The URL can be used to link to this page

Home My WebLink About7.0 BOCC Staff Report 09.05.2006Exhibits for Mahan Properties Preliminary Plan Public Hearing (BOCC) held on 09/05/06 - 11 A 4'nr- .el --)- l\ (IP\ III 4 ...I 1 XA r' N< , .'" ,;), 6' „ / ,P\ \\4\'')) tii 3() Y 1r° ��n ,� I) 11 � \''), h --1 ) V °�� ) it ) .X r tli 1 /1 tii 2 S 7 i.eA`. .b�..s.�>j.y'../.�...e.:..2...,m:.-..x :reFCm '7wb:c.^m m.� ''-'7 .ag.:^..m . .,,'?......"",....;"y..,.m.:....; :.r,.x. .. "....r.". .x......;..;..:m..:,..,.e:fiY'.<e.9':..i9«,1.t..!..:..:�__• ,f^:.[;...ai::"^:.',e. i:..m..v.,....°T",e°..r...«.r.1»x.......°..;«P.,....r....«. .�,,..:..;,..x..me..."ev..."�e�.', �Q .e-s'°.x, YtS'n"^ .."'.w4...>».«S.r-E.t..�..J:......:.�-a,.:.-t"%'.'a^.:.C»«..:..-.LN. t;�;:,i�«..4>...».s. .i dY..^3.Y.s...'.^".•:.0.e..:"�e._::�.=i.:'.x.s.�5.'emy..n=:;.T;.'.�".o:'.ee;.: �.'',:..^-;e.mA`...'" ":�.'.,e;.m3'..� v","s.9".a:.:�..«..«.»^... ..�'-. £p..=a..W :.. m.".� TA.etlA Mail Receipts B Proof of Publication C Garfield County Zoning Regulations of 1978, as amended D Garfield County Subdivision Regulations of 1984, as amended E Garfield County Comprehensive Plan of 2000 F Application materials G Staff Memorandum H Letter from Glenwood Springs Fire Department dated 4/5/04 I Letter from Glenwood Springs Fire Department dated 1/31/06 J Letter from the Colorado State Forest Service dated 1/23/06 K Memorandum from the County Road and Bridge Department dated 1/17/06 L Letter from the Colorado Division of Wildlife dated 1/30/06 M Letter from the Division of Water resources dated 1/27/06 N Memorandum from the County Vegetation Manager dated 2/1/06 0 Pictures submitted by Kathleen Harris P Scott Fifer PowerPoint Slides Q Termination of Protective Covenants and Deed Restrictions R Staff PowerPoint Presentation S Exemption Lot History Map from Davies to Carnes to Mahan T Packet from Leavenworth & Karp dated May 3, 2006 f U Letter from Pat Fitzgerald dated 4/26/06 V Packet from Dan Kerst dated 5/8/06 X Minutes from PC meeting on April 12, 2006 Y Minutes from PC Meeting on May 10, 2006 - 11 A 4'nr- .el --)- l\ (IP\ III 4 ...I 1 XA r' N< , .'" ,;), 6' „ / ,P\ \\4\'')) tii 3() Y 1r° ��n ,� I) 11 � \''), h --1 ) V °�� ) it ) .X r tli 1 /1 tii 2 S BOCC 09/05/06 FJ PROJECT INFORMATION AND STAFF COMMENTS REQUEST Preliminary Plan review 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) Spring Well (The Davies Well) Individual Sewage Disposal System CR 126 (Black Diamond Mine Road) ARRD ARRD / Open Space (BLM) -1- I. DESCRIPTION OF THE PROPOSAL The Site: The 20 -acre parcel, generally located south of Glenwood Springs in the Four Mile Creek drainage, 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 is 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). As a practical matter, the Applicant proposes to use Black Diamond Mine Road (CR 126) to split their property into the two lots. Domestic water source for the two lots comes from an existing spring 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 the two outbuildings. 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 unless they are changed by a majority vote. (See page 12, Section VI, Letter L for discussion of the covenant issues.) 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. 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 -2- owner of the property and filed the appeal in District Court rather than "Mahan Properties," the substantive issues 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," 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: No Comment Received b) Glenwood Springs & Rural Fire Protection District: (Exhibits H and I) c) Garfield County Road and Bridge Department: (Exhibit K) d) RE -1 School District: No Comment Received. e) Colorado State Forest Service: (Exhibit J) f) Colorado Division of Wildlife: (Exhibit L) g) Colorado Division of Water Resources: No material injury to decreed water rights (Exhibit h) Bureau of Land Management: No Comments Received. i) Colorado Geologic Survey: No Comments Received. j) Garfield County Vegetation Management Department: (Exhibit IV) 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 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. The resulting density is consistent with the proposed land use district and residential uses in the Comprehensive Plan. V. MAJOR ISSUES AND CONCERNS FOR ZONING Regarding zoning, the property is located in the ARRD zone district. The proposal is generally consistent with the uses and dimensional standards of the district; however there are several issues that Staff points out below where the proposal conflicts with the Zoning Resolution. 1) Dimensional Standards By locating the new lot line separating the two lots down the middle of Black Diamond Mine Road, it renders three of the existing structures (the framed dugout, storage building, and cabin (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. In this case, the 50 feet from road centerline is more restrictive. Therefore, this proposed -3- lot line makes the three subject structures non -conforming structures that cannot be expanded because of that status. Arguably, these non -conforming structures exist today using the 50 foot from road centerline as the setback. (See the illustrative insert to the right.) 2) Uses There are a number of existing uses on the property. Only two residential dwelling units are allowed on the parent property consisting of the "Main House" (primary use) and the "Cabin" (pre-existing non -conforming dwelling). No other residential structures or uses are allowed. For clarity, Staff outlines these uses here so that there is no ambiguity regarding what is being requested and / or allowed by zoning for the current parent property or what may be allowed on proposed Lots 1 and 2 of the Mahan Subdivision: Current Uses Allowed on the Parent (20 - acre) Property 4;41'\ '39.34 7'12'1& N-124.33' 438.e4'2.7" FRAMED DUGOUT sTCRAGE eu:.oit4 /\ ' tw107.93' / ` R==122.27' WATER \L1=50';34'33" STORAGE SHED_._- i Mt, 104.46' 13R6=,_4*09'24"W / r "�' ). O' `l� `. 24' ROM [ASEighti HOOK 483 AT Mt 421 WAT� Structure Use Main House: Dwelling unit Barn / Garage: Art Studio / Home Office (approved Conditional Use Permit) Framed Dug -out: Out building Storage Building: Storage Cabin: Legal non -conforming dwelling Proposed Uses to be allowed (if approved) on Lots 1 and 2 of the Mahan Subdivision Lot 1: Structure Use Main House Dwelling unit Barn / Garage Art Studio / Home Office (approved Conditional Use Permit) Lot 2: Structure Use Framed Dug -out Out -building / storage Storage Building Storage Cabin Dwelling Unit As a matter of background, the property 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. If this structure is being lived in -4- independently, it represents a zoning violation and will need to be investigated by the County Code Compliance Officer, Finally, the uses provided above are the only uses (particularly the dwelling unit count) permitted on the parent property or on Lots 1 and 2 of the proposed Mahan Subdivision. As mentioned above, the Comprehensive Plan proposed land use designation (average density) allows for 10+ acres per dwelling unit. This means that there can be no more than a total of 2 dwelling units on the 20 acre "parent" property or I dwelling unit on each of the proposed Lots 1 and 2 of the Mahan Subdivision. Assuming Lots 1 and 2 are approved, any additional dwelling units on those lots requires a Special Use Permit from the Board of County Commissioners. Even so, these additional units would be in conflict with the densities in the Comprehensive Plan. VI. MAJOR ISSUES AND CONCERNS FOR SUBDIVISION As mentioned above in the background section, since the most recent Subdivision Exemption request was denied in 2004 by the Board of County Commissioners, Section 8:32 of the Subdivision Regulations of 1984, as amended, states "An applicant denied exemption shall follow the subdivision procedure in these regulations." What follows is an analysis of the proposed subdivision with the applicable County's Subdivision review requirements. A. Legal Access Legal access is provided from County Road 126 to both lots. The Applicant is using the County road for the split by running the dividing lot line down the middle of CR 126. Normally, the County would have the Applicant dedicate a 60 ft. wide right-of-way for the road as it passes through the property. 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. It appears the easement is between private parties and does not include the County, but the County has maintained the road for over 20 years. If the road has not been deeded to the County, the Applicant shall be required to deed a 60 -foot right-of-way to the County for the 60 foot wide right-of-way for County Road 126, if they have the right to do so. This deed shall be provided to the County with the Final Plat application. The County Road and Bridge reviewed the proposal, conducted a site visit to the property, and provide the following comments: 1) The existing cabin and the storage building could be left in place with a possible encroachment agreement 4etween Garfield County and the property owner. The existing dugout building should be removed as it almost entirely within the County ROW; 2) The corner fence at the existing driveway to the main residence should be removed and one tree at the driveway entrance should be trimmed if possible or removed for better visibility for downhill traffic and widening the existing road; 3) The brush and fence on both sides of the road should be removed back to the existing ROW -5- at the owners expense; 4) The property owner did not have a problem with the removal of the brush and fences and the road work. He said he did not have the finances to do the work, but he did not have a problem if the County performed the work and did not replace any of the fences that would be removed; and 5) After the removal of the above items Garfield County Road & Bridge Department would remove some existing rocks, widen and gravel this section of CR 126 to include the driveway access to the main residence. B. Water Supply 1 Physical System The Applicant intends to provide domestic "potable" water to Lots 1 and 2 from an existing spring well ("Davies Well") located on Lot 2. Physically, the water system consists of an artesian well (a spring well) where this water is piped to an infiltration gallery, then to two 5,000 -gallon storage tanks. Water is then sent to each individual lot by way of booster pumps and pressure tanks. Water treatment is provided by canister filter cartridge containing a spun fiber filter. An on -stream pond, separate from the water system provides fire protection water storage. 2. Legal Supply Regarding the provision of adequate legal water, the existing spring well (the "Davies Well") was decreed by water court case # W-2572, appropriated in 1941 and decreed in 1974. This well was recently re -permitted under permit #2394151y 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 fromJest DividSlWater 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). 3. Physical Supply Regarding adequate physical supply, the Applicant provided a "spring water test" conducted by J & M Pump Co. (January 22, 2005). 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. Mountain Cross Engineering provided an analysis which concludes that the peak day use could be accommodated by 3.63 gpm and that the spring and decree have the capacity of 4 times the anticipated use. -6- 4, Fire Protection Water The Mountain Cross Engineering report states the property contains an on -stream pond, separate from the water system, which can serve as fire protection water storage. Ron Biggers with the Glenwood Springs Fire Department met with the Applicants at the property several times to discuss fire protection and water sources (Exhibits H and I). His letter explains that there is no established / recognized water supply for fire fighting in the CR 126 area. The Mahan property contains several natural and man made water supply sites but have poor access to them. The Applicant could improve access to the sites in order to provide a water source. This was suggested by the Fire District but not acted on by the Applicant to this date. Staff finds that if proper connections can be installed at the two 5,000 -gallon water storage tanks, that water would be available. 5. Water System Ownership & Service The water system will need to be conveyed to a Homeowners Association created by the Applicant. This HOA shall own and maintain the physical water system as well as the water rights (well permits and augmentation contract). Further, the location of the components of the physical system shall be placed in easements shown on the final plat. Mountain Cross Engineering report concludes "the existing well decreed along with the West Divide contract for augmentation apparently addressees the legal supply of water; the existing water source capacity is greater than the anticipated use; the existing storage is larger than recommended; and the existing distribution system is adequate to handle the anticipated flows. Although the system has been used for drinking water historically, with no known related illnesses, modifications to the existing treatment system are recommended: 1. Installation of a 1 micron filter on the downstream side of the existing canister filters, and 2. Installation of a UV disinfection system downstream of the 1 micron. These would generally be the easiest to install, operate, and maintain. They are likely the least expensive as well. Based on the information provided, gathered, and evaluated during this report, along with the incorporation of the recommendation described above, it is our opinion that the existing water system is sufficient to supply an adequate supply of water for the proposed subdivision." The Division of Water Resources reviewed the application and concluded that "it is our opinion that the proposed water supply will not cause material injury to decreed water rights so long as the Applicant maintains a valid well permit and operates according to the terms in the augmentation contract, and is physically adequate" (Exhibit M). C. 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 meets the requirements which require a suitable type of sewage disposal for each lot which are in compliance with the applicable local and state environmental health regulations. 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. Section -7- 4:92(E) requires the Applicant to submit an 6736 Management Planjfor the operation and maintenance of on-site systems. This was not submitted. The A llic submit such a plan which will b 1 •IP . -0 I. ■' . . 0. cUv eov_ P , .• -• • D. Easements Any required easements (water system, drainage, access, utilities, etc.) will be required to be shown on the final plat. This includes well and water line easements for the shared well / water system to serve both lots. E. School Site Acquisition Fees / Traffic Impact Fees Normally, all newly created lots within any residential subdivision are required to pay both the school site acquisition fees and traffic impacts fees. However, in some instances, new lots created may have already been improved with a primary single-family dwelling and have subsequently not been required to pay the fees since the improvements were already there. In this case, proposed Lot 1 already contains the primary single-family dwelling and an art studio and therefore is not obligated to pay the fees. Conversely, proposed Lot 2 only contains a "guest house" that is secondary and accessory to the principal dwelling on Lot 1. As a result, fees are required to be paid for the newly created Lot 2. As a result, regarding school site acquisition fees, the property is located in the RE -1 School District which will require the Applicant pat the appropriately calculated fee based on the assessed value of the property. This fee shall be paid at the time of final plat. Regarding traffic impact fees, the Applicant shall pay the appropriate Traffic Impact Fee because this property is located within Traffic Study Area 8d. The fee is a cumulative fee for areas 8a + 8b + 8c + 8d which are a total fee of $264.00 per ADT minus the appropriate discounts to be calculated and paid at the time of Final Plat or as otherwise approved by the Board of County Commissioners. F. Mineral Estate It is unclear if the property's mineral estate has been severed and is owned or leased to another party. If so, the Applicant shall include a plat note on the final plat stating the following: "The mineral rights associated with this property have been partially or wholly severed and are not transferred with the surface estate, therefore allowing the potential for natural resource extraction on the property by the mineral estate owner(s) or lessee(s)." G. Soils / Site Geology In general, the property is located in an area where the soils are classified as "Jerry Loam, 12 to 25 percent slopes" which characterizes the soils as deep, well drained soils on alluvial fans and hills. The soils are poorly suited for home site development due to shrink -swell potential and, slopes. The application contained a geotechnical analysis of the property prepared by HP Geotech which identified potential geologic issues for development including landslides, construction -induced slope instability, expansive soils, and earthquake considerations. The report makes certain recommendations for any future development including design recommendations for foundations, floor slabs, under -drain systems, site grading, and surface drainage. -8- Based on these apparent limitations, Staff generally requires that the following plat note be required to provide disclosure to potential lot purchasers that foundations and septic systems will need to have site specific analysis and engineering. "Foundations and Individual Sewage Disposal Systems shall be engineered by a Professional Registered Engineer within the State of Colorado." H. Fire Protection Generally, the Glenwood Springs Fire Department does not have any objections to Garfield County authorities granting preliminary plan approval to the Mahan Subdivision to divide their 20 acres into two lots. 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 by the District. 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. nN The letter does not address any specific protection requirements. Staff referred the application to the District which responded with comments made on the former Exemption request but explained that these comments continue to app y to ti - -sent applicati n. The Subdivision regulations require the Applicant to provi . e a Fire Protection Plan tha addresses the fire protection standards in Section 9:70 of the Subdivision Regulations listed here: 9:73 Where there is no central water system available, a central located fire protection storage tank shall be designed to meet the fire protection needs of the subdivision and be approved by the appropriate fire district. 9:74 Water used for fire protection purposes does not have to be potable water and may be from a source separate from the domestic supply. The District suggests the following conditions be added as plat notes: 1. For any new buildings that are constructed on these new lots a comprehensive fire protection plan be submitted with the building permit request. This plan is to be review and approved by the fire department. Because of the Iocation of this property, some of the items the fire protection plan shall address are: a. A wildfire hazard fuels reduction landscape plan. b. An onsite water supply that can supply the necessary fire flow for the size of the structure or structures to be built. This may need to be installed on the building site. If the structure has a residential sprinkler system installed in it, an external water supply may not be required. c. Architect to use non-combustible exterior finishes on the structures. Ron Biggers of the District met with the Applicant and the following points were discussed for this subdivision (Exhibits H and 1) -9- 1) The Applicants do not plan to build new structures on the new lots thus the District does not want to create afnancial hardship by requiring improvements to a preexisting site that is not going to change. If the Applicants want to voluntarily meet the requirements to improve their property value and insurability we will work with them; 2) If the County wants to require the Applicant to meet these conditions to protect the existing building the Glenwood Springs Fire Department would support that requirement; 1\3 The Applicants stated they were applying for the subdivision so they would be able to !make the "Art Studio /Home 0 ice" into a le al dwelling unit so they could legally live in it full time if they chose to. In that context, the requirements in the attached letter are recommendations if no new buildings were to be built on the lots. The Applicants indicated they wanted to work toward complying with them even though no new buildings were planned at that time; 4) The District and the Applicant discussed a Wil fire Fuels Reduction Plan; however, to this date n a are Fuels Reduction P an as een submitted for the property to review; 5) In late April or early May of 2005, the District met on site with the Applicant to discuss the water supply issues. On County Road 126 and in the Black Diamond Subdivision there is not an established/recognized water supply for fire fighting; 6) There are several natural and man made water supply sites on the property. If the access to them was improved, they could be used as draft sites to obtain water to fight a structure and/ or wildland fare; and 7) The site that at the time appeared to be the best is located on a limited access two track road to the south of the structures, it starts at County Road 126. The site has two submerged 5,000 gallon tanks that are filled by the year round creek that runs through the drainage they are located in. The Applicants were going to look into improving the access to this site but have not gotten back to the District in the past year with a plan to review on the improved access to this site. The Applicant mentioned his brother had purchased the property this "two -track" leads to and he would be improving it, as it will be the driveway to the home he intends to build on this property. Staff finds that even though the two proposed lots are already improved, the risk of fire becomes more significant than vacant lots. The property contains two existing 5,000 gallon tanks associated with the domestic water system for a total of 10,000 gallons of water that could be used for fire protection water supply. The challenge is accessing the tanks and / or providing a waterline from the tanks to CR 126 for access to the District. If the tanks can be accessed, the Applicants have adequately addressed Section 9:73 and 9:74 below. If not, the Applicant has not adequately addressed the issue of fire protection. -10- 9:73 Where there is no central water system available, a central located fire protection storage tank shall be designed to meet the fire protection needs of the subdivision and be approved by the appropriate fire district. 9:74 Water used for fire protection purposes does not have to be potable water and may be from a source separate from the domestic supply. 1. Drainage The Applicant provided a drainage report prepared by Mountain Cross Engineering. The report provides the following conclusions regarding stormwater run-off from the property in a 25 -year flood event. 1) The drainage study essentially verified the adequacy of the existing drainage system to convey the Garfield County required 25 -year storm. The road side culverts under driveway accesses are 12" culverts that have capacity for the 25 -year storm. During a 100 -year stor m these culverts are anticipated to surcharge causing minor flooding on the edges of the road. The road- does have a cross slope that is anticipated to control the flooding to some degree to the outside edges. 2) There are two existing pipes beneath the Black Diamond Road one is a 15" culvert and the other is an 18" culvert. Either have the capacity to convey the 25 -year flows. The 15" and the 18" have the capacity for the 100 -year storm but the inlets are not ideal to capture the flows. Some entrance losses are to be expected that may cause some flooding. As a result of this, the subject property would likely experience some flooding because the site is below these culverts. 3) To mitigate this, a bean 12" in height above the top of the 18" pipe, surrounding the inlet would be recommended to capture the surcharged water caused by entrance losses. However, this would be to capture a storm larger than the mandated 25 -year storm and is a recommendation instead of a requirement. 4) The Black Diamond Road surface is a base course aggregate (gravel) road and a substantial amount has filled the culverts along the sides of the road. Since the culverts in the calculations assume a full diameter available for conveyance, the road fill greatly limits their capacity. With out this capacity, there is a greater probability of flooding during stones of smaller magnitudes than the 25 -year event. 5) These culverts will therefore need to be cleaned. They should also be periodically inspected, cleaned, and maintained. At the time of the preparation of this report the road was being graded and resurfaced by the County. Cleaning of the culverts was anticipated as part of this work but should be verified. 6) There is a certain amount of uncertainty in hydrologic calculations. However, it is our opinion that the existing culverts will safely convey the runoff flows and volume of the 25 - year design storm event for this site. -11- J. Vegetation Management The application contained the list of the County Noxious Weeds with "Plumeless Thistle" circled on the list. Further, the Applicant has provis - I . wand- invent4 weeds; however, the Applicant should be required to provide Weed Management Plan hich includes weed treatment by June 1, 2006 as a condition of ap • • .. . en ation could be in the form of copies of application records or they could contact the Vegetation Management Department for a site visit to verify that the treatment has been done by June 1, 2006 (Exhibit N). K. Wildlife The application contained a WRIS list of wildlife on or near the subject property with the following species listed on the property: 1. Bald Eagle Winter Foraging Area 2. Black Bear Overall Range 3. Brazilian Free -Tailed Bat Overall Range 4. Elk Winter and Severe Winter Range 5. Elk Overall Range 6. Elk Summer Range 7. Mule Deer Summer, Winter, and Overall Range 8. Wild Turkey Overall Range The DOW reviewed the application and provided comments (Exhibit L) stating "while this simple subdivision will create two lots, it should not create significant impacts to wildlife. In order to minimize the impacts of future development, the DOW recommends the following recommendations: 1. The building envelope for Lot 2 should be positioned near CR 126 at the location of the existing cabin in order to cluster development and disturbance near existing structures on Lot 1; and 2. Native vegetation should be maintained outside of building envelopes. L. Protective Covenants / Deed Restrictions Much discussion has occurred around certain protective covenants / deed restrictions which were put in place when the 20 acre tract was created by exemption and is recorded in Book 483 on page 423 in 1975. The primary covenant / restriction at issue here has been #1 which states: Resubdivision. No tract of land may be resubdivided into smaller tracts of land. The same covenants also specifically contain a provision (#8) for termination whereby they run with the land and are binding until January 1, 2000. At that time, the covenants shall be automatically extended for sucessive 10 year periods unless otherwise changed by vote of the then majority of tract owners. Mahan and Green (two of the three owners representing a majority) attemted to terminate these covenants on December 17, 1999. (See point #1 above). -12- As the Board is aware, the County does not enforce private covenants unless they are specific conditions required by the Board. As a result, it appears the remaining unresolved issue continues to be an issue of whether certain covenants were required by the Board of County Commissioners prohibiting any further subdivision of this parcel. To this end, Staff submitts the following points for discussion: 1) The Applicant furnished a document entitled "Termination of Protective Covenants and Deed Restrictions" (recorded on April 7, 2006) which intended to terminate any covenants which were attached to the parcels created from the so called "Carnes Exemption" originally created in 1975, splitting a 40 -acre property into one 20 -acre and two 10 -acre parcels. This was signed by the majority of the land owners which include Mahan and Kenneth Green. This was a correction to an attempt to terminate the covenants on December17, 2000. (Attached as Exhibit Q); 2) Neighbors to Mahan property allege that the covenants requiring no further subdivision actually applies to all of the Exemption Lots created in the Black Diamond Mine area in 1975 and cannot be voided or terminated without a majority of all of the Exemption Lot owners. A letter from Pat Fitzgerald, an original partner in the Exemption splits, states that "we placed deed restrictions prohibiting further re -subdivision on the property that was developed for certain reasons." This letter was submitted with no supporting evidence that the Board of County Commissioners actually required such a restriction. (Attached as Exhibit U); 3) A letter submitted by Leavenworth & Karp (represented by David McConaughy) was submitted on behalf of Kathy Harris, Denis Hines, and Scott Fifer. The letter requests the application be denied primarily as it conflicts with existing covenants which remain in full force and effect on the subject property which prohibit further resubdivision. (Attached as Exhibit T); 4) The recorded "Resolution to SB 35" which memorialized the BOCC's action splitting the 40 -acre Carnes property into one 20 -acre and two 10 -acre parcels is included in Exhibit T. While this resolution does not contain a specific condition requiring any covenants, the Petition for Exemption (application) does represent that covenants are intended. Interestingly, the Williams Resolution (also in Exhibit T) contains a hand written condition that states "This exemption is granted on the specific condition that all agreements, conditions, and conditions set forth in the Petition (application) be complied with." The Petition, also attached, specifically represents that no further subdivision can occur. Again, the Carnes Resolution (approved prior to the Williams) does not contain such language. 5) The subject covenants ("h") also specifically contain a provision for termination whereby they run with the land and are binding until January 1, 2000. At that time, the covenants shall be automatically extended for sucessive 10 year periods unless otherwise changed by vote of the then majority of tract owners. Mahan and Green (two of the three owners representing a majority) attemted to terminate these covenants on December 17, 1999. (See point #1 above). -13- VII. STAFF COMMENT Ultimately, this debate is a legal one. The Board is being asked to deny this subdivision application based on a representation by Carnes to the BOCC in 1975 that no further subdivisions are allowed on all of the lots created by Exemption which includes the Mahan, Green, and Stephenson properties. The submitted evidence, claimed by Leavenworth & Karp, is in the Carnes Petition, although it was not reflected in the Resolution of approval. Also note, there are no conditions in the resolution (as are typically required today) that "all representations are considered conditions of approval." Questions to contemplate: 1) Were the covenants actually required as conditions by the BOCC when Carnes did his Exemption? 2) If the covenants were required by the BOCC, did they only apply to the tracts in the resolution rather than all of the Exemption parcels created in Black Diamond Road area? 3) If the covenants applied only to the tracts in the Carnes Resolution, were they successfully terminated in 1999 by Mahan and Green? 4) If the BOCC did not require the covenants in 1975 as part of the Carnes Exemption approval, is the BOCC the enforcer of protective covenants? VIII. PLANNING COMMISSION RECOMMENDATION While Staff recommends the Board approve the application, the Planning Commission held a public hearing on the request on April 12, 2006 which was continued to May 10, 2006 and recommended (by a vote of 4 to 3) the Board deny the preliminary plan application finding that: 1. That proper publication, public notice, and posting was provided as required by law for the hearing before the Planning Commission. 2. That the public hearing before the Planning Commission was extensive and complete; all pertinent facts, matters and issues were submitted; and that all interested parties were heard at those hearings. 3. The application is not in compliance with the standards set forth in Section 4:91(A) of the Garfield County Subdivision Regulations of 1984, as amended and specifically stated here: In all instances, evidence that a water supply, sufficient in terms of quality, quantity and dependability, shall be available to ensure an adequate supply of water for the proposed subdivision. Such evidence may include, but shall not be limited to: 1. Evidence of ownership or right of acquisition or sue of existing and proposed water rights; 2. Historic use and estimated yield of claimed water rights; 3. Amenability of existing right to change in use; -14- 4. Evidence that public or private water owners can and will supply water to the proposed subdivision, including the amount of water available for use within the subdivision by such providers, the feasibility of extending service to the area, proof of the legal dependability of the proposed water supply and the representation that all necessary water rights have been obtained or will be obtained or adjudicated, prior to submission of the final plat; and 5. Evidence concerning the potability of the proposed water supply for the subdivision. 4. That the proposed subdivision of land is in compliance with the recommendations set forth in the Comprehensive Plan for the unincorporated areas of the County. 5. The proposed subdivision of land conforms to the Garfield County Zoning Resolution of 1978, as amended. 6. The proposed use is in the best interest of the health, safety, morals, convenience, order, prosperity and welfare of the citizens of Garfield County. IX. RECOMMENDED CONDITIONS Should the Board approve the preliminary plan, Staff suggests the Board consider requiring the following conditions of approval: General 1. That all representations made by the Applicant in the application and as testimony in the public hearings before the Planning & Zoning Commission and Board of County Commissioners shall be conditions of approval, unless specifically altered by the Board of County Commissioners. Plat Notes 2. The Applicant shall include the following plat notes on the final plat: a. "Control of noxious weeds is the responsibility of the property owner." b. "One (1) dog will be allowed for each residential unit within a subdivision and the dog shall be required to be confined within the owner's property boundaries." c. "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". -15- d. "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". e. "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 amendments, herbicides, and pesticides, any one or more of which may naturally occur as a part of a legal and non -negligent agricultural operations. f 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 learnabout 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." g. "The mineral rights associated with this property have been partially or wholly severed and are not fully intact or transferred with the surface estate therefore allowing the potential for natural resource extraction on the property by the mineral estate owner(s) or lessee(s)." h. "Foundations and Individual Sewage Disposal Systems shall be engineered by a Professional Registered Engineer within the State of Colorado." County Road 3. The Applicant, at their own expense, shall remove the "framed dugout" as identified on the Preliminary Plan from the County Road 126 right-of-way. Security for this work shall be included in the Subdivision Improvements Agreement if not removed by the Final Plat submittal. 4. The Applicant shall obtain an Encroachment Agreement from the Road and Bridge -16- Department allowing the "Cabin" and "Storage Building" to remain in the County Road 126 right-of-way. This approved agreement shall be submitted with the Final Plat application. 5. The Applicant, at their own expense, shall 1) remove the corner fence at the existing driveway to the Main House as identified on the Preliminary Plan, 2) one tree at the driveway entrance shall be trimmed if possible or removed for better visibility for downhill traffic and widening the existing road, and 3) remove brush and fencing from the right-of-way on both sides of CR 126. Security for this work shall be included in the Subdivision Improvements Agreement if not removed by the Final Plat submittal. 6. The Applicant shall be required to convey a 60 -foot right-of-way easement to the County for the 60 -foot wide right-of-way for County Road 126 as it passes the full length of the property. The form of conveyance shall be acceptable to the County and shall be provided to with the Final Plat application. Wastewater 7. Pursuant to Section 4:92(E) of the Subdivision regulations, the Applicant shall submit an Individual Sewage Disposal System (ISDS) Management Plan for the operation and maintenance of all the on-site ISDS systems. The Applicant shall include this plan in the protective covenants. Water System 8. As required for the Final Plat application, the Applicant shall create a Homeowners Association (HOA) and provide the Articles of Incorporation, By -Laws, and Protective Covenants with the Final Plat application. 9. The Applicant shall be required to convey the existing water system in its entirety, to the HOA. This HOA shall own and maintain the physical water system as well as the water rights (associated well permits and augmentation contract). Easements 10. All easements of record shall be shown on the Final Plat. More specifically, the Applicant shall identify the location of the components of the physical system which shall be placed in easements on the final plat. School Site Acquisition Fee / Traffic Impact Fee 11. The Applicant shall pay the appropriate RE -1 School Site Acquisition Fee as calculated by Section 9:81 of the Subdivision regulations. This fee shall only be calculated for one new dwelling unit on Lot 2. Payment of this fee shall occur prior at the time of Final Plat. In no circumstance shall the Final Plat be signed by the Board of County Commissioners until such fee has been paid. -17- 12. The Applicant shall pay the appropriate Traffic Impact Fee for a property located in the 8d Traffic Study Area. This fee shall only be calculated for one new dwelling unit on Lot 2. Payment of this fee shall occur prior at the time of Final Plat. In no circumstance shall the Final Plat be signed by the Board of County Commissioners until such fee has been paid. Fire Protection 13. The Applicant shall submit a "Wildfire Fuels Reduction Plan", approved by the Glenwood Springs Fire Protection District with the Final Plat application. This plan shall incorporate the recommendations provided by the Colorado State Forest Service in their letter dated 1/23/06 (Exhibit J). This plan shall also be incorporated into the Protective Covenants. 14. The Applicant shall design and install an appropriate water line connection from the two existing 5,000 gallon water tanks on the property to the County Road in order that the water may be used for fire protection supply. This design and location of line shall be reviewed and approved by the Glenwood Springs Fire District. The Applicant shall submit the approved design with the Final Plat documents. Weed Management 15. The Applicant shall provide a Weed Management Plan which includes weed treatment by June 1, 2006 to the County Vegetation manager for review and approval. The documentation may be in the form of copies of application records or they may contact the Vegetation Management Department for a site visit to verify that the treatment has been done by June 1, 2006. Proof of this shall be included in the Final Plat application. Pil,Aft/J15! D 4 ki OJLI\J P 4)Y4j) -18- 0,44 o0D Sp,,, �v J OtPARRVAv 2 EXHIBIT Date: 4/5/04 To: Fred Jarman From: Ron Biggers Comments on: Mahan Properties Subdivision,0648 CR 126 (Black Diamond Mine Rd.) Glenwood Springs, CO. The Glenwood Springs Fire Department does not have any objections to Garfield County authorities granting this subdivision exemption to the Mahan to divide their 20 acres into two lots one of 6 acres and one of 14 acres. The condition we request be added to the exemption legal paper work is the following: For any new buildings that are constructed on these new lots a comprehensive fire protection plan be submitted with the building permit request. This plan is to be review and approved by the fire department Because of the location of this property, some of the items the fire protection plan shall address are: 1. A wildfire hazard fuels reduction Iandscape plan. 2. An onsite water supply that can supply the necessary fire flow for the size of the structure or structures to be built. This may need to be installed on the building site. If the structure has a residential sprinkler system installed in it, an external water supply may not be required. 3. Architect to use non-combustible exterior finishes on the structures. If you have questions contact me. January 31, 2006 To: Fred Jarman, Garfield County Planner From: Ron Biggers, Fire Marshal, Glenwood Springs Fire Department Comments on Mahan Properties preliminary plan to subdivide approximately 20 acres into two lots, location 0648 Cty. Rd. 126, Glenwood Springs, CO Fred in my response to this request I am including a copy of my comments made on this project back in April of 2004. Those comments apply when new buildings are constructed on one or both of the newly created lots in the future. To keep these requirements in existence, I request they go into the subdivision plat note should it be approved. In talking with the Mahans, they do not plan to build new structures on the new lots thus we do not want to create a financial hardship for them to by requiring improvements to a preexisting site that is not going to change. If they want to voluntarily meet the requirements to improve their property value and insurability we will work with them. If the County wants to require the Mahans to meet these conditions to protect the existing building the Glenwood Springs Fire Department would support that requirement. The comments below are a recap of meetings between the Mahans and me after they received comments back in April of 2004. Additional comments: Early in the spring of 2005 I met with Roberta Mahan to review and answer questions she and Jim had on the comments I made in the attached April 2004 letter. Below is a summery of our discussions during those visits. Roberta said they did not plan to build any new buildings. They were applying for the subdivision so they would be able to make the art studio into a legal residence so they could legally live in it full time if they chose to. In that context the requirements in the attached letter are recommendations if no new buildings were to be built on the lots. With that said she and Jim indicated they wanted to work toward complying with them even though no new buildings were planned at that time. Roberta and I talked about a wildfire fuels reduction plan and she deferred the fire fighting water supply issues to her husband Jim. To this date I have not received a wildfire hazard fuels mitigation plan for the property to review. In late April or early May of 2005 I met on site with Jim to discuss the water supply issues. On County Road 126 and in the Black Diamond Subdivision there is not an established/recognized water supply for fire fighting. On the Mahan property there are several natural and man made water supply sites that if the access to them was improved they could be used as draft sites to obtain water to fight a structure and/ or wildland fire. The site that at the time appeared to be the best is located on a limited access two track road to the south of the structures, it starts at County Road 126. The site has two submerged 5,000 gallon tanks that are filled by the year round creek that runs through the drainage they are Iocated in. Jim was going to look into improving the access to this site but he has not gotten back to me in the past year with a plan to review on the improved access to this site. Jim did mention his brother had purchased the property this "two -track" leads to and he would be improving it, as it will be the driveway to the home he intends to build on this property. If you have questions please contact me. January 23, 2006 Fred Jarman Garfield County Building and 108 8th Street, Suite 401 Glenwood Springs, Colorado RE: Mahan Properties Mr. Jarman: RECEIVED JAN 2 4 2006 GARFIELD COUNVY BUILDING & PLANNING Planning Development 81601 EXHIBIT t Stake Services Building 222 S. 6th Street, Room 416 Grand Junction, Colorado 81501 Telephone: (470) 248-7325 I have reviewed the documentation submitted for the Mahan property and spoken with Mrs. Roberta Mahan. No wildfire hazard map was included in the summary; an aerial photo of the vegetation on the property was used to base my opinion on the wildfire hazard of the property, in conjunction with the conversation with Mrs. Mahan. I have the following comments regarding wildfire hazard on this proposal. The primary vegetation is grass and landscaping around the structures, with a scattering of spruce, pine and aspen trees. No spruce or pine trees overhang any structure, removing the concern of needle litter buildup on the roof or gutters. Trees within 15-20 feet of any structure should be `limbed up', to reduce the threat of a grass fire moving up into the crown of any tree, this excludes aspens. There should be minimal shrubbery within 15 feet of any structure, called zone 1, This includes landscaping plants that pose a high wildfire threat, such as juniper trees/shrubs and absolutely no oak brush can be in this zone. As part of this zone ensure no flammable material is within 3 feet of the structure, including tall grass. In zone 2, defensible space should extend 75 to 125 feet from the structure. Thinning, creating distances of at least 10 feet between tree crowns, removal of dead fuels, pruning, and creating mosaics in the oak brush (to reduce fire intensity) are management actions for this zone. In terms of the grasses, the area must be mowed and kept to a low height. If invasive/non-native weeds are mixed with the grass, mitigation is suggested to improve the health of the ecosystem and lower the wildfire hazard. Currently I would rate the wildfire hazard on this property at moderate. My specific recommendations to mitigate wildfire hazard on this property would be to continue to incorporate defensible space clearing and thinning as outlined in Colorado State Forest Service publication 6.302, "Creating Wildfire Defensible Zones". A copy of this publication was mailed to the applicant. Do not allow the oak brush to grow within Zone 1 - 15 feet around any structure. Also, grass and weeds must be dealt with to reduce the accumulation of one-hour fuels. One-hour fuels are 1/4 inch or less in diameter and respond very quickly to changes in their environment. Mowing or re -seeding can be done to reduce the intensity or possibility of a grass fire in the proposed subdivision. The landowner should manage any weed infestation by preventing the spread and improving the health of the land. Thank you for the opportunity to review this proposal. Please call with any questions at 970-248-7325. Kamie Long Forester Cc: James and Roberta Mahan GARFIELD COUNTY Building & Planning Department Review Agency Form EXHIBIT 2 K Date Sent: January 17, 2006 Comments Due: February 1, 2006 Name of application: Mahan Properties Sent to: Garfield County Road & Bridge Dept. Garfield County requests your comment in review of this project. Please notify the Planning Department in the event you are unable to respond by the deadline. This form may be used for your response, or you may attach your own additional sheets as necessary. Written comments may be mailed, e-mailed, or faxed to: Garfield County Building & Planning Staff contact: Fred Jarman 109 8th Street, Suite 301 Glenwood Springs, CO 81601 Fax: 970-384-3470 Phone: 970-945-8212 General Comments: After an onsite review of the property for the request for the Mahan properties, Garfield County Road & Bridge Department has the following comments. The existing cabin and the storage building could be left in place with a possible encroachment agreement between Garfield County and the property owner. The existing dugout building should be removed as it almost entirely within the County ROW. The corner fence at the existing driveway to the main residence should be removed and one tree at the driveway entrance should be trimmed if possible or removed for better visibility for downhill traffic and widening the existing road.. The brush and fence on both sides of the road should be removed back to the existing ROW at the owners expense. The property owner did not have a problem with the removal of the brush and fences and the road work. He said he did not have the finances to do the work, but he did not have a problem if the County performed the work and did not replace any of the fences that would be removed. After the removal of the above items Garfield County Road & Bridge Department would remove some existing rocks, widen and gravel this section of Cr. 126 to include the driveway access to the main residence. Name of review agency: Garfield County Road and Bridge Dept By: Jake B. Mall Date January 24, 2006 Revised 3/30/00 STATE OF COLORADO Bill Owens, Governor DEPARTMENT OF NATURAL RESOURCES DIVISION OF WILDLIFE AN EQUAL OPPORTUNITY EMPLOYER Bruce McCloskey, Director 6060 Broadway Denver, Colorado 80216 Telephone: (303) 297-1192 January 30, 2006 OCON ti) N3 1A 1.46 cDu` gu Fred Jarman Garfield County Building and Planning Dept 108 8th Street, Suite 401 Glenwood Springs, CO 81601 RE: Mahan Properties Subdivision Dear Fred: For Wildlife - For People The Mahan property proposed for subdivision within elk winter range and elk severe winter range. It also lies within mule deer winter range and adjacent to mule deer severe WR and winter concentration area, however most mule deer will move east across 4 -Mile Creek to the Dry Park area. There is a movement corridor and highway crossing just south of CR 126. Black bear and mountain lions inhabit the area, and are occasionally seen within the Black Diamond Mine Road area. While this simple subdivision will create two lots of -15 acres and 5.5 acres respectively, it should not create significant impacts to wildlife. In order to minimize the impacts of future development the following recommendations should be taken: 1. The building envelope for lot #2 (15 acre lot) should be positioned near CR 126 at the location of the existing cabin. This will cluster development and disturbance near the existing structures on lot 1. 2. Native vegetation should be maintained outside of building envelope. Thank you for the opportunity to comment. If you have any questions, please feel free to contact DWM John Groves at (970) 947-2933. Sincerely, 074,1 - Pat Tucker Area Wildlife Manager Cc: DOW - J.Bredehoft, R.Velarde, J.Groves, file DEPARTMENT OF NATURAL RESOURCES, Russell George, Executive Director WILDLIFE COMMISSION, Jeffrey Crawford, Chair • Tom Burke, Vice Chair • Ken Torres, Secretary Members, Robert Bray • Rick Enstrom • Philip James • Claire O'Neal • Richard Ray • Robert Shoemaker Ex Officio Members, Russell George and Don Ament STATE OF COL OFFICE OF THE STATE ENGINEER Division of Water Resources Department of Natural Resources RECEIVED 1313 Sherman Street, Room818 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 L��u JAN 3 a 6 www.waterstate.co.us GARFIELD COUNTY BUILDING & PLA 1NING January 27, 2006 Fred Jarman Garfield County Building and Planning Department 108 8th St Ste 401 Glenwood Springs CO 81601 Re: Mahan Properties Preliminary Plan Section 9, T7S, R89W, 6TH PM W. Division 5, W. District 38 Dear Fred: EXHIBIT 1 M Bill Owens Governor Russell George Executive Director Hal D. Simpson, P.E. State Engdneer We have reviewed the above -referenced proposal to subdivide a parcel of approximately 20.8 acres into two lots, each of which contains an existing residence with assorted outbuildings. The applicant proposes to supply water through an existing well. Sewage disposal is to be through individual systems. Water use is estimated at 700 gpd for in-house purposes and 3117 gpd (10,000 sq. ft. per lot) for outdoor use. The Davies Well was decreed absolute for 0.033 cfs (15 gpm) for domestic and lawn and garden irrigation of not more than one acre in Case No. W-2572 on April 26, 1976, with December 31, 1941 as the date of beneficial use. Permit No. 239415 was issued on April 5, 2002 for this well, in accordance with CRS 37-92-602(5), for a pumping rate of 15 gpm. Use of the well is limited to ordinary household purposes inside two single-family dwellings, fire protection, the watering of domestic animals and poultry, and the irrigation of not more than one acre of home gardens and lawns. The well is an artesian source, with water piped to an infiltration gallery, then piped to two 5000 -gallon storage tanks. The State Board of Examiners of Water Well Construction and Pump Installation Contractors issued Variance No. 2002-22A, Revised 2002- 22D, on March 25, 2002 for the well. The submittal also refers to an augmentation contract from West Divide Water Conservancy District (District), but neither a contract number nor a copy was provided. The District is to provide augmentation water for any out -of -priority use that may occur in critically dry periods, however since Permit No. 239415 is valid for the proposed uses, no augmentation is necessary. The May 16, 2000 and January 22, 2005 letters from J & M Pump Company indicate that the Davies Well produced an average of 15 gpm over a four-hour period in a spring flow test performed on an unspecified date. With sufficient storage capacity in the existing storage tanks, this well should provide an adequate supply for the proposed uses. Based on the above, it is our opinion, pursuant to CRS 30-28-136(1)(h)(I) and CRS 30-28- 136(1)(h)(II), that the proposed water supply will not cause material injury to decreed water rights, so long as the applicant maintains a valid well permit and so long as the District operates according to the terms and conditions of its current plan for augmentation, and is physically Fred Jarman Page 2 Mahan Properties January 27, 2006 adequate. if you or the applicant has any questions concerning this matter, please contact Cynthia Love at this office for assistance. Craig M. Lis, P.E. Water Resource Engineer CML/CJL/Mahan Properties.doc cc: Alan Martellaro, Division Engineer, Division 5 Bill Blakeslee, Water Commissioner, District 38 EXHIBIT MEMORANDUM To: Fred Jarman From: Steve Anthony Re: Comments on the Mahan Preliminary Plan Date: February 1, 2006 We did a site visit on this property in 2004. At that time, the parcels had a significant amount of the county listed noxious weed plumeless thistle. The applicant has provided a map and inventory of weeds; however I would encourage the Planning & Zoning Commission to list weed management as a condition of approval, and have the applicant provide documentation of weed treatment to Garfield County by June 1, 2006. The documentation could be in the form of copies of application records or they could contact the Vegetation Management Department for a site visit to verify that the treatment has been done by June 1. letate6k4,14 oberta & Jim Mahan P,O. Box 3574 South Padre Island, TX 78597 Ph: (956) 761-2130 Cell: (970) 618-5738 J 14d Winter: 0648 County Road 126 Glenwood Springs CO, 81601 Ph/Fax: (970) 945-0319 - Jim's Beach Service - 2)Saisziwaio46 `lsxas, --7-ra ,tAit_ te/L ctto a Lett4A-- Lxedd ;1z divied (ctip, CAVJA Cita e Roberta & Jim Mahan P.O. Box 3574 South Padre Island, TX 78597 Ph: (956) 761-2130 Cell: (970) 618-5738 ; Ldet ,24,111244 to Co4 )1 • i\ --?P 4_ Winter: 0648 County Road 126 Glenwood Springs CO, 81601 Ph/Fax: (970) 945-0319 - Jim's Beach Service - .1_ amitiA Tom, .t4 1 60_ k 4J4AA_ , OLLTA pttAt Ihn,44 42Auto a 5' /1)/161,«x (214,_ Co_ bailable vii DUMP 8NEA MAJIAN RVISFITY /4/04 PHOTOS ON FROt4 CM Ma 121, (APpRox i oo.pfi B 1 /EEN pwaLu tvG$ FRGM ONE 5uAECrt RD. To of TME 9THER) d AR RI5 HoMe CCA3ovE) • 'MAIN rtref ` . -•• �,� ' '��,� -"'�f OUSE I NHAnr Tom► Eti REMUS I22T) w °BOW t•-• MOREiNDIVIDUAL I D EL4111GS A13Di. 11) NAL F,', is r. PETITION FOR EXEMPTIONS 1. 'ACCESS A. As shown oft 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 ruaid'doe:4 not exceed 92 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 Educed on nay a I.0 of property such that this road not be the responsibility of the Coui,ty Cummisaioners unless property owners bring the road to complete county specifications and then petition to have the road accepted under Garfield County etanderds. 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 sole of the property, petitioner will drill a water well on the property, and upon striking ~rater, will have the water analyzed by the appropriate &Cate 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 DISPOSAT. A. The aren.surrounding 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 aenitacion. officer approves perculation testa and engineering of sewage disposal. V. PROTECTIVE COVENANTS Cont A. Protective covenants for the petitioners property or deed restrictions will be attaed to each deed of convyv mace as followas Resubdivision. No tract of land may be reaubdivided into mailer tracts of land. . No tract of land may be used for any purpose other than single family residential uses. c. No mobile homes or trailers shall bo used et any time in any manner on said trncto of lnnd. d. Any reaidence conetruttud on :aubl :t:t property shall be at leant 1200 square feet in area. ;riga 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 pur five acres. Any slices 1.tvm tuckmust be kept and maintained so as not to become a public nuisance. Any poperty owner keeping dogs as pets must securely pen or restrain by a leaeh.said Intimal 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 Minn be removed only to the extend necessary to construct dwellings, driveways, sidewalks and sewage and utility facilities. 1tE!;OLII'i'1OX TO SIt — 35 Ge+e,l`r. Whereaa, 1i1d' E. CARNES hen patltiun.a! the Ituar.i of Cueuely Coaualsaioners of Garfield County, Colorndt+ for an exemption under C.R.S. 106.2--33 (3) (d) (19G3 as amended) for the division of a 40 acre tract into two iracte of 10 acres each and one bract of 20 acres, and More fully described as follows: Tract 1: The \File; of the SWIe; of the NI t,, Section 9, Towne:hip 7 South, • Range 09 West of. the 6th P.M. Tract 2: The SO4 of the SWt of the Ni.:!;, Section 9, Township 7 South, �..1;:0 Range 89 West of the 6th P.M. ANuk., Tract•3: The 1'12 of the S1!1 of the NE , Section 9, Township 7 South, /9tesh• Range 89 Wte6t of the 6th Whereas, the Petitioners have shown to the satisfaction of the Board of County Commissioners of Garfield County, Calorado, that they deulre &ai.d exemption.for the purpose of renale.into single family residen:inl acreage, and Whereas, the Petitioners have demonstrated co the satisfaction of the Board that chsre is a reasonable probability of iocr.t'i.ng domestic water on Hach of aal.d tracts and that there is adequate ingress and ct,rusa to aatd tracts, and that the location of septic tankn 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 State.of Colorado and the County of Garfield, and that said division will actually restrict the do:unity of !lousing within said area and therefore should be exempted from the definition of subdivision and "subdivided land" as sec forth 1..1 C.R.S. 106-•2.33 (3) (d) (1.963 as amended). • NOW, THEREFORE, upon motion nfE%!7)?.t,aef,.1,4:-,,. , seconded by. �errasr:�cu�? ---r� � .'.•.rrrrs, _and unani.nicusl.y carried, said tracts of land. are here— by exempted from such definition and treen;:Ccer of said tract way be made by division Con't P.2 111111111111 1111111 111 film 1111111111! 111 11111 1111 1111 693677 04/07/2006 12:50P 61787 P828 M ALSDORF 1 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO TERMINATION OF PROTECTIVE COVENANTS AND DEED RESTRICTIONS EXHIBIT WHEREAS, on March 17, 1975, Resolution to SB -35 was approved by the Garfield County Board of County Commissioners which granted Ben E. Carnes an exemption under C.R.S. § 106-2-33(d) (1963 as amended) for the division of a forty (40) acre tract into two (2) tracts of ten (1 0) acres each and one tract of twenty (20) acres; and WHEREAS, on August 8, 1975, Mr. and Mrs. Carnes sold a ten (10) acre tract to Richard ,and Sharon Stephenson with certain protective covenants and deed restricted as recorded in Book 477 at Page 467 (hereinafter referred to as the "Stephenson Parcel"); and WHEREAS, on August 8, I975, Mr. and Mrs. Carnes sold a ten (10) acre tract to Tom Collinson with certain protective covenants and deed restrictions as recorded in Book 477 at Page 470 (hereinafter referred to as the "Collinson Parcel"); and WHEREAS, on March 4, 1976, Mr. and Mrs. Carnes sold a twenty (20) acre tract to Jimmy and Letha Sue Sills with certain protective covenants and deed restrictions as recorded in Book 483 at Page 421 (hereinafter referred to as the "Sills Parcel"); and WHEREAS, Kenneth J. Greene and Christine N. Greene are the current owners of the Collinson Parcel; and WHEREAS, Mahan Properties is the current owner of the Sills Parcel; and WHEREAS, Kenneth J. Greene (as the sole owner of the Collinson Parcel at the time) and Mahan Properties, as the majority of tract owners, desired to terminate the protective covenants and deed restrictions on all three tracts of land, as allowed for pursuant to paragraph (h) of said covenants; and WHEREAS, on December 17, 1999, Mr. Greene and Mahan Properties executed a Termination of Protective Covenants and Deed Restrictions recorded in Book 1165 at Page 646 as Reception No. 556907 (hereinafter referred to as the "Termination Agreement"); and WHEREAS, the Termination Agreement included a clerical error such that only one tract of land was included in the termination of protective covenants and deed restrictions rather than all three tracts of land; and WHEREAS, Mr. Greene and Mahan Properties intended to include all three tracts of land Page 1 of 3 1111111111111111111111111111111111111111111111111111111 695677 04/07/2006 12:50P B1787 P829 f1 RLSDORR 2 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO described herein in the Termination Agreement; and WHEREAS, the parties, as majority of the tract owners, desire to terminate the protective covenants and deed restrictions on the Stephenson Parcel, the Sills Parcel and the Collinson Parcel; and NOW THEREFORE, notice is hereby given by a majority of the tract owners that the protective covenants and deed restrictions as initially recorded in Book 477 at Page 469, in Book 477 at Page 472, and in Book 483 at Page 423 are hereby terminated. It is the intention of the undersigned that the protective covenants and deed restrictions initially recorded in Book 477 at Page 469, in Book 477 at Page 472, and in Book 483 at Page 423 terminate and that there be no automatic extension as otherwise provided for under said protective covenants and deed restrictions. The protective covenants and deed restrictions are attached hereto and incorporated herein as Exhibit A. Property descriptions for the three tracts of land are attached hereto and incorporated herein as Exhibit B. DATED: 9" 7 - 9 2 STATE OF COLORADO COUNTY OF ) ss. Kenneth J. Gree 65 Favre Lane El Jebel, CO 81623 1 Christine N. Greene 65 Favre Lane . El Jebel, CO 81623 The foregoing instrument was acknowledged before me this 1 day of April, 2006, by Kenneth J. Greene and Christine N. Greene. WITNESS my hand and official s al My Commission expires: Page 2 of 3 1111111 11111 1111111 111 Iliiil 111111 11111 III IIIII IIII Ill 695677 04/07/2006 12:50P 61787 P830 M ALSDORF 3 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO Mahan Properties P.O. Box 3574 South Padre Island, TX 78597 STATE OF COLORADO ) ) ss. COUNTY OF GARFIELD ) The foregoing instrument was acknowledged before me this 7th day of April, 2006, by James P. Mahon, Jr. WITNESS my hand and official seal. My Commission expires: 10/31/2007 Notary Public Page 3 of 3 .1' • • 1111111 IIII1111111I lig 111111111111 11111 IlI 111111111(I II 695677 04/07/2006 12:50P 61787 P831 M ALSDORF 4 of 5 R 26.00 0 0.00 GARFIELD COUNTY CO Exhibit A AND DFI3J7:\4C^.Au:.S 5ouC483 FAE423 1. Resubdivision. No tract of land may 'aa resubdivided into smaller tracts o. land. 2. No tract of land ma. by e:lr.ci for any p::rpos e other than single-family raaidantis. tacos. 3. NO mobil'a homes or t_ailero ;a used at any time in any mannas: on said tr.:ca:i 3_•.:::::. 4. Any rasidonco constrc;:.ed on pro scan shall bo at least 1,200 iqu:.>;. fo.CC .n art... Ar.e e : ball b.e mcc.st.red on tths first floe: of the :etia£:ide zonn4aoion, exclueiva of porches, 4:aragas: ani S. No livestock, poultry or gotta; .: ;li kult, other than oria horse or cow par Elva r"..ir.e33. at:eh 141.4:atoi7:i nuat bo :Dept and maintained so AS A01 T.G .:eCL. R w t.Sww a'i:::n.:o. Any propaxty owner kace7i: ,; C:o,c •.fees n::j1• tsacuraly pea or restrain by a leash s:.if a:.i ::._ :o that it mtLy not roar throughout the area as will. 6. Tho owner of any tract :::4x1 cor.Aete construction o! any otruaturo oroctod on that :_act within one your o: canintence- ant of construction. 7. Existing foliate :..::.i. ".et at i:Cnt>:'1,. Lu passible. PolirzC:e a2u.l he ro.:4vd only to the extant necessary menet_::: t: u_.ingo, driveways, side- walks and sewage and ..a_-_ .• •1..._14'_as. 8. Those covenants :.0 . at:wc:o:.. w:'J to ru:. :•ctrl. a::o and shall ba bindingel :iud .+.:4 G+1 ;.tenter chitins; under ;ham unt11 Za :::•:ry,•1, ':.:.G. A: tii..''. time. 04i4 covon4at:: shall ba a'.t.tomatica.11y .:atfunds:► 23: auccosaiva lacca-'yaur prt«V:.n unless otherwise chanj..8 by vac:: el Yia than majority oL' trsot owner 3. S. I.' any tract o'.+h:,. c: :za•:a ...ng :or a:ho:$ c:tou;.4v:•alt..:.: or Attempt to vir, 4te vee n:. to :.urezin t: 1 L :• . _ _'• _ • r:. shall r$ law r' !or iie.�e, .. ..: ..c: 4+�S.Es or cagy <. t:.{t: or poroon o t:.f_abj t;:;�..:v_ :o • :o.eo :at '.:y au:: .n :..ac e.. .'r. ogt:ity to rests3:n ata •.:.:e::. v:r,:..:.::er. o: s:elC covtr::a:.a.. and to racava MM. N:;:. ' .i,r ...n :•• :..td to I.•ce.vo.- :.'s: cos= 4Ad nt o:.'..:y 4%.42- .. .. Y :o 44f0:Co sr3u ; :0Vi0iG.:., o2 • gage covananta. . -...- ..Vri 6:.Ott 111111111111 1 111111 111 111111 11111 1 111 11 111 IIIA 11111111 695677 04/07/2006 12:50P 81787 P832 M ALSDORF 5 of 5 R 26.00 0 0.00 GARFIELD COUNTY CO EXHIBIT B Property Descriptions for Three Tracts of Land Stephenson Parcel N1/2E1/2SW1/4NE1/4 of Section 9, Township 7 South, Range 89 West of the 6th P.M. in the County of Garfield, State of Colorado also known as 4777 117 County Road, Glenwood Springs, Colorado 81601. Collinson Parcel S1/2E1/2SW1/4NE1/4 of Section 9, Township 7 South, Range 89 West of the 6th P.M. in the County of Garfield, State of Colorado. Sills Parcel W 1 /2S W 1 /4NE 1 /4 of Section 9, Township 7 South, Range 89 West of the 6th P.M. in the County of Garfield, State of Colorado also known as 4779 117 County Road, Glenwood Springs, Colorado 81601. Preliminary Plan review for the for the Mahan Subdivision Planning Commission April 12. 2006 6:30 PM Proposal • Divide a 20 acre property into two parcels using Black Diamond Road as the division line. Assessor's Map 2 EXHIBIT Proposal Specifics • Property Location: • Property Size: • Lot = 5.66 acres • Lot 2 = 15.06 acres • Water: • Waste water: • Access: • Zoning: • Comp. Plan: Black Diamond Area (4 -mile) 20 acres Davies Well / West Divide Plan 1SDS CR 126 (Black Diamond Road) ARRD Study Area 1 (l 0 ac.1 du) Proposed Site Plan 1 X�11111 v",e,t. ,t i� J (0,5,,—,4 Ic Sal irD. 13) 11166 1--� \ 017 1 02 {(5C1-81 53'1 (26.) 614 -� [yob ... ::122.S)69Y (..12.".1)----.�'Sp5� .2. X29 7 ' I c S Sl Rei 7S)%'' -'0 7 (J'09) 7 t17 #/ ,11 2 rti b ,v ! 33 '� /i\ 2 EXHIBIT Proposal Specifics • Property Location: • Property Size: • Lot = 5.66 acres • Lot 2 = 15.06 acres • Water: • Waste water: • Access: • Zoning: • Comp. Plan: Black Diamond Area (4 -mile) 20 acres Davies Well / West Divide Plan 1SDS CR 126 (Black Diamond Road) ARRD Study Area 1 (l 0 ac.1 du) Proposed Site Plan 1 24.41\ 183.74' 1712'15" `1-124.33' iv -�F . / N38'64'2'i" 7i NW LASNMRi1 s"£p� !MK 4S3 AT pACF t1 ^e 6 66 +C ra weE11 N %AT - 1_,=1D7.13. N=127.27' A=50',3d'3g' rC.�,N, 104 .46` RRC- 4-p9'24"ti . Tour of Property View of CR 126 approaching properly - proposed Lot 1 (65111)1 Lot 2 (lett) Tour of Property (continued) View of Storage Building & Cabin on proposed Lot 2 (15 acres) Current Uses Allowed on the Parent Proeerti Structure Use Main House: Dwelling unit Barn / Garage: Ari Studio / Home Office (CUP) Framed Dug -out: Out building Storage Building: Storage Cabin: 1 ,egal non -conforming dwelling Uses prolwse¢ y¢es to be allowed (if littoral edit on Lots 1 and 2 of the Mahan 3ubdIYlslnn Lot 1. Structure Use Main House Dwelling unit Barn! Garage Art Studio / Home Office (CUP) 1012' Structure Use Framed Dug -out Out -building! storage Storage Building Storage Cabin Dwelling Unit View 01 cabin on proposed Lot 2 (15 acres) View of Framed Dugout on proposed Lot 2 (15 acres) 2 Tour of Property (continued) View of Art Studio !Office on proposed Lot 1 (5.66 acres) Tour of Property (continued) View of Main House on proposed Lot 1 {5.66 acres) \ 4.41\ =$9.34' irt2 }6` =N�-124.33' =1v3811t4127' 54' et1FC r. aSsa 7.1 L S uuSn 48} 11 5341 47 rWHri1 ou5031 WATER S1gH.Gi SsiEP- 63 L-107.93' 8.-122 2 Y \A.,501309` .1„Et.=764.43' t3HGat 1109'26-0 r„ a View of Main House on proposed Lot 1 {5.66 acres) Project Challenges 1) Zoning: Non -conforming Structures 2) Deed a 60 -foot right-of-way to the County 3) Individual Sewage Disposal System (ISDS) Management Plan; 4) Wildfire Fuels Reduction Plan; and 5) Provision of Fire Protection Water Supply; Staff Recommendation • Staff recommends the Planning Commission recommend approval to the Board of County Commissioners with conditions: 3 w �1 EXHIBIT E 1¢ v PT,., fl elA fciJ 7 rei f m . 11 (Y Oa VJ � r J 1J ,, _.) '/ e4 1 David Davies (260 acres) 1 Charles G. Davies, William 11. Davies, Llewelyn Davies Adeline E. Cleary and Alice E. Kummer September 23, 1966 Book 379, Page 244 (260 acres) William H. Nelson 444 White Ave. May 20, 1974 Book 459, P. 348 (27.38 acres - 2 parcels) Ben E. Carnes 444 White Ave. May 20, 1974 Book 459, P. 353 (40 acres) y 1 Burr Bolen 444 White Ave. May 20, 1974 Book 459, P. 349 (40 acres) i Tom H. Collinson August 8, 1975 Book 477, P. 470 (10 acres) covenants prohibit resubdivision 4 Stephensons August 8, 1975 Book 477 P. 467 (10 acres) covenants prohibit resubdivision William Rump 444 White Ave. May 20, 1974 Book 459, P. 350 (40 acres) Sills March 4, 1976 Book 483, P. 421 (20 acres) covenants prohibit resubdivision 1 Mahan (20 acres) 3 D 5 EXHIBIT 1 4 Harry Williams 444 White Ave. May 20, 1974 Book 459, P. 352 (40 acres) Henry Faussone 444 White Ave. May 20, 1974 Book 349, P. 351 (40 acres) Zit' RECEIVED FEB 0 9 2006 GARFIELD COUNTY BUILDING &PLANNING LOYAL E. LEAVENWORTH SANDER N. KARP DAVID H. McCONAUGHY JAMES S. NEU SUSAN W. LAATSCH NICOLE D. GARRIMONE ANNA S. ITENBERG MICHAEL J. SAWYER CASSIA R. FURMAN BETH E. KINNE CASSANDRA L. COLEMAN LAURA M. WASSMUTH LEAVENWORTH & KARP, P.C. ATTORNEYS AT LAW 201 I4T" STREET, SUITE 200 P. O. DRAWER 2030 GLENWOOD SPRINGS, COLORADO 81602 Telephone: (970) 945-2261 Facsimile: (970) 945-7336 dhm@lklawfirm.com May 3, 2006 Garfield County Planning and Zoning Commission c/o Fred Jarman Garfield County Building and Planning Department 108 Eighth Street Glenwood Springs, CO 81601 UILpNUC° Oiv P 71, ANG EXHIBIT I er DENVER OFFICE:' 700 WASHINGTON ST. STE 702 DENVER, COLORADO 80203 Telephone: (303) 825-3995 *(Please direct all correspondence to our Glenwood Springs Office) 0�1 �'ED 206 Re: Mahan Subdivision Application Dear Commissioners: I represent Kathy Harris, Denis Hines, and Scott Fifer, all of whom own property accessed via Black Diamond Mine Road. We urge you to deny the subdivision application of James Mahan. Mr. Mahan has been denied at least three requests for a subdivision exemption in the last six years, and now he is back with a formal subdivision application. The application should be denied for the following reasons: 1. The current lot was created based upon an explicit representation that no further subdivision would be permitted. Representations of land use applicants should be enforced. 2. Subdivision of this lot is prohibited by restrictive covenants that remain in force and effect. 3. Subdivision of this lot runs contrary to criteria in the Garfield County Subdivision Regulations. Each of these reasons is discussed below. I have also included several exhibits which are referenced in this letter. 1 iU< C1 ,Is 11..1560(1. -1 ulxd LEAVENWORTH & KARP, P.C. Page 2 May 3, 2006 HISTORICAL BACKGROUND The 20 acre parcel owned by Mr. Mahan 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. Exhibits 1, 3. 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. Exhibit 4. 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 comtnon subdivision scheme. The 20 -acre parcel owned by the Applicant presently at issue was one (1) of three (3) lots created out of a 40 -acre parcels owned by Ben Carnes. Exhibit 5. When Mr. Carnes conveyed the three parcels, all three deeds included restrictions on resubdivision. Exhibit 7. In 1975, nearly identical applications were submitted by Ben Carnes and by Harry Williams for subdivision exemptions to create three lots out of each 40 -acre parcel. Exhibits 2, 5, 8. Both applications included representations that protective covenants would prohibit further subdivision. However, while the County Resolution approving the Williams application included an express provision prohibiting resubdivision, the Carnes Resolution did not. Nevertheless, the Carnes resolution approves the application "as is more fully described in the petition." Both Mr. Carnes and Mr. Williams did, in fact, comply with their representations to the Board of County Commissioners that they would include protective covenants as stated in the application, which prohibited resubdivision. In 1989, Mr. Mahan made his first attempt for a subdivision exemption, which was granted by the Board of County Commissioners. Mr. Hines, Ms. Harris, and Sharon Stephenson filed suit against Mr. Mahan and the BOCC to enforce the covenants. Judge DeVilbiss granted a motion for summary judgment in that suit and found that the covenants did, in fact, prohibit resubdivision and that Ms. Stephenson had standing to enforce them as the owner one of the three parcels created from the Carnes parcel. That ruling settled the matter, and the Court never reached the issue of whether Mr. Hines, Ms. Harris, or other owners had standing to enforce the covenants as a common scheme for the entire area. Exhibit 6. The Mahan property remained a 20 acre parcel. 2O 114,.s.BOC - .0 LEAVENWORTH & KARP, P.C. Page 3 May 3, 2006 The covenants have an automatic 10 -year renewal provision unless action is taken to terminate them. In 1999, Mr. Mahan and Kenneth Greene attempted to terminate the covenants with respect to Mr. Greene's property, as he was about to apply for his own subdivision. However, that document, which is attached as Exhibit 9, references the covenants recorded "in Book 477 at Page 469." This is a reference only to Ms. Stephenson's deed. See Exhibit 7. Further, the property description attached to the 1999 document is not that of Mr. Mahan. As such, the 1999 attempt to terminate the covenants did not apply to the Mahan property. Recognizing the problem with the 1999 document, the Greenes attempted to retroactively change the document on April 7, 2006, presumably for the purpose of supporting the present application. Exhibit 10. However, it is too late. Pursuant to the covenants, the failure to terminate them by January 1, 2000 automatically extended them until January 1, 2010. Regardless of the Greenes' attempt to circumvent the covenants, from a legal perspective they should be interpreted to apply to the entire development on Black Diamond Mine Road. Given the history of a common scheme of subdivision (which is supported by Patrick Fitzgerald, who was involved at the time), Ms. Harris and Mr. Hines would still have authority to enforce them. If the County approves a subdivision application now, this matter is likely to return to court to resolve the issue that Judge DeVilbiss never reached. 1. The current lot was created based upon an explicit representation that no further subdivision would be permitted. Representations of land use applicants should be enforced. 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. The 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 a dangerous precedent for many other matters. Although the prohibition on resubdivision is explicit only in the Resolution for the Williams parcel, not the Carnes parcel, the applications were substantially identical. This shows that both the County Commissioners and the applicants intended to treat the properties the same. This is further supported by the fact that the grantees for the entire 260 acre original parcel had the same address of 244 White Avenue in Grand Junction. 2. Subdivision of this lot is prohibited by restrictive covenants that remain in force and effect. As discussed above, the restrictive covenants applicable to the Mahan property were not properly terminated by December 31, 1999. The Greenes cannot retroactively change the 1999 document, and the covenants were automatically renewed at least until January 1, 2010. Regardless of the Greenes' attempts to change their document retroactively, the Court has never determined that 1 `2006.CIiWLO-la rriV6OCC-1 upd LEAVENWORTH & KARP, Y.C. Page 4 May 3, 2006 the owners of the Carnes parcel can terminate their covenants without consent of the other landowners. Mr. Hines and Ms. Harris still have rights to enforce. Even if the County may not be in the business of enforcing private covenants, it should not approve an application that is likely to create more litigation. 3. Subdivision of this lot runs contrary to criteria in the Garfield County Subdivision Regulations. Section 1:21 of the County Subdivision Regulations states: The Subdivision Regulations are designed 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 and in furtherance of the general policy of balancing the diversified needs of a changing population, including lessening congestion on streets or roads, reducing water in excessive amounts of roads [sic], securing safety from fire, flood waters and other dangers, providing adequate light and air, classifying land uses and the distribution of land development and utilization, protecting the tax base, securing economy in governmental expenditures, fostering agricultural and other industries, and protecting both urban and non -urban development. Additionally, pursuant to Section 4:33, the Board is to consider the "compatibility to existing land uses in the surrounding area." There are good reasons why Black Diamond Mine Road was planned to have a limited number of lots. Water is scarce, as evidenced by the fact that Ms. Stepheson's well has run dry. It is a narrow, steep, winding road with significant traffic issues. Although Mr. Mahan may already be using his property illegally as if subdivision had occurred, there is no reason to sanction that abuse by approving it now. Mr. Hines and Mr. Fifer plan to attend your hearing to offer additional testimony on the negative impacts of this proposed subdivision. Ms. Harris is unable to attend and has submitted a letter, which is enclosed. * * * 1 20116'Chao ,Hai is'AOCC- I ,pd LEAVENWORTH & KARP, P.C. Page 5 May 3, 2006 We urge you to deny Mr. Mahan's request for a subdivision. Thank you for your consideration. DHM: Enclosure cc: Kathy Harris Dennis Hines Kelly Cave, Esq. Carolyn Dahlgren, Esq, Chris Hale, P.E. I--. 7006,CI io ns'Harri sl3OCC. 1. uyd Very truly yours, LEAVENWO & KARP, P.C. David H. cConau INDEX TO EXHIBITS 1. Timeline/chain of title chart 2. Timeline comparing Charnes 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. DeViIbiss, Case No. 89CV 177, 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. 9. Termination of Protective Covenants and Deed Restrictions dated December 17, 1990. 10. Termination of Protective Covenants and Deed Restrictions dated April 7, 2006. 13251G I risTxllibil I.ist.upi Lim as [ml All 1/81 MI al MI A AN MI Al =1 al Ai Al a 4 David Davies (260 acres) Charles G. Davies, William H. Davies, Llewelyn Davies Adeline E. Cleary and Alice E. Kummer September 23, 1966 Book 379, Page 244 (260 acres) 1 William H. Nelson 444 White Ave. May 20, 1974 Book 459, P. 348 (27.38 acres - 2 parcels) 4 Ben E. Carnes 444 White Ave. May 20, 1974 Book 459, P. 353 (40 acres) 4 Burr Bolen 444 White Ave. May 20, 1974 Book 459, P. 349 (40 acres) 1 Tom H. Collinson August 8, 1975 Book 477, R 470 (10 acres) covenants prohibit resubdivision y Stephensons August 8, 1975 Book 477 P. 467 (10 acres) covenants prohibit resubdivision William Rump 444 White Ave. May 20, 1974 Book 459, P. 350 (40 acres) 4 Sills March 4, 1976 Book 483, P. 421 (20 acres) covenants prohibit resubdivision \i/ Mahan (20 acres) EXHIBIT 1 4/ Harry Williams 444 White Ave. May 20, 1974 Book 459, P. 352 (40 acres) • Henry Faussone 1,11 White Ave. May 20, 1974 Book 349, P. 351 (40 acres) LAN AIM AM AI ill ill in ill Al March 7, 1975 Carnes submits Petition for Exemptions "Additional Facts" represent that all future conveyances include covenants prohibiting further subdivision March 17, 1975 Carnes represents to Board of County Commissioners that any new parcels created pursuant to exemption would be subject to restrictive covenants prohibiting further subdivision, and that this would be included in future deeds. See Order of Garfield County District Court, Case No. 89CV177. March 17, 1975 Board of County Commissioners approves Resolution to create three new parcels (10 acres, 10 acres, 20 acres) September 16, 1975 Williams submits petition identical to Carnes' petition, including "additional facts" and representation about covenants prohibiting further subdivision October 20, 1975 Board of County Commissioners approves Resolution nearly identical to Carnes' resolution of 3/17/75, except with hand-written notation requiring compliance with representation to impose covenants prohibiting further subdivision. EXHIBIT 2 • • —4--••••••4.•ern n> ;• • " }�..: :' 1' l b l • • L • 1+ • 114r'C eEi' I C- �,.. 4L .1 [.F C, I�--_-j 1y I��.g I _•x�1a• Tf ••4 ' f f. Y�TlN lT4 lE f ou ,E1.';21 "h } r_ P t; 65 .1 ._r Ir. /r • 1 vz 1 ` ; N. "--'mss 1 Owners► ip- 4Ia3/66 +0 sboby EXHIBIT 3 1 II 1 and by these presents do es realise, release, sell convey and Quit -Claim unto tho said part les of the not in tenancy in common but in joint tenancy, second part their heirs and assigns forevcr,.11 the right, title, interest, claim and demand which the c'at -,l ,u:. rrrur•u uc...�� I.�.:.. ....-.-u'rklcic-..,,,....DL, .. .., Reception No:.1""}ll79 C!1:10. '.. .001"%111 .Rocorder This DEED, blade this 23rd day of one thousand nine hundred and sixty-six between September DAVID DAVIES, also known as DAVE DAVIES City of Washington, District of ohe Ibloaltyldk WILLIAM H. DAVIES, of San Joaquin of Mesa County, Colorado; CHARLES California; ADELINE E. CLEARY, of ALICE E. KUMMER, in the year of our Lord of Columbia, M.Idlpit-tooittithontliK of the first part, and County, California; LLEWELYN DAVIES, G. DAVIES, of Los Angeles County, Fort Monroe, Virginia; and Trav munde Scheteli.<3strasse,//West Germany, of bloc panlwgxt 1VITNESSETII, That the said party ttinI1StaZIOO8:fklalilalx, of the second part, of the first part, for and in consideration of the sunt of TEN DOLLARS AND OTIIER GOOD AND VALUABLE CONSIDERATION XJff3a tultt, c to the said party of the first part in Mand paid by tho said parties of the second part, the receipt whereof is hereby confessed and acknowledged, lit s remised, released, sold, Callveyed and Quit -Claimed, II p3 said partof 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 ox pipe lines, or any other !' public u1• 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 Merman 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 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 narty'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: NO. iJ G.yUIT C1..t1Sf DEED.Urndrord-noLimoa Ina. Co., Lura. aobinsou'a Lecol Ulunka, 1644+4 Slain 51., Dcnrar, Colorado 1 1 ' X54' 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 VNall 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 + Quarter of the Southeast Quarter (NW 1/4 SE 1/4), Southwest Quarter of the Southeast Quarter (SW 1/4 SE 1/4), Section Eight (8), Town- ( ship Seven (7) South, flange Eighty-nine (89) West of the 6th Prim _ cipal Meridian, containing 320 acres, more or less; Book ;;,fc) Page 245 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 HAVE AND TO HOLD TAE 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 pert, 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, not in tenancy in common hut in joint tenancy. IN WITNESS WAEREOI?, 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 Presenoe of D ..li1/1-614aT`C) 44 o 2M1 .(S1�AL) known as DAVE DAVIES (SEAL) (,8L AI.) (SEAL) 1 STATE OF COLORADO, 'IMPAWRIVAII•11.• ' County of GARFIELD las. 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 rue to bo the person whoname subscribed to the foregoing Deed, appeared before me this day in person, and acknowledged 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 Iny hand and notarial seal, this 23rd day • ',..`-;.1..... • r; i A I;: ...Y:-...'.::: .. 1...,......- 11 ..... • '••;•,,,, c 0 lomii111101L% of September My Commission expires A, D.1966. July 16 19 68. 1 simi gill gil Imp mpg- 'pp. 'lir impu MIMI 0111 all/ ill/ ill, W111 . ONO/ 4111 4111 J11/ / St�^,+tt�LiW 4:i��i�f�+ til, iwYi �K \tt 1,15 •fi f f 1. \ i \• 1, . tabbies' rn 1 = May 20, 1974 W Conveyances All Grantees at 444 White Avenue, Grand Junction, CO All Grantees signed note and deed of trust (1'! / 1-N �� / /r \` `� Recorded Et o'clock at MAY, 2 ]19 ? I" t �� ; �l' AL3 i4!4,t`1�(1l�. sJ ate/5, .ti�� ere') No...r 14: .� S'` Recorder. CHARLES C. 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, 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 VAR 4=Zt;.i,.7aY kt MAY 2:1971' s. 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 NWSEA., 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 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 Township 7 South, Range 89 West, 6th P.M. and that part of the NW*,SEA, 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'SEi, Southwesterly to a poirt 100 feet North of the Southwest corner of said NWkSE1, 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 limited toeeeive royaltytif,as and when production actually occurs on the with all its appur enancei, 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. • 20 day of • STATE OF COLORADO, County of Garfield May ,19 --A"tl' ind -. I a -.� AX -ice E. Ammer ]sa. , The foregoing instrument was acknowledged before me this 20 day of play , 1974 , by Charles C. Davies, William 11. Davies, Liewelyn Davies, Adeline E. Cleary, Alice E. Kummer "' My csttmission expires 7 January 1978 `• 11/ituvemy hand and official seal. s----1-7) .i▪ ii •% 7 •A'i`i., 'e^~s L(�.- L/ vi,,Lt ° // .0ail ; r- : Notary Publlo ffinintury A oRaartshhnnrt.—U by Eminent porton or poreono here Innen name or names; if by person act Lna In representative or orflolnl c :parity er ma attorney-Indael Well Inaorl norms of porenn an ecmutor attorney-In-fect or other rA oaetty or eten.:rlp• thin t if p; ...Moor of aorporatton then Icier( name Of inch offlror or ,,'(leers as the 1*reorient or other o(fLra of Wilt Cur - potation owulnq Lt. Nu. 897. IYanmll seed-SL.et Varm-See. l0•I-L7. (.t1.*. I*I - ar.dfnrd I'u611.hInr Ca, 10:1-4e BLooL Street, Deovar, oIor.du-t 71 w 1 A. 1 e 1 s 1 1 1 1 s 1 Recorded at,..... ...:f)........n'rlock 'Reception No ...14.1)4.1iL-1•••" M M Ai 9 1 127..?'',.... Lj • l; �{y�, ,t T,��,C 34 CHARLES G. DAVIES, WILLIAPM H. DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E.• KUM MER, whose address is County of , State of , for the consideration of Ten Dollars and other good and valuable considerati xiR +3tAr in hand paid, hereby sell (s) and convey (s) to (I( Yi'Ir ( n •, 1f l%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 Carfield , and State of Colorado, to wit: Section 9, Township 7 South, Range 89 West, 6th P.M.: NW S W 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 alt 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 ? illiam H. Davies STATE OF COLORADO, County of Garfield Jos. L ew.e n yv Ade ane . , 1.9ryj Alice E. Ku er The foregoing instrument was acknowledged before me this 20 day of Hay , 19 74, by Charles G. navies, William D. Davies, .lewelyn Davies, Adeline E. Cleary, Alice E. Kummer My commission expires 7 January 1978 • ;'I iEiieaa my hand and official seal. : p {� j`llll / ▪ Ni i•5 Notary Public!tiQ c: f �_:r. Sifur.rihAr-Onoa;fnJQmcIl.—If by natural person or oorrrona bore tnocrl name or hantoot If by portion acting In roureoentntive or nfflrWl rapna:ity:or ns allnrnoy-IN.htct Unit, insert Immo of poraun as exraltnr atlorno,--ln•lact or olhot copnettyr ttracrlp• tion; 1r by •.rfloorot corporation then (meet Immo of ouch officer or olfIenre as Cho prerldother aet or oer offlooru of auBud,ear- 1,lrallon oniltpru.it, ......... i a No.807. Warranty Drr.I—sh.,t Form—See. 1111.143. 0.1t.5. 1963--nr.,ltorJ P Publbildar Co., IB24.4G Stout Street, Denver, Cotor.da-.1.t3 r Recorded at 3 o'cIo k... ...M. BUS» 4 59 FAIL 011cenption No, r....q......M I974 44, Recorder. CHARLES G. DAVIES, WILLIAM H. DAVIES, LLEWELYN DAVIES, ADELINE E.•CLEARY, and ALICE E. KUi IMER , whose address is County of • , State of , for the consideration of Ten Dol- lars and other good and valuable consideratior dr:}ktxx, in }]and paid, hereby sell (s) and convey (a) to r ,�y 2 j 197/, WILLIAM RUMP whose address Is 444 White Avenue, Grand Junction, Mes a , and State of Colorado County of the following real property In the County of Garf ie ld , 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 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. 20 day of ay , 19 7 . LeW s.fypRhvie c�.xr .Ade:.. nee � Ivry rY illiam H. Davies r.., 1 Alice E. Kummer STATE OP COLORADO, County of Garfield The foregoing instrument was acknowledged before me this 20 day of May . ,18 74, by Charles G. Davies, William H. Davies, lewelyn Davies, Adeline E. Cleary, Alice E. Kummer ,.My,commission expires 7 January 1978 ss. „`i.fYaness my hand and official seal. ‘4121.1":4117.(e"4-11-4') � ` } ~4x.. !.. Notary Publlo Srnla10...1{cknOtgailgmrnt-ar by natural per. n or portion,' here Insert name or natnesi If by person seting In representative or ofllelni nnpn11Frnr an at oroey-In-fact than hiaert naum of Por.nn ae cxta:utor anomer -to -foci or other capacity or deecrlp- 11 . 1f In/ father of corporation than moon natio of Penh officer or offlcors as die president or other of{Icore o1 such cor- poration namlmf It, No. E 7. W,rr.nly IlmJ—Short Yarm --5.i. 111.1.17, C.rt.iI. 1913--UmJford Putillehintr Cu., 1821.11 Stout Street, Drnv.r, Color.du—;.r1 /0 Recorded at......� n'clnek...........h1., my 2 1 1974 BU 45Y PAf f 35 Reception Nu. IG3024 I � 7.5 CHARLES C. DAVIES , WILLIAM H. DAVIES, LLEk1ELYN 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, (10g5{3, in hand paid, hereby sell (s) and convey (s) to HENRY FAUSSONE whose address is 444 White Avenue, Grand Junction. iYliaY1 11�Z �1_•1y`/`� 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.: 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 warrant(s) the title to the same, sullied 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 , 18 7� le .el,ym av is 6 & :mss Ad's ine L,lepryy Alice E. Kummer illiam H. Davies STATE OF COLORADO, County of Garfield The foregoing instrument was acknowledged before me this 20 day of May ,19 74 ,by Charles 0. Dvaies, William 11. Davies, Llewelyn Davies, Adeline E. Cleary, Alice E. Kummer My commission expires WJH10 s my hand and official seal. is Y Htalytory AckrrnlvtertfJ 1lt.-1t by natural 4.'T 4n or pornona hove Import trnme or nemoa; U by pervon anetng to r"P....entail" or arflchtl nt attarney-hr-tact Own Insert nowt of person se ..¢center ntlnnmy4u-tncl or nth tltp1nelty or dosr:rtp- tlnn; It byof ri.?-n of 'coryorntlon Ilton Innrrt name of such officer or Wlleore an Lim President or oUtr oftteero or ouch oa+. porallurt narnlu101t. t • 7 January 1978 tdlt27‘-v.04,/ Notary Cublla No. 807.. W.rf.nb' llurd Jhorl Perm ---Sec. 114-I47, (:.11.9. I0S1-11rx.f.nn Pullinbhry Co., 19,1'0 810u( S(rev(, Prover, Colarnda--1.? f� +7 Recorded el 3 (j 459 P1 E3521lectipfinnNo.... .1(1() ,r7 o'clock...,! M. MAY .2 �. 1974 P2 ) Recorder. CHARLES C. 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, a1io31/08, in hand paid, hereby sell (s) and convey (s) to 1974. HARRY E. WILLIAMS 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,: SEiNW4- TOGETIHER WITIL 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. 20 day of W lliam H. Davies STATE OF COLORADO, County of Garfield Ma 19 7,4 7 Ad'eL -r.e Alice E. Kumm+ 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 ` ''My coriiiniasion expires 7 January 1978 ,,• .Witncaq•tny hand and official seal. (� / .,,G :, , , v.. Notary Pu bite •i. - sWlwrcry Aeknotnledymenl.--It by natural prrson or para0n0 here Ineert name or names; If by parson acting to rapreaontativa or oltlanti 1f I.wity nr itM attorney -In -fact than Ltecrt nntno of portion an eXeGUtor attornay-In•rant or otbor on encity or denerlp- ttnut 1e by of:fuer of corporation then lnnert metro of such officer or taken. Out Ihn proaidant or tabor otffoma of Duch cor• Notation nu nInef ll. oI No. BD?. W.rnnl, 11e.J—Short Eaten—See. Iia•1-17. C.a.3. 1767-1.1radfard Publfehlnr Co., iezt";o shut strrnt, Denver, Colorado—<"n 12ecotJet! at 3 (mock...L h1. Reception a 1• �itaxi>] Recorder. burg:459 FaGE:3', 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 ofTen Dol- lars and other good and valuable consideration, AIWA, in hand pad, hereby sell (s) and convey (s) to BEN E. CARNES whose address is 444 White Avenue, Grand Junction n 1,.1974 fel----- County of Mess , 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.: SWINE+ 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 warrant(s) the title to the same, subject to easemenCs, restrictions and prior mineral reservations of record (if any) and 1974 taxes payable in 1975 and all subsequent taxes and special assessments. is % 20 day of Ma , 18 7 /I t j✓ ..d(-21‹:_______1.:7e.E[e .: F �cesi--ter.—o Charles G. Davies L ewer f�Iyavies� U illiam H. Da les STATE OF COLORADO, County of Gar fiold Grcccv Alice E. Kummer The foregoing instrument was acknowledged before me this 20 day of May , 19 74 , by Charles C. Davies, William 1I. Davies, L1_ewelyn Davies, Adeline E. Cleary, Alice E. Kummer hi'y commission expires 7 January 1978 ,,,W;tnrasmy hand and official seal, �,;.r•IJ l;,.r.,•., • • 'Statutory Apertt;rslmlttnent.—]f by natural person or peroono here ;newel nem, or ortolan; if by portion aatCng In ropreaenl.tlye or o[nniai CnPoonp ur no attorney -In -fort Ihnt Insert honor of person no executor nrlornoy.ln.fnel or other carl.M+aty or dooerip- t11on! 11l by ulfj lav aC eorpatalloa Uwe insert ovule of such officer or ottteora as Iho presWent or other ofGcera of ouch oar. ItoraUou ,tatnlcu iN j (%41-'e Notary Public No. 887.. w tr thud—abort Ferre—.U., 1.18-1.113. c.u.s. Iota—urs,uori ruldbldruit ca.. 11991.10 stout street, Drover, coler.do-11.73 1 1 1 w Necarded at B0 4b9 �,��Eti+ 1'4 Reception Nu �:....,, .�..h ,g 1974 Recorder. Y 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 siCas, in hand paid, herfby sell (s) and convey(s) to WILLIAM H. NELSON, BEN E. CARNES, HARRY E. MAY 21 v 74 WILLIAMS, HENRY FAUSSONE, BURR BOLEN, WILLIAM RUMP, and PATRICK M. FITZGERALD, whose address is 444 White Avenue, Grand Junction , County of Mesa , and State of Colorado the following real property in the County of Garf field , 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: EiSWig, NW -SW*, Section 5, W2NEi, NEiNWi, Section 8, NW4SE*, SWiSE*, Section 8, Township 7 South, Range 89 West, bth 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, spri 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 bein 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. 20 day of William H. Davies STATE OF COLORADO, County of Garfield ,1974 :P:‹..,: . z�,--„ T. wei av ffs 7 e fine E..... i-easY.„.. Alice E. Kummer The foregoing instrument was acknowledged before me this 20 day of May , 1974 , by Charles C. Davies, William H. Davies, Llewelyn Davies, Adeline E. Cleary, Alice E. Kummer My commission expires 7 January 1978 fitness my hand and official seal, Notary Puhlla 8falufury ar1?ae teilV�[f+1{,�If I., ,,,lural person or Peroann hors insert name or comes: 1f h7 Person voting to rut,roacntalive or af/lcla,l .ys[rtri y ..or �r1 attarnoyludael then Wert nom" of p.•rson an executor uttnrour-In.fact or othar ea{pa[,•ly or descrlP- • llnn: if hl• utnstr of ooq. ra[toa thea bison Dams of aneh officer or ofllcors on the proaldant or other off koro of such cot- .' porutIon,SWiHl,uc it. .. r No, 857. rewr•aiy nn•.t--9ho.f turn—Ser. 111.1.13, C.K.`S. 1913-11rndfurd 1'oLlhBlnr Co., 1h:4.I6 Stout Serra, Uanvar, Cuior•do^1-n r,, MAY 1, 17 ' Recorded et .! o'clock...' ht„ ....... _,.,...,,,, } Reception Nu.....F�1.3{ �'L `f-1.(-(�. ��" qr. �..a� ,.F�.^.�......1�T...a?...........ItC[UrdcT. �()lli, `1 J9 Nu 35j CHARLES C. DAVIES, WILLIAM 11, DAVIES, LLEWELYN DAVIES, ADELINE E. CLEARY, and ALICE E. KUMhMER, whose address is County of , State of , for the consideration of Ten Dol lars and other good and valuable consideration, xloj1am in hand paid, hereby sells) and convey(s) to WILLIAM -H. NELSON, BEN E. CARNES, HARRY E. Flt x WILLIAMS, HENRY FAUSSONE, BURR BOLEN, WILLIAM RUMP, and whoATRrC sM FITZGERALD, 444 White Avenue, Grand Junction County of Mesa , and State of Colorado the following real property in the County of Garf ield , and State of Colorado, to wit: Forty-six per cent (461) 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 under or within the line or area of the lands described as: E2SWi, NW4SW�,, Section 5, WzNE , NEi-NW4-, Section 8, NWiSE4, 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 proper ty; 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. 20 l:harles U. uavles day of William H. Davies STATE OF COLORADO, County of Garfield 138. n jia es 1� L(.. '` f J P r rt (fie ".A . C �:,G , e�ly Alice E. Kummer , 197 The foregoing instrument was acknowledged before me this 20 day of • May ,1574 ,by Charles G. Davies, William H. Davies, Llewelyn Davies, Adeline E. Cleary, Alice E. Kummer ''My commission expires 7 January 1978 .: WYitness;ny hand and official seal. • 'j 1111 Notary Potato Sfolu,nry,teklldtortifpnacnf,—]f by natural Perron or pernonn hero henort name. or name,, If by patron tinting In roprenent►llve or official cnlMelty or an nt1ornrylo.fuct thou Inxert ancon et person as executor atlornuyln•fnet or uthur cAl tlellY or generlp- ' !loci if by oiflcur of eorjvrniton !hon Inxort nanw of xueh officer or offkore ne Uw yrooldent or other offfoora of Hoch oar- '. yoratlon uufnlrur i6 No. 897. War ..ly Reed—Sh.,t P.rm—$or. 118.1.11, C.R.S. INS—Bradford Publidhiny Co•, 1821•10 Stout Street, Denver. Color.do-1.73 Recorded at -Y o'clock Reception No. 'J 3fs(;� BDGti459.rAGE 1256 M AY ?. 1 197' Book L DEED OF TRUST Page Recorder THIS INDENTURE, Made this day of //4v. , 19 74 between WILLIAM H. NELSON, BEN E. CARNES, HARRY E. WILL-IMMS, HENRYFAUSSONE, BURR BOLEN, PATRICK M. FITZCERAID, and WhoseLaddr��rssEiUMp' hereinafter referred to collectively as "First Party," and the Public Trustee of Garf field County, State of Colorado, party of the second part, WITNESSETH: TIIAT 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 (8225 , 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 common whose address is after date thereof, with interest thereon from the elate 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, TIIEREFORE, 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 I018104, and the SI1Nid14, the NWI SEII, and the SW1 NE6, 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. 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: Lots 4 and 6, Section 9, Tp. 7 S:, R. 89 W., 6th Pat:, and that part of the Nl4'•45E14, Sec. 9, Tp. 7 S., R. 89 14., 6th P.N., lying South and Southeast of a line extended from a point 100 feet South of the Northeast corner of said N'1+'1LSE16, southwesterly 'to a point 100 feet North of the Southwest corner of said N'W36SE1/4, said Sec. 9, containing 27.38 acres, more or less. TOGETHER WITII all improvements now situate on said property, and all mineral rights associated with said property (Subject to Beneficiary's reserved fifty per cent (50%) mineral royalty). (Continued) bU0t.4u.9 PACE 357 PARCEL NO. 2 All of first patty's right, title, interr,t, claim and demand in and to all coal mines, coal vains.and deposits, found or to be found under or within the lines orareaof the following described lands, to -wit: E' SUS, NA;SWf4, Section 5, WIjNE44, NE1/4NW14, Section 8; NW!„S'E1/4, SW4SE1/4i 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 (507.) mineral royalty) PARCEL NO. 3 Forty-six (467.) 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 (507.) 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 18 divided into six tracts as .follows: Tract No. 1; Lot No. 1 and that part of the NR1/4 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: SEI/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 00 less 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) ei im 1 1 8o0r:459 FACE 358 Peeri rn MAY 1 197+ RELEASE PROVISIONS (PAGE 2) TO ATTACHED DEE 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 ser 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 (El/2SWl/4NEl/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*NWi of said Section 9, Township 7 South, Range 89 West, 6th P.M., until the entire balance of the Note has been fully paid. $06{459 NV 359 TO HAVE AND TO ]BOLD the same, together with all and singular the privileges and appurtenances, thereunto belonging; also the tents, issues and profits derived or to be derived out of said premises; (Ilene ficiary agrees that under the foregoigg nssignmenl 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 Recd; and, in any default thereof, the Betteliciary iS authorized to assume the management and control of and to col. lett the rents from said property without an Order of Court). IN TRUST NF.VERTHCLESS, That, in ells', of any default hereunder by first party or his successors in interest, the Beneficiary may file notice with party of the second part declaring such default and nn election and demand that said properly be advertised for sale and sold, in accordance 4vith 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 al public auction at the front door of the County Court House in the County ofGarf ie ld Slate of Colorado, or on said premises, four tviceks' public notice having been previously given of the lime and place of such sale, by advertisement. weekly, in some newspaper of general circulation at that time published in said County. Il is specitieally nerved 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 Decd of Trust is not duly per[unned, corn• plied with and abided by, then the balance of said note shall become clue and payable forthwith, or at any time thereafter at the option of l3cnel'iciary, and said property may be sold in the manner and with the same effect as if snid 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 tntel, 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 are free and clear of alt liens and encum- brances (except as herein specified): Except easements, restrictions and prior min',.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 nt 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 profits 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 the 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 competeul 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 sawed. That, in the event of foreclosure and sale hereunder, attorney's fees 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, shalt be allowed by the public Trustee or taxed by the 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 firstarty, 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 the 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 the first part has hereunto executed this Trust Deed the day and year first above written. .(24 �1f L[� (Seal) ..... � 1`r nrar>.,C1 (Seal) /7 "-he,' - der [1 Z�rC�cx` ramp A l: F COLORA P • :/ i/ County of Mesa, ti The foregoing instrument was acknowledged before me this "'0 day of Apr il'4p.74 s By William R. Nelson, Ben E. Carnes, Marry E. Williams, Henry Faussone, Burr Bolen, Patrick M. Fitzgerald, and William Rump. • ..,euutrW qe r, , r Witness.nirlfendrand•official seal. My netari(et•F9tinnissioti.expires �� e Notary Public, RESOLUTION '1'U all - 35 Whereof', ”EN 1. CARNES har petitioned thu Board of County (:owm:Itic'Juners of Garfield County, Colorado for an exemption under C.R.S. 1.06-2--33 (3) (d) (1963 au amended) for the divi.sien of a 40 acre tract into two tracts of 10 acres each rind one tract of 20 acre:, and more fully described as follows: Tract 1: JfI�' Tract 2: • Tract 31 The NF); of the SW'r; of the 140 4. Range a9 IJer:C of. that 6th P.M. TI:e SEJ,; of. the SWJr, of the NE1/4. Range 89 ]deal: of the 6th P.M. Section 9, Towaehip 7 South, Section 9, Township 7 South, The WJ1 of the SWIt. of the NE4, 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 resalz_into single family resi.den::ial acreage, and Whereas, the Petitioners hnvo demonarrated co the satisfaction of the Board that there is a reasonable probability of locating domestic water on each of etdd tracts and that there in adequate iegreas nut egress to said tracts, and that the location of septic tanks will be permitted by the Colorado Department of Health, and that tha requested division is in accordance with the general, purposes and intent of the subdivision regulations of the Stara of Colorado and the County of Garfield, and that said division will actually restrict the dt:uaity of ]rousing within said area and therefore should be exempted from the definition of subdivision and "subdivided land" as set forth ia C.R.S. 106-2-33 (3) (d) (1963 as amended) . • NOW, THEREFORE, upon motion of %??2.77er:wire "..,J • e rr-ozi, , seconded by 'F • rt.u, and unanimously carried, said tracts of land are here- by exempted from such definition and transfer of said tract pay be made by division Can't P.2 1 1 1 w 1 e 1 lceoluCloa. .o Sfl -- 35 P.2 into three tracts, that is, 1 tract of 2.0 acres and 2 tracts of 10 acrca each, more or less, all as is more fully described 1n the petition pertaining hereto, provided,'.Itowever, that this exemption is grunted only upon the condition that none of the above parcels of land Iie sold, transferred or conveyed until such time as: 1. Petitioner drilla n donteat:l.r water well. or wells to serve the subject property and that the well or wells be tested for potability by the appropriate state author/ t! es: 2. That petitioner have each site be approved by the county sanitarian for septic tank and leech fields: 3. That any instrument of salt: or conveycuce 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 sites is not the respu.►stbi].ity of Garfield County and that said road is to be maintained privately. A copy of the inatruments or instrument of conveyance. when recorded. shall be • ' filed with this resolution. Dated this % 71.1 day of &?).,er. 1 , 1975. Attest: TILE BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO BEFORE T11E BOARD OF COUNTY Coo. 3IOWL'RS OF CARFIELD COUFTY, COLORADO PETITION 1OR ii\I iPI'lONS Pursuant to C.R.S. 106-2-33 (3) (d) (J063), as amended, the undersigned, Ben E. Carnes petitions the Board of County Cum:einsio ners of Garfield County, Colorado, to exempt by Resolution 3 parcels, recce Fully de:cribed herein, and for the reasons Qet forth herein. 1. Petitioner is the owner of a tract of land in Garfield County, Colorado, 'described aa follows: The SA of the NE1 of Section 9, Township 7 South, Range 89 Vest, of the 6th P.M. containing GO. 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 tank and leach fields. The petitioner proposes that no land be sold until county sanitation authorities have approved sites for eoptic Caulca and leach fields. • C. Accesg. The subject property hers direct access to the Pour 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 Bide of the center line of this roved, and will grant an easement with the property along this road. Any dead of conveyance will contain a statement to the effect that the private road la 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 hu filed with the Petition and the Resolution if the exemption is granted. ;•,//1 Dated at Glenwood Springs, Colorado. this / day of�l/ i?f'•// , •1975. ADDITIONAL FACT PETITION FOR EXEMPTIONS 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 to the Four Mile County Road. The grade on this reed .doers not exceed 9% and part of this road is presently being kept open durlug the winter by adjoining property owners with no difficulty whatsoever. B, Restrictions will be placed on nay sale of property such that this road not be the responsibility of the County Cummissaioners unless property owners bring the road to complete county specifications and then petition to have the road accepted under Garfield County standards. II. AVAILIBILITY OF TELEPRONE AND ELECTRICITY A. Telephone and Electric linea 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 a reneonnble 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 au 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 SEWAGI. DISPOSAL A. The area, surrounding petitioners property have from' time to time been approved for septic tanks and leach fields. Petitioner will have appro— priate perculntion tests conducted by the county sanitation officer, and .petitioner hereby agrees to convey no land until the county sanitation• officer approves perculation testa and engineering of sewage disposal. V. PROTECTIVE COVENANTS A. Protective covenants for the petitioners property or deed restrictions will be attached to each deed of conveyance as followas 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 trall.ere shall ba used at any time in any manner on said tructe of land. d. Any residence constructed on aub-ject property i+ha11 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 ::hn.11 be kept, other than one horse or cow pur five acres. Any such livestock must be kept and maintained ao as not to become a public nuisance. Any property owner keeping dogs as pets must securely pen or restrain by a leasli.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 extend necessary to construct dwellings, driveways, sidewalks and sewage and utility facilities. Can't 1 h. These covenants and• restrictions are to run with the land and shall be binding upon all battles And all persons claiming; under them 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 tliu 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 anyuther person or persons thereby affected to prosecute any suit in law or in equity to re- strain and enjoin die violation of said covenants and to recover damages for such violations and to recover all.costs and attorney fees necessary to enforce tha provisions of these covenants. 1-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 -Cloverdale 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.3.954); and Rooney v. People's Dank 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 a1. 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 covenants are of record in the office of the Garfield County Clerk and Recorder. 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 at 07.a.: o(•'o'clock. ... L, °V 14?, dr _Re �•-- caption No. ..27a4 9 BEN E. CARNES and VELVA V. CARNES, husband and wife, whose address la Grand Junction County of Mesa , State of Colorado , for the considereAlon of ---Ten Dollars and other valuable consideration -- dollars, In hand paid, hereby sell (s) and convey (s) to JIMMY H. SILLS and LETHA SUE SILLS, as joint tenants, whose address is County of Garfield . and State of Colorado the following real property in the County of Garfield , and State of Colorado, to wit: WhSWIINEk of Section 9, Township 7 South, Range 89 West of the Gth P.tl., Together with all water and water righta thereto appertaining, including the Davies Spring and pipeline: RESERVING, HOWEVER, unto Grantors, their successors and aaaigne; (1) Utility easement 10 feet in width, the centerline of which shall be an eaat-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 Trust for the use and benefit of Charles C. Davies, et al.. en- cumbering the above described property and other property, in the original principal sum of 6225,000.00, 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 ns 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 assesamenta: (5) Prior mineral reservations of record. Grantors warrant title to the above described property except as set forth above. Signed this 4th day,, !larch. .106 r, Bco Carnes t.� ',21/1."'c--"1" ........ C' ClN� rt'st�vL [. Sp ACM 11 1976 STATE (;F ('AL.ORADO. County of Mogi 1 r t• R elva V. e •(/.4l)t.•.:�-, Ca rhos The fl,rryninr instrument wu.. a,•kn/lµ•Gv1g1•d 1"dl,n• nu• lhi,l G Tri day of March •1976.by Ben E. Carnes and Velva V. Carnes, husband and wife. Aly r„mtnl+lriun exl.(res •. A,.6 • J(, /`t1,•" 1Citneaa my hand and official %nil. • No. UT. . ,` 11.10, r.W+.:. N'er,..I. I,..4 -.e .s r..= Ilr,.11r.rl l•,uwM•, i'.., 1,1,.1 n...., Stunt, Iw.rrr.1,.4.roda. -4,411 ♦' .';• ' •i--•• EXHIBIT 7 u3 0 I y1 IC' n n .Z5.o3" W 0 • 64uK483 PAGE 422 Ex`ilal i °A" .h. W + -T ' -? > ' t9 n . o?. 1+ 07 Loi p.oi 13' • v 34" w zsra Ida+. 1 ' .r •,r),..& 13....." ^-n' 1: •. , LI PI ' - Ci G l; v tet. 11$ 4.4 f'} •X w'l ` -u \ . . , „..706.CA/ .:;:i'l!....... %,i..^./ 4• 1 iA .„��" .�� /4r12.23 1�4 I Q1I+ "" 41. 14• 74 s 1n 1 . W t; t0 i J,I% of Y r .4. (,c �..sa.2ij 332,2. -C r . �E 5 Po' 1.8 CI z• Ir ". 4 4..51" vv .;a 1t t1 o 'yam ...0‹., ra r, 4-'o'= -:V_-'. C0t'_..:.\:::S AND DEED : E:.'.".i.a:.:'..3?.S 80114483 PAE423 1. Resubdivision. No tract of land may be resubdivided into smaller tracts of land. 2. No tract of land may fr,_ any purpose other than singla-."amity residenti.a : t;sas . 3. No mobil'.: homes or tr..ilu_.. :a used at any time in any manner on said t_..d..... o! �..,.... 4. Any resi( nca con:,` _ on .. :,;,ec:. .:a:._?Er.:y shall ba at least 1,200 sci'uarafaaa :n A: Ara .....11 vv :.:i]astrod on the first floe: ofh "• . 'a ` ::.,:..;ddtio:i, exc].e iiva o: porches, garages and c... ? V:.zs. 5. No livestock, poultry or Goat .._: a:3', other than g::e horse or cow par five acres. ..:•/ such i Itveatoc% must ho kept and maintained so as .`.o.: :.o a p.:::3...: :.L_i...nca. ;..-.y property owner kee?i-, i:s s ,c:cs :=:;t securely per, or restrain by a leash :.;4tie. :::,i::ti.:. ..o that it .-.•:y not roast throughout the area t,: will. 6. 'iho owner of any tract. .; ;all c:,:. .,rte construction of any ctxucturo °ratted on that tract within one year of co:L .co- ncsnt o2 cons truct'_tsr.. • 7. Existing foliage _ ..' i1 .. .. lou apossihla. Fo1:a.,:a ...... `J.. _......... .... 5 .. :vT:7.:7vad only to t:ha extant redrew. ryG. t: ..inks, driveways, ays, side- walks and sewarye and •• •. .rL_.. 3. .hose covenants L ..,s to Cun 4 ne and shall be binding.. .:.-raiez1,eruons eaa i undar the:.. until 1,-^,: , .:s...C. A::.hi._Mtime, ...:Lit. cov:::1:.:` shall be a L.ttonatici.11 t X_ .....:d 2..: .ca:;l:ive to: "year p t....tr unless otherwise ch v. g..d Ly v.+4..: V2 ....a than majority o4 tr. t owner.,. 5. Z. any ...act '.'.ho.:t .a'oultl c: attc~pt to via :at_ .._ zovo•^._..4. , shall :,rte lawful fcr i:f.; c4.:. ... {:'.. cr or parson:, t : ireb J :. .. a:. :o _ _ o:.:c Any f:L' .::a::.i (, _ •n equity to restri._.. r. '• G ... :':r.. ::o:. o. t [: e.i'C:C°Iv:'..... and Lo rtcovar G:..:.: .. _.... inlA. ions .... . to nl costs and .:ttoanc:y «4u.. .....c.:...... _ :o t.:.LUSce ti u ::v�;:1.:.:... o2 t :ase covenants. ..�.: _..,......�.. ...:wwvw+i�-:w..:Irv,.rw:Mna�adrd•YttSY-7a.itbiFl9itALu;r,:�.r�. ��.� �fi•.6M'a IS TEEDIUSI.,ea 1975%batty nAir if • Ivon cCarridcro!�hetln A ? 1CIIARD`;K STfp wITNEBEIET11•. ? 1 :..kW. T :., `".. . tto {ke'�a1d CMrI .F•,< t e'fIri heec;;;;;}ieeedanee nn w1 rapran 6�epeln aell,.wme yed'ee ensnej �n common Pan en rH. 4.1 17,,1 s �. s �• tlP • aenln iniftliic muento d ve o' Tematecferan •de e } e r flit fh ekS.e�cl�',ld 1'E llo�T• n�"�e'iree�.. i deman :whn � a h e � li{L�� .r•etl,�e S fiz'Q non .fie ¢Lo4" srao a'tern a wl e o •1 : e p h 1 nae +e ! ? . TD11A'�E�AND,T�i['J7Lbth mre• •,-eGaegad_-M1• •e`cii�e',r�iw��• • �I' nehcoe��n g et- he. enn ar c r e n an ielpne3anyer. x n e lime "n s ro"tes . DS teen¢ Pour i Rgr` t11 arl f he aald ne�r dn BE on'tart nte' hB 5 wel Ptilrf u,o P minca ntov ran ey iXj'(• �nher�nc .cyn ]Wawl ee ism' '6na`n-Rti lioa a�.v�" waln`�e Iia S�eof�ieaVI MIn 4 'larm alaree Fano ailyt bnduti�� Ai tegeEi%,-e +ir icei ,Exc R:r1Pthli0 easement s r`iat5�� ra �niite l�•�resers of 51 o j�eco a �suhseglteit tta ipe�s f'Hi •'s+ec T • ssessments eed hiid! Cab9YC 66r{,'IORP Roe- � nn b� eaeea le '.bra an�'{ieairnt1;" Va1�h c { en�onpsiv� age al. the eni`il ari �re ' a �nd.wllt�;Zi t.. NU; 921,014 DDANTY DE8111,11T+ln T. �TR• y+�ft:. �^3t77 tsi i- i a .R Gd :t• ��Ms.rtes�x''r'�,rpE1'+T�A5�1';.4�� ha[YFIrrP1�ii[f4�Vfe`4>4Li�" - - _''''`�-��„„¢�X..4ry6�!1n;� +��t� �scGlfIi1 ,rt✓�sM1Tf��r' ��x fr{[-tIv5xi. � [� !1•.[4N,t�." 1 F t �' r-� }��bNfLry'S�[ Y- f��4 �r '��- '-riRiPl�"d"r[[}�'f ra 14 t Af1 10, y tI-aY471i! f , 4 'r�si rj{? 7, •{+��'I 'L' ,taw gwJ,. '%14:.k.,:&.' f ` ti .°fit;=S:;••'s;, j�:; ` "`?;r� . f'�S4 ' 8aT8CTI11S �' VSHANlS' i a Rea , d v eiaa rant oElead 3oE�land " ftiiT F : .LAY..... '* Hofract�oF =n• ma •'=eluaodkFar, eafaeii all uaes , p• a Y ,?.q' tioJtiiob11'o homes c eailara,-ohal 'retiC411 ra a oii Ainrc ai enc Sone c 4gyb f k+ eg1iare feei, 'fin er Areahal7,�bk �outai a fa n�otioa xc ve ofsp v: iveatock, p4�i`i Ty ar goatakalia ke'€fico yper five i6r�Y o�eh`liveu l m o Oecomma publfe 5leanse MY ;.�. p 41T7E t s' nccae17 tiglir��r�eettaia Pi[say.�'7 ``a is + out e�'FIaliea f.�:VTfie€asmar of a`ra ehaIlccmp e a sash as a ed an +Vi'-ak•.,CP..ra_Clcta_ed� ann:Yd�vBJea.g:edt ►YW�1C�oan1wiedbthrelfnilr�evaeV l'ItF t`$ 0111 s '1e1presbeefma oer.a. kMgo�+rctla.� Loj�e eeuage Fena'�nta�dinea t '13.0.1` , y �Ch • drAYl ar, Pr�•ieaor idCneden maido atJie:A Yj_ c x ;nrccncemea ai'gbe o „ '1 eey� '' f v tkl, Inv ck •r der n•. a�F`e 7 i• d' eov: an n 1 a to-�' a i o aaa othe y ais"t { ';�' eperson p tl tk'ty% e- n Via"==recov rrkc uco�tovena . ca d a - ocney coo erg. - hM ili aP €heso narii"9. I !so - ,_41i9A, 414 P i4g4Uri. ha, ;ZIG NIILDRED ALEDDHP. RECOHOti51 • ,;21v GARFIELD COUNTY, COLORADO * • • at • ii().0,0,,,A.,,Lp ,m APR NARHAHTY 5.t.pite bornmentary Fro S... f,ter..•,,,,o4.- .1..:,-, 444!.]:.: RICHARD K. STEPHENSON, tor tht coneideration of me Hundred „.... .N."':. ,. .i. • _Dollars and other good and valuable consideration, ii hand paid, ,..4:1. '..,.V.W 10 .., ' . hereby soils and oonveyv to SHARON R. WITPHFWMN, whone sddrems ...0-. Dos 471, Glenwood Springs, colorado, 01602, an undivided one-half 'fAntereet in the following real property in the County of Garfield, '., State Of Colorado, to witi DEF.D NligisSANnly, Section 9, Township 7 fl„ Pangs 09 Neatof the Gth P.M. containing 10 acres, more or 1o,, together with a nOnaValuvive covenant for access, road and utility purpooea, said easement being 60 feet in width, that is, JO feet either aide of the center line of the existing road, with all its appurtenances and warrants H. tie ths came, subject tol Easements, restrictione, protectiv* covenants, and any prior mineral coservations of record; LP rat deed or trust from Richard K. Dtephenvon and Sharon R. :.- Stephenson to the Public Trustee of Cart leld County securing a ':.promismory note in f•vor or United Hort-loge Company, a Colorado corporation, in the original Amnunt of $70,00(.u0, said promlaeory and deed of trust dated August 2), i976. The Grantee, by ,' : filaCcepting and recording this warranty Limo.), assumes and agrees to pay .,0,.•maid promissory note and d*ed of trust. 'P.,-::..- • ...'''' SIGNED this _Lel day of /1.02er.y. , 1904. if . . •, , , 31/ /i il -I -." / ' / (-; O41X.V'' i Ricard -i(. Ste dlermon 0 • STATE OF COLORADa :..:COLINTY OF GARFIELD 4 7 • .'. • • ) ss. The foregoing Warranty Deed was acknowledgod before m.this ,...day of 1 190Im by Richard K. Stephenson, •I! Witness hand and official seal. TO677—FUETic Address My commiselon expiree 141.01.5,— ' . . , Co. 8W2j P C: e: s T • totefi1eOrd.,a' hu?t t�, r.,vad r.eebi�orn.at" ed aWee-Gitorrt 17, on te` R`r�gr{IGIrgA i u611�-C6 sj.e ,• r rpp rw eat ;oiti�er.�std t t e erg .o'tao� h1s a e,S'. the "sa�tl;•tTr!'p 4< Y ti 4 !re EI E L • '�'a , .,,np el�' a[�ng, I�i�reve'. • t!r i• fiatq e,}iRlah a gte al e a� . uHAA 0 m0. L . *i: par(eiaf i l iil% !A ' te1' Tis r i g enf , age •f ata pa fYr "t 'i f3 ' a tg .male iitliilial ante r} Qa[n, ei and on o • li1}idJ i an , Ext P* to he`r 1 es 1 bse en 3' t itAt• arae � rul ra rk�0gtii lea tX r eget ie winwinv deaj , : sr �.hee"deiy'hn 7g�. Y"a e }+is . ;t re otie: alnr er. ' n . • m emaaha gas •t:e,r'1p n ee a a�i 7 y [ � i�tmidee *ova cariYa e'gi 401, 0 O. 1 e +)neetrato $ ess me O t eacea; • �tr„� �yr°h`n. i� ��p"70 e. oi,k c a yr e•ge .befura -• i ti: toR �IiJtF. ; k h L }; !j r ti x i{�{v F51 4 �'i iFr-7�y F 3+ 7 s i; �,,t t /e r f b..G y• A:T,4,a k } LCAi Yr Vasi pyL* y1�1 : ,Fri - t J't ..�k[. fin. 1: , F'y; �y4'�c"'' ��" . X,71 -F ,,1 Y/Ifl4�ii ,ii� iF• ' s'4.7`'�,- rrhi aJ x r ,r�� Ls 5 rig 48,E #„„,,.,,..,.•44." riir Y ! u e s r,1 ? t 7 r r�,l: 1 t�J4k1Y i 1, f L..J -•J }i? rAYJJ i AI 711: `l iti i r4, { "7� ;::.t}'. ' t: - t,4 t - 744fLk,. , u yi4�i'koro? Ari• { hF^RI�a3!v ``;,� Ifr:irr*i�iL..�'1 e l iaj f' jr�11�ROTEC7'IVBe1 M[ S^Atfi,I EE11i iESTalclioHS ''-- t�nfhi.S T L =1 # }yr µ i i s0 get ,iR ,#4L• _{V d y,�-'�r� 1 - ii - -t '>♦"^ r[fi ] j " s' {i�` lJi. w' r.F .�'IS . jY,'�N�"r�s + if •;:66.. - ••r ` i k n 4 1 n ., • 3'f” 1. 4# J�a� �' pp #, IL � Jb'�G We i L J � r iir . J 1F 1 - y[[ ittn 1"7 'qi , li r , �/ i''' , a-1 � '. I 1• �— �I.f , F- 'S i }' �'• T��{ � S Cji tf��l " iJr4r il42 w,-� rn1.�{' IN r•yt7.4.4 ` 4 d snE a d � N F, C, 4 *Frrf�Z'11^rk� tk ,J� 1 a� air• ,_1e. t Yj' 1;-i4'.1 ;� ° �]-kip['h r�4i{}rd 1 I" ,fir �1��19 '� Dwl h "r ... . Jai 4 Reen divie an o racti.of land+may be"'reuu div der ntHma tract r�,rt 1 rl��+oaf andr a.�, , '..., 1 k! .f 4 e{ rt - , <-, - .e _ s �.4cr., r•,• f kev1 ,t'f';', tracE`#vf.1an tma a'4u ad f r,1a�n ose otherftha.*i� � �'� x ti b:+ Hor y'� y p rp milt' 1 3 `4 1 -'� , ,4 ri ,,..,J.,,:..Imo::: , y .rs eaidenE alj uses ,� tk�'t ;f< pi l.k!i 'N oymobi1erhomee, nr trollo a�ehall'e` dantiany ny man er an .ieaid •tYAC B16df" an a all 'q, Lre �� r I�rr i n i {vS J�'+ ryYv 4,, k t t } i Virti i i'L eRri,y1,, {• rJ is i' Jl`ti4 ; Any�reaideaceteni's£ructed Oman jec . roperty.rsse a�'.be atf ea 20ii b f- S -W L1 ff Tf4 (1' tT W f ,+ shunts feet i.n aien:y41Are' J.tiali�f�e" vandred' on' he f, i 0 bflonx' of the '� 7 �i - 4Y4 � ^ir i. - Lf�tiT: t Y' �.. �1 YM�J.b4' is•Y - 1e�trautUIde fo nda ian on, uBiye' of tpD sheat `gdrB ett and set. , Ori :'r' �- 4 ! ,J ; 9t r.>i� h ..y � r J + �F r-• ��'? � g rFkv .rrp � �`t 51y tti'+�, �-• iJ 4Ho ivaa0oCk, pnutE �jnr;�go1a0ihdf ltriSkepE�' aEheY t a nne:xhoreeVor ,, L�;�, ")."''' WV .4�U - J�h,4f v1r '4 h h LJ 'S l' LN Y L 1� Yr- ,r't.J' ; Gy . {caw •p,„ five Ere. Any nuc_Alive°toef, J mann be ke and taints �ned�,eo 47 � � ` • { •. * ,,�,,,,,, n.0 .. w.•. 1 Lr W 1 R w.r n P 4r 1 "a'b sfo ;tof.becama r. ubli'cinui nce`. Any ro' erly ownari ' epingdoge-`ue 3<ly4e �1 35 r+'� fi�r J.• avar; e:n t a• wr - "� � -1-�. ['tl.t ;' � pets fau ip.iy. eci a • en or? f iii:tiai by a ieaehuesi 0anieneieeo 6h •" it"'t �,G �: ` r r ..+ J1Y'�,L'�•. e,r.rr. Rt,y e -•�Ir', r r J V L 41 la, L ' (• 6 u 4 er 4r .qJS !t1. r�tmanotdsm,�Fira haut��t��n dreg a ] ►<,� n 4Fi ",� `iia The awner"� of any t t �eha1 cot ie �`'ai a on y . •t xe `� <l 1 '�" `s i V •• :"y,; e. Iw Y �r -..+, a pJ.. r-rrrnu 31L..�r�rK RY, �s fl lyi,l repeed'o •t l wftiiit "one y r f{icem�tencemen of•�ponatt 1(4.0n � ,e {,.; r r~ ♦� �"lit' .ryt.� 1,aa'+•J� n �7 .: J- 1�,!! r r.n��. „•,,r 4�,�1+M ..'!.. �" fZ14.4 yiG�h 11 'T i orf g..1 gide` ing vliag40 Ifa'e p* 0,. Ne 14 cavi iat' 4Vii6r��►lga p` ati16 ' c4Y r� sx•r .L x� r.r. n.: ., K= carr•a « A� "4 'di.•Van : 3ioiinRituid vegcteiie`ss'a1a2l be• remo a itniy_ o iikUit`ene ,nedOiii rF 4 , 14' - �w. wr, t� sow. J5. # L�. je +M v4a4 v r s t .,+ 1� r C ftocosrts�gt�r�c d+rel3ngeil=fvesraya; dewa1liarnees►agBtYsandui'lty,{r {,i faCy ].iLle�vis ',.'i l` h- i i:-.�jr +k 'u :, 35'' iitt S ag - Theeeirovennnte an • e tr t moor n'I, an a ;'4.='W �r► ,�' P �� , rn r• Jam, ;��f' ,' v� k+ , r�, 'yin- ng an n ,' er iee nnd' i, J { , t A ul' til er" l l'c�inimin u ar'�.Cel r"Ji�nt l T'nii ryri it Ij` A"t th`ab; me a 't`d co enen� 1�r�iS nom! .::" .L Y ,+li f +d r L+N 'i ,o Y - 1 1 JL ,. k i5 �4 i . tl a.ficaisy xtended„gi'or,,, eucceE.k.. t�' - ear, perms enr bthetw ae ; ��} `� �,}} f�•,-t'+ 54 #•� ♦M ,1 A Y Rv h. - b' ; , .�a,11 •y ig , '. 1- i cban"ged by-'vate to the ehenimajorierta trBc�'owner ttiG•,�J �„t ,,,'Fas, ti 't`' ; {,: I9-. _ { i fiG2 :Ito', ON. ?{ �•#, p' ii fi FEZ ny r e oun a • der nn. i. ng - or em,Ae o o ata oil it i3 t ,Qw 3 t'#.,4 •x x +.R .r asyy >wm• ytil >' � em t' t�? Jar ;` an 44,`Lthe .Mertde s exein dt' `E "sb8lA � �?7 i• Ig': v �R �» C� ' w•,.,eawa�,r.1!. # .eaY • s to , rsE'�� •] ew£u ' ar. ilf ern .ng dt l twnorg'�bi ' �' ►yatfiar perann tr perOan 4.F k 4l '�. , ]' f An q,•-[eJLy�tYuw +,} J' S9r�, G ,040,4 I.i 4 r 7 tiie'Veb�ffe a '84 xneea to nny au i IFIg ar egigh ty, en t atrai and' a ni hcViroliatii'io olienent end £ are'eo a k1 k n.r LY +a l` r .��..�. ...wr. w e phi fam lea�,fo ueirOria"pt3one an��zi ivar ailffiiti i ,htt9.. r e fe s riecesa rytto enfo ce,t aApr'o" .iosu ` 4f dies covenantp); }tt� t.. '.�. ,7,1n `'' t It�i,91f[L}1ti/¢y� �:44.1t: .:1'!' 5 � ' .,'1 r. .i''' •i -�h r Ef "'1 '1 r°. �`. i} ',L 1 _k X 17, r.. �T 6 �zr,�, L �� '40,1, }y • ;r iti " -S ,,, - D�r} r'F-.y��{� `%` a " i�"fir i� '' . 1,�} _',y A.' , baa i i J �P r rY," "i'I r r rie a 14 lbfi7. 1 ,7i if ' '' 7 4' ' ' �` x'�.,rt. !: iS..'S 1� q� * s r p 'r�� , i i S r k'iitl'r ,�y N9. 1;, fi +f ft 1-,,t,, ,! yx ti k' :' r Et t' s 4�L. JJyy 4 r tirf y z p r fi•}'; r r, �• r , ''''''' i . r4t, '�A r ,aX Vii• _r EA. ::fi `r .'7�1f .. 5N i,'[.h- .IFr 5'FF.'!. {j vis. ' !.. i '� `,�i • _ • V .. - 7;" • ...•••-•-"-) __,.... ...,.••• , i....."' ..... c ..." „„7.-#...r.•••er..,,..-;_.., _.=_-,_ • ......-:_r„...—..... z• -..,—....-...,.......,..-, 7.1=+4941....4•".., '” . -44 ..-• .—....... 0 .. • zi j.„ • 1 ...., 1 .4 4. 1 _...---- • . ..1 i — EZ," LI -VI • ..,;,:: /•• 1 ,: 14 • . .:-. ( ..-----/- .n a G 1,4 •€ (+I( • •IA if) • 1 hi Ln -14.' - 11 I • :1 : ••"" - •7•••i • , j . t XVI? f C••4 • - • r .014 . S . 14 '11 • ••, .••• r". • 4. iy) •••- , • 4.1 \ \ f ID • • / / 4,- . •• .. '....' ..§-. • • •. -.. IN -•..••• ••••' •••• • - ..... .., • ri< ... .......' , / - . „.. - /'.. --'"-- • ----- -,. \ ; r•••=:43 EXHIBIT 8 j r RESOLUTICN TO SB - 35 1SoaJL 7si .Z.'/ -• -- 3/7.?/87 Whereas, Harry E. Williams has petitioned the Board of County Corninissioners of C,arfield 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 4 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 NW q, Section 9, Township 7 South,'- Range outh,=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 - Co:rmissioners 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 lccation of septic tanks will be permitted by the Colorado Depa'rtrnent of Health, 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) (1963!as amended). 77i/5 .p exQna-fhcr ("4 �L,;j,Y'avt+ec(� L on S ee+•f'rG e'orlc�'•r-ron rlrn-� (A. // [�. vo4yrvercr$) Q014ekICtrit"s o.qr) 0c�r�di1- 0,r�v�Szt ;;ED ill 44.0 ?Q.t./Kt/1 I_. Cow; Irer: . NOW', THEREFORE, upon motion of re 7 /17.14-7-1-/c/ , , seconded by cerf:; 4) (le rt 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 Resolution to SB - 35 P. 2 into three tracts, that is, 1 tract of 20 acres and 2 tracts of 10 acres each, more or less, all as is more fully described in the 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 !y 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 road 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 road is to -be maintained privately. A cope of the ins Crum nts or instrument of.Conveyance, when recorded, shall be filed with this resolution: Dated this' day of • Cd 7) -f , 1975. • THE BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO x4 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF ' GARFIELD COUNTY, COLORADO PETITION FOR EXEMPTIONS Pursuant to C.R.S. 106-2-33 (3) (d) (1953), as amended, the undersigned, Harry E. Williams petitions the Board of County'Commisioners 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 34 of the NW 4 of Section w, Township 7 South, Range B9'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 .f 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 prpperty.would be sold until a water well permit was issued, a well • drilled and water tested by the appropriate state authorities. 8. 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:, t. 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. 744 Dated at Glenwood Springs, Colorado, this day of , 1975./% 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 i� A. Numerous wells have been drilled in the area and there appears to be no problem in striking water at a,reasonable depth. 1 8. 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 A. Tiic area surrounding petitioners property has from time to time been approved for septic tanL:s 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 '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'on1y to the extent necessary to construct dwellings, driveways, sidewalks and sewage and utility facilities. Can't Additional € Page Two Petition for Exemptions h. These covenants and restrictions are to- run with the land 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-. matica]ly extended for successive 10 year periods unless otherwise • changed by vote of the then majority of tract owners. 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. • 4./ '111111111111111111111111111111111111L0411111 556907 R220 009090.000GA91/65 PEA M SOORf RFISLO COUNT CO TERMINATION OF PROTECTIVE COVENANTS AND DEED RESTRICTIONS WHEREAS, certain protective covenants and deed restrictions were recorded in Book 477 at Page 469 with the Clerk and Recorder of Garfield County. and WHEREAS, the majority of tract owners desire to terminate the protective covenants and deed restrictions, al? as allowed for pursuant to that certain document above referenced, more specificall;. Book 477 at Page 469, subparagraph (h). NOW, THEREFORE, notice is hereby given by a majority of the tract owners that the protective covenants and deed restrictions are terminated by virtue of the majority of the tract owners determining that the covenants and restrictions set forth under the protective covenants and deed restrictions recorded in Book 477 at Page 469, herein above referenced, should be fully terminated. h is the intention of the undersigned that the protective covenants and deed restrictions above mentioned terminate and that there be no automatic extension as otherwise provided for under the protective covenants and deed restrictions. The protective covenants and deed restrictions are attached hereto and incorporated herein as Exhibit A. A property description is attached as Exhibit B. DATED:I .0 17jF1q STATE OF COLORADO ) ss. COUNTY OF Ke eth J. Gr.e e 0479 CR. 12 Glenwood Springs, CO 81601 Subscribed and sworn to before me this day of December, 1999 by Kenneth J.Greene. • Witness my hand and offici: 1 seal. ••••1c)Y commission expires: S 1-71 20D G L C.; �rnrrrnir�r;��r Notary Public III I 111111111111111111111111111II 111111111alll II II II II 556907 12/20/1999 10:00A B1165 P647 M ALSOORF 2 of 4 R 20.00 D 0.00 GARFIELD COUNTY CO DATED: la a 6 STATE OF COLORADO ) ss. COUNTY OF GARFIELD MAHAN PROPERTIES 648 C.R. 126 Glenwood Springs, CO 81601 if Subsc ibedl and sworn to before me this � day of December, 1999 by ,y, es r Tr) 114.Jr.. I Itllll l#lil 356907 12/21t/1999 Illl l y 111110A B1155 1264o 111i1I4IlhI 11L11111111! 3 of 4 R 20.00 4 0.00 GARFIELD COUNTY 00 EXHIBI A PRo:, CI TE, CGYa'. N S A..'0 DEED R S IC;IOhs 6u�K4, 7 rAr-469 a: Roaubdivisten. No tract of land nay ba raeubdivided into smaller tracts o£ land. b. No tract' o: land may be t:.sed for any purpose other than eingla family residential uses. o. No =bile hamas XC trailers shall be used at any tine in any manner on said tracts of land. d. Any residence constructed on subject property shall be at least 1200 square feat in area. Area shall be measured on the first floor of the outside foundation, exclusive of porches, garages and car ports. ' a. NO livestock, poultry or gcar.e shall be kept, ocher then.two hoc:a or cow .per five acres. Any s.:th livestock must be kept and maintained so as not to become a p;.b1c nuisance, Any property ovner keeping dogs as pare must accuxely pet 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 to plete construction of any struc_ure erected on char tract within ons 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 tate extant accessary to construct dwellings, driveways, sidatralke and savage and utility facilities. These covenanta and restrictions are to run with the land and shall be binding upon all parties and all persona Claiming under thea until January 1, 2000. At that time, said covenants shall bc"auto•- matically extended for succeesie 10 year periods ualaaa otharvise changed by vote of the than majority of tract owners. 1. If any tract ovner or parsons acting toy them should violate or attempt to violate any of the covenants herein stated, it shall be lawful for adjoining tract oS+nere or anyathar person or persona thereby affected to prosecute any suit in law or in equity to re— strain and enjoin tba violation of said covenants and to recover damages for suet violations`and.to recover all coats and attorney lass necessary sv a orca the proviaoas of :heseno-vaunts, • 111111111111111111111111111111111 Iill1111I 11111 11111111 556907 R220.009Dg0,0000A 81165 P649 8 SAORF GARFIELD COUNTY COO EXHI22IT 3 PROPL•RT'! DESCRIPDION ORDER NO: 91019018 A Parcel of land situated in the S1I2E1/2SW1/4N&1/4, also in the W1/2N1/2E1/2NW1/4S31/4 Section 9, Township 7 south, Range 89 Wesc of the Sixth Principal Meridian, said parcel being more particularly described as follows: Beginnsng at the Northwest Corner of said S1/251/2SW1/4NE1/4 Section 9, a rebar and cap L.S. 112083; thence 3. 89 degrees 42'37' E. along the northerly line of said Sl/2E1/25W1/4NE1/4 Section 9, 197.89 feet to a point on the easterly right of way of County Road No. 126; thence alcng said County Road right of way the fallowing seven (7) courses and distances: - 1.) 123.96 feet along the arc of a curve to the right having a radius of 394.32 feet, a delta of 18 degrees 00.42', the chord of which -bears S. 00 degrees 55'36" W. 123.45 feet; - 2.1 thence s. 09 degrees 55'57" W. 35.15 feet; 3.) thence 101.85 feet along the arc of a curve to the left having a radius of 50.26 feet, a delta of 116 degrees 06'54", the chorc of which bears 3. 48 degrees 07'30" E. 85.30 feet; 4.) thence N. 73 degrees 49'03" E. 182.40 feet; 5.) thence 78.66 feet along the arc of a curve to the left having a radius of 113.92 feet, a delta of 39 degrees 33'33", the chord of which hears N. 54 degrees 02'27" S. 77.10 feet; 6.) thence N. 34 degrees 15'31' E. 84.22 feet; 7.) thence 67.32 feet along the arc of a curve to the right having a radius_ of 1,79.45 feet, a delta of 21 ,degrees 29'45",- the chbrd of Which bears S. 45 degrees 00'23" S. 66.93 feet to a point an the northerly line of said S1/221/28W1/4NE1/4 Section 9; thence along said northerly line S. 89 degrees 42'37" e. 68.99 feet to the Northeast Cornet- atsaid S1/2_I/2SW1/450I/4 Section 9; thence S. 00 degrees 44'59' E. along the easterly line of said 51/261/2SW1/4NR1/4 Section 9, 653.98 feet; thence N. 89 degrees 39'06' W. 326.53 feet to ,a point an the westerly line of the E2/251 /2S1/2SW1/4SE1/4 of said Section 9; thence S. 00 degrees 49'14" E. 70.00 feet to a point on the easterly line of the W1/2N1/2E1/2.W1/4881/4 of said Section 9; thence N. 89 degrees 39'06" N. 326.44 feet to the westerly Iine of said W1/2N1/2EI/24W1/4SE1/4 Section 9; thence N. 00 degrees 53'29' W. along said westerly line 35.00 feet to the Southwest Corner of sand 51/281/25W1/4N8114 section 9; thence N. 00 degrees 53'29" W. along the westerly line of said S1/2E1/2SW1/4NE1/4 Section 9, 690.36 feet to the point of beginning. AIM 11111 1111111 111111110 X1'111 IIIII 111 1111111111111 695677 04/07/2006 12:50P 81787 P828 M RLSDORF 1 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO TERMINATION OF PROTECTIVE COVENANTS AND DEED RESTRICTIONS RECEIVED APR 25 2066 LEAVENWORM&KAts. WHEREAS, on March 17, 1975, Resolution to SB -35 was approved by the Garfield County Board of County Commissioners which granted Ben E. Carnes an exemption under C.R.S. § 106-2-33(d) (1963 as amended) for the division of a forty (40) acre tract into two (2) tracts of ten (10) acres each and one tract of twenty (20) acres; and WHEREAS, on August 8, 1975, Mr. and Mrs. Carnes sold a ten (10) acre tract to Richard ,and Sharon Stephenson with certain protective covenants and deed restricted as recorded in Book 477 at Page 467 (hereinafter referred to as the "Stephenson Parcel"); and WHEREAS, on August 8, 1975, Mr. and Mrs. Carnes sold a ten (10) acre tract to Tom Collinson with certain protective covenants and deed restrictions as recorded in Book 477 at Page 470 (hereinafter referred to as the "Collinson Parcel"); and WHEREAS, on March 4, 1976, Mr. and Mrs. Carnes sold a twenty (20) acre tract to Jimmy and Letha Sue Sills with certain protective covenants and deed restrictions as recorded in Book 483 at Page 421 (hereinafter referred to as the "Sills Parcel"); and WHEREAS, Kenneth J. Greene and Christine N. Greene are the current owners of the Collinson Parcel; and WHEREAS, Mahan Properties is the current owner of the Sills Parcel; and WHEREAS, Kenneth J. Greene (as the sole owner of the Collinson Parcel at the time) and Mahan Properties, as the majority of tract owners, desired to terminate the protective covenants and deed restrictions on all three tracts of land, as allowed for pursuant to paragraph (h) of said covenants; and WHEREAS, on December 17, 1999, Mr. Greene and Mahan Properties executed a Termination of Protective Covenants and Deed Restrictions recorded in Book 1165 at Page 646 as Reception No. 556907 (hereinafter referred to as the "Termination Agreement"); and WHEREAS, the Termination Agreement included a clerical error such that only one tract of land was included in the termination of protective covenants and deed restrictions rather than all three tracts of land; and WHEREAS, Mr. Greene and Mahan Properties intended to include all three tracts of land Page 1 of 3 EXHIBIT j0 11III11111111111111111111L.11111 Illil Ill IIIA 11111111 695677 04/07/2006 12:50P @1787 P829 M ALSDORF 2 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO described herein in the Termination Agreement; and WHEREAS, the parties, as majority of the tract owners, desire to terminate the protective covenants and deed restrictions on the Stephenson Parcel, the Sills Parcel and the Collinson Parcel; and NOW THEREFORE, notice is hereby given by a majority of the tract owners that the protective covenants and deed restrictions as initially recorded in Book 477 at Page 469, in Book 477 at Page 472, and in Book 483 at Page 423 are hereby terminated. It is the intention of the undersigned that the protective covenants and deed restrictions initially recorded in Book 477 at Page 469, in Book 477 at Page 472, and in Book 483 at Page 423 terminate and that there be no automatic extension as otherwise provided for under said protective covenants and deed restrictions. The protective covenants and deed restrictions are attached hereto and incorporated herein as Exhibit A. Property descriptions for the three tracts of land are attached hereto and incorporated herein as Exhibit 13. DATED: " 7-047 6vvs4-A Kenneth J. Gree e 65 Favre Lane El Jebel, CO 81623 Christine N. Greene 65 Favre Lane • El Jebel, CO 81623 STATE OF COLORADO ) ) ss. COUNTY OF The foregoing instrument was acknowledged before me this "1 day of April, 2006, by Kenneth J. Greene and Christine N. Greene. WITNESS my hand and official s al. My Commission expires: 109/?Cor/ Page 2 of 3 i 111111 11111 1111111 111 i, 111111 11111 III nui 1111 101 695677 04/07/2006 12:50P 81787 P630 M RLSDORF 3 of 5 R 26.00 D 0,00 GARFIELD COUNTY CO STATE OF COLORADO ) ss. COUNTY OF GARFIELD Mahan Properties P.O. Box 3574 South Padre Island, TX 78597 The foregoing instrument was acknowledged before me this 7th day of April, 2006, by James P. Mahon, Jr. WITNESS my hand and official seal. My Commission expires: 10/31/2007 Notary Public Page 3 of 3 ICCAI&,lr l,‘/1�j'`/• NOTA . ..�--- 1 1.17 . '=LIC.' f�1fUlllllillItIl� 6 1111111111111111111 „ X11111111111111111111111111111111 695677 04/07/2006 12:50P 81787 P831 M ALSDORF 4 of 5 R 26.00 D 0,00 GARFIELD COUNTY CO • . -- Exhibit A .54 ti • tr. It. 4+1 t,. FS' it st { k7 . yr 4,3 s:a X141 •� i AN AND DUO R_3:i:zC7:itis tam 483 rAc,F422 1. Resubdivision. No tract of lana may be rosubdividod into smaller tracts of land. - 2. • No tract of land ma.: ::Jr.:: for any purpose other than single-family roaid.cn:ill usss. • 3. NO mobil.* hones or tr:.ila..:._: bo used a;; any time in any manner on said t:. :.i a.�l�.:::. 4. Any residunCO coautru:Led On :,rJM1110:: pro.loc:y shall be at least 1,200 square fast ::3 AT4o. .lr.r:3 13:::.:1. bu mest.:td 07 the first ;lob. of t:::3 ;,uz&ide ::.: ::odea, exalt:siva of porches, raragos an4 Car i..::C. S. No livestock, poultry or goat:: Jhall:.., i:::,T.t., otter than ¢„a horse or cow par five. acres. arch liv,Intoe% Gust bo kept and saaintair.ad so as no: .o S444...d w publ r.: ::L•iuL:ncir. Any property owner koc,?i.:; tons ;,d ;:,:r-r3acuroly pan or restrain by a leash tai. sai:.s..::o that it may not roam throughout tlse area as will. d. The owner of any tract :. all cr.r•.:a:a construction of ars struotura oraetac: as that __act wi.bhia one year o: co:i:.anco- .:,Ant O'f c0:.s tructton. 7. Zxistinr• foliage r::..1: s1 _ s,; 4r-41 :OZ :.G s:c,.rrl;, ;.0 possible. Foliare tn..: ch.11. b;l removed only to the axzoat necesssa_y... c; .. M:.1i:._ir jr, d.ivewi.ya, side- walks and sewage and •' '' - •y`._, $. :'hou° covenants ala rr.. :t_ .G:... are to run wiCl. :ha laoc; and shall ba bi ndial '. lar. a+1 persona ciain; i- uadar Clem until pan t% y,.+. :.:G. A: ..:,t tlue, znU. covenLn n shall be aL toaitici.ii,' :,x=u ndc :: +.5: successive toa—yaer unless otherwise cAa.:. .4 by va.::: G. "lila than majority 0i Bract owners. S. x, any A=c:: awn:.: a'. :.O. ...:::g :Or thw:.r 0r attrnpt to violate ...'.Y G! L':.:r soveaL nr;,w Lorain GCSC::u, shall ba lawlui !or eel;eit . _ ...:.C: to4.erG or wf:y otae: Or parsons t::d_.ihl. L:':4.;:ar:. :o '..O::uanza ...y r:u: ti. 1L..r G: !n or,::ity co rartr:. an:: •,:.:a::. . v:r,;,:..::cr, o: cafe �novc,:: i..•... and Lo :ocovar d:.: act.. La to Zki; CO;:D Milts 41:7:0:4 %;y .i.rs. .. ”' .O 4:.:0:C0 Ciao :s:ovLUGn..; o! • those covenants:. 1111111111111111111111161111111111111111111111111111 695677 04/07/2006 12:50P 81787 P832 M ALSDORF 5 of 5 R 26.00 D 0.00 GARFIELD COUNTY CO EXHIBIT 13 Property Descriptions for Three Tracts of Land Stephenson Parcel N1/2E1/2SW1/4NE1/4 of Section 9, Township 7 South, Range 89 West of the 6th P.M. in the County of Garfield, State of Colorado also known as 4777 117 County Road, Glenwood Springs, Colorado 81601. Collinson Parcel S1/2EV2SW1/4NE1/4 of Section 9, Township 7 South, Range 89 West of the 6th P.M. in the County of Garfield, State of Colorado. Sills Parcel W1/2SW1/4NEI/4 of Section 9, Township 7 South, Range 89 West of the 6th P.M. in the County of Garfield, State of Colorado also known as 4779 117 County Road, Glenwood Springs, Colorado 81601. Kathleen S. Harris 0987 Black Diamond Mine Road Glenwood Springs, Colorado 81601 May 1, 2006 Members of the Planning and Zoning Committee Board of County Commissioners Re: Mahan Subdivision As a 30 year property owner on the Black Diamond Mine Road it is imperative that I express my opposition to James Mahan's attempt to subdivide his land. My parcel directly adjoins the Mahan property to the west. When I purchased my land it was one of 13 parcels divided from a 260 acre tract. The County Commissioners approved the division with explicit identical deed restrictions prohibiting future subdivision, attached to each parcel, including Mr. Mahan's. Mr. Mahan's property of 20 acres was divided from a 40 acre tract into his 20 acres and two 10 acre parcels. This is the identical division of the adjoining 40 acre tract on which I reside. There is currently a 20 acre parcel and two 10 acre parcels, one of which I own. Over the course of living on this property I have learned, firsthand, that ours is a fragile mountainside. Water has proven to be cyclical and scarce at best. The well on the adjoining 10 acre property directly to Mahan's east, has gone dry. The homeowner, Sharon Stephenson, now has water delivered to her home. Our dirt road continues to be dangerous, steep, and narrow. Furthermore, I have learned that the Mahan's are neighbors who live comfortably in non-compliance with county regulations. They installed a sewage disposal system without certification. They display signage on their barn that was deemed impermissible. They have unsightly debris around their dwellings. Their dogs run at large. Previous warnings by the County Commissioners have been ignored. Perhaps, most disturbing is that the Mahan's inhabit four dwellings on their property, continuing deceitfully to acknowledge only two. Their main house, barn (erroneously claimed as an art studio/gym, when they are in fact two apartments), and the cottage, total four inhabited dwellings. The county has repeatedly reprimanded them for this violation, however, the Mahan's have continued to live this way without regard for the county regulations or their neighbors. -2 - Allowing the Mahan's to subdivide their land would completely disregard the Board of County Commissioners approval of the original tract division on October 20, 1975, explicit upon no re -subdivision. It would also set dangerous precedent to other Black Diamond Mine Road homeowners that subdividing their property is permissible. This could create additional home sites on a mountainside with limited resources, no restrictions, and no infrastructure. The other disturbing message sent with approval is that it doesn't matter if a Garfield County resident complies with county regulations. One can live in non- compliance, for years, and the county will look the other way. Allowing the Mahan's to divide their land invites additional non-compliance issues, based upon their history. Unable to attend tonight's meeting due to my daughter's college graduation, I urge you to deny the Mahan's request for subdivision. I relinquish my three minutes to speak to our representative, Mr. David McConaughy. Thank you for your consideration. Very truly yours, Kathleen Harris "The Reliable Realtors" Memo RECEIVE") _ APR 2 6 2006 GARFIELD COUNT Y BUILDING & PLANNINf' To: Garfield County Planning and Zoning, Attention Mark Bean CC: Commissioner John Martin, Commissioner Traci Haupt , Commissioner Larry McCowan From: Patrick M. Fitzgerald, GRI Broker & Owner Date: 4/26/2006 Re: Black Diamond Road Property It has come to my attention that once again an attempt is being made to subdivide the James Mahan property on the Black Diamond Road. As you may recall, I was a partner and the agent for the group that developed this property in 1974-75. We placed deed restrictions prohibiting further re -subdivision on the property that was developed for the following reasons: 1. The county commissioners wanted some assurance that the population density would remain reasonably low and that impacts on the Black diamond road would be minimal. 2. We wanted to assure everyone that bought from us (and I was a neighboring property also) that a rural quality life style was maintained 3. We knew that abundant wildlife existed in the area and we wanted to preserve that enjoyable aspect of the property. Nothing has changed since we subdivided to merit changing the deed restrictions. All that have bought up there have known of this restriction and all benefit from the restrictions. The only thing that has changed is one individuals desire to make a profit. I respectfully request that this application be denied. Thanks for your consideration. Patrick M. Fitzgerald The Historic New Citizen's Building, 214 Eighth St., STE 209, Glenwood Springs, CO 81601 Phone 970 945 5554 Fax 970 945 5552 E mail: pat@glenwoodbrokers.com ATTORNEYS DAN KERST dan@dankerstpc.com dankerstpc.com KELLY CAVE kelly@dankerstpc.com DAN KERST, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 823 BLAKE AVENUE, SUITE 202 GLENWOOD SPRINGS, COLORADO 81601 TELEPHONE: (970) 945-2447 TELECOPIER: (970) 945-2440 May 8, 2006 Garfield County Planning and Zoning Commission c/o Fred Jarman 108 8`h Street, Suite 401 Glenwood Springs, CO 81601 EXHIBIT � V PARALEGAL ELISABETH GETZEN egetzen@dan kerstpc. eom VIA HAND DELIVERY Re: Mahan Properties Preliminary Plan Application Our File#: 12459 Dear Mr. Bean: I am writing on behalf of our client, Mahan Properties, and their Preliminary Plan Application. This is to clarify an issue regarding the history of protective covenants and deed restrictions encumbering property located in Section 9, Township 7 South, Range 89 West, 6th P.M. in Garfield County, Colorado as depicted on the attached Exhibit A and described in more detail on the attached Exhibit B Warranty Deed (hereinafter referred to as the "Davies Property"). After a thorough review ofthe records in the Clerk and Recorder's office, I drafted the attached chain of title for the Davies Property from 1966 to present (see Exhibit C). Also included on Exhibit C is description of applicable covenants encumbering the Davies Property. I. Initial Split of the Davies Property into Seven Parcels. The Davies Property was owned by Charles Davies, William H. Davies, Llewelyn Davies, Adeline Cleary and Alice Kummer. In 1966, the Davies Property was split into seven (7) parcels. Ben E. Carnes purchased one of the parcels (the "Carnes Parcel") and Harry E. Williams purchased the adjoining parcel to the west of Carnes (the "Williams Parcel") (see attached Exhibit D). The four other purchasers were William Nelson (who purchased two lots), Burr Bolen, William Rump, and Henry Faussone. Ben Carnes Created Three New Parcels From the Carnes Parcel. On March 17, 1975, the Garfield County Board of County Commissioners (the "Board) approved a Resolution which allowed Mr. Carnes to create three new parcels from the Carnes Parcel (see attached Exhibit E which includes the Resolution, the Petition for Exemption and a copy of the certified minutes from the Board). Carnes's Petition for Exemption did include a protective covenant provision requiring deed restrictions against further subdivision for each of the three (3) parcels. However, the Board's Resolution did not require strict adherence to the no further subdivision provision. Carnes sold the three parcels with deed restrictions (attached hereto as nj].4Prdc .onstkI 1 t! .,LTR P 5-06 mx1 May 8, 2006 Page 2 Exhibit F). The deed restrictions allowed for the removal of the covenants upon a vote of the majority of landowners (see paragraph 8 of Exhibit F). III. Harry Williams Created Three New Parcels From the Williams Parcel Seven Months After Ben Carnes Sudivided the Carnes Parcel. Seven (7) months after Carnes received approval to create three (3) new parcels, Harry E. Williams received approval from the Board to create three (3) new parcels from the Williams Parcel. The petition for exemption was identical to the submission by Mr. Carnes, but the Board's Resolution for Mr. Williams included a handwritten condition that stated "This exemption is granted on the specific condition that all agreements, conditions, and conditions set forth in the Petition be complied with." (See attached Exhibit G). Williams subdivided his parcel into three (3) parcels with deed restrictions identical to the deed restrictions the Carnes Parcel on two (2) of the three (3) parcels. One parcel was sold to Robert Stowe without deed restrictions prohibiting further subdivision (see attached Exhibit J). IV. There is No Evidence That the Carnes Parcel and the Williams Parcel Are Connected. The subdivision of the Williams Parcel did not reference or acknowledge the subdivision of the Carnes Parcel or create any connection between the two subdivisions. AIthough Williams's and Carnes's restrictive covenants are identical, there is no other evidence connecting these two subdivisions. The subdivisions were not created at the same time, and the deed restrictions do not connect the two subdivisions. V. The Other Five Parcels from the Davies Property Do Not Restrict Subdivision. The other five (5) parcels of the Davies Property were sold in accordance with the chain of title attached as Exhibit C. None of the other parcels have protective covenants or deed restrictions prohibiting further subdivision (see attached Exhibit H). Burr Bolen's parcel, currently owned by James Terry, was sold with a requirement whereby Mr. Terry agreed to not object to applications for five (5) water well permits for residences to be constructed in Section 9 (see attached Exhibit K). This recorded document evidences the fact that future subdivision of the Davies Parcel was contemplated and accepted. Thus, the only parcels from the Davies Property that included deed restrictions were the Carnes Parcel and two (2) of the three (3) parcels created from the Williams Parcel. The deed restrictions on the two (2) parcels on the Williams Parcel are still in effect. The deed restrictions on the Carnes parcel were removed in accordance with Paragraph 8 of the restrictions (see Exhibit F) on April 7, 2006 as recorded in the Garfield County Clerk and Recorder's records as Book 1787, Page 828. 11P.�.I�fik Na.ScbnM.IwfiLTR Y+Z 54)5.wpd May 8, 2006 Page 3 The current ownership of the Davies Property is depicted on the attached map from the Garfield County Assessor (see Exhibit I). Exhibit I also lists which properties have restrictive covenants (see also the chain of title, Exhibit C). VI. The County Does Not Enforce Private Covenants. I understand that it is not common practice for Garfield County to enforce private covenants. The covenants on the Carnes Parcel were private contractual rights enforceable only by the parties affected, the owners of the three new parcels. As described herein, the current owners, including Mahan Properties, decided to terminate these covenants. The Board should not be in the business of enforcing covenants, especially after the property owners legally removed them by a majority vote. VII. Conclusion. In conclusion, the history regarding the Davies Property does not demonstrate an intent to restrict subdivision. Only two (2 ) of the seven (7) parcels in the Davies Property had deed restrictions. These deed restrictions allowed for the removal of the covenants upon a majority vote of the landowners. Mahan Properties and Ken and Christine Greene, as majority landowners of the Carnes Parcel, removed the restrictive covenants encumbering their property. In addition, as evidenced by the Warranty Deed from Burr Bolen to James Terry (Exhibit K), future development was contemplated for the Davies Parcel. Since the encumbrance restricting subdivision on the property owned by Mahan Properties has been removed, and there is no evidence that the Board ever required strict adherence to no further subdivision, the County should allow Mahan Properties to split its 20 acre lot into two lots. Therefore, we respectfully request approval of the Preliminary Plan Application for the Mahan Subdivision. Thank you for your consideration. Yours very truly, KC:nm xc: Mahan Properties David McConaughy, Esq. Carolyn Dahlgren, Esq. Chris Hale, P.E. 116ao1 Vdo ap.g6dKJA.h.n1LTR P 1 Z 5-03.wpd INDEX TO EXHIBITS A. Davies Parcel Ownership Map 9/23/66 to 5/20/74 B. Legal Description of the Davies Parcel from the Warranty Deed dated 9/23/66 C. Chain of Title with Restrictive Covenants Analysis D. Hand -drawn Map of 7 Parcels from Davies Parcel as of 5/20/74 E. County Resolution, Petition for Exemption and Board Minutes for Carnes Exemption F. Former Protective Covenants on Mahan Properties' Land G. County Resolution and Petition for Exemption for Williams Exemption H. Hand -drawn Map of 7 Parcels from Davies Parcel with Current Applicable Covenants L Garfield County Assessor's Map of Current Ownership and Applicable Covenants J. Warranty Deed dated 7/14/86 from Harry Williams to Robert Glenn Stowe, Jr. Without Restrictive Covenants K. Warranty Deed dated 1/10/85 from Burr Bolen to James Terry, Jr. with Reservation for easements for Four (4) single family residences located in the Davies Parcel ('v 1- , • }rl iA u. N 1 �� hl 'P 1r5•4f 1,_. �0 N� T F ",. t 11.'1= r f • ♦ .•4'Y �tf C71. -�i+�� ar i''c} E P i,j £f �'3YI•1'. h + 1 .1 n • �ry • I S Owners EXHIBIT 9/a3 leg +0 sh oby ..,t., ... 11 .r . ..,�..:, xcrnrar,t -- t,..........U'ciuclt.t1[. ....:....... ' � •' L l�i.�.... l•.0-- r.iC? JJ Reception NO: ..J........l..rf....... l.,.l:tE:. ��. r.CLI;:?il......JivemA THIS DEED, h tack this 23rd day of one thousand nine hundred and s ixty- s ix between September DAVID DAVIES, also known as DAVE DAVIES EXHIBIT in the year of our Lord . • • • City of Washington, District of Columbia, of the :�na�ntKat& Mxtgliactmokfltbioadoi of the first part, and WILLIAM 11. 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, Travemun e Scheteligstrasse,/West Germany, of MD ftrcngxst itaal7s51tattIODRX'stoi'4041t, of the second part, 1YITNESSETII, That the said partY li of the first part, for and in cooaideratiou of .the stun of TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION > 5114141 to the said party of the first part in hand paid by the said parties of the second part, the receipt whereof is hereby confessed and aelcnowlodged, ha s remised, released, add, conveyed and Quit -Mahood, and by these presents do es remise, release, sell convey and Quit -Claim unto the said part ies of the not in tenancy in common but in .joint tenancy, second part their heirs and assigns forever,ifcll the right, title, interest, claim and demand which the said partgf 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•irit:. 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 publio or private right of way or easement now existing upon, over or across said lands, or any part thereof. EXCEPTING THEREFROM a tract of landconveyed 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' .11 r. Lots 4 and 6, Section 9, Tp, 7 S., R. 89 W., 6th P. IT., and. 1 that part of the NW 1/4 SE 1/4, Sec. 9, Tp. 7 S., R. 89 W., :i• 6th P. M., lying South and Southeast of a line extended from a point 100 feet South of the Northeast corner of said ,s 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, II containing 27.38 acres, more or less. .j i 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: Rook 379 Page 245 • q •Cast half of the Southwest Quarter (l's 1/2 SW 1/4), Northwest Quarter i �i of the Southwest Quarter (NW 1/4 SW 1/4), Section Five (5); West 'i Ilialf of the Northeast Quarter (W 1/2 NE 1/4), Northeast Quarter of the Northwest Quarter (NE 1/4 NW 1/4), Section Eight '03); Northwest Quarter of the Southeast Quarter (NW 1/4 SE 1/4), Southwest Quarter of the Southeast Quarter (SW 1/4 SE 1/4), Section Eight (8), Town- ship Seven (7) South, Range Eighty-nine (89) West of the 6th Prin- icipal Meridian, containing 320 acres, more or less; t 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 HAVE AND TO ROLD THE 8AIIE, 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 lav or equity, to the only proper use, benefit and behoof of the said parties of the second part, their heirs and assigns, forever, not in tenancy in common but in joint tenancy. IN WITNESS WHEREOF, The said part y of the first part ba s hereunto set his hand and seal the day and year first above written, Signed, Sealed and Delivered in Presence of 4"6c-o AO"�DIYAVx1; 4{1wo �'(Sl;di,) known as DAVE DAVIES (SEAT ) (SEAL) (SEAL) • 1 1 William H. Davies, Llewelyn Davies, Charles Davies Adeline Cleary, and Alice Kummer 260 acres 4 William H. Nelson B 459 P 348 5/20/74 No Covenants George Whipple B510 P961 6/5178 No Covenants Jerome Steinbrecher Mary Steinbrecher B 535 P 671 9/19/79 No Covenants Etgar Meiser Marty Lee Meiser B 762 P 160 8/4'89 No Covenants Richard Chavez Jennifer Chavez B 1345 P 703 4/11/02 No Covenants William. Mahan Sr. Revocable Living Trust B 1101 P 811 11/20/98 No Covenants Jeffrey R. Fitzsimmons Monette Helgeson B 1660 P 658 1/7/04 No Covenants Burr Bolen B 459 P349 5/20/74 No Covenants 4 Edward Pearson Jeannette Pearson B 548 P 727 5/13/80 No Covenants 1 imsomomm Alpine Bank & Trust B704P797 1/15/87 No Covenants William Rump Henry Faussone B459P350 B459P351 5/20/74 5/20/74 No Covenants No Covenants Nit John L. Dunning Dennis Murray B720P930 13787P517 9/14/87 8/15/90 No Covenants No Covenants Arthur Cole Michelle Cole B 750 P 572 3/13/89 No Covenants Nir Patricia Price 7O n47—e rr , Jr. Neal Piper John Price B 663 P 111 Tamara Piper B 761 P891 1/10/85 B 1396 P438 8/28/89 10/11/02 No Covenants No Covenants No Covenants Linda Murray B 1129P894 12/11/9R No Covenai Harry E. Williams B 459 P 352 5/20/74 No Covenants Robert owe, Jr. B 691 P 829 7/19/86 No Covenants Gerald Longbons Renee Longbons B 485 P 238 5/11/76 Covenants, Steven Syzmanski Kathleen Syzmanski B 486 P 194 6/24/76 Covenants Kathleen Harris B669P26 5/1/85 Covenants Dennis Bines B 733 P 595 5/2/88 Covenants Ben Carnes B 459 P 353 5/20/74 No Covenants i Tom Collinson B 477 P 470 8/8/75 Covenants 1 Kenneth Greene B 808 P 805 7/17/91 Covenants KeKneth Greene Christine Greene.,- B 1423 P 807 1/3/2003 Covenants Removed RichardStephenson Sharon Stephenson B 477 P 467 8/8/75 Covenants Sharon Stephenson B 648 P.303. 2/10/84 Covenants Removed Jimmy Sills Letha Sue Sills B483P421 3/4/76 Covenants Mary Christensen B496P41 4/29/77 Covenants Elmer Claycomb Linda Claycomb B 558 P 628 10/24/80 Covenants James &Roberta Mahan Jeffrey Fitzsimmons B 696 P 787; 10/9/86 Covenants Mahan Properties B 817 P 760 11/7/91 Covenants Removed • RESOLUTION TO SU -- 35 h'h::reae, REN E. CARNES I►:,e petJ.tieued the hoar,i ul.' Cuuety (:uniw:lasi.oners of Garfield County, Coloreds for an exeml,taau under C.R.S. 106-2-33 (3). (d) (1963 as amended) for the division of a 40 acre tract into twu erncta of 10 acres each and one tract of 20 acres and more gully described as fellows: Tract 1: t 11 '. Tract 2: X, Tract 3: f1'1nien The `rte of the 8W. of the NE1/4,, Section 9, Range: 09 West of she 6th P.N. The SE1t of the SWI:, of the NI:y. Section 9, Mange S9 West of t-hc 6th Y.M. The WII of. the SI.'14 of the NIL, Section 9, Township Range 89 West of the 6th P.N. Township 7 South, Township 7 South, •1 South, Whereat:, the Petitioners have shown to the sacief:iction of the Board of County Commissioners of Garfield County, Calorado, chat they device said exemption for the purpose of resale into single family resi.dcncial acreage, and Whereas, the Petitioners have de:none:rrated co she satisfaction of the Board that there ie a reasonable -probability of locating domestic water on each of said • tracia and that chert is adequate i.neri:sa and egress to said trncLe, and, that the location of septic tanks will be permitted by the Colorado Department of Health, and thac the requested division is in accordance with the general purposes and. intent of the -subdivision regulations of the State of Colorado and the County of Garfield, and that said division' will actually restrict the dunaity of housing within said area and therefore should be exempted from the definition of aubdiviaion and "subdivided land" as set forth ia C.R.S. 106-2-33 (3) (d) (1963 as emended). • NOW, THEREFORE, upon motion of h2122Arty-ve-0 , seconded by' }�9i�?w'�'srY; and unaniimeusly carried, said tracts of land are here- by exempted from such definition end transfer of said tract nay be made by diviaion Cont P.2 EXHIBIT Resolution to Sli - 35 P.2 into three tracts, Lh;it i.s, 1 troet of 20 acres and 2 tIaCL.a of 10 acres each, more or less, all as ismore fully duscribed iii Ura poLitiun purLiJ.ning hereto, provided,'.however, that this exemption is granted only upon the condition that none of the above parcels of land Iii sold, transferred or conveyed until such time as: 1. Petitioner drills n domes::1r. water well or walla 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 canvc,yenue will contain an enaement 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 sited is not the respo,csi.bility 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 thin�'!" � % day of Z2,22.s(',ii/ 1 .1975. Attest: r��zt12� .THE HOARD OF COUNTY COMMISSIONERS ' OP GARP1I:LI) COUNTY, COLORADO BY: /7.;_W BEFORE T1!E BOARD OF COUNTY L. .LSSIONERS 01.' GARFIELD COUNTY, COLORADO PETITION FOR 1iXEIIPTi NS Pursuant to C.R.S. 106-2-33 (3) (d) (1963), us amended, the undersigned, Ben E. Carnes petitions the Board of County Commissioners of Garfield County, Colorado, to exempt by Resolution 3 parcels, more fully dc::scribed herein, and for the reasons set forth herein, 1. Petitioner is the owner of a Cruet of lend in Garfield County, Colorado, 'described as follows: The SWC of the Mk of Section 9, Township 7 South, Range 89 Weat, of the 6th P.M. containing 40,acres, more or less. 2. Explanation of reasons justifying request: A. Domestic water anpoly. 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 ac 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 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 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 thia 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 convc,yence will he filed with the Petition and the 'Resolution is the exemption is ..meed. •.44. 1 day of/l/fir?f'-(/ , '1975. Dated at Glenwood Springs, Colorado, this r ADDITIONAL FACT:, PETITION FOR EXEMPTIONS 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 Nile County Road. The grade on this road does not exceed 9% mud part of this road is presently being kept open during the winter by adjoining property owners with no difficulty whatsoever. E. Restrictions will be placed on nny sale of property such that this road not be the responsibility of the Couity Commissioners unless property owners bring the road to complete county specifications and then petition to have the road accepted under Garfield County standards. II. AVAILIBILITY OF TELEPHONE AND ELECTRICITY A. Telephone aicd Electric lines are presently into the property as shown en the attached plat. ZIT. DOMESTIC WATER A. Numerous walla have been drilled in the area and there appears to be no ._ problem in striking water nt a rennouul,lu depth. 13. Prior to any sale of the property, petitioner will drill a water well on the property, and upon striking; water, will have the water analysed by the appropriate'state authorities so as to determine its potability. C. Aa part of any conveyance, petitioner will agree to provide water to any tract of land sold. IV. PROVISIONS FOR SEWAGE DISPOSAL. A. The aren,eurrounding pomit:loners property have from time to time been' approved for septic tanks and leach fields. Petitioner will have appro— 'priate perculhtion tests conducted by the county sanitation officer, and -petitioner hereby agrees to convey no land until the county aanitation• officer approves perculation testa and engineering of sewage disposal. ' V. PROTECTIVE COVENANTS Can't 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 pruperty Shull he et least 1200 square feet in area. Area shall, be measured on the first floor of the outside foundation, exclusive of perches, garages and car ports. e. No livestock, poultry or goats obeli he kept, other than one horse or cow per five acres. Airy such livestock munt be kept and nu+intained ao as not to become a public nuisance. Any property owner keeping dogs as pets must securely pen or restrain by a leaeh.aaid animal ao 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 ehall be preserved on each lot as 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 the 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 Successive .1.0 year periods unless otherwise changed by vote of the then majority of tract owners. t. 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 anyothor person or persons theroby affected to prosecute any 3u,Lt in law or in equity to re— strain and enjoin the violation of sold covenants and to recover damages for such violations and to recover a].1.costa and attorney fees necessary to enforce the provisions of these covenants. ;0(.75 Proceedings of the Board of County Commissioners, Garfield County, Colo., MARCH 19 75 Mr. Hill said that he feels that the company is goingto have to come to the aid of the County. Mr. Haxtert said that the application would be referred to the Planning Commission, with the Land Use Commission also involved. Mr. Huff replied that Colony had no objection to the 120 -day application for review by the P Fr Z. Mr. Schmueser said that before we do any zone change, we should have to have several questions answered and felt that the full 120 days would be necessary. Mr. Mattivi moved that the application of Battlement Mesa, Inc., be referred to the P $ Z and that the Planning Commission be given 75 days in which to respond to the application. Flaven Cerise seconded the motion and it passed unanimously. Mr. Pat Fitzgerald appeared before the Board, representing Ben Carnes of Grand Junction, and asked for a SB -35 exemption. Mr. Fitzgerald explained in detail the water and electric situation. The Commissioners reviewed a letter from Larry Schmueser stating that he felt the exemption would not create problems £or the County. Mr. Fitzgerald said that they would guarantee that no parcel would be sold without water well and leach field. It will be divided into one 10 -acre and two 20 -acre parcels. Mr. Hartert said that if the Commissioners granted the exemption, the Resolution would have to stipulate that parcels would not be sold without suitable drinking water and a leach field. Mr. Cerise moved to grant the exemption for Ben Carnes and Mr. Mattivi seconded it. The motion passed unanimously. and that if the exemption is granted, there should be a stipulation that any further subdivision must adherjMr. Ted Shelton appeared before the Board, representing Charles R. (Bob) Coryell, and explained that 65 acres were to be divided between himself, his father and his brother. Also, Jim Rose and Bob Coryell want to trade some land across the river. Larry Schmueser said that Bob Coryell is thinking about subdividing and that if the exemption is granted, there should be a stipulation that any further subdivision must adhere completely to the Garfield County Subdivision Regulations. Mr. Cerise made a motion that the SB -35 exemp- tion be granted. Mr. Mattivi seconded the motion and it passed unanimously. Mr. Ruland Gill of Mountain Fuel appeared before the Commissioners, asking for a Special Use Permit for oil and gas drilling operations. Mr. W.C. Milner said that he has read all material, and that the necessary proof of publication, fee, and all other regulations are in order as far as the county is concerned. Mr. Hartert said that everything seemed to be in order and could now be opened to the public input. Pete Dodo, of Silt, said that he had no objections. Mr. and Mrs. Alessandro Sabbatini had no objections. Mr. Milner said that he had no objections at all. Pete Mattivi moved that the special use permit for Mountain Fuel Supply Co. be granted with the following conditions: 1) that signs stating "WARNING - HEAVY WELL DRILLING EQUIPMENT MOVING NEXT MILES" or something with similar meaning be posted in a manner and with placement as directed by the Commissioner of Road District No. 3 and that prior to commencement of operation these signs meet with the Commissioner of Road District No. 3's approval; and 2) that the shoring up of the wooden 18 -foot bridge be approved by the Commissioner or Road Supervisor of District No. 3 prior to commencement of operation; and 3) that the Company issue to the County in lieu of a Security Performance Bond a copy of their nation- wide exploration bond with Ohio Casualty Comapny under policy No. 554988; and 4) that if the well to be drilled becomes a producing well then the access road will meet Garfield County road specifications, otherwise, the road will be abandoned; and 5) that the entire application and submissions by Mountain Fuel, Inc., be made a part of the special use permit. The motion was seconded by Flaven Cerise and passed unanimously. Mr. Larry Schmueser appeared before the Board and presented an exemption from SB -35 for Charles and Mona Beck. The Becks own 300 acres and their son wants to build a home on 5.14 acres. A letter from Mr. Schmueser stating that it was in compliance with SB -35 exemption procedures. Flaven Cerise moved that the Commissioners adopt the Resolution presented by the Becks for a SB -35 exemption. Mr. Mattivi seconded the motion and it passed unanimously. Mr. Mattivi brought up the subject of the request of the Garfield County Library. Mr. Hill read the request to the Commissioners and'it was said that Mrs. Sample, Acting Librarian, had.previously said that her pri- orities were curtains and a typewriter. Since there is no money in the budget for such expenses, no action was taken. Sheriff Hogue said that in regard to uniforms, he had talked to each man in the department and they wish to repay the county monthly into the General Fund. He said that the complete outfit would cost approxi- mately $240/man. Mr. Hogue said the uniforms were important identification. It was determined that there were no funds available and there was nothing the Board could do about Mr. Hogue's request. Mr. Mattivi made a motion that the Board adopt the following resolution: R E S 0 L U T,I O N WHEREAS, the County Assessor of Garfield County, Colorado, assessed the following described real property to one Dene A. Hangs for the year 1971, to -wit: 1/2 mineral rights on: S1/2 SW1/4, Section 15, N1/2 NW1/4, SEI/4 NW1/4, NE1/4, NE1/4 SW1/4, N1/2 SE1/4 Section 22; W1/2 NWI/4, SE1/4 NW1/4, SW1/4 NE1/4 Section 23, T6S R92W, 64 acres. and the said Dene A. Hangs failed to pay said taxes and one John W. Shepardson purchased Tax Sale Certifi- cate No. 119 for the year 1972 for the above described real property, and has paid the sum' of $68.48 re- presenting the taxes on said property for the year 1972, plus the total amount of $108.92 representing taxes for the years 1972, and 1973; AND WHEREAS, it now appears that all of the above described real property was owned at all times by Ftia if .roA Ctatac erraa,,maer and therefore not suhiect to assessment and taxation by Garfield County, Colo.;l • 1,1,-.0=1114 Co.'_•..:.\::•,C AND D'.:.D 7E3.:\ICTIv?.S souA483 rAsE423 .. Resubdivision. Nu tract of land may ba rasuhdivida4 into smaller tracts of 2. No tract of lane ma: 1:ter... :n, any purpose othor than singla--:anally rasido..__..l t:sas. • 3. No =biro homes or Cr.::lt:_. :.o us, d at any tir,.a in any manner on said :.. 4. Any residenco const:uct..;i:. on ...:,;;C,;.:. ro ar,:y shall b:: at least 1,200 sc�uar.�.fact _:a a:.:, :t« :i .`i.1 :;Cast.«Cd on tha first floor of t:::;: :+:.cnida _..a nc;:..._on, rcxclusiva o:.' porches, garages anf. c.:r ports. 5. No livestock, poultry or goats ka yt, other than Q:•.a horse or cow par fiva acres. such ' _._ '� liVas tUc:.: must he kept and maintained so as :.c.; ;.0 .. r::sl _.. nui ,nc . Any property owner koi,pi . i=a.'c : c:cs : ;.:::t uacurely p n or restrain by a leash ..:.i:: «a._ ::o that it .:.:;y not roam throughout the arca a: will. 6. The owner of any tract uhull a^.o:.:•,leta construction of eny Gtruc tro oroctai on that tract whit°n ono year of co:L„i:aco- :.dint of construction. 7. :.xistirj :o1ia5a .. u.._.. »o: psi .... possibla. Fol' -a 'a anZv snag a:: ra::.:]vac only to tha extant necessary owe'—'-ir :, driveways, 8idr- walks and sewaga and 3. :hose covenants hL• rnr. •r!ith :.ai! 1.t:.G: and sha::1 bo binding :a.Arzia,1 .a,:c:µll poruoa cia 1:14 undaZr t.:0:.. until w:_ �, +. �. r1: Z. .. time, sei4 covanontu shall ba auto;]5tteLll uzzera:,14 ruccest:iV3 uon—yi9ii: p(t«.o.. unless otherwise chz :• ..: by va.:., o. rho than majority o;* ;:rope owners. J. 7. any L•:act. owner o: , _.:.G.: . .... g :or there e:aou:4 v;o7 .• . o C. atto:a Y7t to ViG .:.i, .. i+: zone »..... shall be Iawfel !or ::c;!..4... ..: c: La:.s.rs or wiy s'eAe ... ... Or persons t .3raby L: tea:..:ao 7a3 :011e~; :y i:L•. ;. 1:..1.,6_ f r equity to restre.n &n4G:.. vlol ..G:. o: t:e.l(; whit:::::'.'.:, and i.0 : cover In: .. _.... V:olAu.G.'.:.' :.rCS .�.CJ :a•CG�: i:: :ate. costa and attar nsy «(.e: .. .............. :0 :.:rC7:i:i1 t i :;:OVI:;10:LJ 02 %:.aura covonic rx. . viw... ... .n. tsrN.y^-w, �ti:u.4.iRVFq'4.s:iAiyti� Viwu€$N$Ki'..�Ifil�ii+YNM�IYgLHYIYL'�v�rr • RESOLUTION TO SB '7/ 2.-7/57 Whereas, Harry E, Williams has petitioned the Board of County Commissioners of Carfield 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 4 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 NWI 4, Section 9, Township 7 South, Range 89 West of the 6th P.M. Tract 3c W 4 of the SE ti of the NU 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; Colorade,•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 • lccation of septic tanks will be p_ initted 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 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) (1963 as amended). j 7iu5 exemP-or IS �f`art-I-�'cr 1A p1, *kit. S Qe1.-fL rBora(-►-ron /-1te14- 001 Gt y�c .rniley 5� Q ita.pct', 8. r4!) 0014 1'I-solis s -l- 4,oc.'h tin .1104 O THEREFORE, upon motion of /'i're f/ <I -r --/u seconded by //+4v!a) re ri4 e _ and unanimously •carried, said tracts of land are hereby exempted from such' definition and transfer of said tract,May ,be made by division Resolution to SB - 35 P. 2 into three tracts, that is, 1 tract of 20 acres and 2 tracts of 10 acres each, more or less, all as is more fully described in the petition pertaining hereto, provided. however, that this exemption is grantedonly upon the condition that none of the above parcels of land be sold, transferred or conveyed until such time as: ti •.. 1Petitioner drills a domestic water well or wells to serve the subject property and that:the well or wells be tested for potability by the i appropriate state authorities: That.petitioner have each site be approved by the county sanitarian 'for septic tank.and leach fields: That eny•instrument of sale or conveyance Will contain an easement for read 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 mai ntai ned. privately. • • A copy of the instrun.nts or instrument of'conveyance, when recorded, shall be filed with this resolution: • ,• Dated this ) day of ; "45 . 1975. Attest: / . ' • • THE BOARD OF COUNTY COI4MISSIONERS OF GARFI ELD COUNTY. COLORADO BY: 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 Cortmisf.ioners 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 1 of the NW 1 of Section w, Township 7 South, Range 89•West, of the 6th R.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 prpperty.wouid be sold until a water well permit was issued, a well drilled and water tested by the appropriate state authorities. 8. 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 ro1-2-By way of a gravel surfaced, 16 foot wade 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 :1 Resolution if the exemption is granted. T Dated at Glenwood Springs, Colorado, this /fo ,day of , 1975. • 1 1 / L � 1 T. Arrrrc ADDITIONAL FACTS PETITION FOR EXEMPTIONS 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 91 and part of this road is presently being kept open during the winter by adjoining property . owners with no difficulty whatsoever. 0. 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 problem in striking water et a•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 'A. The area surrounding petitioners property has from time to time been • approved for septic tanks and leach fields. Petitioner will have appro- priate percolation 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 • • 'A. Protective covenants for the petitioners property or deed restrictions will' be attached to each deed of conveyance as follows: a. Resubdivision. Ho 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, sidewa1•ks and sewage and utility facilities. r; Y+. ri Ge+ Additional Facts: Petition for Exemptions Page Two h, These covenants and restrictions are to run with the land and shall be binding upon all parties and all persons claiming un themd ti' until January 1, 2000. At that time, said covenants shall be auto-. matically extended for successive 10 yearperiods 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 aid 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. • • 9 EXHIBIT H ti 4.n„ tea:. < ... ?ieD- 79 :4'414-1 -4. Vri 3ertor. NO. • TM": 131,.:111,. a !St J 0,-1:ILL:ant,. on; IS, 0! g R, A N1:•.si' -%2,5'. • 0'. ;F. ii-ight.1,7n.., :ft 2.1 ioa[%:?2-1.71.7 ,7 6 .A.ro. rk,rf :;" W•Fr,rT L.71'1E (in? 7 , 1. z, on : • - • • x 691 tiot61.11: ,11.11 2-1 1 1.1-,60;•OVA: • . • . • • •:7-7.7; AFT: Orf E R CGOL; l'AL ()ABLE -:--130UARS. • -' :hell pt• apy..-12.4-3*.$.411,.. _lying:1;4d beingiAllte „re -,;'7 :'.,'.1.,•;FIE Lb ..:'....4,"--"•;• • • ‘E-• ..7r .--.,,,IDC . ! • - 7 -347 -11 -,E -r: ?..:: U.71:7; ii .2 - a emet: - .'...rLir..., :,,,,.p. ;:-. , ::,oa, aild : yi:i...;14...a,. pi.li49p...8.:i.., . , .. . "'....ei ....'..,.. zi.c....t.,;2. c.. -:._::i.; 7 ,...1/: -,-iiri S ..!:17:i: '.'-?.-4Y,' qi i.:Qtzci : .1.....z i . na.c.::in:i7Z..c4O:s.,?ikii,'.r..*:...67.494*.k.: . • . " ! ',.:f f..".7.-`ep.4*.b..,..",7 .7....-;1.:::::-i. :- --• . - ... . . . : . • . . , , : , . , ,.... ''.'06'..'.77...'1''n,-, '.-'-; 'Qr-: ' ' '71', " '' ' • ' ' - - • _ . % , .- - ..-- . ,-,- .. ..---: .,..%.- -...•iv7.!:"1.- )-'-'-.1.•..,' •---?•-•,.-.-!,:.-,,- '.,' ...• ,.0.::::. ,,. ..•14,,r., ,f,,,,."4,-,, ip.,••••,.4.41,..,.....r.„.•.,T, 6.,..4i .;..,.... .....„,-)ze. f.}-,..it.tr..;• - - : : • ;.:_,_. -,.....•...-. _. .,. ....:- ..:., ,....., 44.1...„..„ ,:-.•;',.'nff 7E-::Z7FA77rd a° javi'7wr'''• 'f` "'" ' ,1.7. . ....,6, 4.:471.44 ta , i/i2 ei--4a.'-'1•,r4 'P,440v.--6itc,,-"P,ft -.•.-. -41 '----. ;4.-i.: .• .0.-14re .5-..b.4c.i..ot. ,•-rx i::-.:Pgr ty :-7$ - ..e. 00- .. ...:, • , oun,--- et q,. '. - 6 i 4 .,.r . -,..,2-/ Zait g-- . L : !: ' ' i' ' :' , -."... , : 't .".....r.." - 44r -. !-.0.,.i..._ - . . „j„.,,„.;,.. ,,.,:.,:,,,i.1,„,f,th:0,1[1470-!:i':10".1!1:.". P''41 -?''7t! -P.''-':-.. ?';.t...::.:?,'‘'-•-. ,,,, -.•.-- • :.•.1"9k:"11• -"'14--•.1'1"r4 .111''''''.1"I'....---1 ...i"i );i,.i,4,,,i,.."ii;f..1r4.6:-.;421e-,rI:01*".10Yo'fr,I'•INII0-11/,•&•.--,*-2-.-,... •-_.,i4:...;l.i..ii-';'•;,L4i.4itiii.f..0•311,•41,4t-':-.51..',1•,''`'..- • ”F``..:'..-- ' .::--.••-•'•,---••'',,ii,ii,;.L. iiditaiii;i0i,.,p..4 ,if4411,443.01,k1.,...':',- _:,,ir 1: , r ,.- .d ill, A 4! OM 6.16:,;-.;bow:f?Yg!"°d, rn-n"••F'.-r... t... -„,-;,4f priiitliy.erriiiiikia'.105:01Til •:104'11A' !-'4f'''. '"!. ' '" • : - ,.. ,r" , ' ,,r i,,,,,, ,,,,, .0,6,,,,! ii,,,t e,,copso, .-t 1.0 ik pf!11 '7'?. ' .r. : r• ......:.;.-„,:.-1.,..:., , . ,•-..„..4011.w,: AND 101i1)1,11!:lig=.14iir!.7-,' ...._.- -...._ .---,... ,,- ..t :. 6,.- .4,1 t,ispiiviiita i1°'6'..)I'E !Pi'!" ''1''11j.'"'ill'.1r':-:!."4,..,..';'1''1F',••,1•t7ii:rt‘;..i','.‘",7:i'.,i•4.,,4i=p,i,,,i,44:i.4,;;#0,...A..-...„.,,, ::..,.,,ie,,ii,,,,i.i,; „,;,;;:„,:iiii ,61-',,i*,11.:'PO-41.i.."-it-..!, fii''''kf -....,- !-..s.i ' ir,,iti;ii,z,:ci.,,,iihoutail?'01t-68*1 i'l';'!1'5;,f11.,......7..:.:k15' .,- ii1..,...t.•4t11.ria.; • tn 1.,'; 1 fc"1.`i64?!':'egha. .,,••i ''''g 4.: ' .: .13;eN 1,:ai iit:ir, 'i40;:.:*11iiii.* ...' ... ' :..' 1-.'" ' 61U6.4j; Ail4:04.:11P.'41"."* -'N' '!! - -....= -- , - - . '-, e -.L . : •... .,..' ,1.4,f,i7.-64571.43.;--. aZ4.. 0 bkoinowt.)= !.11 '!' ,,..'-',, ' '. -....- • , - "....; '..,i,,i..iic*ri•e.::.,. Oizat-.74P.L,6:,....::..,,-.,-,...:. ,....,7;.--: • .1:.''',- -, .,;;,.46-..-0:•-•;;.a.iaremticiono'4..,‘rkT1'.'!11.'._:,..- „,,,A-- .., ,,li-471.614470.1. .".;,'. 44 l' ' ofi:r AeJ=.7,14Ltto; '7,0vorzerts5 'Y'.-tY--.. t " .....ed: .11i 6; . 'iloV!'VeAt9 ;i:eifa0.7-'# - ' '•••-',C.:' u,,LE. - aid ,--re:-.:P-r-P-,*.,.#as for -'-,Li,.li .? •, : .._''-:- -. . :,.. . 0--.0'0L .....-.-•$., _ 1' :. 0Pd4:"' 1. .- ‘, ....„.•", .',"—„- ,--...i.- ;;- D...4b iii -.,‘ 6. it-.: -., g: g,, i-,e0PgV•',- 141.:3Ib-fg'e' bi .313. 111 11 111 , 00.11001,1 fl Peiii a4r1111 3r011141'4 *1413.37r.1143,T13A'41g97131,,..0-, ,7..,,59.„..-,. . r •:,•:: .-- ••• , ,,.,,,,, ...),,,, ...k&G:tritii3!,46,i3gul...?!-A -' - • .,c. ,IN!All...1ESi !W44EFEOF, fh,.,.4**?••:•,..... 0.1-,0i.ii.ed ltd.. ..k*ci cii-, t101.A.i..;'.4. • 1") E.VI17 . • STAIE OF C(.its-1,12ALI.-, • Cninily •••-• • . „ . • . . . . • : . ' • '.-li1!11,A4410,".;{44'1Ir3ikwr1 vat> *-kr.ireAlt.40111;,,f* nie;i _ - y. Ocive-rbe4 5 , • - . 4,1 W.'er14;4; aTiig 04.k:al J• •• ••• • -a" . , 4 EXHIBIT appurteisagoe`s a"1 4 w tt it€a th iame, mss.', payable an _ 1-8$ ,and• 4 zs e , n t rvatiofs, rostrict#Q and 0 Signed thiE /6166. Jana : 19 85., S'1'RT13O COLORMX)E County o€ , Mea - Th foregoing irirtrtinienf watlow1eN?: taefor'e me •th1O. I.Cit> 44 ttf January 1085., by .13702. Bolen. . . EXHIBIT iXfi B 4A010 f2g Biff1R s) rbgIAND JAMES g. TtltV, JR. 4„ GRANTEE'). The o:llowind'°descr1ied reel isropexty,.situate in the Cauhty of 6aPfteld State. 'ef Colorado: Townsili.i 7: South,: Range 84.West of the 6th P,H.: Section :9 NASW; TOGETHER WITH- all.water,and water rights, ditch and ditch rights, springs and:seepsappurtenant to.or used -in connection with said premi,sestinc1txfin;;: but rtit 1ifnited-"to, the spring known as. Todd's Cabin"Spring; together with all .meter rights adjudicated there.to:urder,Application N6.. '84CW18a, Water. Division No. 5, Galprado; ... ,gyp AL.S0 TOCETNER : WTTI# a i-exci rs i ve easement for roadway and utilft"y access, -tiO feet .in' width, to and from Garfield County Road 117;-:,over:..0across And the; SEllla of Sec ton, . the,Sk of Section 10,the t 9 in"Tvwnship-7"South',.Range.89 eme SHI Gl st,`°6th P:1i;,: said easement hiring more particularly described as ]ging and:beinci 30 feet�',.on eztner side of the centerline of d. rbacl presently exsting,'and in..p�Eace dyer and across.' the last above-;idescribed:;real property and located in said Sections 9 and ,1G" RESERVING, HOWEVER,. unto Grantor a non-exclusive easement for radia access end ut,ljties, 60 feet in width, over and across -the N104sw4 Gf said sectictn:;9, tr6:'and from the westerly terminus of the: roadway €#4Cri1 din the above paragraph to the southerly boundary of the said' •NINSIN of Si?ctfpn 9, said easement being more particularly .described as ]jiina'and being 30 feet on either side of the centerline.of a roadway presertly existing and in place over an& across the said 104.14, Section 9. The foregoing described ease:tent is appurtenant to the the SW1/4SW14 and SW1/4NW4, Section 9, Township 7 South, Range 89 West, 6th P.M. AND ALSO RESERVTN6, HOWEVER, unto Grantor a non-exclusive easement for roadway access and utilities 35 feet in width, over and across said iNW4S.YIA, Section 9, extending in a generally northerly direction from the 60 foot easement described above to the northerly boundary of the said N'i1/4SW4, Section 9, said easement to be upon the_general alignment described on the plat attached hereto as Exhibit , and incorporated herein.. Said easement to be appurtenant to the SW1/4NW1/4 of said Section 9. The foregoing two easements reserved to Grantor shall serve no more than a total of four (4) single-family residences located on the SW4SW-4 and SW4N141a., said Section 9 (exclusive of arj residences which may be located or cnnstriicted on the N i&SW=a, said Section 9). and this restriction shall be a covenant runnino with the real property to which .said easements are appurtenant. Grantee fur her aorees that he will not object to applications for water well permits for residences to be f constructed on tie 5WIA , th S'O.,SWi:; and the W' SL'-',N'r;?.r, of said Section 9. This consent to water well applications shall be a covenant runnino with the real property purchased by Grantee. �R ) flek Pt • 4. i r; ,� W f _&lam � n +.�" __46 oaf J ` ',. -:1X--... _'•ri_ Y�u ,ti r 1. 4, ''� n r a '12 3 . ..-Y.' .es r7 i - 13 6.5-4' . • ik - =�- — — � .,-------i ,4 4.0�/ +- t"- • -c „,/ f • co •' f J It us{A} r;cp A Z 2'341 sc'^ /I 0.! 9_ `3 a 1 ' Planning Commission Meeting Minutes: April 12, 2006 1 EXHIBIT The next item on the agenda is a public hearing request to review a Preliminary Plan application for the Mahan Properties Subdivision. The property is located at 0648 CR 126. The applicant is proposing to subdivide approximately 20 acres into two lots. The Applicant is Mahan Properties by Roberta Mahan. Chris Hale is the representative for the applicant tonight. Phil Vaughan swore in all speakers for this hearing. Phil reviewed the process we would follow for this hearing. First the County Attorney will review the public notice requirements. Next the staff will present the project information and staff comments, back to Commission for questions, out to the Applicant for their presentation, back to Commission for questions, out to the public for comments, back to Commission for summation and hopefully a motion. Carolyn Dahlgren reviewed noticing requirements with Chris Hale. Chris stated that the Mahan's had complied the list of property owners. Certified return receipt mailings were sent to all owners identified. The Mahan's did the mailing on March 2, 2006. Not all green receipts came back. The notice identified owners of the property as Mahan properties. James and Roberta Mahan are Mahan Properties. Notice was published in the Post Independent on March 6, 2006 and they have proof of publication for that date. James Mahan posted the property and Chris Hale verified that through conversation. Property was posted on March 2, 2006 and is still in place until 6:35 tonight. Gold card provided by the Planning Department was used for posting the property. Carolyn stated that on the basis of testimony tonight and looking at the law if you try to find these folks to notify you have done what you can to notify. There is no signed affidavit from Mr. Mahan so all of this is hear -say. The gold posting card was not left up during hearing like it should have been. Carolyn stated that regulations say notice needs to remain in place. Jock Jacober asked about interpretation concerning day of meeting. Jock made a motion to move this item forward tonight. Sean Martin seconded the motion and all members agreed verbally with the motion. Fred Jarman entered the following exhibits into the record: Exhibit A: Mail Receipts Exhibit B: Proof of Publication and Posting Exhibit C: Garfield County Zoning Resolution of 1978, as amended Exhibit D: Garfield County Subdivision Regulations of 1984, as amended Exhibit E: Garfield County Comprehensive Plan of 2000 Exhibit F: Application Materials Exhibit G: Staff Memorandum Exhibit H: Letter from Glenwood Springs Fire Department dated 4/5/04 1 Exhibit I: Letter from Glenwood Springs Fire Department dated 1/31/06 Exhibit J: Letter from the Colorado State Forest Service dated 1/23/06 Exhibit K: Memorandum from the County Road and Bridge Department dated 1/17/06 Exhibit L: Letter from the Colorado Division of Wildlife dated 1/30/06 Exhibit M: Letter from the Division of Water Resources dated 1/27/06 Exhibit N: Memorandum from the County Vegetation Manager dated 2/1/06 Exhibits A — N are accepted into the record. Fred Jarman reviewed the staff comments and project information. This is a division of 20 acres into 2 lots. Lot 1 will be approximately 5.66 acres and Lot 2 will be approximately 15.06 acres. Access is off of Black Diamond Mine Road. The property is currently zoned A/R/RD. The Comprehensive Plan designates this property as Low Density Residential. Fred provided slides of the property, showing the site and surrounding area. Issues discussed: • Garfield County Road and Bridge Department asks that existing dugout building be removed. Cabin and storage are in the 60' right-of-way. • There is no ISDS plan included in the application. • HOA is required. • Wildfire fuels reduction plan is included as a potential condition of approval. • Provision of water supply for fire protection. Applicant received a letter from the Division of Water Resources stating that there would be no material injury to decreed water rights. Staff is recommending approval of this request with the 16 conditions listed in the staff report on pages 13-16. Jock Jacober stated that each lot could have an ADU. Fred Jarman said yes they could apply for a Special Use permit to request that. Jock asked would building envelope include where ADU would be placed. Fred said yes. Chris Hale said he had nothing to add. Moved to the public for comments next. Kathy Harris is the first speaker and she is a 30 year resident of the Black Diamond Mine Rd. She is an adjoining property owner next to the Mahan property. This is the forth application that has been submitted to subdivide this property in the last six years. The Mahan's submitted this request back in 2000, 2002, & 2004 and each time was denied by the County Commissioners. In 1975, there were 13 parcels that were part of this scheme. It was the BOCC's intent that these parcels not be further subdivided. The parcel now has the appropriate density on this land. There is currently the main house, two apartments in the barn, and the cottage are all inhabited at this time. Kathy would like to enter photos of these dwellings as an exhibit. Storage shed is actually a guest house. She has been inside all of these dwellings. The Mahan's have a history of non-compliance 2 with county regulations. The Mahan's do not comply and think they are above the law. They bought the parcel knowing the limitations. There are no five acre parcels on this mountain. Regarding water, historically this has been a water short basin. The well of an adjoining property owner of the Mahan's has gone dry and they have been forced to deliver water to their home. We do not need further non-compliance issues with the Mahan's. We do not need further subdivision where it was expressly prohibited by the Board of County Commissioners. Ms. Harris strongly recommends a denial of this application. The photos Ms. Harris showed are entered into the record as Exhibit O. Ms. Harris also stated that an adjoining property owner Mr. Dennis Hines has asked her to enter his name in opposition to the Mahan's application for subdivision. He was in attendance earlier tonight but was unable to stay. Scott Fifer is the next speaker and he lives at 0251 Black Diamond Mine Road. Scott urges the Commission to deny this application. The Comprehensive Plan designation for this parcel is 1 dwelling unit per 10 acres. Staff sees this request as being okay because the density is consistent with the proposed land use district. Mr. Fifer sees this differently. There are other individuals in this area that are looking at this proposal and think that if this is approved it will set a precedence. Minimum size of 10 acres is very important. The Mahan's are going through the subdivision process for two lots and Scott thinks they will be coming in for a Special Use Permit for an accessory dwelling unit on each of those lots. Scott stated in 1975 there was direct representation made in a Resolution concerning no further subdividing. Protective Covenants state that no tract of land may be re -subdivided into smaller tracts of land. The Mahan's knew what covenants and restrictions were in place when they purchased the property. Water is also an important consideration. Black Diamond Mine basin has a limited supply. Please deny this application. No further public comments were made so that portion of the hearing is closed. Moved back to the Commission for comments and questions. Sean Martin asked how deep the wells are up there. Mr. Fifer said his is 150' down. Colin Laird asked when you all were going through your documents did you come across the restriction of no further subdivision. Fred Jarman said we did and he would like Carolyn Dahlgren to address that question. Carolyn Dahlgren stated there are a couple of questions here. In general, the BOCC does not enforce covenants unless specifically the BOCC is brought into the enforcement position by the very words of the Resolution of approval or the very words in the covenants. Carolyn stated that the Mahan's have in the past filed a termination of covenants along with the Green's. That termination of covenants was ineffective because it did not apply to the land that you are talking about tonight. They have recently filed what amounts to a corrected termination of covenants that would include the land that is 3 subject to this hearing. The bottom line this comes down to be a public enforcement issue or a matter of civil litigation between the neighbors? The BOCC would likely say this is a matter of civil litigation. Carolyn said there are a number of Resolutions and she will have to track what applies to this land. Jock Jacober asked how germane is that? Carolyn said the question is whether or not the BOCC committed itself to enforce those protective covenants or did the landowners have the right to disappear those covenants. Cheryl Chandler asked about possible exemption from subdivision. Carolyn Dahlgren stated the exemption is a division of land but not a subdivision as defined by State statute. Fred Jarman stated no further subdividing can be done of any subdivision. Because the request for exemption was denied it forced the Mahan's to apply for a full subdivision. Chris Hale stated there have been a lot of comments made that he can't respond to. The Green's and the Mahan's are the majority owners who agreed to remove those covenants. Have re -filed and clarified intent. Legally protective covenants are not enforced. Copy of covenants dated April 7, 2006 is entered as Exhibit Q. Scott Fifer's presentation is entered as Exhibit P. Phil Vaughan stated that there are additional legal issues still to review. Chris Hale stated he has no further comments. Cheryl Chandler said she would like to see a continuance. Colin Laird agreed. Cheryl Chandler made a motion to continue this hearing at the May 10, 2006 Planning Commission meeting. Colin Laird seconded the motion. Jock Jacober would like to make a friendly amendment to the motion and told the applicant's representative to continue to get more legal data. Land use issues will need to be addressed. Cheryl Chandler accepted that friendly amendment. Carolyn Dahlgren requests that it not just be a legal opinion out of the County Attorney's Office but that the Applicant prove up that the original Resolution under which their Exemption was approved did not rest on a representation that there would be no further subdivision and or did not rest on the BOCC having enforcement authority over that. And then the opposite would apply to neighbors that disagree with approving this subdivision that they show that the original Resolution of approval for exemption forbade further subdividing. Jock Jacober asked if we are talking about two different sets of covenants. Scott Fifer responded that there were two forty acre parcels. Phil Vaughan stated applicant needs to prove up subdivision whether that is applicable and secondarily the issue of covenants. 4 A vote was taken and all members agreed to continue this hearing to the May 10, 2006 Planning Commission meeting. No other business so meeting is adjourned. 5 Planning Commission Meeting Minutes: May 10, 2006 EXHIBIT i y The next item of discussion is a continued public hearing request to review a Preliminary Plan Application for the Mahan Subdivision. This application was originally opened at the April 12, 2006 Planning Commission Meeting. Property under review is located at 0648 CR 126, Glenwood Springs, CO. The Applicant is Mahan Properties represented by Roberta Mahan. Representatives present for the applicant are Chris Hale of Mountain Cross Engineering and Kelly Cave Attorney at Dan Kerst's Office. Phil Vaughan reviewed the procedure we would follow for this item. First staff will present their comments and project information followed by any questions from the Commission. Applicant will present next followed by any questions from Commission. Out to the public for comments will follow and then back to Commission for final summation and hopefully a motion. Fred Jarman is the County Planner on this project and he has three new exhibits to enter into the record: Exhibit S: Exemption Lot History Map from Davies to Carnes to Mahan Exhibit T: Packet from Leavenworth & Karp dated May 3, 2006 Exhibit U: Letter from Pat Fitzgerald dated 4/26/06 Exhibit S — U are accepted into the record. This is a continued public hearing from April 12, 2006 and Fred Jarman will go through the issues for lot split of twenty acres on CR 126. The last issue that still remained unresolved was this question regarding covenants and whether or not there were covenants placed by whether deed restricted or covenants by the petition or application from the applicants wishing to go through the SB -35 originally and did those still pertain to the lots today. Particularly this 20 acre piece of ground that the applicant wants to split into 2 lots. Would like to focus on this issue. County doesn't enforce private covenants. Could be different if BOCC had declared that item. Covenants do apply if BOCC acknowledges them as a condition of approval. Exhibit T is a legal issue. This is not an issue that can be resolved in front of neither the Planning Commission nor the BOCC. Perhaps this will end up in a court of law. When looking at the subdivision regulations this is an approvable project. Staff recommends approval of this subdivision application with the conditions proposed on pages 3-7 of the staff report. No questions were asked of staff by the Commission at this time. Kelly Cave would like to enter an exhibit into the record. Exhibit V is a letter dated 5/8/2006 from Kelly Cave. Exhibit V is accepted into the record. Kelly also has a power point presentation. Ms. Cave looked at the chain of history and she will give a brief history. • Exhibit A — 1966 Davies, Davies, Davies, and Cleary & Kummer owned the property. • Exhibit B — description of overall parcel. • Exhibit C — Kelly's final analysis of property now. Argue that they have successfully removed covenants on this property. • Exhibit D -- parcel broken into 6 properties. On one of the parcels, the Carnes parcel was divided into 3 parcels and that is where the Mahan parcel came from. • Exhibit E — Is that Resolution. (There is no mention in the minutes from the Board that no further subdividing can occur.) • Exhibit F — Covenants and Deed Restrictions. • Exhibit G — Resolution to SB -35 where Harry Williams petitioned the BOCC for the division of 40 acres into 2 tracts. • Exhibit H — Shows split from initial Davies parcel owned later by Williams & Carnes who later subdivided each of those into 3 parcels. Two of the William's lot splits had deed restrictions. • Exhibit K — Mentions future subdivision in Section 9 & allowable water for 4 dwellings. Their argument is that this property was intended to be divided. It is their argument that these Restrictive Covenants that were in place were successfully removed as allowed for in the deed itself and therefore they see no restriction to further subdividing and request your approval of the preliminary plan application. Colin Laird has a question for applicant. Exhibit F is the original protective covenants for this parcel. Your argument is that the covenants could be removed. Majority allows them to be removed. Kelly Cave stated that a termination agreement was included in your packets. Carolyn Dahlgren stated these previous splits were created before HOA's were required for SB -35. Next we moved out to the public for comment. Phil Vaughan swore in all speakers. David McConaughy of Garfield and Hecht is the first speaker and one of his clients Cathy Harris has donated her time to David. He submitted a letter that he wrote which is included in your packet under Exhibit T. The essential issue is not whether the County is in the business of enforcing covenants but that the county is in the business to enforce representations that were made to the county and secondly just because you accept rubber stamped engineering plans doesn't mean you have to accept every application. County does have the discretion to look at areas compatibility and conditions. Agree with most of Ms. Cave's research. There was no need to have deed restriction on initial splits. They were all over 40 acres in size. Covenant issue comes into play. Made expressed decision that there be no further subdividing. County has been better about including conditions of all implications and discussions at hearing be included as conditions of approval. Thinks that when Mr. Greene agreed to get rid of the covenants that he didn't want to wait 10 more years to change them if they wanted to later. Pat Fitzgerald lives at 0600 CR 138 and he would like to speak next. His name is not on the maps but he was the 7th partner. He put together six friends from Grand Junction to purchase the Davies property. Main reason was to protect his lifestyle next to his forty acre parcel. Pat is a Realtor and Developer and tonight he speaks against subdividing. The proponent has skated around the issue as to why the covenants were there. Water is sparse up there. Can't support large density. Other reasons were there to put covenants in. Property was owned by a common body of people with one address. Five properties have to weigh in to remove the covenants not two people. Pat is asking the Commission to help the people who aren't my neighbors anymore with promises that were made in the past. Scott Fifer who lives at 0251 Black Diamond Mine Road would Iike to speak next. He expressed concern about water inadequacy. Another neighbor, the Stephenson's, well has dried up and they have to haul water. Water trucks cannot get up there in the winter time. The Davies' well goes dry periodically. Doesn't see any real evidence of physical supply of water in application. Concerning the discussion of whether or not covenants can be terminated by two people that was for the Greene property, not the Mahan property. Notation that these people can terminate at any time. Covenants are there for the Mahan property. BOCC did not want high density in this area as stated in the past. Make a finding in support of what the BOCC approved in the past. Dennis Hines lives at 897 Black Diamond Mine Road and he will speak next. He has lived up there for 18 years. He doesn't have a drop of trust with anything the Mahan's say. Mr. Mahan had stated to him that he had torn up the covenants because he doesn't like them. Mr. Mahan called Mr. Hines and asked if he could come down and talk to him. Mr. Mahan wanted to remind Mr. Hines that he could do whatever he wanted on his property. Mr. Mahan cancelled the meeting with Mr. Hines. It is Dennis's feeling that Mr. Mahan will do whatever he wants and or can get away with. Dennis referred to a letter that Ms. Mahan had written about two years ago at the Exemption hearing. No further public comments were made so that portion of hearing is closed. Bruce Jensen has a question. If you let the Mahan's have their subdivision and somewhere down the road somebody else wants to subdivide how do you tell the next guy no. Cheryl Chandler stated that a lot of these buildings on the property are in the right-of- way. How are you going to make sure they are moved? Fred Jarman responded that obligations have to be met before final plat will be signed by BOCC. Nothing can be sold until that happens. Cheryl Chandler stated she is still not convinced that covenants don't run with the land. Bruce Jensen stated it is unclear to him as well. Thinks this is an issue that needs to be cleared up in a courtroom. He can't make a clear decision. Phil Vaughan stated he imagines that we all have the same issues. Can we get a legal opinion? Carolyn Dahlgren stated that BOCC is not in the business of enforcing covenants unless they have specifically taken on that responsibility and she doesn't see that responsibility to enforce covenants in any of the documents that have been presented to you. Agree this is essentially a legal issue as to how to interpret the covenants and would have to be heard in a court of law. What you are faced with is what you have to say about this to the BOCC on pure subdivision issues and what recommendation do you want to give to the BOCC on what it sounds like the covenants meant when they were approved by the BOCC back in the 70's. Sean Martin made a motion to deny the preliminary plan application and Bob Fullerton seconded the motion. Phil Vaughan asked for discussion on the motion. Colin Laird stated that at the last meeting it was suppose to be to resolve this issue. It still isn't clear. Part of him says to approve application and to let this go to court. Not convinced either way. He would support the motion that was made. Carolyn Dahlgren reminded the Commission that we will need a reason for denial included in the motion. Phil Vaughan stated he will vote against motion. He doesn't want to see Garfield County in the business of enforcing covenants. That is a private issue. Cheryl Chandler sees this as a deed restriction running with the land. Carolyn Dahlgren stated that covenants and deed restrictions are one in the same here. Denial has to be based on subdivision regulations and not private covenants. Sean Martin stated, looking down the road concerning water issue is more of his reason for denial. Fred Jarman responded to Sean that there are a number of important conditions and a number of actions that the BOCC weighs in on and we use different review agencies expertise for adequacy of water and other subdivision issues. A letter from the State is included in packet that says there will be no material injury to decreed water rights for the Mahan property. Steve Reynolds asked when we have a letter of adequacy from the State and neighbors talk about inadequacy is there any way for us to do a follow up report? Carolyn Dahlgren mentioned that you also have the Engineer's report on water. A vote was taken concerning denial of the Mahan Preliminary Plan application and the motion carried. (4 --(Y) to 3- (N)). PUBLIC NOTICE TAKE NOTICE that Mahan Properties has applied to the Board of County Commissioners, Garfield County, State of Colorado, to request approval for a Preliminary Plan application for the Mahan Subdivision, 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 1/4 of Section 9, Township 7 South, Range 89 West of the 6th PM. County of Garfield, State of Colorado Practical Description: Black Diamond Mine Ranch, 0648 County Road 126, Glenwood Springs, CO This Preliminary Plan application requests for the Mahan 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 Preliminary Plan 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 401, 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 el day of September, 2006, at 1:15 P.M. in the Commissioners Meeting Room, Garfield County Administration Building, 108 8th Street, Glenwood Springs, Colorado, Planning Department Garfield County Preliminary Plan review for the for the Mahan Subdivision Board of County Coinmi>siuncr> September 5, 2006 1:15 PM hroperty into two parcels using lack Diamond Road as the division line. Proposal Specifics • Property Location: Property Size: • Lot 1 =5.66 acrd • 1.4.4 2 = 15.06 acres • Water: • Waste water: • Access: • Zoning: • Comp. Plan: Black Diamond Area (4 -mile) 20 acres Davies Well / West Divide Pian ISDS CR 126 (Black Diamond Road) ARRA Study Area 1 (10 ac. / du) SGS Quadrangle 1 89.31 T12.18' N 12/.33. =1138ro42r %! RIM LA5(rrrto 4U&' 48.1 PAft 47 f AK( DU Out 31iRM-kek, Au�1C0.4 {�P r t5 w1TFR STr1RA-(t i=107.93' Ib,122.22' \A.. SIY3(39' _ .1tt1=1114.16' fllrc=�qe'n9 24"w d wµL Tour of Property View of CR 126 approaching properly - proposed Lot 1 (righl)1 Lot 2 (tail) Tour of .Property (contillucd) , View or Storage &adding & Cabin on proposed Lot 2 (15 acres) Current Llee-S Sllon d_g!@i4 PAfgnl f roven% Suvaurc.. ',hill Ilou,c. Ihrcllinc unil Ron (Wage: Art Studio Iionic Olfxe(CI ('1 F rattrdl lhtg-out l)ul bnildtng Srniage Llaildiug: Swinge Cabin: Leval non-cnnfnnningdwelling USCS rfn o e Irses la bet NV. ed (I tituirurhl! nu Lek! Owl 2 uFlbr AlnbaT3 utid vision I of I; Si urnirc _... Uae vt4in House ITtclling um' fiam. Lange Art Studio. Ifomc(lrlicc(Clll'1 I ..11 Strnt4ure Ilse lratnedl)ug-oW Out-Mtildang an-+ragc StatIluilding SL Cat11n "Four of Property (continued, iu!pprillig Y. View of cabin on proposed Lol 2 (15 acres) Tour of Proper Vow of Art Slndio i Office on p peedd 1,:: 1 15.151 eCr8S rt. •". Tout' of Property (continued) Vow of Main House on proposed Lot 1 ( Legal & Physical Water Analysis Existing Davies (spring) Well, Permitted by State (#239415) (2 du) Activated (approved contract from West Divide) for up to 3 du Letter of"No Material Injury" from DWR (physically and legally adequate) Well Test: (15 gpm in 1/22/05): 350 gallons per dwelling / day (could accomplish with 3.63 gpm) Moes " eering opinion that the well,. Is ph Tour of Property(eonlinucd) View of Main Hous© on proposed Lot 1 (5.66 TCreS) Primary Project Challenges 1) Physical & Legal Water 2) Density / ProtectiveCayenants: No further subdivision / Protective Covenants ICI dcvel �pnont in art© k' [mean average density allot loss than des�hntnu;itptrtenaaa.4L pin aen;lrto dd04414). A cmwiiIVO could he to �0oclsideany IYnwc AOUs m laas I ani Y. h l yr Ca, aunts worded In 1971: Provision staling no further subdivision and is binding until 1 r Lori, al Sch limethey would automatically renew (1n>i iiud.) unless tenninalcd by Iitajcvity ofpIo plumy uumes (Mahan, Gresn. a:vl S¢cphcnoott) ahan fi Gn..cn (nanJority) adreai In arrntnate the co oan s and caconlcd and rraudal "Tenni uIi Aojsonau In I'$N tinatano fIyi and was robot in a�s17/2(9X . Fand it Q) \cighluas stilt' that tho-co'001nt1 apply to nil the parcels cleated in IIDM and ma Just flit cxtmplion that created Mahan's property. ( Ihe 12 aeluthnt dots rax contain aueit u pro ision) StaHlun been mak: ID locale/any documentation that specifically syrpnrb do 'lotion Ihat the HOCC at the time nestle a rtyuirratctn that Oise covenants were m)uh ed as a coAli iinn ornppnwal lad That Ihe,• apptled to all the o firs in Black 01,00101 Mint 00G, 3 Property II istory Breakdo Planning Commission Eecommendation _____________________ stair recommended approval with conditions, the , .. Canning Commission recommended the Board of Com I Commissioners deny the application by a vote of 4 to 3 finding that: te application is not in compliance with the standards set forth in Section 4:9 (A) of the Garfield County Subdivision Regulations of 1984, as amended and specifically slated here: In all instances, evidence that a !Wier Suppk, sufficient in terms of quality, anantitv and (Immutability. shall he available to ensure an adequate supply of water for the proposed subdivision. SlwesSayabasse. folnr, Sn II I' WI Varowgi Garriglat2PAthatIT Kenneth Green Sharon Stephenson Mahan Properties 4