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Ditch improvement proposal results in lawsuit for town of CB

New property owners make demands

By Mark Reaman

Legal arguments have stalled a chance to realign, pipe and improve the McCormick Ditch that runs on the north and east side of town. It has also stopped a new subdivision proposal and resulted in a lawsuit filed by the subdivision’s developers, the Kapushion family.

Despite an agreement from the town of Crested Butte to take over maintenance responsibility of the ditch, one of the three owners of the ditch, Sheep Mountain Partners, LLC representing the Marten family, has appeared to gum up the works but the LLC’s attorney is confident the issues will eventually be resolved.

Sheep Mountain Partners owns 40 acres of private open space on the Crested Butte’s eastern boundary. Town planner Michael Yerman indicated that while requests to deal with the ditch matter had been ongoing for months, it wasn’t until the town put the matter in front of the Town Council for approval that Sheep Mountain sent a letter with concerns and demands through the law firm Holland and Hart of Aspen. In a letter dated May 1, attorney Mark Hamilton details concerns with the ditch relocation proposal.

The town’s water attorney, Scott Miller, along with the Kapushions, responded by agreeing to make several changes to the proposed agreement to help alleviate the stated concerns. The town agreed to be responsible for all future routine operation and maintenance of the ditch. It also promised that the new underground ditch pipe would not have inlets for storm water.

Two weeks later, Hamilton responded that the solutions were not good enough especially when it came to drainage and storm water issues. Long-term replacement costs were also a concern. It was also clear in the response that any and all costs regarding the ditch, including legal fees, should be picked up by the developers.

The third ditch owner, Verzuh Ranch, Inc., indicated it was willing to approve the ditch agreement.

The town was amenable to some of the requests in the second letter; however, in a memo to the council, Yerman informed the council members that “the Kapushions have indicated they are not amenable to further revisions… upon receiving the letter, the Kapushions requested the Town suspend all additional negotiations with Sheep Mountain Partners, LLC.” And the Kapushions then filed a lawsuit asking for a declaratory judgment against all three ditch owners to relocate the ditch.

The town seems to agree with the Kapushions judicial request for a declaratory judgment given the last set of requests.

At the June 19 Town Council meeting, the council and staff met with its attorneys in executive session to discuss the issue. Afterwards, Yerman said the town was willing to move forward with some of the new requests and demands but they were respecting the Kapushion request to stop negotiating. “We are at a standstill,” Yerman said. “But we are not objecting to the relocation of the ditch.”

The council did pass a resolution at the meeting approving a new Development Improvements Agreement and a Ditch Relocation Agreement with the Kapushions.

But everything is on hold for the moment while the court considers the lawsuit and the lawyers ring up more time. Sheep Mountain Partners’ attorney Hamilton said Tuesday that such ditch relocation requests are more complex than most people realize. He indicated the Martens are looking to the future and protecting their investment. He also was confident that the issues would eventually be resolved and the ditch relocated to the satisfaction of all the parties.

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