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Aspen, CO 81611
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Suite 224
Montrose, CO 81402
James F. Fosnaught
Partner/Shareholder
Michael J. Sawyer
Partner/Shareholder
jff@mountainlawfirm.com mjs@mountainlawfirm.com
Direct: 970.928.2120
Office: 970.945.2261
Fax: 970.945.7336
*Direct Mail to Glenwood Springs
February 23, 2024
Delivered Via Email
Garfield County Board of Adjustment
c/o Glenn Hartmann, Community Development Director
ghartmann@garfield-county.com
RE: Appeal of Administrative Interpretation
Dear Mr. Hartmann:
This letter is sent as an appeal of an Administrative Interpretation with respect to a Notice of
Violation dated February 15, 2024 and an accompanying letter from the Garfield County Attorney’s
Office dated the same date (together, the “Letters”). This appeal is made on behalf of the Ranch at
Roaring Fork Homeowners Association (the “Ranch”).
The noticed violations deal with a fence that separates a subdivision from a large irrigation
ditch. The Paterson Ditch Jacobson Extension (the “Ditch”) is decreed to carry in excess of 63 c.f.s.
starting on property within the St. Finnbar Subdivision, over which the Ranch owns a permanent and
exclusive easement, then on to the fee title property of the Ranch at Roaring Fork, and finally to other
water users to the north. A large amount of the water carried through the Ditch is decreed and used
for agricultural irrigation. The fence is a necessary and historic component of the agricultural use of
the Ditch.
First, the Letters indicate that the subject fence is a structure within the 35-foot river setback
and prohibited by Section 7-203 of the Land Use and Development Code (“LUDC”). We dispute this
interpretation. Garfield County has not provided proof that the fence is within the 35-foot river
setback despite requests from the Ranch. Further, the fence is an integral part of the Ditch. Numerous
water rights divert through the Ditch that are decreed for agricultural irrigation use.1 As such, the
fence is an accessory structure necessary to agricultural operations. Pursuant to Table 3-403, both
structures and accessory structures necessary to agricultural operations are permitted by right and
1 Water rights carried through the Paterson Ditch Jacobson Extension, WDID 3800930, are decreed for irrigation and
recreational uses and include, without limitation, Kelso Ditch water rights (WDID 3800798) decreed for irrigation, Bailey
BC Pump and Pipeline water rights (WDID 3801874), and other water rights used to fill nearby ponds for recreational
use. Copies of three water decrees are attached.
Page 2
exempt from all Article 7 Standards, including Section 7-203 cited in the Letters.
The fence is accessory to the Ditch. The fence protects and separates the agricultural use of
the Ditch from the surrounding development, preventing interference with the agricultural use and
ensuring that use of the Ditch can continue uninterrupted. Moreover, the Ditch, which has a carrying
capacity in excess of 63 c.f.s., is nearly 6 feet deep and would pose a threat to public safety without
the fence. The no trespassing sign is a component of the agricultural use as it puts individuals on
notice of hazards and private property ownership. To that end, the fence and sign are also necessary
to address safety concerns.
However, even if the subject fence is subject to Article 7 Standards, Section 7-203(B)
expressly allows irrigation and water division facilities, flood control structures and other reasonable
and necessary structures within the 35-foot river setback. The Administrative Interpretation fails to
acknowledge the applicability of the exception set forth in Section 7-203(B).
Further, agricultural uses, recreational structures, water supply ditches, irrigation ditches are
permitted within the Floodway and the 100-Year Floodplain pursuant to Table 3-301.
Page 3
Second, the Letters indicate that the subject fence required the issuance of a Building Permit.
We dispute that the 2015 International Building Code required a Building Permit. The Building Code
specifically exempts any fence built for agricultural purposes that is a post and wire construction.
For the reasons stated above, the fence was constructed for agricultural purposes, continues to
be used for agricultural purposes, and is of post and wire construction.
Page 4
Third, the letter from the County Attorney’s Office concludes that the fence is not a pre-
existing, non-confirming use. This conclusion is in error and without factual support because it does
not consider the entire area of the fence. The fence itself is lengthy and spans the boundary of property
held by the Ranch and an easement across Lot 7 of the St. Finnbar development. Several years ago, a
small portion of the fence required to be upgraded, which is permitted pursuant to Section 10-102(B).
The upgrades complied with Section 10-102(C) because the portion of the fence that was upgraded
constituted less than 50% of its area and actual value. The County’s Administrative Interpretation
failed to consider the full extent of Section 10-102.
Page 5
Next, the Letters indicate that the sign is a structure within the 35-foot river setback and
prohibited by Section 7-203. Again, we dispute this interpretation on the basis that the sign is
necessary to agricultural operations and permitted within the 35-foot river setback as allowed by
Section 7-203(B). The sign denotes private property and states that there is no trespassing, anchoring
or wading. To that end, it prevents third-party interference with the agricultural use of the Ditch and
protects private property from public use.
Lastly, the Letters indicate that Section 11-202(A)(4) prohibits the sign in its present location.
Section 11-202(A)(4) prohibits signs within public easements.
Page 6
The sign is not located within a public easement. The sign is located entirely on private
property. There is no basis under Section 11-202(A)(4) to order removal of the sign from its present
location.
I incorporate my previous letter to Mr. Plano dated January 19, 2024. Please confirm receipt
of this letter as notice of the Ranch’s appeal of the County’s Administrative Interpretation. To the
extent allowed by law, we request an opportunity to be heard and a public hearing.
Very truly yours,
KARP NEU HANLON, P.C.
James F. Fosnaught
Michael J. Sawyer
JFF:dts
Enclosures
cc: John Plano (Via Email)
H. Beattie (Via Email)
A
DISTRICT COURT, WATER DIVISION NO. 5, STATE OF COLORADO
Case No. 94CW304
RULING OF THE REFEREE AND DECREE OF THE WATER COURT
IN THE MATTER OF THE APPLICATION FOR WATER RIGHTS OF THOMAS H.
BAILEY
IN GARFIELD COUNTY, COLORADO
The above - captioned application was filed on December 12,
1994, and was referred to the undersigned as Water Referee for
Water Division No. 5, State of Colorado, by the Water Judge of
said Court in accordance with Article 92 of Chapter 37,
Colorado Revised Statutes 1990, known as the Water Right
Determination and Administration Act of 1969.
The undersigned Referee, having made such investigations
as are necessary to determine whether or not the statements in
the application are true, and having become fully advised with
respect to the subject matter of the application, does hereby
make the following determination and ruling as the Referee in
this matter:
1. This matter involves the Application to Make Absolute
Conditional Water Rights filed by Thomas H. Bailey, Post
Office Box 11234, Aspen, Colorado 81612.
2. All notices required by law have been duly given and
the Court has jurisdiction over the application.
3. By the application, applicant requests that the
following conditional water rights be decreed as absolute:
a) Name of Structures: (1) Bailey BC Pump &
Pipeline, (2) Kelso Ditch - Bailey Enlargement,
and (3) Foley Ditch - Bailey Enlargement.
b) Legal description of each point of diversion:
1) On the north bank of the Patterson - Jacobson
Extension Ditch, located in the SE1 /4SW1 /4 of
Section 26, T. 7 S., R. 88 W., 6th P.M., 3620
feet west of the east section line and 430 feet
north of the south section line of said
Section 26.
Water Div. 5 94CW304
f
RULING OF THE REFEREE AND DECREE
OF THE WATER COURT
4Y CUcv Jay
2) On the north bank of the Patterson - Jacobson
Extension Ditch, located in the SE1 /4SE1 /4 of
Section 26, T. 7 S., R. 88 W., 6th P.M., 290
feet west of the east section line and 250 feet
north of the south section line of said
Section 26.
3) The point of diversion is located at a
point 865 feet South and 123 feet West of the
Northeast corner of Lot 13, Section 26, T. 7 S.,
R. 88 W. of the 6th P.M.
c) Source:
1) -(2) Patterson- Jacobson Extension Ditch which
diverts water from and was historically a branch
of the Roaring Fork River.
3) Crystal Spring Creek, tributary to the
Roaring Fork River; return flows from the Kelso
Ditch, which diverts from the Patterson Jacobson
Extension Ditch, which in turn diverts from and
was historically a branch of the Roaring Fork
River; and seeps and springs.
d) Appropriation Date: January 3, 1992 for all
structures.
e) Amount: The amount claimed for each surface
water right is 5 cfs; provided however, that
maximum instantaneous combined diversions shall
not exceed 10 cfs.
f) Use: irrigation and year -round piscatorial,
recreation and fish propagation purposes.
4. In support of the application, applicant presented
evidence that he has diverted and used water from the BaileyBCPump & Pipeline, Kelso Ditch - Bailey Enlargement and FoleyDitch - Bailey Enlargement for irrigation and year -round
piscatorial, recreation and fish propagation purposes up tothefulldecreedamounts.
5. The Referee finds that all prerequisites to obtaining
an absolute water right have been performed, and that
applicant is entitled to and should be granted absolute water
rights for the Bailey BC Pump & Pipeline, the Kelso Ditch -
Bailey Enlargement and the Foley Ditch - Bailey Enlargement as
described herein.
PMFP:AE6 — 2 —
Water Div. 5 94CW304
RULING OF THE REFEREE AND DECREE
OF THE WATER COURT
The Referee therefore awards the applicant an absolute and
unconditional water right of 5 cfs each for the Bailey BC Pump
Pipeline, Kelso Ditch - Bailey Enlargement and Foley Ditch -
Bailey Enlargement, provided that maximum instantaneous
combined diversions shall not exceed 10 cfs, for irrigation
and year -round piscatorial, recreation and fish propagation
uses, with an appropriation date of January 3, 1992. These
water rights are subject only to the earlier priority rights
of others and to the integration and tabulation by the
Division Engineer of such priorities and changes of rights in
accordance with the law.
It is accordingly ORDERED that this Ruling shall be filed
with the Water Clerk subject to judicial review.
It is further ORDERED that a copy of this Ruling shall be
filed with the appropriate Division Engineer and the State
Engineer.
7
Dated this ,27 day of , 1995.
v.
v
No protest was filed in
is confirmed and approved,
of this Court.
BY THE EE:
9 &
Water Referee
Water Division No. 5
this matter. The foregoing Ruling
and is made the Judgment and Decree
Dated this Z%f( day of 1995.
BY THE COURT:
Water Judge
Water Division No. 5
ld
PMFP:AE6 —3 —