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Heights subdivision homeowners officially file lawsuit against town

Who owns the hillside? 

By Mark Reaman

The 12 property owners in the Heights subdivision, located on The Bench above Big Mine Park, have officially served the town of Crested Butte with a lawsuit in Gunnison District Court concerning the steep open space below the homesites. No damages were listed in the lawsuit even though the homeowners had previously threatened to sue the town for $33 million over the issue.

The dispute started over ownership of the hillside open space. The town and subdivision have worked together in the past to mitigate avalanche hazard on the site, as it sits above the heavily used Big Mine Park, Nordic Center, sled hill and ice arena.

The lawsuit is asking the court for a declaratory judgment that the homeowners and not the town own the open space on the steep hill in question. The lawsuit makes it clear that the homeowners want the final say over what could be built on the property and what activities would be allowed on the property.

According to town officials, last December, title work revealed that the open space property was not officially deeded to the property owners when the 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, that perhaps one solution to the ownership 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, however, believe it is clear from the original 1991 plat that they own the open space property.

The owners say in the lawsuit, “They are the owners of the open space and want to ensure that no structures are ever constructed in the open space. During discussions with the Town, it was clear that the town wanted the ability to construct various structures in the open space. Plaintiffs also fear that the Town will use the open space for special events. While Plaintiffs support the Town and may be supportive of special events in the open space, they want to ensure that such events are reasonable. The open space is essentially Plaintiffs’ backyard and it is an amenity that they all paid for when they purchased their lots. The Town has unilaterally endeavored to obtain control of the open space despite the objections of the Plaintiffs.”

The lawsuit also states that the Heights property owners “desire to work with the town for adequate avalanche mitigation on the open space and to ensure that appropriate use of the open space is provided to the public.”

MacDonald said the town has never said there were plans for structures or events on the property. “The Town has requested that we be able to construct avalanche fencing in the future, though there are no current plans (or funding),” she explained. “We have offered that if fencing were ever constructed in the future that it would be out of the viewshed from the lots in the Heights. The Town has never expressed any interest in allowing special events at that location. As you know, it is a very steep hillside.”

Filed through Law of the Rockies on April 6, the lawsuit names both the town and the Town Council as defendants.

The plaintiffs in the lawsuit against the town involve all 12 property owners. They include R and S Journey’s End, LLC, Jodie and Lee Strauss, Roxie Lypps, Dorothy and Thomas Haskell, Edward Felton, James Lohr, the James A. Murray Revocable Trust, Jennifer and Sean Reilly, the David L. Manning and Lisa Z. Manning Revocable Trusts, Matthew and Ann Cullinan, and Fort-A, LLC.

“The plaintiffs have not added the claims for damages to the action at this time,” explained With.

Crested Butte town attorney Barbara Green said the town has three weeks to respond to the lawsuit. “The rules of civil procedure require the Town to file an answer to the complaint within 21 days of the date of service so that is the next step in the litigation,” she explained. “We haven’t met with council yet to discuss their thinking on the matter.”

The council does have a meeting on Monday, April 16.

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