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Town sued by the homeowners above Big Mine Park

Holding $33 million threat over council’s heads

By Mark Reaman

Property owners living above Big Mine Park on the Bench are suing the town of Crested Butte in Gunnison District Court for what they believe is a wrongful attempt to take the hillside open space between the park and the homeowners.

The situation goes back several years as the town has attempted to work with the 12 property owners of the Heights to mitigate avalanche danger from the hillside during winter. While there seemed to be common ground on the need to mitigate the situation, no resolution was every formally made. The town has in the past hired a person to cut the snowpack to reduce avalanche danger.

The Heights homeowners have agreed with the need for the mitigation but expressed concern that the town would build some sort of structure on the hillside. The other major concern of the homeowners was that there would be liability issues for them if someone were injured in an avalanche.

According to town officials, last December title work revealed that the open space property was not officially deeded to the property owners when Trapper’s Crossing subdivision was established in the early 1990s. The town notified the homeowners and their attorney, Jacob With of Law of the Rockies, at the time that perhaps one solution to the problem would be for the town to acquire the property. When the town received no response to the idea, Crested Butte town manager Dara MacDonald negotiated with Trapper’s Crossing developer Ron Spence and was given a quitclaim deed for the open space property and another small parcel near the Nordic Center’s cat barn in early January.

The homeowners believe it is clear from the original 1991 plat that they own the open space property.

On February 6, With notified the town that the homeowners were suing unless the Town Council agreed to a proposed resolution. That proposal demanded the homeowners be guaranteed ownership of the hillside property, the town would be given an easement to enter the open space to perform avalanche mitigation, no structures would be built on the open space, and the town would maintain a general liability insurance policy in the amount of $5,000,000 per occurrence or $10,000,000 in the aggregate.

“My clients remain committed to working with the Town to provide reasonable access for limited purposes on the open space,” a letter to the town from With states. “However, given the Town’s posturing in this matter, my clients have filed a lawsuit against the Town as it is imperative that they are recognized as the owners of the open space.”

Should the town not agree to the resolution, the letter also makes it clear that because “the Town has engaged in wrongfully attempting to take the open space from the Heights’ owners…the amount of damages identified is $33,000,000. Should this dispute not resolve, my clients will amend their complaint to include these claims.”

Court filings indicate the homeowners believe that the town wants to build structures on the open space and that the town wants to “use the open space for special events.” The filing makes it clear that the homeowners want “the ultimate right to say what occurs on the open space, and not the Town. Should they prevail in this action, Plaintiffs [homeowners] intend to continue to work with the Town to ensure that avalanche mitigation is permitted to occur.”

MacDonald expressed disappointment in the legal action, given that it appears everyone is generally on the same page. “The town was disappointed that the homeowners did not respond to the letter we sent in December inviting a conversation rather than threatening litigation, especially with such an astounding monetary claim,” she said. “The town’s goal has been, and remains, to find a safe way to consistently mitigate the avalanche threat on the slope and ensure that the public uses on the property that have existed for many years may remain.”

The town is considering how to officially respond to the lawsuit. An executive session with the town council, town attorney and town manager was held on the matter at the February 20 meeting.

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