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2.0 BOCC Staff Report 04.12.2004
Exhibits for Mahan Exemption Public Hearing held on 4/12/04 xhibit Let :0Z A B Mail Receipts Proof of Publication C D E F Garfield County Zoning Regulations of 1978, as amended Garfield County Subdivision Regulations of 1984, as amended G H I Garfield County Comprehensive Plan of 2000 Application materials Staff Memorandum Letter from the Vegetation Manager, dated 4/6/04 Packet from Leavenworth & Karp, P.C. dated 4/7/04 J K L (The following were handed out at the hearing) Resolution 2002-71 M N Sentence Diagram & Packet from Roberta Mahan Two pages of photos handed out by Kathy Harris (neighbor) Termination of Deed Restrictions / Covenants documents Staff Power Point Presentation • • BOCC 4/12/04 FJ PROJECT INFORMATION AND STAFF COMMENTS REQUEST Exemption from the Definition of Subdivision APPLICANT Mahan Properties LOCATION A tract of land located in portions of Section 8, T7S, R89W, generally located approximately five (5) miles south of Glenwood Springs, off of County Road 126. SITE DATA WATER SEWER ACCESS EXISTING ZONING ADJACENT ZONING 20 acre parcel (approximately) Well Individual Sewage Disposal System CR 126 (Black Diamond Mine Road) ARRD ARRD / Open Space (BLM) I. DESCRIPTION OF THE PROPOSAL The Site: The parcel is bisected by CR 126 (Black Diamond Mine Road) across the northern portion of the property and is bordered by BLM on the north and private lands on all other sides. Existing improvements on the property include a single-family dwelling and an arts and crafts studio on the west side of the road and a guest house and two out buildings on the east side of the road. The tract contains some hillsides (slopes of 7 to 15 %) and generally covered by grasses, sage, and oak brush. The Proposal: The Applicant proposes to formally split their 20 acre property into two lots (Lot 1 having 5.66 acres and Lot 2 having 15.06 acres) indicating that Black Diamond Mine Road (CR 126) already effectively splits their property into the two lots. Domestic water source for the two lots would be shared from an existing well that currently has a West Divide contract. Existing ISDS would be utilized for sewage disposal purposes. Access to the properties would continue to be County Road 126. Lot 1 would contain the existing house and arts & crafts studio. Lot 2 would contain the guest house and various storage sheds. -1- • • II. PROPERTY / PROJECT HISTORY This request to split the subject property has been previously reviewed by the Board of County Commissioners on two separate occasions, once in 1989 and again in 2002. The Board conditionally approved the request in 1989 (James Mahan was the Applicant of record); however, the Applicant never submitted a Final Plat for approval by the Board due to a conflict with covenants on the land that prohibited further splits of the land. [The covenants were valid until January 1, 2000 and then automatically renewed for 10 year periods, unless they are changed by a majority vote. The Applicant submitted a document entitled "Termination of Protective Covenants and Deed Restrictions" which was recorded on December 20, 1999 which appears to be an agreement to terminate the terms of the covenants and deed restrictions by a majority of the property owners which include Mahan Properties and Kenneth Greene. As a result, it appears that is no longer an issue.] In 2002, the Applicant (James Mahan) submitted an application for an exemption to split the property into the same presently proposed configuration. The Board of County Commissioners denied the request, by a vote of 2 to 1, finding that the proposed split by a public right-of-way does not prevent joint use of the proposed tracts. This finding by the Board was memorialized in Resolution 2002-71, dated May, 20th, 2002. s) Subsequently, "Mahan Properties" (which consisted of James and Roberta Mahan) appealed the Board's decision to County District Court by filing a Rule 106 Petition for Judicial Review and Declaratory Judgment against the Board. The District Court Judge dismissed the claim against the Board finding the following: Since Mahan Properties is the owner of the land, the only remedy is dismissal because Mahan Properties was not a party before the Board of County Commissioners. Mahan Properties is similarly free to submit an application [to Garfield County, sic] for an exemption in its own name. Therefore, the merits of the decision to deny the exemption request by the Board were never discussed in District Court because the wrong party filed suit. If "James Mahan" had remained the owner of the property and filed the appeal in District Court rather than "Mahan Properties," the issue may have been discussed. As a result, the Board's decision to deny the exemption request remains the final outcome. Lastly, since the application filed by James Mahan in 2002 was denied by the Board, Section 8:32 of the Subdivision Regulations of 1984, as amended, states "An applicant denied exemption shall follow the subdivision procedure in these regulations." Even though the same application is being presently proposed as was denied in 2002, it is being proposed by "Mahan Properties" which is a different legal entity and owner than James Mahan and is entitled to be accepted under the County's land use regulations. -2- • • III. REFERRAL COMMENTS Staff referred the application to the following agencies / County Departments for their review and comment. Comments received are attached as exhibits and incorporated into the memorandum where applicable: a) City of Glenwood Springs: Letter in application materials. b) Glenwood Springs & Rural Fire Protection District: No Comment Received. c) Garfield County Road and Bridge Department: No issue with the proposal. d) Garfield County Vegetation Management Department (See Exhibit H) IV. RELATIONSHIP TO THE COMPREHENSIVE PLAN The subject property is located in Study Area I and is designated as "Low Density Residential" on the proposed land use district map of the Comprehensive Plan which suggests an overall density of 10 acres per dwelling unit or greater. The proposal, if approved, will result in an overall density of 10 acres per dwelling unit if the main house remains the only dwelling unit on Lot 1 and the guest house reverts to a primary unit on Lot 2. V. MAJOR ISSUES AND CONCERNS A. Subdivision Regulations. Section 8.52 of the Garfield County Subdivision Regulations states that "No more than a total of four (4) lots, parcels, interests or dwelling units will be created from any parcel, as that parcel was described in the records of the Garfield County Clerk and Recorder 's Office on January 1, 1973. In order to qualify for exemption, the parcel as it existed on January 1, 1973, must have been larger than thirty five (35) acres in size at that time and not a part of a recorded subdivision; however, any parcel to be divided by exemption that is split by a public right-of-way (State or Federal highway, County road or railroad), preventing joint use of the proposed tracts, and the division occurs along the public right-of- way, such parcels thereby created may, in the discretion of the Board, not be considered to have been created by exemption with regard to the four (4) lot, parcel, interest or dwelling unit limitation otherwise applicable. For the purposes of definition, all tracts of land thirty five (35) acres or greater in size, created after January 1, 1973, will count as parcels of land created by exemption since January 1, 1973." Staff Finding The property is physically split into two parcels by a road identified as County Road 126 (also known as Black Diamond Mine Road), which renders the Applicant eligible under the above criteria to request an exemption for the property. The language states: Any parcel to be divided by exemption that is split by a public right-of-way (State or Federal highway, County road or railroad), preventing joint use of the proposed tracts, and the division occurs along the public right-of-way, such parcels thereby created may, in the discretion of the Board not be considered to have been created by exemption with regard to the four (4) lot, parcel, interest or dwelling unit limitation otherwise applicable. -3- • • It should be noted, the roadway identified as CR 126 (Black Diamond Mine Road) is not deeded to Garfield County; however, Staff finds there is probable evidence to support a claim that "Black Diamond Mine Road" may be considered a county road due to regular county maintenance, state funds spent by the county on the road, the longevity of use (20 yrs.), the present signage, and its inclusion on the County Road System Map. As a result, Staff finds the property is eligible to request an exemption for the property. As a matter of background, the staff report for the exemption request which was denied in 2002 included the following information on the nature of Black Diamond Mine Road at that time. In 1975, Eugene & Glaphy Spear and William Nelson entered into a Road Easement Agreement that describes a 60 ft. wide access easement (30 ft. on each side of the centerline). It appears the easement was intended to serve a number of 20 to 40+ ac. tracts of land that existed at that time. Since that time a number of those tracts have been split further as a result of actions by the various Boards of County Commissioners. The Road & Bridge Department has been researching the status of the road based upon the County 's expenditures for improvements and funds received from the Highway Users Tax Fund (HUTF). It is staff understanding that there is a deeded right-of-way for the Black Diamond Mine Road, but it does not follow the same alignment as the previously noted road easement. There appears to be some confusion about the status of the various roads in the area. Preventing Joint Use The Applicant proposes that their property is split by Black Diamond Mine Road (CR 126). Staff agrees that this roadway splits their property. However, in order for the Board to grant an exemption for the creation of two lots split by a public right-of-way, the roadway must also "prevent joint use" of the two tracts. Staff finds that Black Diamond Mine Road does not prevent joint use of the tracts and presents the following for consideration to this end: 1) The Applicant purchased the property over seventeen (17) years ago in its current configuration with a main house and "barn" on the east side of the road and a cabin and two storage structures on the west side of the road. Over the last 17 years, the Applicant has improved four of these five structures (significantly renovating all the structures except the dug -out shed) and raised their family in and around these structures as if it were a family compound / "safe haven" even though a road ran between the structures. In fact, the Applicant continues to raise / host portions of their family on this property presently without being prevented from doing so by the road. 2) The Applicant has been able to raise a family on this compound over the last 17 years without being prevented from convenient use of all of the structures by simply walking across the road. The Applicant admitted to Staff that family members reside from time to time in both dwelling units (the main house and the cabin) and carry laundry back and forth across the road because the cabin does not have the facilities. Staff does not find that -4- • • the road has prevented or continues to prevent this activity from occurring as the cabin is presently occupied by family members as well as the main house. This is also true of the "storage unit" adjacent to the cabin which stores belongings of family members who reside in the main house / cabin. The roadway has not prevented them from using the structure as storage from either side of the road. 3) The Applicant's main issue appears to be that increasing traffic over the last 17 years on Black Diamond Mine Road has effectively prevented their use and enjoyment of these structures as a compound as once used. In addition, County maintenance practices / policies of the road prevents them from parking on the road forcing them to park their vehicles on their 20 -acre property. Staff finds this road is a dead-end road which receives only destination trips (local residents / users of BLM land only) and is not a road with typical "through" traffic that would significantly increase the number of trips. 4) As mentioned above, Black Diamond Mine Road was created as a private driveway (an easement over and across the "Black Diamond Mine Properties"). As recorded in the Clerk and Recorder's Office, the easement provides that in 1975, Eugene & Glaphy Spear and William Nelson entered into a Road Easement Agreement that describes a 60 ft. wide access easement (30 ft. on each side of the centerline). It appears the easement was intended to serve a number of 20 to 40+ ac. tracts of land that existed at that time. The County was not a party to this easement. However, to the financial benefit of the residents on that easement, the County has assumed its maintenance / signage over the last 20 years. While the road is maintained, the Applicant's family has used this private roadway for recreational 4 -wheeler use as well as their vehicular access. B. Zoning: The proposal meets the criteria of a two (2) acre minimum lot size as required by the A/R/RD zone district. However, by locating the new lot line separating the two lots down the middle of Black Diamond Mine Road, it renders the framed dugout and the storage building (on Lot 2) as non conforming structures because they would be located in the newly created front yard setback of 25 feet from the front property line or 50 feet from the centerline of the road whichever is more restrictive. Therefore, this proposed lot line creates a zoning violation for those two structures. Arguably, this non -conforming scenario exists today using the 50 foot from road centerline as the setback. [As a matter of zoning history (permitted uses) on the property, the Applicant received approval for a Conditional Use Permit for a studio for arts and crafts and a home occupation, memorialized by Resolution No. 98-06. Conditions of that approval required the Applicant to 1) have an engineer certify the adequacy of the ISDS serving the structure and 2) that the structure not be used for any other purpose than the home occupation and arts and crafts studio. The ISDS was permitted and verified as being adequate for the studio for arts & crafts/home occupation. Subsequent to the final inspections being done on the building permit to remodel the building for the studio for the arts & crafts and a home occupation, additional construction activity -5- • • occurred in violation of the Building Code and Zoning Resolution. The structure was converted to a two-bedroom dwelling. The Code Enforcement Office has visited the site and provided the applicants with a written statement regarding the issues that need to be resolved, prior to the County accepting the building as being in compliance with the regulations. At this point, plans have been submitted to the Building Department to verify compliance with the building code and the Code Enforcement office has verified that the structure is not being occupied.] C. Legal Access: Legal access can be provided from County Road 126 to both lots. The Applicant is using the County road as a basis for the split, as allowed by Section 8:52 of the Garfield Subdivision Regulations. Normally, the County would have the applicant dedicate a 60 ft. wide right-of-way for the road. As noted in a previous discussion, a road easement was filed in 1975 that created a 60 ft. wide road and has been shown on the proposed plat. The easement is between private parties and does not include the County, but the County has maintained the road for a number of years. If the road hasaa. been deeded to the County, the Applicant will need to provide a deed for a 60 ft. wide right-of-way for the County road, if they have the right to do so. C. Water: Domestic water for the property is provided by the "Davies Well" (15 gpm well) decreed by water court case # W-2572, appropriated in 1941 and decreed in 1974. This well was recently re -permitted under permit #239415 by the Division of Water Resources in April, 2002. This well permit states the well may provide water up to two (2) single-family dwellings, fire protection, watering of domestic animals, and the irrigation of not more than one acre of lawn / gardens. Subsequently, the Applicant obtained an augmentation contract from West Divide Water Conservancy District which was activated on January 15, 2004. This contract provides water from the Davies Well to serve up to three (3) single-family dwellings and up to 6,000 sq. ft. of irrigation water for lawn / gardens. At present, the subject property is allowed to contain two single-family dwelling units (the main house and the cabin). As a result, it appears the Applicant has provided adequate proof of a legal water supply. Regarding adequate physical supply, the Applicant provided a "spring water test" conducted by J & M Pump Co. in May, 2000 (four years ago). This test indicated that the "spring" water supply produced a flow of 15 gallons a minute and would be stored in a 5,000 gallon fiberglass storage tank. The report indicated that the supply and storage would be adequate to serve up to three single-family dwellings at 350 gallons per day per household. It remains unclear if this "spring" is the Davies Well. Prior to the signing of the plat, all physical water supplies shall demonstrate the following: a. That a four (4) hour pump test be performed on the well to be used; b. A well completion report demonstrating the depth of the well, the characteristics of the aquifer and the static water level; c. The results of the four (4) hour pump test indicating the pumping rate in gallons per minute and information showing drawdown and recharge; d. A written opinion of the person conducting the well test that this well should be adequate to supply water to the number of proposed lots; -6- • • e. An assumption of an average or no less than 3.5 people per dwelling unit, using 100 gallons of water per person, per day; f. The water quality be tested by an approved testing laboratory and meet State guidelines concerning bacteria, nitrates and suspended solids; g. A water sharing agreement will be filed with the exemption plat that defines the rights of the property owners to water from the well. Because the Applicant proposes to share the water from the Davies Well, they would need to craft a well sharing agreement, easements for the well and water lines before any plat could be approved. The Applicant shall submit a well sharing agreement that determines what entity (such as an HOA) owns, maintains, and governs the use of the well including the supporting infrastructure such as the pumphouse, pump, waterlines, etc. In addition, the agreement shall also determine who owns and administers the water rights provided for in the West Divide Water Conservancy District contract (#030821LC(a)). Lastly, the agreement shall include a reference to the easement depicted on the final exemption plat. This easement shall be recorded in the County Clerk and Recorder's Office and its book and page shall be noted on the final plat. [Either the applicant must record conveyance documents at the time of final plat if the easements and water rights will be owned by an entity such as an HOA, or conveyance documents must be created and signed when a lot is sold.] E. Sewer: Each of the lots has existing ISDS systems serving the legally placed dwelling units. The arts & crafts studio/home occupation has a legal ISDS that has been permitted by the County. The application does meet Sections 8:52 (D) and (E), which require a suitable type of sewage disposal, in compliance with the applicable local and state environmental health regulations. F. State and Local Health Standards: Colorado Department of Public Health & Environment ISDS standards require the County to issue an ISDS permit for all such systems installed in the County. Each of the ISDS on the property appears to be in compliance with the State and County ISDS regulations. G. Drainage: The parcel to be created by exemption, in its natural state, does not appear to be prone to flooding or other drainage problems. Site specific investigation prior to issuance of any additional building permits may be required. H. Fire Protection: The Applicant included a letter from the Glenwood Springs Rural Fire District, dated January 6, 2004, which acknowledges that the property is within the District boundaries and will be served. The letter also states that it should not be considered in any way an approval for any building and / or development plans that may be in the process of consideration by the Garfield County Building and Planning Department. The letter does not address any specific protection requirements. -7- • • I. Vegetation Management: The Vegetation Management Department requests the Applicant provide a map and inventory of any County Listed Noxious Weeds on the 20 acre parcel and provide a weed management plan that will address any inventoried noxious weeds. J. Easements: Any required easements (drainage, access, utilities, etc.) will be required to be shown on the exemption plat. This includes well and water line easements for the shared well / water system to serve both lots. Either the applicant must record conveyance documents at the time of final plat, if the easements and water rights will be owned by an entity such as an HOA, or conveyance documents must be created and signed when a lot is sold. K. School Impact Fees: The Applicant shall be required to pay a $200.00 school site acquisition fee for the newly created lot, prior to the approval of the exemption plat. L. Other Issues: Section 8:60 (I) requires the following statements be placed as plat notes on any subdivision exemption plat and other plat notes are standard for rural areas: 1. "Control of noxious weeds is the responsibility of the property owner." 2. "One (1) dog will be allowed for each residential unit within a subdivision and the dog shall be required to be confined within the owners property boundaries." 3. "No open hearth solid -fuel fireplaces will be allowed anywhere within an exemption. One (1) new solid -fuel burning stove as defied by C.R.S. 25-7-401, et. seq., and the regulations promulgated thereunder, will be allowed in any dwelling unit. All dwelling units will be allowed an unrestricted number of natural gas burning stoves and appliances". 4. "All exterior lighting shall be the minimum amount necessary and that all exterior lighting be directed inward and downward, towards the interior of the subdivision, except that provisions may be made to allow for safety lighting that goes beyond the property boundaries". 5. "Colorado is a "Right -to -Farm" State pursuant to C.R.S. 35-3-101, et seq. Landowners, residents and visitors must be prepared to accept the activities, sights, sounds and smells of Garfield County's agricultural operations as a normal and necessary aspect of living in a County with a strong rural character and a healthy ranching sector. Those with an urban sensitivity may perceive such activities, sights, sounds and smells only as inconvenience, eyesore, noise and odor. However, State law and County policy provide that ranching, farming or other agricultural activities and operations within Garfield County shall not be considered to be nuisances so long as operated in conformance with the law and in a non -negligent manner. Therefore, all must be prepared to encounter noises, odor, lights, mud, dust, smoke chemicals, machinery on public roads, livestock on public roads, storage and disposal of manure, and the application by spraying or otherwise of chemical fertilizers, soil -8- • • amendments, herbicides, and pesticides, any one or more of which may naturally occur as a part of a legal and non -negligent agricultural operations. 6. In addition, all owners of land, whether ranch or residence, have obligations under State law and County regulations with regard to the maintenance of fences and irrigation ditches, controlling weeds, keeping livestock and pets under control, using property in accordance with zoning, and other aspects of using and maintaining property. Residents and landowners are encouraged to learn about these rights and responsibilities and act as good neighbors and citizens of the County. A good introductory source for such information is "A Guide to Rural Living & Small Scale Agriculture" put out by the Colorado State University Extension Office in Garfield County." 7. Specific geological hazards may be encountered during the placement of structures and septic systems. Site specific analysis for placement may be required. VI. STAFF RECOMMENDATION Staff recommends the Board deny the application as proposed due to the inability to make a finding that Black Diamond Mine Road prevents joint use of the tracts that comprise the Applicant's property. Therefore, Staff finds that the application does not comply with Section 8:52 of the Garfield County Subdivision Regulations of 1984, as amended, which is stated here: "No more than a total offour (4) lots, parcels, interests or dwelling units will be created from any parcel, as that parcel was described in the records of the Garfield County Clerk and Recorder's Office on January 1, 1973. In order to qualifyfor exemption, the parcel as it existed on January 1, 1973, must have been larger than thirty five (35) acres in size at that time and not a part of a recorded subdivision; however, any parcel to be divided by exemption that is split by a public right-of-way (State or Federal highway, County road or railroad), preventing joint use of the proposed tracts, and the division occurs along the public right-of-way, such parcels thereby created may, in the discretion of the Board, not be considered to have been created by exemption with regard to the four (4) lot, parcel, interest or dwelling unit limitation otherwise applicable. For the purposes of definition, all tracts of land thirty five (35) acres or greater in size, created after January 1, 1973, will count as parcels of land created by exemption since January 1, 1973." VII. STAFF RECOMMENDED FINDINGS 1. That proper posting and public notice was provided as required for the meeting before the Board of County Commissioners. 2. That the meeting before the Board of County Commissioners was extensive and complete, that all pertinent facts, matters and issues were submitted and that all interested parties were heard at that meeting. 3. That for the above stated and other reasons, the proposed exemption has been determined to not be in the best interest of the health, safety, morals, convenience, -9- • 1 order, prosperity and welfare of the citizens of Garfield County. 4. That the application has not met the requirements of Section 8:52 (Exemption from the Definition of Subdivision) of the Garfield County Subdivision Resolution of 1984, as amended, finding that Black Diamond Mine Road does not prevent joint use of the tracts that comprise the Applicant's property. -10- • MEMORANDUM To: Fred Jarman From: Steve Anthony Re: Comments on the Mahan Exemption Date: April 6, 2004 EXHIBIT The Vegetation Management Department requests that the applicant provide a map and inventory of any County Listed Noxious Weeds on the 20 acre parcel and provide a weed management plan that will address any inventoried noxious weeds. • • Original Message From: Steve Anthony Sent: Friday, April 09, 2004 8:56 AM To: Fred Jarman Subject: RE: Hi Fred I talked to Roberta Mahan this am. She says they have no noxious weeds. I said just give us a written statement as such and we will be fine. Steve Original Message From: Fred Jarman Sent: Monday, April 05, 2004 1:52 PM To: Steve Anthony Subject: RE: Thanks Steve!! Original Message From: Steve Anthony Sent: Monday, April 05, 2004 2:29 PM To: Fred Jarman Subject: Here ya go Fred 3q7 G RFIFI 70.38434-7e 04 COUNTY" NOXIOUS WEED LIST Leafy spur se Russian kn weed Yellow sta histle Plumeless t istle Roundston, e Common b rdock 65t\L7A‘,k ) Scotch this anada this • e Spotted ktia weed Diffuse knapveed Dalroation tdflax Yellow toaax Hoary gess Saltccdar Saltcedar Oxeye Dais Jointed Goa rass Chicory Musk thistle Purple loos fe Russian oliv Scientific ttanie E.uphorbia esula Acropttlon repens Centaurea solrtita(i.r Carduus acanthoides Cynoglossum ofcincale Arctium minus Dnopordum acanthium Cirsium arvense Centaurea maculosa Centaurea difji.sa Linarta dalmatica Linaria vulgaris Cardaria drabu Tamarix panviflnra Jamarix ramosissima Chrysanthemum leucant Aegilops cylindrica Cichoriunm intybus Carduus nutans Lythrum salicaria Elaeagnus angustifolia cum 01 aglon F. 002 RECEIVED APR 0 9 2004 GARFIELD COUNTY BUILDING & PLANNING • GARFIELD COUNTY NOXIOUS WEED LIST Common name Leafy spurge Russian knapweed Yellow starthistle Plumeless thistle Houndstongue Common burdock Scotch thistle Canada thistle Spotted knapweed Diffuse knapweed Dalmation toadflax Yellow toadflax Hoary cress Saltcedar Saltcedar Oxeye Daisy Jointed Goatgrass Chicory Musk thistle Purple loosestrife Russian olive Scientific name Euphorbia esula Acroptilon repens Centaurea solstitalis Carduus acanthoides Cynoglossum officinale Arctium minus Onopordum acanthium Cirsium arvense Centaurea maculosa Centaurea diffusa Linaria dalmatica Linaria vulgaris Cardaria draba Tamarix parviflora Tamarix ramosissima Chrysanthemum leucantheum Aegilops cylindrica Cichorium intybus Carduus nutans Lythrum salicaria Elaeagnus angustifolia INDEX INDEX TO EXHIBITS 1. Timeline / chain of title chart 2. Timeline comparing Carnes and Williams subdivision exemption petitions in 1975 3. Location map and deed from David Davies to William Davies, Lleweln Davies, Charles Davies, Adeline Cleary, and Alice Kummer showing 260 acre parcel in existence as of September 23, 1966. 4. Location map, deeds, and single deed of trust showing how the 260 acre parcel was divided into seven separate parcels on May 20, 1974. 5. Carnes' Petition for Exemptions dated March 7, 1975; County Resolution granting petition dated March 17, 1975; Location map showing the three parcels created. 6. Order of the Garfield County District Court, Honorable J.E. Devilbiss, Case No. 89CV177, making findings of fact concerning representations by Ben E. Carnes to Board of County Commissioners in 1975. 7. Deeds from Ben E. Carnes to Collinson, Stephensons, and Sills, each attaching identical map showing entire area and each including covenants to prohibit further subdivision as represented to Board of County Commissioners on March 17, 1975. 8. Williams' Petition for Exemptions dated September 16, 1975; County Resolution granting petition dated October 20, 1975; Location map showing the three parcels created. 1-7 :i-/; rte_' / 5 1 1 1 1 1 1 1 1 1 1 1 1 David Davies cn a) cvsQ 13 P 1-4 Li > v ONccs N a) Q ¢ M cd) cUm �. Na cct Z a L, a:0 —a 1/40 <I 1/40 .. �' M N c a x a° a)W 4 VI CO cl .G 11/ (.7 ¢ a) U N v'1 > , M ¢ tcsCL ,cu O� 3 N d4. cd •t cd O cq cn ti U cd O Nct o0 a )'a' cn Z ¢ a --�� x cu 1.1.1 rn N "t ca O 0 cA O4] 5 0. an CG k a 0 O 2 a = o 0 > LEI t< .. U 0 > x — w a a) `tiU W = c ° b .-. O� cvc i- '0 cu b a- - 4�i 00 Ua)O U a - t4 co . a- 5a o U U r-uCd � V U t v7 cr,a' aa0 . CA > v -z '10 CU °+.0 CZ U¢•a3i o a acCI C/3 b Q )2 0> .c 0oaLn e U d czt i 00 = 5 3a .5 Q 1 • 1, �• 1 I It1 1 ;pi I 'ill : lU (W In nl Jt , I 1 - ft ~'v1. .,t • I b'( �fiaY ' vt;cr • F• AZ f I .1� • • -I Ul �_ •rl —as lax ,.r b a tN...•••••••••,, to A 1 1 oweerstitp 9/i3/66 +0 Sbobgi 1 /2 - EXHIBIT EXHIBIT 3 Reception No: arllr%li l::l:l::. :.i. i'.CC+"°J Il Recorder. THIS DEED, Made this 23rd 4).44' September in the year of our Lord one thousand nine hundred and sixty-six between DAVID DAVIES, also known as DAVE DAVIES City of Washington, District of Columbia, of the ii;autBclaik ;auA'St;mt3occRubtoado; of Iho first part, and WILLIAM II. DAVIES, of San Joaquin County, California; LLEWELYN DAVIES, of Mesa County, Colorado; CHARLES G. DAVIES, of Los Angeles County, California; ADELINE E. CLEARY, of Fort Monroe, Virginia; and •: ALICE E. KUMMER, seTravemunde Scheteli.gstrasse,/West Germany, of }lea Mpy,tt MblxStxu0olLXlsh3t10X, of the second part, \VITNESSETII, That the said partY of the first part, for and in consideration of the sum of TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION X *I1ilitlt to the said party of the first part in band paid by tho said parties of the second part, the receipt whereof is hereby confessed and acknowledged, ha s remised, released, Sold, conveyed and Quit-Claiulcd, and by these presents do es remise, release, sell convey and Quit -Claim auto the said parties of the not in tenancy in common but in joint tenancy, second part their heirs and assigns forever,411 the right, title, interest, claim and demand which the said part4f the first part ha s in and to the following described lots or parcels of land situate, lying. and being in the County of Garfield and State of Colorado, to -wit: PARCEL NO. 1 The W 1/2 SW 1/4, and the S 1/2 NW 1/4, the NW 1/4 SE 1/4, and the SW 1/4 NE 1/4, and Lots 1, 4, and 6 all in Section 9, Tp. 7 S., R. 89 W., 6th P. M., containing 260.23 acres, more or less. Subject to all rights of way for railroads, ditches, reservoirs, public highways, private roads, pole or pipe lines, or any other !' public or private right of way or easement now existing upon, over or across said lands, or any part thereof. EXCEPTING THEREFROM a tract of land conveyed to Herman Doose by Quit Claim Deed dated January 23, 1946 and recorded in the office of the Clerk and Recorder of Garfield County, Colorado as Document No. 156638 in book 217 at page 235 thereof, described as follows, to -wit: i!u Lots 4 and 6, Section 9, Tp. 7 S., R. 89 W., 6th P. M., and ii that part of the NW 1/4 SE 1/4, Sec, 9, Tp. 7 S., R. 89 W., 6th P. M., lying South and Southeast of a line extended from a point 100 feet South of the Northeast corner of said NW 1/4 SE 1/4, southwesterly to a point 100 feet North of the Southwest corner of said NW 1/4 SE 1/4, said Sec. 9, containing 27.38 acres, more or less. PARCEL NO. 2 All of first nar.ty's right, title, interest, claim and demand in and to all coal mines, coal veins and deposits, found or to be • found under or within the lines or area of the following described lands, to -wit: II li No. 756.0U1'1• CLAIM DEE•a,—H. 4(ord-aoWnooll 1'12, Co. Mtn. Robisounia Legal Munk*, 1841-18 Stout 81.. Douvar, Colorado Book ;;?9) Pale 2.45 East Half of the Southwest Quarter (E 1/2 SW 1/4), Northwest Quarter ; of the Southwest Quarter (NW 1/4 SW 1/4), Section Five (5); West !llalf of the Northeast Quarter (W 1/2 NE 1/4), Northeast Quarter of 1 the Northwest Quarter (NE 1/4 NW 1/4), Section Eight (8); Northwest 1 Quarter of the Southeast Quarter (NW 1/4 SE 1/4), Southwest Quarter 1 of the Southeast Quarter (SW 1/4 SE 1/4), Section Eight (8), Town - 1 ship Seven (7) South, Range Eighty-nine (89) West of the 6th Prin- cipal Meridian, containing 320 acres, more or less; together with their dips, with such reasonable use of the surface ground as may be necessary to win, work, and carry away said coal. PARCEL NO. 3 Forty-six percent (46%) of all oil and gas, metals, ores, gold and silver bearing quartz, minerals, lodes, veins, and deposits, other than coal, coal veins and deposits of coal found or to be found un- der or within the line or area of the lands described in Parcel 2, hereof, together with their dips, spurs and angles; provided how- ever, that first party reserves unto himself the privilege, right and authority to approve or disapprove and to determine fully, in all respects, what, if any, prospecting or development operations, including the mining and removing of all minerals in this Parcel 3 described, shall be carried on or done in relation to all oil and gas and minerals in this Parcel 3 described. TO IIAVE AND TO BOLD THE SAME, Together with all and singular the appurtenances and privi- leges thereunto belonging or in anywise thereunto appertaining, and all the estate, right, title, interest and claim whatsoever of the said part y of the first part, either in law or equity, to the only proper use, benefit and behoof of the said parties of the second part, their heirs and assigns, forever, I; not in tenancy in common but in joint tenancy. IN WITNESS WHEREOF, Tho said part y of the first part ha s hereunto set his hand and seal the day and year first above written. Signed, Sealed and Delivered in Presence of0/6U�� AW -4 .•(SEAL) 15A D DAVIES, also known as DAVE DAVIES (SEAT.) ' t (SEAL) (SEAL) STATE OF COLORADO, County of GARFIELD }ss. I, ROBERT S. ZIMMERMAN, a Notary Public in and for said County in the State aforesaid, do hereby certify that DAVID DAVIES, also known as DAVE DAVIES personally known to mo to be the person whose name subscribed to the foregoing Deed, appeared before me this day in person, and aelanowledged that he signed, sealed and delivered the'said instru- ment of writing as his free and voluntary act for the uses and purposes therein set forth. Given under any hand and notarial seal, this 23rd day !1 (: of September My Commission expires A. D. 1966. July 16 19 68. 1 1 tary.....Public ...... ._.._.__._..... 1 1 1 1 1 1 1 1 1 1 1 , • -P Il(tii '1 ' , mo i I. ,• :I r r 1I ( r-- C •g -A:. 1 ,"•:•7::.%.-_:! (1 71 •I�.�,+'yt V pert .: i�._, .. _ � ^=-.. " . I" • +1 _ stn/QCT•'- i1I 1 e'° w .. 1211n r1_� q cn k fl ` 'i\�\� ••` ,, c Yl�l! r • `r,,t � ,i r c cl1 i -� �1 \ \ 3� E _. ,. • I a A co \• <. .' 6' 1'141 C;'-Y•f+"F� \J/ D a b ul W � it iU N a) 11-1 LB .0 C9 - 44 0 14 -4. d).4 0 14 10 N .3. 0 4-I00 U U 0 er 0 N ,--I C! 0 r -i 2S'O 0 EXHIBIT 4 CHARLES G. DAVIES, WILLIAM Il. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E. KUK1ER, whose address is County of , State of , for the consideration of Ten )ollars and other good and valuable consideration, dollars, in hand paid, hereby sell (s) and convey (s) to WILLIAM H. NELSON whose address is 444 White Avenue, Mesa , and State of Colorado i.:;),:; i:.in:t FIE MAY 4: 197,1 • County of the following real property in the County of Garfield , and State of Colorado, to wit: Section 9, Township 7 South, Range 89 West, 6th P.M.: • Lot 1 and that part of the NWSE?;, together with all mineral rights and all improvements now situated on the property, TOGETHER WITH all water, water rights, ditch and ditch rights, spring and pipeline rights, appurtenant to the above described property. EXCEPTING THEREFROM a tract of land conveyed to Herman Doose by Quit Claim Deed dated January 23, 1946 and recorded in office of Clerk and Recorder of Garf ield County, Colorado as Document No. 156638 in Book 217 at Page 235 thereof, described as follows, to wit: Lots 4 and 6, Section 9, Township 7 South, Range 89 West, 6th P.M. and that part of the NW*SE, Section 9, Township 7 South, Range 89 West, 6th P.M., lying South and Southeast of a line extended from a point 100 feet South of the Northeast corner of said NW -SE}, Southwesterly to a poir 100 feet North of the Southwest corner of said NW*SEi, said Section 9, containing 27.38 acres, more or less. GRANTORS RESERVE to themselves a right to receive 1/2 of landowner's share of any royalty payable by reason of the extraction of oil, coal or other minerals from the above described property; each of the above named grantors shall have an undivided 1/5th interest in such' reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such minerals, their rights being solely Um - to receive royalty, if ,as and when production actually occurs on the with ail its appurtenances, and warrant (s) the title to the same, subject to property. easements, restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. P MAY, 97 a Recorded at J o'clock At., IPI " 1 / , ) t:.. .:. 1, J1f t 81111!,Yi:j9 I'aI� ��,.4$ Reception No...r 4 .�. Recorder. ';,g,Taedy//) 20 day of - May , 19 l Qe A le',e-iy pa :es 1 Ad'/ 'Tini3...E.: Ct-any- (�/j/ L Cc c. i - 4,64 yJ-Ci, , C e: �. vres Alice E. 1 ummer iam Q STATE OF COLORADO, County of Garfield The foregoing instrument was acknowledged before me this 20 day of May , 1974 , by Charles G. Davies, William 11. Davies, Llewelyn Davies, Adeline E. Cleary, Alice E. Kummer commission expires 7 January 1978 :,1Yltnens.My hand and official seal. • r /� l7 liGLl4 _Li'l -J Notary Publlo Statutory Aoku,iet:vliiment.—If by natmrnl percon or poraons here tnnort name or names; if by person seting In representative or official c':parlly or its attorney -in -tact tl.mt Inuort panto of person an acrcutor attornuyIn•tnct or other rapacity or drscrlp- llun; It d, off!cor of corporation then Insert name of ouch officer or officers es tint prealdant or other officers of suclt cor- poration uuwhut It t t ed Na. 897. Warranty Deed—Short Parm—bee. 1111•1.13. C.119. 1117—•Uradront Publishing Co., 13:1-/6 gloat Street. Daov.r. Colorado -1.13 Recorded at.. 3 0� o'clock �pt , �s7 .�.... f; ] rnp,Y Reception No f.r.l7.A?.ua Recorder. PAGE34: CHARLES G. DAVIES, WILLIAM H. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E,. KUMMER, whose address is • County of , State of , for the consideration of Ten Dollars and other good and valuable consideration giRbin, in hand paid, hereby sell(s) and convey(s) to f(( orr,, i BURR BOLEN whose address is 444 White Avenue, Grand Junction County of Mesa , and State of Colorado the following real property in the County of Garfield , and State of Colorado, to wit: Section 9, Township 7 South, Range 89 West, 6th P.M.: NW*SW* TOGETHER I`IITH all water, water rights, ditch and ditch rights, spring and pipeline rights, appurtenant to the above described property; GRANTORS RESERVE to themselves a right to receive one-half of landowner's share of any royalty payable by reason of the ex- traction of oil, coal or other minerals from the above described property; each of the above named grantors shall have an undivided one-fifth interest in such reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such minerals, their rights being solely limited to receive royalty if, as and when production actually occurs on the property. with all its appurtenances, and warrant(s) the title to the same, subject to easements , restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. William H. Davies STATE OF COLORADO, County of Garfield }Bs. ,19 7 . i L ewe ynJ] vvzS ..a.. Gii ((�� e4 , -Ade ine L C1er}� Alice E. Ku er Tho foregoing instrument was acknowledged before me this 20 day of May , 19 74, by Charles G. Davies, William 11. Davies, .lewelyn Davies, Adeline E. Cleary, Alice E. Kummer My commission expires 7 January 1978 "'Witness my hand and official seal. l tgli-Z-1V"(i'j I. ,` hili , 'i:: r Notary Public .S)•. r -•:.r. giatufurp,Arknouaedotntrat.-7f by natural person or persona here Invert name or names; If by poreon acting In representative or nffIrtal eap.urtry:or as attorney -In -fact lien Insect name of prreun ax executer atternoy-In•fact or othor capacity or tlrrWrip. lien; If by ••f (leer of corporation then !exert nano of such officer er offices ax M. ProaWent er otter officer. of ascii cor- puratWTI n.tinhul;tl .; No. 897. Warranty 1)e+.l—Hhart FermiSee. 111-1.17. C.R.H. IDQ--Orw.IfurJ Publl.l.Ins Co.. (0:4-10 Stunt Street. Dearer. G.brWo-4-73 Recorded at ui»,459 rAut v ORe.:eption 3 ' &ciock f' M., ,,...........G111`j...2 1..1974. n `- Recorder. CHARLES G. DAVIES, WILLLM1 11. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E.. KUMMER, whose address is County of , State of , for the consideration of Ten Dol- lars and other good and valuable consideratior dn}bxs, in hand paid, hereby sell (s) and convey(s) to r,l�t 2 i'197t: WILLIAM RUMP whose address is 444 White Avenue, Grand Junction County of Mesa , and State of Colorado the following real property in the County of Garfield , and State of Colorado, to wit: Section 9, Township 7 South, Range 89 West, 6th P.M.: SW*SW* TOGETHER WITH all water, water rights, ditch and ditch rights, spring and pipeline rights, appurtenant to the above described property; GRANTORS RESERVE to themselves a right to receive one-half of landowner's share of any royalty payable by reason of the ex- traction of oil, coal or other minerals from the above described property; each of the above named grantors shall have an undivided one-fifth interest in such reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such mierals,eir rights being actuallylely occursmonettheoreceive royalty if, property. • with all its appurtenances, and warrant(s) the title to the same, subject to easements, restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments, 20 day of („ moi/ Lew t:s':e Davie y Ade) ne illiam H. Davies STATE OF COLORADO, Alice E. Kummer County of Garfield The foregoing instrument was acknowledged before me this 20 day of May ,19 714, by Charles G. Davies, William H. Davies, ..lewelyn Davies, Adeline E. Cleary, Alice E. Kummer ,,. My, commission expires 7 January 1978 . ;.W mess my hand and official seal. •(� �� 4d , Notary Pulltla • (.1 \ i.,. or Stat utll Inl mini lir or its attornenatural y -in -(a t thoui or name of perann WA osr:utnr attorney -In -fact curaother c capacity Uetsca'IU- Ono: If try ptrtorr of curporatlun thou Mewl name of ouch officer or otflcure W Ow president or other officers of each cor- , Imre tion naming It. ,197 - ss. 2.71- No. 7L No. 07. W 157 Mod—Short Yorm—Uee. Its -1-53, C.R.H. 1st]--Uradford PiLllaldnu Co.: ItlZb/s Stoet Stmt. Dom.,. Colorado —4 3 Jia pp Recorded at - /--- n'cf.lck..-./.......tit., ..,.... M8Y_.? .474 ........................ C' / 26309. ,1 y� r' Reception No. .Record11r. BOW:459 FM.;€ J� CHARLES G. DAVIES, WILLIAM H. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E., KUhMMER, whose address is County of , State of , for the consideration of Ten Dol- lars and other good and valuable consideration, (jflkim, in hand paid, hereby sell (s) and convey (s) to HENRY FAUSSONE whose address is 444 White Avenue, Grand Junction i'vll\Y e21_µ County of Mesa , and State of Colorado the following real property in the County of Garf ield , and State of Colorado, to wit: Section 9, Township 7 South, Range 89 West, 6th P.M.: SWgNWi TOGETHER WITH all water, water rights, ditch and ditch rights, spring and pipeline rights, appurtenant to the above described property; GRANTORS RESERVE to themselves a right to receive one-half of landowner's share of any royalty payable by reason of the ex- traction of oil, coal or other minerals from the above described property; each of the above named grantors shall have an undivided one-fifth interest in such reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such minerals, their rights being solely limited to receive royalty if, as and when production actually occurs on the property. with all its appurtenances, and warrants) the title to the same, subject to easements, restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. thi 7/ 20 day of May , 19 7 t Idle e l av i p Ct�c ..idla ine�i �. 1e. y d Ade ine r� Alice E. Kummer illiam 1i. Davies STATE OF COLORADO, County of Garfield The foregoing instrument was acknowledged before me this 20 day of May , 19 74 , by Charles G. Dvaies, William H Davies, .lewelyn Davies, Adeline E. Cleary, Alice E. Kummer My commission expires Witne a my hand and official seal. fatt?� 7 January 1978 L60,41.Y lklill� Notary Public Htululorp Ackn,n imA,ntvut.—If by natural prraoa or pornone here innort ;menet or ;anion; if by portion acting In repreoentntivn or official unk.. Ity. .r.• tie attorney -111 -fact ti Insort name of portion ,e oxccnb.r attnn,oyh.-fact or other capacity ur deactip- tom; If by of fie.•r..1 corporation than ln:uorl name of much officer or u((Icore as t o president or other officer. of ouch eur- potation naml.io'14 No. 891. W•rlenty Ilwd--Short Perm—See. 111-1.13. C.1t.S. I1(3—hr.dConl rohlhhloa Co., 182.1.46 Stout S , Denver, Colorado --4.73 1 n Recorded al .i o'clock...I M. . r. BO j 459 FACE 2S Reception No....��.t3�..W5 t MPY .2 1. 1974 i--- Recorder. CHARLES G. DAVIES, WILLIAM 11. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E. KUMMER, whose address is County of , State of , for the consideration of Ten Dol- lars and other good and valuable consideration, xioJJ os, in hand paid, hereby sell (s) and convey (s) to HARRY E. WILLIAMS whose address is 444 White Avenue, Grand Junction Mesa . 1 i97ii County of , and State of Colorado the following real property in the County of Garfield , and State of Colorado, to wit: Section 9, Township 7 South, Range 89 West, 6th P.M.: S E 4NW* TOGETHER WITH. all water, water rights, ditch and ditch rights, spring and pipeline rights, appurtenant to the above described property; GRANTORS RESERVE to themselves a right to receive one-half of landowner's share of any royalty payable by reason of the ex- traction of oil, coal or other minerals from the above described property; each of the above named grantors shall have an undivided one-fifth interest in such reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such minerals, their rights being solely limited to receive royalty if, as and when production actually occurs on the property. with all ita appurtenances, and warrants) the title to the same, subject to easements , restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. . 20 day of May , 19 74 welyn7D W lliam H. Davies STATE OF COLORADO, County of Garfield • AdeLi..ne C lea Alice E. Kumme SS. The foregoing instrument was acknowledged before me this 20 day of May , 19 74 , by Charles G. Davies, William 11. Davies Llewelyn Davies, Adeline E. Cleary, Alice E. Kummer ' My commission expires 7 January 1978 •:witncaq•prly hand and official seal. '-...&€,,,4 C,00 - e7 ...,G Statutory Ackno,niodyrnent.—If by natural person or persona bore Insert name or names; If by person meting In representative or oftictal rayJwIty ,r ea attorney -hi -fact than tn,ert name of portion no executor attorney -In -tact or other capacity or desorlo• thin; If by officer of corporation then Insert name of ouch officer or officers oa the pro.1dent or other otCIoere of such cor- purutlou naming tt. Notary Publics No. BOT. Warrant/ need—Short Form—See. It8-1-17. C.R.S. 10113—Uradford robliehln9 Co., 1924.40 Stout Street, Denver, Colorado —443 CHARLES G. DAVIES, WILLIAM H. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E. KUMMER, whose address is - ......' (:E ap,t(,.' .1..1974 County of , State of , for the consideration ofTe n Dol - lar s ol- lars and other good and valuable consideration, giglbrA, in hand paid, hereby sell(s) and convey(s) to • BEN E. CARNES whose address is 444 White Avenue, Grand Junction , Mesa County of , and State of Colorado the following real property in the County of Garf ield , and State of Colorado, to wit: Section 9, 'Township 7 South, Range 89 West, 6th P.M.: SW+NE1 TOGETHER WITH all water, water rights, ditch and ditch rights, spring and pipeline rights, appurtenant to the above described property; 1_ y,7 Recorded at —3 o'clock...1 r ' Reception No....... 1 V Recorder. Bou.459 ? GE :35. 3RANTORS RESERVE to themselves a richt to receive one-half of landowner's share of any royalty payable by reason of the ex- traction of oil, coal or other minerals from the above described property; each of the above named grantors shall have an undivided one-fifth interest in such reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such minerals, their rights being solely limited to receive royalty if, as and when production actually occurs on the property. with all its appurtenances, and warrant(s) the title to the same, subject to easements, restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. // ,/,,//fes' Ces G. Davies William H. Da ies STATE OF COLORADO, County of Garfield }ss. Ma ewe xiij7I}av ies AA T irre- ted ry ,187; Alice E. Kummer The foregoing instrument was acknowledged before me this 20 day of May ,19 74 ,by Charles G. Davies, William H. Davies, L].ewelyn Davies, Adeline E. Cleary, Alice E. Kummer 7 My commission expires January 1978 ,..,Witness my hand and official seal. .0. Notary rubtlo 8fotwfont Apketinnte tptnanf.—It by natural person or persons hers Invert name or names: If by person sons In representative or of/lnlat C94pncIIy ur na attorlloy-In-tact Then Insert anon, of person our executor attorney -In -fact or other capacity or d,aertp- tlun 1 it by ufllcer of corporation then Insert owns of such officer ur officers an the prealdent ur other officers of such cor- poration amain.[ It. No. 897."' W.rreely lived—Short yens—Seo 111-1-13. C.11.9. 1943-11reolfurJ p00i01 nu Ca.. 192.1-ts Stout Street. D . Colorado —443 , Recorded at.........-............................ .....i n 1'..1 197 BO4 bt.459 PGE++-�'�Reception Nu.....t •.• :• " (cvy Recorder. CHARLES G. DAVIES, WILLIAM H. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E. KUMMER, whose address is County of , State of , for the consideration of Ten Dol- lars and other good and valuable consideration 1198t1s, in hand paid, hereby sell (s) and convey (s) to WILLIAM li. NELSON, BEN E. CARNES, HARRY E. WILLIAMS, HENRY FAUSSONE, BURR BOLEN, WILLIAM RUMP, and PATRICK M. FITZGERALD, whose address is 444 White Avenue, Grand Junction i.E MAY 21 1(174 County of Mesa , and State of Colorado the following real property in the County of Garf ield , and State of Colorado, to wit: All of grantors' right, title, interest, claim and demand in and to all coal mines, coal veins and deposits, found or to be found under or within the lines or area of the following described lands, to wit: NWi,SW*, Section 5, WzNE4, NEiNW*, Section 8, NW SEt, SW-iSE1;, Section 8, Township 7 South, Range 89 idejt, 6th P.M., containing 320 acres, more or less; TOGETHER WITH their dips, with such reasonable use of the surface ground as may be necessary to win, work, and carry away said coal; TOGETHER WITH all water, water rights, ditch and ditch rights, sprit and pipeline rights, appurtenant to the above described property; GRANTORS RESERVE to themselves a right to receive one-half of land- owner's share of any royalty payable by reason of the extraction of oil, coal or other minerals from the above described property; each of the above named grantors shall have an undivided one-fifth inter est in such reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such minerals, their rights beim solely limited to receive royalty, if, as and when production actually occurs on the property. with all its appurtenances, and warrant(s) the title to the same, subject to easements, restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. William H. Davies STATE OF COLORADO, County of Garfield The foregoing instrument was acknowledged before me this 20 day of May ,1974 ,by Charles G. Davies, William H. Davies, Llewelyn Davies, Adeline E. Cleary, Alice E. Kummer My commission expires 7 January 1978 1Yithand and official seal. .` "�ness i. tmy i- Notary Yubllo G \- Stu ulury xrloiperrtmttlotf,i .-Il by natural person or poroonn bora tneert name or names: if by parson anttng In representative or official rnt,U IL -y i'r ss.attorney-to-tnet then Insert nomas of prreon an executor uttmmoyIn•fact or other capacity or deucrlp- t1on: If by oflLttr of oorporalton tion Innen name of such officer or officers as the preald.ot or other offh:ent of such cor- vor tIo'LeWn(; lL .1974 L weIJ�j av s P ift,C. . 1 L AGK L e i.ne E. L+V•rIeary, Uj Alice E. Kummer/ Nu. a97. warranty neva-short r.r.a-see. ua1•13. C.a.s. 1nG3-umdwra I'.hh.hlna Co., test -441 stout Street. Denver. Colorado -1-I3 ? i Recorded ut ..1 o'clock...✓'- M., MAY 211974 x' Reception Nu.....f�:y.3�:�.;.j'JW`.: Recorder. BfiUc459 'AGE 351 CHARLES G. DAVIES, WILLIAM Il. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E. KUMMER, whose address is County of , State of , for the consideration of Ten Dol- lars and other good and valuable consideration, :dadiairz in hand paid, hereby sell(s) and convey(s) to WILLIAM -H. NELSON, BEN E. CARNES, HARRY E. Fit WILLIAMS, HENRY FAUSSONE, BURR BOLEN, WILLIAM RUMP, and whose PATRICK FITZGERALD, 444 White Avenue, Grand Junction r County of Mesa , and State of Colorado the following real property in the County of Garfield , and State of Colorado, to wit: Forty-six per cent (46%) of all oil and gas, metals, ores, gold and silver bearingquartz, minerals, lodes, veins, and deposits, other than coal, coal veins and deposits of coal found or to be found under or within the line or area of the lands described as: ESW, NW4SWn, Section 5, WINEI, NE4NW*, Section 8, NW*SE-3•, SW*SE}, Section 8, Township 7 South, Range 89 West, 6th P.M., containing 320 acres, more or less; TOGETHER WITH their dips, spurs and angles; TOGETHER WITH all water, water rights, ditch and ditch rights, spring and pipeline rights, appurtenant to the above described property; GRANTORS RESERVE to themselves a right to -receive one-half of landowner's share of any royalty payable by reason of the extrac- tion of oil, coal or other minerals from the above described prop- erty; each of the above named grantors shall have an undivided one-fifth interest in such reserved royalty interest; provided, however, grantors convey all rights to participate in any respect in the management, leasing or other proprietorship in such minerals their rights being solely limited to receive royalty, if, as and when production actually occurs on the property. with all its appurtenances, and warrant(s) the title to the same, subject to easements, restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. rg/n/e L'harles U. Davies • ( /720 if day of • William H. Davies STATE OF COLORADO, County of Garfield iL f'�t.v P a I n a nes ,..7 e ,x e, �.'. L'. L .fc Ade -ine Ii': G e yy Alice E. Kummer The foregoing instrument was acicnowlcdged before me this 20 day of • May ,1974 ,by Charles G. Davies, William H. Davies, Llewelyn Davies, Adeline E. Cleary, Alice E. Kummer "'•'Mycommission expires 7 January 1978 :.Witness my hand and official seal. •c is,f. a•1 C.JS( ..� 1!La! Gi tCdl 5.} ; Notary PubtW \•. a • Statutory Achhuwtciloment.-1( by natural pernon or penman hero insert namo or names It by person acting In representative or official rapacity or as attorney -In -fact then Insert nanur ot person as ezecahrr attorney -In -feet or other capacity or descrlp- thut; If by u(ticur ot corporation then Insert name of such officer or oftlem, as Wo prosldent or other °Moors of such oor- purathe. owning IL No. 897. W.n.ntr Decd—Short ',no—See. 110.1.13. C.R.S. I U—Bradford Publishins Co.. I0^.1.10 Stout Street, Denver. Colorado -1.73 • Recorded at -7 o'clock Reception No. r; r 3 f i e .9 boGN459.rAGE3E6 �� 11 M. MAY 1 197-1 Book DEED OF TRUST Page Recorder THIS INDENTURE, Made this .90 'itday of A , 1974 , between WILLIAM H. NELSON, BEN E. CARNES, HARRY E. WILLIAMS, HENRY FAUSSONE, BURR BOLEN, PATRICK M. FITZGERALD, and WhoseLadess 8i U4P' hereinafter referred to collectively as "First Party," and the Public Trustee of Garf field County, State of Colorado, party of the second part, WITNESSETH: THAT WHEREAS The said First Party has executed their promissory note (hereinafter designated "note") bearing even date herewith for the total principal sum of --TWO HUNDRED TWENTY-FIVE THOUSAND AND NO/100($225,000.00)-- Dollars, payable to the order of CHARLES G. DAVIES, WILLIAM H. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E. KUMMER, as tenants in c ommon whose atldreds is after date thereof, with interest thereon from the date thereof at the rate of 8 1/2 per cent per annum payable in installments of not less than the following amounts; a) The sum of $25,000.00, principal and interest, on or before one year from date; b) The sum of $34,292.25, principal and interest, on or before the 20th day of May. , 1976, and the same day of May in each year thereafter until fully paid, with•the entire balance of principal and interest due and payable on or before ten (10) years from date. (The Legal Holder of note being hereinafter referred to as "Beneficiary"), AND WHEREAS, The said party of the first part is desirous of securing the payment of the principal and interest of said promissory note. NOW, THEREFORE, The said party of the first part, in consideration of the premises, and for the purpose aforesaid, does hereby grant, bargain, sell and convey unto the said party of the second part, in trust forever, the following described property situate in the County of Garfield and State of Colorado, to -wit: PARCEL NO. 1 The W1 Sk'!t, and the Sl5NW1/4, the NW'•4SE1t, and the SWi NE4, and Lots 1, 4 and 6 all in Section 9, Tp. 7 S., R. 69 W., 6th P.M., containing 260.23 acres, more or less. EXCCPTDNG THEREFROM a tract of land conveyed to Berman Doose by Quit Claim Deed dated January 23, 1946 and recorded in the office of the Clerk and Recorder of Garfield County, Colorado as Document No. 156638 in Book 217 at page 235 thereof, described as follows, to -wit: Lots 4 and 6, Section 9, Tp. 7 S., R. 89 W., 6th P.M:, and that part of the NI`SEit, Sec. 9, Tp. 7 S., R. 89 W., 6th P.M., lying South and Southeast of a line extended from a point 100 feet Souch of the Northeast corner of said NW4SE!6, southwesterly *to a point 100 feet North of the Southwest corner of said NW!SEt, said Sec. 9, containing 27.38 acres, more or less. TOGETHER WITH all improvements now situate on said property, and all mineral rights associated with said property (Subject to Beneficiary's reserved fifty per cent (507.) mineral royalty). (Continued) 13UUr.4:.).J PAGE 357 PARCEL NO. 2 All of first party's right, title, intent, claim and demand in and to all coal mines, coal veins and deposits, found or to be found under or within the lines or area of the following described lands, to -wit: E1SW1, N't SW1, Section 5, W1/2NE14, NE1N416, Section 8; NW1„S'E1/4, SWISE'•, Section 8, T 7 S., R 89 W., 6th P.M., containing 320 acres, more or less; together with their dips, with such reasonable use of the surface ground as may be necessary to win, work, and carry away said coal. (Subject to Beneficiary's reserved fifty per cent (50%) mineral royalty) PARCEL NO. 3 Forty-six (462.) percent of all oil and gas, metals, ores, gold and silver bearing quartz, minerals, lodes, veins, and deposits, other than coal, coal veins and depostis of coal found or to be found under or within the line or area of the lands described in Parcel 2 hereof, together with their dips, spurs and angles; together with any water or water rights, ditch or ditch rights, spring or pipeline rights, if any used with the above three parcels. (Subject to Beneficiary's reserved fifty per cent (50%) mineral royalty) Partial Release Provisions: For the purposes of Partial Releases from the provisions of this Deed of Trust, the above described property, which is a part of Parcel No. 1, may be released by the payment of the amounts specified hereafter. Said Parcel No. 1 is divided into six tracts as•follows: Tract No. 1: Lot No. 1 and that part of the NW1/4 SE1/4 that was not conveyed to Herman Doose by Document No. 156638 at Book 217 and Page 235. Tract No. 2: SW1/4NE1/4 Tract No. 3: SE1/4NW1/4 Tract No. 4: SW1/4NW1/4 Tract No. 5: NW1/4SW1/4 Tract No. 6: SW1/4SW1/4 Together with all mineral rights associated with the above property and all improvements now situate on said property. All such tracts being a part of Section 9, Township 7 South, Range 89 West, 6th P.M. 1. All partial releases from the Deed of Trust shall be in no less than 20 acre tracts, need not be contiguous with other releases; however, all such 20 acre tracts released shall adjoin an exterior boundary of the property which is the subject of this Deed of Trust and above described as Parcel 1. 2. First party shall be entitled to a release of 20 acres at any time after this date from Tract No. 1, 4, 5 or 6, without the payment of additional consideration therefor. (Continued) 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 80th' 459 PAGE 358 Reccrurn MAY 1 1974 RELEASE PROVISIONS (PAGE 2) TO ATTACHED DEED OF TRUST 3. All payments made for the releases of tracts of land shall be credited on the purchase price and shall be credited to the next annual payment payable as provided by the Note. All payments shall apply first to interest and the balance to principal. The minimum annual payments provided by the Note need not be paid in whole or in part in accordance with the following: a. If the payments made subsequent to the preceding annual payments exceed $55,000.00, in principal and interest, during the year immediately following such annual payment, first party shall not be required to make the next annual payment. b. If the payments made subsequent to the preceding annual payment is less than $55,000.00 but more than $34,292.25 during said one year period, first party shall not be required to make the annual installment then payable of $34,292.25, but may make only a payment of $17,146.00. c. If the payments made subsequent to the preceding annual payment is less than $34,292.25 during that period of time, then first party shall be required to make a full annual payment under said Note of $34,292.25. Releases shall only be made upon credits to principal and various tracts shall be released at different prices per acre as set forth below: d. Release of the 20 acre tract which is the West One -Half of the land described as Tract No. 2 (the W1/2SW1/4NE1/4) shall be released upon the payment of $2,500.00 per acre. e. Release of the 20 acre tract from the land described as E1/2 of land described in Tract No. 2 (E1/2SW1/4NE1/4) shall be released upon the payment of $1,500.00 per acre. f. Release of each of the 20 acre tracts described as Tract No. 3 (SE1/4NW1/4) shall be released upon the payment of $1,400.00 per acre. g. Release of 20 acre tracts from the land described as Tracts No. 1, 4, 5 or 6 shall be released upon the payment of $1,300.00 per acre. h. Anything to the contrary notwithstanding, First Party shall not be entitled to a release of more than one-half (1/2) of the SE;;NW* of said Section 9, Township 7 South, Range 89 West, 6th P.H., until the entire balance of the Note has been fully paid. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 Bou.<459 ,E35c TO HAVE AND TO IIOLD the same, together with all and singular the privileges and appurtenances, thereunto belonging; also the 'cots, issues and protits derived or to be derived out of said premises; (Ilene- ficiary agrees that under the foregoing assignment of the rents, issues and profits, collection thereof will be enforced only upon the delinquency of first party in complying with the provisions of this Trust heed; and, in any default thereof, the Ueneliciary is authorized to assume the management and control of and to col. lcct the rents from said property without an Order of Court). IN TRUST NF.VERTIIELESS, That, in case of any default hereunder by first party or his successors in interest, the Bcncticiary may file notice with party of the second part declaring such default and an election and demand that said property be advertised for sale and sold, in accordance with the Colorado Statutes in such case made and provided; and thereupon said party of the second part shall sell and dispose of said premises and all of the right, title and interest of the said party of the first part at public auction at the front door of the County Court Ilotise in the County of Garfield State of Colorado, or on said premises, tour weeks' public notice having been previously given of the time and place of such sale, by advertisement, weekly, in sonic newspaper of general circulation at that time published in said County. It is specifically agreed that time is of the essence of this contract and if each and every stipul- ation, agreement, condition and covenant of said Note or of this Deed of Trust is not duly performed, cum. plied with and abided by, then the balance of said note shall become due and payable forthwith. or at any time thereafter at the option of l3eneticiary, and said property may be sold in the manner and with the same effect as if said indebtedness had matured. THE SAID PARTY OF THE FIRST PART'EXPRESSLY COVENANTS AND AGREES: To promptly pay the principal and interest and other sums of money payable by virtue of said note and this deed of trust, on the days respectively that the same severally become due, and to promptly perform each and every stipulation, agreement and condition therein contained. To keep the buildings on the premises insured against loss by fire and other hazards as required by the Beneficiary and for its benefit and to pay promptly all taxes, assessments, levies, water rents, and insur- ance premiums and all other liabilities, obligations and encumbrances as they become due. To and hereby does warrant title to and possession of the encumbered premises; waives Homestead and other Exemptions; and further warrants that said premises arc free and clear of all liens and encum- brances (except as herein specified): Except easements, restrictions and prior tiin%.ral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. That in the event of the failure of first party to keep said property, and the improvements thereon at all times in good repair, to pay promptly all taxes, insurance premiums, water rent, assessments, levies, liabil- ities, obligations, principal or interest on this or any other encumbrance on said real property, or to per. form any other agreement, condition, stipulation or covenant, as herein provided, the Beneficiary may pro• cure such things to be done at first party's cost and may make any reasonable expenditure or outlay in- cidental thereto, and any expenditures so made shall become an additional indebtedness hereto and be se- cured hereby. That in case of default in the payment of the indebtedness hereby secured or in the performance of any obligation herein contained, the Beneficiary or the holder of a Certificate of Purchase shall at once become entitled to the possession, use and enjoyment of the property aforesaid and to the appointment of a Receiver for said property and of the rents, issues and protits thereof and shall be entitled thereto as a matter of right without regard to the solvency or insolvency of the party of the first part or thc then own. er of said property and without regard to the value thereof or the adequacy of any security for the debt; and such Receiver may be appointed by any Court of competent jurisdiction upon ex parte application, and without notice—notice being expressly waived—and all rents, issues and profits therefrom shall be applied by such Receiver subject to the orders of the Court, to the payment of the indebtedness hereby secured. That, in the event of foreclosure and sale hereunder, attorney's fces in the sum of five per cent if made through the Public Trustee and a reasonable sum If made through the Courts, for legal services rendered in such proceeding or suit, shall be allowed by the Public Trustee or taxed by thc court as part of the costs of foreclosure. That in the event the ownership of the encumbered property or any part hereof, becomes vested In a per. son other than the first party, the Beneficiary may, without notice to the first party, deal with such new owner or owners with reference to this Deed of Trust, and the debt hereby secured in the same manner as with thc first party without in anyway vitiating or discharging the first party's liability hereunder, or the indebtedness hereby secured. That all the covenants and agreements herein contained shall extend to and be binding upon the heirs, executors, legal representatives, successors and assigns of the respective parties hereto. IN WITNESS WHEREOF, The said party of day and year first above written. nM FT -/-/e/ /el L,' 0. oi) l -L � � t. t-a-i1�✓l.i STAT OF COLORADCf County of Mcsa, 1} �� The foregoing instrument was acknowledged before me this ................... day of _... "e.k"31"l y,19.74 By William H. Nelson, Ben E. Carnes, Harry E. Williams, Henry Faussone, Burr Bolen, Patrick M. Fitzgerald, and William Rump. SS. the first part has hereunto executed this Trust Deed the • ti �C,r? (Seal) /% 14L�fj�.n ,flL(Seal) [.,.,G.rrt/ tScal) • Wit ness.my"Ifand/ond•official scat. My notarin •dliititin(sston.expires ) � dct1. /976. Notary Public. 1 1 1 .1.. ,.......7.47,:4,4.44,.!,..a.. . A ., • - • . . _ —.• - ---. . /7,-) , . / I • I -1•1 • ' II I . • ! .1: < •••••.\.................,.....:„.......„......'''....' ..„...:,.......x. ...P• ..............;..), ..............' ••• -- 1- , . , ..i., _...........". 410 .7 Am.. memo ••••••••....•.................. , • - - . .• . - • r 1 I. t ---- FS 7:5 1. 4. 1.. '• /1, I. • ,} 1 / __... 1 1 1 a • 4 • — r 7111- 1 4 ‘ ,1%. ; 1- 1 Ikli .. / • -11 I:1 141 • ' 1 cier r Et. ,..., .., , .',.— .'• ': " t ..," •r C '--z 1 I - i„,..-;;-'"' ..7.'.,-, -77 • • ,. ,4-1.1- , . ., c , .37 t v , r" .1 • %. -.. : V.:. ,/ • g•••,- e' ,',A - ' — i "it: a c." ' . -i.‘ • '. --"--.-- --•- •- I 00 C. , . +I ,11 6 -1,7/11 C. 0 • • IJ _ • - • • i„ r re—I•frr-1.7—• N- \ • .41.77 114 r - CA CS fac Or—U14J 0 in W 0.4 0) 44 • EO cn $.4 w s -c z Z«4 0.0 EXHIBIT 5 a 1(I:SOLII'i•ION TO :ill - 35 Whereas, REN E. CARNES hal; pati.Liu:led Lh.: hu;u',i ul.` CuunLy Commissioners of Garfield County, Colorado for an exemption under C.R.S. 106-2-33 (3) (d) (1963 as amended) for chs division of a 40 acre tract into two tracts and one tract of 20 acres and more fully described as follows: Tract 1: The NF)4 of the SW':; of the NEr., Section Range. 89 West of the 6th P.M. �` Tract 2: The SIi1;; of. the SW1r, of. the NE14. Section lvil:, Range 09 West of the 6th P.M. *. Tract 3: the hA A of 10 acre° each 9, Townah.ip 7 South, 9, Township 7 South, The Wki of the SWJt, of the NEa, Section 9, Township 7 South, Range 69 Wsat of the 6th P.M. Whereas, the Petitioners have shown to the satisfaction of the Board of County Commissioners of Garfield County, Colorado, that they device said exemption.for the purpose of resale into single family resi.dcn:ial acreage, and Whereas, the Petitioners have demonstrated to the satisfaction of the Board that there is a reasonable probability of locating domestic water on each of sa{d tracts and that there is adequate ingress and egress to said tracts, and that the location of septic tanks will be permitted by the Colorado Department of Health, and that the requested division is in accordance with the general purposes and intent of the subdivision regulations: of the St:ace of Colorado and the County of Garfield, and that said division will actually restrict the d.:uaity of housing within said area and therefore should be exempted from the definition of subdivision and "subdivided land" as set forth i.., C.R.S. ].06-•2-33 (3) (d) (1963 as amended) . • NOW, THEREFORE, upon motion of447i? »:',�.-,:,z;.. •.i , <<;?,S• seconded by' 72 and unanimously carried, said tracts of land. are here- by exempted from such definition and transfer of said tract may be made by division f?7 Const P.2 Resolution to Sll - 35 P.2 into three tracts, that is, 1 tract of 70 acres and 2 tracts of 10 acres each, more or less, all as is more fully described J" t.l'. petition pertaining hereto, provided,' however, that this exemption is granted only upon the condition that none of the above parcels of land be sold, transferred or conveyed until such time as: 1. Petitioner drills a domestic water well or wells to serve the subject property and that the well or wells be tested for potability by the appropriate state authorities: 2. That petitioner have each site be approved by the county sanitarian for septic tank and leech fields: 3. That any instrument of sale or conveyence will contain an easement • for road and utilities to each tract and that said instrument con- tain a statement to the effect that maintenance of the road serving . the site is not the respo.tsibi].ity of Garfield County and that said road is to be maintained privately. 'A copy of the instruments or instrument of conveyance. when recorded. shall be ' filed with this resolution. Dated this 1/774/ of z2,22,I r./' 1975. TIIE BOARD OF COUNTY COMMISSIONERS OF GAR1IELD COUNTY, COLORADO Attest: +LJ ( 1 1 1 1 1 1 1 1 1 1 1 BEFORE TILE BOARD OF COUNTY Cu:INISSIONLRS 01? GARFIELD COUNTY, COLORADO PE'PT'PTON FOR EXEMPTIONS Pursuant to C.R.S. 106-2-33 (3) (d) (1963), as amended, the undersigned, Ben E. Carnes petitions the Board of County Commissioners of Garfield County, Colorado, to exempt by Resolution 3 parcels, more frilly de:scribed herein, and for the • reasons set forth herein. 1. Petitioner is the owner of a tract of land in Garfield County, Colorado, 'described as follows: The SW1 of the NE1 of Section 9, Township 7 South, Range 89 West, of the 6th P.M. containing 40.acres, more or less. 2. Explanation of reasons justifying request: A. Domestic water supply. As explained in the attached outline, permits for domestic water wells have been granted in the surrounding area and neighboring property owners have had no trouble finding water at depths from 125 to 175 feet. Petitioner proposes to drill a domestic water well to serve the properties that are the subject of this petition. No property would be sold until a water well permit was issued, a well drilled and water tested by the appropriate state authorities. B. Sanitation system. The area surrounding petitioners property has gen- erally been found to be satisfactory for septic tanks and leach fields. The petitioner proposes that no .land be sold until county sanitation authorities have approved sites for septic Lanka and leach fields. C. Access. The subject property has direct access to the Four Mile County road by way of a gravel surfaced, 16 foot wide private road. Petitioner has an easement 60 feet in width, that is, 30 feet either side of the center line of this road, and will grant an easement with the property along this road. Any deed of conveyance will contain a statement to the effect that the private road is not the responsibility of Garfield County under any circumstances. and that said road is to be maintained by property owners. 3. A copy of the deed of conveyance will be filed with the Petition and the Resolution if the exemption is grunted. `ii/ i Dated at Glenwood Springs. Colorado, this / day of////- I? CL/// . 1975. t.„-:-. i / .:t,t 1. 4•LC :, l ADI)1.'1' I ONAL i'ACT1: PETI'1'ION FOR 1?\ tod"flONS I. .' 'ACCESS A. As shown on the attached plat, the subject property has a 60 foot wide right of way leading from the subject property co the Four Mile County Road. The grade on this road does not exceed 9/, uud part of this road is presently being kept open during the winter by adjoining property owners with no difficulty whatsoever. B. Restrictions will be placed ou nay sale of property such that this road not be che responsibility of the County Commissioners unless property owners bring the road to complete county specifications and then petition to have the road accepted under Cacfie]d County stundards. II. AVAILIBILITY OF TELEPHONE AND ELECTRICITY A. Telephone and Electric lines are presently into the property as shown on the attached plat. III. DOMESTIC WATER A. Numerous wells have been drilled in the area and there appears to be no _ problem in striking water at n reasonable depth. B. Prior to any sale of the property, petitioner will drill a water well on the property, and upon striking water, will have the water analyzed by tha appropriate state authorities so us to determine its potability. C. As part of any conveyance, petitioner will agree to provide water to any tract of land sold. IV. PROVISIONS FOR SEWAGE DISPOSAL. A. The area,aurrounding petitioners property have from time to time been' approved for septic tanks and leach fields. Petitioner will have appro— priate perculation tests conducted by the county sanitation officer, and petitioner hereby agrees to convey no land until the county sanitation• officer approves perculation tests and engineering of sewage disposal. V. PROTECTIVE COVENANTS Cont A. Protective covenants for the petitioners property or deed restrictions will be attached to each deed of conveyance as follows: a. Resubdivision. No tract of land may be resubdivided into smaller tracts of land. b. No tract of land may be used for tiny purpose other than single family residential uses. c. No mobile homes or trailers shall be used at any time in any manner on acid tracta of land. d. Any residence constructed on :subject property shall be at least 1200 square feet in area. Area shall be measured on the first floor of the outside foundation, exclusive of parches, garages and car ports. e. No livestock, poultry or goats aha.11 be kept, other than one horse or cow per five acres. Any such livestock meat be kept and maintained so as not to become a public nuisance. Any property owner keeping dogs as pets must securely pen or restrain by a leaah.said animal so that it may not roam throughout the area at will. f. The owner of any tract shall complete construction of any structure erected on that tract within one year of commencement of construction. g. Existing foliage shall be preserved on each lot us nearly as possible. Foliage and vegetation shall be removed only to the extend necessary to construct dwellings, driveways, sidewalks and sewage and utility facilities. h. These covenants and restrictions are to run with die laud and shall be binding upon all parties and all persons claiming under them until January 1, 2000. At that time, said covenants shall be auto— matically extended for successi.ve 10 year periods unless otherwise changed by vote of the then majority of tract owners. i. If any tract owner or persons acting, for them should violate or attempt to violate any of the covenants herein stated, it shall be lawful for adjoining tract owners or anyotlier person or persons thereby affected to prosecute any suit in law or in equity co re— strain and enjoin the violation of said covenants and to recover damages for such violations and to recover all. costs and attorney fees necessary Co enforce: the provisions of these covenants. -zz-73 DISTRICT COURT, GARFIELD COUNTY, STATE OF COLORADO Case No. 89CV177 ORDER DENIS HINES, KATHLEEN SCHIAVI HARRIS, and SHARON STEPHENSON, Plaintiff, vs. JAMES P. MAHAN, ROBERTA KATZ MAHAN, JEFFERY R. FITZSIMMONS, and THE BOARD OF COUNTY COMMISSIONERS IF GARFIELD COUNTY, Defendants. This case comes before the Court on Motion of Plaintiff Sharon Stephenson, through counsel, for Summary Judgment against the Defendants James P. Mahan, Roberta Katz Mahan, and Jeffery R. Fitzsimmons. Plaintiffs' Motion incorporates legal authority in support thereof. Defendants James P. Mahan, Roberta Katz Mahan and Jeffery R. Fitzsimmons, through counsel, have filed a "Reply Brief" to Plaintiff Stephenson's Motion for Summary Judgment. That Reply Brief contains language which may be construed.to be a Motion for Summary Judgment on certain issues on behalf of Defendants. Plaintiff .Stephenson is referred to hereinafter as "Plaintiff" or "Stephenson". Plaintiff Kathleen Schiavi Harris is referred to hereinafter as "Harris". Plaintiff Denis Hines is referred to hereinafter "Hines". Defendants James P. Mahan, Roberta Katz Mahan, and Jeffery R. Fitzsimmons, are hereinafter referred as "Defendants" or "Mahans". Defendants request Summary Judgment and oppose Plaintiff's Motion for Summary Judgment on three grounds; 1. That all three of the Plaintiffs lack standing to bring this action, their properties not being benefitted by the protective covenants and deed restrictions. 1 EXHIBIT 6 2. Plaintiff Stephenson is estopped from enforcing the protective covenants and deed restrictions because, Defendants allege, she has undertaken to re-subdivide her property in cooperation with another owner who is also subject to the protective covenants and deed restrictions. 3. Plaintiffs' suit against Defendants is premature. The Court has read the Summary Judgment Motions, the affidavits in support of and in opposition thereto. The Court has reviewed the documents on file and has reviewed the case file generally and has heard oral argument in the case. The Court notes that, although the Complaint names the Board of County Commissioners of Garfield County (hereinafter "BOCC") as a Defendant, the file does not indicate that Defendant BOCC has been served, filed an answer or participated in these proceedings in any way. The Court has considered the authorities cited by the Plaintiff and specifically Flaks v. Wichman, 128 Colo. 45, 260 P.2d 737 (1953); Greenbrier-Cloverdalg Homeowners v. BACA, 763 P.2d 1 (Colo. App. 1988); Seeger's Estate v. Puckett, 115 Colo. 185, 171 P.2d 415 (Colo. 1946); Pagel v. Gisi. 286 P.2d 636 (Colo. 1955), Taylor v. Milton, 274 P.2d 977 (Colo.1954); and Rooney v. People's Bank of Arapahoe County. 513 P.2d 1077 (Colo. App. 1973). The Court finds the following facts to be established by the pleadings: 1. Plaintiff Stephenson owns real property located in the North 1/2, East 1/2, Southwest 1/4, Northeast 1/4, Section 9, Township 7 South, Range 89 West of the 6th P.M. The property is referred to as "the Property" or "the Stephenson Property",. 2. Defendants own real property located in the Southwest 1/4, Northeast 1/4, Section 9, Township 7 South, Range 89 West of the 6th P.M. This property is referred to hereinafter as the Mahan Property. 3. Stephenson's property, Defendants' property, and property now owned by Tom H. Collinson (hereinafter. "the Collinson property"), were created as separate and distinct tracts or lots by subdivision exemption approval granted by BOCC in 1975 at the request and upon the application of Ben E. Carnes. Carnes application represented that each parcel to be created would be subject to certain protective covenants to be attached to each deed of conveyance. Deed restrictions containing the protective convenants, as represented by Carnes to BOCC, were, in fact, attached to the deeds of conveyance for all three tracts (i.e., the Stephenson property, the Mahan property, the Collinson property). at the time of sale by Carnes. These deeds with deed restrictions 2 containing the protective e of record in the office of the Garfield County Clerk and Record er 4. Although Defendants acquired title to the Mahan property from a successor in interest to the original grantee from Carnes, Defendants' deed excepts from title "restrictions ... of record". 5. In 1989 Defendants filed an application with BOCC for approval of a subdivision exemption of the Mahan property into two distinct and separate tracts in 1989. Defendants' application was approved by BOCC County on April 3, 1989. Defendants have listed for sale a portion of the Mahan property. The listing evinces an attempt by Defendants to subdivide or resubdivide the Mahan property into two separate and distinct tracts or lots. The Court declines to enter Summary Judgment as requested by Defendants Mahan. Specifically the Court finds that; 1. The deed restrictions and covenants are binding on Defendants. 2. Stephenson is a beneficiary of those deed restrictions and may enforce the restrictions against Defendants Mahan. 3. Stephenson is not foreclosed from enforcing the deed restrictions because Plaintiff engaged in a "boundary line adjustment" with a neighboring landowner. The Court enters Summary Judgment in favor of Plaintiff Stephenson and finds and Orders that: 1. The deed restrictions and covenants at issue here are binding on the Mahan Defendants; 2. Plaintiff Stephenson is a beneficiary of those deed restrictions and covenants and is entitled to enforce the deed restrictions and covenants against the Mahan Defendants; 3. Plaintiff Stephenson has not abandoned the deed restrictions and covenants nor is Plaintiff Stephenson barred from enforcing the deed restrictions and covenants by virtue of a boundary line adjustment with an adjoining property owner which boundary line adjustment did not amount to a subdivision or re -subdivision of property; 4. Plaintiff Stephenson is entitled to attorney's fees in an amount to be proved later. As to the Mahan Defendants' Motion for Summary Judgment the Court finds that a genuine issue of material fact exists under 3 the law in the affidavits as to whether Harris and Hines have a right to enforce the covenants. Defendants' Motion for Summary Judgment is denied. . DEVILBISS DISTRICT COURT JU GE Recorded al•...o'clock ..L, <r . Rec.ption No 27 i c s9 11 • BEN E. CARNES and VELVA V. CARNES, husband and wife, whose address is Grand Junct ion County of Mesa , State of Colorado , for the considerr.tion of ---Ten Dollars and other valuable consideration-- dellarr.in hand paid, hereby sell(a) and convey(s) to R«oni r. ; : r IjAlj 1 CUli�i Y ((t; mktJ' 11 1976 JIMMY M. SILLS and LF.THA SUE SILLS, as joint tenants, whose address la County of Garfield , and State of Colorado the following real property In the County of Garfield , and State of Colorado, to wit: WNSW►NE4 of Section 9, Township 7 South, Range 89 West of the Gth P.li., Together with all water and water rights thereto appertaining, including the Davies Spring and pipeline; RESERVING, HOWEVER, unto Grantors, their successors and assigns: (1) Utility easement 10 feet in width, the centerline of which shall be an east -west line dividing the above described property into two equal tracts; (2) Road easement 24 feet in width along the east boundary of said property; (3) Existing road easement 60 feet in width, the centerline of which is shown on the attached Exhibit "A"; AND SUBJECT TO: (1) Protective covenants and deed restrictions as contained in Exhibit "B" attached hereto; (2) First Deed of Truat for the use and benefit of Charles G. Davies, et al., en- cumbering the above described property and other property, in the original principal sum of $225,000.00, dated May 20, 1974 and re- corded May 21, 1974 in Book 459 at Page 356 of the Garfield County, Colorado records, which Grantors agree to pay, and further agree that on or before payment in full by Grantees of the pur- chase price hereunder, such Deed of Trust to Davies, et al., will be released and discharged as to the lands conveyed to Grantees hereunder; (3) Reservations in the patent of the United States of America; (4) 1976 taxes payable in 1977 and all subsequent taxes and special assessments; (5) Prior mineral reservations of record. Grantors warrant title to the above described property except as set forth above. Signed this 4th day +d t+arab , 1976 i 1.3./1't1.t..r. ......... Bea . Carnes --- STATE OF ('OLOItADO. County of Mosa Iss Velva V. Carnes The G.reg.,ing instrument was m•kn++wledged 1,efore me this G'" day of March .1976.by Ben E. Carnes and Velva V. Carnes, • husband and wife. My commission ex;.:res .9e, 1'1 %Witness my hand and official seal. • No. b7. w.,w+, Iw.e—"►..t room u...0«.., r.u......, 1•21..• o..., t+..., u...... tuw.w ✓n . EXHIBIT 7 N ot.LS.o3" w 0 . • EX`IIBI i "A" l 74..:G' ... n 1+ W Noi 13.• 37 G.S2' . • c Fe to IY N oI� I(1 J Ir 4.--(.1 7 7 2.13 /47.{ 1 yti 1 1110 I 1+— 1 aoua483 PAGE 422 1374. 38� r r ca 3 � 3e. w l 3? 0.91 C n 137$.4&' 11 (1 11 ...,...w. Z 11'4'1 -^'."" h • NO C ��. 4 If w r J l • • �G 33Z.29,t ` ,i' S ooliLE 01.0. . �. 1.y% i •' = ' V . . (1 i . 1 38{. rs' 1;. 0 1i r, eouA483 PASE 423 AND J: EJ E37:.1C . ,aJ?.S 1. Resubdivision. No tract of land may ba rasubdivided into smaller tracts of land. 2. ::o tract of land may c: any puraosa other than single-family residential v.sas. 3. No mobi1a homes or trailer.: used at any time in any canner on said tract.; of r....... 4. Any rasidunco coastruoLed on _:. :: .:ro_,er, y shall b:: at least 1,200 squs:a a: ... :aru:t ::::::._ au a::i;.at.rod on t he first floor of 'c.. '-a..,.:c:.t-on, exclusiva of porches, garages ana cdr ports. 5. No livestock poultry or boat ::__r �u ?t, other than pre horse or cow par f:v:: ...._.:s. y such live:: tock crust be kept and maintained so as ..oz to ::ac:,..._ .. public nt:iar.nce. 'Any property owner kca?`j" i: is ::.u:: aecuroly pen or restrain by a leash...__e. animal ..o that it ...:y not roar throughout the area at will. 6. Tho owner of any tract shall co:..:u'te construction structuro erocted oa that traca within 0:00 year o: -cent o2 cc. s true:.::.:.. 7. Zxistirt foliaga ,,...._. �_ .. a.._.. lot ::a.tr':. au passible. Folia.a z... v..'7:.__..... a::J_ -c: r moved only to -y c: a�:c:.._ir.J:.,�driveways, sida- ..:.Q uxta:,t necessary ..� . _.. walks and sewage d �__...___�_..... a. :. _...._t:.__o:., ..:. t.• ..:it . c::c ..::.:;._.:i::. :lase covenants '::. ' shall be binding ^t .. ..:c. r1 .¢inion:. clay. . bnC. rt _..j • �" ,Az •".w ]Mtime, ..:iiia cov::nac..'ta u :der triers until .:a: .._" _ r ��;,::a i Ce.i�l ax n e.. - - seas iV3 tori -yea y .. shall Jai L4t0:1]t -`=••" �'' ^ity . :� by va •V� _.'.a than ::wi; or o1 tract unless otherwise c::::: � �� owners. of any commence - 5. . I f any a.: ac t owner o'_ -).:to.. or attempt to violate a. -.y 4f shall be lawful for or persons thereby :: . a::,.:c:: equity' to restr.".n zr.O.c'- and Lo recover c:..•• lo: •• casts and .: ttarnuy foe - ase cova:na ::.::. • ...._..:g :ha:, C./•:..._r.. or :.try c.:. .._ _ ...... la.d fn .. • _:. , `::c. ....o.'. o: salt:: C:!.'IL........ ,et{hhe,'tV•r•M" Vail:idi of /MirePo RICHARD K STEPNEt60N en t, Cheer .+ a;,. f; ou= o WITNESSETH,- a e u d pert '•' .TEfd'Jh' .. }:ytt r .. ry, ct,t o`►i sIfd•DM , t e Ili a n ham'pe d y' u herebSrt �weued ►n ec now e ae i fifi edrb a e kRten 6 �rgdn elm, eonve ndteonf ren ettn h"e uld`Ale o tilii.lenencyfnreoroman,burn.joTnE,enancy'iatrt ol�owio ,belnq fns a'et`ktf„., ,(y n;4t Coun�T ot• Gar 51. e te•r, t +sEk§H1f..El r. o 9 To t�l0. acres' ioxijp Jess and .1ti1i tit rposei ''S k..l..:..+ Mr 4,;elthF.�sidebofN,the e,•t Sell err-0alsWeser ggs tii of.piis -Vriii ert7.°�andirotii s"ailitTownslii i fkca� kirAVIE v.gOETHEn-` fro, men apperte(fn'tirrig7F,�e�reveno J nve e'��iem9in er-m ,,elit�fyYtxt'rt�. L e�y n rea o��11nn e---man�a�a�'�'. eIu oev g. ,jol,'In en.., e, a�„ergo a rem eee,,w o 0 nt.1111AiEtAN i tlOLD olarutl7 ems t ve arq Ygelf Wii'e. s. lii.ro>%coli en iilnimri6ieetrotow'i` the aolJ.par icu o aonle e r ere an,__ lied i w••V:'111417.1--of e. rem xtre nLovo:conveye ortay'he” 's iZt� .' t.w.% '6n'7ri;' ' oc �catnt of inher ;bylaw �i'teoe mp e e S�`� pati a tlei ilcc',o�n ey ��'i`o�.��an o�1nt �d'}1erm mons. Ln.d;;af RrartdirRi o1171,lan t{rleea•:.uaum5n a� EXCFP*.thdse{'easement fiTittiarAK titiiiea)Me iti s o i•,ft e o ,i,a iI u segue a es. }ys'ee ssessments "figy �.r 'K. hlid leeahOVC parRbT"edP ye'ee •ue:hn�'1i eorea to r'�ifre andltli , agnrnetnTri �4ra e�neNa ti TMa`^"'k"r fie n', r`. a ."d.wuF ., he ani`JWITN t tr �'IN.SYITNES ,W EftEOFy. ��•_; •° .. , LU '. -00 0t ,• • pr moot' e i 103 prefer ed e5 e'he d ,,se o(avo aT n�� ltt a.3 Ir, o ,an ' ,• or o t er,1D ow:o e B illi eer- .ra • nSeelednn Dal VOOOJ q e rceen eof 5� • r r $ 00 0 iiiiir $ii ;;' :ainf.t1 , r• 1 1 1 1 1 1 1 1 1 1 1 1 4�F4V .ales • d •.,�E-41,ucfplada .x 7:r` r"sb'No2raet'iofy ea ma v ,,need fort resided ec ce. 1 41V , Nmaansrion; o ''igtomee o railate ehel � y� t�+r as L ewd gieac a oP + ' ,• .t ,°r�Any _,eiai•e , eons sucArea'ehalJ�b ub 10 reurea on • h E dE f1 of.t a,' ;sgdate.fee i dr at' 'f 7outd ' a foundation xe uB�va ofgp rc Eke: t$pt�te t tW ►i+o ae or; < b` os, tiuteA001 P nt rna eo pa�:140 vastgai,Plii rY `1g +i .. ;(Gz Ce Tu --P i' . . 'i:o yP �+„�,_ re�'clti liven c m •'� anis, v6 ecre�Y a in 11414!- Oh,' oge eek i no - °Amnon pu TVise ce eneh ea ;an mai:+�eo t atf�i OeeLLm,,. t secure fn,a��°y,or,�r,,eats�••�nin � � 7 -•'� y•not orri s to nut' iierarea 4 3Y n e su4 ro ,�,-+ r- "" Ziac ` ohnllteomp . e cane, r c o `iI-,+ Y .�. o f �nTfi"e`iawnet of a ne o at®encem f con e e 't`faeg wiEkinio , s� ai6e +hcr`ected on y reeerv¢2�eac4iaE+}'ae, f, !; Ex1s€ito raga a b R $e,rtema he xe an net iiri f�tol ag ana ve e, } Y" g mon e}tall eieaka u ,,..,..}},,�� � velYin s. d"rive++aye. n ec++ag � Co�uconefi3� d 6 ,�.• ,.� .�' a ,r. av ; irfacilitias r t' M1 J: a ^hn v an a 4 i •� e tt a ons No a 5rhr.. = sae serean a ct astieerga Vii' a '. be'�indin' ,+Pon p h Ehe time, sold covenan e m Cat n iy v' « oa r{ eaei(othe us maticeYly{exten a or„ uc eosive ar e jr„ a# ,-e ° t owtract er c$anged•.hyftvote�a $'ay;Ehen tnajof i a �e'+°1M. ria t u, a o a.+0 If�any rash t Os putaona ae n for iaho e attemp Ga4v a1$ a any,'�of til4iave lin a o �+ ereon� ' e ad oiiiing truce orin r" !mot a P i on ; ti ty x' e71 • 1`a+afubYfot t t Inv o iliV1y`+affeete to tatec to a;ib 0 a a covenan a fid'^reeov i ,.' fatraln an /:;:;!g:' eianetan` a co ern os l da}ia asney� r eoanbe"' etii $aacagea fori0CU"c4 r nfor feee.neco nary ta'+en, , ,.„, thoapsoY ioneAoE Eheaa{eo > Pili,', c..:i,,,,,"4.f.li ,,.i;- • .'., v. ,*:,a,.1.t,) 1,--;!, . . • . .•'•.;':Y1.1:•('.. '''';i;,'j..'!4'i",-,..'; :: ;- '1'•••.'1/7 -..1.-t.tlf.k:s % •:11.,:e.,,'•:"^.c.-i.i.,'4,',..: tl t':-.-V.N.... 1. i..:47.1-•.!?;,•!,,- ‘, • , L/ , , .. . . 'L . .. . • LI 15%.'' . 1 ' '.i'L' '.... Att.:::;•4..tr , ';/.- 407%;.. r4 • .10,..,._ tr...evi,...w.,,!.. ,,,. ,.,...tiAAlt,.-14.4:,fri *tir ny ki '.11.43t,-,1•1",,:. ••*':'!•ti*t.' „ ........ , : 1: • : i:1,i4.kotirj.) ,,,:•• ,, •:". •-•'. ,II•,' • ,, , , .',.•"'!'-•-.; ...• .-• . . :'-.;:idl'....,:,'• 4444.i.g.;144.L'isi.Z1.4.L.44411/ ,.......4.,..,4,;.„'-:.;,...,‘.:;.'....saa...:.4;.....».....0.4......, . • ...• ,-1-''-i,i41'.';';:it t4 •;t•c• :ip4 1 40,,i.i). jtilet$ 014Y ^I. ft - A • !, • •rr, - • , A • ' ( te4t L•i.113 APR :!t) , Wr'ic 0.1, r.14.4 Too No. a:J.1 (204 MILDRED AlsoortP, RECOFIDt.A $ ")(. GARFIELD COUNTY, COLORADO Stat. Documentary Fes WARRANTY OFEU RICHARD E. STEPHENSON, tor thr consideration of in. Hundred ,--.Dollars and other good and valuable conalderation, 1 hand paid, hereby sells and conveya to SHARON R. uTEPIN:NSON, whose address is P. O. Box 471, Glenwood Springa, Colorado, 011,02, an undivided ono -half interest in the following real property in the County of Garfield, • State of Colorado, to witi NhEloWiNgill, Section 9, Townnhlp 7 3., Pantie 09 west of the . 6th P.M. containing 10 acre*, more or lege, together with a nonexclusive easement for access, road And utility purpoisea, said easement being 60 tont in width, that is, JO feet either side of the center line of the ex lating road, '• with all Its appurtenances and warrants title 10 the same, subject toi ..Basrmenta, restrictione, protective covenants, and any prior mineral reservations of record; First deed of truat from Richard K. Stephenson end Sharon R. , • Stephenson to the Public Trustee of Garfield County securing a tproutissory note in favor of United Mortlaqe Company, a Colorado corporation, in the original amount of $70,000.00, amid pcomlnaory .note and deed of trust dated August 21, l416. The Grantee, by • u accepting and recording this warranty deed, assumes and agrees to pay said promissory note and deed of trust. NPV;, • , SIGNED this /0/1 day of_kre1904+ ) / • / • 14lc ha d )e. Stephenson ,,.;•• STATE OF COLORAc0 10!-. COUNTY Otr GARFIELD ) is f,.... The foregoing Warranty Deed was acknowled90,1 before methia Aarl , day of , 190, by Richard K. Stephenson. I•Witness ajhAnd and official seal. 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K , �t( ee a,. T nw r 11�� r.'w . r..s.�p+wl '"' M 4 .. ' i e' eb ffEri..t ` 614 i i nacGei rianysau in' iaikor ,i q Cy to fig- s ' ' *...,,,y.. a v. n.. m.. Ak .ry r� r n IT"? etraif��an��,art�oi �h�'' �'v�ioiabiorrgoTi �i:wy�, �coirdati' ,�� E�rac"o�tit��h� ataitlgesr��9utli ''vio`Ya""aibne ane o vdr ail �o'a"`�r'ete�ozae fees neceos j�ja�to enf04i'C6^thy 4Pr0V_eLO i ,-,€!: f,.ih09a iCOvanaflte^), w { �iutf • .i tr #t 1. 4,, ` w 144 ,_ . 11•1I'V'AT1 Y.X.. • �k� 5 0.' A •`liCr l ..at • • t• #y'`. . 1• • —c6-3Cu. 1 t' / o 4, .A ,; •4 1-.� y ! $ • • kr.", 1 '. r _ •1‘,.;i1 � �e" .ri,-, v. 14'11 ,�. hr'sa/ J•.1. NYC'" Ii '`� -..J, - •�f 0 YI tr� •4_rs 1• 1 . \�, .' r i •� - +1 •!1 rr• -4. ••-tI 1 •'\1: \NJ/ s,'t•t+ L. 3 •; r;n • EXHIBIT 8 RESOLUTICN TO SB - 35 J .., BoalL ' 7S-/ 3/' /57 Whereas, Harry E. Williams has petitioned the Board of County Commissioners of Garfield County, Colorado, for an exemption under C.R.S. 106-2-33 (3) (d) (1963 as amended) for the division of a 40 acre tract into two tracts of 10 acres each and one tract of 20 acres and more fully described as follows: Tract 1: NE h of the SE 4 of the NW 4, Section 9, Township 7 South, Range 89 West of the 6th P.M. . Tract 2: SE 4 of the SE 4 of the M4 4. Section 9, Township 7 South,. Range 89 West of the 6th P.M. Tract 3: W i of the SE 4 of the NW 4, Section 9, Township 7 South, Range 89 West of the 6th P.M. Whereas, the Petitioners have shown to the satisfaction of the Board of County Commissioners of Garfield County, Colorado, that they desire said exemption for the purpose of resale into single family residential acreage, and Whereas, the Petitioners have demonstrated to the.satisfaction of the Board that there is a reasonable probability of locating domestic water on each of said tracts and that there is adequate ingress and egress to said tracts, and that the location of septic tanks will be permitted by the Colorado Department of Healt;, and that the requested division is in accordance with the general_ purposes. and intent of the subdivision regulations of the State of Colorado and County of • Garfield, and that said division will actually restrict the density of housing within said area and therefore should be exempted from the definition of subdivision and "subdivided land" as set forth in C.R.S. 106-2-33 (3) (d) (1963nas amended). 7,77r5 E'Xewipp-itoi IS Y-cui -ecC u oll 1..e. See s.fnc ic. eoOii-,Qn 7—/ra'f~ �// U. v�O.naevlts, 4201 CLPCtS t:.n Oor;d/�ro�rsPSe-f To; i h ih FL o r�zrttirr� e011 (re< NOW, THEREFORE, upon motion of I ' 7? /./7�t-7—r/v ," , seconded by rc4.•rA. • /. .ei ,' r.' a and unanimously carried, said tracts of land are hereby exempted from such'definition and transfer of said tract maybe made by division • Con't P. 2 1 1 1 1 1 1 1 1 1 1 1 1 1 n -- • Resolution to SB - 35 P. 2 into three tracts, that more or less, all as is provided, however, that f the above parcel none o is, 1 tract of 20 acres and 2 tracts of 10 acres each, more fully described in the petition pertaining hereto, this exemption is granted only upon the condition that s of land be sold, transferred or conveyed until such • time as: Petitioner drills a domestic water well or wells to serve the subject \, 1./ . I property and that,the well or wells be tested for potability by the appropriate state authorities: •2. That. petitioner have each site be approved by the county sanitarian • for septic tank.and leach fields: 3. That any.instrument of sale or conveyance will contain an easement for mad and utilities to each 'tract and that said instrument con- tain a statement to the effect that maintenance of the road serving the sites.is not the responsibility of Garfield County and that said toad is to be maintained privately. J copy of the instrurr,s or ins=rum'nt of.conveyance, when recorded, shall be filed.with this resolution.. Dated this'C) day of • CO .r,."— 1975. Attest: THE ARFIELDFCOUNTY COUNTY, COLORADO COMMISSIONERS OFG By: 1 1 1 1 1 1 1 1 1 1 1 II `1 1 1 1 1 1 1 r BEFORE THE BOARD OF COUNTY COMMISSIONERS OF ' GARFIELD COUNTY, COLORADO PETITION FOR EXEMPTIONS Pursuant to C.R.S. 106-2-33 (3) (d) (1963), as amended, the undersigned, Harry E. Williams petitions the Board of County'Commissioners of Garfield County, Colorado, to exempt by Resolution 3 parcels, more fully described herein, and for the reasons set forth herein. 1. Petitioner is the owner of a tract of land in Garfield County, Colorado, described as follows: The SE 14 of the NW , of Section w, Township 7 South, Range 89•West, of the 6th P.M. containing 40 acres, more or less. 2. Explanation of reasons justifying request: • A. !Domestic water supply. As explained in the attached outline, permits / for domestic water wells have been granted in the surrounding area and • ;. neighboring property owners have had no trouble finding water at depths 1 from 125 to 175 feet. Petitioner proposes to drill a domestic water well to serve the properties that are the subject of this petition. No property would be sold until a water well permit was issued, a well drilled and water tested by the appropriate state authorities. B. Sanitation system. The area surrounding petitioners property has gen- erally been found to be satisfactory for septic tanks and leach fields. The petitioner proposes that no land be sold until county sanitation authorities have approved sites for septic tanks and leach fields:. C: Access. The subject property has direct access to the Four Mile County road by way of a gravel surfaced, 16 foot w:de private road. Petitioner has an easement 60 feet in width, that is, 30 feet either side of the center line of this road, and will grant an easement with the property along this road. Any deed of conveyance will contain a statement to the effect that .the private road is not the responsibility of Garfield County under any circumstances, and that said road is to be maintained by property owners. 3. A copy of the deed of conveyance will be filed with the Petition and the Resolution if the exemption is granted. . TK4 Dated at Glenwood Springs. Colorado. this /Co day of d , 1975. ' 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 ADDITIONAL FACTS PETITION FOR EXEMPTIONS 1. Arrrcc A. As shown.on the attached plat, the subject property has a 60 foot wide right of way leading from the subject property to the Four Mile County Road. The grade on this road does not exceed 9% and part of this road is presently being kept open during the winter by adjoining property owners with no difficulty whatsoever. B. Restrictions will be placed on sale of property such that this road not be the responsibility of the County Commissioners unless property owners bring the road to complete county specifications and then petition to have the road accepted under Garfield County standards. II. AVAILABILITY OF TELEPHONE AND ELECTRICITY A. Telephone and Electric lines are presently into the property as shown on the attached plat. III. DOMESTIC WATER A. Numerous wells have been drilled in the area and there appears to be no problen► in striking water ata reasonable depth. B. Prior to any sale of the property, petitioner will drill a water well on the property, and upon striking water, will have the water analyzed by the appropriate state authorities so as to determine its potability. C. As part of any conveyance, petitioner will agree to provide water to any tract of land sold. IV. PROVISIONS FOR SEWAGE DISPOSAL i. The area surrounding petitioners property has from time to time been approved for septic tanks and leach fields. Petitioner will have appro- priate perculation tests conducted by the county sanitation officer, and petitioner hereby agrees to convey no land until the county sanitation officer approves perculation tests and engineering of sewage disposal. V. PROTECTIVE COVENANTS • Cont A. Protective covenants for the petitioners property or deed restrictions will be attached to each deed of conveyance as follows: (a. Resubdivision. No tract of land may be resubdivided into smaller tracts of land. b.No tract of land may be used for any purpose other than single family residential uses. c. .No mobile homes or trailers shall be used at any time in any manner on said tracts of land. d. Any residence constructed on subject property shall be at least 1200 square feet in area. Area shall be measured on the first floor of the outside foundation, exclusive of porches, garages and car ports. e. No livestock, poultry or goats shall be kept, other. than one horse or cow per five acres. Any such livestock must be kept and maintained so as not to become a public nuisance. Any property owner keeping dogs as pets must securely pen or restrain by a leash said animal so that it may not roam throughout the area at will. f. The owner of any tract shall complete construction of any structure erected on that tract within one year of commencement of construction. g. Existing foliage shall be preserved on each lot as nearly as possible. Foliage and vegetation shall be removed only to the extent necessary to construct dwellings, driveways, sidewalks and sewage and utility facilities. 1 1 1 1 1 1 1 1 1 1 1 1 1 1 Additional Facts: Petition for Exemptions Page Two h. These covenants and restrictions are to run with the land and shall be bindingupon all parties and „ persons 1-: � r rte. .� „. C u iG 1 is undey tucii until January 1, 2000. At that time, said covenants shall be auto- matically extended for successive 10 year periods unless otherwise • changed by vote of the then majority of tract owners. i. If any tract owner or persons acting for them should violate or attempt to violate any of the covenants herein stated, it shall be lawful for adjoining tract owners or any other person or persons thereby affected to prosecute any suit in law or in equity to re- strain and enjoin the violation of said covenants and to recover damages for such violations and to recover all costs and attorney fees necessary to enforce the provisions of these covenants. IT LOYAL E. LEAVENWORTH SANDER N. KARP DAVID H. McCONAUGHY JAMES S. NEU JULIE C. BERQUIST-HEATH SUSAN W. LAATSCH NICOLE D. GARRIMONE ANNA S. ITENBERG MICHAEL J. SAWYER TERESA L. HOCK EDWARD B. OLSZEWSKI LEAVENWORTH & KARP, P.C. ATTORNEYS AT LAW 1011 GRAND AVENUE P. O. DRAWER 2030 GLENWOOD SPRINGS, COLORADO 81602 Telephone: (970) 945-2261 Facsimile: (970) 945-7336 dhm@lklawfirm.com April 7, 2004 Board of County Commissioners c/o Mark Bean Garfield County Building and Planning Department 108 Eighth Street Glenwood Springs, CO 81601 DENVER OFFICE:* WAZEE EXCHANGE BUILDING 1900 WAZEE STREET, STE. 203 DENVER, COLORADO 80202 Telephone: (303) 825-3995 Facsimile: (303) 825-3997 *(Please direct all correspondence to our Glenwood Springs Office) Re: Mahan Subdivision Exemption; Public Hearing on April 12, 2004 Dear Commissioners: James Mahan has filed his third request for a subdivision exemption in the last four years. We continue to represent neighboring landowners Kathy Harris and Dennis Hines and, once again, urge you to deny the application because the applicant cannot meet the requirements for a subdivision exemption. Approving this application would create a fourteenth lot out of a single 260 -acre parcel that existed in 1973, all without any formal subdivision approval. This is contrary to existing law and is also simply bad planning. Further, the current parcel was created by the Board of County Commissioners based upon an express representation to the Board that further subdivision would be prohibited. This Board typically includes a condition in every hearing that the applicant comply with all representations to the Board. Allowing further subdivision now would render this condition meaningless and would set dangerous precedent for many other matters. The application is essentially identical to those submitted in 2000 and 2002. The history of the area has not changed. Accordingly, we are submitting herewith the following documents that were submitted to you at the prior hearings: 1. Letter to Board of County Commissioners dated May 5, 2000, describing the history of subdivision of the property and urging denial of the application pending at that time. 2. Exhibit Binder will illustrative charts, maps, and documents showing ownership history of the subject parcels. �:‘2004C1ions\Hartis-1706\Lc crABOCC-1.wpd LEAVENWORTH & KARP, P.C. Page 2 April 7, 2004 3. Bullet -point list of reasons to deny application that was pending in May, 2002. The applicant withdrew the application following the hearing in 2002 but has now re -submitted the same request to divide the property into one six -acre parcel and one fourteen -acre parcel. To avoid repetition, only new facts and issues are summarized here: 1. Zoning Violations Continue. The application letter dated January 29, 2004, admits that the applicant has "three dwellings" on the property, which is in direct violation of the existing zoning to allow one house and one guest house. The applicant states that "we have made a barn habitable" in direct violation of County Resolution 98-06, which approved a special use permit for the barn as an art studio, not a residence. 2. CR 126 Does Not Prevent Joint Use of the Property. The applicant continues to rely on Section 8:52 of the County Regulations, which gives the board the discretion to create a new parcel where joint use is prohibited by the presence of a public roadway. On page 3 of the narrative, the applicant makes several false statements regarding the road: A. There are not, in fact, 20 families living on Black Diamond Mine Road. B. The road is not used by "hundreds" of people for public access to BLM land. To the contrary, there is a locked gate at the end of the road preventing public access through the private property on the other side of the gate. C. The applicant continues to operate the 20 acre parcel as a single "compound" with related buildings and activities located on both sides of the road, just as he has done for decades. 3. Water Supply. Although the applicant has submitted a contract with the West Divide Water Conservancy District, there is no evidence in the record that any substitute water supply plan or plan for augmentation has been approved by the State Engineer or the Division 5 Water Court. Thus, there is insufficient evidence of a legal or physical water supply in this extremely dry region as required by Section 8:52(D). 4. Comprehensive Plan. The Garfield County Comprehensive Plan shows this area as "Low Density Residential" with a density of 10 or more acres per dwelling unit. The Board is required to consider this factor pursuant to Section 8:60(A). With three dwelling units on 20 acres, the existing parcel already fails to comply with the Comprehensive Plan. Creating an additional 6 - acre lot with a house and a guest house would only make the property further out of compliance. I:\i004\CIIQI s\IHARis- 1706\Utters \BOCC. .nd LEAVENWORTH & KARP, P.C. Page 3 April 7, 2004 * * * We urge you to deny Mr. Mahan's latest request for a subdivision exemption. We will present additional evidence at the time of the hearing. Thank you for your consideration. Very truly yours, LEAVENWOKARP, P.C. DHM: Enclosure cc: Kathy Harris Dennis Hines 1:\ 2004\CIia116\Hirtis-I706ILctI s\BOCC-I.wpd Davi H. cConaughy LOYAL E. LEAVENWORTH CYNTHIA C. TESTER SANDER N. KARP DAVID E. LEAVENWORTH, JR. GREGORY J. HALL DAVID H. McCONAUGHY KELLY D. CAVE TOM KINNEY SUSAN W. LAATSCH JAMES S. NEU JULIE C. BERQUIST LEAVENWORTH & TESTER, P.C. ATTORNEYS AT LAW 1011 GRAND AVENUE P. 0. DRAWER 2030 GLENWOOD SPRINGS, COLORADO 81602 Telephone: (970) 945-2261 Facsimile: (970) 945-7336 ltlaw@sopris.net May 5, 2000 Garfield County Board of County Commissioners 109 Eighth Street, Suite 300 Glenwood Springs, CO 81601 DENVER OFFICE:* THE TERRACENTRE BUILDING 1100 STOUT STREET, SUITE 470 DENVER, COLORADO 80204 Telephone: (303) 825-3995 Facsimile: (303) 825-3997 Itlawdenver@aol.com *(Please direct all correspondence to our Glenwood Springs Office) Re: Application for Subdivision Exemption by James Mahan Dear County Commissioners: This firm represents Sharon Stephenson, Denis Hines and Kathleen Harris, all of whom own property on Black Diamond Mine Road. We offer the following comments regarding the application of James Mahan for a subdivision exemption in the vicinity of our clients' property. For the reasons stated below, we urge you to deny the application. Chapter 8 of the Garfield County Subdivision Regulations governs "subdivision exemptions." This letter will outline the reasons why you should deny the application based upon the criteria set forth in the Subdivision Regulations. A. Applicability of Subdivision Exemption Procedure The subdivision exemption procedure allows property to be divided into smaller parcels without going through the normal subdivision procedures set forth in the Regulations. Section 8:10 addresses the general applicability of the procedure: 8:10 The Board of County Commissioners has the discretionary power to exempt a division of land from the definition of subdivision and, thereby, from the procedure in these Regulations, provided that the Board determines that such exemption will not impair or defeat the stated purpose of the Subdivision Regulations nor be detrimental to the general public welfare. . . . (T]he Board may approve, conditionally approve, or deny an exemption request. F: \2000\Letters-M euros\M A HA N-County-Itr-1. wpd LEAVENWORTH & TESTER, P.C. Garfield County Commissioners Page 2 May 5, 2000 The Board's power is "discretionary." This means that the applicant has no right to approval. It is up to the Board to determine whether the request is in the best interests of the general public. The Board's discretion includes the power to deny the request or to impose conditions upon the granting of the request. Here, conditions are inappropriate because the applicant has a demonstrated history of disregarding land use conditions imposed by Garfield County. In January, 1998, pursuant to Resolution No. 98-06, the Board granted a conditional use permit for a home office / arts and crafts studio to be located in a "barn" structure on the property. This structure and sewage disposal system had been constructed without a building permit in violation of County regulations as well as C.R.S. § 30-28-205. However, the Board decided to grant a conditional use permit after -the -fact, subject to several specific conditions. The conditions set forth in the Resolution included the following: 1. That the applicant provide a report from a civil engineer, based upon the engineer performing a percolation test, as to the adequacy of the individual sewage disposal system [ISDS] to meet the sewage disposal of needs of the structure, for submittal to the Building Department for a permit, prior to the issuance of the Conditional Use permit. *** 3. That the Conditional Use permit is only valid for the home occupation (office) and arts and crafts studio. Further that the building will not be used as an apartment or extra bedroom as noted in the application... . *** 5. The only residential use allowed on the property is the existing single family dwelling and the one (1) accessory dwelling in existence presently. None of these conditions have been met. To the contrary, the Applicant has blatantly violated the conditions by: (1) failing to submit a report that the ISDS was ever tested or that it is adequate; (2) wilfully and flagrantly using the barn as an additional dwelling unit; and (3) using more than the existing house and accessory dwelling as residential units. Upon information and belief, a "shed" structure is being used as a fourth dwelling unit in addition to the barn. Further, to our knowledge, no building permit was ever issued or applied for with respect to the construction or improvement of the barn. F:\2000\Letters-Memos\MAHAN-County-ltr-l.wpd LEAVENWORTH & TESTER, P.C. Garfield County Commissioners Page 3 May 5, 2000 Since the applicant has ignored prior conditions of approval demanded by this Board, there is no reason to expect that the applicant would comply with any new conditions. Accordingly, denial, rather than conditional approval, is appropriate. Further, granting this request would impair or defeat the stated purpose of the Subdivision Regulations. That purpose is stated in Section 1:21, which provides in relevant part: The Subdivision Regulations are designed and enacted for the purpose of promoting the health, safety and welfare of the present and future inhabitants of Garfield County by encouraging orderly development, in accordance with established County policies and plans. Here, the history of the subdivision shows an intent to evade normal procedures and to create numerous lots without going through such procedures. The history described below is based upon our review of the chain of title as shown in the records of the Garfield County Clerk and Recorder. This 20 acre parcel was originally part of a 260 acre parcel acquired in 1966 by William Davies, Lue Ellen Davies , Charles Davies, Adeline Cleary, and Alice Kummer (hereinafter the "1966 Owners"). On May 20, 1974, the 1966 Owners conveyed the 260 acre parcel to seven (7) different grantees, all with a common address of 444 White Avenue, Grand Junction, Colorado. The deeds were all recorded simultaneously and were subject to a single deed of trust, which means that there was a single promissory note for all seven (7) parcels. Five (5) of the seven (7) conveyances were for 40 acre parcels and were therefore not covered by the County Subdivision Regulations in effect at the time. The other two (2) conveyances were less than 35 acres but did not go through the subdivision regulation or exemption process and were, therefore, illegal subdivisions. Regardless of this illegality, the above transaction demonstrates that the intent was to effectuate a common subdivision scheme. After this conveyance in 1974, some of the parcels were further subdivided through the County subdivision exemption process. Restrictions against resubdivision were included in the deeds each time one of the parcels was further subdivided. These restrictions are substantially identical for all of the various parcels and further indicate that this was a common subdivision scheme. The 20 -acre parcel owned by the Applicant presently at issue was one (1) of three (3) lots created out of one of the 40 -acre parcels, and included a restriction on resubdivision, which the Board of County Commissioners approved on October 20, 1975. F: \2000\Letters-Memos \MAHA N-County-Itr- l.wpd LEAVENWORTH & TESTER, P.C. Garfield County Commissioners Page 4 May 5, 2000 As of this time, at least thirteen (13) lots have been created out of the original 260 -acre parcel, without ever going through a formal subdivision process. Permitting the creation of yet another lot would thwart the intent of the Subdivision Regulations to provide for the orderly and considered development of subdivided land. B. Submittal Requirements Section 8:42 sets forth supplemental submittal information to be filed with an application for a subdivision exemption. Section 8:42(H) requires: It shall be demonstrated that the parcel existed, as described on January 1, 1973, or the parcel, as it exists presently, is one (1) of not more than three (3) parcels created from a larger parcel, as it existed on January 1, 1973. The applicant cannot demonstrate this fact as required. As discussed above, the property was part of a 260 acre parcel as of January 1, 1973. That parcel was divided into seven (7) smaller parcels. Those seven (7) were later divided into more parcels, including the 20 -acre parcel at issue here. The subject property is actually one of at least thirteen (13) parcels created out of the original 260 -acre parcel that existed prior to January 1, 1973. Because the applicant cannot make the demonstration required by the code, the land does not qualify for a subdivision exemption. C. Review Criteria Section 8:51 of the County Regulations requires the Board to consider all of the review criteria in Section 8:52, and the Board may also consider the factors listed in Sections 8:60 and 8:10. The factors under Section 8:10 have been addressed above. The mandatory criteria under Section 8:52 include the following: A. No more than a total of four (4) lots, parcels, interests or dwelling units will be created from any parcel, as that parcel was described in the records of the Garfield County Clerk and Recorder's Office on January 1, 1973. In order to qualify for exemption, the parcel as it existed on January 1, 1973, must have been larger than thirty-five (35) acres in size at that time and not part of a recorded subdivision; however, any parcel to be divided by exemption that split by a public right-of-way (State or Federal Highway, County road or railroad), preventing joint use of the proposed tracts and the division occurs along the public right-of-way, such parcels thereby created may. in the discretion of the Board. not be considered to have been created by exemption with regard to the four (4) lot, parcel, interest or dwelling unit limitation otherwise applicable. (Emphasis added). 1 F: \2000\Letters-Memos \M A HA N-County-Itr-1. wpd LEAVENWORTH & TESTER, P.C. Garfield County Commissioners Page 5 May 5, 2000 As described above, this 20 acre parcel is actually one of at least thirteen (13) separate parcels that have been carved out of the original 260 acre parcel that existed as of January 1, 1973. Therefore, it does not qualify for exemption unless an exception applies. Here, the applicant is relying on the "county road" exception to justify splitting the 20 acre parcel. However, the applicant has not demonstrated that the county road prevents joint use of the proposed tracts. The zoning for the property allows one single-family dwelling and one accessory dwelling unit per lot. Presently, the single-family dwelling is located on the north side of the county road, and a cottage on the south side serves as the accessory dwelling unit. Thus, the two tracts are already being used "jointly" to obtain the maximum number of dwelling units (1 main dwelling plus 1 accessory unit) on. the 20 acre property. These uses have existed for many years. The Applicant cannot establish that the public right-of-way prevents the joint use of the proposed tracts. Further, while the Board "may" apply the county road exception to permit otherwise illegal subdivision exemptions, it is not requiredto do so. As demonstrated by the history of conveyances described above, the landowners have taken advantage of every possible exception and procedure to maximize the number of lots without going through the subdivision process. Under these circumstances, it would be inappropriate for the Board to allow a discretionary exception to apply so as to create even more lots, and thereby permit two (2) additional accessory dwelling units per lot under the zoning, without complete review under the normal subdivision procedures. B. All Garfield County zoning requirements will be met. The barn structure is currently being used as a third dwelling unit on the property in direct violation of the zone regulations and in further violation of the Resolution 98-06. There is also some evidence, which we intend to present at your hearing on May 8, 2000, to suggest that a shed on the property may be used as a fourth dwelling unit. The Applicant continues these infractions despite a series of letters from the County regarding the zoning violations and despite the fact that the construction and use of some of the structures are in violation of zoning regulations and illegal pursuant to C.R.S. §§ 30-28-124 and 124.5. Those statutes provide for both civil and criminal penalties, but the Applicant remains undeterred. Due to the Applicant's history of ignoring zoning requirements despite express warnings from the County, there is every reason to expect that zoning requirements will not be met if the application is granted. D. ... a suitable type of sewage disposal to serve each proposed lot. One of the conditions of Resolution 98-06 required the applicant to submit proof that the sewage disposal system attached to the barn had been approved by a certified engineer. The Applicant failed to meet this condition. The failure to meet the condition suggests that either (1) F: \2000\Letters-Memos \M A H A N-County-Itr- I . wpd LEAVENWORTH & TESTER, P.C. Garfield County Commissioners Page 6 May 5, 2000 the Applicant has no regard for such conditions and intends to ignore County regulations or any conditions imposed by this Board; or (2) the Applicant was unable to obtain certification from an engineer because the system is unsafe. Either way, the failure to submit proof that the sewage disposal system is an adequate reason to deny the application. The additional factors under Section 8:60 include the following: F. Number of lots and/or multiple -dwelling units created by the proposed exemption. As stated above, granting the request would effectively result in the creation of a total of at least fourteen (14) lots out of the original 260 -acre parcel that existed in 1973, all without formal subdivision review. Additionally, granting the request here would create two (2) new lots, which would each be entitled to a main house plus an accessory dwelling unit. The barn is currently being used as a dwelling unit despite the current zoning, and a shed is allegedly being used a fourth dwelling unit. Granting the request would essentially sanction these zoning violations and would have dangerous precedential value. The message to property owners would be to build whatever you want and seek approval after the fact. This is antithetical to the concept of land use "planning." D. Additional Considerations As stated above, the Board has broad discretion to grant or deny subdivision exemptions based upon the best interests of the general public. We believe that the Board should consider these additional issues: Violation of Covenants. The Applicant submitted an identical application for a subdivision exemption in 1989 that was never finalized due to a conflict with covenants on the land that prohibited further subdivision of the property. The covenants at issue, recorded in Book 477 at Page 469 in the Office of the Garfield County Clerk and Recorder, clearly states: "Resubdivision. No tract of land may be resubdivided into smaller tracts of land." The Applicant verbally represented to the County that the covenants have been terminated. The Applicant has offered no evidence demonstrating the termination of the covenants and we believe they are still in effect. The covenants state that they shall be binding upon all parties until January 1, 2000, and shall be automatically extended for successive ten (10) year periods unless otherwise changed by a vote of the then majority of tract owners. As discussed above, the subdivision of the original 260 -acre parcel was a common subdivision scheme with substantially identical covenants and restrictions applying to the parcels. Therefore, to change the covenants on January 1, 2000, a majority vote of all the tract owners within the original 260 -acre parcel was necessary. No notice F:\2000\Letters-Memos\MAHA N-County-Itr-1. wpd LEAVENWORTH & TESTER, P.C. Garfield County Commissioners Page 7 May 5, 2000 of a vote was provided to all of the tract owners, therefore the recorded covenants were renewed for another ten (10) year period. This application for a subdivision exemption is in direct conflict with restrictive covenants on the property. The County Resolution that approved the subdivision exemption by which the Applicant's parcel was created stated that "[t]his exemption is granted upon the specific condition that all agreements, covenants, and conditions set forth in the petition be complied with." The covenants quoted above were a condition of approval of the subdivision creating the Applicant's lot. Therefore, as a condition of both the County approval and protective covenants, any resubdivision of this parcel is prohibited. Water Supply. Our clients indicate that the physical water supply in this area is extremely limited. As discussed herein, an approval of this application will potentially result in additional dwelling units on each newly created parcel. Therefore, we believe the County should require long-term pump tests on the Applicant's well that are conducted in the dry season to demonstrate an adequate physical water supply. LEL:bsl cc: Sharon Stephenson Denis Hines Kathleen Harris Richard Cummins, Esq. Kenneth Greene James Mahan Kimberly Hazzard Mark Bean Don DeFord, Esq. F:\2000\Letters-Memos\MA HAN-County-Itr-1.wpd Very truly yours, LEAVENWORTH & TESTER, P.C. REASONS TO DENY THE MAHAN SUBDIVISION EXEMPTION APPLICATION May 20, 2002 • The subject 20 acre parcel is one of at least thirteen (13) parcels created out of a single 260 acre parcel that existed prior to January 1, 1973, and therefore does not qualify for a subdivision exemption. County Regulations, Section &42(H). • Subdivision exemptions are discretionary. Further subdivision of this area without formal subdivision review is contrary to the general goal to encourage orderly development in accordance with established County policies and plans. County Regulations, Section 1:21. Granting the exemption could result in up to two additional dwelling units on the combined properties under current zoning without any formal subdivision review. • This parcel was exempted from subdivision regulations by County Resolution dated March 17, 1975. The applicant for the exemption, Dan E. Carnes, represented to the Board of County Commissioners in his petition for exemption that no further subdivision would occur and that this would be ensured through restrictive covenants. This representation is shown in the petition itself and in findings of fact by the Garfield County District Court. • The Board of County Commissioners made the prohibition against future subdivision explicit when it approved a later resolution on an identical petition for neighboring property on October 20, 1975. All 13 parcels included these covenants, illustrating that all 13 were part of a common subdivision scheme. • The County Road does not prevent joint use of the proposed tracts which lie on either side of the roadway. O The 1975 resolution creating this parcel specifically contemplated that the roadway would be privately maintained. Even though the road was later accepted by the County, the condition illustrates that the Board of County Commissioners did not contemplate this as a "public right-of-way" that would allow further subdivision. O The zoning on the property allows one single family home and one guest house. As illustrated on the Applicant's own map, a main house and a guest house have been located on opposite sides of the road for many years. Both sides of the road are being treated as a single parcel for purposes of zoning compliance. O As a practical matter, the little -traveled, dead-end, dirt roadway does not prevent joint use of the tracts. The tracts are, in fact, used jointly. • All Garfield County Zoning Regulations will not be met. See County Regulations at Section 8:52. o The Applicant has a history of non-compliance with County Zoning Regulations, including a failure to comply with the conditions of a conditional use permit issued in 1998 pursuant to Resolution No. 98-06. In particular, the Applicant has used (and may be continuing to use) a barn and a shed on the property as additional dwelling units in violation of applicable zoning regulations. o The Applicant has a history of non-compliance with building permit regulations. • The water supply plan is not adequate. o The Application states that it will rely on a substitute water supply plan. The legality of this type of arrangement has been called into question by the Colorado Supreme Court, and the State Engineer's authority to approve such a plan has been severely curtailed. See Empire Lodge Homeowners' Association v. Moyer, 39 P.3d 1139 (Colo. 2001). o No letter from the State Engineer approving a substitute supply plan was available for inspection at the County Planning Office as of May 17, 2002. O Eyewitness accounts suggest that the physical water supply in the subject area is extremely limited. O Even if substitute supply plans do remain viable after the Empire case, there may be no precedent for the County to approve such a plan for a private water company instead of a public water conservancy district. 1111111 11111 "1'111111111111 607030 07/15/2002 03:24P 81369 P6., M ALSDORF 1 of 2 R 0.00 D 0.00 GARFIELD COUNTY CO STATE OF COLORADO ) )ss County of Garfield ) EXHIBIT J At a regular meeting of the Board of County Commissioners for Garfield County, Colorado, held in the Commissioners' Meeting Room, Garfield County Courthouse, in Glenwood Springs on Monday, the 20th day of May, 2002 , there were present: John Martin Larry McCown Walt Stowe Don DeFord Mildred Alsdorf Ed Green , Commissioner Chairman , Commissioner , Commissioner , County Attorney , Clerk of the Board , County Manager when the following proceedings, among others were had and done, to -wit: RESOLUTION NO. 2 0 0 2- 71 A RESOLUTION CONCERNED WITH THE DENIAL OF AN EXEMPTION FROM THE GARFIELD COUNTY SUBDIVISION REGULATIONS FOR JAMES MAHAN. WHEREAS, James Mahan petitioned the Board of County Commissioners of Garfield County, Colorado, for an exemption from the definition of the terms "subdivision" and "subdivided land" under C.R.S. 1973, 30-28- 101 (10) (a) -(d), as amended, and the Subdivision Regulations of Garfield County, Colorado, adopted April 23, 1984, Section 8:00 through 8:60 and for the division of an approximately 20.00 acre tract as described in Book 698, Page 787, as filed in the Offices of the Clerk and Recorder of Garfield County, Colorado, into two (2) tracts of approximately 6.0 and 14.0 acres each WHEREAS, the Petitioners have not demonstrated to the satisfaction of the Board of County Commissioners of Garfield County, Colorado, that the proposed division falls within the criteria established in Section 8:53 of the Garfield County Subdivision Regulations of 1984, as amended, pursuant to the purposes of Part 1, Article 28, Title 30, Colorado Revised Statutes 1973, as amended, and WHEREAS, the Board on the basis of substantial competent evidence produced at the aforementioned meeting, has made the following determination of fact: 1. Proper publication and public notice was provided as required by law for the meeting before the Board of County Commissioners. 2. The meeting before the Board of County Commissioners was extensive and complete, that all pertinent facts, matters and issues were submitted and that all interested parties were heard at that hearing. 1 111111 11111 111111 11111 1111 11 11111 IIII 11111 1111 1111 607030 07/15/2002 03:24P 81369 Pbrd M ALSDORF 2 of 2 R 0.00 D 0.00 GARFIELD COUNTY CO 3. The parcel to be divided by exemption is split by a public right-of-way that does not prevent joint use of the proposed tracts. NOW THEREFORE, BE IT RESOLVED, based upon the findings of fact set forth above, the division of the above described property as proposed is hereby denied due to fact that the proposed split by a public right-of-way does not prevent joint use of the proposed tracts.. Dated this 15th day of July , 2002 ATTEST: rti `F.r� eer of the ,Board Upon riiotion,duly made and seconded the foregoing Res vote: GARFIELD COUNTY BOARD OF COMMISSIONERS, GARFIELD COUNTY, COLORADO John Martin Larry McCown Walt Stowe adopted by ,e following STATE OF COLORADO )ss County of Garfield , Nay , Aye , Aye I, , County Clerk and ex -officio Clerk of the Board of County Commissioners, in and for the County and State aforesaid, do hereby certify that the annexed and foregoing Resolution is truly copied from the Records of the Proceeding of the Board of County Commissioners for said Garfield County, now in my office. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said County, at Glenwood Springs, this day of July, A.D. 2002 County Clerk and ex -officio Clerk of the Board of County Commissioners INDEX TO EXHIBITS A. Roberta Katz Mahan's College Degrees in English and Reading (BA, MA, and EdS) from The University of Florida B. Section 8:52 of the County Rules and Regulations Review Criteria for Subdivision Exemption C. A diagrammed portion of Section 8:52 of County Rules and Regulations underlined in Exhibit B D. The minutes of the BOCC meeting in 1989 E. A section of Mr. Charles Willman's Brief filed on June 19, 2002; Complaint for Judicial Review and/or Declaratory Relief; Petitioner: Mahan Properties; Defendant: Board of County Commissioners of Garfield County, Colorado F. County Rules and Regulations Section 8:22 Procedural Requirements G. Garfield County Road and Bridge Letters, 1988 & 2004 and Pictures of CR 126 H. Staff Comments to BOCC in May 2000 I. Staff Letter of Denial Recommendation to BOCC May 20, 2002 J. Letter of technical compliance and notices given to James and Roberta Mahan by Staff instead of Mahan Properties K. Notarized letter of Mahan's Colorado Residence L. Letter from unhappy neighbor's attorney to Garfield County Commissioners M. Keys for Writers: a handbook for the usage of the English language; section on the use of commas, p.322 and 323 and the section on the use of parenthesis, p. 341 N. Warriner's English Grammar and Compositionahe use of parenthesis, p. 833 and p. 834 Q: Is it the Board's understanding that the final and only reason for Staffs recommendation of denial for Mahan's subdivision exemption request is that: Mahans have not demonstrated that the public right-of-way dividing the proposed two tracts does not prevent joint use for the parcels? Q&A Opening Statement: We will now present evidence to the Board which will succinctly address and prove four incontrovertible conclusions: 1. That Staff has misunderstood, misread and misrepresented their own County Rules and Regulations 2. That Staff has used fallacious and false premises on which to base their objections to the Mahan subdivision exemption 3. That Staff has over the past five years demonstrated prejudice and discrimination against Mahans by: (a) not following their own procedures (b) changing compliance criteria each time Mahans submitted an application which addressed and resolved all previous issues and concerns -thereby "raising the bar" in an effort to confuse, frustrate, and "create" invalid subdivision exemption requirements 4. That through Staffs action, five, non -actions and recommendations of Denial, Mahans have been denied their constitutional rights as property owners, have been forced to pay large and unnecessary sums of money and have no plain, speedy and adequate remedy otherwise provided by law to resolve their request for a subdivision exemption. ARGUMENT 1 In order to parse and explain Section 8:52 of County Rules and Regulations, it will be necessary at this point to inform the Board that I will be giving them my testimony as an expert witness as well as an applicant. Please refer to Exhibit A, my three degrees from Page 1 the University of Florida. The first one, a BA in Arts and Sciences, is in English literature. The next one is a Masters Degree in Reading (MA), and the last is an Education Specialist Degree in Reading (EdS). These credentials have enabled me to function for many years as a middle and high school teacher of English, Speech and Drama, and as a college professor in the College of Education as a teacher in Reading Methodology. I taught teachers how to teach Reading at the University of North Florida in Jacksonville, Florida, and was the Reading Coordinator for St. Johns County in Florida. Also included as expert information will be the expertise of Ms. Terri Drake, a veteran English teacher and librarian for Garfield County, as well as the input from Ms. Leanne Campbell, the present English teacher of GWS high schooL Both Ms. Drake and Ms. Campbell are in complete agreement with my parsing and explanation of Section 8:52. * Please note the word, "EXPLANATION", not" interpretation". Please review Exhibit B (Section 8:52 of County Rules; Staff has a copy of this) The structure, syntax and vocabulary of this section leave nothing to interpretation. Although very poorly written, the meaning becomes clear when it is diagrammed. As you can see as you read this 130 word sentence, it is nearly impossible to understand without dissection. Ms. Drake Quote: "In truth, whoever wrote this abominable sentence was either brilliant in his effort to confuse and mislead, or he was ignorant of simple English rules of communication." We will only attempt to diagram and explain the section which pertains to Mahan's request for a subdivision exemption based on a property split by a public right-of-way. * Please note the placement of the commas before and after the phrase, "preventing joint use of the proposed tracts" and the use of parentheses () that surround the examples of "public -right -of way". * Page 2 These seemingly unimportant grammatical constraints impose specific restrictions in the meaning of the words that they REGULATE & LIMIT, according to Warriner's English Grammar and Composition. The commas that set off, "preventing joint use of the proposed tracts," force the reader to understand that the phrase is meant to be a description, explanation, or give additional information about the noun preceding it --in this case, "public right of way". This is also called an appositive. Webster's definition is: "a noun or noun phrase placed with another as an explanatory equivalent, both having the same syntactic relation to the other elements in the sentence." The use of parenthesis around the words "(State or Federal highway, County road or railroad)" are used "to mark off explanatory or qualifying remarks" (Defined by Webster's). The words in parenthesis were clearly used to show examples of a public right-of-way. They were never meant to imply, for example: that if the public right-of- way was not one of the examples inside the parenthesis that it was not a public right-of- way. As this short history will reveal, Staff has continuously denied Mahan's application by requiring Mahans to prove that CR 126 was a county road instead of the obvious intent of Section 8:52; to use a public right-of-way as the road which divides the two tracts. This very reason is why the Mahans were denied an Exemption for two years, which included four BOCC meetings and one court case. Please review Exhibit C Although this may bring back some very unpleasant 7th grade memories for some of us, please forgive the need for a little discomfort and let me explain this diagrammed sentence. At least you didn't have to diagram it. Ms. Drake was kind enough to do it for us. In fact, think of this exercise as a 7th grade English lesson when your teacher, like me, probably told you that grammatical constraints were like stop signs or red lights. They are as inflexible as a math equation; you may not "interpret" them, that is reserved for the use of words. Page 3 Explanation of Diagrammed Sentence • point to where the appositive appears and commas; the word "and " used to conjoin the 2 verb phrases • there is no "and" before appositive phrase • there would be 3 requirements instead of 2 for a subdivision exemption if the "and " were there • repeat the 2 requirements This is the demonstration the County has required of Mahans. Mahans don't have to prove that the public right-of-way prevents joint use. The sentence itself is the proof, and the County wrote it. Understanding the meaning, and not the "interpretation" of this paragraph is of paramount importance; you can not "interpret" commas. Wars have been fought over the conjunction "and" and the placement of commas in a sentence. Peoples lives have and will be affected greatly by incorrect usage in our language, and this poorly stated regulation is causing a lot of trouble, time and money for the Mahans, the county and untold others. Since March 2002 (2 years) Mahans have been trying to "demonstrate" that CR 126 prevented joint use of the proposed tracts, and they never had to. Two lawyers, mine and the counties, and the county zoning and planning staff never noticed or chose not to notice this fact: That there are only two requirements for subdivision exemption in 8:52 1. A public right-of-way which prevents joint use of the tracts 2. The division occurs along the public right-of-way And the Mahans went along with all of these legal and county officials for years; only now that the cloud of obfuscation has been lifted, the simple truth becomes clear. On each of the five Denial Recommendations to the BOCC the staff has consistently misread these grammatical constraints, whether intentionally or through misunderstanding is not known. Page 4 The word OBFUSCATE - The definition of which is: to render indistinct or dim, to confuse or becloud. You see now, I hope, that whether or not this public right-of-way is called a county road, a prescriptive right of way, Black Diamond Mine Road or CR 126 is of NO significance whatsoever. The fact is that it is a public right-of-way which has been admitted to (back in 1989) and agreed to by Staff and BOCC on many occasions, this fact is the only important or significant legal or grammatical issue before you today. This knowledge, stated in the language use of the County Rules and Regulations 8:52, probably would have eliminated three of our BOCC meetings, a court case and the savings of considerable time and money on both sides. At least- that's how the BOCC saw it in 1989. Please turn to quote from Exhibit D (page 2): The minutes of the BOCC meeting in 1989. When Mahans subdivision exemption was approved in 1989, the BOCC and Mark Bean and Don Deford agreed that "...this exemption is allowed based on division of the property by a public right-of-way," and that "..the enforcement of private covenants on the site is a private matter between property owners." Argument 2 One of the best ways to obfuscate an issue is to use fallacious logic, and two of the most common methods of doing so are called circular reasoning and begging the question. Begging the question uses: 1. equivocation 2. presupposing the conclusion of an argument . Instead of having clarity in purpose, it is obvious that Staffhas used these tools of confusion either intentionally or through unawareness of the thinking process of Page 5 their argument position. We do not believe that the authors of the county rules and regulations meant for the evidence and conclusion to restate each other, or they would have been written differently; (Refer back to Exhibit B) For example: 1. Whether or not the road in question is a county road, which is one example of a public right-of-way because it appears in parentheses 2. Whether or not the road prevents joint use of the parcels, when in fact the_ regulations use "prevention of joint use" as a definition of public right-of-way. It simply boggles the mind to follow such illogical conclusions drawn from such confusing premises. Mahans are now placed in the position of having to explain something illogical and confusing. It is obfuscation at its finest. Argument 3 Please review Exhibit E, a section of Mr. Willman's Brief filed in June of 2002, which outlines the many and varied ways in which the Staff and Board has denied Mahan's subdivision exemption request. We would like to briefly outline the dates and decisions for the past 15 years and five meetings: 1. April 1989 Exhibit D (page 1) BOCC voted Approval in county minutes. (a.) Comm. Arbany asked if it was a common practice in the past "...to allow exemption where a county road divides property," and Mark Bean stated that "it was a common practice, provided other requirements were met." (b.) Don Deford reiterated that the Board should not be concerned with covenants unless they reflect on the appropriate use of the property. Page 6 Results of this meeting: (a) Mahans waited until January 2000, eleven years, to re -apply for subdivision (b) Mahans acquired the necessary documentation to prove that the covenants had expired and had been lifted (even though this admittedly was NOT a BOCC concern) (c) Mahans acquired water rights in order to meet county criteria for future application for exemption (d) Mahans built a reservoir and pipeline and filed an augmentation plan. * The Staff including Mark Bean and Don Deford and the County Commissioners agreed that Mahans had supplied the necessary requirements to approve a subdivision exemption. 2. May 8, 2000 (a) County Staff neglected to inform Mahans by way of a letter of compliance or non- compliance. This, in fact, for the past four applications has never been done. County Rules and Regulations 8:22 state that the County is required to review the exemption request and send a notice to the applicant of compliance or non-compliance with all technical information. (See Exhibit F) After this, Reg.8:22 states that the applicant has an additional amount of time to meet required standards and request a conference if necessary. And again, the applicant is supposed to get a letter from the county determining the completion of county requirements. ** The first time county staff has followed their own procedure is this year, prior to submission of this application. ** (b) The results of the May 2000 meeting were a complete waste of the County Commissioner's time. Quite predictably, Mahan's application was denied for the following technical reasons which could easily have been corrected if County procedure rules had been followed with a simple letter of non-compliance Mahans could have met required criteria before this meeting instead of two years later. Page 7 Reasons stated for Denial: 1. Fire protection letter 2. Sewage disposal 3. Zoning requirements 4. Health and safety requirements #1 and #2 are the only two noncompliant issues since 2, 3 and 4 were all the same thing according to Staff comments; and #1 could have been an "approval condition" instead of a "denial" reason. The most important facts to be noted from these denial issues is the absence of the two new issues that appear in the next staff comments, March, 2002, two years later. After Mahans bring their application into what staff indicated in May 2000 was total compliance, in 3. March 2002 Two new "issues" appear: 1. Legal supply of water 2. "county road" status uncertainty. These were not addressed and were apparently non -issues in 2000. In fact, Exhibit G letters and pictures, prove that the Staff knew all along that CR 126 was not only a public right-of-way-- it had been designated a county road in 1988! Quote from page 2 of Staff Comments in May 2000: Exhibit H "Property is split...." Prior to Exemption Plot" Exhibit H, Page 2. Legal water was addressed and approved with conditions that were only required to be met after approval of application and prior to platting. Mahans were completely blindsided by Staff's seven page treatise of deliberate obfuscation of these two "new" and unknown non-compliance, non -reasons for denial of their subdivision exemption application. There was no disclosure to Mahans; Staff never indicated in a letter of technical non-compliance that these issues would be Page 8 addressed. This was a County Procedure 8:22 requirement which they ignored --again. * Both of these non -issues had already been addressed and approved in previous meetings. This shocking behavior by staff could only be explained by prejudice and discrimination against Mahans. The use of the following methods is obvious: 1. Changing criteria and "raising the bar" in order to confuse, frustrate and create invalid subdivision exemption requirements; and 2. Using fallacious and false premises on which to base their objections. This Staff recommendation of denial was primarily based on the negative input in a letter from Mahan's neighbor's attorney who opposed Mahan's exemption request. (Exhibit L) The wording of Staff's comments are too similar to ignore. This denial recommendation was designed to deny Mahan's Constitutional right of due process and use of their property. Stas comments about the "uncertainty of the status of CR 126" are completely irrelevant because the regulations state a, "public right-of-way", and there was no "uncertainty" about that. CR 126 was used as the public right-of-way for the Black Diamond Mine coal store, Mahans main dwelling, since 1936. These comments are yet another obvious attempt at obfuscation; they even go into another smoke screen and irrelevant digression about "prescriptive right of way". Also in this lengthy attempt to confuse is a laundry list two pages long, which only re -state requirements that Mahans are not required to perform until after the subdivision exemption is approved and is in the platting process; however it is written to appear as though they must be done before the platting process begins. The non -issue of covenants is even mentioned again and it states: "There is no confirmation of non -renewal of covenants". This is a blatant untruth, since documentation of this was presented two years prior to this meeting and placed in Stas Page 9 file. Aside from which, Mr. Deford made it decisively clear 15 years ago that covenants were NOT a BOCC concern. And I quote again from Exhibit D, page 2, "...The enforcement of covenants on the site is a private matter between property owners..." As a result of this invalid accusation, Mahans were required to do a lengthy and very extensive property title search to prove that their covenants were not the same covenants as their complaining neighbor's covenants!! In essence, if Staff had been forthcoming with Mahan's prior to these County Commissioner meetings and had been helpful in resolving them, this continuing, expensive, never-ending story would have been concluded years ago. If Staff had recommended the purchase of West Divide Water as a solution to their new "concerns" about water, it would have been done. Staff was not only unhelpful, they were antagonistic at best. Quoted in the Staff comments of this letter to the BOCC at the meeting: "The applicant has provided documentation of the physical supply in terms of the amount of water produced by the well that appears to be adequate". And yet until Mahans provided the approved well permit which only took a week, (the date on the permit is 4/5/02) Mahan's subdivision exemption request was denied by Stam Unfortunately, not only were Mahans not informed in a letter of technical non-compliance long before this meeting, which, if you recall, was two years after the last one: Mahans were refused a copy of the Staff's comments and recommendation of denial letter until the very day of this meeting. The element of--"surprise-we've done it to you again"--- was the overwhelming conclusion. This meeting was "continued" to "deal with" the same two issues: 4. April 2002 1. Legal water supply 2. Determination of the status of the "public right-of-way" presently being identified as CR 126. To sum up the results of this meeting, Staff apparently decided that Mahans had Page 10 "resolved" the water issue; we assume this was done by producing a well permit that should have been disclosed in a letter of non-compliance two years ago. They also failed to notice in their own file that a water bacteriology test had been done May 2000 in the spring which is also in this application. They state in this letter to BOCC that the test submitted was 20 years old! The last of this denial letter indicates that the Board has to make a "determination as to the status of the road". Once again, the "status of the road" is without question or argument: A Public Right -of -Way. This is just another attempt to deny Mahans application no matter what they do. 5. May 20, 2002 Here we go again... Staff recommends denial because.... (quoted from Mr. Willman's brief (Exhibit E) "...parcel to be divided must be split by public right-of-way which prevents joint use of the proposed tracts"... It is not our intention here to be deliberately annoying or repetitive, but this point of confusing language in the Rules and Regulations is even interpreted unintentionally, but correctly, in Mr. Willman's brief. He didn't even argue the point that we have shown in our earlier parsing of the phrase in the rules and regulations. He automatically and correctly used the word, `which", to describe public right-of-way as the definition: which prevents "joint use". In this final Denial recommendation by the Staff, Exhibit I, it is agreed that: 1. Mahans are not prevented (by the County Rules and Regulations) a subdivision exemption by the four lot rule because in fact, the parcel they are requesting is the fourth lot. 2. There are absolutely no covenants which prevent their application approval. (even though this was NOT a BOCC issue to begin or end with) 3. Their water supply was adequate. 4. The split does not prevent joint use; an argument which has no validity. 5. Lastly, in this "continued" meeting, nowhere was it mentioned in a previous meeting Page 11 that Mahans had to present evidence that the "public road being identified as the basis for the split prevents joint use of the tracts". This was the only reason for denial of Mahan's application stated in the May 2002 meeting. This false premise objection was obviously a last-ditch effort in finding excuses to deny where none existed. And, indeed, this excuse to deny is why we are here today, two years later. It is also why we demonstrated by diagramming in Part 1 of this argument that the definition of public right-of-way is that it prevents joint use of two parcels of land. The most flagrant use of discrimination was displayed at this May 2002 meeting. Even though Staff agreed that Mahans qualified for a subdivision exemption using the fourth lot exemption, they chose to deny Mahan's application on a specious, at best, argument that CR 126 does not prevent joint use of the two parcels-- which was the simplest and most obvious exemption exception to use. Final Meeting Today April 12, 2004 Thanks to Judge Ossola, who upheld County's request for Motion to Dismiss and never ruled on Mahan's Complaint, the Mahans were permitted to apply for a subdivision exemption again under the name "Mahan Properties" instead of Jim Mahan. If this request is denied again, the only remedy that Mahans have is the subdivision process which has been suggested to Mahans by Staff. This action would put Mahans in an impossible and untenable position which obstructs justice, prevents due process, and strongly implies discrimination by the Staff. The environment on Black Diamond Mine Road (CR 126) is far too fragile to consider a full subdivision at this time and the county Staff is painfully aware of this well known fact. They also know that the entire 4 mile area surrounding CR 126 would be literally crazed if such a thing were proposed. Now only a few people will complain --the same ones who always have in the past --and the Staff listens, believes and heeds those who complain the loudest and longest. And the complainers are here again today --with the same invalid, irrelevant issues meant to Page 12 obfuscate and tangentially redirect the discussion and the decision of the BOCC. Exhibit K should answer any concerns that the BOCC has about Mahan's residence during the three months a year they spend in Colorado. Another irrelevant old refrain you will probably hear today is that Mahan's neighbors are hauling water because their wells are dry. Mahans have an abundant supply of water for sale that their neighbors could buy to solve their problem if they so chose. This appears to be the reason that Mahan's request for Exemption has been denied over and over. Their neighbors have problems. Since the April 2002 meeting in which an "adequate legal water supply" was not even addressed, Mahans have purchased West Divide Water. This was done so that in this final meeting that old refrain does not surface again in yet another attempt stop this process. Mahans were also required to produce a "new" sketch map for this meeting costing $2,250.00. Apparently the ones included in all previous applications were not "good enough" for this one. The entire process for filing an application before (with the exact same county requirements) was never more than $400. This time it was $4000 for an identical application. And this does not include my time as my own counsel and secretary. It was adjudicated at the end of this four-year long, expensive and arduous process which included a lawsuit by Mahan's vs. BOCC, that Mahans had not used the name "Mahan Properties" in their application-- even though this was obviously an unintentional mistake, since the name "Mahan Properties" appeared on the Deed and other notarized documents in Mahan's application package. The Staff readily admitted their error in not noticing this. In fact, after all of this ado about it, Staffs letter of technical compliance a year later (Exhibit J) was addressed to James and Roberta Mahan; and the notice to the newspaper, the sign, and all correspondence with neighboring property owners had to be done twice -- after Mahans brought the matter to Staffs attention. See how easy it is for everyone to make mistakes? If Staff had followed their own 8:22 Regulation concerning a letter of non-compliance, they would have found this technicality, and Mahans could easily have Page 13 fixed it back in the year 2000! Closing Statement It is abundantly clear that the County has ignored, misinterpreted, misunderstood and misused its own rules and Regulations. The obvious intent of Stas continuously "finding" new objections to Mahan's Exemption requests without prior disclosure points to a picture of discrimination that is impossible to miss. It doesn't even take close scrutiny. As Mahans have shown many times over they have complied with every rule, regulation and standard that the county has required-- from 8:22 to 8:50 through 8:50, including all of the additional standards. At this time there is no basis for which to deny the Mahans their request for a Subdivision Exemption. In fact, in May 2002, there was no real reason for Staff to deny this request. Hopefully now it is clear to everyone that Mahans do not have to prove, demonstrate or give reasons why the public right-of-way called CR 126 divides the two parcels, and by its very definition along with the syntax in the County 0,12, t go r Rules and Regulations, prevents joint use. 1/4 4 Cr -= "�it c $ -F� 9e re -vii s e� Lu e-� t cQ in/La-6 -1 t' t Vm -17�5 r 4 i e. tee r (c be_ A.- ck sus,. `rbc -c -17.431,1 • /*I would like to close with the comments of the Staff and BOCC from the County Records, April 3, 1989, Exhibit D. There is now no plain, speedy and adequate remedy otherwise provided by law for the Mahans. We pray that this seemingly endless, tangled process will end today with a favorable decision by the BOCC. Thank You cr-cu --t-ed _ 14 l 9 gi 6 i s (i5fac� ct Page 14 - -2.r •e ,,. p s a_cib) ka5 ne9 - c Ckivlek sof_ irn A- die uniurrsftg of slnrih rnnferrr4 •N IItn1ar1. XUu the ffrfiree illootid414 w616806. anti all Ike rlohlo Miff prtNlit * llwt'tr1 itis 011014mi %,. Ito 11111no•R Whereof Ihti► 1:pi*mit. +11 *iq red. ha. born Innnrti liittl Ute *MI of Ike of I1reA, irN«N 1.1 ,M• 4.446 it $100114. Via tootemookillso of itio Away .1 IV *Mao Ortoti 1 ii rwrw+NMhee, amm M% eisl 1f ilkMloM1. 1N liri, .�icrMww..w -CO 175 rt— A— II. EXEMPTION APPLICABILITY Pursuant to section 8:50 of the Subdivision Regulations, the Board of County Commissioners has the discretionarypower to exempt a division of land from the definition of subdivision and, thereby, from the procedure in these Regulations, provided the Board of County Commissioners determines that such exemption will not impair or defeat the stated purpose of the Subdivision Re•ulations nor b- • -trimental to the .eneral .ublic welfare. The Board has :e ermined that leases, easements and other similar interests in Garfield County owned property, land for oil and gas facilities, and an accessory dwelling unit or two family dwelling that are subject to leasehold interest only and complying with the requirements of the Garfield County Zoning Resolution, are exempt from these regulations. A. No more than a total of four (4) lots, parcels, interests or dwelling units will be created from any parcel, as that parcel was described in the records of the Garfield County Clerk and Recorder's Office on January 1, 1973. In order to qualify for exemption, the parcel as it existed on January 1, 1973, must have been 35 acres or greater in size at the time and not a part of a recorded subdivision; however, any parcel to be divided by exemption that is split ba public ri t-nf-way (State or F-.eral highway, County road or railroad), reventing joint use of the proposed tracts lathe division occurs along the public ri•ht- o -way, suc considered to have been cr-. -. b exem• '.. a re•ard to the four (4) lot, parcel, interest or dwelling unit limitation otherwise applicable. For the purposes of definition, all tracts of [and 35 acres or greater in size, crea e after January 1, 1973 will count as parcels of land created by exemption since January 1, 1973. ma t the discretion of the oar B. All Garfield County zoning requirements will be met. C. All lots created will have legal access to a public right-of-way and any necessary access easements have been obtained or are in the process of being obtained. D. Provision has been made for an adequate source of water in terms of the legal and physical quality, quantity and dependability, and a suitable type of sewage disposal to serve each proposed lot. Proof of a legal supply shall be an approved substitute water supply plan contract; augmentation plan; an approved well permit; legally adjudicated domestic water source or a contract for a permanent legal supply of domestic water to be hauled from an outside site for a cistern. Proof of the physical supply from a well for the public meeting, may be documentation from the Division of Water Resources that demonstrates that there are wells within a % mile of the site producing at least five (5) gallons/minute. Prior to the signing of a plat, all physical water supplies using a well shall demonstrate the following: 1) That a four (4) hour pump test be performed on the well to be used. 2) A well completion report demonstrating the depth of the well, the characteristics of the aquifer and the static water level; 3) The results of the four (4) hour pump test indicating the pumping rate in gallons per minute and information showing draw down and recharge; 3 J 6 11 U v 773 O 71 ✓ s 6 0 0 . 0 a itt — u n d i v t ok e c(, orD d crp • 3 41) 0 v d •d 0— 2 o ?- tli -t— i t do) el._ g -? d 8 v� _.c) __c) a L g jpoLTeA elt, Pin en -r t April, 1989 - Page 349 PROCEEDINGS OF THE BOARD OF COUNTY COMMISSIONERS, GARFIELD COUNTY COLORADO April 3, 1989 The covenants and chain of title were discussed and the exhibits presented by Mr. Leavenworth showed that Mr. Whipple's deed did not have the restrictions on it but there was no one present on the property to witness what was being done. 4 Commissioner Arbaney asked if it was not a common •ractice in the •ast for th y to allow exemp ion w ere a count road divides •ro•ert and . Be state • 1 ovi..e they meet all other revuiremen s. Don reiterated that the oar a ould nn a concerned with covenants unless they reflect on the l ppropriate use of the property. V After considerable further discussion regarding the impact on the neighbors if exemptions continued, Commissioner Arbaney made a motion that the Board approve the subdivision exemption request of Jim Mahan located approximately 4.5 miles south of Glenwood Springs off County Road 126 with the recommendations as set forth in the staff comments dated April 3, 1989. Commissioner Mackley seconded the motion; carried with a vote of 2 to 1 - Commissioners Mackley and Arbaney voting, "Aye" and Chairman Smith voting, "Nay". PUBLIC HEARING REGARDING A SPECIAL USE PERMIT LOCATED APPROXIMATELY 1 MILE WEST OF GARFIELD/EAGLE COUNTY LINE OFF OF SWEETWATER ROAD; APPLICANTS, JOSEPH & VERONICA SAUTER AND JAMES & ROSE MECKLEY. Sworn in was Joseph G. Sauter, Jr., 1509 Sweetwater Road, Gypsum, CO 81637; James L. Meckley, same address; and Mark Bean, Director of Building, Planning and Sanitation, 109 8th St., Glenwood Springs. Don DeFord discussed the public notices with Mr. Sauter and the Board found them to be adequate. Mark presented the application as Exhibit "A"; Exhibit "B", proof of publication; Exhibit "C", mail receipts; Exhibit "D", staff comments. Exhibit "A" through "D" were accepted into the record. Mark reviewed the staff comments and there being no comments from any citizens, Commissioner Mackley made a motion that the Public Hearing be closed. Commissioner Arbaney seconded the motion; carried. Commissioner Mackley made a motion that the Special Use Permit for Joseph G. Sauter, Jr. and James Meckley be approved with the conditions of approval as set forth in the staff comments dated April 3, 1989 with the added language that the activity be initiated and application be made for the Special Use Permit within 120 days of the signing of the resolution and Special Use Permit. Commissioner Arbaney seconded the motion; carried. PUBLIC HEARING REGARDING A REQUEST FOR A SPECIAL USE PERMIT LOCATED APPROXIMATELY 3 MILES NORTH OF HIGHWAY 82 AT THE CATHERINE'S STORE INTERSECTION OFF COUNTY ROAD 100, APPLICANT ROGER & AMELIA ESHELMAN Sworn in were Roger & Amelia Eshelman; Dan Karst, Attorney for the applicants; and Mark Bean, Director of Building, Planning and Sanitation. Sherri Caloia, Assistant County Attorney, discussed the public -notices with the applicants and the Board found them to be adequate. Mark presented Exhibit "A" as the application; Exhibit "B", proof of publication; Exhibit "C", mail receipts; Exhibit "D", staff comments. Exhibits "A" through "D" were admitted into evidence. Mark reviewed the staff comments and discussed concerns he had with information in a letter from Mr. David T. Whidden, Jr. regarding the remodeling or changing the configuration of a manufactured home from what it was when it was manufactured. County policy is that a manufactured home should not be modified outstrip of tho _ . iv. SUGGESTED FINDINGS 1. Pax:r e. Z. That proper posting and public notice was provided as required for the meeting before the Board of County Commissioners. That th_e meeting before the Board of County extensive and complete, that all pertinent issues were submitted and that all interested at that meeting. Commissioners was facts, matters and parties were heard That for the above stated and other reasons, the proposed exemption is in the best interest of the health, safety, mora convenience, order, prosperity and welfare of the citizens Garfield County V. RECOMMENDATION PPROVA L, subject l 5 fke5 ctme.e-u) to the determination s, of b t e B.. . of Counq Commissioner a e exemption is allowed based division of tFie property by _2_pu is riqE-a -way and that t%ie enforcement of private covenants on the site is a • ivate matte ween proper y ovine along with -the following conditions: ' 1 That the following plat Exemption Plat: a) notes be included on No further divisions by exemption subdivision will be allowed. b) Each lot may be s systems. 0 're Co1'ttwtertcd a care stilt irk fiL ubject the recorded from the definition of to engineered foundations and septic W-cto m -t ad e. 6Li Aka,v k a D6 Dmf 4-9ct 2- M1 l S 1%e_ ca"ti'n ctulcem 5 ct L.L.10 tr:t t *cry\ e_xe vtA.F4-129-- - ,p.u-301 y- Ca-- 61- toa.26 6-1 Lkse- _ s °a CS cz' 64 Li -56/ /-/--,; VIA .- -he 13 CC `f s Vl,cr ,rLll`ci+e ca -V Zu.0-u kv, 4 4- nt r( 3,/ff? E -X 144 tT a - Garfield County District Court Mahan Properties v. Board of County Commissions of Garfield County, Colorado Case No. Complaint for Judicial Review and/or Declaratory Relief Page 2 3. In the Spring of 2000, Plaintiff applied for a subdivision exemption pursuant to Section 8:00 of the Subdivision Regulations of Garfield County Colorado of 1984. A copy of the applicable exemption regulations are attached hereto and incorporated herein by reference as Appendix A. 4. Pursuant to Section 8:30, the Defendant first considered this application pursuant to notice on March 4, 2002. At that meeting, a public hearing was commenced 5. Pursuant to Section 8:00, it is unclear whether or not the Defendant needs to conduct a public hearing, but this matter at all times was conducted as a public hearing and therefore is appropriate for quasi-judicial review pursuant to Rule 106(A)(4) C.R.C.P. 6. Because of questions regarding county ownership of a public road, this hearing was continued until April 8, 2002. 7. At that hearing,he Defendant agreed that the road was a public roa4 however, denied the application on the basis that covenants which had been admitted as an exhibit prohibited the Defendant from further subdividing the property. 8. Plaintiff requested the Defendant to reconsider this issue at a meeting on April 15, 2002 and the Defendant agreed to reopen the matter and set it for a new hearing and requested a new notice to be issued. The hearing was scheduled for May 20, 2002. 9. On May 20, 2002, the Defendant denied the subdivision exemption request finding, pursuant to 8:52, that more than four lots, parcels or interests were created from a parcel and, therefore, in order to qualify for an exemption the parcel to be divided must be split by a public right- of-way which prevents the joint use of the propos detracts. See Appendix A, 8:52.A. 10. On April 3, 1989, the Defendant approved essentially the same exemption application; however, that was never finalized due to then existing covenants preventing the subdivision of the property. 11. These covenants were revoked pursuant to their terms in December, 1999. E 4) A written opinion of the person conducting the well test that this well should be adequate to supply water to the number of proposed lots; 5) An assumption of an average or no less than 3.5 people per dwelling unit, using 100 gallons of water per person, per day; 6) If the well is to be shared, a legal, well sharing agreement which discusses all easements and costs associated with the operation and maintenance of the system and who will be responsible for paying these costs and how assessments will be made for these costs. 7) The water quality is tested by an approved testing laboratory and meet State guidelines concerning bacteria and nitrates. For water supplies based on the use of cistern, the tank shall be a minimum of 1000 gallons. E. Method of sewage disposal, and a letter of approval of the fire protection plan from the appropriate fire district. F. All State and local environmental health and safety requirements have been met or are in the process of being met. G. Provision has been made for any required road or storm drainage improvements. H. Fire protection has been approved by the appropriate fire district. I. Any necessary drainage, irrigation or utility easements have been obtained or are in the process of being obtained. J. All applicable taxes and special assessments have been paid. III. PROCEDURAL REQUIREMENTS (The following steps outline how the Exemption from the Definition of Subdivision application review process works in Garfield County.) 1. Submit 2 copies of this completed application form (pages 1-6) including all submittal requirements and the base fee to the Garfield County Planning Department. It will be received and given to a Staff Planner who will review the application for technical completeness within 15 working days. The Planning Department may request an extension of time from the Board of County Commissioners for such review not to exceed an additional fifteen (15) working days. 2. Once the application is deemed technically complete, the Staff Planner will send you a letter indicating the application is complete in addition to requesting additional copies of the application to be provided to the Board of County Commissioners for their review in preparation for the public hearing. 3. Staff will also send you a "Public Notice Form(s)" indicating the time and date of your hearing before the Board of County Commissioners. Prior to the public hearing, Staff will provide you with a Staff Memorandum regarding your requested Exemption application. (If 4 MAR --15-2004 MON 12:11 Pig BUZICK & ASSOCIATES FAX NO, 9709455217 GARF I ELD COUNTY ROAD AND BRIDGE P.O. BOX 2254 Glenwood Springs, Colorado 81602-2254 Phone 445-6111 January 26, 198E Mr, Jim Terry 1021 Blake Ave. Glenwood Springs, CO 81601 RE: County Road 126 -Slack Diamond Mine Road The Garfield County Road & Bridge Department, maintains County Road 126 on a full time basis, 100%, 12 months per year. If you have any further questions, please call the above number, or write to the above address. Thank you very much. .07} C� C� King Lloy Superineendent Garfield County Road & Bridge Department KL/c1 P. 19 Mar 16 04 09:27a District 1 970-945-1318 Garfield County Road and Bridge, District 1 7300 Hwy 82, Glenwood Springs, CO 81601 970-945-1223 ph, 945-1318 fax To: WNL nom it may concern From: Bobby Branham Foreman, Dist. 1 Re: Roadside Parking The Garfield County Road and Bridge Dept. respectfully requests that residents of CR 126 (Black Diamond Mine Rd.). Refrain from parking along the side or shoulder of the roadway. This would greatly assist the road and bridge dept. in conducting the required maintenance of the road. While this can be enforced by the Garfield County Sheriffs Dept., we prefer to maintain an equitable relationship with the residence of Garfield County. Thanks in Advance, Bobby Branham Dist. 1 Road and Bridge ExA/ T B. Project Proposal: The applicant is proposing to split a 20 acre tract of land into two (2) parcels of approximately, 14.0 and 6.0 acres each. The split of the property would be along County Road 126. It is proposed to share a well as the_ source of domestic water for the parcels to be created. Existing ISDS would be utilized for sewage disposal purposes. A ccess to the properties woulcosto f �' be County oa 6. -The proposed 1 acre tract would have the existing / house with the arts & crafts studio on it. The u acre parcel would have the/ t,'' �tlY guest house on it and various sheds. • •, C.. History: This application was reviewed and condition y approved in 1989. The C exemption plat was never finalized due to a conflict with covenants on the land I- pi, that prohibited further splits of the land. The covenants were valid until January 1, 2000 and then automatically renewed for 10 year periods. unless they are changed by a majority vote. The applicant has verbally indicated that the covenants were not renewed, as a result of a ma'ori of the homeowners not • / wanting to renew them. There is no confirmation of this iss /) hCe L — I11. MAJOR ISSTJES AND CONCERNS `A,k0 o tit . pe FWo R P 5 ED Li"- ► 9 $ 9 -f U cana'h l � +�'Ue A. Stabdivisiori Regulatipv�. Section 8.52 of the Garfield County Subdivision -�0t $ Regulations states that "No more than a total of four (4) lots, parcels, interests or t 5 S 0 e • dwelling units will be created from any parcel, as that parcel was described in the records of the Garfield County Clerk and Recorder's Office on January 1, 1973. In order. to qualify for exemption, the parcel as it existed on January 1, 1973, must have been larger than thirty five ("35) acres in size at theat time and not a part of a recorded subdivision; however, any parcel to be divided by exemption that is split by a public right-of-way (State or Federal highway, County road or railroad), preventing)oint use of the proposed tracts, and the division occurs along the public right-of-way, such parcels thereby created may, in the discretion of the Board, not be considered to have been created by exemption with regard to the four (4) lot, parcel, interest or dwelling unit limitation otherwise applicable. For the purposes ofdefinition, all tracts of land thirty five (35) acres or greater in size, created after January 1, 1973, will count as parcels of land created by exemption .since January 1. 1973." E0 d The property is split into two parcels by County Road 126. therefore the application qualifies under the above criterial to request an exemption from the definition of subdivision for the property in question, at the discretion of the Board. B. Zoning: The proposal meets the criteria of a two (2) acre minimum lot size as required by the A/R/RD zone district. The applicant received approval of a Conditional Use Permit for a studio for arts and crafts and a home occupation, by Resolution No, 98-06. (See pgs. ) Vt.= -80 00 -50 -•'SEW Among the conditions of approval are requirements for the applicant to have an engineer certify the adequacy of the ISDS serving the structure and that the structure not be used for any other purpose than the home occupation and arts and crafts studio. As a result of complaints by neighbors. it was determined that the applicant is Iiving in the structure in violation of the previous approval and there was never an engineer's report submitted to verify the adequacy of the ISDS serving the building. Based upon this information, staff cannot state that the applicant is in compliance with Section 8:52 (B.), all Garfield County zoning requirements will be met. C. l .egal Access: Legal access will be from County Road 126 to both lots. D. Water: Tne applicant states that a 15 gpm well serves the property the various uses on the property, water court case # W 2572, appropriated in 1941 and decreed in 1974.rior to the approval of anexemption 2lat,/the applicant will demonstrate that all wells will meet the following: At i p A -r -rE t. - r 1) That a four (4) hour pump test be performed on the well to be used: 2) A well completion report demonstrating the depth of the well, the characteristics of the aquifer and the static water level; 3) The results of the four (4) hour pump test indicating the pumping rate in gallons per minute and information showing drawdown and recharge; A written opinion of the person conducting the well test that this well should be adequate to supply water to the number of proposed lots: 5) An assumption of an average or no less than 3.5 people per dwelling unit, using 100 gallons of water per person, per day; 6) The water quality be tested by an approved testing laboratory and meet State guidelines concerning bacteria, nitrates and suspended solids; 7) A water sharing agreement will be flied with the exemption plat that defines the rights of the property owners to water from the well. Memo To: Board of County Commissioners , planning Commission From: Mark Bean, Director Dans: 5/20102 Re: Mahan Exernption appeal Attached is a letter with supporting documentation from Charlie Willman, that states that the resolution the Board relied upon as a basis for the denial of the Mahan exemption request dyes not apply to the property in question. Also attached is the resoliton that was entered at the last meeting that the Board used as a basis for the decision. Mr. Willman is correct in his assertion that the resolution cited as a basis for the denial of the requested exam • ion does not apply specifically to the Mahan tract. Also enclosed are the min es or the Board decision on the Williams tract, which is also the tract subject to the previously noted resolution. ca-ar Staff found the minutes and the resolution for the Carnes tract, which included the Mahan property, As you can see, the resolution did not include the same language regarding the , ,,,,�, Q a.e covenants. It does include interesting language regarding the status of the road though, that �1 I' _ the Board should be aware. Staff would also point out again that the subdivision exemption process is discretionary and the Board is not obligated to approve an exemption. An issue that was not fully explored in the previous discussion, due to the applicant h_qlsorovidinclinv information cr arraurnent, is the issue_ of whether the "county road prevents the joint use of the tracts in question.' Specifically, Section 8.52 of the eld County Subdivision Rex, .Motions states that "No more than a total offour (4) lots, parcels, interests or dwelling units will be created from arty parcel, as that parcel was described in the records of the Garfield County Clerk and Recorder's Qffice on Janucoy 1, 1973, and is not a part of a recorded subdivission, however, any parcel to be divided by exemption that its slsllt by a public right- of-way htof-way (State or Federal highway, County road or rte, preventing Joint ase of the proposed tracts; and tie division oecaars along the public right -of way, such parcels thereby created may, in the discretion of the Boar not be considered to have been created by exemption with regard to the foss (4) lot, parcel, interest or dwelling unit limitation otherwise applicable,.' It is still staff's position that the applicants have not presented evidence that would show that the public road beim identified as the basis for the split prevents joint use of the tracts, 14 c4 t.,..n.12- TIA--0- 4 t I e,( Q-S� February 23, 2004 James & Roberta Mahan Black Diamond Mine Ranch 0648 CR 126 Glenwood Springs, Colorado 81601 -54-131T3- P. I Garfield County BUILDING & PLANNING DEPARTMENT RE: Request for Exemption from the Definition of Subdivision Dear Roberta & James Mahan, Thank you for the application submitted to this office on 12/9.03. The purpose of this letter is to notify you that the application for the Exemption from the Definition of Subdivision has been deemed technically complete. The application will be reviewed by Staff, a staff report will be generated and sent to you, and the Board of County Commissioners will discuss and review the application at a public hearing on the 12th of April, 2004, which begins at 1:15 P.M. The meeting will be held at the Garfield County Plaza Building, 108 8th St., Commissioner's Meeting Room, Glenwood Springs, CO 81601. As a matter of process, the Applicant shall be solely responsible for the publication, posting and mailing of all notices and shall present proof of publication and mailing at or before the meeting. If correct noticing requirements have not been met, the meetings cannot be held. Notice for the meeting shall be given as follows: 1. Notice by publication, including the name of the applicant, description of the subject lot, a descri.tion of the .ro.osed • ivision and nature of the meeting, and the date, time and�_� place for the hearing shall b given once 'n a newspaper of general circulation in that portion of the County in which the su.ject property is located at least thirty (30) but not more than sixty (60) days prior to the date such hearing, and prof ul�ication shall be presented at hearing by the applicant. 2. Notice by mail, containing information as described under paragraph (1) above, shall be mailed to all owners of record as shown in the County Assessor's Office of lots within two hundred feet (200') of the subject lot, all owners of mineral interest in the subject property, and all tenants of any structure proposed for conversion to condominiums, at least thirty (30) but not more than sixty (60) days prior to such hearing time by certified return receipt mail, and receipts shall be presented at the hearing by thea plicant. 108 8th Street, Suite 201, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 E -j( 14-L511- Ne PUBLIC NOTICE 7 AKE NOTICE that James and Roberta Mahan have applied to the Board of County Commissioners, Garfield County, State of Colorado, to request an Exemption from the Definition of Subdivision for a property situated in the County of Garfield, State of -Colorado; to -wit: • �' 1 Legal Description: See Exhibit A,� `¢' , for a detailed legal description of the property. Practical Description: Black Diamond Mine Ranch, 0648 County Road 126, Glenwood Springs, CO This request for an Exemption from the Definition of Subdivision would allow James and Roberta Mahan to split the 20.72 acre subject property into 2 (two) lots: Lot 1 having 5.66 acres and Lot 2 having 15.06 acres. All persons affected by the proposed Exemption from the Definition of Subdivision are invited to appear and state their views, protests or support. If you can not appear personally at such hearing, then you are urged to state your views by letter, as the Board of County Commissioners will give consideration to the comments of surrounding property owners, and others affected, in deciding whether to grant or deny the request. The application may be reviewed at the office of the Planning Department located at 108 8th Street, Suite 201, Garfield County Plaza Building, Glenwood Springs, Colorado between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday. A public hearing on the application has been scheduled for the 12t" day of April 2004, at 1:15 P.M. in the County Commissioners Meeting Room, Garfield County Plaza Building, 108 8th Street, Glenwood Springs, Colorado. LeimA ��u s 04\ 09 451 Planning Department Garfield County (eP SCc tevt. 9 . YJ i SvJ y Noy �-Q qu Le-v-a�' Ct---e-C-IA- 41C-LE-4-4 67 GARFIELD COUNTY Building & Planning Department 108 8th Street, Suite 201 Glenwood Springs, Colorado 81601 Telephone: 970.945.8212 Facsimile: 970.384.3470 www.garfield-county.com P.3 Exemption from the Definition of Subdivision GENERAL INFORMATION (To be completed by the appli ant.) ➢ Street Address / General Location of PropertyT /a.ck `5,40.2-ta-7(44FiL ceD ➢ Legal Description of Parent Property: W2 5 LtJ ➢ Size of Property (in acres) as of January 1, 1973: c .0-trS ➢ Current Size of Property to be Subdivided (in acres): 0 Q 'e• ➢ Number of Tracts / Lots Created Including remainder of Parent Property: ➢ Proposed size of Tracts / Lots to be Created Including remainder of Parent Property: o Lot #: '1 containing acres o Lot #: 2—containing 1 1—' acres o Lot #: containing acres o Lot #: containing acres o Lot #: containing acres ➢ Property's Zone District: • Name of Property Owner: a-vL �h ➢ Address: C, (-P 8 C -f: 12-' ➢ Cit {9 Telephone: e/ `f S o State: Zip Coded Cc O1 FAX: ➢ Name of Applicant (if other than owner': ➢ Address: Telephone: ➢ City: State: Zip Code: FAX: STAFF USE ONLY ➢ Doc. No.: Date Submitted: TC Date: Planner: Hearing Date: Y 30� ti3 fY J PUBLIC NOTICE TAKE NOTICE that Mahan Properties has applied to the Board of County Commissioners, Garfield County, State of Colorado, to request an Exemption from the Definition of Subdivision for a property situated in the County of Garfield, State of Colorado; to -wit: Legal Description: W1/2 of the SW 1/4 of the NE V4 of Section 9, Township 7 South, Range 89 West of the 6th PM. County of Garfield, State of Colorado I e. le I o c-t�'ke r IX� X1.1 u� a,�e`r, ��Rnc� + c,cl ck v-7-1 5 k'[5 -}- �-,�-�a 1� yt,` t h ` Practical Description: Black Diamond Mine Ranch, 0648 County Road 126, Glenwood Springs, CO This request for an Exemption from the Definition of Subdivision would allow Mahan Properties to split the 20.72 acre subject property into 2 (two) lots: Lot 1 having 5.66 acres and Lot 2 having 15.06 acres. All persons affected by the proposed Exemption from the Definition of Subdivision are invited to appear and state their views, protests or support. If you can not appear personally at such hearing, then you are urged to state your views by letter, as the Board of County Commissioners will give consideration to the comments of surrounding property owners, and others affected, in deciding whether to grant or deny the request. The application may be reviewed at the office of the Planning Department located at 108 8th Street, Suite 201, Garfield County Plaza Building, Glenwood Springs, Colorado between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday. A public hearing on the application has been scheduled for the 12th day of April 2004, at 1:15 P.M. in the County Commissioners Meeting Room, Garfield County Plaza Building, 108 8th Street, Glenwood Springs, Colorado. Planning Department Garfield County [Please note, this notice has been sent to you for a second time only to correct the Applicant's name from James and Roberta Mahan to Mahan Properties. The requested action in this notice is exactly the same as discussed in the first notice.] Mandi L Ebeler Monday February 22, 2004 To Whom It May Concern, N 1-1 • cC "b O G) CC: U a) O czs C E 0 CA Q 0 0 N ai U 0 0 O saAO E s-. State of Colorado County of Garfield E10N15i-r K LEAVENWORTH & TESTER, P.C. Garfield County Commissioners Page 5 May 5, 2000 As described above, this 20 acre parcel is actually one of at least thirteen (13) separate parcels that have been carved out of the original 260 acre parcel that existed as of January 1, 1973. Therefore, it does not qualify for exemption unless an exception applies. Here, the applicant is relying on the "county road" exception to justify splitting the 20 acre parcel. However, the applicant has not demonstrated that the county road prevents joint use of the proposed tracts. The zoning for the property allows one single-family dwelling and one accessory dwelling unit per lot. Presently, the single-family dwelling is located on the north side of the county road, and a cottage on the south side serves as the accessory dwelling unit. Thus, the two tracts are already being used "jointly" to obtain the maximum number of dwelling units (1 main dwelling plus 1 accessory unit) on the 20 acre property. These uses have existed for many years. The Applicant cannot establish that the public right-of-way prevents the joint use of the proposed tracts. Further, while the Board "may" apply the county road exception to permit otherwise illegal subdivision exemptions, it is not required to do so. As demonstrated by the history of conveyances described above, the landowners have taken advantage of every possible exception and procedure to maximize the number of lots without going through the subdivision process. Under these circumstances, it would be inappropriate for the Board to allow a discretionary exception to apply so as to create even more lots, and thereby permit two (2) additional accessory dwelling units per lot under the zoning, without complete review under the normal subdivision procedures. February 23, 2004 EA -15 iT P. I James & Roberta Mahan Black Diamond Mine Ranch Garfield County BUILDING & PLANNING DEPARTMENT 0648 CR 126 Glenwood Springs, Colorado 81601 RE: Request for Exemption from the Definition of Subdivision Dear Roberta & James Mahan, Thank you for the application submitted to this office on 12/9.03. The purpose of this letter is to notify you that the application for the Exemption from the Definition of Subdivision has been deemed technically complete. The application will be reviewed by Staff, a staff report will be generated and sent to you, and the Board of County Commissioners will discuss and review the application at a public hearing on the 12th of April, 2004, which begins at 1:15 P.M. The meeting will be held at the Garfield County Plaza Building, 108 8th St., Commissioner's Meeting Room, Glenwood Springs, CO 81601. As a matter of process, the Applicant shall be solely responsible for the publication, posting and mailing of all notices and shall present proof of publication and mailing at or before the meeting. If correct noticing requirements have not been met, the meetings cannot be held. Notice for the meeting shall be given as follows: 1. Notice by publication, including the name of the applicant, description of the subject lot, a description of the proposed subdivision and nature of the meeting, and the date, time and place for the hearing shall b given once 'n a newspaper ofgeneral circulation in that portion of the County in which the su ject property is located at least thirty (30) but not more than sixty (60) days prior to the date such hearing, and proof of publication shall be presented at hearing by the applicant. 2. Notice by mail, containing information as described under paragraph (1) above, shall be mailed to all owners of record as shown in the County Assessor's Office of lots within two hundred feet (200') of the subject lot, all owners of mineral interest in the subject property, and all tenants of any structure proposed for conversion to condominiums, at least thirty (30) but not more than sixty (60) days prior to such hearing time by certified return receipt mail, and receipts shall be presented at the hearing by the applicant. L /74 47 108 8th Street, Suite 201, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 GARFIELD COUNTY Building & Planning Department 108 8th Street, Suite 201 Glenwood Springs, Colorado 81601 Telephone: 970.945.8212 Facsimile: 970.384.3470 www.garfield-county.com �c 4 rr d P.3 Exemption from the Definition of Subdivision GENERAL INFORMATION (To be completed by the appli ant.) I/'�e ''n ➢ Street Address / General Location of Property�77IL2!'w` p_&__4___g CAT /Z i �J • .0-0-i .......a.- ➢ Legal Description of Parent Property: W Z 5 GO rVI ,- Co '7 5. Sew I) �lp ➢ Size of Property (in acres) as of January 1, 1973: aC-+r'5 ➢ Current Size of Property to be Subdivided (in acres): O Q- pXe-5 ➢ Number of Tracts / Lots Created Including remainder of Parent Property: -2-- • Proposed 2 --- Proposed size of Tracts / Lots to be Created Including remainder of Parent Property: o Lot #: containing acres o Lot #: 2—containing 1 4-' acres o Lot #: containing acres o Lot #: containing acres o Lot #: containing acres ➢ Property's Zone District: D. Name of Property Owner: M0111 Qtk___ �n ➢ Address: ©(4> $- C f I24„ Telephone: � (-1-..S O t ➢ Cit t State: Zip Code'l lc O1 FAX: J� Vl-ti� ➢ Name of Applicant (if other than owner): ➢ Address: Telephone: ➢ City: State: Zip Code: FAX: STAFF USE ONLY ➢ Doc. No.: Date Submitted: TC Date: Planner: Hearing Date: `E. -1 -4.1511 ---- PUBLIC NOTICE TAKE NOTICE that Jaynes and Roberta Mahan have applied to the Board of County Commissioners, Garfield County, State of Colorado, to request an Exemption from the Definition of Subdivision for a property situated in the County of Garfield, State of Colorado; to -wit: Legal Description: See Exhibit A nita,thed, for a detailed legal description of the property. Practical Description: Black Diamond Mine Ranch, 0648 County Road 126, Glenwood Springs, CO This request for an Exemption from the Definition of Subdivision would allow James and Roberta Mahan to split the 20.72 acre subject property into 2 (two) tots: Lot 1 having 5.66 acres and Lot 2 having 15.06 acres. All persons affected by the proposed Exemption from the Definition of Subdivision are invited to appear and state their views, protests or support. If you can not appear personally at such hearing, then you are urged to state your views by letter, as the Board of County Commissioners will give consideration to the comments of surrounding property owners, and others affected, in deciding whether to grant or deny the request. The application may be reviewed at the office of the Planning Department located at 108 8th Street, Suite 201, Garfield County Plaza Building, Glenwood Springs, Colorado between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday. A public hearing on the application has been scheduled for the 12`h day of April 2004, at 1:15 P.M. in the County Comrnissioners Meeting Room, Garfield County Plaza Building,108 8th Street, Glenwood Springs, Colorado. Planning Department Garfield County Le CQA t c , r-LenTk 7-�ux‘ s fit- `1 5 tJ ) �� t.ts i" %-rka- SCci'1evt 9 stJ y Kaki C� ori Feld Use Commas to Separate Three or More Items G ...za y V . 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R c `a ° y L p N �y as ¢ 0. c, E a hb co 0 o 3 E a Y C7 o Y co c ° o 3t5) yu_pr .o c Y a a) /$ y dt aOy,rp F" V) 4) LdN O va w W yE w a) v) car '.Va o aw3Ya J m5 p.ct 0 m O O .5 d ed e a Q ao Q. atge o i el = X CC CO ›-'a• el w T tt 3 E w EXHIBIT Ic Tif Exertiption from the De Suhdi‘ kio for Mahan Properties ,,1 April 12. 2004 40661iikk 1:15 I'M j Proposal • Divid a 20 acre property into two parcels tt Black Diamond Road as the division line. • CR 126: Staff finds there i. probable oidence t support a claim that -Black Diamond Road- may he considered a count> road due to regular counts maintenance. state Funds spent. longevity of use (21 >N.), present signage. and inclusion on Count. Road SN.tem Map Assessor's Map 0 0 rc, a EXHIBIT t1 Pro osal S )ecifics • Prc;pert). matron: • Property Size: • 1ng1ri1‘1, • I.,1 - I acIc • Water: • Waste \sate': • Access: • Zoning. • Conap. Plan: a rani 'Area -riiile 20 acres Davies Well West Divide Plan ISDS CR 12t, (Black Diamond Road) ARRD Stn. Area 1 - 9 ac,. f.dt0 Proposed Exemption Plat / Zoning Issues Impr simasi_An M..lo too, 14,11.$ !MI 1,4 AB 4.4,1 P. 133imd I ,14,4411 11ut 1441.111-11.1 41.4.,4•14.1,1n, 44t4onlottl44, Ow, b..vc tfuc, ,11,14041,1 o41, .41 71, ,w11, .01,4 Ul A(4.1,, ant i.41,41 11,1,1,4 0: 04 /04111i, no/11' Mak 11.4b11,a4-. pee 4.41 89.34' T12't8 N=12.4.43' 938'04'27" FRAMED OUGODT STORAGE a�aDwc WANSTE A \ , l .\ O NAIN ..6N \ s[ L-107.93' R=12227' \�=5o 34'39" BRC. 4139:29"w WATER STOWAGE SNF0- Tour of Property (.' ntinueo View of Framed Dugout on proposed Lot 2 (15 acres) 'fou of Property (February 23. 204 IMMINEMIOm woposeu Lot 1 )light, Lot 2 tett Tour of Property (continued) 111 View of Storage Building & Cabin on proposed Lot 2 ( 15 acres) View of Art Studio t Office on proposed Lot 1 (5.66 acres) 2 TOW. Of Y1 U e t, cuntili ed) View of Main House on proposed l 4.41 89 34' ;rig" I )4.33' ..'8'04'27" FRAMED [MOW STpiAG( BlaDWG / / w WATER STORAGE $HFI) WATE AN 1=107.93' R-122.27' \6=50'34'39' EN -[04.46' BRC=4'09'29"W h � 64• -� V � nt17)years { and "barn` on the east side (1 the road and arabin and two storage structures on. the west side of the road. Oyer the Iasi 17 sear., the Applicant has Unproved four of t foe structures (significantly renovating all the auchues exc the dues -out shed) and raised their tannic in :old around the.s structures ns if it were a tinnily compound /' sate haven'' ev though a road ran bem eel) the sulk -mos. The Applicant continues to ruse / hent ports, ins tit their Intuit this ilropo t) presently V. 4170ut being prevented 1(41m doing so by Taut p0 -)E, ?•pet �cuntin� SB 35 Eligibility Conntyileik in Rcsr+itik^rs 10 on t:inaaro 1. 1 01n imivr Dl qu1111y hrc e•xertl.Ii n dtr l.aleel as it csi.lyd l m January 1. 1977. must b n betni tar l than slimy 1V e ) :KA, in 1 ul lh.0 rime and not a pan of a rt ul d.uhJi Isi u1-. ;uty al; [:cel 1„ he di, idoil by e xun7tion that IN 117111ha a public ri+:hI'ol. way11t 1: , I 1l rel fnchN e C'01101>'. rl '114711110.141)7T1l1;kiping,.1.141t.43' of the pi I o' d tracts. and th dixi, inn 000111S -d,me !hi puhlic right Or -way. such p u I: Ihcr. bs rat. el nl lc. in the di•elkin,11,11 thc Board. not he Considered to 11,e I iru cr a t I t) csc01711, 0 wall I g u I to !hi 1,10/4, 141 lot. parcel. unctt•<t 'I JsccllulE un)I limitation nthcrwi.r npplSiablc. Joint Use (eon Itrif 41\4 m) and carr? 11tundrx back and o th across the road because the cahi does not h;tce the facilities. Stall ).loos not find that the road has presented or continues to precem this esti' it) Mini occurring tis111e. cabin is presently occupied b) 11111111) members as well :1s the stain house. This is also true of the storage unit- adjacent to the cabin which stores belongings of 1 moil) members who reside in the main houst ! cabin. 1 h roadway has not pro, ented 1110111 from using the structure as storage from ei1h d. Ju inUSCtut*t..) • i tt traffic ov cr the last 17 years on Black Diamond (\tine Road ha, effec ticcl\ prevented their use and enjoyment of these structures a' a compound as once used. In addition. Count) maintenance practices / policies of tiie road pre vcnts them li'om parking on the road tbrcin, them to park their ochicics on their 20 -acre property. • Staff finds this road k a dead-end road which rcceiyes only destination triJs (local residents / users of BL,AI land only) and isnot a road with typical "through" ti afiic that �ottuld .icnificantly incna'c the munkr„I' Q • Stall recommends the Board deny the application as it does not comply with Section 8:52 of the Subdivision Regulations of 1984. as amended • More specifically. Staff is unable. to find tha Diamond Mine Road presents j property. Jolnt USC (cont.) IAs mentioned above. Black Diamond Mine Road was created as a private driveway (an casement over and across the "Black Diamond Mine Properties -1. 0 appears the easement was intended to serve a number of 20 to 40+ ac. tracts of land that existed at that time. 11 The County was nt,t a party to this casement. However. to the f inaneial henefit of the residents on that casement. the County teas assumed its maintenance / signage over the last 20 years. • While the road is maintained_ the Applicant's family has used this prisatc roadway for recreational 4 -wheeler use .n s+cll as Ihcir \ Chit:111ac's . 4