February 22, 2007

Smoking Gun?
Local family, HOA believes they have new evidence in Will-O-Wisp water rights issue.
"Reprinted courtesy of Evergreen Newspapers"

By Pamela Lawson
Staff Writer, High Timber Times

Vera and Drayton Dunwoody hold a bottle of barbeque sauce that led them to south Elk Creek and, inadvertently, to the ranch they purchased in 2002.  Vera loves history and researched much of it on the property before they bought the ranch. (Photo by Pamela Lawson – The Times)

You might say, in a loose sort of way, that it was a bottle of barbecue sauce that spiced up the latest debate over water rights on a section of Elk Creek that is key to a large subdivision being proposed in Pine Junction.

The makers of the sauce did, when they notified the Will-O-Wisp Metropolitan District this week of their claim to the Glasmann Ditch water decree(1), challenging the validity of the district’s claims to ownership of the Glasmann decree on Elk Creek.

Vera and Drayton Dunwody were curious tourists from Lakewood in the late 1990s when they came across Elk Falls Ranch on South Elk Creek Road.

They had spent considerable time photographing waterfalls to find one suitable for a bottle label for their prized sauce to market to the public. One such journey led them down the U.S. 285 Corridor after they spotted “Elk Falls” on a map in Staunton State Park.

In the process, they discovered Lions Head Mountain north of Shaffers Crossing and the stunning valley below it, a portion of which Anton Glasman homesteaded in 1885. They also discovered a “for sale” sign on a 21-acre parcel with lodge, sitting pretty along the snaking Elk Creek.

It was a small piece of a once-bigger picture that included Glassman's homestead, which later was owned by John Jenson. Jenson was a ranch manager of Glasman who bought the ranch from him in the 1920s, and grew it to several thousand acres.

Jenson passed it to his daughter Alice Jenson Berge, who, along with her husband, sold off lots to build the Elk Falls subdivision in the 1940s. Later, in 1966, she sold the remaining property to Elk Falls Development, a group that maintains old cabins there and keeps cattle on the land, as Vera Dunwody describes that history, today.

And Vera is passionate about history — both history and law, considering she is currently completing her law degree at the University of Denver.

She spent roughly two years researching the 21-acre parcel before she and Drayton bought it in 2002. It was enough time for Vera to discover that Glasman was savvy about water rights, having owned the land beneath the Brown Palace Hotel in Denver and drilling the artesian well that still serves that establishment.

Recently, while scrounging through the archives in Park County, she uncovered a document that she believes solidifies her rights — a document that Woodside HOA president Robert Nevadomski calls the “smoking gun” of evidence he needs in his legal case against WOW to protect his subdivision’s covenants from being condemned. The condemnation would allow the water district access to an easement on at least one of several lots in Woodside eyed for a pumping station and, in the future, a reservoir for a proposed 449-home project called Tanglewood.

• • • • • • • • • • • • • • • • • •

It was 1969 when the Colorado General Assembly authorized the use of augmentation plans — a court-approved strategy designed to protect senior water rights. That same year, according to the booklet “Citizen’s Guide to Colorado Water Law,” the legislature created seven water divisions, based on the major watersheds in the state, one of which was in Greeley.

The real estate market that followed in the 1970s was “wild and crazy,” Nevadomski will tell you.

Especially in Pine Junction, where multi-phase developments like the Woodside Subdivision had broken ground, and business encounters between some realtors and buyers hardly matched today’s standards for customer service.

“ ‘Here’s a map; go find your property,’ ” Nevadomski said, remembering a few of those experiences, including the occasional land auctions when the economy shifted uncomfortably and property was cheap.

He bought his first home in 1978 in Woodside unit 1. Four years later, he had purchased two more lots from developer George Hurst where he eventually built his current home near Magness Ranch in Woodside, unit 5.

According to Nevadomski’s recollection, it was 1971 when Hurst purchased the Schott Ranch — 1,600 acres of woodlands and clearings on the north side of U.S. 285 that eventually became units 1 through 5 of Woodside.

But over the next few years, as plans for a Woodside Reservoir surfaced and water resources were identified, they did not match the water rights that Hurst had obtained on Jones Creek when he bought Schott Ranch, Nevadomski claims, referencing information he has found on the development.

In fact, he said, the original location cited in the 1970s for the reservoir (and its water decree, obtained later) was in unit 1— nowhere near unit 5 where WOW has considered three different lots as possible locations for it.

Along the way, Hurst partnered with BorgWarner Corp., Nevadomski said, and that company formed Woodside Ltd., with Hurst acting as its agent.

Mountain Mutual and North Fork Associates, a water brokerage firm operated by Ron and Bill Blatchley, eventually acquired water rights from Woodside. It was the claim of the parties involved in the transaction that Woodside Ltd. owned the water rights that included the Glasman head gate, and deed documents were prepared during that time to use them.

By 1980, the Blatchley brothers had applied for a water right from Greeley Water Court to construct the reservoir based on that deed, and when no one stepped forward to object, they received a water decree.

Roughly three years later, Ken Hutchison, the developer of the Village at Will-O-Wisp, started his project in Pine Junction. Hutchison’s development was zoned for 872 dwelling units: 563 single-family homes, 201 townhomes and 108 apartments. It included the construction of the Will-O-Wisp Metropolitan Water District, and he planned to build a reservoir.

Hutchison obtained from Mountain Mutual a right to use the Woodside reservoir, and the Blatchleys would have built it, Bill Blatchley said.

Blatchley believes that arrangement provided easement rights on at least one Woodside lot to construct that reservoir and junior water rights to Glassman Ditch to replace water lost to evaporation.

“We were given a deed that deeded the Glassman Ditch to us, and that was sufficient as far as we were concerned,” Blatchley said this week. “We did not pursue (it) back to the origins of the ditch.”

(By 2006, the reservoir had not been built, and only 116 homes in the Village at Will-O-Wisp had been built. The proposed Tanglewood development, a 449-home joint venture between Ryland Homes and Land Securities Investments, is a continuation of that original plan, though the density of the project has been greatly reduced.)

Ray Liesman, a Division 1 water court referee in Greeley, said there are instances when a water decree is issued without the correct documentation, but that seldom occurs.

If a deed has been recorded in the clerk and recorder’s office of a given county, it is generally accepted at face value in Greeley, Liesman explained.

However, a lot of deeds are silent as far as water is concerned.

“It depends on the type of water right and if it’s a well and they have a deed to the land — we figure the well is probably going to go with the land, and we would accept that.”

And that’s where things get hazy involving the Woodside Ltd. deed.

The “smoking gun” document that Vera Dunwody found was missing from the 50 pages of paper trail she discovered at water court on the Woodside Ltd. decree, she said.

However, it was on an earlier decree dating to 1913.

This document represents "Exhibit A" or the smoking gun evidence that Vera Dunwoody says proves that water rights were never associated with the quadrant of land pictured (lower left corner) where the Glasman head gate is.  The property titled "Stockdale" later became the Schott Ranch, purchased in 1971 to develop Woodside Subdivision.  The map indicates, claims Dunwoody, that no water was available there but rather flowed further down Glasman Ditch where it was distributed. (Photo by Pamela Lawson – The Times)

The document, better known as “Exhibit A,” shows that the property Hurst bought from Schott could be traced back to the Stockdale family. On that property was the Glasman head gate and Glasman Ditch that fed water downstream for irrigation purposes to Glassman's property. But Stockdale did not own the rights to the water crossing his property, and Dunwody’s attorney sent that information and other details they believe are important to WOW’s attorney, Richard Toussaint, this week.

If there is evidence that a water right or decree has been obtained by means of fraudulent documents, then that matter must be taken up by a judge in water court, Liesman said. On rare occasions, a decree can be vacated.

Hurst was asked last week by High Timber Times staff to shed some light on the matter himself, but he had no comment.

Blatchley is aware of the recent conflicts between the Woodside HOA and WOW, but he has “no interest in the outcome.”

“The Glasman Ditch water rights will not make or break the operation of the district’s water plan,” Blatchley said.

Toussaint said WOW’s upcoming 1041 water application hearing before Park County commissioners on March 6 does not involve Glasman Ditch. It involves the Glasman head gate and the water rights associated with that point of diversion to access Elk Creek. The ditch is a separate issue, he said.

(Despite the above comment, one historic page folded into a 79 page point-by-point response by Toussaint’s firm to Park County planning staff Feb. 22, over the 1041 permit, does in fact reference the issue of the Glasman Ditch and who it believes owns it.)

Toussaint is cautious about responding in the media to the claims of others who do not always understand the legal documents submitted and instead cite cases or statues that don’t apply. They may have legitimate points, but they may not understand those points, he said.

The driving force for filing the 1041 permit application was the developer, who was reluctant to go forward until the pipeline and water plant were in place, Toussaint said.

Having a reservoir in Woodside to serve the district in the future is a valuable component, but it is not necessary to move the project forward and is therefore not attached to this 1041, he said.

Plans for the Woodside reservoir that he said could be a “long time” out would be “friendly to the environment, to the neighbors and friendly to the stream.”

But decisions over which lots might be affected by a reservoir continue to create tension between WOW and Woodside. The HOA (units 5 and 6) filed a legal petition against WOW in district court. And WOW has filed a petition to condemn lot 134 and to condemn the covenants of the Woodside Park Homeowners Association.

Which continues to fuel the concerns of individuals like Vera Dunwody and Nevadomski, who have independently researched what they believe are important loose ends involving the development.

Robert Nevadomski, who has been president of the Woodside HOA for the past 10 years, challenges that there are discrepancies in the details of the deed related to the Glasman head gate water rights that would serve the WOW district.

One valuable tool in determining water rights involves aerial photos, Leisman said, and Nevadomski has collected many of those over the years at Woodside, including aerials that he believes show discrepancies in the location of the head gate and creek after a wetlands was “drained” years ago by the developer that he claims altered the flow of water to resemble a new ditch.

Dunwody cites several amendments made to the water court decree over the years that she believes helped bury the original Exhibit A under additional paperwork.

Then there was the recent change in a tabulation record made by Water Commissioner Roger Mlodzik, who said he remedied what was believed to be an error in the location of the head gate. It was a concern raised by “others” and Mlodzik said he changed that record, but he does not believe the error was in the court decree.

But that location change, according to Nevadomski, exceeds the 200-foot legal relocation distance by about 130 feet. He and others hired a professional surveyor to survey the area for that reason and more.

Then there is the document circulating among Woodside residents that shows water tables that date back decades. A drought in the early 2000s that WOW used to illustrate worst-case impacts to Elk Creek was not the worst on the chart, they claim, saying that several other drought conditions in the ’30s and ’40s supersede it.

Mlodzik is frustrated by those who, he said, have been “grabbing at straws” to find flaw with the project.

“If these other people want to prove ownership, it’s a legal process; if they want to argue about right-of-ways, that’s a legal process. If they’ve got (water) tables, put them on the table,” Mlodzik said.

• • • • • • • • • • • • • • • • • •

It was 2005 when Vera Dunwody learned of the proposed Tanglewood subdivision. Woodside HOA members tracking down history about the Glasman Ditch approached a neighbor of Vera, and that neighbor gave them Vera’s name.

By then a panel of five Park County planning commissioners had heard countless angles on who owned the water rights to the head gate, ditch and creek, including testimony by one Woodside resident preparing to file a legal petition to protect his property from a possible reservoir related to the project.

When Vera presented her views on the alleged mistakes made in past documents and deeds dating to the 1980s, it irked one planning commissioner, who accused her of working for a member of the Woodside HOA.

“ ‘That’s a cute story, little lady,’ ” Vera said the commissioner told her at a public hearing.

The reaction was like cold water in the face, Vera said, noting her penchant for discovering things that others, at times, overlook. At 14 she was reading case law books in the back of the library where she worked. On short excursions with her husband in Colorado’s backcountry, the pair have found numerous unrecorded roads and have reported those roads to map companies. And on three different occasions, they discovered hikers who had been lost for several days.

The Dunwodys have not changed their stance on this matter, as evidenced by their declaration of water rights to WOW in 2005 and again last week through an attorney.

“If you lose the water, obviously it changes what it’s been used for forever — at least since 1885,” Vera said.

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(1)   03/01/07 Clarification:  "... claim to Glasmann Ditch" should read "claim to Glasmann Ditch water decree."

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