subdivision lots other than for residential purposes. And the district's proposed water facilities, including a reservoir proposed on Lot 132, violate the covenants, it says.

The lawsuit also cites the "undefined irrigation ditch easement" plat notation that is across Lots 132-134 in Unit 5 and says it isn't legal because it doesn't meet the requirements as to specific purpose, specific use and specific grantee/grantor.

Woodside acknowledges that the district has a 2001 deed from North Fork and Associates granting the district water rights on Elk Creek and perpetual easements for the Glasmann Ditch across Lots 132 - 134 and a reservoir site and outworks. North Fork received the deed from Woodside Ltd., the developer of Woodside Park, in 1980.

The Will-O-Wisp response stated that its intended use does not violate the covenants and are within the scope intended by the grantors of the easements.

That case was to be heard in Park County District Court the week of March 26.

On Jan. 25, 2007, the metro district filed a petition to stay the proceedings in that lawsuit, vacate the trial and continue the discovery deadlines. The motion states the issue is no longer ripe for trial because the district's plan to build a reservoir on Lots 133 and 134 (instead of the original plan on Lot 132) and to construct a ditch to the reservoir and related facilities are no longer in the best interests of the district at this time.

The motion also states that recently the district's water rights connected to the reservoir have been called into question.

The motion continues that the district is in the process of condemning an easement on other Woodside Unit 5 property to construct a pipeline. "If the district does not have the necessary water rights, or is unable to condemn Lot 134, then the parties may not have a need to continue litigating this matter." It also states that the district may construct the reservoir elsewhere.

The motion asks for a stay of proceedings until those issues are resolved.

Metro District President Rick Angelica told The Flume that it was his understanding that both parties agreed to the stay because a reservoir is no longer planned on Lot 132, as stated in the original lawsuit.

The court granted a stay and set a pre-trial status conference for April 23.

Condemnation case

The condemnation case was filed by Will-O-Wisp in Park County District Court on Dec. 19, 2006. It asks the court to condemn a portion of Lot 134, Woodside Park Unit 5 and a small portion of the Hidden Valley Ranch, both owned by the Magness Land Holdings LLC. A trial date has been set for May 8, 2007.

The purpose of the condemnation is to construct an access road, water pipeline, pumping station and related facilities, including a temporary construction easement.

The motion also asks the court to set a fee based on real property values as compensation for the condemnation and grant the immediate possession of the property to the district.

Woodside Park Unit 5 & 6 Homeowners Association is listed as one of the respondents, as it may claim interest pursuant to the subdivision covenants.

The Homeowners Association said in its answer that the district has failed to negotiate in good faith and has failed to satisfy conditions set forth in Colorado Revised Statutes. It also said the association is entitled to reasonable market value for its interest in the property.

The association asks that the case be dismissed or that a commission of three be appointed as required by CRS to determine just compensation and to require the district to compensate the association for its interest in the property, plus court costs, appraisal and other costs.

Angelica told The Flume that the district had tried to work with the homeowners association's attorney, Michael Schaefer, but those discussions were not fruitful. "So we had no choice but to condemn," he concluded.

The answering brief from Magness Land Holdings was not available by press time.

Angelica said the district was condemning 5 to 15 feet next to the existing utility easement. All infrastructure would be underground except for the access road and probably part of the pump house, so the rest of the property could still be used as residential.

 

Glasmann Ditch
The dot-dash line is the 1913 survey of the Glasmann Ditch.  The dot on Lot 133 in the Woodside park development is the diversion point from the Glasmann Ditch according to the 1913 survey.  The dot on Lot 132 represents the decreed length of the ditch to the point the reservoir is to begin, a matter decreed in 1977.  Parcel 2 is one piece being condemned for the diversion point and infiltration galleries.  Lot 134 is where Will-O-Wisp Metropolitan District always said the reservoir would be.  Now the district is saying it could be on Lot 132 or Lot 133 or maybe somewhere else (Courtesy Map)

Dunwodys' lawsuit

The third case was filed in District 1 Water court on March 15, 2007, by Drayton and Vera Dunwody. They claim title to the 1913 decreed one cubic-foot-per-second water right, the Glasmann Ditch and its headgate (the diversion point on Elk Creek).

It's the ditch and diversion point that the metro district planned to use for the reservoir in Woodside. It is also the same diversion point and location of the Glasmann Ditch 2 that the district plans to use to pump water from Elk Creek to serve the Tanglewood Reserve development. The district's reservoir decree used the 1913 Elk Creek water and diversion point that the Dunwodys are challenging to augment evaporation losses in the reservoir.

"The question is, would the lawsuit affect the district's ability to take the physical water for Tanglewood," Vera Dunwody told The Flume. "We were forced into this by the actions of the commissioners and the metro district to protect our property rights. We were told only water court had jurisdiction, so we filed."

She also said the water 1041 permit was premature due to the three lawsuits.

Angelica told The Flume that the Dunwody lawsuit was not a challenge to the district's ability to provide water to Tanglewood; which will use junior water rights, not the 1913 water rights.

"The district is required to provide services and have reduced our plans. We've been trying to work with residents within the boundaries and constraints we have," said Angelica. "We are trying to do the right thing."

Dunwody disagreed, saying the district had not been the friendly neighbor they had said they were in a previous commissioner meeting.

The district has not yet filed a response. It is not known when that case will be scheduled in District 1 Water Court.

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