February 22, 2007

Stream of Acrimony:
Woodside homeowners say development threatens property rights, covenants

"Reprinted courtesy of Evergreen Newspapers"

By Pamela Lawson
Staff Writer, High Timber Times

Woodside Resident James Sapp rates property rights "second to family."  Recent steps by the Will-O-Wisp Water District to condemn Woodside covenants to build a dam (below the road in the picture) for another housing project are being opposed.  (Photo by Pamela Lawson - The Times)

PINE JUNCTION — Michael Schaefer was just a boy when he read the book “Richest Man in Babylon” and learned that to achieve certain dreams, he would need to set aside 10 cents of every dollar he ever earned to pay for them.

He was 19 when he designed a sprawling abode that would one day become his dream home, and he was 39, in 1986, when he bought the property in the Woodside Park subdivision where he would one day build that home.

At age 60, it’s safe to say the semi-retired trial lawyer has worked long and hard to pay for the handsome residence that rose a mere two years ago on his 7-acre parcel, complete with a red barn for his two golden palominos, Dr. Tucker and Mr. Honey.

Which could explain why he is stomping mad that the lower portion of his pasture is in jeopardy of being flooded for a reservoir to accommodate a large Ryland Homes project known as Tanglewood being proposed a few miles away.

“Ryland Homes is only in business because they sell the American dream of home ownership,” Schaefer said. “It’s a fundamental property right, a right to exclude others, a territorial imperative. Ryland sells that dream, yet they have no problem taking it away from others.”

The Will-O-Wisp water district in Pine Junction is tasked with serving the 449-home Ryland development, and Schaefer has been wrangling with its lawyer since 2005 when, that December, he and the Woodside Homeowner Association (units 5 and 6) filed a legal petition against it in District Court. (The WOW water district also plans to build a pumping station on land nearby to capture water from Elk Creek for the development and return it downstream.)

“I’m scared to death, which is why I am willing to fight to the death for it,”
Schaefer said of his property and barn. “I have everything to lose.”

The latest developments with WOW — the recent rescheduling of its 1041 water hearing and the postponement of a trial date for the Schaefer-Woodside case — have only fueled the suspicions of some Woodside residents, who have grown weary of what they say are mixed messages and moving targets from the district and developer.

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It was the summer of 1983 when Ken Hutchison saw his vision take shape in the form of a final plat recorded in Park County for phase one of the Village at Will-O-Wisp subdivision.

Five years earlier, he had purchased 467 acres of pristine property in Pine Junction and had weathered the complaints and doubts of residents who charged that the dense project lacked the necessary water and was impractical for the area.

In those days, there were no shopping centers nearby, only the original Safeway, which opened around the same time, in Conifer.

And there were few water districts around to serve residents, as Hutchison recalls: only one in Kings Valley and one in Bailey.

His vision was one of affordable housing, and it included the creation of a water district to accommodate those needs. The overall project was zoned for 872 dwelling units: 563 single-family homes, 201 townhomes and 108 apartments.

He bought water rights from Mountain Mutual in Denver, got approval from water court, and built the Will-O-Wisp water district.

Then came the recession of the mid-1980s, followed by what Hutchison calls a housing depression. It lasted into the early 1990s — enough time for the water district to declare bankruptcy when it couldn’t meet its bond payment.

By 2006, only 116 homes of the first phase had been built.

But Hutchison, who has since built other projects, is curious why nobody, including Ryland Homes, has contacted him about the steps he took to ensure water rights — steps that he is certain, “to the best of his knowledge,” were done correctly.

“I’m surprised Ryland Homes hasn’t called me,” Hutchison said this week regarding the recent controversies over water. “Everybody thinks they have to reinvent the wheel.”

He is more surprised by the changes to the original plat itself.

“The real shame is that they are not going to do the town homes and apartments,” Hutchison said, noting that the nearby Conifer community has two big shopping centers now. “The county was really remiss in their duties in not keeping employee housing in the project.”

Doug Windemuller looks out looks out over the land near his house February 20, which may be condemned to allow a reservoir and pump house to be built, supplying water to the water district. (Photo by Leah Bluntschli - The Times)

Doug Windemuller dates back further than Schaefer or anyone else in Woodside.

He bought his 6-acre parcel in unit 5 nestled against a sprawling ranch at the back of the subdivision, a year after plats and covenants specifying “residential use only” were filed in Park County in 1979.

Lions Head Mountain spiraled above him to the north, and the 5,000-acre ranch of billionaire Robert Magness stretched out before him, with its windswept valley, snowcapped peaks and stars above shining so brightly that they mesmerized Windemuller for hours on end.

There was no electricity in those early days — no barns, lights, or other manmade distractions that have since grown up beside him. Just the sound of crickets — a noise that pleased him so much, as he spoke of it to friends and acquaintances, that he earned the nickname “Cricket Man.”

Even as neighbors moved onto nearby parcels, including Schaefer, who now lives next door, the silence remained for the most part. Windemuller can still hear the footsteps of neighbors hundreds of yards away when they walk along a gravel road in his subdivision.

Unlike Schaefer, Windemuller, a financial consultant, has remained on cordial terms with the water district and its attorney.

Initially, only a small portion of his land would have been affected by the reservoir. One other parcel he owned, of which Will-O-Wisp claimed easement rights, he sold recently to the Magness family.

But even Windemuller is getting a little antsy as the newly rescheduled March 6 hearing on the 1041 water-plan application approaches.

He is worried about details that have not been nailed down about the planned reservoir and pumping station.

WOW began contacting Windemuller and Magness for alternative solutions when the Schaefer-Woodside legal petition was filed against WOW in district court.

In recent months, WOW attorney Richard Toussaint has been discussing ways in which the reservoir and pumping station could be placed on properties owned by Windemuller and Magness.

Original plans involved a 50-acre-foot reservoir and dam that would have impacted parts of all three lots—Schaffer’s, Windermuller’s and Magness’.

But, Windemuller said, the most recent discussions involved a 20-acre-foot water supply — roughly 2 acres of water 10 feet deep that would envelop a large portion of his meadowland and leave Schaefer out of it.

Those conversations went on for weeks, and then they stopped, Windemuller remembers.

Next thing he knew, WOW had decided to proceed with an easement condemnation on the Magness property. That in turn affects the Woodside covenants, which restrict lot use to residential only. (WOW has since filed a petition to condemn Magness’ lot 134 and to condemn the covenants of the Woodside Park Homeowners Association.)

Michael Schaefer,  who is passionate about preserving property rights, stands next to a railing in his loft that was hand crafted to resemble Lions Head Mountain, visible out his window.  (Photo by Pamela Lawson - The Times)

Then there is the matter of the Schaefer-Woodside trial date.

Last month, on short notice, WOW postponed a 1041 water application hearing set for Jan. 24 before Park County commissioners, saying, through its attorney, that the delay would allow them time to “work out and disseminate” water rights issues recently raised by concerned citizens.

A day later, on Jan. 25, WOW filed a motion to “vacate” the trial date for the Schaefer-Woodside case that was set for the week of March 26.

But that motion, to the confusion of Windemuller, does not mention Schaefer’s parcel (lot 132). It mentions his lot (133) and the lot owned by Magness (134), and references what Windemuller said were only informal discussions between those parties and WOW.

The document states: “The district originally planned to build a reservoir on lots 133 and 134 of Woodside Park unit 5 and to construct/improve a ditch and related facilities in conjunction therewith. However, the District has recently determined that it is not in the best interests of the District to proceed with these plans at this time.

“Specifically, the District’s water rights that would be used in connection with the reservoir have recently been placed into question by other parties …” (The full motion is viewable on www.mywoodside.com. Schaefer is represented by “Christie Investments” in the document.)

Windemuller has no idea why the memorandum referenced his lot in that way.

“That has only been mentioned with Richard Toussaint in a meeting with (me and) a representative of the Magness family, two, maybe three months ago.”

Windemuller hasn’t been able to get any answers from WOW on anything lately, he said.

But he has considered what the silence might mean.

By removing the reservoir and pump house from the mix, he believes that WOW can streamline the 1041 water application process. Adding them would only complicate things.

If the 1041 application — one of the final few steps necessary to begin building the development — is approved, WOW can then address those in a separate (or supplemental) application, he said.

“It’s like a divide-and-conquer (strategy),” Windemuller speculated. “I have said to commissioners: ‘Force (WOW) to put the pump house and reservoir on the 1041 application so you can know exactly what they are going to do.”

Calls placed to WOW’s attorney by High Timber Times staff were not returned, and neither were calls placed to the Magness attorney.

Schaefer, Tending to his horses, Dr. Tucker and Mr. Honey, stands near his barn on property considered by the Will-O-Wisp Metropolitan as a possible location for a reservoir.  (Photo by Pamela Lawson - The Times)

(Schaefer, who is legal counsel for Woodside [in the WOW case against it] would not address that pending litigation. His comments in this story represent the personal impacts to him as a homeowner, he said.)

Windemuller believes Magness is still checking on water rights issues. And when it comes to the easement condemnation and other financial negotiations between both parties if and when the lots are used, those have not been worked out yet, either, Windemuller said.

Until now, only theoretical conversations have ensued among those involved.

If parties could firmly agree on reservoir design and provide paperwork, Windemuller would feel more comfortable, he said. It would be a design that Windemuller hopes is attractive, with curves and islands for esthetics, and filled regularly from Elk Creek to avoid a muddy appearance and potential dangers to elk passing through on their migratory path. Especially considering its close proximity to his home and the impacts to his view. Above all else, he hopes it would be noiseless.

“I spent time driving around Evergreen (with Toussaint). He showed me (a pump) that did (make noise), and one that didn’t, and I said, ‘I want that one.’ ”

Windemuller is also hoping in the future to involve the board of his subdivision in the decisions, he said.

While others remain skeptical of the tactics by WOW, believing it is painting a picture of uncertainty regarding complications over water rights, Windemuller is hopeful that the intentions are above board.

He does not think WOW and Toussaint are “ogres,” he said, and he appreciated their willingness to consider his views about the pumping station and reservoir.

“I am OK if they want to put it in — if it’s done correctly, if they don’t drain it, unless there’s an emergency, and if we have control.”

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James Sapp knows just what Windemuller means about the silence that permeates the Woodside.

“It’s deathly quiet, unbelievably quiet — so dark and peaceful,” Sapp said.

But that silence has been breached lately in more ways than one by residents speaking out about WOW’s move to condemn Woodside’s covenants, a necessary step to free the residential-use-only clause regarding lot 134.

“To me, personal property rights are second to family in importance,” Sapp said.

He passed up buying other properties in neighborhoods where objects like stoves and refrigerators were visible on porches.

“Covenants are important in a community that you like to stay the way it is.”

Sapp didn’t bargain for the extra legal fees either, on top of homeowner fees, that he has to pay. Or the extra time it has taken to study the impacts of a WOW reservoir and dam and maintain the website www.mywoodside.com.

Neither did Dick Hodges, another neighbor who moved to the subdivision about three years ago and serves on the board.

“I loved the property; I had no knowledge that this issue was out there,” said Hodges, a former human resources executive who dealt with attorneys frequently on labor relations. “I retired; I didn’t want any more to do with (attorneys).”

Briggs Cunningham has pored over details of the Tanglewood project for months along with other concerned Woodside residents.  He is pictured here among the many notebooks, maps, and diagrams he has collected, top and below. (Photo by Pamela Lawson - The Times)

But they have been forced to, nonetheless. And so have other residents like Robert Nevadomsky, board president of the Woodside HOA, and resident Briggs Cunningham.

“The best thing is to deny,” Cunningham said of the commissioners’ upcoming decision. “Will (Alan) Fishman make hundreds of millions on the project? No. But he will make millions without damaging people’s property rights.”

Fishman owns Sunset Management, a company affiliated with the joint venture between Ryland Homes and Land Securities Investments, which entered an agreement with WOW more than two years ago to build the housing project.

Ryland hopes to build about 449 homes in Pine Junction. If the 1041 is not approved to serve those homes, it can build only 26.

Cunningham can’t help but pore over water tests and schematics for the development. It’s in his nature, as a senior engineer at Lockheed Martin, to dig for details. His background also includes mapping targets for a defense program. And he also served on the Park County Planning Commission for five years and is familiar with Tanglewood more than most.

He believes he has found gaps in information and incorrect data presented by WOW and its developers on multiple occasions. And so do others.

Take the water rights.

Cunningham claims he has done extensive research on Elk Creek, rainfall and drought data back to the early 1900s — senior water rights and what augmentation means to them and more. It is a brave effort considering the complexity of water law.

“Toussaint just says, ‘Don’t worry your heads about all this; it’s taken care of,’ ” Cunningham said. “Whenever an engineer at my office says, ‘Don’t worry about it; we’ll take care of it,’ that sets off my alarms.”

If a water system, or any system is altered, and those involved do not stand back and look at the overall impacts, its tough to be certain about the outcome, Cunningham argues.

Take Ken Hutchison’s vision for the Village at Will-O-Wisp: One unexpected recession changed the entire outcome.

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