HomeMy WebLinkAbout4.0 BOCC Staff Report 06.14.2010Exhibits — Road Vacation for County Road 165— Iron Rose Land and Cattle I, LLC
RVAC 6061 Board of County Commissioners Public Hearing (6/14/2010)
Exhibit
Letter
(A to Z)
Exhibit
A
Garfield County Unified Land Use Resolution of 2008, as amended
B
Garfield County Comprehensive Plan of 2000, as amended
C
Application
D
Staff Memorandum
E
Staff Powerpoint
F
Planning Commission Minutes from Site Visit, dated November 6, 2009
G
Letter from David Mead, Garfield County Building and Planning/Addressing, dated
December 7, 2009
11
Memo from Jake Mall, Garfield County Road and Bridge, dated December 1, 2009
I
Email from Dan Roussin, Colorado Department of Transportation, received on December
6, 2009
J
Email from BilI Gavette, Deputy Chief of the Carbondale and Rural Fire Protection
District, received December 3, 2009
K
Email from Scott Aibner, Garfield County Surveyor, received on December 7, 2009
L
Letter from John W. and Irene Tripp received on May 18, 2010
M
Letter from John B. Wood to Don DeFord dated May 20, 2010 with attachments
Draft resolution prepared by the/Applicant's representative/n
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BoCC 6/14/2010 TV
PROJECT INFORMATION AND STAFF COMMENTS
REQUEST: RVAC 6061 Vacation of County Road 165
APPLICANT (OWNERS): Iron Rose Land and Cattle I, LLC
REPRESENTATIVE: John B. Wood
I. REQUEST
The Applicant requests the Board of County Commissioners to vacate County Road 165 from its
intersection with County Road 111, to its endpoint and intersection with CR 153. The illustration
below illustrates the road rights-of-way in the vicinity of County Road 165.
I1. REFERRAL REQUIREMENTS
Section 4-110 of the Unified Land Use Resolution of 2008 outlines the process for Road Vacations
following a Determination of Completeness by the Building and Planning Department. Within 5 days
of issuing a determination the Department will set a date for a public hearing before the Board to
determine which agencies/departments shall review the application for road vacation. On October 12,
2009 the Board selected all of the referral agencies recommended by Planning Staff and also directed
Planning Staff to coordinate a site visit with the Planning Commission which was held on November
6, 2009. Referrals were sent to the following agencies:
• County Manager
• County Attorney
• County Road and Bridge Department
• County Sheriff
• County Surveyor
• County Engineer
• Any Municipality within 2 miles of the proposed road vacation
• Colorado Division of Wildlife
• Bureau of Land Management
• U.S. Forest Service
• Colorado Department of Transportation
• Fire District
On January 18, 2010 Planning Staff requested a date and time from the Board of County
Commissioners for a site visit. The Board selected Tuesday, March 16, 2010 for a tour of the
proposed road vacation and visited the area between 9 AM and 11 AM with staff.
III. GENERAL ROAD DESCRIPTION / USE
Presently, CR 165 begins near an intersection of CR 153, CR 165, and CR 111 looping north, west,
and then southeasterly to an intersection with CR 153. The road is gravel throughout its entire length.
At the road intersection with CR 111, CR 165 accommodates two-way traffic but then narrows to a
single lane to the end point and intersection with CR 153. Also, at the CR 111/165 intersection
turning movements are restricted with limited sight visibility for turning movements onto CR 111.
The applicant is requested a full vacation of the entire CR 165 right-of-way and has offered draft
access easements with the application to serve adjacent property owners, utility services, and
emergency access.
The existing roadway appears to provide rural residential and agricultural access. The surface is
gravel/dirt and the right-of-way narrows in width as it approaches the CR 153 intersection. Vacating
this road right-of-way would not affect adjacent property owners if the draft access easement is
implemented with the consent of neighboring property owners that use CR 165.
IV. REQUIREMENTS
Requirements for vacating a public right-of-way were originally adopted in Garfield County
Resolution No 2003-07 and readopted, verbatim, as part of Resolution 2009-53 amending numerous
sections of the Unified Land Use Resolution of 2008. Section 4-110 requires that the Board select the
appropriate referral agencies when considering any public road right-of-way vacation and the
agencies noted above were sent a copy of the complete application.
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V. REFERRALS
Referral copies of the application were sent to the above noted agencies and departments for review
with comments summarized below.
Garfield County Building and Planning/Addressing (Exhibit G) — Road names will need to be
selected and approved for correct addressing if the road vacation is approved.
Garfield County Road and Bridge (Exhibit II) — The Road and Bridge Department has no objection
to vacating the requested portion of CR 106. .
Colorado Department of Transportation (Exhibit I) — CDOT has no comments on the proposed road
vacation.
Carbondale and Rural Fire Protection District (Exhibit J) — There are no identifiable issues noted by
the Carbondale and Rural Fire Protection District.
Garfield County Surveyor (Exhibit K) — The County Surveyor finds the survey data acceptable.
VI. PROHIBITED VACATIONS
The Unified Land Use Resolution of 2008, as amended, states that the Board shall not approve any
petition or request to vacate a county or public road right-of-way when the following information has
been submitted:
• The subject county road or public road right-of-way provides any access to public lands;
• The subject county road or public road right-of-way abuts or is connected to any property
including any easement owned by the federal government, State of Colorado, municipality,
county, or special district, where such property or easement constituted a public park,
recreational area or trail; and
• The subject county road or public road right-of-way is currently used or will be used in the
foreseeable future for any county or public road purpose.
The aerial map above shows the road intersection of CR 111 and CR 165 at one end and terminating
at the intersection with CR 153. The applicant claims this right-of-way is used as primary access by
Iron Rose Land for farming operations and secondary access for various land owners both adjacent
(The Caudill Parcel) and for occasional internal use by other adjacent property owners. Letters from
utility providers and the Carbondale Fire District are included in the application stating no opposition
to the proposed roadway vacation as long as adequate utility and fire access easements are granted.
There does not appear to be any access to public lands via this road right-of-way.
The Applicant note there is no deeded or dedicated rights-of-way for CR 165 and argues that the
"sporadic public use" of the CR 165 (Tab 5) did not establish CR 165 by a prescriptive right.
3
VII STAFF DISCUSSION
The Colorado Revised Statute, CRS 43-2-302 Vesting of title upon vacation, discusses the vesting in
ownership of land no longer used for public rights-of-way and typically transferred to the abutting
property owners from the centerline of the vacated roadway. As part of the public hearing discussion
with the Planning Commission Staff noted that transfer of ownership would be to abutting property
owners. Mr. Wood argues that the requested assignment of the rights-of-way proposed by the
applicant is appropriate based on his interpretation of the statute. His discussion is contained in
Exhibit L with map attachments. Mr. Wood has also submitted a draft resolution as required by
Section 4-110 (8) (b) Hearing Information of the ULUR. The Board may choose the accept the
resolution as provided or offer revisions to the proposed resolution whereby the public hearing must
be continued to allow adequate time for Staff to make the requested changes and present the modified
resolution in its final form at the continued public hearing.
VIII PLANNING COMMISSION RECOMMENDATION
During the public hearing on April 28, 2010, Planning Staff presented the proposed road vacation for
a portion of County Road 165 and recommended the Planning Commission forward a
recommendation of approval to the Board of County Commissioners. Following testimony by the
applicant's representative, the Planning Commission discussed the proposed road vacation. The
Planning Commission notes some concern over the proposed easement and maintenance language
submitted by the applicant with their application. The Commission requested the applicant to
demonstrate to the Board of County Commissioners that all easements and agreements are in place
prior to presentation to the Board and approval of the requested road vacation.
Based on the information provided by the applicant, referral agencies, and the requirements of the
ULUR concerning roadway vacations, the Planning Commission recommends approval of the
request to vacate a portion of CR 165, Road Vacation RVAC 6061, to the Board of County
Commissioners as described on the Applicant's survey with the following recommended findings:
1) That proper public notice was provided as required for the hearing before the Planning
Commission;
2) The subject county road or public road right-of-way does not provide any access to public lands;
3) The subject county road or public road right-of-way does not abut or is not connected to any
property including any easement owned by the federal government, State of Colorado,
municipality, county, or special district, where such property or easement constitutes a public
park, recreational area or trail;
4) The subject county road or public road right-of-way is not currently used or will not be used in
the foreseeable fixture for any county or public road purpose;
4
5) That for the above stated and other reasons, the proposed public right-of-way vacation is in the
best interest of the health, safety and welfare of the citizens of Garfield County;
IX. RECOMMENDED MOTION
"I make a motion to approve the request to vacate a portion of CR 165, Road Vacation RVAC 6061
and adopt the recommended findings."
5
PC Members Present
Phil Vaughan
Cheryl Chandler
Bob Fullerton
Sean Martin
Greg McKennis
Lauren Martindale
PLANNING COMMISSION SITE VISITS
FRIDAY, NOVEMBER 6, 2009
Staff Present
Tom Veljic, Planner
Molly Orkild-Larson, Planner
Cathi Edinger, Note Taker
Absent from this site visit are: Jock Jacober, Adolfo Gorra, John Kuersten, and Michael Sullivan.
Earlier, this month the BOCC requested that the Planning Commission and Staff do a site visit on three
different Road Vacation Applications that are scheduled to come before the Planning Commission on
December 9, 2009 and January 13, 2010. A!1 three will also be heard by the BOCC. Staff in -turn
scheduled the three site visits for Friday, November 6th from 1:00-4:00 p.m.
Tom Veljic is the County Planner reviewing all three of these applications. Tom Veljic led the site visit.
Some of the Planning Commission members met the County Planning Staff at the County Administration
building. From there we drove to the Carbondale Park -n -Ride and picked up four other Planning
Commission Members.
Torn Veljic introduced Molly Orkild-Larson to the Planning Commission members present as our newest
Garfield County Planner.
Tom Veljic explained that we should have group discussions only on these proposals and that there
probably would not be any of the property owners around during the site visits. A site map of the
locations we are going to stop at was handed out to the Planning Commissioners members and Staff.
Tom Veljic also wanted to bring to the attention of the Planning Commission members present that the
November 18th agenda is quite large and he would like to bring one of the items listed on that agenda to
the front of that agenda to review noticing information and to continue that item to possibly December
2"d because of its controversial nature. Mr. Veljic doesn't think we will be able to get to that item that
night and that there will probably be several neighbors present for that particular item.
Phil Vaughan said he is not available on December 2nd. Planning Commission members present agreed
that the regular scheduled Planning Commission meeting scheduled for December 9th would work better
for them. Phil Vaughan said he will not be present at the December 9th Planning Commission meeting.
Tom Veljic explained where we were heading to first. The first stop will be at CR 165 and CR 153. Both
are road vacation requests filled by the property owner Iron Rose Land and Cattle, LLC. We stopped at
CR 165 first and Torn Veljic gave some description of the request to vacate.
Sean Martin asked how many neighbors use this road. Tom Veljic said that the neighbors that use the
road are okay with request and easements have been granted. Tom Veljic said he has only received one
• phone call from the Nieslanik's about one issue.
1
Greg McKennis asked who the applicant is. Tom Veljic said Iron Rose Land & Cattle, LLC. Sean Martin
replied that is Tom Bailey. Greg McKennis asked who will maintain the road. Tom Veljic said that is
their issue. Greg McKennis asked does the County have deed to this road or right-of-way. Tom Veljic
thinks it's a prescriptive right-of-way.
Tom Veljic said now we will continue through to the CR 153 intersection. We stopped at the entrance to
the Cassidine property and we were pointed out where the County Road ends on his property. Phil
Vaughan asked if at the east end of section 11 is that where the road runs out. Tom Veljic said that is
correct.
Our next stop is at CR 106. This is a Road Vacation request for property owned by the Colorado Rocky
Mountain School. (CRMS) Tom Veljic went to the office at CRMS to [et them know we are here to do
our site visit.
CR 106 is at the entrance to CRMS. A foot path runs along side of this road.
Greg McKennis asked is everyone happy with this request. Tom Veljic said that the Planning Staff would
like to encourage continued use of 20' easement for emergency and recreational access. CRMS has
requested this road vacation several times in the past Sean Martin said this use to be open and was
shut off in the 1980's.
Tom Veljic said the pedestrian bridge is going to be restored and will be used as part of the bike path. It
will be a connection for people to get through. Torn Veljic said if the Commission does consider vacating
this road staff wants an easement for bike and foot traffic from entry to the end. Vacate request is to
stop at right-of-way proposed. We drove down to the pedestrian bridge next. Greg McKennis said he
wants the Staff to nail that down before the meeting concerning bike path, etc. Tom Veljic said he has
left message for the applicant's representative Larry Green to discuss but he hasn't heard back from him
yet. Tom Veljic said he hopes to have some answers or alternative before the meeting.
Cathi Edinger handed out the Planning packets for the joint Planning Commission and BOCC meeting
scheduled for Tuesday November 10, 2009 to all members in attendance. Packets were mailed to the
Planning Commission members who were not in attendance at this site visit. This joint meeting is for
the selection of the Citizens Advisory Committee (CAC) far the Comprehensive Plan rewrite.
Site visit concluded around 3:15 p.m.
2
December 7, 2009
Thomas Veljic
Garfield County Staff Planner
Tom,
Garfield County
BUILDING & PLANNING DEPARTMENT
I have completed my review of RVAC 6060 and RVAC 6061. The residences' on these roads will
no longer have County Road as part of their physical addresses. The private roads will have to have
names assigned to them and signage will need to be put in place and maintained. According to the
Garfield County Road Inventory, CR 153 is also called Big Four Road, and CR 165 is also called Mountain
Meadow Dr. These names may be used or different designations can be chosen, subject to approval.
The number designations that exist are probably ok but I would like to have a chance to revive them.
Thank you for the opportunity to review these applications, and if you have questions, please
call.
Si
erely,
David Mead
Garfield County Building and Planning
108 8th Street, Suite 201, Glenwood Springs, Colorado 81601
(970) 945-8212 (970) 285-7972 Fax: (970) 384-3470
GARFIELD COUNTY
Building & Planning Department
Review Agency Form
Name of.application: Cr. 165 Road Vacation
Sent to: Garfield Coun Road & Brid e
Date Sent: December 1, 2009
Comments Due: December 7, 2009
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: Thomas Veljic
109 8th Street, Suite 301
Glenwood Springs, CO 81601
Fax: 970-384-3470
Phone: 970-945-8212
General Comments: Garfield County Road and Bridge Department has no objections to
this application with the following comments.
After consulting with the Glenwood Road and Bridge Foreman we have no objection to
this road vacation. The review shows all .arties will have .ermanent access to their
property and the road access no public property.
The road is not maintained by Garfield County and we receive no funding for it, the road
is in reality a private road to private parcels.
Name of review agency: Garfield County Road and Bridge Department _
By: Jake B. Mall
Date: December 3,_ 2009
Revised 3/30/00
Tom Veljic
From: Roussin, Daniel[Daniel.Roussin@DOT.STATE.CO.US]
Sent: Sunday, December 06, 2009 2:53 PM
To: Tom Veljic
Subject: Vacate County Road 165
Tom -- l have no comments.
Thanks
Dan Roussin
Region 3 Permit Unit Manager
222 South 6th Street, Room 100
Grand Junction, CO 81501
970-683-6284 Office
970-683-6291 Fax
1
Tom Vetjic
From: Bill Gavette igavette@carbondalefire.orgj
Sent: Thursday, December 03, 2009 9:11 PM
To: Tom Veljic
Subject: Road Vacations: CR 165 & CR 153
Attachments: image003.jpg
Dear Thomas,
I have reviewed the applications for the proposed vacations of portions on County Road 165 and County Road 153 and
have no issues with the proposals.
Please contact me if you have any questions or if I may be of any assistance.
Sincerely,
Bill Gavette
Deputy Chief
Carbondale & Rural Fire Protection District
www.carbondalefire.org
970-963-2491
FIRE • EMS • RESCUE
1
Tom Velic
From: Scott Aibner
Sent: Monday, December 07, 2009 12:03 PM
To: Tom Veljic
Subject: Road Vacation CR 165 CR 153
Tom,
The survey data contained within these applications is acceptable for content and form. E didn't check for accuracy of
survey as this is the responsibility of the project surveyor.
Thanks,
Scott Aibner, PLS
Garfield County Surveyor
109 8Th Street Suite 201
Glenwood Springs, CO 81601
Ph: 970-945-1377 Ext 1325
Fx: 970-625-5575
saibner@a,garfield-county.com
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BOULDER
COLORADO SPRINGS
DENVER
DUBLIN
LONDON
LOS ANGELES
MUNICH
PHOENIX
SALT LAKE CITY
SAN FRANCISCO
Holme Roberts & Owen TL
Attorneys at Law
May 20, 2010
Via FedEx
Don DeFord
County Attorney, Garfield County
108 — 8th Street, Suite 219
Glenwood Springs, CO 81601
Re: Petition to Vacate County Road 153 (RVAC 6060)
Petition to Vacate County Road 165 (RVAC 6061)
Dear Don:
EXHIBIT
As you know, this firm represents Iron Rose Land & Cattle I, LLC, the peti-
tioner to vacate County Road 165 in RVAC 6061 and a co -petitioner to vacate
a portion of County Road 153 in RVAC 6060. A hearing on these petitions has
been set in front of the Board of County Commissioners on June 14, 2010.
At the Planning Commission meeting on these petitions on April 28, we were
advised that your office takes the position that, at least as to CR 165, title to the
vacated right of way should vest in the abutting owners on both sides of the
roadway, each abutting owner taking to the centerline of the road.' This letter
is written to request that you re-evaluate that position. Our reasons for this re-
quest are as follows:
1. Summary of the Road Petitions. RVAC 6061 affects the entirety of CR
165 (shown in blue on the map attached as Exhibit A). As shown on the map,
the CR 165 right of way currently abuts the property owned by Iron Rose and
smaller tracts owned by Vermeyen, Reed, Tripp, Shook, Cretti and Caudill.
RVAC 6060 affects a portion of CR 153 lying east of the intersection of the
county road with a private driveway to the Caudill property (shown in pink,
orange and yellow on the attached map). Except for an approximately 8' seg-
ment that abuts the Caudill property on one side, the entire length of the af-
1 CR 153 is abutted by different ownerships and is subject to the same
rules applicable to CR 165. Consequently, CR 153 is also discussed in this let-
ter.
John B. Wood 303.417.8514 john.wood@hro_com
1801 13th Street, Suite 300 Boulder, Colorado 80302-5259 tel 303.444.5955 fax 303.866.0204
'93667 v2 boa
Holme Roberts Sc. Owen 11
Attorneys at Law
Don DeFord
May 20, 2010
Page 2
fected right of way abuts the Iron Rose property, the Carbondale Corporation
property, or both.
It is important to recognize that neither CR 153 nor CR 165 was ever formally
deeded or dedicated to Garfield County. As a result, Garfield County's sole
interest in the roads, if any, is a prescriptive easement pursuant to CRS §43-2-
201(1)(c).3 With regard to the entirety of CR 165 and the east segment of CR
153, however, each of the Petitioners contests the existence of a public road,
and they have reserved this issue in both petitions.
The Petitioners' position is that the vacated CR 165 right of way should vest in
Iron Rose and the vacated CR 153 right of way should vest in Iron Rose (as to
the segment highlighted in pink on the attached map); Carbondale Corporation
(as to the segment highlighted in yellow) or both, with each taking title to the
centerline (as the segment highlighted in orange). Maps illustrating the Peti-
tioners' position on how title should be vested are attached as Exhibits B and C.
2. Statutory Vesting Scheme. Pursuant to CRS §43-2-302, there are a va-
riety of rules governing how title to a vacated right of way is vested. The de-
fault rule, as stated in §43-2-302(1)(d), is that title will vest in the owners of the
abutting land, with each owner taking to the centerline of the roadway. How-
ever, two other relevant rules are stated. First, pursuant to §43-2-302(1)(a), if
2 The west end of the right of way may be bounded on the south by a
prescriptive easement for CR 111. However, pursuant to CRS §43-2-302(1)(e),
"No portion of a roadway upon vacation shall accrue to an abutting roadway."
Consequently, this section of the right of way should be treated as though it is
abutted on both sides by the Iron Rose property.
3 "The following are declared to be public highways:... All roads over
private lands that have been used adversely without interruption or objection on
the part of the owners of such lands for twenty consecutive years." CRS §43-2-
201(1)(c).
093667 v2 bou
Holme Roberts & Owen LLP
Attorneys at Law
Don DeFord
May 20, 2010
Page 3
the roadway constitutes the exterior boundary of a subdivision4 or tract of land,
title vests "in the owners of the land abutting the vacated roadway to the same
extent that the land included within the roadway, at the time the roadway was
acquired for public use, was a part of the subdivided land or was a part of the
adjacent land." By the terms of the statute, this rule prevails over the default
rule stated in §43-2-302(1)(d). Second, pursuant to §43-2-302(1)(f) (which
also prevails over other provisions of the statute), the board of county commis-
sioners has discretion to decree how title will vest: the owner of the abutting
land, the owners of lands using the road as access, or a legal entity representing
such owners.
3. CR 153. Title to the vacated portion of CR 153 is straightforward: basi-
cally, the two abutting landowners have already agreed upon the division of the
vacated right of way that is discussed above. Pursuant to an Affidavit Regard-
ing Boundary Line Adjustment recorded in Garfield County on April 15, 2008,
at Reception No. 746486, Iron Rose and Carbondale Corporation agreed upon
the location of their common boundary: along the north boundary of CR 153 in
the east segment (highlighted in yellow in Exhibit A) and along the centerline
in the central (orange) segment. The westernmost segment of the subject right
of way (highlighted in pink) lies outside of Carbondale Corporation's boundary
in an area that historically has been part of the Iron Rose property. Pursuant to
the statutory scheme discussed above, the Garfield County Board of County
Commissioners has ample discretion to respect this allocation between the af-
fected landowners.
Anticipating that the Commissioners will vest title as suggested in this letter,
the Petitioners have drafted easement agreements with the abutting owners to
assure them of access and/or emergency access on relevant portions of the va-
cated CR 153 right of way. Copies of the easement agreements are attached to
the petition in RVAC 6060, and have been accepted by Vermeyen, Reed, Tripp,
Shook and Cretti without comment and by Caudill's legal counsel. The draft
4 The statute pre -dates Senate Bill 35 enacted in 1972. The reference to
"subdivision" is consequently not limited to the statutory definition of the same
term in CRS §30-28-101.
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Holme Roberts Sc, Owen lip
Attorneys at Law
Don DeFord
May 20, 2010
Page 4
resolution submitted by the Petitioners (a copy of which is attached as Exhibit
D) provides assurance to the county that the easements will be properly exe-
cuted and recorded at the time the right of way is vacated.
4. CR 165. With regard to the vacated portion of CR 165, the Petitioners
submit the following:
(a) The affected properties: Iron Rose, Vermeyen, Reed, Tripp,
Shook, Cretti and Caudill, were all once part of the same tract of land owned by
Frank and Marguerite Cerise in the 1950's. Over a period of years from 1966
to 1994, sequential owners of the Cerise property deeded away the smaller
tracts: the Cretti parcel in 1966; the Reed parcel in 1967; the Tripp parcel in
1969; the Shook parcel in 1972; the Vermeyen parcel in 1979; and the Caudill
parcel in 1994. Typically, the conveyance was accomplished by granting a
specific metes and bounds legal description together with a private easement
upon an existing gravel road leading to CR 111 (referred to at the time as the
Dinkle Lake Road). There is a slight variation in the conveyance of what is
now known as the Caudill parcel, in that the easement was described as "the
Robert R. Nieslanik Ranch access road (i.e., County Road 153 onto the private
Road 165)." In each case, however, the intent of the grantor was to convey a
specific metes and bounds parcel together with an access easement upon the
grantor's retained property.
Notably, along the west segment of CR 165, the legal descriptions of the sev-
ered parcels were surveyed so as to leave a spaghetti -like strand of the Iron
Rose property sandwiched between the Vermeyen property, on one side, and
the Tripp, Shook and Cretti parcels, on the other (the "Noodle"). Again, this
illustrates the conscious decision of the grantor to retain title to the entirety of
the roadway.5
5 Iron Rose does not share this philosophy and, upon approval of the pe-
tition in RVAC 6061, will pursue a boundary adjustment with Vermeyen to
merge the "Noodle" into the Vermeyen property, subject to private easements
benefitting the other users of the road.
#93667 v2 bou
Rohe Roberts 8c, Owen up
Attorneys at Law
Don DeFord
May 20, 2010
Page 5
(b) At the time that the small tracts were subdivided from the larger
Cerise property, CR 165 was not a public road. Under the test established by
McIntyre v. Board of County Commissioners, 86 P.3d 402 (Colo. 2004), two
elements are required to establish a public prescriptive easement: public use for
the 20 year statutory period and the assertion of dominion over the road by the
county through maintenance, showing the road on a county road map or the
like. In the case of CR 165, there is scant evidence of anything other than spo-
radic public use. The road was signed as a private road, was maintained as a
private road, was treated in conveyances as a private road, and was regarded by
the abutting landowners as a private road. It was not maintained by Garfield
County, and is listed as ineligible for HUTF funding on the county road inven-
tory. There is no evidence of any claim of right by Garfield County until CR
165 first appeared on a Garfield County road map in 1976. As a consequence,
the first date that CR 165 could have become a public road (if at all) is in 1996.
The last small parcel abutting CR 165 was conveyed in 1994.
(c) As a result, CRS §43-2-302(1)(a) is dispositive regarding the
disposition of the vacated right of way. That statutory section states:
In the event that a roadway which constitutes the exterior
boundary of a subdivision or other tract of land is vacated, title
to said roadway shall vest in the owners of the land abutting the
vacated roadway to the same extent that the land included
within the roadway, at the time the roadway was acquired for
public use, was a part of the subdivided land or was a part of
the adjacent land_
CR 165 lies on the boundary of subdivided tracts of land: the Vermeyen, Reed,
Tripp, Shook, Cretti and Caudill parcels. At the time that Garfield County ac-
quired an interest in the road (if at all), the real property underlying the road -
493667 v2 bou
Holme Roberts & Owen l .l .r
Attorneys at Law
Don DeFord
May 20, 2010
Page 6
way was owned by Iron Rose' predecessor in title. The right of way should
consequently revert to Iron Rose.6
This outcome is consistent with the common law result when an easement is
terminated. As pointed out above, the county's claim to a right of way, if any,
rests upon adverse use under CRS §43-2-201(1)(c). In the absence of an ex-
press deed or dedication, the right of way will be regarded as an easement as
opposed to fee title. McIntyre v. Board of County Commissioners, 86 P.3d 402
(Colo. 2004) (describing a public highway established under §43-2-201(1)(c) as
"a public prescriptive easement"). As is the case with other easements, when
the easement is terminated, title to the affected property reverts to the owner of
the burdened estate.?
6 This case is distinguishable from Near v. Calkins, 946 P.2d 537 (Colo.
App. 1997), in which the subject property bordered a platted easement that be-
came public by virtue of a common law dedication. In Near, the lots and public
street were created simultaneously by plat, creating an inference that each lot
owner held title to the center of the street, subject to the public easement. In
this case, public rights in CR 165, if any, were created after the lots had been
severed from the larger parcel. There is consequently no basis for an inference
that, at the time of the conveyance, any ownership rights were intended outside
of the metes and bounds description. In fact, the circuznstances surrounding the
conveyances (for example, granting private easements while retaining title to
the roadway itself) indicate that the grantor intended to retain title to the en-
tirety of the roadway.
7 In Buell v. Sears, Roebuck and Co., 205 F. Supp. 865 (D. Colo. 1962),
affd_ 321 F.2d 468 (10th Cir. 1963), the court concluded that a statutory dedica-
tion vests fee title to a street right of way in the municipality, and that the land-
owner has thereby divested himself of a right to control how title vests if the
right of way is vacated. lithe right of way is only an easement, however, the
court accepts the argument that vacating the right of way constitutes an aban-
donment of the easement, resulting in restoration of title to the grantor.
#3667 v2 boa
Holme Roberts & Owen 11 P
Attorneys at Law
Don DeFord
May 24, 2010
Page 7
(d) As noted previously, Iron Rose contests whether CR 165 be-
came a public road in the first place. The petition itemizes numerous reasons
why CR 165 remains a private road (see attached Exhibit E, pages 4 - 5). Ob-
viously, if the road was not public to begin with, the statutory vesting scheme
in CRS §43-2-302(1) has no application, and Garfield County faces potential
litigation if title to the vacated rights of way does not vest in the owners of the
real estate upon which the roads were historically located.
(e) Additionally, the abutting owners have disclaimed any interest
in the right of way of CR 165. A quiet title action is pending in the Garfield
County District Court as Civil Action 08 CV 125. In that action, all but one of
the abutting owners have disclaimed any claim that CR 165 is a public road or
other interest in CR 165, except as to private easements to be granted upon en-
try of a quiet title decree. Pursuant to a settlement reached with the remaining
owner (the Caudill property), a disclaimer has been prepared and is being circu-
lated for execution. In short, a decision by Garfield County to vest title to the
centerline of CR 165 would provide the abutting landowners with a windfall
that they did not anticipate and specifically disclaimed.
(I) Finally, on the theory that its ownership of the right of way will
be confirmed when the county vacates CR 165, Iron Rose has cooperated with
abutting owners to assure each owner of access. Specifically, at the time that
Garfield County formally vacates the right of way, Iron Rose will: (a) grant
Vermeyen, Reed, Tripp, Shook and Cretti a primary access easement on the
west segment of CR 165, and an emergency access easement on the central and
east segments of CR 165; (b) grant Caudill an access easement on the east seg-
ment of CR 165 and an emergency access easement on the central and west
segments of the road; and (c) conduct a boundary adjustment so that the Ver-
meyen property absorbs the Noodle, subject to the foregoing easements. A
driveway easement has already been prepared and signed by Vermeyen, Reed,
Tripp, Shook and Cretti; Vemaeyen has signed off on the boundary adjustment;
and the Caudill easements have been prepared and approved by counsel. Pursu-
ant to the draft resolution attached as Exhibit F, the execution and recording of
the easements will occur simultaneously with the recording of the county reso-
lution to vacate the road right of way. However, the implementation of this
493667 v2 bou
Home Roberts 80 Owen LIT
Attorneys at Law
Don DeFord
May 20, 2010
Page 8
agreed-upon plan rests upon the agreement of Garfield County to confirm Iron
Rose' title to the right of way.
5. Conclusion. Based on the foregoing discussion, the Garfield County
Board of County Commissioners should determine pursuant to §43-2-302(1)(a),
or should exercise their discretion pursuant to §43-2-302(1)(f) to decree, that
title to the vacated right of way for CR 165 vests in Iron Rose and title to the
vacated portions of CR 153 vests in the manner contemplated by Exhibits B
and C to this letter. The Petitioners have submitted draft resolutions in both
R • C 6060 and 6061 that are consistent with this position.
Sine : ely,
cc.
ood
via email) Thomas H. Bailey
Herb Klein, Esq.
Tom Veljic, Garfield County Planning Department.
593667 v2 bou
EXHIBIT
COUNTY ROAD No. 153 AND COUNTY ROAD No. 165 VACATION
PARCELS OF LAND SITUATED IN SECTIONS 2. 3 AND 11, TOWNSHIP 8 SOUTH, RANGE 88 WEST OF THE 6th P.M.
COUNTY OF GARFIELD, STATE OF COLORADO
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COUNTY ROADS No153 & No165 PROPOSED VACATION : EXHIBIT B
Right of Way Ownership
.. - — ---
RIGHT OF WAY OWNERSHIP
ROW -IRON ROSE
-
PARCEL OWNERSHIP
NAME
CARBONDALE CORPORATION
PARCEL T 2453 12200027
ROW-CARBONDALE CORP
CAUDILL, SAMUEL J FAMILY TRUST 6 JOY M
PARCEL # 246311200048
! 1
- -
./h.,:
i ..�=l 165
CRETT1, D. CLARK & ELIZABETH B.
PARCEL i 248302300000
FOUR BAR RANCH CO., LTD.
PARCEL tS 246310100012 4 248311200022
HUNTER, RICHARDE
( I PARCEL R 248311200020
1 IRON ROSE LAND & CATTLE I, LLC
PARCEL # 248311200045
NIESLANIK, INVESTMENTS LLC 12 INT
PARCEL # 246302200010
NIESLANIK, MARTIN J & JERILYN 26PCT,
PARC EL k 248303400048
ANO CARBONDALE
I 1 IRON ROSE
REED, SUSAN C.
PARCEL 11248303400032
111,E
.1
1�PARCEL
OM SHOOK, MICHAEL D & SARAH
0 2451302300006
- -
-
_ J TRIPP, JOHN W. & IRENE M. FAMILY TRUST
PARCEL 11246303400028
TURNBULL, THOMAS R. & ROSAMOND
PARCEL# 24631.1 300032
[ I VERMEYEN, CHARLES P REVOCABLE TRUST &
PARCEL # 246303400030
--
\ .
-153... 1
ANoTiocme.- ACCORDING NC E LEGAL � CARBONDALE CORPORATION
SV RVSO#VENININFERY ACNE
OUFIRSTD#COVDE FECT DEFECT
ATTERVDII FIRST DEF ECTIRCOCNOREECB INCM EvENMENC DI RETHANRV N
AFTER
TE
TEAMFPO#FN6 DEFECIC1X19CURVEN BE CCM NEREONNOPE THAN TEN
YEARS ERON 1x€ DAl€OFC€ATIfCnnax sxoNT4 HEREON_
21211 OS223009 CR VAC -B R4
PARCEL BOUNDARIES AND INFORMATION; GARFIELD COUNTY GIS 812512009
COUNTY ROAD LOCATIONS DIGITIZED FROM ORTHOPHOTOGRAPHY
RIS EE. ANT LLG
ING
CIVIL CONSULTANTS
502 MAIN STREET, SUITE A3
S02 STREET.
CARBONDALE. COLORADO 81623
® GA RFIELD COUNTY ROAD
Pee! 0
FLIGHT DATE -MAY 2007
970.704.6311
0 125 250 500 750 1.000
RIGHT OF WAY OWNERSHIP
ROW- IRON ROSE
111. ROW. CARBONDALE CORP
COUNTY ROADS No153 &No165 PROPOSED VACATION EXHIBIT C
Right of Way Ownership : Detail
PARCEL OWNERSHIP
NAME
CARBONDALE CORPORATION
PARCEL it 246312200027
CAUDILL, SAMUEL J FAMILY TRUST & JOY M
PARCEL Y 246311200048
FOUR BAR RANCH CO., LTD.
PAACEL9246311200022
IRON ROSE LAND & CATTLE I, LLC
PARCEL r 240311200045
IRON ROSE
CARBONDALE CORPORATION
NOTICE: ACCORDING TO COLORADO UAW YOU. MUST COMMENCE ANY LEGAL
ACTION BASEGV PO N ANY DEFECT 111 TN IR SURVEY WITHIN THREE YEARS
AFTER YOU FIRST DISCOVER UCH OE FECT. IN NO EVENT MAY ANYACNCN
BASED UPON ANY DEFECT IN THIS SURVEY BE COMMENCED MORE THAN TEN
YEARS FROM THE DATE OF CERTIFICATECH 3NOWTI HEREON.
PARCEL 8OUNDAR€ES AND INFORMATION', GARFIELO COONTY GIS 8125/2009
COUNTY ROAD: LOCATIONS DIGITIZED FROM ORTHOPHOTOGRAPHY
FLIGHT DATE - MAY 2007
SOPRIS ENGINEERING - LLC
CIVIL CONSULTANTS
502 MAIN STREET. SUITE A3
CARBONDALE. COLORADO 81623
970.704.0311
22215 0&22,20as CR VACC R9
r--- 153
GARFIELD COUNTY ROAD
Feet
0 50 100 200 300 400
e
STATE OF COLORADO
) ss.
COUNTY OF GARFIELD
EXHIBIT
At a regular meeting of the Board of County Commissioners for Garfield County, Colo-
rado, held at the Garfield County Plaza Building, 108 8th Street, in Glenwood Springs, Colorado,
on Monday, the 14th day of June, 2010, there were present:
John Martin , Commissioner
Mike Samson , Commissioner
Tresi B. Houpt , Commissioner Chair Pro -Tem
Ed Green , County Manager
Don DeFord , County Attorney
Jean Alberico , Clerk to the Board
when the following proceedings, among others were had and done, to wit:
RESOLUTION NO. 2010 -
A RESOLUTION CONCERNED WITH VACATING A PORTION OF PUBLIC ROAD
RIGHT-OF-WAY OTHERWISE KNOWN AS A PORTION OF COUNTY ROAD 153
(CASE NO. RVAC 6060)
Recitals
A. Garfield County is a legal and political subdivision of the State of Colorado for
which the Board of County Commissioners is authorized to act.
B. Iron Rose Land & Cattle I, LLC, and Carbondale Corporation (the "Applicants")
have applied to the Board of County Commissioners as Case No. RVAC 6060 (the "Petition") to
vacate a portion of a prescriptive public road right-of-way for County Road 153, as such lies
within the property of the Applicants. The affected portion of the right of way is more fully de-
scribed on the attached Exhibit A.
C. The Board of County Commissioners is entitled to vacate a public road right-of-
way by resolution pursuant to the provisions of Section 43-2-303(1)(b), C.R.S. and Section 4-
110 of the Garfield County Unified Land Use Resolution of 2008, as amended ("ULUR").
D. The Planning Commission considered the Petition at a public meeting held on
March 28, 2010, at which time the Commission recommended approval with conditions to the
Board of County Commissioners.
E. A public hearing was conducted by the Board of County Commissioners on the
14th day of June for consideration of whether the proposed road vacation should be granted or
denied, during which hearing the public and interested persons were given the opportunity to ex-
press their opinions regarding the request.
Page 1 of 3
#93731 v3 bou
F. The Board of County Commissioners, on the basis of substantial competent evi-
dence produced at the aforementioned hearing, has made the following determinations of fact:
1. Proper notice of the public hearing on the Petition was provided as re-
quired by Section 43-2-303, C.R.S., and ULUR.
2. The portion of the right of way of County Road 153 that is the subject of
the Petition: (a) is not located within the limits of any city or town; (b) has not been established
as a state highway; (c) does not provide access to any public lands; (d) does not abut or connect
to any property or easement that constitutes a public park, recreational area or trail; (e) is not cur-
rently used and will not be used in the foreseeable future for any county or public road purpose;
and (f) is consequently no longer needed as a public road right of way.
3. Upon compliance with the conditions imposed by this Resolution, vacat-
ing the subject portion of the right of way for County Road 153 does not leave any land adjoin-
ing said roadway without an established public road or private -access easement connecting said
land with another established public road.
4. For the above stated and other reasons, the proposed vacation of a portion
of County Road 153 is in the best interest of the health, safety and welfare of the citizens of Gar-
field County.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Garfield County, as follows:
1. The foregoing Recitals are incorporated by this reference.
2. That portion of the road right-of-way of County Road 153 described on Exhibit A
attached hereto should be and hereby is vacated.
3. Title to the vacated right of way described in Exhibit A shall, and does hereby,
vest in the Applicants in the following manner: Any portion of the vacated right of way that lies
within the boundaries of the "Carbondale Parcel" as described in Exhibits A, A-1 and A-2 to that
certain Quitclaim Deed recorded in the office of the Garfield County Clerk and Recorder on
April 15, 2008, at Reception No. 746487 shall vest in Carbondale Corporation. The remainder
of the vacated right of way shall vest in Iron Rose Land & Cattle I, LLC.
4. As a condition to the recording of a copy of this Resolution by Garfield County,
Applicants shall grant private road and emergency access easements to landowners abutting the
vacated portion of the right of way, substantially in the form submitted by Applicants as part of
the Petition. Fully executed originals of such easements shall be submitted to the County Attor-
ney for review and approval by Garfield County and shall be recorded immediately following the
recording of this Resolution.
5. Pursuant to Section 43-2-303(3), C.R.S., the foregoing vacation is subject to a
reservation of easements for the continued use of existing sewer, gas and water pipelines and ap-
purtenances; for ditches or canals and appurtenances; and for electric, telephone and similar lines
and appurtenances (if any).
Page 2 of 3
#93731 v3 bou
[Signature Page --- RVAC 6060]
DATED this day of , 2010.
BOARD OF COUNTY COMMISSIONERS
OF GARFIELD COUNTY, COLORADO
By:
,Chair
ATTEST:
Clerk to the Board
Upon motion duly made and seconded the foregoing Resolution was adopted by the fol-
lowing vote:
Aye
, Aye
, Aye
Commissioners
Page 3 of 3
#93731 v3 bou
CERTIFICATION
STATE OF COLORADO
) ss.
COUNTY OF GARFIELD
I, Jean Alberico, County Clerk and ex -officio Clerk of the4 Board of County Commis-
sioners in and for Garfield County, Colorado, do hereby certify that the annexed and foregoing
Resolution is truly copied from the Records of the Proceedings of the Board of County Commis-
sioners for said Garfield County, now in my office.
Jean Alberico, Clerk and Recorder
By: , Deputy
493731 v3 bou
EXHIBIT A TO RESOLUTION 2010 -
LEGAL DESCRIPTION OF SUBJECT RIGHT OF WAY
A RIGHT-OF-WAY SITUATED IN SECTIONS 2, 3 AND 11, TOWNSHIP 8 SOUTH,
RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF GARFIELD,
STATE OF COLORADO, THE CENTERLINE OF WHICH IS MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTH WEST CORNER OF SAID SECTION 11, A STONE
FOUND 1N PLACE, WITH ALL BEARINGS RELATIVE TO A BEARING OF
S.89°24'34"E. BETWEEN THE NORTHWEST CORNER OF SAID SECTION 11 AND
THE WITNESS CORNER FOR THE NORTH'/ CORNER OF SAID SECTION 11, A 3
'/d' ALUMINUM CAP L.S. NO. 19598 FOUND IN PLACE; THENCE S38°24'23"E., A
DISTANCE OF 1264.07 FEET TO THE POINT OF BEGINNING; THENCE
S52°16'09"E, A DISTANCE OF 37.85 FEET; THENCE S43°24'56"E, A DISTANCE OF
113.49 FEET; THENCE A DISTANCE OF 102.20 FEET ALONG THE ARC OF A
CURVE TO THE LEFT HAVING A RADIUS OF 240.00 FEET AND A CENTRAL AN-
GLE OF 24°23'54", CHORD BEARS S55°36'53"E, A DISTANCE OF 101.43 FEET;
THENCE S67°48'50"E, A DISTANCE OF 19.74 FEET; THENCE S73°0713"E, A DIS-
TANCE OF 9.25 FEET; THENCE A DISTANCE OF 155.49 FEET ALONG THE ARC
OF A NON TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 429.45 FEET
AND A CENTRAL ANGLE OF 20°44'43", CHORD BEARS S88°47'58"E, A DISTANCE
OF 154.65 FEET; THENCE N81 °17'07"E, A DISTANCE OF 58.74 FEET; THENCE
N78°36'32"E, A DISTANCE OF 64.84 FEET; THENCE N76°14'15"E, A DISTANCE OF
243.49 FEET; THENCE N80°47'24"E, A DISTANCE OF 28.01 FEET; THENCE
N86°4518"E, A DISTANCE OF 18.89 FEET; THENCE A DISTANCE OF 173.56 FEET
ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 1,049.44
FEET AND A CENTRAL ANGLE OF 09°28'34", CHORD BEARS S88°30'25"E, A DIS-
TANCE OF 173.37 FEET; THENCE S85°07'24"E, A DISTANCE OF 274.54 FEET;
THENCE S86°32'08"E, A DISTANCE OF 977.48 FEET; THENCE S88°46'41"E, A DIS-
TANCE OF 186.26 FEET TO THE POINT OF TERMINUS, FROM WHICH SAID WIT-
NESS CORNER BEARS N10°10'17"W, A DISTANCE OF 1159.90 FEET.
Exhibit A
#93731 v3 bou
Tom Vel'ic
From: Don DeFord
Sent: Monday, June 14, 2010 7:18 AM
To: Tom Veljic
Cc: Fred Jarman
Subject: FW: County Roads 153, 165
a
EXHIBIT
Torn, I received this Friday Pm but just had time to review the contents. It is information that should be provided to the
BOCC and placed in the public record as part of the vacating hearings on these roads. Thank you.
Don K. DeFord, Garfield County Attorney
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From: John Wood [mailto:John.Wood@hro.com]
Sent: Friday, June 11, 2010 3:58 PM
To: Don DeFord
Cc: Mark Hamilton; Herb Klein
Subject: County Roads 153, 165
Don - After talking with Mark Hamilton and Herb Klein, let me add a couple of comments to the road petition
discussion:
1. Herb represents Carbondale Corporation, the co -petitioner in RVAC 6060, the petition to vacate a portion of
CR 153. He has pointed out, and I now agree, that vacating CR 153 without making a finding as to the vesting
of title creates confusion regarding title to the eastern segment of the right of way. The eastern segment is
essentially the driveway to the ranch house on the Carbondale Corporation property. Although it abuts the Iron
Rose property, pursuant to a prior boundary adjustment, we agreed that the right of way within the east segment
belongs to Carbondale Corp. The boundary adjustment, however, was effectuated by mutual quit claim deeds,
which do not convey after-acquired title. Accordingly, vacating CR 153, without more, creates a potential
claim by Iron Rose that it owns to the centerline of the roadway. This is not our intent. Accordingly, our
request is that (assuming that the Commissioners are amenable to approving the petition) the Board utilize the
original draft of the Resolution, which includes an express finding regarding how title vests to the vacated right
of way. Given that the abutting landowners are in agreement regarding this disposition, I am hoping that
including this finding is not controversial.
2. Mark represents John Nieslanik and other members of his family. The Nieslaniks do not own property
abutting CR 153 or 165, but do own properties that have utilized the roads in the past for various purposes.
Carbondale Corporation and Iron Rose have agreed to grant access easements on the vacated rights of way to
the Nieslaniks. After talking with Mark, we have agreed that it is appropriate to add these easements to the list
of preconditions to the effectiveness of the resolutions approving the road petitions.
Obviously, there are various mechanical matters to be worked through before Garfield County will feel
comfortable vacating these roadways. However, all of the easements have been circulated among counsel and
i
are either in final form or are very close to final. In other words, the Board is not wasting its time deliberating
on the road petitions at the Monday meeting. I consequently suggest that we try to obtain a consensus of the
Board at Monday's hearing, but then continue the hearing until all of the easements are in final form and final
resolutions have been drafted and approved. It is my understanding from Mark that the Board has recently
followed this procedure in another road vacation proceeding.
I will be on the road Monday morning for a meeting with Tom Bailey before the BOCC meeting. I will try to
catch you before the meeting, but feel free to call me on my cell phone ((303) 552-7528) as necessary. Thank
you for your patience in dealing with these complexities.
John B. Wood
Holme Roberts & Owen LLP
1801 Thirteenth Street, Suite 300
Boulder, CO 80302
Telephone: (303) 417-8514
Facsimile: (303) 866-0200
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