HomeMy WebLinkAbout2016CV31096 - CITY OF FORT COLLINS, A COLORADO MUNICIPAL CORPORATION; AND POUDRE FIRE AUTHORITY, A COLORADO PUBLIC ENTITY V. KEITH GILMARTIN - 072 - PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW2680276.4
DISTRICT COURT, LARIMER COUNTY, COLORADO
Larimer County Justice Center
201 La Porte Avenue
Suite 100
Fort Collins, CO 80521
970-494-3500
▲ COURT USE ONLY ▲
Plaintiffs:
CITY OF FORT COLLINS, a Colorado municipal
corporation; and POUDRE FIRE AUTHORITY, a Colorado
public entity,
v.
Defendant:
KEITH GILMARTIN, an individual.
Attorneys for Plaintiffs:
Kelley B. Duke, #35168
Benjamin J. Larson, #42540
IRELAND STAPLETON PRYOR & PASCOE, PC
717 17
th
St. Suite 2800
Denver, Colorado 80202
Telephone: (303) 623-2700
Fax No.: (303) 623-2062
E-mail: kduke@irelandstapleton.com
blarson@irelandstapleton.com
SPECIAL COUNSEL FOR THE CITY OF FORT
COLLINS; ATTORNEYS FOR POUDRE FIRE
AUTHORITY
Case No.: 2016CV31096
Ctrm: 3C
PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs the City of Fort Collins and the Poudre Fire Authority, by and through their
undersigned counsel, IRELAND STAPLETON PRYOR & PASCOE, PC, respectfully submit the following
Proposed Findings of Fact and Conclusions of Law, stating as follows:
This matter came before the Court for trial on August 14-15, 2017. Plaintiffs the City of
Fort Collins (the "City") and the Poudre Fire Authority (the "Authority", collectively with the City,
DATE FILED: September 8, 2017 3:23 PM
FILING ID: AB6BFAC1F101A
CASE NUMBER: 2016CV31096
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"Plaintiffs") were represented by Kelley B. Duke and Benjamin J. Larson of the law firm of Ireland
Stapleton Pryor & Pascoe, PC. Defendant Keith Gilmartin represented himself pro se. The Court,
having considered the briefing submitted and the relevant legal authorities, the evidence presented
at trial, and the proposed findings of fact and conclusions of law submitted by the parties, makes
the following findings of fact and conclusions of law and enters the following order:
INTRODUCTION AND PROCEDURAL HISTORY
1. The Authority filed its Complaint against Mr. Gilmartin on November 18, 2016,
asserting claims for trespass and private nuisance and asking the Court to enjoin Mr. Gilmartin
from interfering with the Authority's rights under a January 15, 1991, Deed of Easement conveyed
by Mr. Gilmartin and his parents to the City (the "Deed of Easement"). On March 27, 2017, the
Authority amended its Complaint, joining the City as a party and asking the Court for a declaration
of Plaintiffs' rights under the easement that is the subject of the Deed of Easement (the
"Easement").
2. On May 15, 2017, Plaintiffs filed a Motion for Partial Summary Judgment
concerning the scope of the Easement.
3. While the Motion for Partial Summary Judgment was still pending, Judge Howard
entered a Temporary Restraining Order against Mr. Gilmartin on June 8, 2017, enjoining him from,
among other things, engaging in threatening, intimidating, or harassing behavior directed at people
using the Easement. On June 28, 2017, by stipulation of the parties, the Court entered a
Preliminary Injunction against Mr. Gilmartin, enjoining him in the same manner as in the
Temporary Restraining Order.
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4. On August 3, 2017, the Court granted, in part, Plaintiffs' Motion for Partial
Summary Judgment, ordering that: (1) the Easement is a public easement for establishing a right-
of-way for access to the Poudre Fire Authority Training Facility; (2) Plaintiffs and their respective
directors, officers, employees, volunteers, agents, guests, and invitees may use the Easement for
ingress and egress to the Poudre Fire Authority Training Facility; and (3) any further interference
by Mr. Gilmartin with Plaintiffs' right of access under the Deed of Easement will constitute
trespass and private nuisance. The Court reserved for trial whether the scope of the Easement
extended beyond merely ingress and egress to the Training Center as claimed by Mr. Gilmartin,
and, more specifically, whether the Deed of Easement established a public roadway "for all uses
that a public roadway may be used as authorized by the City."
5. At trial, the Court heard evidence concerning the scope of the Easement and
whether Mr. Gilmartin should be permanently enjoined from interfering with persons using the
Easement. Because Mr. Gilmartin did not provide Plaintiffs' counsel with a witness or exhibit list
prior to trial, the Court did not permit him to present evidence other than his own direct testimony.
6. The Court now enters judgment in favor of Plaintiffs, ordering that: (1) the
Easement is a public roadway for use by the public as authorized by the City, including, but not
limited to, ingress and egress, parking, and turning around; (2) Plaintiffs and their respective
directors, officers, employees, volunteers, agents, guests, and invitees, including members of the
general public, may use the Easement for such purposes; and (3) Mr. Gilmartin is permanently
enjoined from interfering with the Easement as set forth below.
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FINDINGS OF FACT
The Court finds as follows:
Background of the Parties and the Easement
7. The City is a municipal corporation organized under the laws of the State of
Colorado. Fort Collins Charter Art. I, § 1.
8. The Authority is a public entity formed in 1981 by an Intergovernmental
Agreement between the City and the Poudre Valley Fire Protection District to provide fire and
emergency services to the citizens and their property within Plaintiffs' jurisdictional boundaries.
Ex. 25, July 15, 2014 Amended and Restated Intergovernmental Agreement Establishing Poudre
Fire Authority, § 1.2 ("2014 IGA").
9. Mr. Gilmartin is an individual who resides at 3316 West Vine Drive, Fort Collins,
Colorado 80521 ("Gilmartin Property").
10. The Authority operates a Training Center located at 3400 West Vine Drive in Fort
Collins, Colorado ("Training Center"), west of the Gilmartin Property.
11. On January 15, 1991, Mr. Gilmartin and his parents, in exchange for the sum of
$4,669.00, granted, sold, and conveyed to the City the Easement, which is described, in pertinent
part in the Deed of Easement, as follows:
a perpetual easement and right-of-way to install, operate, maintain, repair,
reconstruct, replace, inspect and remove, at any time and from time to time
public improvements (including without limitation, street, utilities,
sidewalk and drainage), together with a right-of-way for access on, along,
through and under all of the hereinafter described real property . . . .
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Ex. 4, Deed of Easement.
1
12. Mr. Gilmartin testified that, at the time the Easement was conveyed, he was living
in California. Other than signing the Deed of Easement, Mr. Gilmartin played no direct role in
negotiating the Easement with the City.
13. West Vine Drive is a public street where it dead ends on the Gilmartin Property.
The Easement extends West Vine Drive through the Gilmartin Property to the property on which
the Training Center sits. Ex. 47. Architectural drawings attached to the Deed of Easement
recorded in 1991 label the Easement as "W. Vine Extension." Ex. 4 at 8.
14. The property on which the Training Center sits is the property benefited by the
Easement. Pursuant to the 2014 IGA and an October 12, 2016 Intergovernmental Agreement
entered into by and between the City and the Authority, the Authority has the power, duty, and
responsibility to maintain, operate, manage, control, and assert all rights under and pursuant to the
Easement. Exs. 25 and 43.
15. The City's Deputy City Manager, Jeff Mihelich, testified that, because the Deed of
Easement conveyed a public easement and also a public right-of-way to install public
improvements, including a public street, the Easement is a public street, and the City has always
treated the Easement as such.
16. In or about 1995, pursuant to the express language in the Deed of Easement,
Plaintiffs extended West Vine Drive by installing a paved roadway on the Easement from West
1
The Deed of Easement was re-recorded on March 15, 2011 with the Larimer County Clerk and
Recorder at Reception No. 20110016645 in order to correct a scrivener's error in the legal
description. Ex. 8. The legal description in the re-recorded Deed of Easement is the operative
legal description.
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Vine Drive to the Training Center. The public has been able to, and has accessed, the Easement
from West Vine Drive since the paved roadway was installed.
17. Mr. Mihelich testified that the City commonly obtains public rights-of way such as
the Easement through a deed of conveyance, rather than by a statutory dedication in a plat. Mr.
Mihelich testified that these public rights-of-way are public streets regulated by the City. For
instance, the City regulates speed, parking, turning around, and other uses of these public streets.
18. Like other public rights-of-way in the City, the City regulates and permits parking
and turning around on the Easement. These uses are also consistent with the physical
characteristics of the Easement. At the point where West Vine Drive connects to the Easement,
the paved portion of West Vine Drive is approximately 25 feet wide whereas the Easement is 70
feet wide. Ex. 4 at 7.
19. Mr. Mihelich testified that the purpose of obtaining an easement of such width is to
ensure space on the shoulders for uses like parking and turning around. Such uses are particularly
important in this context because members of the general public often find themselves at the dead
end of West Vine Drive, and the Easement provides a safe place for them to turn around. Mr.
Mihelich testified that the City would not have obtained an easement and right-of-way that was so
much wider than the existing public street if the intent was for the Easement to be limited to merely
ingress and egress.
20. Because the City has access to the entire 70-foot portion of property described in
the Deed of Easement, Mr. Mihelich testified that the City can construct public improvements on
either side of the existing paved portion of the Easement, such as a sidewalk or lined parking
spaces. On several occasions over the last 15 years, the City, through the Authority, has improved
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the shoulders of the Easement, including laying materials such as gravel for people to park and
turn around.
21. Like other public rights-of-way in the City, the City, through the Authority,
maintains the Easement, including both the paved roadway and the shoulders of the Easement.
Plaintiffs also collect trash and mow the grassy area of the Easement to either side of the paved
roadway. Speed limit signs have been posted, indicating that drivers should not exceed 25 miles
per hour within the Easement.
22. Mr. Gilmartin admits that the Deed of Easement permits the City to construct public
improvements on the entire portion of the Easement, and that the City could even construct a
building on the Easement.
Boundaries of the Easement
23. In 2013, the boundaries of the Easement were surveyed and then later re-confirmed
by representatives of King Surveyors, Inc. Mr. Steven Parks, a Senior Project Coordinator with
King Surveyors, Inc., was qualified as an expert witness in the subject of reading, interpreting, and
surveying legal descriptions.
24. Mr. Parks testified that three of the four corners of the Easement are currently
marked by pins set in the ground on the Gilmartin Property, each of which has a green cap and an
identifying number of 34995. The southeast corner of the Easement, which sits in an asphalt
driveway to a Colorado State University training facility, is marked by a "PK" nail in the asphalt.
Mr. Parks testified that a PK nail is an industry-accepted method of marking a boundary in asphalt.
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Mr. Gilmartin's Interference with the Easement
25. When the Easement was conveyed to the City in 1991, Mr. Gilmartin's parents were
living on the Gilmartin Property. Mike Gress, a representative of the authority, testified that during
this time, both the Authority and the general public used the Easement without objection from Mr.
Gilmartin's parents, including for such uses as parking and turning around. Throughout that time,
the Authority maintained a good relationship with Mr. Gilmartin's parents.
26. Representatives of the City and the Authority testified that these uses did not, and
do not, interfere with Mr. Gilmartin's use of the Gilmartin Property. Mr. Gilmartin did not present
evidence to the contrary.
27. Almost 20 years after the Easement was conveyed, and after Mr. Gilmartin's parents
had passed away and Mr. Gilmartin had moved back to the Gilmartin Property, Plaintiffs began
experiencing problems with Mr. Gilmartin. Those problems centered around Mr. Gilmartin
harassing and interfering with people using the Easement, including the Authority's staff, the
Authority's invitees, and the general public.
28. The testimony and the documents show several reported incidents of Mr. Gilmartin
harassing and intimidating people driving on the Easement by, among other things, shouting and
cursing at them, taking pictures of them, blocking their path, and striking their vehicles with his
hands. Mr. Gilmartin admitted to shouting and cursing at people and to taking approximately
1,000 videos or photographs of people using the Easement. There was testimony concerning an
incident reported in June 2013, when Mr. Gilmartin confronted and shouted profanities at an
elderly volunteer who delivered intra-office mail for the Authority.
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29. More recently, in May 2017, Mr. Gilmartin stepped in the path of a firefighter
driving to the Training Center, resulting in the firefighter nearly striking Mr. Gilmartin. Mr.
Gilmartin repeatedly struck the firefighter's vehicle with his hands. The firefighter testified that
he was scared of Mr. Gilmartin. Ex. 49.
30. On more than one occasion, Mr. Gilmartin has interfered with contracted
landscapers who maintain the Easement. For example, in May 2015, Mr. Gilmartin confronted
two teenaged employees of the landscaping company while they were parked in the Easement.
Mr. Gilmartin shouted obscenities and blocked their path with his own vehicle so that they could
not leave. Ex. 27. In the police report, Mr. Gilmartin admitted to the responding officer that "he
could understand that the young teenage boys may have been alarmed and scared at the situation
that had taken place." Id. Mr. Gilmartin also admitted this in his testimony.
31. Mr. Gilmartin has also obstructed or interfered with Plaintiffs and the public's use
of the Easement by placing heavy obstructions within the Easement, by using his vehicle to prevent
people from turning around in the Easement, and by installing unauthorized signs with the
Authority's logo that incorrectly represent the Easement as being for Authority use only. Exs. 29,
37, 38, and 44.
32. In another incident in July 2015 involving the Larimer County Sherriff's office, Mr.
Gilmartin took the position that the Easement was a public street in an effort to justify why he
intentionally moved his vehicle into the path of fire trucks turning around on the Easement. Ex.
29 at 4. At this time, it appears that Mr. Gilmartin believed the Easement was a public street, but
he was upset that the City was permitting the Authority—of which the City is a partner—to use
the Easement for turning apparatus around. Representatives of the Authority testified that the
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Authority commonly uses City property, including streets, parks, and parking lots for training
maneuvers as authorized by the City.
33. Several police reports were introduced, without objection, that detail Mr.
Gilmartin's actions related to the Easement. Mr. Gilmartin attempted to dispute certain details of
the incidents testified to by Plaintiffs' witnesses, but Mr. Gilmartin did not dispute that the incidents
occurred. To the extent Mr. Gilmartin's version of the incidents varied to some degree from
Plaintiffs' version, the Court does not find Mr. Gilmartin's testimony credible because of
discrepancies in his own version of events, mischaracterizations by Mr. Gilmartin of evidence in
the record, and the number of incidents that occurred.
Impact of Mr. Gilmartin's Actions
34. Testimony from representatives of the City, Authority and the CSU Police
Department indicates that Mr. Gilmartin's actions have had a significant impact on the public.
Lieutenant Adam Smith of the CSU Police Department testified that over the last ten years, the
CSU Police Department has had several documented incidents with Mr. Gilmartin and several
more undocumented incidents of which Lt. Smith was personally aware, all relating to issues with
the Easement. As part of these interactions, Mr. Gilmartin has repeatedly been instructed to contact
the police and to not engage in self-help concerning the Easement, but he has ignored these
requests. Lt. Smith testified that Mr. Gilmartin's behavior poses a threat to public safety. Lt. Smith
is also concerned that Mr. Gilmartin's behavior could escalate into something more dangerous.
35. Lt. Smith testified that CSU spends an inordinate amount of public resources
responding to incidents involving Mr. Gilmartin and the Easement. Not only are the incidents
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frequent, officers responding to calls involving Mr. Gilmartin must go in teams of two because of
the threat Mr. Gilmartin poses.
36. Battalion Chief Randy Callahan of the Authority has overseen issues with Mr.
Gilmartin for several years. Chief Callahan testified that addressing Mr. Gilmartin's actions takes
significant time and resources away from the Authority's emergency response duties. The
Authority's staff are also affected because they work in a state of fear of Mr. Gilmartin. The
testimony has shown that, because of Mr. Gilmartin, the Authority has had to hire police protection
for public events, give forewarning to police authorities when contractors are maintaining the
Easement, order staff to have no contact with Mr. Gilmartin, and place the Training Center on
temporary lockdown. Exs. 31, 42, 46.
CONCLUSIONS OF LAW
37. In order to resolve the parties' dispute, the Court first determines the scope of the
parties' rights under the Deed of Easement. Next, the Court addresses whether Mr. Gilmartin's
actions constitute trespass and private nuisance. Finally, the Court addresses whether Mr.
Gilmartin should be permanently enjoined from interfering with the Easement.
The Easement Is a Public Roadway
38. Pursuant to C.R.C.P. 57 and C.R.S. § 13-51-106, this Court has the authority to
declare the parties' rights under the Deed of Easement.
39. To ascertain the extent of an expressly created easement, courts examine the
instrument conveying that right to determine the parties' intent. Allen v. Nickerson, 155 P.3d 595,
600 (Colo. App. 2006) (citing Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229 (Colo.
1998)). Extrinsic evidence may not be used "to contradict the language of the written instrument;
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rather, extrinsic evidence is used to explain and give context to the language." Id. (quoting Lazy
Dog Ranch, 965 P.2d at 1237).
40. Plaintiffs argue that the Deed of Easement established a public roadway to be used
by the public as authorized by the City within its general police powers. As raised by the Court in
its Order Granting Partial Summary Judgment, the issue is whether the Easement has been
dedicated to the City as a public roadway.
41. "Dedication is the appropriation of an interest in land by the owner of such interest
to public use." Turnbaugh v. Chapman, 68 P.3d 570, 572 (Colo. App. 2003). Under Colorado
law, "a dedication of land to public use may be made either according to the common law or
pursuant to statute." Denver v. Publix Cab Co., 308 P.2d 1016, 1019 (1957). The statutory
dedication of a street grants fee title to the property, whereas common law dedication grants an
easement, not fee ownership. Near v. Calkins, 946 P.2d 537, 541 (Colo. App. 1997).
42. Plaintiffs do not contend that there has been a statutory dedication pursuant to
C.R.S. § 31-23-107. Rather, Plaintiffs contend that there has been a common law dedication of a
public roadway. "Common law dedication requires that (1) the property owner unequivocally
intended to dedicate the property and (2) the governmental authority accepted the dedication."
Turnbaugh, 68 P.3d at 572. "Both the dedication and the acceptance may be shown by an
instrument in writing, or by acts and declarations." Mitchell v. Denver, 78 P. 686, 687 (Colo.
1904).
43. Here, a common law dedication has been established by both an instrument in
writing and by the acts of the parties. First, pursuant to the Deed of Easement, the Gilmartins
conveyed to the City—a public entity—a "perpetual easement and right-of-way to install, operate,
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maintain, repair, reconstruct, replace, inspect and remove, at any time and from time to time public
improvements, including without limitation, street, utilities, sidewalk and drainage." Ex. 8
(emphasis added).
44. By the plain language of the Deed of Easement, the Gilmartins conveyed to the City
a right to install a public street across the Gilmartin property. Mr. Gilmartin admitted on cross-
examination that the City is authorized to use the Easement to install public improvements,
including street and sidewalks.
45. The fact that the Deed of Easement was intended as a dedication is further
evidenced by the City's formal acceptance of the conveyance. Contrary to a typical deed of
conveyance that is only signed by the grantor, the Deed of Easement states that the conveyance is
"Accepted by the City of Fort Collins, Colorado this 17 day of January 1991," and is signed by the
City Manager. Ex. 8 at 4.
46. Second, Plaintiffs presented unrebutted testimony that: (i) the Easement has been
accessible to the public since it was granted; (ii) Plaintiffs installed a paved street on the Easement
in or about 1995; (iii) Plaintiffs improved the shoulders of the Easement on several occasions; (iv)
Plaintiffs and the general public have used the Easement as any other public street, i.e., for
transport, parking, and turning around; (v) Plaintiffs have installed speed limit signs on the
Easement as with any other public street; (vi) Plaintiffs have maintained the Easement, including
the paved roadway and the shoulders; and (vii) the City has repeatedly maintained in documents
and correspondence that the Easement is a public street for public use.
47. Moreover, the Easement was used as a public street without objection from Mr.
Gilmartin's parents for several years after they conveyed the Easement to the City. Mr. Gilmartin's
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parents were the grantors that negotiated the Easement with the City. Only about a decade later,
after Mr. Gilmartin was living on the Property and his parents had passed away, did Mr. Gilmartin
begin objecting to how the Easement was being used.
48. Under these facts, the Court finds that, by way of common law dedication, the
Gilmartins dedicated the Easement to the City as a public right-of-way for, among other things, a
public street.
49. While Mr. Gilmartin concedes that Deed of Easement permits the City to install a
public street and other public improvements, he contends that such public improvements can only
be used for ingress and egress to and from the Training Center. However, neither the Training
Center nor any other specific destination is mentioned in the Deed of Easement. As a public street,
the Easement can be used by the general public, and access to the benefited property is one of the
authorized uses.
50. Mr. Gilmartin contends that the Easement is strictly limited to ingress and egress
because, after conveying a perpetual easement and right of way to install a public street, the Deed
of Easement includes the following clause: "together with a right-of-way for access on, along,
through and under all of the hereinafter described real property." Ex. 8. The Court rejects this
argument.
51. The dedication of a "right-of-way for access" creates a public road, the use of which
is regulated by the governing municipality within its police powers. For example, in Turnbaugh,
the dedication was for a "future access easement." 68 P.3d at 571 (emphasis added). Even with
the word "access" as a modifier, the court held that the grantee county received "an easement for
the development of a future road." Id. The court reasoned that that "[o]nce a roadway is accepted
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by a local government and used by the public, its status as a roadway continues until vacation or
abandonment." Id. at 573 (characterizing public "access easement" as a "public highway"); see
also C.R.S. § 43-2-201 (stating that "public highways" include "[a]ll roads over private or other
lands dedicated to public uses by due process of law").
52. Like the court in Turnbaugh, the City's Municipal Code does not treat the presence
of the modifier "access" as causing the grant to be of anything less than a public street. Pursuant
to the City's Municipal Code, the term "street" is defined as follows:
The word street shall mean a public way (whether publicly or privately
owned) used or intended to be used for carrying vehicular, bicycle and/or
pedestrian traffic, and shall include the entire area within the public right-
of-way and/or public access easement.
City of Fort Collins, Municipal Code § 1-2 (emphasis added).
2
53. Consistent with the Municipal Code, the City's Deputy City Manager testified that
public streets throughout the City have been acquired via grants of public rights-of-way in
instruments such as the Deed of Easement. The City Manager also testified that the City exercises
its police powers to permit and regulate the uses of public streets within the City, such as speed
limits, parking, and turning around. See also Municipal Code § 23-46 (regulating and prohibiting
"obstructions" on any City "street"); City Traffic Code § 102 (stating that the City's Traffic Code,
which regulates parking, "shall apply to every street . . . and to every other public way"); City
Traffic Code §§ 1203, 1206 (generally permitting parking on "streets" if parking does not interfere
with the flow of traffic and prohibiting parking in specified places).
3
2
Available at https://www.fcgov.com/cityclerk/codes.php.
3
The City's Traffic Code is also available at https://www.fcgov.com/cityclerk/codes.php.
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54. A local government's authority to regulate public streets pursuant to its general
police powers has long been recognized under Colorado law. Dillon v. Yacht Club Condos. Home
Owners Ass'n, 325 P.3d 1032, 1038 (Colo. 2014) (upholding town's regulation of parking within
a "street", which was defined under the town's code as "the entire width of every dedicated public
right-of-way", as a lawful exercise of Town's police powers); see also Denver v. Publix Cab Co.,
308 P.2d 1016, 1019 (1957) (holding that airport concourse roadway was dedicated by common
law to public use and "is a public area and thoroughfare subject only to the City's general police
powers" (emphasis added)).
55. If the Court were to adopt Mr. Gilmartin's interpretation as strictly limiting the use
of the Easement to merely ingress and egress, the Court would be taking from the City and giving
to Mr. Gilmartin the authority to regulate the use of a public street dedicated to the City.
56. Moreover, the extrinsic evidence here, which the Court can rely upon to explain
and give context to the Deed of Easement, supports a finding that the Easement is a public street
to be used by the public as authorized by the City. Allen, 155 P.3d at 600. Mr. Gilmartin's parents,
the original grantors who negotiated with the City, never raised any objections to the Easement
being used by the general public in the same manner as a public street, including for parking and
turning around.
57. Accordingly, the Court finds that the Easement is a public roadway that can be used
by the general public, including by Plaintiffs, for all uses that a public roadway may be used as
authorized by the City.
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Mr. Gilmartin's Actions Constitute Trespass and Private Nuisance
58. To establish a claim for trespass, a plaintiff must show that: (1) it was in lawful
possession of the property; (2) the defendant intentionally entered upon the plaintiff's property;
and (3) the defendant's trespass caused damage to the plaintiff's property. CJI-Civ 18:1. A
"trespass" may occur even without direct entry if the defendant acts in a manner intended to injure
plaintiff's property. If there are no actual damages, nominal damages may be awarded. CJI-Civ
18:2, n.7.
59. Here, the evidence establishes a trespass by Mr. Gilmartin. There is no dispute that
Plaintiffs are in lawful possession of the Easement. On several occasions, Mr. Gilmartin has
entered onto the Easement to interfere with Plaintiffs' rights under the Deed of Easement by, for
example, placing obstructions within the Easement. He has also intended to injure Plaintiffs' rights
under the Deed of Easement by placing unauthorized signs purporting to limit the use of the
Easement. While Plaintiffs do not seek damages against Mr. Gilmartin, nominal damages are
sufficient to establish trespass. CJI-Civ 18:4.
60. To establish a claim for private nuisance, a plaintiff must show that: "(1) the
defendant's conduct unreasonably interfered with the use and enjoyment of the plaintiff's property,
(2) the interference was so substantial that it would have been offensive or caused inconvenience
or annoyance to a reasonable person in the community, and (3) the interference was either
negligent or intentional." Saint John's Church in the Wilderness v. Scott, 194 P.3d 475, 479 (Colo.
App. 2008).
61. Here, Plaintiffs have satisfied the elements of a private nuisance claim. Mr.
Gilmartin's intentional actions constitute unreasonable interference with the Easement that would
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be offensive to a reasonable person in the community. Plaintiffs do not seek damages against Mr.
Gilmartin for private nuisance.
Mr. Gilmartin Is Permanently Enjoined from Interfering with the Easement
62. Plaintiffs do not seek damages against Mr. Gilmartin; rather, they seek to
permanently enjoin Mr. Gilmartin from interfering with the Easement. "A party seeking a
permanent injunction must show that: (1) the party has achieved actual success on the merits; (2)
irreparable harm will result unless the injunction is issued; (3) the threatened injury outweighs the
harm that the injunction may cause to the opposing party; and (4) the injunction, if issued, will not
adversely affect the public interest." Dallman v. Ritter, 225 P.3d 610, 621 n.11 (Colo. 2010).
63. Each element is satisfied. First, Plaintiffs have proven their claims for trespass,
private nuisance, and declaratory judgment. Second, Mr. Gilmartin's actions in interfering with
the Easement pose a threat to public safety, and therefore irreparable harm will result unless an
injunction is issued. Third, the threat to public safety outweighs the de minimis harm to Mr.
Gilmartin. Fourth, issuing the injunction will promote the public interest by safeguarding the
public and by preserving public resources that are expended in addressing incidents related to Mr.
Gilmartin and the Easement.
64. Accordingly, Mr. Gilmartin is enjoined from interfering with the Easement as set
forth below.
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ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED:
A. The Court declares that: (1) the corner boundaries of the Easement are reflected in
the ALTA/ACSM Land Title Survey at Exhibit 16 and are physically marked by the three pins set
at the northeast, northwest, and southwest corners of the Easement (each with a green cap and
identifying number of 34995) and by the PK nail set at the southeast corner of the Easement in the
asphalt; (2) the Easement is a public roadway for use by the public as authorized by the City,
including, but not limited to, for ingress and egress, parking, turning around, and any other
permitted uses of a public roadway; and (3) Plaintiffs and their respective directors, officers,
employees, volunteers, agents, guests, and invitees, including members of the general public, may
use the Easement for such purposes.
B. The Court permanently enjoins Mr. Gilmartin, at all times on all days, from
interfering with the Plaintiffs' or the public's rights under the Deed of Easement, including but not
limited to, enjoining Mr. Gilmartin from: (1) interfering with any person using the Easement; (2)
placing anything whatsoever within the boundaries of the Easement (Mr. Gilmartin is allowed his
use his property within the Easement, including using it to access other parts of the Gilmartin
Property, as long as he does not interfere with the use of the Easement); (3) placing any sign,
barrier or other object that interferes with the use and enjoyment of the Easement; (4) engaging in
threatening, intimidating, or harassing behavior directed at people using the Easement, including
but not limited to shouting, cursing, or making threatening gestures; and (5) encouraging, inciting,
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or securing other persons to interfere with Plaintiffs' or the public's rights under the Deed of
Easement.
C. Within seven days of the entry of this Order, Mr. Gilmartin must remove the
existing signs on the Gilmartin Property that are depicted in Exhibit 44.
D. Plaintiffs have 21 days from the entry of this Order to file their Bill of Costs.
SO ENTERED this ____ day of ________________, 2017.
BY THE COURT:
District Court Judge
Respectfully submitted this 8th day of September, 2017.
IRELAND STAPLETON PRYOR & PASCOE, PC
Signed original on file at the office of
Ireland Stapleton Pryor & Pascoe, PC
/s/ Kelley B. Duke
Kelley B. Duke, #35168
Benjamin J. Larson, #42540
Special Counsel for City of Fort Collins and
Attorneys for Poudre Fire Authority
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2680276.4
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of September, 2017, a true and correct copy of the
foregoing PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW was served via U.S. Postal Service, first class mail, postage prepaid and addressed as
follows:
Keith Gilmartin
3316 W. Vine Drive
Fort Collins, CO 80521
And served via email to:
keithgil2@gmail.com
SIGNED ORIGINAL ON FILE AT THE OFFICE OF
IRELAND STAPLETON PRYOR & PASCOE, PC
/s/ Barbara Biondolillo
Barbara Biondolillo