July 7, 2006

Tanglewood water unresolved
450-house development still needs water permit to go forward
By Lynda James
Correspondent

Partly due to lack of easements for expansion of water supply infrastructure, the Will-O-Wisp Metropolitan District has obtained a continuance for a Special Development Project Permit hearing, also known as a Water 1041 Permit. The hearing was scheduled for June 12 before Park County’s Board of County Commissioners.

The 1041 permit is needed before water infrastructure can be constructed for the 374-acre, 450-house Tanglewood Reserve Planned Unit Development near Pine Junction where about 450 houses are planned. Tanglewood was conditionally approved in 2005 and is within the district’s boundaries.

The Will-O-Wisp district also needed more time to respond to questions raised by Park County’s water attorney, Jeffery Kahn.

Issues addressed in Kahn’s letter included:

• the district’s right to use the Glasman Ditch to transport water from Elk Creek;

• the amount of water available in Elk Creek;

• how an ongoing lawsuit filed by the Woodside Park, Units 5 and 6 Homeowners Association and Christie Investments LLC could affect the 1041 permit. The lawsuit claims that some of the Will-O-Wisp district’s proposed facilities violate Woodside Park, Units 5 and 6 covenants;

• Will-O-Wisp’s response to a letter to Kahn from Robert Trout, attorney for Christie Investments.

The 1041

A 1041 permit is required for any new water development project or a major expansion of central water and sewer systems.

The Will-O-Wisp district provides central water and sewer to residential homes and must expand its systems to serve the new development.

The district is located north and south of U.S. 285 and west of Wandcrest Road in Pine Junction.

Continuance

“ The district decided to ask for the continuance so we can wrap up all the loose ends. Rushing the process isn’t the right thing to do and we need to make sure all easements are in place. We want to be good neighbors,” said Will-O-Wisp Metropolitan District President Rick Angelica. He also said the district needed to respond to Kahn’s June 15 letter before the hearing.

Kahn’s letter was addressed to Will-O-Wisp’s attorney, Richard Toussaint, who did not return phone calls by press time.

Angelica said necessary easements included a water supply infiltration gallery, a reservoir that is not part of the 1041 permit application, pipelines, water supply pump house and a road to the pump house. Easements must be obtained to construct facilities on property owned by third parties.

The district’s proposed facilities would be located on Lots 132, 133, and 134 in Woodside Park Unit 5. The lots are adjacent to each other, and Lot 134 borders the Magness Ranch at the end of Mount Evans Boulevard. (See note following this article)

Doug Windemuller, owner of Lots 133 and 134 until recently, sold Lot 134 to the Magness Ranch. He is negotiating with the district to reach an equitable solution for any facilities proposed on his lot. Windemuller said his deed to Lot 133 does contain an easement for 1.25 acres of the proposed reservoir.

Angelica said location of facilities may change depending on what easements could be acquired.

Woodside lawsuit

Case 05-CV-302 was filed in December 2005 by Christie Investments and Woodside Park Units 5 and 6 Homeowners Association. It states that the association’s covenants allow only residential uses on the subdivision’s lots.

The lawsuit claims the district’s proposed water facilities violate the covenants. It also claims that an “undefined irrigation ditch easement” plat note isn’t valid because it does not meet legal requirements as to specific description, specific purpose, specific use and specific grantee/grantor.

The Woodside court petition states that deed grants the district water rights and a perpetual easement for the Glasman Ditch, from it’s point of diversion on Elk Creek across the three lots in question. It also claims a perpetual easement for a reservoir site and outworks.

According to the petition, North Fork Associates received the easements and water rights from Woodside Ltd., the developer of Woodside Park, in 1980.

The district’s written answer agrees with facts concerning the Special Warranty Deed dated June 2001 from North Fork Associates.

The district’s answer further states that its intended use does not violate the HOA’s covenants and are within the scope of usage intended by the grantors of the easements.

The case has been set for trial in March 2007 in Park County Combined Court.

Two questions in Kahn’s letter concern the Woodside lawsuit and Trout’s statement that the 1041 hearing should be delayed until a decision is rendered in the lawsuit.

Kahn’s first question asks if it is appropriate to condition any action taken by the county on the 1041 permit on the case’s outcome, or whether it is appropriate to delay the issuance of the 1041 permit until the case is resolved.

Kahn’s second question asks if the district can obtain property interests necessary to construct and deliver water until the lawsuit is resolved.

Glasman Ditch

Kahn asks the district to verify his assumption that the district does not rely on the 1913 decreed water rights of the Glasman Ditch or on the construction of a reservoir as a component of the 1041 permit application.

According to Angelica, the district will rely on junior water rights and the Glasman 2 Ditch rights that were decreed in 1983, not the senior water rights of the Glasman Ditch decreed in 1913. Both decrees designate the same diversion point on Elk Creek.

Angelica also said that since the reservoir is not part of the 1041 application, the exact location would be determined at a later date. He said if it was built, it would be used as a second back-up to another back-up for water storage in the event of a severe drought.

Dunwody questions

Husband and wife Drayton and Vera Dunwody, who own property in Elk Falls Ranch north of Schaffers Crossing, have raised questions regarding ownership of the Glasman Ditch and water rights associated with the ditch conveyed to the district by deed.

Vera Dunwody told The Flume that she became concerned when she learned of the Tanglewood Reserve development and the 2001 deed conveying one cubic foot per second of water in the Glasman ditch under an adjudication right of 1913. The same deed conveyed the Glasman 2 Ditch and seven-tenths cubic foot per second of water, according to Dunwody.

Dunwody told The Flume that, according to water court case 81CW144 authorizing the district’s water augmentation plan, the 1913 decreed Glasman Ditch water was designated as part of the reservoir augmentation water. If a reservoir is not built, the case may be reopened for other uses of that water.

Dunwody claims she and Elk Falls Development own and use the 1913 Glasman Ditch water. Dunwoody said she has traced the deeds back to the original Glasman water decree in 1913. She also claims that the Will-O-Wisp deed can only be traced back to 1980, when it was originally transferred from Woodside Ltd. to North Fork Associates.

Angelica’s response to The Flume was that water attorneys hired to review Dunwody’s claim said it is a non-issue because the district will use its water rights in the Glasman 2 Ditch as the water supply, and the district has other water for augmentation.

Dunwody responded that if the district is not claiming or using the 1913 Glasman Ditch water rights, then the district needed to amend the deed that conveys the rights in the Glasman and Glasman 2 ditches, with a total of 1.7 acre-feet of water, and amend their water augmentation plan.

Dunwody said she believes the Glasman Ditch location is not where the district claims it is located. That’s because the State Engineer’s Office records list it in the southeast quarter of section 26, Township 6 South, Range 72 West, not the southwest quarter, as the district claims. Trout’s letter also refers to that issue.

State water engineer

Dunwody also referred to a letter written by the Assistant State Water Engineer to Park County’s commissioners during the Tanglewood Reserve approval hearings.

The water engineer’s letter stated that “nothing should be construed to imply that the Division of Water Resources has made any determinations or findings regarding the ownership of any water rights included in the subject water augmentation plan (81CW144).”

The December 14, 2005, letter continues: “The determination of ownership issues exceeds the authority of this office, and to the extent that any issues exist, such claims represent a legal issue to be determined by district courts.”

The request from Park County water attorney Kahn also asks if any additional work had been completed to demonstrate water supply availability from Elk Creek. Kahn said he is not aware of any stream flow measurements since February 2002.

Angelica said the district took measurements as late as 2004 and showed more than adequate water to supply the development at full build-out. He anticipates all issues will be resolved in time for a commissioner hearing later this summer.

End of The Flume Article

Notes:

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