October 27, 2006

Magness/Woodside lawsuit heads back to appeals court

By Lynda James and Tom Locke
Correspondent and Editor

A nine-year-old lawsuit involving an heir to the Magness cable TV fortune and the Woodside Park subdivision near Pine Junction is headed yet again to the Colorado Court of Appeals.

The seesaw battle began in 1997, when Woodside Park Units 5 and 6 Homeowners Association and lot owners George and Patricia Barilla filed a complaint against Gary Magness, Magness Land and Cattle and Park County's Board of County Commissioners. Gary Magness is the son of the late Bob Magness, the founder of the former Tele-Communications Inc., a cable TV giant that was based in Englewood, Colo.

The original case was filed after Gary Magness received a Park County permit to build a road connecting Vista Lane, a cul-de-sac in Woodside Park, to the Magness Ranch - also known as the Hidden Valley Ranch - north of Pine Junction.

The road easement in question was platted on Woodside's Unit 5 plat across Lot 128, which was owned by the Barillas in 1997, and Lot 129, owned by Magness.

Magness started construction after receiving the Park County permit, but a preliminary injunction granted in Park County District Court in Sept. 1997 stopped construction.

The main issue in the case is whether the road easement was unequivocally dedicated to and accepted by Park County for the purpose of building a public road or if it was reserved by the developer, Woodside Ltd., when Woodside Unit 5 was approved in 1979.

The Woodside Homeowners Association argued it was not dedicated or accepted, and building the road violated Woodside's covenants.

The Barillas' claims involved lack of notification and due process in building the road across their property and trespass resulting in property damage. The lawsuit asked for a permanent injunction against building a road across Lots 128 and 129 and for a monetary award for damages.

District Court Judge Kenneth Plotz subsequently granted a summary judgment in favor of Magness and Park County, citing the following wording in the plat: "The easements as shown hereon are reserved and dedicated for the purposes shown."

That wording, said Plotz, unequivocally dedicated the easement for public purposes, and the county accepted the dedication when the plat was approved. A permanent injunction was denied.

Plotz also stated the Barillas had no protected property interest because the easement was a dedicated public road easement, and he denied their claims.

Woodside and the Barillas appealed the Plotz decision.

In 2001, the Court of Appeals ruled that summary judgment was not appropriate because many unresolved issues of fact were not addressed by the district court. Summary judgment is only appropriate when all documentation shows that there is no genuine issue as to any material facts in a case.

The appellate court also said the plat language was ambiguous and the district court needed to make further findings.

The case was remanded back to district court, with a listing of four unresolved facts to consider during the remand.

Hurst, a principal in Woodside Ltd., had testified that the easement was created in case he was able to buy part of the Hidden Valley Ranch for residential development. When that deal fell through, Hurst had no further need of the easement.

Gary Magness, one of Colorado's wealthiest people, stated that the easement was verbally negotiated by his father, Bob, to provide additional access to the Ranch in exchange for moving fence lines to correspond to Woodside's plat survey. Bob died in 1996, a year before the permit to build a road on the easement was granted by Park County.

Hurst denies Magness's claim of a verbal deal with Magness's father as the reason for the easement. Hurst did provide additional access to the ranch at Jones Creek Road.

The other three unresolved facts centered on the following questions:

The appellate court also remanded the due process claims of the Barillas, stating that if the dedication was not valid, the claims must be considered.

The remanded case was heard in District Court in 2005. After a five-day trial, Judge Charles Barton reversed some of the summary judgment rulings by Plotz.

In answering the four questions posed by the Court of Appeals, Barton found the facts supported the idea that the purpose of the easement was reserved for possible future development by Hurst, which did not materialize. Barton also found that no dedication as a public road occurred and Hidden Valley Ranch was used for ranching purposes with no intention of residential development.

The outcome of the 1982 commissioner meeting was that the county took no position on the legality of the easement. At that meeting, another developer, Otto Schultz-Icking, asked the county for permission to build a road accessing his development using the easement. The Woodside Homeowners Association protested.

On advice from the county attorney, the commissioners stated the parties needed to resolve the easement issue and that the commissioners would take no action until a court decided the issue. Consequently, Icking found another access.

Barton upheld the former ruling that the Barillas' due process rights were not violated by Park County, and he denied attorney fees to the Barillas.

On the issue of the road easement, Barton found in favor of the Barillas and Woodside Park Unit 5 HOA. He issued a permanent injunction against Magness from constructing a road through Lots 128 and 129.

This upheld the Woodside covenants, which provided that lots may only be used for residential purposes and that public roads must be on land outside lot boundaries.

Declaratory relief granted to the Barillas stated that the easement does not exist. In response to a post-trial motion, $75,000 in damages was awarded, according to the appeal brief filed by Magness.

The Magness appeal brief states several reasons why the district court rulings against Magness should be overturned. It states that Judge Barton erred by granting a post-trial motion for damages. It notes that the claim had been dismissed in 2004 after Barilla refused Magness's full-price offer to buy Lot 128 when Barilla advertised the lot for sale.

In addition, it argues that Barton was not charged with determining if an easement existed, but rather with determining whether it was dedicated or reserved. And it argues that Barton had a basic misunderstanding of the effect of easements and that the easement was dedicated as a future public road.

Finally, it argues that a plat and associated covenants must be read as one document and construed to give effect to all their provisions.

Woodside's answer brief contends that the court did correctly distinguish the legal principals of "public road dedication" and "private easement grant."

The brief also quotes a 1993 Court of Appeals ruling that "deference is given to the trial court's findings of fact which will not be overturned as long as there is support for them. This is true even though a contrary position may find support in the record."

In conclusion, Woodside states, "The core elements involve the developer's unequivocal intent and the government's unambiguous acceptance (of the road easement as a public right of way)." The facts support neither, and Barton ruled accordingly, according to Woodside.

Woodside is also requesting an award of attorney fees and costs because the homeowners association was the prevailing party in the district court case.

A date for oral arguments has not been set by the Court of Appeals.

Woodside HOA president Robert Nevadomski told The Flume, "I'm optimistic and confident that the Court of Appeals will affirm that the district court did not err in its judgment and application of the law."

Other parties in the case could not be reached for comment.

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